Debra Elee v. Lisa White, Dollar General Corporation, Travis Gardner and Werner Enterprises, Inc. of Nebraska

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CW 1633

DEBRA ELEE

VERSUS

LISA WHITE, DOLLAR GENERAL CORPORATION,
TRAVIS GARDNER, AND
WERNER ENTERPRISES, INC. OF NEBRASKA

Decision Rendered: JUL 2 4 2020
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VV APPEALED FROM THE
22nd JUDICIAL DISTRICT COURT
ST. TAMMANY PARISH, LOUISIANA
DOCKET NUMBER 2019- 11531, DIVISION - 1"

HONORABLE WILLIAM J. KNIGHT, JUDGE

Christian E. Banck Attorneys for Plaintiff/ Appellant
Douglas D. McGinity Debra Elee
Covington, Louisiana

Guy D. Perrier Attorneys for Defendant/ Appellee
Ralph J. Aucoin Jr. Werner Enterprises, Inc.
Kristopher M. Gould
New Orleans, Louisiana

BEFORE: McDONALD, THERIOT, and CHUTZ, 33.

McDONALD, J.

After an automobile accident, a motorist filed this tort action against a truck driver

and his employer, alleging the employer was vicariously liable for the truck driver's fault

and was directly and independently liable for its own negligence in hiring, supervising,

and/ or training the truck driver. The district court granted the employer' s motion for

partial summary judgment on the latter, dismissing the motorist's direct negligence claim

against the employer. The motorist appeals the adverse judgment. We convert the

appeal to an application for supervisory writs, deny the writ, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 14, 2018, Debra Elee was driving northbound on La. Hwy.

25 in St. Tammany Parish, Louisiana. As she approached a Dollar General Store fronting

on La. Hwy. 25, Ms. Elee alleges that, suddenly and without warning, she encountered

an 18 -wheeled, tractor -trailer truck blocking all lanes of traffic as it attempted to back

into the Dollar General Store parking lot. When Ms. Elee quickly braked to avoid hitting

the truck, she was rear- ended by the vehicle behind her.

In March of 2019, Ms. Elee filed a petition for damages against Travis Gardner,

the truck driver, and against Werner Enterprises, Inc., his employer and the owner of the

truck he was driving.' She alleged that Mr. Gardner was negligent, that Werner was

vicariously liable for his negligence, and that Werner was also directly negligent in failing

to have Mr. Gardner warn oncoming traffic, in entrusting the truck to him, and in hiring,

training, and/ or supervising him. In its answer, Werner admitted that it owned the truck

making the Dollar General delivery, that it was Mr. Gardner's employer, and that he was

in the course and scope of his employment when the accident occurred. Werner denied

the allegations that it was directly negligent.

After filing its answer, Werner filed a motion for partial summary judgment

seeking dismissal of Ms. Elee' s direct negligence claims against it. Werner argued that,

as a matter of law, Ms. Elee could not pursue both vicarious liability and direct

In her original petition, Ms. Elee named several defendants, including " Werner Enterprises, Inc. of
Nebraska" and its " At Fault Driver Employee."
In its answer, Werner properly identified itself as " Werner
Enterprises, Inc." In a supplemental and amending petition, Ms. Elee added Mr. Gardner as a defendant
and identified him as the alleged at -fault truck driver.
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negligence claims against Werner, when Werner had stipulated that Mr. Gardner was in

the course and scope of his employment when he committed the alleged negligence.

Ms. Elee opposed summary judgment dismissal of her direct negligence claim and filed a

motion to continue the summary judgment hearing.

After a hearing on August 16, 2019, the district court signed a judgment on

September 24, 2019, denying Ms. Elee' s motion to continue, granting Werner's motion

for partial summary judgment, and dismissing Ms. Elee' s direct negligence claim against

Werner. After the district court denied her motion for new trial, Ms. Elee filed this

appeal. In two assignments of error, Ms. Elee contends the district court erred: ( 1) in

denying her motion to continue considering that discovery had barely begun, no

depositions had been taken, and less than three months had elapsed between her filing

suit and Werner's motion for summary judgment; and ( 2) in granting Werner"s motion

and dismissing her direct negligence claim against Werner.

