Van Winkle v. Rogers et al

Filing 147

MEMORANDUM RULING re 84 RE-URGED MOTION for Summary Judgment filed by Ace American Insurance Co, New Prime Inc, James Arthur Rogers. Signed by Judge Robert R Summerhays on 9/15/2022. (crt,Taylor, L)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BILLY VAN WINKLE, JR.

CASE NO. 6:19-CV-01264

VERSUS

JUDGE ROBERT R. SUMMERHAYS

JAMES ARTHUR ROGERS, ET AL.

MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING
Before the Court is a Re-Urged Motion for Summary Judgment filed by Defendants, James
Arthur Rogers, Ace American Insurance Company, and New Prime, Inc., d/b/a Prime, Inc.
(“Prime”), whereby Defendants seek dismissal with prejudice of all claims brought by Plaintiff,
Billy C. Van Winkle, Jr. 1 Plaintiff opposes the motion, to which Defendants have filed a reply. 2
Plaintiff has additionally filed a Notice of Supplemental Authority. 3 For the reasons that follow,
Defendants’ motion is GRANTED.
I.
BACKGROUND
On February 6, 2018 at approximately 9:15 p.m., Plaintiff was driving west on Interstate
10 behind a tractor-trailer owned by Prime and operated by Rogers. Plaintiff alleges that the right,
rear tire of Rogers’ trailer “came apart and was thrown into the roadway, which Plaintiff, unable
to avoid the debris, then struck, causing the Plaintiff’s injuries.” 4 Plaintiff filed suit in the 15th
Judicial District Court for the Parish of Acadia in January 2019 against Rogers, Prime (Rogers’
employer), and Ace American Insurance Company (Prime’s insurer), asserting a claim against
ECF No. 84.
ECF Nos. 98, 117.
3
ECF No. 120.
4
ECF No. 61 at 2, ¶ 3; see also ECF No. 80-1 at 5.
1
2

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Rogers for negligent operation of his tractor-trailer, a claim against Prime for vicarious liability,
and a claim against Ace American Insurance Company as the liability insurer of Prime.5
Defendants removed the case to this Court in September 2019, asserting diversity jurisdiction.
On September 29, 2021, Plaintiff was granted leave to file an “Amended, Supplemental
and Restated Complaint,” wherein he added a claim against Prime for custodial liability of a
defective thing—i.e., the failed tire. 6 Defendants now seek dismissal of Plaintiff’s claims for
negligent operation and custodial liability of a defective thing, arguing that Plaintiff cannot meet
his burden of proof on either claim because there is an absence of evidence with regard to two
elements of Plaintiff’s claims: (1) that the tire on Prime’s tractor-trailer that “blew out” was
defective, and (2) that Rogers knew or should have known of the alleged defect. 7
II.

SUMMARY JUDGMENT STANDARD
“Summary judgment, although a useful device, must be employed cautiously because it is
a final adjudication on the merits.” 8 A party is entitled to summary judgment if it shows that there
is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. 9
“A genuine issue of material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” 10 As summarized by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial responsibility of
demonstrating the absence of an issue of material fact with respect to those issues
on which the movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may merely point to an
absence of evidence, thus shifting to the non-movant the burden of demonstrating
ECF No. 1-1 at 35-36.
ECF No. 60; ECF No. 61 at 6-7.
7
ECF No. 84; see also ECF No. 84-2 at 4.
8
Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989); see also Hulsey v. State of Tex., 929 F.2d 168, 170
(5th Cir. 1991).
9
FED. R. CIV. P. 56(a).
10
Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (5th Cir. 2010).
5
6

