In the Matter of Gabriel Lasala

Filing 238

ORDER AND REASONS: IT IS HEREBY ORDERED that the 131 Motion for Summary Judgment is GRANTED as set forth in document. Signed by Judge Wendy B Vitter on 6/3/2021. (Reference: All Cases)(jeg) Modified text on 6/3/2021 (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF GABRIEL
LASALA, AS OWNER OF THE 2016
WORLD CAT MODEL 295CC, FOR
EXONERATION FROM OR LIMITATION
OF LIABILITY

CIVIL ACTION
NO. 18-11057 c/w
18-11138, 19-9706
19-9798, 19-9819
SECTION D (2)

THIS DOCUMENT RELATES TO ALL CASES
ORDER AND REASONS
Before the Court is Foremost Insurance Company’s Motion for Summary
Judgment. 1 Two Oppositions have been filed, 2 and Foremost has filed a Reply to
each. 3 After careful consideration of the parties’ memoranda, the record, and the
applicable law, the Courts grants the Motion.
I.

FACTUAL BACKGROUND
As is described in more detail elsewhere, in April 2018 Gabriel Lasala’s vessel

allied with a fixed platform owned by Cantium LLC. 4 This Order concerns what
happened to Lasala’s vessel after the allision, and particularly the claims against
Lasala’s insurer, Foremost Insurance Company of Grand Rapids Michigan
(“Foremost”). 5

R. Doc. 131.
R. Doc. 143 (Lasalas); R. Doc. 147 (Pressers). Cantium, LLC, has also adopted the Pressers’
Opposition. See R. Doc. 156.
3 R. Doc. 155 (Reply to Lasalas); R. Doc. 170 (Reply to Pressers).
4 R. Doc. 217 (Factual Background).
5 The Court notes that because of the structure of the insurance company, Foremost is used somewhat
interchangeably with Farmers Insurance Exchange throughout the record. See R. Doc. 131-3 at 96
(explaining that Foremost falls within the umbrella of Farmers Insurance Exchange).
1
2

Following the allision, the boat was tied to the fixed platform, but eventually
got free. 6 Rob Buck, the owner of a marine assistance program named Sea Tow, was
contacted by Corey Sandborn of Foremost, who spoke with him about retrieving the
vessel. 7 The vessel was eventually found on Grand Gosier Island in the Gulf of
Mexico. 8 Buck retrieved the boat and returned it to End of the Line Boat Storage.9
Buck later brought the vessel to Big John’s Towing and Recovery, a company related
to Copart Auction Yard (“Copart”). 10 The vessel was later transported to a different
yard by Copart. 11
Diane Stanley, Foremost’s special claim adjuster, and Corey Sandborn,
Foremost’s marine claims adjuster, both worked on the Lasala claim. Both knew that
this matter may be the subject of litigation, and both sought to preserve the vessel
for inspection. On May 24, 2018, Sanborn asked that the vessel be wrapped and put
on a hold. 12 Sandborn stated at his deposition that he called Copart and asked that
the vessel be wrapped and held. 13 Stanley testified that she spoke with Sandborn
about the need for a hold on the vessel, 14 and that she felt that she went “above and
beyond” in trying to hold the vessel. 15

R. Doc. 131-7 at 15-16.
R. Doc. 131-7 at 25.
8 Id. at 27.
9 Id. at 45.
10 Id. at 49-52.
11 R. Doc. 131-3 at 22.
12 R. Doc. 147-3.
13 See R. Doc. 131-4 at 14, 23, and 37.
14 R. Doc. 131-3 at 27.
15 Id. at 195.
6
7

However, it is undisputed that neither

Sandborn nor Stanley followed the correct policy to put a hold on the vessel.16
Specifically, either Sandborn or Stanley needed to contact specific employees in
salvage to order a hold on the vessel. 17 The boat was sold on July 3, 2018. 18 It left
Copart’s possession on August 3, 2018. 19 The buyer dismantled and scrapped the
vessel shortly after receiving it. 20
Numerous parties have filed claims for spoilation against Foremost related to
the sale and destruction of the vessel. 21 The Court previously found that the parties
could only seek intentional spoliation claims, and dismissed any negligent spoilation
claim asserted by the parties. 22 The Court further found that the parties’ intentional
spoilation claim arises under Louisiana Civil Code article 2315, and that this Court
exercises supplemental jurisdiction over such claims. 23
Foremost now moves for summary judgment as to the intentional spoilation
claims against it. 24 In its Motion, Foremost argues that no party can prove that the
vessel was intentionally destroyed. Foremost cites to various Louisiana cases, and
stresses that there is no evidence of intent or bad faith on the part of Foremost’s
employees. Foremost points to the testimony of Diane Stanley and Corey Sandborn