APPELLATE JURISDICTION

Before reaching the merits, we address whether this court has jurisdiction to

review this matter. In its appellate brief, Werner contends this court lacks subject matter

jurisdiction, because the district court rendered a partial summary judgment as to less

than all of Ms. Elee' s claims, and stated that the judgment was final under La. C. C. P. art.

1915, but did not make an express determination that there was no just reason for delay

as required by La. C. C. P. art. 1915B( 1).

A district court may render a partial summary judgment dispositive of a particular

issue, theory of recovery, cause of action, or defense, in favor or one or more parties,

even though the grant of summary judgment does not dispose of the entire case as to

that party or parties. La. C. C. P. art. 966E. A partial summary judgment rendered under

La. C. C. P. art. 966E may be immediately appealed during ongoing litigation only if the

district court properly designates it as a final judgment after an express determination

that there is no just reason for delay. La. C. C. P. art. 1915B( 1). Here, the district court

made no express determination that there was no just reason for delay. Absent that

designation, the partial summary judgment is not a final judgment for purposes of

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immediate appeal. See La. C. C. P. arts 19118 and 191513( 2). However, in the interest of

judicial efficiency and considering that the appeal was filed within the delays for taking
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supervisory writs, we elect to exercise our supervisory jurisdiction and

to convert the appeal to an application for supervisory writs of review. See La. Const.

art. V, § 10A; URCA Rule 4- 3; Stelluto v. Stelluto, 05- 0074 ( La. 6/ 29/ 05), 914 So. 2d 34,

39; Wesley v. Our Lady of the Lake Hosp., Inc., 17- 0767 ( La. App. 1 Cir. 6/ 14/ 18), 2018

WL 3005307 * 1. We now turn to the merits of the writ application.

SUMMARY JUDGMENT DISMISSAL OF DIRECT NEGLIGENCE CLAIM

Ms. Elee contends the district court erred in granting the partial summary

judgment dismissing her direct negligence claim against Werner. She claims the

summary dismissal interferes with the factfinder' s role to determine facts and to assess

fault and provides corporate defendants with a " defensive weapon to limit the scope of

discovery." She further argues that the contrary result in this court's per curiam decision

in Wheeler v. U.S. Fire Ins Co., 18- 1422 ( La. App. 1 Cir. 6/ 13/ 19), 2019 WL 26129031

and in multiple relevant federal cases are not binding on this panel.

An appellate court reviews a summary judgment de novo, using the same criteria

that govern the district court' s determination of whether summary judgment is

appropriate. Monterrey Center, LLC v. Education Partners, Inc., 08- 0734 ( La. App. 1 Cir.

12/ 23/ 08), 5 So. 3d 225, 229. We first address this court's Wheeler decision, wherein a

five -judge writ panel decided the exact issue presented herein as follows:

W] e find that plaintiffs cannot maintain direct negligence claims, such as
negligent hiring, training, supervision, etc. against an employer while

simultaneously maintaining claims against the alleged negligent employee
for which plaintiffs seek to hold the employer vicariously liable after the
employer has admitted that the employee was in the course and scope of
employment at the time of the alleged conduct. See Dennis [ v. CoIllins, 15-
2410 ( W. D. La. Nov. 9, 2016)], 2016 WL 6637973, * 7 and Wilcox v. Harco
International Insurance, 16- 187 ( M. D. La. June 26, 2017), 2017 WL
2772088.

Wheeler, 2019 WL 2612903 at * 2.

