Ruby Gatlin Bickham, Wilbur Hayes Bickham, James Hayes Bickham, Individually and on Behalf of his Minor Children, James Hayes Bickham, II and Alyssa Dawn Bickham, and Misty Byrd Bickham v. Charles Regan Toon, Progressive Security Insurance Company, Teresa Marie Minarik, and ABC Insurance Company

NOT DESIGNATED FOR PUBLICATION

C Ay STATE OF LOUISIANA
wy eC I Ly chy COURT OF APPEAL
FIRST CIRCUIT
W\ NUMBER 2019 CA 0548

RUBY GATLIN BICKHAM AND WILBUR HAYES BICKHAM
VERSUS

CHARLES REGAN TOON AND PROGRESSIVE SECURITY INSURANCE
COMPANY

Judgment Rendered: ET 1 9 2020
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of Washington
State of Louisiana

Docket Number 106,514

Honorable August J. Hand, Judge Presiding

RHEE KKK KEK

Rene Paul Frederick Counsel for Plaintiffs/A ppellees,
Jeanne M. Mauldin Ruby Gatlin Bickham and Wilbur
Covington, LA Hayes Bickham

and
William D, Cass
Mandeville, LA
Charles J. Foret Counsel for Defendants/Appellants,
Michael P. Corry, Sr. Charles Regan Toon and
Kathryn T. Love Progressive Gulf Insurance Company
Brandon M. Verret
Lafayette, LA

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BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, THERIOT, AND
HOLDRIDGE, JJ.

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Wi igdy. dpe Acs suck fr atime raaqerd L Beef fncly wd
Bb 4.fhs kdb tnd KG

WHIPPLE, C.J.

In this appeal, the defendant driver, who crossed the centerline of the road
on which he was traveling and entered the lane of oncoming traffic, challenges the
trial court’s judgment granting the plaintiffs’ motion for summary judgment and
finding that defendant was solely at fault in the resulting collision that led to the
death of plaintiffs’ son and further finding that plaintiffs were entitled to
exemplary damages pursuant to LSA-C.C. art 2315.4. For the following reasons,

we affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of Dec aber 8, 2013, shortly before 6:00 a.m.,

Jonathan “Clint” Bickham was traveling uthboun

n Louisiana Highway 25 in
Washington Parish, Louisiana on his way to work, and defendant Charles Regan

Toon was traveling northbound on Louisiana Highway 25 , after a night drinking at

a restaurant and two bars. head-on collision occurred between the two vehicles

driven by Bickham and Toon when Toon crossed the centerline and entered
alcohol level was 0.14 after the ‘accident, was ultimately convicted of operating a
vehicle while intoxicated and negligent homicide.

Clint Bickham’s parents, Ruby Gatlin Bickham and Wilbur Hayes
Bickham,! filed suit, asserting survival and wrongful death actions and naming

various defendants, including Toon and Progressive Gulf Insurance Company

'Clint Bickham’s brother, James Hayes Bickham, individually and on behalf of James’s
two minor children, James Hayes Bickham, II and Alyssa Dawn Bickham; and Misty Byrd
Bickham, Clint Bickham’s sister-in-law, were also named as plaintiffs, but the claims of these
plaintiffs were later dismissed by consent judgment.

2

(“Progressive”),? Toon’s automobile liability insurer.

The Bickhams filed a motion for partial summary judgment against Toon
and Progressive, seeking a determination that the accident leading to their son’s
death was caused solely by the fault of Toon and that they were entitled to
exemplary damages as a result of Toon’s intoxication, which caused the accident.
Following a hearing, the trial court granted the motion, finding that Toon was
solely at fault in causing the accident and that the Bickhams are entitled to

exemplary damages pursuant to LSA-C.C. art. A, with the only issues

remaining for trial being the amount of da _which the Bickhams are
entitled for their survival and wrongful death claims, and for exemplary damages.
The trial court further designated the partial ‘Summary judgment as to the issues of
liability and exemplary damages as a final judgment pursuant to LSA-C.CP. art.

1915(B)3

From this judgment, Toon and Pr ssive appeal, contending that the trial

court erred in: (1) finding that Toon wa Solely at fault for the accident, and (2)
finding that the Bickhams are entitled to exemplary damages pursuant to LSA-C.C.
art. 2315.4.

SUMMARY JUDGMENT

A motion for summ judgment is a procedural device used to avoid a full-

scale trial when there is no genuine issue of material fact. Jones v. Anderson,

2016-1361 (La. App. 1 Cir. 6/29/17), 224 So. 3d 413, 417. After an opportunity

for adequate discovery, a motion for summary judgment shall be granted if the

*Progressive Gulf Insurance Company was improperly named in plaintiffs’ original
petition as Progressive Security Insurance Company.

