Daniels v. Usagencies Cas. Ins. Co.

Decision Date03 May 2012
Docket Number2011 CA 1358,Nos. 2011 CA 1357,2011 CA 1359.,s. 2011 CA 1357
Citation92 So.3d 1049
PartiesCynthia DANIELS v. USAGENCIES CASUALTY INSURANCE COMPANY, Lucy Austin, Tessie Parrish, Express Marketing, Inc., Southern Underwriters Insurance Company, Charlene Hoyt, and State Farm Fire and Casualty Company. Katie Daniel v. USAgencies Casualty Insurance Company, Lucy Austin, Tessie Parrish, Express Marketing, Inc., Southern Underwriters Insurance Company, Charlene Hoyt, and State Farm Fire and Casualty Company. Lucy Austin v. Tessie Parrish, Express Marketing, Inc., and Southern Underwriters Insurance Company.
CourtCourt of Appeal of Louisiana — District of US


Douglas K. Williams, Chris D. Billings, Baton Rouge, LA, for DefendantsAppellees, Tessie Parrish and Southern, Underwriters Insurance Company.

Locke Meredith, Sean D. Fagan, Corey Orgeron, Baton Rouge, LA, for Plaintiff–2nd Appellant, Cynthia Daniels.

Darryl M. Phillips, Angela Lumzy–Jones, New Orleans, LA, for Plaintiff–1st Appellant, Katie Daniel.

Stephen M. Alexander, Baton Rouge, LA, for Plaintiff–3rd Appellant, Lucy Austin.



[1 Cir. 3]Plaintiffs in these consolidated cases, Cynthia Daniels, Katie Daniel, and Lucy Austin, appeal from a summary judgment rendered in favor of defendants, Tessie Parrish and Southern Underwriters Insurance Company, dismissing plaintiffs' claims against those defendants. After de novo review, we affirm the judgment of the district court.


This case involves two successive incidents that occurred during a rainy day on August 19, 2008, on an elevated northbound section of Interstate 55 (I–55) between New Orleans and Hammond, Louisiana. The chain of events began when one of the defendants, Charlene Hoyt, lost control of her vehicle while driving in the right lane of I–55 north. Charlene swerved to avoid another vehicle that was. drifting into the right lane. Her vehicle began to spin and then struck the left-side concrete barrier on I–55, coming to rest across and completely blocking the northbound left lane.

Tessie Parrish was traveling behind Charlene's vehicle with her headlights and windshield wipers activated. Tessie witnessed Charlene's vehicle hit the concrete barrier and then come to a stop in a position that was almost perpendicular to the road and completely blocking the left northbound lane of travel. Tessie slowed and parked her pickup truck approximately 20 yards behind Charlene's disabled vehicle. Because the shoulder was too narrow for Tessie to park completely off the roadway, she parked partially in the left lane and partially on the narrow left shoulder, so that she could render assistance as well as protect the occupants in Charlene's vehicle, which was disabled and vulnerable to oncoming traffic. When Tessie exited her vehicle, she left the engine running while she checked on Charlene. Tessie observed that Charlene's airbag had deployed, that Charlene was bleeding, and that Charlene appeared to be [1 Cir. 4]disoriented. Tessie left Charlene in her car while she returned to her own vehicle to retrieve her cell phone in order to call 911 for help. According to Tessie and Charlene's affidavits, the emergency flasher lights on Tessie's vehicle were activated. Charlene also attested that she observed another vehicle had parked directly in front of her disabled car in the left lane, and that particular driver began waving oncoming traffic into the right lane, around the accident scene that was blocking the left lane.

At this point, which was roughly five to ten minutes after Charlene's initial crash into the concrete barrier, Tessie heard screeching tires as another vehicle, driven by Lucy Austin, skid toward and collided with the rear of Tessie's pickup truck. Lucy had been traveling in the left northbound lane but she did not see Tessie's stopped vehicle until a car that was directly in front of her and blocking her view suddenly swerved around Tessie's vehicle into the right lane. Lucy and one of her passengers, Cynthia Daniels, testified in their depositions that Tessie's vehicle did not have any lights on at all. Lucy stated that once she saw Tessie's vehicle, she had absolutely no time to stop, and she could not move into the right lane because of a truck in that lane. As a result, she crashed into the back of Tessie's vehicle. Lucy and her two passengers, Cynthia Daniels and Katie Daniel, were injured.