2 Werner argues Ms. Elee' s appeal would not have been a timely filed writ, because it was filed 45 days
after the district court's August 16, 2019 ruling in open court. But, timeliness is determined from the date
of the notice of the September 24, 2019 judgment, not from the date of the district court's oral ruling.
See, e.g., Courville v. Allied Prof. Ins. Co., 16- 1354 ( La. App. 1 Cir. 4/ 12/ 17), 218 So. 3d 144, 147; Spanish
Lake Rest., LLC v. Shell Oil Co., 15- 0837 ( La. App. 1 Cir. 4/ 18/ 16), 2016 WL 1572425 * 5. Here, the district
court signed the partial summary judgment on September 24, 2019, and the clerk of court mailed notice of
the judgment on September 25, 2019. Ms. Elee filed her motion for appeal on September 30, 2019.
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First, we reject Ms. Elee' s argument that Wheeler has no precedential value,

because it is an unpublished opinion. Louisiana Code of Civil Procedure article 2168

requires that an appellate court post unpublished opinions on its website and provides

that such opinions may be cited as authority. See Harris v. St. Tammany Par. Hosp.

Sere. Dist. No. 1, 11- 0941 ( La. App. 1 Cir. 12/ 29/ 11), 2011 WL 6916523 * 13, n. 15. Our

court indeed posts unpublished opinions and writ decisions on our website, and as such,

these opinions may be cited as authority. See www. la- fcca. ora.

We do note, however, that this court is not bound by a writ panel' s previous

decision issued in another matter, regardless of whether it is published or not. A regular

appeal panel has the authority, and indeed the duty, to review, overrule, modify, and/ or

amend a writ panel' s decision on an issue when, after reconsidering the issue to the

extent necessary to determine whether the writ panel' s decision was correct, the appeal

panel finds that the writ panel' s decision was in error. Mere doubt as to the correctness

of the prior ruling by a writ panel is not enough to change the prior ruling; only where it

is manifestly erroneous, or where application of the law of the case doctrine would result

in an obvious injustice, should we overrule or modify the prior ruling. Pontchartrain Nat.

Gas Sys v. Texas Brine Co., LLC, 18- 0419 ( La. App. 1 Cir. 6/ 26/ 19), 280 So. 3d 792, 795,

stay and writ denied, 19- 01125 ( La. 7/ 17/ 19), 277 So. 3d 1180.

After a thorough review, we agree with Wheeler and find no obvious injustice in

following it. The summary dismissal of Ms. Elee' s direct negligence claim will not impinge

on the factfinder' s role to determine facts and assess fault. This is because Ms. Elee' s

direct negligence claim against Werner is essentially subsumed in the direct negligence

claim against Mr. Gardner; an employee driver's negligence may include his employer's

negligence for lapses in hiring, training, and supervision. See Meadors v. DAgostino, CV

18- 01007- BAJ- EWD ( M. D. La. Mar. 30, 2020), 2020 WL 1529367 at * 4. On the other

hand, if Mr. Gardner was not negligent in causing the subject accident, then a factfinder

could not reasonably find that Werner's failure to properly hire, train, or supervise him

was a legal cause of the accident. See Landry v. Nat7. Union Fire Ins Co. of Pittsburg,

19- 337 ( La. App. 5 Cir. 12/ 30/ 19), 289 So. 3d 177, 185. And, accord Libersat v. J&K

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Trucking, Inc., 00- 00192 ( La. App. 3 Cir. 10/ 11/ 00), 772 So. 2d 173, 179, writ denied, 01-

0458 ( La. 4/ 12/ 01), 789 So. 2d 598, the reasoning of which has been positively cited by

the Landry court above and in numerous federal decisions, by which we are not bound,

but persuaded. 3

Next, under the facts of this case, we need not address Ms. Elee' s policy argument

that dismissal of a direct negligence claim when the employer stipulates to vicarious

liability provides corporate defendants with a defensive weapon to limit the scope of

discovery. In this case, the district court stated it was following Wheeler, but made clear

that Wheelers " very narrow holding" would not " preclude discovery into the areas of

employer training, hiring, and supervision" simply because Werner has stipulated that Mr.

