Opinion
2022 CA 1055
04-14-2023
Dorothy Banish MADDEN v. Steven Ray FAIRBURN, K.S. Timber Company, Inc., Plaza Insurance Company, XYZ Insurance Company, & Capital Specialty Insurance Corporation
Jack E. Morris, Metairie, Louisiana, Counsel for Appellant Plaintiff—Dorothy Banish Madden James W. Hailey, III, Lee M. Peacocke, Kelly C. Simpson, Meredith A. Mayberry, New Orleans, Louisiana, Counsel for Appellees Defendants—Steven Ray Fairburn, K.S. Timber Company, Inc., and Plaza Insurance Company Dean Arruebarrena, Marc E. Devenport, New Orleans, Louisiana, Counsel for Appellee Defendant—Capital Specialty Insurance Corporation
Jack E. Morris, Metairie, Louisiana, Counsel for Appellant Plaintiff—Dorothy Banish Madden
James W. Hailey, III, Lee M. Peacocke, Kelly C. Simpson, Meredith A. Mayberry, New Orleans, Louisiana, Counsel for Appellees Defendants—Steven Ray Fairburn, K.S. Timber Company, Inc., and Plaza Insurance Company
Dean Arruebarrena, Marc E. Devenport, New Orleans, Louisiana, Counsel for Appellee Defendant—Capital Specialty Insurance Corporation
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
In this action for damages, the plaintiff, Dorothy Banish Madden, appeals a summary judgment granted in favor of the defendants, Steven Ray Fairburn; his employer, K.S, Timber Company, Inc.; and his employer's liability insurer, Plaza Insurance Company (collectively "the Fairburn defendants"), which dismissed the plaintiff's claims against the Fairburn defendants. For reasons that follow, we affirm the judgment of the trial court.
BACKGROUND
This case involves an automobile accident that occurred at the "T" intersection of Louisiana Highway 440 ("La. 440") and Louisiana Highway 450 ("La. 450") in Washington Parish, Louisiana. La. 440 is a two-lane highway, with traffic moving in an east-west direction, and it has a posted speed limit of 55 miles-per hour. La. 450 terminates perpendicular to La. 440 (thus forming the "T" intersection), and all traffic turning from La. 450 onto La. 440 is controlled by a stop sign at the intersection. Other than a double yellow line, there are no traffic control signs on La. 440 at the intersection with La. 450.
The underlying material facts in this case are not in dispute. On December 29, 2016, the plaintiff was a guest passenger in a 2005 Chevrolet Tahoe driven by John Seibert, which was traveling southbound on La. 450 towards the "T" intersection at La. 440. The plaintiff, who was working for Censeo Health, LLC, had just concluded an in-home visit with a patient who resided a couple of minutes from the intersection. Mr. Seibert was employed as the plaintiff's driver, and he routinely drove and accompanied her to in-home visits with patients.
At the same time, Mr. Fairburn was driving a 2004 Peterbilt K4 tractor-trailer ("the truck") westbound on La. 440. Mr. Fairburn had just completed his last work-related job for the day, which was unloading pulpwood from the truck at a paper mill in Bogalusa, and he was driving the empty truck home. It was dark (or dusk) outside, the weather conditions were clear and dry, and Mr. Fairburn was traveling at or below the speed limit.
Mr. Fairburn first noticed the Tahoe when it was approximately 6 to 10 car lengths from the stop sign on La. 450 at the intersection, and he observed the Tahoe slow down as it approached the stop sign. However, the Tahoe did not completely stop at the stop sign, and it travelled straight into Mr. Fairburn's lane of travel. When Mr. Fairburn approached the intersection and realized the Tahoe was not stopping at the stop sign and instead, was proceeding through the intersection, he applied maximum pressure to the brakes of his truck; however, Mr. Fairburn's truck collided with the Tahoe in Mr. Fairburn's lane of travel.
