Hebert v. Hertz Corporation et al

Filing 29

ORDER AND REASONS: IT IS ORDERED that defendant Geico County Mutual Insurance Company's 25 Motion for Summary Judgment is GRANTED. Signed by Judge Ivan L.R. Lemelle on 5/8/2024. (pp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RACHEL HEBERT

CIVIL ACTION

VERSUS

NO. 23-5484

HERTZ CORPORATION ET AL.

SECTION “B”(5)

ORDER AND REASONS
Before the Court is defendant Geico County Mutual Insurance Company’s unopposed
motion for summary judgment (Rec. Doc. 25). For the following reasons,
IT IS ORDERED that defendant Geico County Mutual Insurance Company’s motion for
summary judgment is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Claiming personal injury from a car accident in Orleans Parish, Louisiana, plaintiff Rachel

Hebert filed a state court petition against Hertz Vehicles, Hertz Corporation, ESIS, Inc., and United
Services Automobile Association. Rec. Doc. 3-3 at 1–2. Subsequently, plaintiff filed a first
supplemental and amended petition, adding Alycia Mendoza and Sandy Fuentes as named
defendants. Id. at 33. Therein, plaintiff alleges Mendoza was the driver of the accident-causing
vehicle, which had been rented by Fuentes. Id. at 34. In a second supplemental and amended
petition, plaintiff added a seventh named defendant, Geico County Mutual Insurance Company.
Id. at 53.
Following its service, Geico timely removed the case, claiming diversity jurisdiction of 28
U.S.C. § 1332. See Rec. Doc. 3 at 3–5. Properly served defendants Hertz Vehicles, Hertz
Corporation, ESIS, Inc., and United Services Automobile Association provided consent to the
removal. See Rec. Doc. 3-4; see also Rec. Doc. 3 at 2 (“It appears that Alycia Mendoza and Sandy
Fuentes have never been served.”). After removal, plaintiff settled all claims against defendants
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Hertz Vehicles, LLC, Hertz Corporation, and ESIS, Inc. See Rec. Docs. 23 and 24. Geico now
moves for summary judgment of claims directed against it. Rec. Doc. 25.
II.

LAW AND ANALYSIS
A. Motion for Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions, interrogatory answers, and

admissions, together with any affidavits, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, even if not accompanied by an
affidavit, material in support or opposition of a motion for summary judgment may be considered
as long as it is “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) (emphasis in
original) (quoting Fed. R. Civ. P. 56(c)(2)). Courts view all facts and evidence in the light most
favorable to the non-moving party, but “refrain from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398 (5th Cir. 2008).
Where the movant bears the burden of proof, it must “demonstrate the absence of a genuine
issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial, the movant may merely point
to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).
Should the movant meet its burden, the burden shifts to the non-movant, who must show by
“competent summary judgment evidence” that there is a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. Accordingly, conclusory rebuttals of the pleadings are insufficient to avoid summary

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judgment. Bargher v. White, 928 F.3d 439, 444–45 (5th Cir. 2019). There is no genuine issue of
material fact if, even viewing the evidence in the light most favorable to the non-moving party, no
reasonable trier of fact could find for the non-moving party, thus entitling the moving party to
judgment as a matter of law. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).
B. Unopposed Motion Standard
In the Eastern District of Louisiana, a respondent that opposes a motion, including a motion
for summary judgment, “must file and serve a memorandum in opposition to the motion with
citations of authorities no later than eight days before the noticed submission date.” Local Rule
7.5. If a contradictory motion is unopposed, a district court may not grant it automatically, but may
grant it if the motion has merit. See Braly v. Trail, 254 F.3d 1082, 2001 WL 564155 at *2 (5th Cir.
2001).
The Court set the submission date for defendant’s motion for summary judgment as May
8, 2024, establishing plaintiff’s deadline to oppose as April 30, 2024. Plaintiff did not so oppose.
The Court “may properly assume that [plaintiff has] no opposition” to the motion to dismiss, and
may grant defendant’s request if it has merit. Smith v. Larpenter, No. 16-15778, 2017 WL
2773662, at *1 n.1 (E.D. La. May 3, 2017), report and recommendation adopted, No. 16-15778,
2017 WL 2780748 (E.D. La. June 26, 2017).
C. Louisiana Conflicts-of-Law Standard
This insurance dispute was removed to federal court on the basis of diversity jurisdiction
of 28 U.S.C. § 1332. See Rec. Doc. 3 at 4–5. “A federal court sitting in diversity applies the
substantive law of the forum state, in this case Louisiana.” Wisznia Co. v. Gen. Star Indem. Co.,
759 F.3d 446, 448 (5th Cir. 2014). “An insurance policy is a conventional obligation that
constitutes the law between the insured and the insurer, and the agreement governs the nature of

