Casmier v. The Cincinnati Insurance Company et al

Filing 24

ORDER granting in part and denying in part 12 Motion for Partial Summary Judgment. Plaintiff's Motion is DENIED as it relates to the issue of liability and comparative fault, and the issue of employer liability. The Motion is GRANTED as it relates to the issue of Cincinnati Insurance Company's provision of automobile liability coverage to Neal Bowles and Cumberland Products, Inc. for the collision that is at issue in this lawsuit. Signed by Judge Jay C. Zainey on 7/5/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SANDY CASMIER

CIVIL ACTION

VERSUS

NO. 16-13621

THE CINCINNATI INSURANCE CO., ET AL

SECTION: A (4)

ORDER
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 12) filed by
Plaintiff Sandy Casmier. Defendants Neal Bowles (“Bowles”), Cumberland Products, Inc.
(Cumberland), and the Cincinnati Insurance Company (“Cincinnati”) oppose the Motion. (Rec.
Doc. 15). The Motion, set for submission on May 3, 2017, is before the Court on the briefs
without oral argument. 1
I.

Background
This matter arsis out of an automobile collision involving Plaintiff, Defendant Bowles, and

Bob Pellegrin, who is not a party in this lawsuit. On August 6, 2015, a collision occurred between
a vehicle operated by Plaintiff and a truck operated by Bob Pellegrin. (Rec. Doc. 15). Plaintiff
claims that Bowles failed to yield the right of way and came into Plaintiff’s lane, “requiring her to
take evasive actions to avoid a crash resulting in a collision with” Pellegrin’s vehicle. (Rec. Doc.
1-2). At the time of the collision, Bowles was allegedly acting in the course and scope of his
employment with Defendant Cumberland, who Plaintiff claims is vicariously liable for Bowles’
negligence. (Rec. Doc. 1-2). Plaintiff filed her lawsuit against Defendants in the 24th Judicial
District Court for the Parish of Jefferson, which Defendants removed to this Court based on
diversity jurisdiction. (Rec. Doc. 1). Plaintiff then filed the instant Motion for Partial Summary
Judgment. (Rec. Doc. 12).

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The Court notes that Plaintiff has requested oral argument. (Rec. Doc. 13).

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II.

Analysis
Plaintiff filed her Motion for Partial Summary Judgment seeking a declaration from the

Court that 1) Defendant Bowles is 100% liable and solely at fault for the damages arising out of
the motor vehicle collision between Bowles, Plaintiff, and Bob Pellegrin, 2) that Defendant
Cumberland is vicariously liable for the negligence of Bowles, and 3) that Defendant Cincinnati
provided automobile liability coverage to Bowles and Cumberland. Defendants maintain that
summary judgment is not appropriate because genuine issues of material fact remain.
Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the
light most favorable to the non-movant, “show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if
the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
(citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the
non-moving party. Id. (citing Anderson, 477 U.S. at 255).
Once the moving party has initially shown “that there is an absence of evidence to support
the non-moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the nonmovant must come forward with “specific facts” showing a genuine factual issue for trial. Id.
(citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)). Additionally,
if the moving party will bear the burden of persuasion at trial, then the moving party “must come

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forward with evidence which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir.
1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F.Supp. 948, 951 (D.Colo. 1991)).
a. Defendant Bowles’ Fault
Plaintiff seeks a declaration from the Court that Bowles was 100% liable and solely at fault
for any damages Plaintiff sustained as a result of the collision that occurred on August 6, 2015.
Defendants oppose Plaintiff’s Motion asserting that Bowles is not 100% at fault because Pellegrin
and Plaintiff are at fault.
In support of her Motion, Plaintiff points out to the Court that “Bowles was cited for failure
to yield under LSA-R.S. 32.123.” (Rec. Doc. 12-1). She also points out to the Court that Bowles’
insurer paid for the property damage sustained by Plaintiff and Pellegrin. (Rec. Doc. 12-1).
Additionally, Plaintiff asserts that she was driving at the speed limit, and that her evasive action
was reasonable and appropriate because she was presented with an unexpected emergency
situation. In support of their opposition, Defendants note that Bowles’ vehicle never came into
contact with another vehicle, and cite to the Police Report from the date of the accident in which
the officer reported that Pellegrin was traveling ten miles above the speed limit when his vehicle
struck Plaintiff’s vehicle. (Rec. Doc. 15). Defendants also note that there are conflicting facts as
to whether Plaintiff was traveling in the far left lane or the center lane before Bowles’ vehicle
began to merge. (Rec. Doc. 15). Finally, Defendants maintain that more than one party may be at
fault for the damages sustained in a motor vehicle accident.
The Court denies Plaintiff’s Motion for Summary Judgment on the issue of liability and
comparative fault. Taking the pleadings, depositions, answers to interrogatories, and admissions
on file, in the light most favorable to Defendants as the non-moving parties, the issue remains as

