Stephens v. Carter et al

Filing 47

RULING granting in part and denying in part 29 Motion for Partial Summary Judgment. Signed by Judge Shelly D. Dick on 1/4/2017. (LLH)

UNITED STATES DISTCIT COURT
MIDDLE DISTRICT OF LOUISIANA
VAN H. STEPHENS

CIVIL ACTION NO.

VERSUS

15-CV-521-SDD-RLB

JAMES C. CARTER, ANDY’S SUPER
CO., VIN CORPORATIN, SIPIRIT
COMMERICAL AUTO RISK
RETENTION GROUP and
PROGRESSIVE CASUALTY
INSURANCE COMPANY
RULING
This matter is before the Court on the Motion for Partial Summary Judgment1 filed
by Defendants, James C. Carter, VIN Corporation, and Spirit Commercial Auto Risk
Retention Group, Inc. (“Defendants”). Plaintiff Van H. Stephens (“Plaintiff”) has filed an
Opposition2 to which the Defendants have filed a Reply.3 For the following reasons, the
Court finds that Plaintiff has supported his loss of earning capacity claim for past lost
wages but not his claim for loss of future earning capacity, and summary judgment is
granted in part and denied in part.
I.

FACTUAL BACKGROUND4
On July 18, 2014, Plaintiff was driving on Interstate 10 (“I-10”) in Iberville Parish,

Louisiana when he was rear-ended, along with 5 other cars, by an 18 wheeler driven by
Defendant James Carter (“Carter”). Plaintiff was the first car impacted by the 18 wheeler
driven by Carter, who was allegedly driving at an estimated speed of 55 miles per hour.
1

Rec. Doc. 29.
Rec. Doc. 32.
3
Rec. Doc. 34.
4
The Court basis the factual background on Rec Docs. 1-3, 29-1 and 33.
Document Number: 36452
2

Page 1 of 8

The 18 wheeler driven by Carter is believed to be owned by Defendant VIN Corporation
(“VIN”), “for or under dispatch from a company believed to be Defendant Andy’s Super
Co. (“ASC”) and insured by Defendant Spirit Commercial Auto Risk Retention Group
and/or Progressive Casualty Insurance Company.”5
Plaintiff filed this lawsuit alleging:
past physical pain and suffering, future physical pain and
suffering, past mental pain and suffering, future mental pain
and suffering, present, and future medical expenses, loss of
past earnings, loss of future earning capacity, permanent
disability of the body, past and future loss of enjoyment of life,
together with legal interest thereon from date of judicial
demand, until paid in full, and for all costs of these
proceedings.6
As a result of this collision, Plaintiff alleges that he has suffered injuries, including past,
present, and future loss of income and loss of earning capacity. Defendants argue that
Plaintiff’s only proof as to the lost wage claim is “his self-serving representations.”7
Defendants further allege that Plaintiff offered no evidence to support his loss of earning
capacity claim.8 Plaintiff counters that Louisiana law supports his claim based upon the
evidence he has provided.9
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

5

Rec. Doc. 33.
Rec. Doc. 1-3.
7
Rec. Doc. 29-1.
8
See Id.
9
Rec. Doc. 32.
Document Number: 36452
6

Page 2 of 8

of law.”10 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”11 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”12 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”13 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”14
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”15 All reasonable factual
inferences are drawn in favor of the nonmoving party.16 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”17 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his

10

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
12
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
13
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
14
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
15
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
16
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
17
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
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11

allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”18
B. Lost Wages Standard
This case is pending here based on diversity jurisdiction. The Court applies
Louisiana state substantive law. The Louisiana Supreme Court in Jordan v. Travelers
Insurance Company held, “a claim for loss of earnings need not be proven with
mathematical certainty, but only by such proof as reasonably establishes the claim. This
may even consist only of the plaintiff’s own reasonable testimony, if accepted as truthful;
although of course the better practice is to introduce corroborating testimony.”19 The
Louisiana Supreme Court has consistently applied this standard to claims for lost wages,
most recently in Driscoll v. Stucker, where again the Court stated: “For purposes of
determining damages, the amount of lost earnings need not be proved with mathematical
certainty, but by such proof as reasonably establishes the claim, and such proof may
consist of only the plaintiff’s own testimony.”20 Therefore, Plaintiff may establish his lost
wages claim by proof that reasonably establishes his claim, which may consist of his own
testimony.
Plaintiff not only satisfies the minimum standard for establishing a lost wages claim
under Louisiana Supreme Court jurisprudence, but he has also met the best practices
standard by providing corroborating evidence to his testimony. Plaintiff has testified that
he was claiming wages for the one week he took off from work following the accident.21

18

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
19
245 So.2d 151, 154-55 (La. 1971).
20
2004-0589 (La. 1/19/05); 893 So.2d 32, 53 (citations omitted).
21
Rec. Doc. 29-3.
Document Number: 36452
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As a result of taking a week off of work, Plaintiff calculated that he lost wages in the
amount of $1,800.71.22 Plaintiff arrived at this figure by calculating his bi-weekly rate of
pay, $3761.42,23 and deducting half, to reach the amount of $1,800.71.