Cynthia, Katie, and Lucy (collectively referred to as plaintiffs) each filed separate lawsuits, which were later consolidated in the district court for trial against Tessie and her liability insurer, Southern Underwriters Insurance Company, as well as other defendants who are not relevant to this appeal.1 All plaintiffs [1 Cir. 5]alleged that Tessie's negligence was a cause of the accident. Southern Underwriters and Tessie (collectively referred to as defendants) filed a motion for summary judgment, relying on the facts as alleged in plaintiffs' petitions and the affidavits of Tessie and Charlene to establish there was no genuine issue of material fact that Tessie had acted reasonably as a “rescuer” and had not breached any duty owed to plaintiffs, and therefore, plaintiffs' claims against defendants should be dismissed as a matter of law. Plaintiffs opposed the summary judgment, relying on Cynthia's and Lucy's deposition testimony, and essentially arguing that there are genuine issues of material fact regarding whether Tessie was a rescuer, the reasonableness of her actions, and whether she had breached a duty to warn oncoming motorists by not activating her emergency flasher lights or using some other warning device.

After a hearing, the district court ruled in favor of the defendants, and on March 22, 2011, a final judgment was signed, dismissing plaintiffs' claims against Tessie and Southern Underwriters, in accordance with La. C.C.P. art. 1915(A). Plaintiffs filed separate devolutive appeals of that judgment, which were consolidated on the docket of this court. Each plaintiff asserts that the district court prematurely and incorrectly granted summary judgment, because discovery had not been completed and because various factual issues precluded summary judgment.


Plaintiffs argue there are still material factual issues to be resolved, and the summary judgment was premature due to a lack of discovery. However, we note that plaintiffs did not file a motion for continuance or for additional discovery before the district court heard defendants' motion for summary judgment. [1 Cir. 6]Code of Civil Procedure article 966 deals with the procedure for filing a motion for summary judgment, and paragraph (A)(1) permits the defendant to file the motion at any time. Paragraph (C)(1) states that [a]fter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” (Emphasis added.) It is well settled that trial courts in Louisiana have broad discretion when regulating pretrial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Cent. R. Co., 93–0783 (La.1/14/94), 631 So.2d 401, 406.

It is not an abuse of the district court's wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. It is within the trial court's discretion to render a summary judgment or require further discovery. Thomas v. Willis–Knighton Medical Center, 43,176 (La.App.2d Cir.4/30/08), 981 So.2d 807, 814,writ denied,2008–1183 (La.9/19/08), 992 So.2d 932. While parties must have a fair opportunity to conduct discovery and present their claims, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Welch v. East Baton Rouge Parish Metropolitan Council, 2010–1532 (La.App. 1st Cir.3/25/11), 64 So.3d 249, 254;Green v. State Farm General Ins. Co., 35,775 (La.App.2d Cir.4/23/02), 835 So.2d 2, 6. A suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact, and the plaintiff does not show a probable injustice in proceeding with the suit. Welch, 64 So.3d at 254.

The key witnesses who could arguably support plaintiffs' claims were not unknown or unavailable to plaintiffs, yet the record shows that plaintiffs did not initiate any discovery during the nearly four-month period between serving Tessie and the hearing on Tessie and Southern Underwriter's motion for summary [1 Cir. 7]judgment.2 Nor did plaintiffs file a motion for continuance of the hearing on the motion. Under these circumstances, the district court did not abuse its discretion in proceeding with the hearing on the motion for summary judgment, based on the pleadings, depositions, and affidavits in the record.

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Granda v. State Farm Mut. Ins. Co., 2004–2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). On a motion for summary judgment, if the moving party will not bear the burden of proof at trial, the moving party's burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden...

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