Washington v. Celadon Trucking, Inc. et al

Filing 56

ORDER AND REASONS denying 43 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 10/4/2013. (IJG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FELIX WASHINGTON

CIVIL ACTION

VERSUS

NO. 12-21

CELADON GROUP, INC., ET AL.

SECTION “B”(3)

ORDER AND REASONS

Nature of Motions and Relief Sought:
Before the Court are Plaintiff's Motion for Partial Summary
Judgement, Defendants' Opposition, and Plaintiff's Reply. (Rec.
Docs. No. 43, 46, & 51). Accordingly, and for the reasons put forth
below,
IT IS ORDERED that Plaintiff's Motion is DENIED. Movant is
warned that the subject motion barely survives the test for
a frivolous filing, particularly in the context of clear
applicable law and material factual disputes, all shown in this
record.

Procedural History and Facts of the Case:
This diversity suit arises from a traffic accident on Highway
10 near the city of Baton Rouge. Plaintiff Felix Washington alleges
in his complaint that Defendant Vincent Dickerson negligently rearended him while driving in the scope of his employment with
Defendant Celadon Trucking Services, Inc. ("Celadon"). (Rec. Doc.

No. 1 at 1-2). The complaint further alleges that the collision
caused him physical and mental injury, including severe injuries to
his back, which rendered him unable to work. Id. In memoranda
Plaintiff also avers that he has been unable to work as a result of
physician-prescribed opiates, which he takes to alleviate pain
allegedly caused by the accident. (Rec. Doc. No. 43-2 at 4).
Defendants asserted in their joint answer as an affirmative
defense that Plaintiff has failed to mitigate his damages. (Rec.
Doc. No. 5 at 3). In the instant Motion for Partial Summary
Judgement, Plaintiff argues that Defendants have failed to produce
evidence establishing that defense with respect to his claim for
lost wages and, accordingly, that Defendant should be precluded
from litigating the issue at trial. (Rec. Doc. No. 43-2 at 2).

Law & Analysis
A. 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). A genuine issue exists if the evidence
would allow a reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986).

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Although the Court must consider the evidence with all reasonable
inferences in the light most favorable to the nonmoving party, the
non-movant must produce specific facts to demonstrate that a
genuine issue exists for trial. Webb v. Cardiothoracic Surgery
Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998). Because
“only those disputes over facts that might affect the outcome of
the lawsuit under governing substantive law will preclude summary
judgment,” questions that are unnecessary to the resolution of a
particular issue “will not be counted.” Phillips Oil Co. v. OKC
Corp., 812 F.2d 265, 272 (5th Cir. 1987).
As to issues for which the non-moving party has the burden of
proof

at

trial,

the

moving

party

may

satisfy

its

burden

by

demonstrating the absence of evidence supporting the non-moving
party’s claim. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant makes this showing, the burden shifts to the nonmovant
to set forth specific facts showing that there is a genuine issue
for trial. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247
(5th Cir. 2003).

The nonmovant must go beyond the pleadings and

use affidavits, depositions, interrogatory responses, admissions,
or other evidence to establish a genuine issue. Id. Accordingly,
conclusory rebuttals of the pleadings are insufficient to avoid
summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7
F.3d 1203, 1207 (5th Cir. 1993).

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B. Failure to mitigate as an affirmative defense
In this diversity case, Louisiana law governs. The parties
agree that Louisiana law imposes a duty on plaintiffs to mitigate
damages

and

that

defendants

bear

an

evidentiary

burden

when

asserting failure to mitigate as an affirmative defense . (See Rec.
Docs. No. 43-2 at 1 and 46 at 3). They disagree, however, over what
that duty requires of plaintiffs and what the burden of the
corresponding defense requires of defendants.
Plaintiff contends that he need only mitigate his lost wage
claims by seeking to return to employment as a truck driver. He
further contends that because he is unable to drive while ingesting
opiates prescribed for back pain caused by the accident, Defendants
must produce evidence that he has taken those opiates in bad faith.
Separately,