According to the plaintiff, Mr. Siebert and the plaintiff had previously passed through the intersection on the way to the patient's home. After she left the patient's house, she got into the vehicle and put on her seatbelt. Mr. Seibert was already in the vehicle. Mr. Seibert checked Mapquest on his cell phone for the return route to Covington and began driving, and she was looking through her papers and iPad. The plaintiff was not paying attention to Mr. Siebert's driving, and she did not notice the "T" intersection or whether Mr. Siebert had stopped at the stop sign at the intersection. However, according to the plaintiff, as Mr. Siebert was driving the Tahoe through the intersection, she looked up, saw the truck coming towards them, and said or yelled, "Stop." Mr. Seibert complied, stopping the Tahoe in the intersection in Mr. Fairburn's lane of travel; it was then struck by Mr. Fairburn's truck. As a result of the collision, Mr. Siebert died, and the plaintiff was injured.
Louisiana State Police Trooper Russell Sibley was dispatched to the scene of the accident and investigated the accident scene. Trooper Sibley spoke to both Mr. Fairburn and the plaintiff. Trooper Sibley also interviewed a third-party witness to the accident, who reported that he was approximately 100 yards from the accident, that the truck "did not seem to be speeding," and that the Tahoe "pulled out heading west and was struck by the truck." Trooper Sibley ultimately concluded that Mr. Seibert caused the accident because he did not yield the right of way at the stop sign to Mr. Fairburn. Mr. Fairburn was administered a breathalyzer test, and the test indicated a 0% blood alcohol reading. Mr. Fairburn was neither issued any citations by the police nor disciplined by his employer as a result of the accident.
On December 28, 2017, the plaintiff commenced this action against the Fairburn defendants, seeking damages for the personal injuries she sustained as a result of the accident. The Fairburn defendants filed an answer generally denying liability and asserting various affirmative defenses. Thereafter, the Fairburn defendants filed a motion for summary judgment, seeking the dismissal of the plaintiff's claims against them on the basis that the plaintiff had no evidence to support her claim that the Fairburn defendants were negligent or otherwise liable for her damages. Essentially, the Fairburn defendants argued that the undisputed material facts established that the negligence of Mr. Seibert was the sole cause of the accident between the Tahoe in which the plaintiff was riding and Mr. Fairburn's truck. The plaintiff opposed the motion, essentially contending that there was a genuine issue of material fact as to the comparative fault of Mr. Fairburn. The plaintiff claimed that Mr. Fairburn's testimony established that Mr. Fairburn had sufficient time and distance after he "realized that the Tahoe ‘wasn't stopping" ’ to "reduce [his] speed, come to a more controlled stop, avoid the impact entirely or at least reduce [his] speed to minimize" the accident. The plaintiff also claimed that there was a genuine issue of material fact as to Mr. Fairburn's speed—Mr. Fairburn testified in his deposition that he was traveling at or under the speed limit, which was 55 miles-per-hour, when he observed the Tahoe, whereas he reported his estimated speed to Trooper Sibley at 45 miles-per-hour.
Also named as a defendant in this suit was Capital Specialty Insurance Corporation, the plaintiff's employer's liability insurer, which allegedly provided uninsured/underinsured motorist coverage for the plaintiff. There are no issues on appeal concerning this insurer or the plaintiff's claims against that insurer.
After a contradictory hearing held on November 8, 2021, the trial court granted the Fairburn defendants’ motion for summary judgment. In doing so, the trial court determined that there was no genuine issue of material fact that Mr. Fairburn was driving his truck on the favored street; that the plaintiff's host driver, Mr. Seibert, violated the law by failing to stop at the stop sign; and that Mr. Fairburn was not exceeding the speed limit or violating any other applicable traffic law. Thus, the trial court concluded that based on the undisputed material facts, the plaintiff failed to establish that Mr. Fairburn had any fault in causing the accident.
The trial court signed a judgment granting the Fairburn defendants’ motion for summary judgment and dismissing the plaintiff's claims against the Fairburn defendants on December 15, 2021. From this judgment, the plaintiff has appealed.
LAW AND DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553 (La. App. 1st Cir. 7/18/18), 255 So.3d 16, 21, writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194. After an opportunity for adequate discovery, a motion for summary judgment shall be granted 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. La. C.C.P. art. 966(A)(3). On a motion for summary judgment, the burden of proof is on the party filing the motion. La. C.C.P. art. 966(D)(1).