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by competent summary judgment proof that there is an issue of material fact
warranting trial. 11
The opposing party may not create a genuine dispute simply by alleging that a dispute exists.
Rather, the opponent must cite “to particular parts of materials in the record,” or show that “the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” 12 When reviewing a motion for
summary judgment, “the court must disregard all evidence favorable to the moving party that the
jury is not required to believe, and should give credence to the evidence favoring the nonmoving
party as well as that evidence supporting the moving party that is uncontradicted and
unimpeached.” 13 Credibility determinations, assessments of the probative value of the evidence,
inferences drawn from the facts and the like are not to be considered on summary judgment, as
those are matters to be decided by the factfinder at trial. 14
III.
DISCUSSION
As a threshold matter, the parties’ briefs offer conflicting views as to what claims have
been asserted by Plaintiff. Clearly, Plaintiff has pleaded negligence pursuant to La. Civ. Code art.
2315 and 2317.1, and it is those claims for which Defendants seek summary judgment. 15 Plaintiff,
however, essentially ignores Defendants’ construction of his Complaint and instead argues that he

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).
FED. R. CIV. P. 56(c)(1); see also id. at (c)(3) (the court need only consider the cited materials, although
it is permitted to consider other materials in the record as well).
13
Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 373 (5th Cir. 2001).
14
See e.g. Man Roland, Inc. v. Kreitz Motor Exp., Inc., 438 F.3d 476, 478 (5th Cir. 2006); Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
15
ECF No. 84-2 at 4.
11
12

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is asserting a claim for a “manufacturing defect” under the Louisiana Products Liability Act
(“LPLA”). 16 The Court addresses each claim in turn.
There is no dispute that the Complaint includes those claims for which Defendants seek
summary judgment—negligent operation and custodial liability of a defective thing. Because
Plaintiff does not address the merits of Defendants’ properly supported motion, these claims are
forfeited and Defendants’ motion will be granted. 17 However, even if Plaintiff has not forfeited his
negligence claims, the motion must be granted on the merits. Plaintiff has failed to demonstrate by
competent summary judgment proof that Rogers breached any duty owed to Plaintiff, and therefore
summary judgment is appropriate on Plaintiff’s claim against Rogers for negligent operation of
his tractor-trailer. 18 As to the custodial liability claim, Plaintiff has failed to demonstrate by
competent summary judgment proof that the failed tire was defective, 19 or that Rogers or Prime
knew or should have known of any defect in the failed tire. 20
As previously noted, in his opposition memorandum, Plaintiff defends a products liability
claim. Specifically, Plaintiff asserts the tire that failed was defective, in that it was unreasonably

See e.g. ECF No. 98 at 9, 12. While Plaintiff does state that he is asserting claims “under both a general
negligence theory and under the LPLA,” and he does cite two of the elements he must prove under La. Civ.
Code 2317.1 (an unreasonably dangerous defect and knowledge of same), ECF No. 98 at 12, Plaintiff
devotes the remainder of his brief to his purported products liability claim. Presumably, this change of
course is because, as argued by Plaintiff, under the LPLA Prime’s knowledge of a defective product it
manufactures is presumed. Id. at 23. Plaintiff apparently relies upon the forgoing presumption because he
makes no argument regarding Prime’s knowledge of any defect beyond Prime’s presumptive knowledge.
17
See Fed. R. Civ. P. 56(a), (c); see also Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.
2005) (“If a party fails to assert a legal reason why summary judgment should not be granted, that ground
is waived and cannot be considered or raised on appeal.”) (quoting Keenan v. Tejeda, 290 F.3d 252, 262
(5th Cir. 2002)); see also Benedetti v. Wal-Mart Stores Texas, LLC, 788 Fed.Appx. 945, 948 n.2 (5th Cir.
2019); Fulford v. Lowe’s Home Centers, LLC, 811 Fed.Appx. 240, 242 n.3 (5th Cir. 2020).
18
See Butler v. Denka Performance Elastomer, LLC, 16 F.4th 427, 443 (5th Cir. 2021); see also ECF No.
84-1 at 1-4, ¶¶ 1-4, 7-12, 14-15, 19; ECF No. 98-12 at 1, ¶ 1.
19
Butler, supra; Arceneaux v. American Trucking & Transportation Ins. Co. Risk Retention Group, 2022
WL 488052, *4; see also ECF No. 98 at 14-22; ECF No. 144 at 13.
20
See ECF No. 84-1 at 1-3, ¶¶ 1-4, 7-9, 11; ECF No. 98-12 at 1, ¶ 1.
16