*Contrast this court’s plurality opinion in Advanced Leveling & Concrete Solutions v.
Lathan Company, Inc., 2017-1250 (La. App. 1" Cir. 12/20/18), 268 So. 3d 1044, 1046 (en banc),
& 1047 (Holdridge, J., concurring), wherein this court dismissed the appeal of the judgment,
which contained, among other provisions, an indefinite award of attorney’s fees and lacked a

designation by the court as a partial final judgment subject to immediate appeal pursuant to LSA-
C.C.P. art. 1915(B).

motion, memorandum, and supporting documents show there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of law.
LSA-C.C.P, art. 966(A)(3). The only documents that may be filed in support of or
in opposition to the motion are pleadings, memoranda, affidavits, depositions,
answers to interrogatories, certified medical records, written stipulations, and
admissions.* LSA-C.C.P. art. 966(A)(4).

The burden of proof rests on the mover, who must show that there is no
genuine issue of material fact and that the mover is entitled to judgment as a matter
of law. LSA-C.C.P. art. 966(A)(3) & (D)\(1). - Only when the mover makes this

showing does the burden shift to the

Opposing party to present evidence

demonstrating a material factual issue remains. Action Oilfield Services, Inc. v.

p. 1* Cir, 4/17/19), 276 So. 3d

Energy Management Company, 20 18-1 146 (La:
538, 541-542.
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 requir 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 then shifts to the non-moving 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. LSA-

C.C.P. art. 966(D)(1); Action Oilfield Services, Inc., 276 So. 3d at 542.

Appellate courts review evidence de novo under the same criteria that
govern the trial court’s determination of whether summary judgment is

appropriate. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-

‘Nevertheless, the court shall consider any documents filed in support of or in opposition
to the motion for summary judgment to which no objection is made. LSA-C.C.P. art. 966(D)(2).

4

0895 (La. App. 1* Cir. 12/21/17), 240 So. 3d 932, 936, writ denied, 2018-0145
(La. 3/23/18), 238 So. 2d 963. 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. Crosstex Energy Services, LP, 240 So. 3d

at 936. Because it is the applicable substantive law that determines materiality,
whether a particular issue in dispute is material can be seen only in light of the
substantive law applicable to the case. Jones, 224 So. 3d at 417.

DISCUSSION

Fault of Charles Toon
(Assignment of Erro

In their first assignment of error; Toon and Progressive aver that the trial

court erred in finding that Toon was s y at fault in causing the accident,
considering the evidence that Clint Bickham, the decedent, had a level of
amphetamine in his system, which “may have caused hinito make a late avoidance
maneuver.” Thus, they contend that the trial court erred in finding on summary
judgment that Clint Bickham bore no fault in causing the accident.

In determining the respective burdens of proof on summary judgment, we
must first ascertain who would bear the burden of proof at trial. LSA-C.C.P. art.
966. In a negligence claim, the plaintiff generally bears the burden of proving the
defendant’s negligence. However, in an accident such as this, upon establishing
that the accident occurred when the defendant driver left his lane of travel and
entered the opposing lane, the plaintiff is aided by a presumption of negligence.
Specifically, a driver who leaves his lane of travel and goes into the opposite lane
of traffic is presumed to be negligent, and that presumption may be overcome only
by clear and convincing evidence that his sudden presence in the opposing lane of

traffic was due to unexpected and unforeseen circumstances over which he had no

control. Brannon v. Shelter Mutual Insurance Company, 507 So. 2d 194, 196 (La.

1987); Gatlin v. Kleinheitz, 2009-0828 (La. App. 1° Cir. 12/23/09), 34 So. 3d 872,
875, writ denied, 2010-0084 (La. 2/26/10), 28 So. 3d 280. Once the presumption
of negligence attaches, the driver who crosses into the opposite lane of travel has
the heavy burden of exhibiting that he was not guilty of any dereliction, however
slight, which may have had a causal connection with the accident. King v.
Louviere, 543 So. 2d 1327, 1331 (La. 1989); Gatlin, 34 So. 3d at 875.

Thus, as the parties moving for partial summary judgment, the Bickhams

bore the initial burden of establishing that Toon had érossed the centerline into

Clint Bickham’s lane of travel.
In support of their motion, the Bickhams offered the deposition testimony of
Toon and Progressive’s accident reconstruction expert, Andrew McPhate.