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 need only point out to the court, through its supporting documents, the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1) ; see also La. C.C.P. art. 966, Comments-2015, Comment (j). Once the motion for summary judgment has been properly supported by the moving party, i.e. , the mover has established the material facts through its supporting documents and the mover has made a prima facie showing that the motion should be granted, the burden then shifts to the non-moving party to produce factual support, through the use of supporting documents in opposition to the motion, of the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). If the non-moving party fails to produce factual support in its opposition sufficient to satisfy this burden, the motion should be granted. See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So. 2d 37, 40. Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Georgia-Pacific Consumer Operations, LLC, 255 So.3d at 22. A "genuine" issue is a triable issue, which means an issue on which reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Kasem v. State Farm Fire & Cas. Co., 2016-0217 (La. App. 1st Cir. 2/10/17), 212 So.3d 6, 13.
In this case, the plaintiff's claims against the defendants are based upon Mr. Fairburn's alleged negligence or his comparative fault in causing the accident. See La. C.C. arts. 2315, 2316, and 2323. The defendants, however, contend that Mr. Fairburn was free from fault and that the negligence or fault of the plaintiff's host driver, Mr. Seibert, was the sole cause of the accident. Ordinarily, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence generally are not appropriate for summary judgment. Douglas v. Lemon, 2011-0084 (La. App. 1st Cir. 6/10/11) ( unpublished ), 2011 WL 3447418, *3 ; Shelton v. Zurich American Ins. Co., 2008-1306 (La. App. 1st Cir. 2/13/09) ( unpublished ), 2009 WL 390417, *2. This principle extends to a question of comparative fault as well; however, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment. Douglas, 2011 WL 3447418 at *3 ; Shelton, 2009 WL 390417 at *2.
As previously noted, the underlying material facts of this case are not in dispute. With regard to the accident, the documents offered by the Fairburn defendants in support of its motion for summary judgment establish that: Mr. Fairburn was driving the truck westbound on La. 440 towards its intersection with La. 450; there are no traffic control signs on La. 440 at its intersection with La. 450; the plaintiff was a guest passenger in the Tahoe driven by Mr. Siebert; Mr. Seibert was driving on La. 450 towards its intersection with La. 440; and La. 450 has a stop sign at its intersection with La. 440.
With respect to stop signs, La. R.S. 32:123 provides, in pertinent part:
A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.
Thus, based on this statute and the undisputed material facts, Mr. Fairburn, while travelling on La. 440, had the preferential right of way at the intersection with La. 450. Additionally, Mr. Seibert, while traveling on La. 450, was mandated to stop at its intersection with La. 440 before entering it, and after stopping, to yield the right-of-way to all vehicles on La. 440.
The documents offered by the Fairburn defendants further establish that Mr. Fairburn observed the Tahoe slow down as it approached the stop sign; however, it did not completely stop or yield the right-of-way, and instead, it entered the intersection into Mr. Fairburn's lane of travel and came to a stop. When Mr. Fairburn realized the Tahoe was not stopping or yielding at the intersection and entered into his lane of travel, he applied maximum pressure to his brakes but was unable to avoid a collision. At the time of the accident, Mr. Fairburn was not traveling over the speed limit, under the influence of alcohol, or otherwise in violation of any traffic law.
Although the plaintiff argued that Mr. Fairburn could have avoided the collision or mitigated the result of the accident, she failed to provide factual support for this contention in opposition to the motion for summary judgment. Additionally, while the plaintiff argued that there was an issue of fact as to the speed at which Mr. Fairburn was driving, i.e. whether he was driving at the speed limit of 55 miles per hour or below (as testified to in his deposition) or 45 miles per hour (as reported to Trooper Sibley), this is not a material issue of fact because the documents undisputedly established that Mr. Fairburn was not exceeding the speed limit or violating any traffic laws, that Mr. Fairburn did not anticipate that Mr. Seibert would fail to stop or yield the right of way at the stop sign and would enter Mr. Fairburn's lane of travel, and that Mr. Fairburn, despite applying maximum pressure to the brakes, was unable to avoid the collision.
Based on our de novo review of the motion for summary judgment and the documents offered in support of and in opposition to the motion, we find there is no genuine issue of material fact and that reasonable minds could only reach one conclusion—that the conduct of the plaintiff's driver, Mr. Seibert, was the cause of the accident and that Mr. Fairburn was not negligent. Accordingly, we find the trial court properly granted the Fairburn defendants’ motion for summary judgment.
CONCLUSION
For all of the above and foregoing reasons, the December 15, 2021 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Dorothy Banish Madden.