Alexander v. Employers Mutual Casualty Co et al
MEMORANDUM RULING re 40 MOTION for Summary Judgment filed by Employers Mutual Casualty Co. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained herein, the motion is denied. Signed by Magistrate Judge Patrick J Hanna on 3/24/2017. (crt,Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 6:15-CV-00527
MAGISTRATE JUDGE HANNA
EMPLOYERS MUTUAL CASUALTY
BY CONSENT OF THE PARTIES
COMPANY, FRANKLIN HOMES, INC.,
AND JAMES ALLEN THORNTON, JR.
Currently pending is defendant Employers Mutual Casualty Company’s motion
for summary judgment. (Rec. Doc. 40). The motion is opposed, and oral argument
was held on March 23, 2017. Considering the evidence, the law, and the arguments
of the parties, and for the reasons fully explained below, the motion is denied.
The plaintiff alleged in her petition that she was injured in a motor vehicle
accident that occurred on July 17, 2014 at the intersection of Willow Street and the
Evangeline Throughway in Lafayette, Louisiana. She further alleged that, as she was
traveling east on Willow, defendant James Allen Thornton, Jr., made an improper left
turn from the westbound lane of Willow, causing the accident. The plaintiff alleged
that Thornton was in the course and scope of his employment with defendant Franklin
Homes, Inc., at the time of the accident and that Franklin is insured by defendant
Employers Mutual Casualty Company. After the accident, Thornton died, and
Franklin sought bankruptcy protection. Therefore, Employers Mutual is the only
remaining defendant.1 In the pending motion, Employers Mutual seeks to be
absolved of liability for causing the accident.
THE SUMMARY JUDGMENT STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.2 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.3
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
See Rec. Doc. 37, a joint stipulation of evidentiary facts establishing that the plaintiff
will only look to Employers Mutual for satisfaction of the judgment should one be rendered in her
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252); Hamilton v. Segue Software, Inc., 232 F.3d at 477.
demonstrate the absence of genuine issues of material fact.4 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact.5 All facts and inferences are construed
in the light most favorable to the nonmoving party.6
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
claim.7 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.8
In this case, subject-matter jurisdiction is based on diversity of citizenship,
under 28 U.S.C. § 1332. Accordingly, this Court must apply Louisiana’s substantive
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
Washburn v. Harvey, 504 F.3d at 508.
Brumfield v. Hollins, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. at 325).
Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).
Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 269 (5th Cir. 2009). See, also,
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
DISPUTED FACTUAL ISSUES PRECLUDE SUMMARY
EMPLOYERS MUTUAL’S FAVOR
In support of its motion for summary judgment, Employers Mutual argued that
the evidence concerning the parties’ respective fault for causing the accident is in
equipoise, mandating a ruling that the plaintiff cannot prove her case and entitling
Employers Mutual to summary judgment in its favor. This argument rests on
Employers Mutual’s contention that both drivers claim to have had a green light at
the time of the accident.
In support of its theory, Employers Mutual presented its responses to written
discovery, in which it stated that its internal investigation “revealed that the sole
cause of the accident was Shantell Alexander running a red light.” (Rec. Doc. 40-5
at 2). Employers Mutual presented no evidence that the light controlling the
plaintiff’s travel lane was actually red at the time of the accident. Employers Mutual
seems to assume that the plaintiff’s light was red because the defendant driver said
in a recorded statement that his light was green. Such an assumption has no
evidentiary value at this stage of the proceedings.
Employers Mutual also submitted the affidavit of Todd Riplie, a claims
adjuster, who stated that he investigated the accident and was unable to identify any
witnesses or obtain any video footage depicting the accident. (Rec. Doc. 40-6).
Riplie also stated in the affidavit that he took a statement from Thornton in which
Thornton stated that the left turn arrow was green when he made the left turn. (Rec.
