Otwell et al v. Hutchison et al

Filing 57

MEMORANDUM RULING re 52 MOTION for Summary Judgment filed by Ace Tire & Axel Inc. Signed by Judge Terry A Doughty on 2/19/2020. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JAMES HUGH OTWELL, ET AL.

CASE NO. 3:18-CV-00523

VERSUS

JUDGE TERRY A. DOUGHTY

SIDNEY HUTCHISON, ET AL.

MAG. JUDGE KAREN L. HAYES
RULING

Pending before the Court is a Motion for Summary Judgment filed by Defendant Ace
Tire & Axle, Inc. (“Ace”) [Doc. No. 52]. Plaintiff James Hugh Otwell (“Otwell”) has filed a
response in which he states he does not oppose the granting of Ace’s Motion for Summary
Judgment [Doc. No. 54].
For the following reasons, Ace’s motion is GRANTED.
I.

FACTS
Plaintiffs, James and Carrie Otwell, filed suit against Sidney Hutchison (“Hutchison”);

his insurer, National Fire Insurance Company (“National Fire”); Cappaert Manufactured
Housing, Inc. (“Cappaert”); and Ace, seeking to recover damages for personal injuries.
On May 10, 2016, Hutchison was towing a Cappaert mobile home from Vicksburg,
Mississippi, to Monroe, Louisiana. Hutchison was proceeding south on U.S. Highway 165 and
Otwell was traveling directly behind Hutchison. According to the First Amended Complaint, as
Hutchison was driving south on U.S. Highway 165, a hub on an axle allegedly broke, causing a
tire to become free from the Cappaert mobile home Hutchison was towing and strike Otwell’s
vehicle. Specifically, Plaintiffs have asserted “the hub for one of the tires on the mobile home
failed, causing the wheel (with metal rim) to separate from the hub and axle” and come down the
highway. [Doc. No. 23].

Ace refurbishes axles, hubs, rims, and tires and then provides the refurbished axles, hubs,
rims, and tires to Cappaert. Plaintiffs have alleged that Ace did not properly refurbish the axles,
hubs, rims, and tires sold to Cappaert. In particular, Plaintiffs alleged that the incident was
caused by the negligence of Ace in the following manner: a) failure to properly inspect the
wheels and hubs on the refurbished axle; b) failure to properly refurbish the wheels and hubs on
its used axles; and c) providing defective wheels and hubs on its refurbished axles. [Doc. No. 23,
¶ 32].
Ace contends that Plaintiffs’ allegations raise design and/or manufacturing defect claims
against it under the Louisiana Products Liability Act, La. R.S. 9:2800.51 et. seq. (“LPLA”). Ace
argues that Plaintiffs fail to set forth any evidence and/or expert testimony to establish liability
under the LPLA. Accordingly, Ace contends that Plaintiffs’ claims should be dismissed.
II.

LAW AND ANALYSIS
A.

Summary Judgment

Summary judgment “shall [be] grant[ed] . . . 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 of law.” FED.
R. CIV. P. 56(a). A fact is “material” if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a
reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

2

Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
In deciding unopposed summary judgment motions, the Fifth Circuit has noted that a
motion for summary judgment cannot be granted simply because there was no opposition. Hetzel
v. Bethlehem Steel Corp., 50 F.3d 360, 362 fn.3 (5th Cir. 1995) (reversal of the granting of an
unopposed summary judgment was not warranted because trial court addressed the merits of the
motion as an alternative holding) (citing Hibernia Nat'l Bank v. Administración Cent. Sociedad
Anónima, 776 F.2d 1277, 1279 (5th Cir. 1985) (where the Fifth Circuit disapproved the granting
of an unopposed summary judgment solely on the basis it violated a local rule)). The movant has
the burden to establish the absence of a genuine issue of material fact and, unless it has done so,
the court may not grant the motion, irrespective of whether any response was filed. Powell v.
Delaney, No. CIV.A.SA00CA0426NN, 2001 WL 1910556, at *5–6 (W.D. Tex. June 14, 2001).
Nevertheless, if no response to the motion for summary judgment has been filed, the
court may find as undisputed the statement of facts in the motion for summary judgment. Id. at
*1 and n. 2, citing id.; see also Thompson v. Eason, 258 F.Supp.2d 508, 515 (N.D.Tex.2003)
(where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary
judgment evidence and movant's evidence may be accepted as undisputed). See also UNUM Life
Ins. Co. of America v. Long, 227 F.Supp.2d 609 (N.D.Tex.2002) (“Although the court may not
enter a ‘default’ summary judgment, it may accept evidence submitted by [movant] as
undisputed.”); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D.Tex.1996) (“A summary
judgment nonmovant who does not respond to the motion is relegated to [his] unsworn
pleadings, which do not constitute summary judgment evidence.”).