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their relationship.” Q Clothier New Orleans, L.L.C. v. Twin City Fire Ins. Co., 29 F.4th 252, 256–
57 (5th Cir. 2022) (quoting Supreme Servs. & Spec. Co. v. Sonny Greer, Inc., 958 So. 2d 634, 638
(La. 2007)). Under Louisiana conflicts-of-law provisions, a conventional obligation “is governed
by the law of the state whose policies would be most seriously impaired if its law were not applied
to that issue.” La. Civ. Code art. 3537. The Louisiana Civil Code supplies three factors for
assessing the state facing the most serious impairment:
(1) the pertinent contacts of each state to the parties and the transaction, including
the place of negotiation, formation, and performance of the contract, the location
of the object of the contract, and the place of domicile, habitual residence, or
business of the parties;
(2) the nature, type, and purpose of the contract; and
(3) the policies referred to in Article 3515, as well as the policies of facilitating the
orderly planning of transactions, of promoting multistate commercial intercourse,
and of protecting one party from undue imposition by the other.
Id. However, before engaging in a fully considered conflicts-of-law analysis, the Louisiana
Supreme Court asks a more basic question: is there any conflict of law present? See Champagne
v. Ward, 2003-3211 (La. 1/19/05), 893 So. 2d 773, 786 (“[W]e conclude that the appropriate
starting point in a multistate case such as the present one is to first determine that there is a
difference between Louisiana’s . . . law and the . . . law of the foreign state, and then to conduct a
choice-of-law analysis, as codified in Book IV of the Civil Code, to determine which state’s law
applies to the interpretation of the . . . policy.”). The United States Fifth Circuit has noted “if the
laws of the states do not conflict, then no choice-of-law analysis is necessary, and we simply apply
the law of the forum state.” Mumblow v. Monroe Broad., Inc., 401 F.3d 616, 620 (5th Cir. 2005)
(quotation cleaned up, citation omitted); see also Rohr v. Allstate Ins. Co., No. 06-30970, 2007
WL 3120131, at *2 (5th Cir. Oct. 25, 2007) (discussing Champagne and instructing a choice-oflaw analysis “if the respective laws are different”).

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Geico contends Texas law applies here to inform the construction of an insurance contract.
In RSUI Indemnity Co. v. The Lynd Co., the Texas Supreme Court provided general norms for
insurance contract interpretation: “Unless the policy dictates otherwise, we give words and phrases
their ordinary and generally accepted meaning, reading them in context and in light of the rules of
grammar and common usage.” RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex.
2015) (citation omitted). The Louisiana Supreme Court has held similarly: “Words and phrases
used in an insurance policy are to be construed using their plain, ordinary and generally prevailing
meaning, unless the words have acquired a technical meaning.” See Cadwallader v. Allstate Ins.
Co., 2002-1637 (La. 6/27/03), 848 So. 2d 577, 580 (citing La. Civ Code art. 2047). Moreover, in
both states, policy provisions are read to have meaning. Compare RSUI Indem. Co, 466 S.W.3d at
118 (citation omitted) (“We strive to give effect to all of the words and provisions so that none is
rendered meaningless.”); with La. Civ. Code Ann. 2049 (“A provision susceptible of different
meanings must be interpreted with a meaning that renders it effective and not with one that renders
it ineffective.”). Finally, both states view insurance contracts as a whole, with provisions seen in
relation to each other. Compare RSUI Indem. Co, 466 S.W.3d at 118 (quotation cleaned up, citation
omitted) (“No one phrase, sentence, or section of a contract should be isolated from its setting and
considered apart from the other provisions.”); with Carrier v. Reliance Ins. Co., 1999-2573 (La.
4/11/00), 759 So. 2d 37, 43 (“Ambiguity is to be resolved by construing the policy as a whole.”).
As Texas and Louisiana present no divergence in general interpretation principles, we observe no
conflict in law for the present issue. Accordingly, we apply the substantive law of the forum state,
Louisiana. See Mumblow, 401 F.3d at 620. 1

