Brady, et al v. Global Hawk Insurance Company Risk Retention Group, et al

Filing 26

ORDER granting 14 Motion for Partial Summary Judgment. Signed by Judge Sarah S. Vance on 10/16/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JIMMIE BRADY, ET AL.

CIVIL ACTION

VERSUS

NO. 17-433

GLOBAL HAWK INSURANCE
COMPANY, ET AL.

SECTION “R” (5)

ORDER AND REASONS
Before the Court is plaintiffs’ motion for partial summary judgment.1
For the following reasons, the Court grants the motion.

I.

BACKGROUND
This case arises out of a motor vehicle collision on the I-10 highway in

Orleans Parish, Louisiana.2

On December 4, 2015, Defendant Lukas

Maelissa was driving a tractor-trailer owned by Defendant DAT Trucklines,
Inc., when the front of Maelissa’s vehicle struck the rear of a vehicle driven
by Plaintiff Jimmie Brady.3 Plaintiff Acharmbi Berry was a guest passenger

1
2
3

R. Doc. 14.
R. Doc. 2-2 at 1 ¶ 2.
R. Doc. 14-4; R. Doc. 14-8 at 2-3.

in Brady’s car at the time of the accident. 4 Defendant Global Hawk Insurance
Company provides insurance coverage to DAT Trucklines and Maelissa.5
On July 7, 2016, plaintiffs filed a petition for damages in Louisiana
state court.6 Brady and Berry allege that they each suffered personal injuries
because of the traffic accident. 7 Defendants removed the matter to this Court
on the basis of diversity of citizenship under 28 U.S.C. § 1332.8 Plaintiffs
now move for partial summary judgment on the issues of liability,
comparative fault, vicarious liability, and insurance coverage. 9

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]

4
5
6
7
8
9

R. Doc. 14-8 at 2.
R. Doc. 15 at 1.
R. Doc. 2-2.
Id. at 2 ¶ 6-7.
R. Doc. 1 at 3 ¶ 7.
R. Doc. 14.
2

from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come 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,
1264-65 (5th Cir. 1991) (internal citation omitted). The nonmoving party can
then defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or “showing
that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.” Id.
at 1265.
3

If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”) (quoting Celotex, 477 U.S. at 322).

III. DISCUSSION
A. Request to Strike Exhibits
Defendants ask the Court to strike as inadmissible certain exhibits
attached to plaintiffs’ motion. 10 As an initial matter, the Court notes that
“[a]t the summary judgment stage, materials cited to support or dispute a

10

R. Doc. 15 at 5-6.
4

fact need only be capable of being ‘presented in a form that would be
admissible in evidence.’” LSR Consulting, LLC v. Wells Fargo Bank, N.A.,
835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed. R. Civ. P. 56(c)(2)).
Defendants first ask the Court to strike evidence of a settlement
agreement between Global Hawk and Brady regarding the property damage
to Brady’s vehicle arising out of the December 4, 2015 accident.11 Federal
Rule of Evidence 408 provides that evidence of a settlement is inadmissible
“either to prove or disprove the validity or amount of a disputed claim.”
Fed. R. Evid. 408(a).

Plaintiffs’ references to the property damage

settlement appear designed to establish the validity of their claim, and
plaintiffs have not indicated that this evidence could be admissible for any
permissible purpose. 12 Cf. Belton v. Fibreboard Corp., 724 F.2d 500, 505
(5th Cir. 1984) (holding that evidence of a settlement may be admissible for
purposes other than to prove liability or the validity or amount of a claim).
Evidence of a purported property damage settlement is therefore not capable
of being presented in admissible form, and the Court will not consider it on
summary judgment. Accordingly, the Court strikes plaintiffs’ Exhibit 6. 13

R. Doc. 15 at 5.
R. Doc. 14-1 at 2; R. Doc. 14-2 at 3.
13
R. Doc. 14-9. Defendants ask the Court to strike plaintiffs’ Exhibit 5,
which is the defendants’ responses to plaintiffs’ request for admission.
See R. Doc. 14-8. But Exhibit 5 does not reference a settlement.
5
11