Doc. 40-6). Riplie also stated that a copy of “the crash report” was attached to the
affidavit. (Rec. Doc. 40-6). It is not clear what “crash report” Riplie is referring to,
and there is nothing attached to Riplie’s affidavit. Employers Mutual argued that the
investigating police officer did not issue a citation because both drivers told him they
had a green light, and he could locate no witnesses to the accident. No evidence was
presented in support of that argument; and there was no testimony of any kind from
an investigating officer submitted along with the motion.
Employers Mutual also submitted the affidavit of Kelly Reily (Rec. Doc. 40-7),
who stated that she transcribed a recorded statement obtained from Thornton. There
is no evidence that the statement was sworn or that Thornton was cautioned with
regard to perjury before making the statement, and therefore, its status as competent
summary judgment evidence is questionable. However, evan assuming it can and
should be considered, it does not carry the day for the defendant. The transcript of
Thornton’s statement is attached to Reily’s affidavit, and Employers Mutual used the
statement in support of its argument that Thornton claimed to have the green light at
the time of the accident. This is what Thornton said in the statement:
. . . Did you have a green light, green arrow? Green light and arrow?
Maybe green light and arrow when I turned left. (Rec. Doc. 40-7 at 7)
The word “maybe” indicates that Thornton was not certain that he actually had a
green arrow. However, the interviewer did not note that uncertainty or ask any
questions concerning Thornton’s uncertainty. Thornton was then asked about the
signal for the plaintiff’s lane of travel:
. . . do you know what kind of light she had?
I’m not for sure. (Rec. Doc. 40-7 at 7).
Of course, it is unlikely that Thornton was able to see the signal on the plaintiff’s side
of the intersection; consequently, he likely did not know what color the traffic signal
facing her was. Therefore, his statement does not establish that she ran a red light.
Later in the statement, Thornton was asked to describe what happened, starting
with the traffic light. He said this:
. . . I got up to the traffic light and I got over into the left hand
turn lane, I was stopped and then the arrow turned green, so I just
went ahead and made my turn, the next thing I know I got hit.
(Rec. Doc. 40-7 at 7).
While not directly contradicting Thornton’s earlier testimony that “maybe” he had an
arrow, this sentence lacks the uncertainty of the earlier part of the statement. The
adjuster asking the questions did not note the potential contradiction, did not ask
Thornton to explain the potential contradiction, and did not ask Thornton why he
seemed certain later but did not seem certain when he was first asked the question.
Therefore, the evidence presented by Employers Mutual does not conclusively
establish that Thornton had a green light at the time of the accident, nor does it
establish that the plaintiff had a red light at the time of the accident. Setting aside any
issues as to admissibility of Thornton’s unsworn statement or the propriety of using
it in support of the pending motion for summary judgment, the statement simply does
not establish whether either the plaintiff or Thornton had a green light at the time of
the accident. However, for purposes of this motion, this Court will accept that, if he
were able to testify at trial, Thornton would state that he had a green light.
Employers Mutual’s legal argument is that it will not be possible to resolve the
issue of who had the green light, leaving the evidence in equipoise,10 leaving the
plaintiff unable to prove her case, and entitling Employers Mutual to summary
judgment in its favor. Employers Mutual cites two Louisiana cases concerning the
equipoise theory: Guidry v. Bernard11 and Brown v. Carbo.12 The primary distinction
In the context of criminal law, the “equipoise rule” states that a court must reverse
a conviction if the evidence construed in favor of the verdict gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of innocence of the crime charged. The Fifth
Circuit has abandoned the “equipoise rule” with regard to criminal convictions. United States v.
Vargas-Ocampo, 747 F.3d 299, 302 (5th Cir. 2014).
Guidry v. Bernard, 14-234 (La. Ap. 3 Cir. 06/18/14), 142 So.3d 1063, 1067, rev’d
on rehearing, 155 So.3d 162 (2014).
Brown v. Carbo, 2011-2299 (La. App. 1 Cir. 11/02/12), 2012 WL 5381497
between those cases and this one is that trials were held in both Guidry and Brown,
and neither applied the equipoise theory in the context of a motion for summary
The Guidry case relies heavily upon Miller v. Leonard, 588 So.2d 79 (La.