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to how much fault should be apportioned to Plaintiff and to Pellegrin. Considering the fact that
Defendant Bowles’ vehicle never came into contact with another vehicle and that Pellegrin was
traveling above the speed limit, whether Plaintiff and Pellegrin were at least partially at fault
remains unclear. In ordinary tort actions, “the determination and apportionment of fault is a factual
issue.” Coleman v. Townsend, 948 So.2d 369, 372 (La. Ct. App. 2 Cir. 2007). Because there is still
a genuine issue of material fact, the apportionment of fault, summary judgment is not appropriate.
b. Course and Scope of Employment
Plaintiff seeks a declaration from the Court that Bowles was acting in the course and scope
of his employment when the collision occurred. Defendants, in their Opposition, do not respond
to Plaintiff’s assertion that Bowles was acting in the course and scope of his employment with
Cumberland.
In support of her Motion, Plaintiff cites to Defendants’ Responses to Plaintiff’s
interrogatories in which Defendants state that Bowles was traveling to a sales call at the time of
the accident, was operating a vehicle with the permission of Cumberland, and was employed by
Cumberland on the date of the accident. (Rec. Doc. 12-6). In the same Response to Plaintiff’s
interrogatories, Defendants deny that Bowles was in the course and scope of his employment
because such would be a legal conclusion. (Rec. Doc. 12-6).
Louisiana law sets two elements before employer liability attaches: 1) an employeremployee relationship must exist and 2) the tortious act of the employee must have been committed
“during the course and scope of the employment by the employers sought to be held liable.” Maze
v. Grogan, 694 So.2d 1168, 1170 (La. Ct. App. 1 Cir. 1997). Generally, “an employer is
responsible for the negligent acts of its employee when the conduct is so closely connected in time,
place and causation to the employment duties of the employee that it constitutes a risk of harm

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fairly attributable to the employer's business.” Orgeron v. McDonald, 639 So.2d 224, 227 (La.
1994). Factors for courts to consider “in determining whether an employer is liable for the tortious
act of an employee include whether the tortious act: 1) was primarily employment rooted; 2) was
reasonably incidental to the employee's duties; 3) occurred on the employer's premises; and 4)
occurred during the hours of employment.” LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974).
The Court finds that summary judgment on the issue of employer liability is premature at
this time. The only facts that the Court has in making its determination on employer liability is that
Bowles was traveling to a sales call at the time of the accident, was operating a vehicle with the
permission of Cumberland, and was employed by Cumberland on the date of the accident.
Plaintiff’s burden on her Motion for Summary Judgment is to come forward with evidence that
would entitle her to a directed verdict if the evidence went uncontroverted at trial. Even if these
facts were uncontroverted at trial, the Court is not convinced that Plaintiff would be entitled to a
directed verdict based on those facts alone. Other facts, including whether Bowles was on his
employer’s property, whether the accident occurred during Bowles’ working hours, and whether
his actions were employment rooted are undetermined and important to the inquiry of employer
liability. Therefore, Plaintiff is not entitled to summary judgment on the issue of employer liability.
c. Insurance Coverage
Plaintiff seeks a declaration from the Court that Defendant Cincinnati Insurance Company
provided insurance coverage for the incident at issue in this lawsuit. Defendants, in their
Opposition, do not respond to Plaintiff’s assertion that Cincinnati provided insurance coverage for
the incident at issue in this lawsuit.
In support of her Motion, Plaintiff has provided the Court with the insurance policy
between Cincinnati and Cumberland (Rec. Doc. 12-11), the checks that Cincinnati issued to

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Plaintiff (Rec. Doc. 12-8) and to Pellegrin (Rec. Doc. 12-9), and Defendants’ response to
Plaintiff’s interrogatories in which they state that “Bowles was covered for motor vehicle liability
under an insurance policy issued by the Cincinnati Insurance Company to Cumberland Products,
Inc.” (Rec. Doc. 12-6).
The Court finds that Plaintiff has met her burden of proof and is entitled to summary
judgment resolving the issue of whether Cincinnati provided automobile liability coverage to
Bowles and Cumberland for the collision that is at issue in this lawsuit. By providing the insurance
policy, checks issued by Cincinnati, and Defendants’ own admission, Plaintiff has met her burden
of showing that she would be entitled to a directed verdict if the evidence went uncontroverted at
trial. Therefore, Plaintiff is entitled to summary judgment in the form of a finding by the Court
that Cincinnati provided automobile liability coverage to Bowles and Cumberland for the collision
that is at issue in this lawsuit.
Accordingly;
IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 12) is
GRANTED IN PART and DENIED IN PART. Plaintiff’s Motion is DENIED as it relates to the
issue of liability and comparative fault, and the issue of employer liability. The Motion is
GRANTED as it relates to the issue of Cincinnati Insurance Company’s provision of automobile
liability coverage to Neal Bowles and Cumberland Products, Inc. for the collision that is at issue
in this lawsuit.
New Orleans, Louisiana this 5th day of July 2017.

____________________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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