Huber v. Liberty Mut. Ins. Co.

• Decision Date: 07 February 2001
• Docket Number: No. 2000-CA-0679.,2000-CA-0679.
• Citation: 780 So.2d 551
• Parties: Gabrielle HUBER v. LIBERTY MUTUAL INSURANCE COMPANY, American Central Insurance Company, Burnham Service Company, Inc., John Doe, and State of Louisiana, Through The Department of Transportation and Development.
• Court: Court of Appeal of Louisiana — District of US

780 So.2d 551

Gabrielle HUBER v. LIBERTY MUTUAL INSURANCE COMPANY, American Central Insurance Company, Burnham Service Company, Inc., John Doe, and State of Louisiana, Through The Department of Transportation and Development.

No. 2000-CA-0679.

Court of Appeal of Louisiana, Fourth Circuit.

February 7, 2001.

Victor A. Dubuclet, III, Borrello & Dubuclet, Metairie, LA, Counsel for Defendant/Appellee.

J. Thaddeus Westholz, Hulse & Wanek, New Orleans, LA, Counsel for Defendant/Appellant.

Court composed of Judge PLOTKIN, Judge WALTZER and Judge TOBIAS.

WALTZER, Judge.

STATEMENT OF THE CASE

Gabrielle Huber sued Burnham Service Company, Inc., its insurer, Liberty Mutual Insurance Company, its unidentified driver, the State of Louisiana, through the Department of Transportation and Development, and Huber's uninsured/underinsured motorist insurer, American Central Insurance Company. Huber sought to recover damages allegedly sustained on 21 September 1992, when the rear of her car was struck, allegedly by a Burnham delivery truck.

American Central moved for summary judgment dismissing Huber's claim for hitand-run/uninsured motorist coverage, claiming that Huber could identify the owner of the truck, and that Burnham's $2,000,000 of liability insurance removes the uninsured/underinsured motorist issue from the case. The trial court denied American Central's motion and American Central ultimately settled Huber's claim.

American Central filed an original and supplemental cross-claim against Burnham and Liberty Mutual for indemnity and, alternatively, for contribution.

On 12 August 1999, American Central filed a Motion In Limine alleging that Burnham despoiled crucial evidence which would have been unfavorable to Burnham, and sought imposition of the presumption that one of its vehicles was involved in the accident in question.

On 17 August 1999, Burnham and Liberty Mutual moved for summary judgment and sanctions against American Central. The matter was heard and, at that time, counsel for American Central raised his spoliation motion. However, when the trial court did not address that motion, counsel did not object or raise the spoliation issue by motion for new trial. At the conclusion of the hearing, the trial court granted summary judgment in favor of Burnham and Liberty Mutual, and entered judgment dismissing American Central's claim on 23 August 1999. From that judgment, American Central appeals. Finding no error in the judgment rendered below, we affirm.

STATEMENT OF FACTS

In support of its motion for summary judgment, American Central submitted Huber's deposition taken 10 May 1994. Huber testified that she did not take down the truck's license number because she was not sure if she actually saw it clearly enough to write down a license plate number. She could identify the driver only as a "black man", and said that "maybe" if she saw him again, she could recognize him. She testified that following the accident, she went to the Fourth District police station in Algiers and gave a police report. Officer Warren Pope checked out an unspecified number of different truck companies whose names sounded like the name she had given him, "Burnham", and advised Huber that Burnham denied having been involved in the accident. She testified that she knew of no other witnesses to the accident.

In her successful opposition to American Central's motion, Huber contended that

the only material question which has been raised is a question of fact regarding whether anyone will be able to identify the truck which actually struck plaintiff years ago. Plaintiff attempted to identify the truck which struck her in the rear but it is obvious that Ms. Huber was uncertain if the Burnham vehicle was the same truck which struck her.... Clearly she may well have sought to identify the wrong white truck. ... Burnham drivers have consistently denied any knowledge about an accident. The deposition testimony and other discovery has not been able to establish that a Burnham vehicle was involved in any accident.

Huber's affidavit submitted in opposition to American Central's motion contains the following statements:

[I] could not see the entire truck, except for the right front portion. There was nothing which specifically identified the make or type of truck involved.... [After the impact] I got out of my vehicle and saw a truck slowly approaching from behind and assumed that it was probably the vehicle which struck me in the rear. I quickly wrote down the name which appeared on the side of the truck. I contacted the trucking company that day to see if any of their drivers had been in an accident because I was not certain that the Burnham truck is the one that struck me. Since that time Burnham has consistently denied that any of their drivers were involved in an accident and I am unable to prove which truck actually struck me.... [T]here were many trucks and vehicles on the road on the date of my accident which were merging into traffic and it is certainly possible that the driver of the truck was a witness, or that he was slowing down to look at me because I had pulled my car over to the side and come to a stop. I cannot prove or swear under oath that a Burnham truck struck me, ...

This uncertainty is supported by the Police Report dated 21 September 1992, which was based on information supplied by Huber. According to the report, the owner and driver of the vehicle were "unknown" and the only information Huber supplied was that the truck was a Mercedes having two axles and six tires. In Huber's answers to American Central's Third Set of Interrogatories, she stated, "Plaintiff was unable to identify the owner, driver, insurer, or operator of the truck at the time she reported the accident to the Police Department on the date of the accident." Discovery directed to Burnham did not disclose any accident report or incident report connected to the date of the Huber accident, no repairs were made to any of the Burnham delivery vehicles in the New Orleans area on the date of the accident, and none of the three Burnham delivery drivers on duty in the New Orleans area on 21 September 1992 had any knowledge of the accident. Huber testified that she called Burnham's local office after the accident, but did not claim that she was hit by a Burnham truck because she could not identify the truck that hit her as Burnham's. Indeed, she testified that she "may have" told the Burnham operator that the (unidentified) truck ran her off the road, but did not strike her.

These facts were the basis of Burnham's opposition to American Central's spoliation claim. Jack Phillips, Burnham's Risk Manager, gave an affidavit that after a diligent research of the company records, he determined that Burnham does not have a manifest applicable to deliveries in the Greater New Orleans area on or about the date of the accident. Absent any knowledge of a claim, Burnham would have had no reason to keep any records concerning activities on 21 September 1992.

STANDARD OF REVIEW AND BURDEN OF PROOF

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226, 230. Appellee's contention that the manifest error standard of review should apply is incorrect.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A. (2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point 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. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

When faced with a supported motion for summary judgment, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

The amended article 966 substantially changes the law of summary judgment. Under the prior jurisprudence, summary judgment was not favored and was to be used...