Gardner was in the course and scope of his employment at the time of the accident.

Thus, based on the well- settled rule that courts do not decide hypothetical controversies

or render advisory opinions, we decline to address the possibility that an employer in

some other case would stipulate to vicarious liability to limit discovery into its own

alleged negligent practices. See In re: Interdiction of Shubert, 17- 1738 ( La. App. 1 Cir.

9/ 24/ 18), 258 So. 3d 808, 810.

Thus, on de novo review, and adopting the Wheeler writ panel' s reasoning, we

conclude that a plaintiff cannot maintain a direct negligence claim, such as negligent

hiring, training, supervision, etc., against an employer, while simultaneously maintaining

a claim against the alleged negligent employee for which the plaintiff seeks to hold the

employer vicariously liable, after the employer has admitted that the employee was in

the course and scope of employment at the time of the alleged conduct. Wheeler, 2019

3 See Jones v. Nat'l Liab. & Fire Ins. Co., CV 19- 4353 ( E. D. La. Mar. 23, 2020), 2020 WL 1332944 at * 2- 3;
Pigott v. Heath, CV 18- 9438 ( E. D. La. Feb. 5, 2020), 2020 WL 564958, at * 4; Coffey v. Knight
Refrigerated, LLC, CV 19- 3981 ( E. D. La. Nov. 1, 2019), 2019 WL 5684258 at * 3; Giles v. ACEAm. Ins. Co.,
CV 18- 6090 ( E. D. La. June 26, 2019), 2019 WL 2617170 at * 2- 3; Thomas v. Chambers, CV 18- 4373 ( E. D.
La. Apr. 17, 2019), 2019 WL 1670745, * 7; Vaughn v. Taylor, 6: 18 -CV -01447 ( W. D. La. Jan. 10, 2019),
2019 WL 171697, * 2- 3; Franco v. Mabe Trucking Co., Inc., 5: 17 -CV -00871 ( W. D. La. Nov. 20, 2018), 2018
WL 6072016 at * 3- 4; Wilcox v. Harco Intl - Ins., CV 16- 187- SDD- EWD ( M. D. La. June 26, 2017) 2017 WL
2772088 at * 3; Dennis v. Collins, CV 15- 2410 ( W. D. La. Nov. 9, 2016), 2016 WL 6637973 at * 7.

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WL 2612903 at * 2. The district court properly granted summary judgment dismissing

Ms. Elee' s direct negligence claim against Werner.

Lastly, we address Ms. Elee' s contention that the district court erred in denying

her motion to continue the summary judgment hearing. Generally, a motion for

summary judgment may be granted after an opportunity for adequate discovery. See La.

C. C. P. art. 966A( 3). However, there is no absolute right to delay action on a motion for

summary judgment until discovery is complete; the law only requires that the parties

have a fair opportunity to conduct discovery and present their claims. Me/ancon v.

Perkins Rowe Assoc., LLC, 16- 0219 ( La. App. 1 Cir. 12/ 14/ 16), 208 So. 3d 925, 929. A

district court has discretion to proceed with summary judgment or to delay the matter for

additional discovery, and an appellate court should reverse that decision only upon a

showing of an abuse of that discretion. Id. Under the facts of this case, no amount of

discovery will alter the legal issue here - once Werner stipulated that Mr. Gardner was in

the course and scope of his employment at the time of the accident, there is no

independent negligence claim against it. However, the district court has made it clear

that it will allow full discovery to explore what Werner should have done that resulted in

Mr. Gardner' s negligence. We find the district court did not abuse its discretion in

allowing the summary judgment hearing to proceed.

CONCLUSION

For the above reasons, we convert the appeal to an application for supervisory

writs, deny the writ, and affirm the September 24, 2019 judgment. We assess costs of

this appeal one- half to Debra Elee and one- half to Werner Enterprises, Inc.

APPEAL CONVERTED TO WRIT; WRIT DENIED; JUDGMENT AFFIRMED.

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