Robinette v. Old Republic Ins. Co.

• Decision Date: 04 October 2017
• Docket Number: CA 17–79
• Citation: 229 So.3d 61
• Parties: Christy ROBINETTE v. OLD REPUBLIC INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

229 So.3d 61

Christy ROBINETTE

v.OLD REPUBLIC INSURANCE COMPANY, et al.

CA 17–79

Court of Appeal of Louisiana, Third Circuit.

October 4, 2017

Philip E. Roberts Ungarino & Eckert, LLC 600 Jefferson Street, Ste 850 Lafayette, LA 70501 (337) 235–6268 COUNSEL FOR DEFENDANT APPELLANT: Old Republic Insurance Company Joseph Zeno, Jr.

William H. Eckert Ungarino & Eckert, LLC 600 Jefferson Street, Ste 850 Lafayette, LA 70501 (337) 235–5656 COUNSEL FOR DEFENDANT APPELLANT: Old Republic Insurance Company Joseph Zeno, Jr.

Keith P. Saltzman Anderson & Dozier P. O. Box 82008 Lafayette, LA 70598–2008 (337) 233–3366 COUNSEL FOR PLAINTIFF APPELLEE: Christy Robinette

Court composed of Sylvia R. Cooks, Shannon J. Gremillion (S), and Van H. Kyzar, Judges.

KYZAR, Judge.

This matter arose as the result of an accident involving a vehicle driven by defendant, Joseph Zeno, Jr. (Zeno), in which the plaintiff, Christy Robinette (Robinette), was a passenger. Defendants, Zeno and Old Republic Insurance Company (Old Republic), appeal from the grant of a Motion for Summary Judgment on the issue of liability in favor of the plaintiff. For the reasons herein, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On October 21, 2013, the defendant, Zeno, and the plaintiff, Robinette, were involved in an automobile accident in which Robinette claims to have been injured. On this day, Zeno had driven to Robinette's school, Blue Cliff College in Lafayette, in order to pick her up for lunch. Robinette got into the passenger side of the vehicle. Though it is disputed how the argument began, both parties admit that they quickly entered in to a heated discussion. Zeno asserts in his affidavit that Robinette became verbally abusive, screaming and cursing at him as he attempted to exit the parking lot of the school.

Because of this, Zeno states, he attempted to return Robinette to her school rather than continue on to their planned lunch. At this point, Zeno was approaching the exit of the parking lot and was on a downward incline, causing the back of his vehicle to sit higher than the front. It is undisputed that Zeno placed the vehicle in reverse and applied pressure to the accelerator. When the vehicle accelerated in reverse, it collided with the vehicle behind it.

The plaintiff filed suit claiming damages for bodily injuries as a result of the collision. She asserts that the accident was caused solely as a result of the negligence of Zeno as driver of the vehicle. In answer to the petition, defendants admitted that Robinette was a guest passenger at the time of the accident in the vehicle, which was being driven by Zeno, owned by his employer, Genuine Parts Company, and insured by Old Republic. Genuine Parts Company, as owner of the vehicle, was voluntarily dismissed. The remaining defendants allege that the accident was caused solely, or alternatively in part, by the negligence of the plaintiff in distracting Zeno as he attempted to operate the vehicle.

On July 21, 2016, Robinette filed a Motion for Summary Judgment on the issues of liability and insurance coverage in regards to injuries purportedly sustained by Robinette as a result of the accident. At the hearing on that motion, held on September 6, 2016, the parties agreed as to the existence of requisite insurance coverage. Only the question of liability was disputed. After arguments by counsel, the trial court found that there was no genuine issue of material fact and granted Robinette's motion for partial summary judgment, establishing insurance coverage and liability against the defendants. Defendants appeal that judgment as to the issue of liability only.

ASSIGNMENT OF ERRORS

On appeal, defendants urge only one assignment of error, which states:

The trial court abused its discretion in granting Plaintiff's Motion for Summary Judgment when material issues of fact remain unresolved and by not correctly applying the burden of proof rule contained in [La.Code Civ.P. art. 996(D) ] by failing to construe all "factual inferences reasonably drawn from the evidence in favor of the party opposing the Motion" and resolving all doubt "in the opponent's favor." Watters v. Dep't of Soc. Servs., 2003-0703 (La.App. 4 Cir. 5/14/03), 849 So.2d 724, 731 citing Willis v. Medders, 2000-2507, p. 2 (La. 12/08/00), 775 So.2d 1049, 1050.