McPhate, who is a mechanical engineer with expertise in the areas of vehicle

dynamics and vehicular crash analysis, testifi that upon examining the scene of

the accident, he observed gouge marks n the. ou bound lane, indicating the point
of impact. According to McPhate, at the time of impact, there was “no doubt” that
Toon’s vehicle was “past the center line of Bickham’s lane,” having encroached so
far into Clint Bickham’s lane of travel that it was “past the middle of Bickham’s

%

lane. Because the Bickhams established that the accident occurred when Toon
left his lane of travel and entered Clint Bickham’s lane of travel, the legal
presumption of negligence attached, and Toon is presumed to have been negligent
in causing the accident.

Accordingly, the burden on summary judgment shifted to Toon and
Progressive to produce factual support sufficient to establish the existence of a
genuine issue of material fact as to whether his presence in Clint Bickham’s lane
was due to unexpected and unforeseen circumstances over which he had no contro]

(so as to rebut the presumption of his own fault). However, Toon and Progressive

offered no evidence to demonstrate a genuine issue of material fact to rebut the

presumption of Toon’s own fault in causing the accident. Toon testified that he
has no memory of the accident. According to Toon, the evening before the
accident, he picked up Teresa Minarik for a date. They had dinner at a restaurant
where he recalled consuming two alcoholic beverages. They then visited two bars,
and he continued to consume alcoholic beverages. The accident occurred after
they left the second bar, but he had no recollection of it and offered no testimony
or explanation of the events immediately preceding the accident.

Similarly, while Minarik also testified that she and Toon had visited a

restaurant and two bars on the evening before: the accident and into the early

nt and that Toon consumed alcoholic

morning hours of the day of the accid

beverages during that time, she could not:recall the events leading up to the

accident.° Moreover, Toon and Progressive did. \ot produce any witnesses to the

accident to in any way create a genuine issue o “material fact as to Toon’s
negligence or to suggest that Toon was not guilty of any dereliction, however

slight, in leaving his lane of travel.

Instead, a de novo review 0 : ecord reveals that, in support of their
motion, the Bickhams established. that Toon crossed the centerline into Clint
Bickham’s lane of travel, thus triggering the legal presumption that Toon was
negligent. Toon and Progressive then failed to provide evidence to show a genuine
issue of material fact remains to rebut the presumption of Toon’s fault in causing
the accident, having failed to produce any evidence of any unexpected and
unforeseen circumstances over which he had no control. See LSA-C.C.P. art,
966(D)(1).

Nonetheless, Toon and Progressive argue on appeal that even if they failed

to make the necessary showing of a genuine issue of material fact to rebut the

°Toon’s deposition was offered in support of the motion for summary judgment.

6Minarik’s deposition was also offered in support of the motion for summary judgment.

7

presumption of Toon’s negligence, such a finding would not preclude
apportionment of fault to Clint Bickham and that the trial court erred in failing to
do so. As noted by Toon and Progressive, a favored motorist can still be assessed

with comparative fault if his substandard conduct contributed to the cause of the

accident. See Mack v. Wiley, 2007-2344 (La. App. 1* Cir. 5/2/08), 991 So. 2d
479, 487-488, writ denied, 2008-1181 (La. 9/19/08), 992 So. 2d 932. Arguing that
Clint Bickham could have been impaired at the time of the accident and that his
impairment “may have caused him to make a late evasive maneuver,” such that

Clint Bickham “could have possibly” avoided the accident, Toon and Progressive

contend that the trial court erred in finding Toon one hundred percent at fault in

causing the accident. (Emphasis added).
Toon and Progressive would bear the burden of proof at trial to establish

comparative fault by a _Preponderance of evidence. ‘Blake v. City of Port Allen,

2014-0528 (La. App: qs Cir. 11/20/14), 167 So. 3d. 781, 790. Thus, the burden

would be on Toon” and _ Progressive to” produce factual support sufficient to

establish the existétice 0 of 4 genuine iss _of material fact as to Clint Bickham’s
comparative fault or that the Bickhams are not entitled to judgment as a matter of
law. LSA-C.CP. art. 966(D)(1).

In McPhate’s deposition, which, as mentioned above, was offered by the
Bickhams in support of their motion, McPhate stated that there was no evidence
that Clint Bickham was doing anything other than operating his vehicle in his own
lane of travel at the time of the accident. Moreover, McPhate stated that he found
evidence at the accident site that Clint Bickham tried to avoid the accident.
Specifically, gouge marks at the site demonstrated that Bickham was trying to tum
his vehicle to the right, which McPhate testified was the proper maneuver to try to

avoid the accident. Moreover, while Clint Bickham’s efforts were not enough to

avoid the accident, McPhate further testified that there was no way to determine

how far apart the two vehicles were at the time Toon crossed the centerline or
whether Toon’s movement in crossing the centerline was a sudden or gradual
move. By this testimony, the Bickhams demonstrated an absence of factual
support for a finding that Clint Bickham’s actions somehow contributed to or were
a cause of the accident, thus shifting the burden to Toon and Progressive to
produce factual support sufficient to establish the existence of a genuine issue of
material fact or that the Bickhams are not entitled to judgment finding Toon one
hundred percent at fault as a matter of law. LSA-C.CP. art. 966(D)(1).