See R. Doc. 143-3 at 3 (Sandborn Deposition); R. Doc. 143-4 at 32 (Stanley Deposition); R. Doc. 1435 at 13 (Zemel Deposition).
17 See R. Doc. 147-3 at 36.
18 R. Doc. 147-3 at 39.
19 Id.
20 Id. at 30.
21 See Docket No. 18-11138, R. Doc. 1 (Pressers); See Docket No. 19-9798, R. Doc. 1 (Lasalas), R. Doc.
7 (Cantium); Docket No. 18-11138, R. Doc. 1 (Pressers); R. Doc. 12 (Cantium); Docket No. 19-9818, R.
Doc. 7 (Cantium); Docket No. 19-9706, R. Doc. 1 (Pattersons and Junot).
22 R. Doc. 97.
23 Id.; R. Doc. 180.
24 R. Doc. 131.
16

and argues that it demonstrates that they believed the vessel was being preserved.
Foremost also argues that the failure of Foremost’s employees to follow company
protocol does not rise to the level of intentional spoilation.
The Lasalas have filed an Opposition. 25

The Lasalas first argue that

Foremost’s Motion regarding intentional spoilation does not speak to the other claims
the Lasalas assert as a result of the destruction of the vessel, including contractual
and breach of fiduciary duty claims. The Lasalas also argue that summary judgment
should not be granted when motive or intent is at issue, and they highlight the
evidence that they argue supports a finding that the sale of the boat was intentional.
Foremost has filed a Reply to the Lasalas’ Opposition, 26 in which it agrees that claims
other than parties’ intentional spoilation claims are not implicated by its Motion.
Foremost reiterates its position that the Lasalas have no evidence to support an
intentional spoilation claim, and attempt to distinguish the Louisiana caselaw cited
by the Lasalas.
The Pressers have also filed an Opposition. 27 The Pressers argue that they
have yet to receive certain discovery from Foremost that they contend could be
relevant to the resolution of this Motion. The Pressers stress that as an insurance
company, Foremost had a duty to preserve the vessel. It cites to the fact that
Foremost’s employees failed to follow protocols and Foremost’s history of other
spoilation issues as evidence that Foremost’s failure to retain the vessel rises to the

R. Doc. 143.
R. Doc. 167.
27 R. Doc. 147.
25
26

level to intentional. In its Reply 28 to the Pressers, Foremost argues that the Pressers
have been woefully negligent in conducting discovery and cannot now claim after the
close of discovery that additional discovery is needed to rule on the instant Motion.
Foremost also distinguishes various cases cited by the Pressers, and again reiterates
its position that there exists no evidence to support an intentional spoilation claim.
II.

LEGAL STANDARD
Summary judgment is appropriate where there is no genuine disputed issue as

to any material fact, and the moving party is entitled to judgment as a matter of
law. 29 When assessing whether a dispute regarding any material fact exists, the
Court considers “all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.” 30

While all reasonable

inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions or “only
a scintilla of evidence.” 31 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party. 32
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.” 33 The

R. Doc. 170.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
30 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
31 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
32 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
33 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
28
29

non-moving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact, or by
“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.” 34 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim. 35 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” 36
This case is set for a bench trial. The Fifth Circuit has held that “even at the
summary judgment stage, a judge in a bench trial has the limited discretion to decide
that the same evidence, presented to him or her as trier of fact in a plenary trial,
could not possibly lead to a different result.” 37 This is because “it makes little sense
to forbid the judge from drawing inferences from the evidence submitted on summary
judgment when that same judge will act as the trier of fact.” 38

Id. at 1265.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
36 Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
37 Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991).
38 Id.
34
35

III.

ANALYSIS

This order is limited to the consideration of whether the parties may maintain
a claim for damages against Foremost based on intentional spoilation. 39 Under
Louisiana law, “[t]he theory of ‘spoliation’ of evidence refers to an intentional
destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff
asserting a claim for spoilation of evidence must allege that the defendant
intentionally destroyed evidence.” 40

“Allegations of negligent conduct are

insufficient.” 41 Because it is briefed by the parties, the Court notes that the same is
true under federal law. 42
Here, the parties asserting intentional spoilation claims have failed to point to
any evidence which would support the most central element to their claim: an intent
on the part of Foremost to destroy the vessel to deprive other parties of its use as
evidence in this litigation. Indeed, the evidence points overwhelmingly in the
opposite direction, as it demonstrates that there was no intent to destroy the vessel
in order to deprive any party of the evidence. Corey Sandborn stated repeatedly that
he believed he had been clear with Copart that the boat was to be held. 43 Sandborn
testified that when he found out the boat was sold, “it was devastating” and “the floor
fell out from underneath [him]” because he “had called Copart, and [he], you know,
made sure [he] was very clear with the person that . . . this is very important for this
The Court notes, however, that no adverse inference may be made against Foremost’s insured,
Lasala, as he was not responsible for the sale and destruction of the vessel.
40 Clavier v. Our Lady of the Lake Hosp. Inc., 112 So. 3d 881, 885 (La. App 1 Cir. 2012).
41 Id.
42 See, e.g., United States v. E.R.R. LLC, No. 19-2340, 2020 WL 4762218, at *3 (E.D. La. Aug. 14, 2020).
43 See, e.g., R. Doc. 131-4 at 23 (“I made it very clear, like, this needs to get prepared for inspection, I
need to get a hold on it.”).
39