3

The court has no obligation to “sift through the record in search of evidence” to support
the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr, 19 F.3d 1527,
1533 (5th Cir.1994).
B.

Analysis

Ace’s status as a manufacturer under the LPLA is undisputed. Plaintiffs have specifically
plead that “Ace is in the business of refurbishing used wheels, hubs, and axles.” [Doc. No. 23, ¶
5]. In response, Ace admitted that it is in the business of refurbishing and selling products to
mobile home manufacturers. [Doc. No. 34].
The LPLA establishes the exclusive theories against manufacturers for damages caused
by their products. LA. R.S. 9:2800.52. Pursuant to the LPLA, the manufacturer of a product shall
be liable to a claimant for damage proximately caused by a characteristic of the product that
renders the product unreasonably dangerous when such damage arose from a reasonably
anticipated use of the product by the claimant or another person or entity. LA. R.S. 9:2800.54;
Pickett v. RTS Helicopters, 128 F.3d 925, 928 (5th Cir. 1997). The LPLA further provides the
four exclusive theories under which a manufacturer may be held liable:
B.

A product is unreasonably dangerous if and only if:
(1) the product is unreasonably dangerous in construction or
composition as provided in R.S. 9:2800.55;
(2) the product is unreasonably dangerous in design as
provided in R.S. 9:2800.56;
(3) the product is unreasonably dangerous because an
adequate warning about the product has not been provided
as provided in R.S. 9:2800.57;
(4) the product is unreasonably dangerous because it does
not conform to an express warranty of the manufacturer
about the product as provided in R.S. 9:2800.58.

4

LA. R.S.

9:2800.54(B); Pickett, supra. at 928. Under Louisiana law, the above are the exclusive

theories of liability against manufacturers for damages allegedly caused by their products. Brown
v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995); Lewis v. Intermedics Intraocular,
Inc., 56 F.3d 703, 706 (5th Cir. 1995). Hence, any claims premised on negligence or any theory of
liability beyond those set forth in the LPLA are not cognizable and should be dismissed as a matter
of law.
Here, Ace contends, and the Court agrees, that Plaintiffs have asserted design and/or
manufacturing defect claims against it, but that Plaintiffs have not asserted a defect in warning
claim or a breach of expressed warranty claim.
1.

Design Defect

Pursuant to Louisiana Revised Statute 9:2800.56, a plaintiff seeking to establish a
manufacturer’s product suffered from an unreasonably dangerous design must show the following
four elements are all met:
(1) the defect existed at the time it left the manufacturer;
(2) there existed an alternative design for the product that was
capable of preventing the claimant’s damage;
(3) the likelihood that the product’s design would cause the
claimant’s damage; and
(4) that the gravity of that damage outweighed the burden on the
manufacturer of adopting such alternative design and the adverse
effect, if any, of such alternative design on the utility of the product.
McKey v. General Motors Corp., 96-0755 (La. App. 1st Cir. 2/14/97), 691 So.2d 164, 170;
Kampen v. American Isuzu Motors, Inc., 157 F.3d 306, 309 (5th Cir. 1998); McCarthy v. Banek
Medical. Inc., 65 F.Supp.2d 410, 411 (E.D. La. 1999).