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dangerous in its “construction or composition.” 21 Thus, the question becomes whether Plaintiff
actually pleaded the products liability claim he defends in his opposition memorandum. The
Federal Rules of Civil Procedure provide that a “pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to relief.” 22 The
United States Supreme Court has interpreted the “short and plain statement” requirement to mean
that the complaint must “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” 23 While a complaint “need not specify legal theories,” a defendant is “entitled
to know the claims against him” in order to properly defend against the claims asserted. 24 The
pleading standard of Rule 8 does not demand “detailed factual allegations,” but it does require
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 25
In order to maintain a successful products liability action under the LPLA, a plaintiff must
establish that: (1) the defendant is the manufacturer of the product, (2) the plaintiff’s damage was
proximately caused by a characteristic of the product, (3) this characteristic made the product
“unreasonably dangerous,” and (4) the plaintiff’s damage arose from a reasonably anticipated use
of the product by the plaintiff or someone else. 26 Further, the plaintiff must establish the product
was “unreasonably dangerous” under one of four theories: (1) the product’s construction or
composition is defective, (2) the product’s design is defective, (3) the product’s warnings are
inadequate, or (4) by showing a breach of an express warranty. 27 In this matter, Plaintiff alleges

See e.g. ECF No. 98 at 14; see also ECF No. 140 at 4; La. R.S. 9:2800.54; Id. at 9:2800.55.
Fed. R. Civ. P. 8(a)(2).
23
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
24
Morgan v. Chapman, 969 F.3d 238, 248 (5th Cir. 2020).
25
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555).
26
La. R.S. 9:2800.54; see also Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 260-61 (5th Cir.
2002); Flagg v. Stryker Corp., 647 Fed.Appx. 314, 316 (5th Cir. 2016).
27
Id.
21
22

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the retread tire was unreasonably dangerous in construction or composition. 28 To maintain a
“construction or composition” defect claim under the LPLA, a plaintiff must additionally establish
that “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 the product or from otherwise
identical products manufactured by the same manufacturer.” 29
In the First Amended Complaint, Plaintiff states his claim against Prime as follows:
3.
. . . On information and belief, the tire failed when the tread of the tire
completely separated from the tire core or casing.
....
12.
The fault, breach of duties, and negligence of Defendant NEW PRIME
INC. d/b/a PRIME, INC. is as follows:
A.

Allowing Mr. Rogers to operate the Tractor-Trailer in interstate
commerce with a retreaded trailer tire that was unsafe, had an
unreasonably safe condition and/or was not fit for its intended
purpose;

B.

Failing to train Mr. Rogers in the proper inspection of tires on his
commercial motor vehicle in compliance with the Federal Motor
Carrier Safety Regulations (FMCSRs);

C.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents breached their duty to systematically inspect, repair and
maintain the Tractor-Trailer and retreaded trailer tire that failed
pursuant to the FMCSRs;

D.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents breached their duty to properly maintain the Tractor-Trailer
and the retreaded trailer tire that failed before it sustained a “blow
out”;

ECF No. 98 at 9, 12, 14; see also ECF No. 140 at 4; Stahl at 262-63 (A “construction or composition”
claim under the LPLA “provides a remedy for damages caused by a product that is defective due to a
mistake in the manufacturing process.”)
29
La. R.S. 9:2800.55; see also Stahl at 261; Flagg at 316.
28

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E.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents failed to investigate or knew or should have known of the
unreasonably dangerous condition of the Tractor-Trailer and the
retreaded tire that failed, which caused Plaintiff’s injuries and
damages, but failed to correct or warn of the unreasonably
dangerous condition in violation of 49 CFR 396.7;