However, because Toon and Progressive offered no evidence, but rather,
only speculation as to any alleged fault of Clint Bickham in causing the accident,

we conclude, as did the trial court, that they failed to establish a: genuine issue of

material fact precluding summar Judgment. The evidence offered by Toon and
Progressive in opposition to the motion for partial summary judgment included the
deposition of Dr. Allison Stock, a toxicol og t and epidemiologist. According to
Dr. Stock, the Louisiana State Police (“ SP”) Crime Lab toxicology report and
additional confirmation testing on blood samples taken from Clint Bickham’s heart
indicated that Clint Bickham had 134 nanograms per milliliter of amphetamine in
his system,” Dr. Stock explained that prescription forms of amphetamine such as
Adderall and Dexedrine are used to treat attention deficit/hyperactivity disorder,
although it can also be obtained illegally. Dr. Stock further testified that the
National Highway Transportation Safety Administration has established ranges for
various drugs of what it considers to be therapeutic versus impaired levels and that

Clint Bickham’s level of 134 nanograms per milliliter of amphetamine was “above

that therapeutic range.”

’Clint Bickham also had less than five nanograms per milliliter of hydrocodone in his
system, which was a level below the limit of detection for the type of analysis performed and
which Dr. Stock acknowledged was a “barely detectable amount.” At the time of the accident,
Clint Bickham had a valid prescription for cough medicine, which contained hydrocodone,
chlorpheniramine, and pseudoephedrine.

However, Dr. Stock could not testify that the level of amphetamine in Clint
Bickham’s blood more probably than not caused any impairment. Nor could Dr.
Stock testify that his level of amphetamine was a cause of the accident. Rather,
Dr. Stock explained that Clint Bickham’s level of amphetamine “has been shown
in the literature to be associated with impairment” and could only testify as to
“what [Clint] Bickham’s behavior might have been based on his drug level.”
(Emphasis added).

Toon and Progressive also offered the affidavit of Dr. William George, a
pharmacologist and toxicologist. Upon reviewing the Washington Parish
Coroner’s Autopsy Report and the LSP Crime Lab Toxicology Report, Dr. George
attested that the level of amphetamine in Cli it Bickham’s blood at the time of the
accident “has been demonstrated in clinical and epidemiological studies to cause
impairment.” Dr. George further attested only that Clint Bickham’s blood level of

amphetamine “could have contributed to the causation of the motor vehicle

accident” at issue. (Emphasis

Contending that they met their |
to Clint Bickham’s fault in the accident, Toon and Progressive point to McPhate’s
deposition testimony wherein he stated that, with regard to Clint Bickham’s
avoidance maneuver, Clint Bickham “didn’t take any action until relatively late.”
However, as stated above, McPhate could not offer any opinion as to how close the
two vehicles were when Toon crossed the centerline into Clint Bickham’s lane of
travel or as to whether Toon’s movement into the opposing lane was a sudden or a
gradual move. Moreover, upon further questioning, McPhate explained that when
he said “late,” he was not indicating that Clint Bickham was taking too long to
make the maneuver. Rather, he termed it a “late avoidance maneuver” because

Clint Bickham had not moved very far at the time of impact. McPhate candidly

10

acknowledged that he could not testify as to Clint Bickham’s reaction time or
whether Clint Bickham took too long to make the avoidance maneuver.
Mere conclusory allegations, improbable inferences, and unsupported

speculation will not support a finding of a genuine issue of material fact. Ritchey

y. State Farm Mutual Automotive Insurance Company, 2017-0233 (La. App. 1*

Cir. 9/15/17), 228 So. 3d 272, 279-280. See also Salvador v. Main Street Family

Pharmacy, L.L.C., 2017-1757 (La. App. 1" Cir. 6/4/18), 251 So. 3d 1107, 1112,

and Guillory v. The Chimes, 2017-0479 (La. App. 1% Cir. 12/21/17), 240 So. 3d

193, 197. In opposition to the Bickhams’ motion for partial summary judgment on

liability, Toon and Progressive offered I g more than unsupported speculation

that Clint Bickham’s evasive maneuver, which their expert conceded was the

dilatory, thus constituting substandard conduct, or that such alleged substandard

conduct contributed to the cause of the accident, These contentions are simply
insufficient to create a genuine issue of material fact regarding Clint Bickham’s
alleged comparative fault,

Accordingly, because the Bickhams demonstrated an absence of factual
support for Toon and Progressive’s claim or defense that Clint Bickham was
comparatively at fault, on de novo review, we find no error in the trial court
granting summary judgment and finding Toon solely at fault in causing the

accident.