5

To avoid summary judgment on a claim of defective design, the plaintiffs must submit
specific and competent evidence that at the time the product left the manufacturer’s control, the
above four elements existed. McCarthy, 65 F.Supp.2d at 411. Louisiana law does not allow a fact
finder to presume an unreasonably dangerous design solely from the fact that injury occurred.
Ashley v. GMC, 666 So.2d 1320, 1322 (La. App. 2nd Cir. 1996). Without expert or technical
evidence to support the contention that the design was defective or to establish an alternative
design, plaintiffs fail to create an issue of fact to be tried to a jury. McCarthy, 65 F.Supp.2d at 412;
Marks v. R.J. Reynolds Tobacco Co., 965 F. Supp. 857, 859-60 (W.D., La. 1997).
In the instant matter, Plaintiffs have retained Rahn M. Huffstutler (“Huffstutler”), an
engineer, to offer certain opinions in this matter related to the liability issues. While Huffstutler
offered twenty-three opinions regarding or related to the incident, he did not offer an opinion
regarding a defect in design or an alternative design of any of the Ace products. [Doc. No. 52-10].
Without expert or technical evidence to support the contention that the design was defective or to
establish an alternative design, Plaintiffs fail to create an issue of fact to be tried to a jury.
McCarthy, 65 F.Supp.2d at 412; Marks, 965 F. Supp. at 859-60. Accordingly, any alleged design
defect claim must be dismissed.
2.

Unreasonably Dangerous in Construction or Composition

To the extent Plaintiffs have also alleged the axle, hub, rim, or tire were unreasonably
dangerous in construction or composition, Ace asserts Plaintiffs cannot offer adequate evidence to
support this claim and, as such, the claim should be dismissed.
Louisiana Revised Statute 9:2800.55 provides:
A product is unreasonably dangerous in construction or
composition if, at the time the product left its manufacturer’s
control, the product deviated in a material way from the
manufacturer’s specifications or performance standards for
6

the product or from otherwise identical
manufactured by the same manufacturer.

products

In order to establish that a product was unreasonably dangerous in construction or
composition, a claimant must demonstrate what a manufacturer’s specifications or performance
standards are for a particular product and how the product in question materially deviated from
those standards so as to render it unreasonably dangerous. Milton v. Rapiscan Security Products,
04-591, 2005 WL 1400433 (E.D. La. 2005); Welch v. Technotrim, Inc., 34-355 (La. App. 2 Cir.
1/24/01), 778 So.2d 728.
Here, Plaintiffs have failed to develop any evidence that the subject products (axle, hub,
rim and tire) in any way deviated from the manufacturer’s specifications or performance
standards and, therefore, they cannot meet their burden of proving a manufacturing defect at
trial. Moreover, under Louisiana law, a trier of fact may not infer the existence of a vice or defect
in a product merely based on the fact an accident occurred. Jaeger v. Automotive Cas. Ins. Co.,
1995-2448 (La. App. 4 Cir. 10/9/96), 682 So.2d 292.
Additionally, Plaintiffs’ discovery responses do not identify a defect in construction or
composition. [Doc. Nos. 52-8 and 52-9]. Likewise, Huffstutler did not identify a “defect in
construction or composition” or “manufacturing defect” in his report. [Doc. No. 52-10]. As a
result, Plaintiffs have failed to offer any evidence that the Ace products deviated from its
standards, or, the specific manner in which a product may have deviated. Thus, Plaintiffs cannot
meet their burden of proving that any Ace product was unreasonably dangerous in construction
or composition and this claim should be dismissed.1

1
Having found that Ace is entitled to summary judgment on these grounds, the Court need not consider
Ace’s additional argument that, since neither Plaintiffs nor any of the Defendants have the axle or hub, Plaintiffs
have no evidence to support a product liability claim.

7

III.

CONCLUSION
For the foregoing reasons, Ace’s Motion for Summary Judgment [Doc. No. 52] is

GRANTED. Plaintiffs’ claims against Ace are DISMISSED WITH PREJUDICE.
Monroe, Louisiana, this 19th day of February, 2020.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

8