F.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents breached their duty to maintain adequate records of, monitor,
identify, or track the history, including repair and retread history, of
the Tractor-Trailer and retreaded tire that failed;

G.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents failed to investigate or knew or should have known that the
Tractor-Trailer and the retreaded tire that failed had not been
properly maintained before it failed and did not correct or warn of
the lack of proper maintenance;

H.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents knew or should have known that the retreaded tire that failed
on the trailer had not been properly retreaded and did not correct or
warn about the dangerous condition;

I.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents knew or should have known that the unreasonably dangerous
condition of the Tractor-Trailer and the retreaded trailer tire that
failed would foreseeably cause Plaintiff’s injuries and damages, but
failed to correct or warn of the unreasonably dangerous condition;

J.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents failed to exercise reasonable care in the manufacture,
inspection, maintenance, and repair of the Tractor-Trailer and the
retreaded trailer tire that failed;

K.

NEW PRIME, INC. d/b/a PRIME, INC. failed to properly
supervise its employees and agents relating to its interstate trucking
operation, including but not limited to the proper manufacture,
inspection, maintenance and repair of the Tractor-Trailer and the
retreaded trailer tire that failed;

L.

NEW PRIME, INC. d/b/a PRIME, INC. was negligent in the
hiring of its employees and agents responsible for its interstate
trucking operation, including but not limited to the proper
manufacture, inspection, maintenance and repair of the TractorTrailer and the retreaded trailer tire that failed;

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M.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents failed to act as reasonable persons under the same or similar
circumstances; and

N.

NEW PRIME, INC. d/b/a PRIME, INC. and its employees and
agents failed to promulgate, implement and enforce rules,
regulations and safety systems to avoid retreaded tire failure such as
that which forms the basis of this instant lawsuit. 30

The Court finds the forgoing statements are insufficient to give Defendants “fair notice of what
the . . . claim is and the grounds upon which it rests.” 31 Plaintiff does not include any allegations
indicating that any defect in the failed tire existed at the time it left Prime’s control, or that the tire
deviated from Prime’s normal specifications and performance standards, or from other identical
tires manufactured by Prime. 32 And while not necessarily dispositive, nowhere in the Complaint
does Plaintiff use the term “products liability,” nor does he cite to the LPLA. Indeed, it is only by
implication and reading the Complaint in the broadest possible manner that one can infer that
Plaintiff is alleging Prime is a “manufacturer” under the LPLA. 33 The Court therefore finds that
the Complaint reflects only the claims addressed in Defendants’ motion, and Plaintiff did not plead
the claim he now asserts.
The Fifth Circuit takes two approaches when new claims are raised for the first time in
response to a motion for summary judgment. 34 The first approach, upon which Defendants rely,
states that a “claim which is not raised in the complaint, but rather, is raised only in response to a
motion for summary judgment is not properly before the court.” 35 The second approach directs

ECF No. 61 at 2, 6-7 (emphasis in original).
Twombly, 550 U.S. at 555.
32
See Flagg, 647 Fed.Appx. at 317-18.
33
See La. R.S. 9:2800.53(1).
34
Douglas v. Wells Fargo Bank, N.A., 992 F.3d 367, 373 (5th Cir. 2021).
35
Id. (quoting Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)); see also
ECF No. 117 at 5-6.
30
31

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district courts to treat a new claim raised in opposition to a motion for summary judgment as a
request for leave to amend the complaint. 36 As described by the Fifth Circuit, the latter approach
applies only “[u]nder certain compelling circumstances.” 37 Regardless, “[w]hen a party wishes to
add a new claim after the deadline for amending the pleadings has passed, the party generally must
move for leave to amend,” and leave “can only be granted for good cause.” 38
Here, Plaintiff has not moved for leave to amend the Complaint, nor has he demonstrated
good cause for same. Permitting Plaintiff to assert a new theory of liability at this stage of the
proceedings would unduly prejudice Defendants. The deadline for filing amended pleadings was
May 22, 2020. 39 After several extensions, discovery closed on January 7, 2022. 40 “A complaint
guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in
order to defend against the plaintiff’s allegations.” 41 Here, if the Court were to permit Plaintiff to
add a products liability claim at this late date, discovery would have to be reopened so that
Defendants could develop their evidence to defend against this theory, as a products liability claim
requires the development of different defenses than those which are necessary to defend against
negligence theories under La. Civ. Code arts. 2315 and 2317.1. For these reasons, the Court will
not sua sponte infer a motion for leave that has never been made.

Douglas, supra (citing Pierce v. Hearne Indep. Sch. Dist., 600 Fed.Appx. 194, 200 (5th Cir. 2015); see
also e.g. Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 (5th Cir. 2008).
37
Harry v. Dallas Housing Authority, 662 Fed.Appx. 263, 270 (5th Cir. 2016) (citing Riley v. Sch. Bd.
Union Par., 379 Fed.Appx. 335, 341 (5th Cir. 2010) (pro se plaintiff); Sherman v. Hallbauer, 455 F.2d
1236, 1242 (5th Cir. 1972) (serious errors by plaintiff’s counsel)); see also Jackson v. Gautreaux, 3 F.4th
182, 189 (5th Cir. 2021).
38
Douglas at 373 (citing Fed. R. Civ. P. 16(b)(4)).
39
ECF No. 6 at 1, no. 4; see also ECF Nos. 19, 39, 42 and 125. The Court notes it previously granted
Plaintiff leave to file an amended Complaint beyond the deadline set forth in the scheduling order. ECF No.
60.
40
ECF Nos. 68, 69.
41
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000).
36

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Alternatively, any “construction or composition” claim asserted under the LPLA is denied
on the merits. Plaintiff has offered no competent summary judgment proof of an unreasonably
dangerous characteristic of the failed tire, 42 nor any evidence related to the tire’s product
specifications or performance standards. 43 Finally, Plaintiff’s reliance on the doctrine of res ipsa
loquitor is misplaced. 44 On these facts, Plaintiff cannot show that tire blowouts do not ordinarily
occur in the absence of negligence, as “[t]here are numberless means or causes other than a defect
in the manufacture, which bring about a blow out of a tire.” 45 Further, Plaintiff has not eliminated
other potential causes of the injury, as there is competent evidence in the record that the blowout
was due to Rogers hitting a sizeable bump after he crossed a bridge. 46
IV.

CONCLUSION
For the foregoing reasons, Defendants Re-Urged Motion for Summary Judgment is
GRANTED, and all claims asserted by Plaintiff in this matter are DISMISSED WITH
PREJUDICE.
THUS DONE in Chambers on this 15th day of September, 2022.

ROBERT R. SUMMERHAYS
UNITED STATES DISTRICT JUDGE
“Defects are not presumed to be present by the mere happening of an accident.” Spott v. Otis Elevator
Co., 601 So.2d 1355, 1364 (La. 1992); see also Dudenhefer v. Davol, Inc., 52 F.3d 1068, *4 (5th Cir. 1995);
Krummel v. Bombardier Corp., 206 F.3d 548, 551 (5th Cir. 2000). Further, Plaintiff has offered no expert
testimony indicating the dangerous characteristic of the tire that caused his injuries. See e.g. Arant v. WalMart Stores, Inc., 628 Fed.Appx. 237, 239 & n.2 (5th Cir. 2015)
43
Dudenhefer at *4.
44
ECF No. 98 at 24-26.
45
Arceneaux, 2022 WL 488052 at *5 (alteration in original) (quoting Williams v. U.S. Royal Tires, 101
So.2d 488, 492 (La. App. 1958)).
46
ECF No. 99-3 at 9-10, 16.
42

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