claim; that [Foremost] would be able to inspect this, and this thing be secured and
be, you know, wrapped up in plastic, and I got, again, nothing but confirmation.”44
Similarly, Diane Stanley stated she “though [she] was going beyond [her] legwork” in
putting a hold on the vessel. 45 She further state that she “had every intention to hold
it, and [she] thought she did way more work than [she] would have needed to have
done had [she] just sent an email and notified salvage.” 46
To be sure, there is some evidence of negligence on the part of Foremost’s
agents in failing to preserve the vessel. It is undisputed that Stanley and Sandborn
failed to follow the proper policy and procedure to put a hold on the vessel. 47 The
record indicates that this was not a willful disregard of the policy, but ignorance of a
policy with which both adjusters were unfamiliar. 48 On these facts, Stanley’s and
Sandborn’s failure to follow the policy is evidence of the parties’ negligence, not of
their intent to destroy the evidence. Although he did not follow Foremost policy on
placing a hold on the vessel, Sandborn took other steps, that he believed were
sufficient to preserve the evidence. 49 Nor is the failure of Stanley or Sandborn to
coordinate with the salvage team evidence of intent, as it too only points to
negligence. Finally, evidence that Foremost has had other spoilation issues in the
past 50 is not relevant to whether the Foremost employees in this matter intentionally

Id. at 37.
R. Doc. 131-3 at 196.
46 Id. at 197.
47 See R. Doc. 143-3 at 3 (Sandborn Deposition); R. Doc. 143-4 at 32 (Stanley Deposition); R. Doc. 1435 at 13 (Zemel Deposition).
48 See R. Doc. 134-4 at 85 (Sandborn Deposition); R. Doc. 131-3 at 197 (Stanley Deposition).
49 See R. Doc. 131-4 at 14, 23, and 37.
50 See R. Doc. 147-3 at 36.
44
45

destroyed evidence to prevent other parties from using it. The evidence—viewed in
the light most favorable to those asserting the intentional spoilation claims—only
amounts to evidence of negligence on the part of Foremost.
The Lasalas resist this conclusion by arguing that issues of intent should not
be decided on summary judgment, as the fact-finder has limited ability to assess the
credibility of a witness on a written record. It is true that “summary judgment is
rarely proper when an issue of intent is involved.” 51 But “the presence of an intent
issue does not preclude summary judgment: the case must be evaluated like any
other to determine whether a genuine issue of material fact exists.” 52

Indeed,

summary judgment may be properly granted even if intent is an essential element of
the nonmoving party’s case. 53 Here, the Court has determined that no issues of
material fact exist as to whether Foremost intentionally destroyed evidence to
prevent its use by other parties. Moreover, “the same evidence, presented to [the
Court] as trier of fact in a plenary trial, could not possibly lead to a different result”
in this matter. 54

Accordingly, the issue of intent does not preclude summary

judgment on the intentional spoilation claims.
The Pressers’ arguments that discovery remained outstanding are also
unavailing. Discovery in this matter closed February 12, 2021. 55 The instant Motion
was filed after that discovery deadline. 56 The Pressers made no motion to extend

Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1326 (5th Cir. 1996).
Id.
53 Krim v. BancTexas Grp. Inc., 989F.2d 1435, 1449 (5th Cir. 1993).
54 Matter of Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991).
55 See R. Doc. 99.
56 See R. Doc. 131 (filed February 17, 2021).
51
52

discovery—nor have they since that time. The Pressers complain that they only
recently learned the names of Jim Enright and Daniel Callegan, members of
Foremost’s salvage team involved in the same of the vessel. The record before the
Court reflects that the names Jim Enright and Daniel Callegan were included in
Foremost’s claim file, which was produced well before the close of discovery. 57 The
Pressers also argue that they first learned of these names of Enright and Callegan in
Dan Zemel’s deposition—a deposition the Pressers did not take until one week before
the discovery deadline.58 Nevertheless, a party cannot wait until the eve of the close
of discovery to conduct a significant deposition and then complain of the need for
additional discovery based on information learned in that deposition. Although the
Court recognizes that a good deal of discovery took place in the final two weeks before
the Court’s discovery deadline, that speaks in part to the Pressers’ lack of diligence
in pursuing discovery related to this claim. More importantly, the Court is not
convinced that additional discovery regarding additional Foremost employees,
including Jim Enright and Daniel Callegan, would yield relevant evidence on this
issue as the record is clear that it was ultimately the responsibility of Sandborn and
Stanley to put a proper hold on the vessel. 59 Accordingly, the Court does not find this
argument precludes summary judgment.
In short, because the parties asserting intentional spoilation claims have failed
to point to any evidence that Foremost intentionally destroyed the vessel to deprive

See R. Doc. 170-10.
See R. Doc. 131-5.
59 See R. Doc. 143-5 at 13.
57
58

the parties’ of the evidence, summary judgment is warranted. The Court notes that
this order addresses only the parties’ intentional spoilation claims, and not the other
claims asserted against Foremost by the Lasalas.
IV.

CONCLUSION

IT IS HEREBY ORDERED that the Motion for Summary Judgment is
GRANTED.
New Orleans, Louisiana, June 3, 2021.

______________________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE