Garth et al v. RAC Acceptance East, LLC et al
ORDER denying 127 Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 10/4/2021. (jwr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
TIFFANY GARTH and NAKEITHRA
JOHNSON, Administratrix of the
Estate of Greg Humphrey
RAC ACCEPTANCE EAST, LLC, et al.
Tiffany Garth and Nakeithra Johnson, as administratrix of Greg Humphrey’s estate, assert
negligence claims against RAC Acceptance East, LLC, based on allegations that a vehicle bearing
RAC’s name and driven by a RAC employee caused Garth and Humphrey to run off the road and
sustain injuries and property damage. RAC, contending that it did not have a particular type of
vehicle on the road when and where the accident occurred, has moved for summary judgment.
Because deposition testimony shows there are genuine disputes as to material facts regarding the
details of the accident, summary judgment is improper.
On October 4, 2019, Tiffany Garth and Greg Humphrey filed a complaint in the Circuit
Court of Lee County, Mississippi, against RAC Acceptance East, LLC, “Fictitious Defendant A,”
“Fictitious Defendant B,” and “XYZ Corporation.” Doc. #2. The complaint asserts that while
Garth and Humphrey were traveling in Humphrey’s vehicle, “a vehicle bearing the name of …
Rent-A-Center” operated by a RAC employee “came over into … Humphrey’s lane, forcing him
off the roadway on the right side and onto the shoulder of the roadway, thereby causing Plaintiffs’
injuries and damages.” Id. at 2. RAC, invoking diversity jurisdiction, removed the case to the
United States District Court for the Northern District of Mississippi on October 25, 2019. 1 Doc.
On March 18, 2021, Gregory Harbison, counsel for Humphrey, filed a suggestion of death
stating that Humphrey died on March 11, 2021. Doc. #126. Approximately one month later, on
April 13, 2021, RAC moved for summary judgment on the claims against it. Doc. #127. Harbison,
purportedly acting on Humphrey’s behalf, requested an extension to respond to the summary
judgment motion. Doc. #129. Because Humphrey’s death meant he was no longer a proper party,
the Court denied the extension but stayed the case to allow an estate to be opened and the proper
party to seek substitution. Doc. #130 at 2. By order of United States Magistrate Judge Roy Percy,
Nakeithra Johnson, administratrix of Humphrey’s estate, was substituted as the proper party on
May 26, 2021. Doc. #136.
Garth responded to the summary judgment motion, Doc. #132, and RAC filed a reply, Doc.
#139. Johnson filed a separate response to the summary judgment motion, 2 Doc. #142, and RAC
replied, Doc. #144.
Standard of Review
A court shall enter 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 of law.” Fed. R. Civ. P.
56(a). “An issue is genuine if the evidence is such that a reasonable factfinder could return a
The notice of removal alleges that both Garth and Humphrey are citizens of Mississippi; “RAC’s sole member is
Rent-A-Center East, Inc., which is a Delaware corporation having its principal place of business in the State of Texas”
such that “RAC is a resident of Delaware and Texas;” and because the plaintiffs seek $150,000 in damages in the
complaint, the amount in controversy is satisfied. Doc. #1 at 2–3. Because complete diversity exists and there is no
evidence the complaint’s demand was not made in good faith, this Court has diversity jurisdiction over the claims
asserted. See Smith v. Toyota Motor Corp., 978 F.3d 280, 282 (5th Cir. 2020) (citizenship of an LLC is determined
by the citizenship of its members); Henderson v. Allstate Fire & Cas. Ins. Co., 154 F. Supp. 3d 428, 431 (E.D. La.
2015) (plaintiff’s allegation of a damages figure in excess of the jurisdictional amount controls if made in good faith).
Johnson sought and received an extension to respond. Docs. #140, #141.
verdict for the nonmoving party.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019)
(cleaned up). “A fact is material if its resolution could affect the outcome of the action.” Dyer v.
Houston, 964 F.3d 374, 379 (5th Cir. 2020).
The “party seeking summary judgment always bears the initial responsibility of
demonstrating the absence of a genuine issue of material fact.” Jones, 936 F.3d at 321 (alterations
omitted). When the movant does not bear the burden of persuasion at trial, he may satisfy his
initial summary judgment burden “by pointing out that the record contains no support for the nonmoving party’s claim.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019).
If the moving party satisfies his initial burden, the nonmovant “must go beyond the pleadings and
designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321
(cleaned up). When both parties submit evidence of contradictory facts, “courts may not make
credibility determinations or weigh the evidence” but rather must resolve “factual controversies in
favor of the nonmoving party.” Wells v. Minnesota Life Ins. Co., 885 F.3d 885, 889 (5th Cir.
On May 1, 2019, Humphrey and Garth were traveling north on the Natchez Trace in
Humphrey’s 2006 Chrysler 300 C. Doc. #127-1 at 12, 25; Doc. #127-2 at 10. Humphrey “saw a
couple of cars coming towards [him], and then [he] saw [a] van, [a] box truck, coming from around
the two cars.” Doc. #127-1 at 13. The vehicle moved completely into Humphrey’s lane. Id. at
21. To try to avoid the vehicle, Humphrey “went off to the right side into the ditch, slid sideways,
hit a bump, came to a rest, and then managed to get the front tires … back on the pavement.” Id.
at 14. The vehicle, which was driven by a white female, did not stop. Id. at 13, 15; Doc. #127-2
at 23. The vehicle did not make contact with Humphrey’s vehicle. Doc. #127-2 at 11.
Humphrey attempted to call 911 for assistance but he “couldn’t hear anything.” 3 Doc.
#127-1 at 17–18. The airbags in the car did not deploy. Id. at 22. Both Humphrey and Garth were
wearing their seatbelts. Id. at 24.
Humphrey suffered bruises to his elbow and stomach. 4 He was able to drive his vehicle
following the accident and proceeded to drop Garth off at work approximately “five [to] ten
minutes” from where the accident occurred. 5 Id. at 18. Despite driving it away from the scene,
Humphrey’s vehicle has been “in the shop” since May 2019. Id. at 31. Garth suffered injuries
from the accident and has been unable to work. Doc. #127-2 at 22.
The parties dispute whether the vehicle Garth and Humphrey claim caused them to run off
the road was a RAC vehicle. Garth and Humphrey both testified that the vehicle, a “commercial
box truck,” had a Rent-A-Center logo “[o]n the front and the sides.” Doc. #127-1 at 22; Doc.
#127-2 at 10–11. However, RAC submitted the declaration of Matthew Good, a district manager
at RAC,6 in which he states the company does “not have records of any commercial box truck on
the Natchez Trace on May 1, 2019” and “[t]he only Rent-A-Center vehicle on the Natchez Trace
RAC submitted a transcript of a recorded conversation between Humphrey and Pamela McVay in which Humphrey
says he called 911 but “they couldn’t figure out where we were.” Doc. #127-5 at 11–12. Whether Humphrey was
unable to connect to 911 or whether 911 could not find his location is immaterial to resolution of the motion.
Humphrey had diverticulitis surgery approximately eight months before the accident. Doc. #127-1 at 30. Following
the accident, his doctor checked to make sure Humphrey “hadn’t torn anything from the accident.” Id. at 32. The
record does not indicate whether Humphrey’s death in March 2021 was connected to his injuries in the accident.
The parties dispute what happened following the accident. Humphrey testified he drove to an RAC location and
spoke to a tall, black, female employee regarding the accident. Doc. #127-1 at 21. Katie Jones, a manager at RAC,
testified there was not an employee who matched the description given by Humphrey at the store and Humphrey called
the store while he was still on the side of the road. Doc. #127-4 at 8–9, 26–27. These conflicting facts are immaterial
to the resolution of the present motion.
In response to the motion, “Garth questions the personal knowledge of Mr. Good since he has not been identified by
any of the Rent-A-Center employees as the district manager” on May 1, 2019. Doc. #133 at PageID 762 n.1. Rather,
“[a] district manager by the name of Ron was identified.” Id. “Because Mr. Good is the district manager and not in
the store daily, Plaintiffs contend his knowledge is based upon inadmissible hearsay.” Id. at PageID 773 n. 4.
of which we are aware is a van, driven by Carrie Horton.” Doc. #127-6 at ¶¶ 5–6. Horton testified
that she was on the Natchez Trace on the date of the accident in a van. Doc. #127-8 at 9.
Under Mississippi law,7 “to prevail on a claim of negligence, the plaintiff must establish
by a preponderance of the evidence each of the elements of negligence: duty, breach, causation,
and injury.” Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69, 76 (Miss. 2017). In its
summary judgment motion, RAC argues the plaintiffs cannot establish the duty or causation
elements. Specifically, RAC argues summary judgment is proper because (1) the plaintiffs “cannot
demonstrate that RAC owed any duty because there is no evidence in the record that RAC had a
box truck on the road that day;” (2) “there is not sufficient evidence that even if RAC did have a
commercial box truck on the Natchez Trace that day … that it caused Plaintiffs’ accident;” and (3)
the plaintiffs “cannot create a ‘fact dispute’ with their own inconsistent testimony.” Doc. #128 at
6. The plaintiffs respond that regardless of whether the vehicle was a van or truck, “there was a
RAC vehicle on the Trace that Plaintiffs allege ran them off the road, causing them injuries and
damages,” and “this question of fact” creates “a jury question … that cannot be decided at the
summary judgment stage.” Doc. #133 at PageID 767; see Doc. #143 at PageID 945 (“Plaintiff
Johnson has joined in Plaintiff Garth’s Response to this Motion and incorporated the argument set
forth therein into this response.”).
There is no doubt that a driver of a vehicle has a duty to operate the vehicle in a safe manner
including, but not limited to, “keeping a proper lookout and being on alert for vehicles … ahead
In this diversity action, the Court applies the substantive law of the forum state. 84 Lumber Co. v. Cont’l Cas. Co.,
914 F.3d 329, 333 (5th Cir. 2019).
in the highway.” See Ready v. RWI Transportation, LLC, 203 So. 3d 590, 594 (Miss. 2016). But
RAC, citing Good’s affidavit, argues that because it “did not have a commercial box truck on the
Natchez Trace” on the date of the accident, there is “no evidence in the record that RAC owed
Plaintiffs a duty.” Doc. #128 at 6. In that regard, RAC relies on Sollie v. Nagia, No. 1-10-3338,
2011 WL 10072085 (Ill. App. Ct. 2011), an Illinois state court decision where a defendant driver
testified he was not on the road on the day of the plaintiff’s accident and the court held that the
plaintiff, who admitted she did not see the driver of the car causing the accident, failed to establish
that the defendant owed her a duty. Doc. #128 at 7.
In her response, Garth distinguishes Sollie by pointing out the vehicle in question there was
“a private auto” such that “the plaintiff would be forced to identify the driver in some … manner.”
Doc. #133 at PageID 771–72. Garth argues that Jack Cole Co. v. Hudson, 409 F.2d 188 (5th Cir.
1969), is more on point and, because the vehicle bore the RAC logo, there is a presumption it was
owned and controlled by RAC and RAC has not provided the required “strong and clear” evidence
to show its vehicle was not involved. Doc. #133 at PageID 768.
In reply, RAC argues that the plaintiffs “have proffered no evidence that there was a RAC
box truck on the road that day[, t]here was testimony and evidence that a RAC van was on the
road[, b]ut Garth (and Humphrey) cannot now change their sworn testimony that the cause of
Humphrey’s swerve was a box truck.” Doc. #139 at 2 (emphasis omitted). RAC attempts to
distinguish Jack Cole by asserting that while there were witnesses to the accident in Jack Cole,
“here, there is no one who saw the accident, the swerve, or any RAC commercial box truck on the
Natchez Trace.” Doc. #139 at 4. Further, RAC argues Good’s affidavit is “the exact same
evidence” as was offered in Bonilla-Torres v. Wal-Mart Transportation, LLC, No. 1:07-CV-928,
2008 WL 11445404 (S.D. Miss. July 22, 2008). Id.
In Bonilla-Torres, the plaintiffs alleged a Wal-Mart tractor-trailer caused them to lose
control of their vehicle. 2008 WL 11445404 at *1. Wal-Mart moved for summary judgment
relying on an affidavit of Blake Hill, “who testifie[d] that at the time of the accident, all of WalMart’s tractors were equipped with Global Positioning System locators and messaging systems;”
based on the GPS information, “no tractors owned by Wal-Mart were located near” the accident;
and Wal-Mart contracted with major trucking companies to haul many of its trailers. Id. The
district court found that under Jack Cole a presumption of ownership arose “from the fact that
‘Wal-Mart’ was displayed on the side of the trailer” but Wal-Mart rebutted the presumption
through Hill’s affidavit. Id. at *2. Because neither the plaintiffs nor the single witness could
remember whether the tractor as opposed to the trailer bore the Wal-Mart logo, the district court
found the plaintiffs failed to provide evidence that refuted Wal-Mart’s GPS evidence and granted
summary judgment. Id.
Here, RAC relies on Good’s declaration stating there was not a RAC box truck on the
Natchez Trace at the time of the accident. However, unlike in Bonilla-Torres, Good’s statement
is not confirmed by any GPS data. Also, Garth and Humphrey testified that the vehicle itself,
rather than a trailer, bore the RAC logo. Because of the contradictions between Good’s testimony
and the testimony of Garth and Humphrey, genuine fact questions exist precluding summary
judgment as to whether RAC’s vehicle was on the same road as the plaintiffs on the day of the
accident so as to be subject to the duty to operate safely (and whether such duty was breached).
RAC argues there is no “fact question about whether RAC’s act was a cause in fact” of the
accident because “Plaintiffs’ own testimony suggests that it was not necessary for Humphrey to
veer off the road.” Doc. #128 at 8. Garth responds that “[w]hile there were no cars in his lane,
Mr. Humphrey had to swerve off of the road and into a ditch to avoid a head-on collision” and the
RAC vehicle’s “illegal pass is the cause-in-fact” of the accident. Doc. #133 at PageID 773–74.
At the summary judgment stage, the plaintiffs must provide evidence showing that RAC’s
breach of a duty proximately caused their injuries. Estate of Ellis v. MMC Materials, Inc., 311 So.
3d 691, 696 (Miss. Ct. App. 2021). “Proximate cause requires: (1) cause in fact; and (2)
foreseeability. Cause in fact means that the act or omission was a substantial factor in bringing
about the injury, and without it the harm would not have occurred.” Id.
Here, Humphrey testified there were no cars in his lane when the RAC vehicle swerved
into his lane and he “went off to the right side” of the road “into the ditch” to avoid the vehicle.
Doc. #127-1 at 13–14. Garth testified there “may have been some people behind us.” Doc. #1272 at 33. Thus, there is evidence in the record that the RAC vehicle swerving into Humphrey’s lane
caused him to swerve to avoid a head-on collision. See Acord v. Moore, 243 So. 2d 55, 57 (Miss.
1971) (finding a jury question where the defendant, who was passing a vehicle in the plaintiff’s
lane, asserted that the driver of the plaintiff’s vehicle “was the sole proximate cause of the
collision”). Summary judgment is improper given the factual dispute about the cause of the
RAC submits that “Humphrey’s story contains … inconsistences” which show that
“Humphrey and Garth seem to be attempting to weave a convoluted jury-determinant story but it
is their own inconsistencies creating confusion.” Doc. #128 at 10. RAC seems to argue that
because “Humphrey’s story is rife with inconsistencies” and RAC’s employees testified that there
was not a commercial box truck, but rather a van, on the Natchez Trace on the date of the accident,
summary judgment is proper. Id. at 9–10. However, Humphrey testified that a “van, [a] box truck”
ran him off the road.8 To the extent RAC argues Humphrey’s testimony is not credible, such a
determination is not appropriate at the summary judgment stage. See Wells, 885 F.3d at 889;
Watson v. Allstate Prop. & Cas. Ins. Co., No. 3:16-cv-987, 2019 WL 3300236 at *12 (S.D. Miss.
July 3, 2018) (inconsistencies between plaintiff’s statements in examination under oath and
deposition rendered summary judgment improper because it “would require the Court to make
impermissible credibility determinations”). Accordingly, summary judgment is not warranted.
RAC’s motion for summary judgment  is DENIED.
SO ORDERED, this 4th day of October, 2021.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
Additionally, Jones testified that when Humphrey called the store he said that a van had ran him off the road. Doc.
#127-4 at 9.
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