Charles et al v. Atkinson et al

Filing 66

RULING denying 59 Motion for Reconsideration re 58 RULING. The claims against Atkinson remain and a pretrial conference will be set accordingly. Signed by Judge James J. Brady on 12/7/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TREVOR CHARLES AND
JENNIFER CHARLES
CIVIL ACTION
VERSUS
NO. 14-538-JJB
THOMAS LEE ATKINSON, ET AL
RULING ON MOTION FOR RECONSIDERATION
This case is before the Court on a Motion for Reconsideration (Doc. 59) of the Court’s
prior ruling (Doc. 58) granting the defendants’, Amerisure Insurance Company (“Amerisure”)
and Consolidated Fabrications Construction, Inc. (“CFC”), Motion for Summary Judgment (Doc.
27). The defendants filed an opposition (Doc. 62). Oral argument is unnecessary.
The legal issue central to the motion for reconsideration is the implied insurance
permission doctrine, which refers to “a course of conduct by the named insured involving
acquiescence in, or lack of objection to, the use of the vehicle.” Francois v. Ybarzabal, 483
So.2d 602, 605 (1986). The plaintiffs, Trevor and Jennifer Charles, argue that a genuine issue of
material fact exists as to whether Thomas Atkinson (“Atkinson”), a CFC employee, had implied
permission to drive the CFC vehicle. The plaintiffs claim that Atkinson told several people that
he had been given permission to drive the vehicle in the past. In support for this claim, the
plaintiffs submitted an affidavit from Chris Turner (“Turner”), an affidavit from Vincent Sotile,
Jr. (“Sotile”), and a transcript of a phone conversation between Sotile and Atkinson. As this
Court previously stated, the Turner affidavit is inadmissible hearsay. Ruling 6, Doc. 58.
Sotile, in his affidavit, claims that Atkinson told him that he had been given permission to
drive the CFC vehicle in the past. The plaintiffs devote a majority of their motion for
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reconsideration arguing that the Sotile affidavit is admissible as a statement by a party opponent,
under Federal Rule of Evidence 801(d)(2). Pls.’ Supp. Mem. 4–10, Doc. 59-1. In response, the
defendants cite ample evidence that the party-opponent hearsay exception is inapplicable to the
Sotile affidavit because (1) although Atkinson is technically a “party” to this case, having been
served with process, he is not an “opponent” for purposes of the hearsay exception because he is
an unavailable, non-answering party;1 and (2) the statement made by Atkinson is not being used
against himself, but rather against his co-defendants CFC and Amerisure. Defs.’ Opp’n Mem. 2–
5, Doc. 62 (citing Canter v. Hardy, 188 F. Supp. 2d 773 (E.D. Mich. 2002); Fitzpatrick v. City of
Fort Wayne, 259 F.R.D. 357 (N.D. Ind. 2009)). The Court agrees with the defendants that the
Sotile affidavit is inadmissible hearsay and therefore is not competent summary judgment
evidence. For similar reasons, the transcript of the phone conversation between Sotile and
Atkinson is also inadmissible.2
For the reasons stated above, the Court would like to modify the ruling as to some of the
language in Section II.A. Specifically, the Court stated: “The overwhelming weight of the
evidence indicates that CFC, aware that Atkinson lacked a driver’s license, did not allow him to
operate their vehicles. Atkinson’s statement . . . that he received permission in the past . . . is not
persuasive.” Ruling 5, Doc. 58. To clarify, the Court is not weighing the defendants’ proffered
evidence against the plaintiffs’. Instead, the plaintiffs have provided no competent summary
judgment evidence through which a genuine issue of material fact can be created.

“Among the rationale supporting admissibility of a party’s own out-of-court statements is that he or she ‘is present
in court to explain, deny or rebut the offered statement.’” Canter, 188 F. Supp. 2d at 782 (citations omitted).
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The Court also notes that the transcript of the phone conversation has not been authenticated under Federal Rule of
Evidence 901, as required for its admissibility.
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Conclusion
For the foregoing reasons, the plaintiffs’ Motion for Reconsideration (Doc. 59) is
DENIED. The claims against Atkinson remain and a pretrial conference will be set accordingly.
Signed in Baton Rouge, Louisiana, on December 7, 2015.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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