1991). In Miller, the dispute arose from a motor vehicle accident. Miller filed suit
against Leonard, then Leonard filed suit against Miller. Each plaintiff contended that
he or she was free from fault and that the defendant was solely at fault in causing the
accident. The cases were consolidated and tried to the bench. The trial court found
that the evidence was in equipoise and dismissed both demands. Miller appealed, the
appellate court affirmed, and the Supreme Court granted writs “primarily to determine
if the trial court should be required to decide the case on the merits in favor of either
Miller or Leonard, rather than dismissing their respective claims for failure to satisfy
the burden of proof.” The Supreme Court framed the issue before it as follows:
Where the evidence is truly in equipoise and neither of the opposing
plaintiffs satisfies the burden of proof by a preponderance of the
evidence, must the trial judge nevertheless decide for one of the parties?
We think not.
The court went on to explain that all this means is that a plaintiff has the burden of
proof, and if the plaintiff does not satisfy that burden, the court cannot rule in the
plaintiff’s favor. The court said: “The record establishes the parties' testimony
hopelessly conflicts on the issue of liability.” Further: “The trial court concluded the
physical evidence and testimony concerning the point of collision conflicted and was
in perfect balance. Since neither Miller nor Leonard satisfied the burden of proof by
a preponderance of the evidence, the trial court dismissed both demands with
prejudice.” The court found that the issue of liability “was premised upon a purely
factual determination of the lane in which the accident occurred. If the vehicles
collided in the eastbound lane, Miller must prevail.” The court then determined that
the evidence showed there was debris from the accident only in the eastbound lane,
which corroborated Miller’s version of the accident. It said: “We are satisfied the
existence of the debris entirely in the eastbound lane, corroborated by Miller's
testimony and Leonard's statement to Sgt. Phillips, establishes more probably than not
the accident occurred in the eastbound lane. Consequently, the trial court erred in
failing to find Leonard crossed the center line.” Thus, the court determined that
Miller was entitled to judgment in his favor. Unlike the trial court, the Supreme
Court found that the evidence actually was not in equipoise.
In the Carbo case, the trial court, faced with the plaintiff’s claim and the
defendant’s reconventional demand, was unable to determine who was at fault after
trial, and the appellate court affirmed the trial court’s ruling that neither party had
satisfied its burden of proof. In the Guidry case, the appellate court found that the
trial court erred in finding that the evidence was in equipoise, and the Louisiana
Supreme Court denied writs. The appellate court’s ruling rested on credibility
Trial has not yet been held in this case. Ultimately, liability in this case may
not solely rest on the color of the traffic lights. But even if that was the only evidence
presented, Employers Mutual would not be entitled to summary judgment in its favor.
In resolving a motion for summary judgment, and faced only with evidence that the
plaintiff and defendant both claimed to have a green light, this Court would be
compelled to deny the defendant’s motion. Viewing the evidence in a light most
favorable to the nonmoving party, i.e., the plaintiff, and drawing every inference in
its favor, this Court would be constrained to find that the competing evidence
establishes a genuine issue of material fact that precludes summary judgment in
Employers Mutual’s favor. Should this matter go to trial, the competing evidence
might result in the deciding factor being a credibility issue.13 Because credibility
determinations are the province of the trier of fact,14 it is not appropriate for the court
See, S.E.C. v. Gann, 565 F.3d 932, 939 (5th Cir. 2009) (“We perceive the evidence
in this case to be in equipoise, making critical the question of credibility.”)
S.E.C. v. Gann, 565 F.3d at 939; In re Mid–South Towing Co., 418 F.3d 526, 535 (5th
to make credibility determinations at the summary judgment stage.15 As in the Miller
case, the physical evidence might persuade the jury to decide one way or the other.
Furthermore, should the competing evidence concerning the traffic signals be
presented to a jury, the jury would be entitled to believe either the plaintiff’s version
of events or the defendant’s. “Where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly erroneous.”16
In opposition to Employers Mutual’s motion, the plaintiff articulated four
arguments. First, she argued that even if both sides claim to have a green light,
demeanor and credibility might sway the factfinder to believe one of them but not the
other. As noted above, this Court agrees. Further, the plaintiff submitted her
affidavit in which she stated that she observed a green light controlling her lane of
travel and continued through the intersection before the accident occurred. (Rec.