This conclusion is narrowly drawn, applicable only to Geico’s instant motion for summary judgment. In Louisiana’s
conflict-of-law analysis, the concept of dépeçage dictates an issue-by-issue assessment of the applicable law: “When
a conflict exists with regard to only one issue, the court should focus on the factual contacts and policies that are
pertinent to that issue. When a conflict exists with regard to more than one issue, each issue should be analyzed
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D. Insurance Contract Analysis
Plaintiff adds Geico as a named defendant in her second supplemental and amended
petition. Rec. Doc. 3-3 at 53. She does so without providing applicable policy information;
however, Geico attaches to its motion for summary judgment an affidavit in which Sandy Salas
Fuentes admits an insurance policy with Geico, under policy number 4565482033. See Rec. Doc.
25-4 at 9. Geico further attaches policy 4565-48-20-33, issued to Sandy Marie Salas and Emilio
Fuentes for their 2019 Toyota Highlander. Id. at 15. The affidavit and insurance policy are properly
before the Court in consideration of the instant motion for summary judgment. See Fed. R. Civ. P.
56(c).
In its first supplemental and amended petition, plaintiff alleges that Fuentes rented the
vehicle involved in the accident but that Alycia Mendoza was driving it. Rec. Doc. 3-3 at 34.
Affidavits from Fuentes and Mendoza confirm that arrangement. Rec. Doc. 25-4 at 9, 10. Fuentes
rented the vehicle “so that it could be used by Alycia Mendoza.” Id. at 9. Fuentes, moreover, was
not in the vehicle when the accident occurred. Id. at 9, 10.
Fuentes’s Geico policy restricts liability coverage in two pertinent ways: to specific drivers
and to specific types of temporary vehicles. Both restrictions are implicated in the policy’s
definition of temporary vehicle:
Temporary vehicle includes a vehicle that is loaned or provided to you, any family
member, or any licensed operator residing in your household, by an automobile
repair facility for the use of you, any family member, or any licensed operator
residing in your household, while a motor vehicle owned by you or any family
member is at the facility for service, repair, maintenance, or damage or to obtain an
estimate and is:
a. in the lawful possession of you, any family member, or any licensed
operator residing in your household;
b. not owned by you, any family member, or any licensed operator residing
in your household; and
separately, since each may implicate different states, or may bring into play different policies of these states.” See La.
Civ. Code art. 3515 cmt. (d).

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c. operated by or in the possession of you, any family member, or any
licensed operator residing in your household, until the vehicle is returned to the
repair facility.
Id. at 20 (emphasis in original). A temporary vehicle is also included as a type of “temporary
substitute auto,” which extends coverage to a replacement vehicle due to the covered auto’s
“breakdown, repair, servicing, loss, or destruction.” Id. at 19. The policy further defines a family
member as “a person who is a resident of your household and related to you by blood marriage or
adoption.” Id.
Coverage is not available for an accident involving Alycia Mendoza’s operation of a
vehicle rented by policyholder Sandy Fuentes. First, Mendoza is not the type of driver covered by
the policy. Specifically, Mendoza is not a qualified family member or household resident.
Mendoza and Fuentes list separate addresses in their affidavits. Id. at 9, 10. Second, the rented
vehicle is not of the type covered by the policy. A covered “temporary substitute auto” is one used
due to the covered auto’s “breakdown, repair, servicing, loss, or destruction.” Id. at 19. Here,
Fuentes rented the vehicle not due to issues with her 2019 Toyota Highlander but “so that it could
be used by Alycia Mendoza.” Id. at 9. Based on the applicable, unambiguous policy language,
plaintiff’s pertinent allegations, and summary judgment evidence, no genuine issue of material fact
exists. Thus, the unopposed motion has merit. Judgment as a matter of law in favor of Geico is
proper, leading to the dismissal of claims against that defendant.
New Orleans, Louisiana, this 8th day of May, 2024

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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