Exemplary Damages
(Assignment of Error No. 2)

Pursuant to LSA-C.C. art. 2315.4, a plaintiff may be awarded exemplary
damages upon proving that the injuries that form the basis of the action were
caused “by a wanton or reckless disregard for the rights and safety of others by a

defendant whose intoxication while operating a motor vehicle was a cause in fact

I]

of the resulting injuries.” Thus, in order to establish a claim for exemplary
damages under LSA-C.C. art. 2315.4, a plaintiff must establish the following
elements: (1) the defendant was intoxicated or had consumed a sufficient quantity
of intoxicants to make him lose normal control of his mental and physical faculties;
(2) the intoxication was a cause-in-fact of the resulting injuries; and (3) the injuries
were caused by the defendant’s wanton or reckless disregard for the rights and

safety of others. Stephenson v. Bryce W. Hotard Sunbelt Rentals, Inc., 2019-0478

(La. 5/20/19), 271 So. 3d 190, 192.

In their second assignment of error, Toon and Progressive contend that the
trial court erred in granting summary judgment on the issue of the Bickhams’
entitlement to exemplary damages where there was conflicting evidence of Toon’s
intoxication, where there was no evidence that Toon demonstrated a wanton and
reckless disregard for the rights and safety. f Clint Bickham, and where Toon’s

alleged intoxication was not the only le L.cause of the subject accident.

As to Toon’s intoxication, the 3ickhams offered Toon’s deposition
testimony wherein he admitted that he had been drinking throughout the evening
before and the night of the accident, having consumed numerous “crown and coke”
mixed drinks. ‘Additionally, Toon admitted that his blood alcohol level after the
accident was 0.14 and, thus, that he was intoxicated under the laws of the state of
Louisiana.? He acknowledged that he was convicted of operating a vehicle while
intoxicated, and when asked if he disagreed with the jury’s conclusion that he was
guilty of this offense, Toon responded that he did not disagree. Indeed, Toon and

Progressive’s own toxicologist, Dr. Stock, testified that a blood alcohol level

between 0.12 and 0.16, which Dr. Stock estimated Toon’s blood alcohol level to be

While a litigant in a civil proceeding cannot avail himself of the statutory presumption of
intoxication that is allowed in a criminal proceeding and test results are not conclusive evidence,
the evidence does have probative value in proving entitlement to exemplary damages. Brumfield
yv. Guilmino, 93-0366 (La. App. 1* Cir. 3/11/94), 633 So. 2d 903, 910 n.3, writ denied, 94-0806
(La. 5/6/94), 637 So. 2d 1056.

12

at the time of the accident, can cause changes in an individual’s driving, such as
lane departure and slow reaction times, and can change behaviors such as
executive function and thinking.’

Moreover, while Toon claimed that he did not “feel intoxicated” and
Minarik testified that she had not noticed Toon slurring his speech or having
trouble keeping his balance while they were out together, this testimony is not
sufficient to create a genuine issue of material fact to defeat summary judgment.
Toon’s claim that he did not “feel intoxicated” is not.determinative of whether he
actually was intoxicated, and is, at best, merely a conclusory statement that does

not set forth any specific facts showing that there is a genuine issue for trial. See

LSA-C.C.P. art. 967(B) (“When a moti for summary judgment is made and

supported as provided above, an adverse party y not rest on the mere allegations
or denials of his pleading, but his fésponsé bee must set forth specific facts showing
that there is a genuine issue for trial”), Furthermore, Toon could not contest the
evidence of his intoxication and cannot create an issue of fact with this self-serving

statement where he admittedly had “f

ry, very, very little” memory of all of the
events that night. Similarly, Minarik’s testimony that she had not noticed Toon
slurring his speech or having trouble with his balance while out that night is not
material to Toon’s intoxication at the time of the accident, a period of time of
which Minarik admitted in her deposition she had no recollection. Minarik offered
no testimony as to Toon’s intoxication level after leaving the second bar, which
she estimated to be about a twenty to twenty-five minute ride from the accident
site. Accordingly, neither statement is sufficient to create a genuine issue of

material fact as to Toon’s intoxication.

°Dr. Stock explained that lane departures refers to “weaving” or “getting close to the edge
and back and forth,” not to crossing the center median.