Doc. 43-1 at 2). This Court finds that, rather than placing the evidence in equipoise,
this statement – when coupled with the contention that Thornton had a green light –
creates a genuinely disputed issue of material fact that precludes summary judgment
in Employers Mutual’s favor.
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5 Cir. 2008); International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
S.E.C. v. Gann, 565 F.3d at 939 (quoting Anderson v. Bessemer City, N.C., 470 U.S.
564, 574 (1985)).
The plaintiff’s second argument is that the defendant’s unsworn statement and
the defendant’s own investigation of the accident are not proper summary judgment
evidence. Rather than deciding that evidentiary issue, this Court will accept as true
for purposes of this motion the contention that, if he were able to testify, Thornton
would take the position that he had a green light. Coupled with the plaintiff’s
affidavit testimony, this creates a genuinely disputed issue of material fact – not
equipoise – which mandates denial of Employers Mutual’s motion for summary
Having already found that Employers Mutual cannot prevail on its motion, this
Court need not address the plaintiff’s final two arguments.
arguments will be mentioned because they further demonstrate that this is not a case
in which the evidence is likely to be true equipoise after the presentation of evidence
at trial. The plaintiff’s third argument is that a left-turning driver like Thornton has
a statutory duty to yield the right-of-way, pursuant to La. R.S. 32:122 and La. R.S.
32:104(A). Therefore, even if both drivers had a green light, the defendant driver had
a statutory duty to not turn left until he was sure he could do so safely. Depending
on the evidence to be presented at trial, the existence of this additional duty and the
issue of whether Thornton breached it might sway the factfinder one way or the other.
The plaintiff’s final argument is that, in this case, the burden shifted to the leftturning driver to show that he was not at fault in causing the accident. As stated in
the Miller case (the same one relied on by the defendant with regard to the equipoise
theory): “In a vehicular collision case, the plaintiff may take advantage of a
presumption of the defendant's negligence when the plaintiff proves the defendant
executed a left-hand turn and crossed the center line at the time of impact.”17
Employers Mutual’s motion did not establish which lane the collision occurred in or
whether Thornton’s vehicle crossed the center line. However, it is not logical that the
vehicles would have collided if Thornton had not crossed the center line. Depending
on the evidence to be presented at trial, there might be an issue as to whether the
presumption applies and whether it was rebutted, resulting in the jury deciding that
one or the other of the drivers caused the accident.
Another legal precept not cited by the plaintiff in her briefing might turn out
to be relevant. Even when a motorist has a green light, he might still be liable for an
accident. “A favored motorist travelling through an intersection controlled by a
traffic signal is not obligated to look to his left or right before entering the
intersection, but must maintain general observation of a controlled intersection. The
favored motorist will be held accountable for an accident only if he could have
Miller v. Leonard, 588 So.2d at 81.
avoided the accident with the exercise of the slightest degree of care and fails to do
so.”18 This Court makes no determination at this stage of the litigation concerning
whether the plaintiff or the defendant driver could have avoided the accident, but
points out that this is an issue that might come into play as the litigation progresses
and illustrates that the differing positions concerning which driver had the green light
does not mean that the evidence is in equipoise.
For the foregoing reasons, this Court finds that genuinely disputed issues of
material fact preclude summary judgment in the defendant’s favor. Accordingly,
Employers Mutual’s motion for summary judgment (Rec. Doc. 40) is DENIED.
Signed at Lafayette, Louisiana on this 24th day of March 2017.
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
Thompson v. Cagle, 15-416 (La. App. 3 Cir. 11/25/15), 2015 WL 7573234, at *6,
writs denied, 2015-C02358 (La. 02/19/16), 187 So.3d 461 (citing Bernard v. City of Lafayette,
98–1815 (La. App. 3 Cir. 05/05/99), 735 So.2d 804)).
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