Massingale v. Sibley
| Decision Date | 03 April 1984 |
| Docket Number | No. 83,83 |
| Citation | 449 So.2d 98 |
| Parties | Dayna Schwarz, Wife of/and James D. MASSINGALE v. Sandra T. SIBLEY, et al. CA 0587. |
| Court | Court of Appeal of Louisiana — District of US |
Ronald F. Fontana, Metairie, for plaintiffs-appellants Dayna Schwarz, Wife of/and James D. Massingale.
John W. Perry, Jr., Baton Rouge, for third party plaintiff-appellant Aetna Casualty & Surety Co.
Robert E. Tillery, and Robert J. Vandaworker, Baton Rouge, for defendants-appellants Charles F. Sibley, Sandra T. Sibley and Southern Farm Bureau Casualty Insurance Co.
Dorothy Dubroc Thomas, Baton Rouge, for defendant-appellee South Central Bell Telephone Co.
Before SHORTESS, LANIER and CRAIN, JJ.
This is a suit for damages in tort by Dayna Schwarz Massingale, wife of/and James Massingale, arising out of an automobile accident. Named as defendants are Sandra T. Sibley, wife of/and Charles F. Sibley, and their automobile liability insurer, Southern Farm Bureau Casualty Insurance Company (Farm Bureau); Mark Franks and his employer, South Central Bell Telephone Company (Bell); and the Massingale's underinsured motorist insurer, Aetna Casualty & Surety Co. (Aetna). The Sibleys and Farm Bureau answered and filed a third party demand against Bell, James Massingale and Aetna seeking indemnity and/or contribution. Aetna answered and filed a third party demand against Sandra T. Sibley, Mark Franks and Bell seeking indemnity. Bell answered the main demand and the third party demands and filed a motion for summary judgment. After a hearing, the trial court granted a summary judgment in favor of Bell and dismissed the main and third party demands against it. From this judgment, the Massingales, the Sibleys, Farm Bureau and Aetna have devolutively appealed.
On August 3, 1981, at approximately 5:00 p.m., James Massingale was operating a 1979 Toyota owned by Dayna Schwarz Massingale in a westerly direction in the left (inside) lane of Perkins Road at its intersection with Cloverdale in East Baton Rouge Parish, Louisiana. Dayna Schwarz Massingale was a passenger in the Toyota at this time. Cloverdale intersects with Perkins Road from the south. On the north side of this intersection is a shopping center parking lot. At this same time and place, Sandra Sibley was operating a 1979 Chevrolet pickup truck owned by her and was attempting to leave the shopping center parking lot at a point opposite the entrance of Cloverdale into Perkins. Sibley intended to make a left turn onto Perkins Road and drive in an easterly direction.
When Sibley reached Perkins Road, a large truck was proceeding in a westerly direction and approaching from her left in the right (outside) lane of Perkins Road. This truck had the apparent purpose of turning right into the shopping center. Sibley also observed a van owned by Bell and driven by its employee, Mark Franks, stopped in the left (inside) eastbound lane of Perkins Road at its intersection with Cloverdale. Franks made a hand signal to Sibley and she proceeded to attempt to cross both westbound lanes of Perkins but was struck by the Massingale vehicle in the left (inside) westbound lane of Perkins Road. The Massingales claim that they sustained injuries as a result of this collision.
The appellants contend that the district court committed error by granting the summary judgment and dismissing Bell from this suit because a genuine issue of fact exists as to whether or not Franks' act of signaling Sibley constituted negligence which caused the accident.
In Morgan v. Matlack, Inc., 342 So.2d 167, 169 (La.1977), appears the following:
The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, 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.Code Civ.P. art. 966; Stallings v. W.H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).
See also Quintana Petroleum Corporation v. Alpha Investments Corporation, 435 So.2d 1092 (La.App. 1st Cir.1983). If the supporting documents presented by a party moving for a summary judgment are sufficient to resolve all genuine issues of fact, the burden shifts to the opposing party to present evidence showing that material facts are still at issue. At this point, the opposing party may no longer rest on the allegations and denials contained in his pleadings. La.C.C.P. art. 967; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Broussard v. Henry, 423 So.2d 67 (La.App. 1st Cir.1982).
The Massingales allege the following facts in their petition:
On the said date and time, petitioner, James D. Massingale, was driving the 1979 Toyota Tercel owned by petitioner, Dayna Schwarz Massingale, in a westerly direction on Perkins Road in the left traffic lane in a careful, prudent and proper manner; that as petitioners' vehicle was crossing the intersection of Cloverdale, the defendant, Sandra T. Sibley, was entering Perkins Road from a shopping center situated on the north side of Perkins Road and her truck collided with petitioners' car; the said accident forms the basis of the damages complained of herein.
Based on information and belief, petitioners aver that, just prior to the accident, a truck owned by South Central Bell and driven by its employee, Mark J. Frank (sic) had been travvelling (sic) east on Perkins in the left traffic lane, had stopped at Cloverdale to enter the shopping center which Sandra Sibley was preparing to leave and the defendant, Mark J. Frank (sic), motioned to Sandra T. Sibley to enter Perkins Road, the result being that she drove her truck into petitioners' car.
It is uncontested that Franks made a gesture or hand signal to Sibley. Franks admitted this in his deposition filed in the record in support of the motion for summary judgment. However, what was meant or intended by Franks' hand signal is contested.
In his deposition, Franks gives the following testimony concerning the meaning of his hand signal:
Q. Tell me in your own words before I question you in detail as best you recall how this accident occurred and what you saw.
A. I was coming in the left lane headed east. There was a four-wheel drive truck coming out of the parking lot in the shopping center; it was stopped in there. And as I was coming in the left lane, I came to a stop, and I signaled the lady to let her know I was going to let her in out of courtesy;
* * *
Q. Mr. Franks, when you made this hand signal with your left hand to the lady who was attempting to drive in an easterly direction onto Perkins...
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