Plaintiff’s

calculations are corroborated by documentation from his employer.24
Defendants argue that Plaintiff’s “only proof is his self-serving representations
wherein he testified that he lost wages for one missed week of work post-accident to the
tune of $1,880.71.”25 The jurisprudence cited by Defendants in support of this argument
is either not binding on the Court or factually distinguishable.26 Moreover, the Plaintiff
meets the required standard: “Courts have long held that awards for earnings are
susceptible of mathematical calculation from proof offered at trial and require such proof
as reasonably establishes the claim. This may consist of the plaintiff’s own testimony,”27
Plaintiff provided mathematical calculations regarding his lost wages based upon
documentation generated by his employer. In Miller v. Mahfouz, another case cited by
Defendants, the Louisiana First Circuit Court of Appeal found that a plaintiff had not
supported her lost wages claim: “as the only support for plaintiff’s claim for lost wages
[was] her own self-serving testimony, without corroboration by any other source, this
alone cannot serve as the basis for such an award.”28 Plaintiff in the present case
corroborated his testimony and calculations for lost wages with documentation from his

22

Rec Docs. 29-3 and 32-3.
Rec. Doc. 32-3.
24
Id.
25
Rec. Doc. 29-1.
26
Id.
27
Id. (internal quotations omitted). See Bennet v. Stribling, 96-1012 (La. App. 1st Cir. 3/27/1997); 694
So.2d 991, 993.
28
89-0718 (La. App. 1st. Cir. 7/26/1990); 563 So.2d 1223, 1226.
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23

employer.29 The plaintiff in Miller provided “employment records revealing the amount of
leave taken by plaintiff for a three-year period.”30 Most importantly, the First Circuit in
Miller was not reviewing the trial court’s granting of a summary judgment – the First Circuit
was reviewing whether the finder of fact at trial had sufficient evidence to award lost
wages.31 Because the plaintiff in Miller provided different documentation for her lost
wages claim, and the court in Miller reviewed the findings of fact at trial, not on a motion
for summary judgment, the rationale for Miller does not apply to the present case.
Accordingly, the Court finds that Plaintiff has presented sufficient evidence to
defeat Defendant’s Motion for Partial Summary Judgment.
C. Loss of Future Earning Capacity Standard
The Louisiana First Circuit Court of Appeal held in Levy v. Bayou Industrial
Maintenance Services, Inc., “an award of loss of future income is not based upon the
difference between the plaintiff’s earnings before and after a disabling injury. Rather, the
award is predicated upon the difference between a plaintiff’s earning capacity before and
after a disabling injury.”32 A plaintiff claiming loss of future earning capacity must “prove
[loss of future earning capacity] by a preponderance of the evidence.”33 These awards
are “intrinsically insusceptible of mathematical exactitude;”34 however, loss of future
earning capacity “cannot be based purely on speculation, conjecture, and probabilities.”35
Here, Plaintiff’s sole support for this claim is his own testimony that he would have

29

Rec. Doc. 32-3.
Miller, 563 So.2d 1223, 1226.
31
Id.
32
03-0037 (La. App. 1 Cir. 9/26/03); 855 So.2d 968, 973.
33
Id.
34
Id.
35
Id.
Document Number: 36452
30

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“worked another 3-5 years before retiring.”36

While there is no requirement under

Louisiana law that a plaintiff supply an economic expert for their loss of future earning
capacity,37 Plaintiff’s speculation alone as to how much longer he would have worked,
multiplied by his average yearly income, is insufficent to survive a motion for summary
judgment challenge.
Additionally, Plaintiff has a causation issue relating to his loss of future earning
capacity.

Plaintiff’s physicians did not place any physical restrictions on Plaintiff’s

mobility: “[The Physicians] just advised against [any truck driving or heavy lifting], but no
written restrictions.”38 Plaintiff counters that his medical record shows that he did not
have any back issues prior to the accident; however, following the accident, he “suffered
a herniated disc that caused him severe pain and limited his work activities.”39 Without
any written limitations from a physician, Plaintiff’s testimony as to what his limitations are,
and that they form the basis for his taking an early retirement, is insufficient as a matter
of law to defeat Defendants’ summary judgment challenge.
III.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Partial Summary

36

Rec. Doc. 32.
See LeBlanc v. Steptore, 98-00808 (La. App. 3 Cir. 12/09/98); 723 So.2d 1056, 1065.
38
Id.
39
Rec. Doc. 32.
Document Number: 36452
37

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Judgment40 is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on January 4, 2017.

S

_______________________________
SHELLY D. DICK, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

40

Rec. Doc. 29.
Document Number: 36452
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