12

Defendants further request that the Court strike plaintiffs’
photographic and video evidence.14 Defendants argue that these exhibits
lack foundation and are inadmissible under Federal Rule of Evidence 901.15
Plaintiffs represent that the photograph 16 and video 17 were captured by a
police officer’s body camera during the officer’s investigation of the traffic
accident.18 As noted above, evidence need not be fully authenticated and
admissible to constitute competent summary judgment evidence so long as
it is capable of being presented in admissible form at trial. See Lee v.
Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017); LSR
Consulting, LLC, 835 F.3d at 533-34. But the Court finds it unnecessary to
consider the video and still photograph because plaintiffs have presented
sufficient alternative evidence to warrant partial summary judgment.
B. Maelissa’s Liability
Plaintiffs argue that the uncontested facts establish that Maelissa is
solely at fault for the damages they sustained as a result of the motor vehicle

Defendants’ objection therefore appears to be directed at the property
damage release attached as Exhibit 6. See R. Doc. 14-9.
14
R. Doc. 15 at 5-6.
15
Id.
16
R. Doc. 14-10.
17
R. Doc. 14-5.
18
R. Doc. 18 at 8.
6

collision. 19 Brady testified in his deposition that he was driving in traffic on
the right lane of the highway preparing to exit on Claiborne Avenue when his
vehicle was suddenly hit by a truck driving behind him.20 Berry similarly
testified that Brady’s vehicle was traveling in the right lane in stop and go
traffic when the vehicle was struck from behind. 21 Defendants do not offer
any deposition testimony to rebut plaintiffs’ accounts of the accident.
Further, defendants admit that the front of Maelissa’s truck collided
with the rear of Brady’s vehicle. 22 In Louisiana, drivers of motor vehicles
have a duty “not [to] follow another vehicle more closely than is reasonable
and prudent, having due regard for the speed of such vehicle and the traffic
upon and the condition of the highway.” La. R.S. 32:81(A). The Louisiana
Supreme Court has explained that “a following motorist in a rear-end
collision is presumed to have breached the standard of conduct prescribed in
La. Rev. Stat. Ann. 32:81 and hence is presumed negligent.” Mart v. Hill,
505 So. 2d 1120, 1123 (La. 1987). To rebut the presumption of negligence,
the rear driver “must establish that he kept his vehicle under control, closely
observed the forward vehicle and followed at a safe distance under the

19
20
21
22

R. Doc. 14 at 1.
R. Doc. 14-7 at 62-63, 71-72.
R. Doc. 14-6 at 49.
R. Doc. 14-8 at 2-3.
7

circumstances.” Eubanks v. Brasseal, 310 So. 2d 550, 553 (La. 1975); see
also Domingo v. State Farm Mut. Auto. Ins. Co., 54 So. 3d 74, 80-81 (La.
App. 5 Cir. 2010). A following driver can avoid liability by demonstrating
“that the unpredictable driving of the preceding motorists created a sudden
emergency that the following motorists could not reasonably have
anticipated.” See Eubanks, 310 So. 2d at 555.
Defendants have not presented the Court with Maelissa’s description
of the accident. Nor do they offer any evidence that Maelissa was driving
safely under the circumstances. Additionally, the police traffic crash report
includes a violation by Maelissa for failure to yield and concludes that he was
at fault for the accident. 23 The police report indicates no violations by
Brady.24

Given this report and plaintiffs’ unrebutted accounts of the

accident, the Court finds that plaintiffs have offered sufficient evidence to
“entitle [them] to a directed verdict if the evidence went uncontroverted at
trial.” Int’l Shortstop, Inc., 939 F.2d at 1264-65 (internal quotation marks
and citation omitted).
In response to this evidence of Maelissa’s negligence, defendants argue
that plaintiffs provided inconsistent statements about the circumstances