Appellate courts review summary judgments de novo under the same criteria that governed the trial court's consideration of whether or not summary judgment was appropriate. Schroeder v. Board of Sup'rs of La. State Univ., 591 So.2d 342 (La.1991) ; Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97); 702 So.2d 818, writ denied, 97-2737 (La.1/16/98); 706 So.2d 979. Beard v. Grey Wolf Drilling Co., 00-345 (La.App. 3 Cir. 11/2/00), 774 So.2d 287. Louisiana's Code of Civil Procedure Article 966(A)(3) states that summary judgment shall be rendered forthwith after an opportunity for adequate discovery, if "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."

On appeal, defendants argue summary judgment was not appropriate as issues of material fact remain in regards to the question of liability. Defendants also contend that the correct burden of proof rule was not applied, as required by the provisions of La. Code Civ.P. art. 966, which provides, in pertinent part:

D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Defendants maintain that because there are variations in the accounts of the event given by Robinette and Zeno, certain material facts remain disputed.

They further assert the factual contentions contained in their affidavits were not provided the required deference given to the claims of a non-movant for summary judgment pursuant to La.Code Civ.P. art. 966. This court recognizes the requirement to construe factual inferences that are reasonably drawn from the evidence in favor of the party opposing the motion. See Johnson v. State Farm Ins., 8 So.3d 808, 808 (La.App. 2009). All doubt is to be resolved in the non-moving party's favor. Id. However, not all facts or assertions regarding a certain event will be relevant in the consideration of summary judgment.

The threshold question in reviewing a trial court's grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98–50 (La.3/13/98); 712 So.2d 882. Grey Wolf Drilling Co., 774 So.2d at 289. Facts are material, for purposes of summary judgment, if they determine the outcome of the legal dispute, and the determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Kumpe, 712 So.2d at 882 ; Grey Wolf Drilling Co., 774 So.2d at 289. Defendants contend that because Zeno and Robinette offer differing accounts, material facts remain in dispute. The following facts, however, are undisputed: 1) at the time of the accident, Zeno was driving the vehicle and Robinette was a guest passenger in said vehicle; 2) the two parties were having a heated discussion; 3) during this discussion and while attempting to exit the school parking area, Zeno put the truck he was driving in reverse and pressed on the accelerator; and 4) this acceleration caused Zeno's truck to strike the vehicle behind it.

The claim leveled against defendants in the current proceeding is one of negligence. Defendants argue Robinette bears some percentage of comparative fault for the accident, stating that Robinette began screaming, yelling, and cursing at Zeno "in a very insulting and distracting manner" immediately prior to the accident, and these actions make her liable, either solely or in part, as she distracted Zeno from driving. No party argues that Robinette struck, obstructed the vision of, or physically interfered with Zeno in his operation of the vehicle at any time.

Louisiana's case law has consistently held that a driver's negligence is not imputed to a guest passenger. Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480, 485 (La.1989) ; Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973) ; Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) ; Felt v. Price, 240 La. 966, 126 So.2d 330 (1961) ; White v. State Farm Mut. Auto. Ins. Co., 222 La. 994, 64 So.2d 245 (1953) ; Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292 (1945) ; Squyres v. Baldwin, 191 La. 249, 185 So. 14 (1938) ; Lawrason v. Richard, 172 La. 696, 135 So. 29 (1931) ; Churchill v. Texas & Pac. Ry. Co., 151 La. 726, 92 So. 314 (1922) ; Daull v. New Orleans Ry. & Light Co., 147 La. 1012, 86 So. 477 (1920) ; Maritzky v. Shreveport Rys. Co., 144 La. 692, 81 So. 253 (1919) ; and Peterson v. New Orleans Ry. & Light Co., 142 La. 835, 77 So. 647 (1918). A driver's negligence is not imputable because it is unrealistic to hold that a guest passenger factually has any control or right of control over the motorist with whom he rides. Nowell v. State Farm Mut. Auto. Ins. Co., 576 So.2d 77, 80 (La. Ct. App. 1991), writ denied, 580 So.2d 923 (La.1991). Louisiana law does recognize that a...