13

As to the second element, that Toon’s intoxication was a cause-in-fact of
Clint Bickham’s death, Toon and Progressive challenge this finding, contending
that Toon’s intoxication was not “the only legal cause” of the accident, again
arguing that a genuine issue of material fact exists as to whether Clint Bickham
may have reacted inappropriately when Toon entered Bickham’s lane of travel and,
thus, may have been a cause of the accident that resulted in his death. At the
outset, we note that Toon’s intoxication need only be a cause-in-fact of the

accident, not the only legal cause. LSA-C.C. art. 2315.4; Blackshear v. Allstate

Insurance Company, 94-765 (La. App. 34 Cir. 12/7/94), 647 So. 2d 589, 595.

More importantly, having rejected Toon rogressive’s argument that a genuine
issue of material fact exists as to whether Clint-Bickham may have reacted

inappropriately when Toon entered Bickham’s lane of travel in our discussion of

the first assignment of error, we likewise fini merit to this argument here.

As to the remaining element of the Bickhams’ claim for exemplary damages,

wanton or reckless disregard for the rights nd safety of others, a party typically

must establish a level of conduct somewher between an intent to do wrong and
mere negligence. A conscious indifference to consequences must be shown. Thus,
if the actor knows, or should know, that his actions will cause harm, and proceeds
anyway, then there is'a coriscious indifference to consequences, which constitutes a

wanton or reckless disregard for the rights and safety of others. See Bourgeois v.

State Farm Mutual Automobile Insurance Company, 562 So. 2d 1177, 1181-1182
(La. App. 4" Cir.), writ denied, 567 So. 2d 611 (La. 1990). Toon and Progressive
assert on appeal that that there was no evidence of wanton or reckless disregard of
Clint Bickham’s safety sufficient to satisfy this element.

To the contrary, the evidence demonstrates that Toon spent the night
drinking numerous alcoholic beverages at several locations. Nonetheless, Toon

drove himself and Minarik from location to location to consume more alcoholic

14

beverages and then got behind the wheel in the early morning hours after drinking
for hours to drive them home. As noted by the trial court, Toon certainly should
have known that these actions could have resulted in a tragic accident. See Leary

v. State Farm Mutual Automobile Ins. Co., 2007-1184 (La. App. 3" Cir. 3/5/08),

978 So. 2d 1094, 1102, writ denied, 2008-0727 (La. 5/30/08), 983 So. 2d 900
(where an intoxicated driver with a blood alcohol level of 0.104 crossed the
centerline and veered into the opposing lane of travel, killing the other driver, the

driver’s “actions in driving after consuming enough alcohol to bring his blood

[alcohol] level to at least 0.104 were reprehensible, and his irresponsible conduct
led to actions that could clearly have been foreseen”), “Toon’s actions clearly
displayed a conscious indifference to the consequences that were likely to, and

unfortunately did, occur. Accordingly, we likewise find no merit to Toon and

Progressive’s contention that the trial court erred in finding that the Bickhams had

established that Toon exhibited watt : eckléss: disregard for the safety of
others, thus entitling them to exemplary. damages pursuant to LSA-C.C. art.
2315.4, .

CONCLUSION

For the above and foregoing reasons, the trial court’s November 20, 2018
judgment granting the Bickhams? motion for partial summary judgment, finding
Charles Regan Toon one hundred percent at fault in causing the accident and
finding that the Bickhams are entitled to exemplary damages pursuant to LSA-C.C.
art. 2315.4, is affirmed. Costs of this appeal are assessed against Charles Regan

Toon and Progressive Gulf Insurance Company.

AFFIRMED.

15

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0548
RUBY GATLIN BICKHAM AND WILBUR HAYES BICKHAM
VERSUS

CHARLES REGAN TOON AND PROGRESSIVE SECURITY
INSURANCE COMPANY

GUIDRY, J., dissents with reasons.
GUIDRY, J., dissenting.

I respectfully disagree with the majority opinion. La. C.C.P. art. 966
provides that 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. After
reviewing the record in this matter, I would conclude that summary judgment is
inappropriate.

On the issue of fault, I would not preclude the defendants, Toon and

Progressive, from establishing fault on Bickham’s part at a trial on the merits. See

Mack v. Wiley, 07-2344, p. 10 (La. App. Ist Cir. 5/2/08), 991 So. 2d 479, 487, writ
denied, 08-1181 (La. 9/19/08), 992 So. 2d 932 (this court has held that a favored
motorist can still be assessed with comparative fault if his substandard conduct
contributed to the cause of the accident). I agree with the majority that Toon was
at fault in causing the accident by crossing the center line, based on the
presumption that a driver leaving his own lane of traffic and striking another

vehicle is negligent. However, I also find that Toon and Progressive came forth

with factual support to create a genuine issue regarding Bickham’s fault in
contributing to the accident. See La. C.C.P. art. 966 (D)(1).