23
24

R. Doc. 14-4 at 2-3, 7.
Id. at 4-5.
8

surrounding the accident.25 But none of these purported inconsistencies give
rise to genuine issues of material fact regarding liability. Defendants first
point out that Berry told medical providers that the accident occurred as
Brady’s car was merging into traffic.26 Berry later testified that Brady’s car
did not change lanes before the collision, and she explained that she had used
the wrong term when she said the car was merging into traffic. 27 Defendants
present no other evidence to suggest that Brady’s car was merging into traffic
before the accident. The police report does not indicate any lane change by
Brady.28 Even if the Court were to accept as true defendants’ suggestion that
the accident may have occurred as Brady merged into traffic, defendants
have not raised an issue of fact indicating that Brady acted abruptly or
merged into traffic without exercising due care.
Defendants further contend that Brady may have been driving
unreasonably slowly in violation of Louisiana Revised Statutes § 32:64(B). 29
But defendants fail to point to any facts indicating that Brady was driving “at
such a slow speed as to impede the normal and reasonable movement of
traffic.” La. R.S. 32:64(B). Brady testified that he was driving in “stop and

25
26
27
28
29

R. Doc. 15 at 4.
Id.; R. Doc. 15-2 at 4.
R. Doc. 15-2 at 4-5.
R. Doc. 14-4 at 7.
R. Doc. 15 at 4-5, 7-8.
9

go” traffic, and at some moments the vehicle was stopped and at other times
he was able to move 10 to 15 miles an hour. 30 The police report indicates that
Brady stated he was rear ended “as traffic gradually moved.” 31
In light of plaintiffs’ uncontradicted testimony about the traffic
situation, defendants have failed to raise any genuine issue of fact as to
whether Brady was driving too slowly. Heavy traffic does not in itself
constitute a sudden emergency, and the following driver has an obligation to
slow down to adjust to traffic conditions. See Fuller v. Hillyard, Nos. 002791, 00-2953, 2002 WL 10524, at *5 (E.D. La. 2002); Ebarb v. Matlock, 69
So. 3d 516, 521-22 (La. App. 2 Cir. 2011). Defendants’ reliance on Rudd v.
United Services Auto Ass’n, 626 So. 2d 568 (La. App. 3 Cir. 1993), is
inapposite. The Rudd court found a genuine issue of material fact because
the defendant driver testified that the lead driver slammed on her brakes. Id.
at 570-71. Defendants present no testimony from Maelissa that could create

R. Doc. 15-1 at 4-5, 8. Brady initially testified that he was driving
about 25 to 30 miles an hour, but later in his deposition he stated that he
was not moving that fast. See R. Doc. 15-1 at 3, 5. Given the traffic
conditions, some uncertainty about the speed of the vehicle is not unusual.
31
R. Doc. 14-4 at 7.
10
30

a similar issue of fact. Accordingly, the Court finds that Maelissa’s negligence
was the sole proximate cause of the traffic collision. 32
C. Vicarious Liability and Insurance Coverage
Defendants admit that Maelissa was performing work for DAT
Trucklines at the time of the accident 33 and concede that DAT Trucklines is
vicariously liable for any liability assigned to Maelissa.34 See La. Civ. Code
art. 2320. Defendants further concede that Global Hawk provides insurance
coverage to DAT Trucklines and Maelissa.35 There is therefore no genuine
issue of fact as to either vicarious liability or insurance coverage.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that Lukas Maelissa’s

negligence was the sole proximate cause of the December 4, 2015 motor
vehicle collision and that DAT Trucklines is vicariously liable for Maelissa’s
negligent acts or omissions. Further, the Court finds that Global Hawk
Insurance Company provided automobile liability coverage to DAT

This motion for partial summary judgment is limited to the question
of liability, and the Court expresses no opinion as to the scope of plaintiffs’
damages.
33
R. Doc. 14-8 at 3.
34
R. Doc. 15 at 1-2.
35
Id.
11
32

Trucklines and Lukas Maelissa at the time of the accident. Accordingly,
plaintiffs’ motion for partial summary judgment is GRANTED.

16th
New Orleans, Louisiana, this _____ day of October, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

12