Granite State Insurance Co vs. Tyler

Filing 31

ORDER denying 10 Motion for Declaratory Judgment; denying 10 Motion for Summary Judgment; denying 12 Motion for Partial Summary Judgment ; denying as moot 25 Motion to Strike. FURTHER ORDERED that this case be and is hereby referred to the magistrate for a scheduling conference. Signed by Judge S Maurice Hicks on 8/26/09. (crt,McDonnell, D)

U N IT E D STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

G R A N IT E STATE INS. CO.

C IV I L ACTION NO. 08-1958 c/w 09-0065 J U D G E S. MAURICE HICKS, JR. M A G IS T R A T E JUDGE HORNSBY

V ER SU S C L A R E N C E TYLER

ORDER Before this Court is a Motion for Declaratory and Summary Judgment [Record Document 10], filed on behalf of Plaintiff, Granite State Insurance Company ("Granite"), and a Cross Motion for Partial Summary Judgment in Opposition [Record Document 12], filed on behalf of Defendant, Clarence Tyler. Summary judgment is proper pursuant to R u le 56 of the Federal Rules of Civil Procedure "if the pleadings, depositions, a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, s h o w that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 3 2 2 , 106 S. Ct. 2548, 2552 (1986). On or about December 18, 2006, Clarence Tyler was driving a van owned by th e Arc of Desoto when he ran off the road and had an accident. Tyler filed a claim fo r personal injury damages against Granite, which issued the uninsured-motorist in s u ra n c e policy for Arc of Desoto, claiming that a "phantom" white truck ran over the

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lin e and caused the accident. Louisiana Revised Statute 22:1295 requires that "w h e re there is no actual physical contact between the covered motor vehicle and a n uninsured motor vehicle," the plaintiff must produce "an independent and d is in te re s te d witness" to show "that the injury was the result of the actions of the d rive r of another vehicle whose identity is unknown...." La.R.S. 22:1295(1)(d)(i). G ra n ite 's motion [Rec. Doc. 10] seeks summary judgment on the basis that there is n o coverage due to the lack of such a witness. Tyler filed a cross-motion and p re s e n te d Lakecia Harris, a passenger in the van, as an independent and d is in te re s te d witness. [Doc. 12]. However, the parties disagree as to the

c o m p e te n c y of Harris's testimony and her credibility as a witness. [Rec. Doc. 20]. C o n s e q u e n tly, the Court finds there remain "genuine issues of material fact" p re c lu d in g the issuance of summary judgment. A c c o rd in g ly, IT IS ORDERED that Granite's Motion for Declaratory and S u m m a ry Judgment [Rec. Doc. 10] and Tyler's Cross Motion for Partial Summary J u d g m e n t [Rec. Doc. 12] be and are hereby DENIED. IT IS FURTHER ORDERED that the Motion to Strike Affidavit [Rec. Doc. 15], file d on behalf of Granite, and the Motion to Strike Supplemental Affidavit of Lakecia H a rris and Affidavits of W illie Mae Jones, Bridgette Howard and Latashia Elephant [R e c . Doc. 25], filed on behalf of Tyler, be and are hereby DENIED as moot. IT IS FURTHER ORDERED that this case be and is hereby referred to the m a g is tra te for a scheduling conference. 2 of 3

T H U S DONE IN SIGNED in Shreveport, Louisiana this 26th day of August, 2009.

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