On the record before us, notably, Dr. George testified that the level of
amphetamine in Bickham’s blood “could have contributed to the causation.”
McPhate testified that there was no way to determine how far apart the two
vehicles were at the time Toon crossed the centerline or whether Toon’s movement
in crossing the centerline was a sudden or gradual move. McPhate also stated that
he could not testify as to Bickham’s reaction time or if Bickham took too long to
make an “avoidance maneuver.” Indeed, the testimonies of Dr. George and
McPhate establish that genuine issues of material fact remain.

Whether Toon can meet his burden of proof at trial is not the issue here.
Instead, at summary judgment, Toon’s burden is only to establish that there are
genuine issues of fact as to whether Bickham could have been at fault in causing
the accident, even if only by one percent.

In a case of summary judgment, the opposing party does not have a burden
of proof. The opposing party bears a burden of production under which he must
merely demonstrate that a genuine issue of material fact precludes a judgment and

requires a trial on the merits. Barber v. Louisiana Municipal Risk Management

Agency Group Self-Insured Fund, 17-1005, pp. 5-6 (La. App. 3d Cir. 4/18/18), 244

So. 3d 56, 60-61. As it concerns fault, Toon and Progressive have done so.
Accordingly, I would reverse the summary judgment.

With regard to exemplary damages, while Toon acknowledged that his blood
alcohol level after the accident was 0.14 and, thus, that he was intoxicated under
the laws of the state of Louisiana, Toon nonetheless, while admittedly having very
little memory of all of the events that night, testified that he did not feel intoxicated
when he left the second bar, which was approximately a twenty to twenty-five-
minute drive from the location of the accident. Minarik testified that during the

2

night, she never noticed Toon slurring his speech or having trouble keeping his
balance.

A resolution on this issue requires the trier of fact to weigh conflicting
evidence as to the degree of Toon’s intoxication and determine whether Toon’s
and Minarik’s testimony is credible. However, on summary judgment, in
determining whether evidence creates a genuine issue of material fact, the trial
court must not weigh the evidence. The trial court must assume all affiants are

credible. Thompson v. Center for Pediatric and Adolescent Medicine, LLC, 17-

1088, p. 7 (La. App. 1 Cir. 3/15/18), 244 So. 3d 441, 447.

The law is well settled that the trial court cannot make credibility
determinations, evaluate testimony, or weigh conflicting evidence in making its
decision whether to grant or deny a motion for summary judgment. Fonseca v.

City of Air of Louisiana, LLC, 15-1848, p. 10, (La. App. Ist Cir. 6/3/16), 196 So.

3d 82, 89; Smith v. Our Lady of the Lake Hospital, 93-2512, p. 27 (La. 7/5/94),

639 So. 2d 730, 751. Given the conflicting evidence here as to the degree of
Toon’s intoxication and the credibility determination, I would accordingly reverse

the summary judgment on the issue of exemplary damages. This is an issue to be

resolved at trial.

AS

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0548
RUBY GATLIN BICKHAM AND WILBUR HAYES BICKHAM
VERSUS

CHARLES REGAN TOON AND PROGRESSIVE SECURITY
INSURANCE COMPANY

HOLDRIDGE, J., dissenting.

I respectfully dissent from the majority opinion for the reasons assigned by
Judge Guidry. I write separately to emphasize that the majority and the trial
court’s grant of the plaintiffs’ motion for partial summary judgment as to the sole
fault of the defendant Charles Regan Toon in the collision was in error due to the
fact that the plaintiffs failed to meet their burden of proof on the motion for
summary judgment.

In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury
shall be determined, regardless of whether the other person is a party to the action
or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity
by statute, or that the other person’s identity is unknown or not readily
ascertainable. La. C.C. art. 2323. If a person suffers injury, death, or loss as the
result partly of his own negligence and partly as a result of the fault or another
person or persons, the amount of damages recoverable shall be reduced in
proportion to the degree or percentage of negligence attributable to the person
suffering the injury, death, or loss. Id. In apportioning fault pursuant to La. C.C.
art. 2323, the fact finder shall consider both the nature of the conduct of each party

at fault and the extent of the causal relationship between the conduct and the

damages claimed. Schexnayder v. Bridges, 2015-0786 (La. App. 1 Cir. 2/26/16),
190 So.3d 764, 773.

At trial, the defendants would have the burden of proving that Jonathan
“Clint” Bickham was negligent in order for a percentage of fault to be allocated to
Bickham by the judge or jury. This would be accomplished by the defendants
presenting evidence proving the necessary elements of Bickham’s fault as required
by the duty-risk analysis. See Schexnayder v. Bridges, 2015-0786 (La. App. 1
Cir. 2/26/16), 190 So.3d 764, 773.