Plaintiff

contends

that

Defendants

must

produce

evidence establishing the specific amount by which mitigation could
have reduced his damages. Thus, Plaintiff argues, he is entitled to
summary judgement on the mitigation issue because Defendant has
failed to produce evidence of either category.
Contrary

to

Plaintiff's

claims,

Louisiana

law

expressly

imposes a robust duty to mitigate. A plaintiff has a duty "to make
every reasonable effort to mitigate damages." Aisole v. Dean, 574
So. 2d 1248, 1254 (La. 1991). While plaintiffs "need not make
extraordinary or impractical efforts, [they] must undertake those
which would be pursued by a man of ordinary prudence under the

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circumstances." Jacobs v. New Orleans Pub. Serv., Inc., 432 So. 2d
843, 845-46 (La. 1983).
While Louisiana's highest court has not delineated the duty to
mitigate claims for lost wages, its intermediate courts have
described a demanding one. See, e.g., Maranto v. Goodyear Tire &
Rubber Co., 661 So. 2d 503, 509 (La. Ct. App. 1995) (plaintiffs
must make "attempts to find suitable employment."); DeRouen v.
Audirsch, 639 So. 2d 476, 485 (La. Ct. App. 1994).("An injured
plaintiff has a duty to take reasonable steps to mitigate damages,
including attempting to find suitable employment if she is, in
fact, employable."); Burke v. Safeway Stores, Inc., 554 So. 2d 184,
190 (La. Ct. App. 1989) (reducing damages for plaintiff's failure
to either obtain a "minimum wage job" or promptly enroll in
vocational studies.) Plaintiff mischaracterizes the law on
mitigation as somehow limiting suitable employment to one's most
recent job. Clearly, the test for mitigation is more encompassing.
Here, Defendant has produced sufficient evidence establishing
a genuine issue of material fact regarding Plaintiff's failure to
mitigate. Specifically, Defendants proffer evidence that Plaintiff
(1)

was

able

to

work

and

(2)

failed

to

seek

employment

nevertheless. For instance, Defendants produced the affidavits of
Marquitric Washington and Carolyn Williams, both of which contain
statements that Plaintiff did not seek employment at all. (See Rec.
Docs. No. 46-7 at 2 and 46-8 at 2). Defendants also produced
evidence that three of Plaintiff's medical doctors each stated that
in their professional opinion he had reached MMI and was able to

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work. (See Rec. Docs. No. 46-4, 46-5 at 3-4, and 46-9 at 3). This
is more than enough evidence from which a reasonable juror could
infer that Plaintiff did not make "every reasonable effort" to
mitigate his lost wages. Aisole, 574 So. 2d at 1254.
Plaintiff relies on Quaglino Tobacco & Candy Co., Inc. v.
Barr, 519 So. 2d 200 (La. Ct. App. 1987), to argue that Defendants
cannot survive summary judgment unless they produce evidence of the
specific amount by which mitigation could have reduced his damages.
This reliance is unfounded. In Quaglino, the Court of Appeal for
the Fourth Circuit of Louisiana considered a defendant's post-trial
challenge to an award for damages. Id. at 201-02. The court refused
to

reduce

damages,

however,

because

the

defendant

failed

to

controvert the trial court's findings. Id. at 203. Quaglino, quite
clearly, provides no guidance regarding a defendant's burden of
production at the pre-trial summary judgment stage of proceedings.
Plaintiff's reliance on Tyler v. Richardson, 476 So.2d 899
(La. Ct. App. 1992), is also unfounded. In Tyler the court held
that

defendants

must

pay

for

all

of

their

victim's

medical

treatment, no matter how unnecessary, unless received in bad faith.
Id. at 904-05.

The case said nothing of the duty to mitigate, let

alone a defendant's burden at summary judgment, and Plaintiff does
not explain or show its relevance here.

In summary, defendants have produced sufficient evidence to

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create genuine issues of material fact regarding mitigation.
Accordingly, and for the reasons above,
IT IS ORDERED that Plaintiff's Motion for Partial Summary
Judgment is DENIED.
New Orleans, Louisiana, this 4th day of October, 2013.

____________________________
UNITED STATES DISTRICT JUDGE

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