However, we are not reviewing this issue after trial. This is a motion for
summary judgment wherein the plaintiffs are seeking a partial summary judgment
to have the defendant Toon declared to be solely at fault in causing the accident
and to prevent the defendants from putting forth evidence of Bickham’s fault at the
trial. In this case, the burden of proof rests with the mover. La. C.C.P. art.
966(D)(1). The plaintiffs, as the movers for summary judgment, bear the entire
burden of proving both that Toon was one hundred percent (100%) at fault and that
no reasonable trier of fact (judge or jury) could find that Bickham was at fault in
causing any part of the accident, even if only by one percent (1%).

The allocation of fault is a factual finding. Ly v. State through
Department of Public Safety and Corrections, 633 So.2d 197, 203 (La. App. 1
Cir. 1993), writ denied, 93-3134 (La. 2/25/94), 634 So.2d 835. Where reasonable
minds could differ as to the comparative fault of the parties, summary judgment is
not appropriate.’ See Allen v. Integrated Health Services, Inc., 32,196 (La. App.

2 Cir. 9/2/99), 743 So.2d 804, 807. Even if a motorist is presumed to be negligent,

' An issue of comparative fault may be decided on a motion for summary judgment, provided
that the evidence leaves no relevant, genuine issues of fact, and reasonable minds must inevitably
conclude that the mover is entitled to judgment based on the facts before the court. Ritchey v.
State Farm Mutual Automotive Insurance Co., 2017-0233 (La. App. 1 Cir. 9/15/17), 228
So.3d 272, 275.

a favored motorist can still be assessed with comparative fault if his substandard
conduct contributed to the cause of the accident. See Derouen v. Jagers, 2013-
1675 (La. App. 1 Cir. 11/3/14), 2014 WL 5588743 at *4; Mack v. Wiley, 2007-
2344 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 487, writ denied, 2008-1181 (La.
9/19/08), 992 So.2d 932.
As stated by Judge Parro in Derouen, 2014 WL 5588743 at *4:
The assignment of the comparative fault of the parties, if any, 1S
not something that can be decided on a motion for summary
judgment, because it, along with the resolution of conflicting
testimony, requires the weighing of evidence and the evaluation of
witness credibility. Such issues are not appropriate for a motion for
summary judgment. See Smith v. Our Lady of the Lake Hospital, Inc.,
93-2512 (La.7/5/94), 639 So.2d 730, 751; see also Coleman v. Step

hens, 48,993 (La.App. 2nd Cir.6/4/14), 142 So.3d 363, 368, writ

denied, 14-1439 (La.10/3/14), —- So.3d ——; Hines v. Garrett, 876
So.2d at 765.

In this matter, without question Toon left his lane of travel and entered
Bickham’s lane, giving rise to a presumption of negligence. However, in the
defendants’ opposition to the motion for summary judgment, they raised factual
issues through the toxicologists’ deposition and affidavit as to Bickham’s
comparative fault in causing the collision. Both toxicology experts testified
regarding Bickham’s blood level of amphetamines at the time of the accident,
which was 134 nanograms per milliliter and above the therapeutic range. Both
toxicologists testified that this level of amphetamines could have contributed to the
accident by affecting Bickham’s ability to avoid the accident. The plaintiffs had
the burden of proving that Bickham’s use of amphetamines could not have
contributed in any possible way to causing the accident. As stated in Judge
Guidry’s dissent, the plaintiffs’ own expert could not testify if Bickham’s use of
amphetamines contributed to the accident. The plaintiffs’ expert stated that

Bickham didn’t take any action until “relatively late.” The majority opinion even

indicates that the plaintiffs failed to carry their burden of proving that no
reasonable judge or juror could absolve Bickham of any fault in causing the
accident when it states, “McPhate [the plaintiffs’ expert] candidly acknowledged
that he could not testify as to Clint Bickham’s reaction time or whether Clint
Bickham took too long to make the avoidance maneuver.” The plaintiffs not only
did not carry their burden of proof as movers, but would not be entitled to
summary judgment even if the burden of proof had shifted to the defendants
(which it did not in this case). There are genuine issues of material fact and the
plaintiffs are unable to meet their burden of proving that Bickham did not have any
fault in contributing to this accident or his injuries. As shown by the jurisprudence
of this state, this issue of the allocation of fault between the parties is not proper for
summary judgment unless the plaintiffs can meet the very high burden of proving
that Bickham was free from fault to such an extent that reasonable minds (or
reasonable jurors) could not differ. Since the plaintiffs have failed in carrying their
burden, the defendants are entitled to put on evidence at the trial on the merits as to
the plaintiff's fault and have the trier of fact quantify the parties’ percentage of
fault. Therefore, I would reverse the trial court’s grant of the plaintiffs’ motion for

summary judgment.