Samuel Heriberto Hernandez & Ezequiel Alejandro Hernandez v. Northland Insurance Company, North American Transport Service, Raul L. Sanabria & Martin Eulogio Mejia

SAMUEL HERIBERTO * NO. 2024-CA-0271
HERNANDEZ & EZEQUIEL
ALEJANDRO HERNANDEZ *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
NORTHLAND INSURANCE *
COMPANY, NORTH STATE OF LOUISIANA
AMERICAN TRANSPORT *******
SERVICE, RAUL L.
SANABRIA & MARTIN
EULOGIO MEJIA

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-06352, DIVISION “D”
Honorable Monique E. Barial, Judge
******
Judge Karen K. Herman
******
(Court composed of Judge Roland L. Belsome, Judge Karen K. Herman, Judge
Nakisha Ervin-Knott)

Jason Giles
Brian King
John Love Norris, IV
THE KING LAW FIRM, LLC
2912 Canal Street
New Orleans, LA. 70119

COUNSEL FOR PLAINTIFFS/APPELLANTS

Morgan J. Wells, Jr.
Evan J. Godofsky
Amanda G. Morse
LARZELERE PICOU WELLS SIMPSON LONERO, LLC
3850 North Causeway Boulevard
Suite 500
Metairie, LA. 70002

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED
November 7, 2024

KKH
RLB
NEK
This appeal arises out of an automobile accident. Samuel Heriberto

Hernandez and Ezequiel Alejandro Hernandez (“Hernandezes”) and Martin Mejia

(“Mr. Mejia”) (collectively, “Plaintiffs”) appeal the February 12, 2024 judgment

granting a motion for summary judgment in favor of Defendants, Raul L. Sanabria

(“Mr. Sanabria”), North American Transport Service, and Northland Insurance

Company (collectively, “NATS Defendants”). For the reasons set forth below, we

affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On May 18, 2022, the Hernandezes were passengers in a vehicle operated by

Mr. Mejia on Interstate 12 near the LA 434 entrance ramp in St. Tammany Parish.

As it was merging onto the interstate, the Mejia vehicle was rear-ended by an 18-

wheeler operated by Mr. Sanabria. At the time of the collision, the 18-wheeler was

traveling in the far right lane of the two-lane interstate.

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The Hernandezes filed a petition for damages alleging fault on the part of

Mr. Mejia and the NATS Defendants.1 Mr. Mejia filed a cross-claim against the

NATS Defendants.2

The NATS Defendants filed a motion for summary judgment seeking

dismissal of all causes of action asserted by the Plaintiffs, asserting that they would

not be able to carry their burden of proof that Mr. Sanabria was negligent in

causing caused the accident. In support of the motion, the NATS Defendants

introduced: 1) the 18-wheeler’s data recordings and the dash camera video; 2) the

deposition testimony of the investigating officer, Trooper Jeffrey Heriot (“Trooper

Heriot”), along with his accident report; 3) the affidavit of Mr. Sanabria; and 4) the

affidavit of Silvana Sandri (“Ms. Sandri”), the Director of Safety for NATS.

In opposition to the motion for summary judgment, the Hernandezes

introduced their own affidavits. Mr. Mejia adopted the opposition, introducing his

affidavit. No other evidence was presented in opposition to the motion for

summary judgment

The matter was brought for hearing on January 26, 2024. Initially, the

NATS Defendants objected to the introduction of portions of the opposing

affidavits, asserting that they were not based on personal knowledge and offered

improper legal conclusions. The trial court ruled from the bench, accepting all

affidavits submitted in support of and in opposition to the motion for summary

judgment, striking any portions that contained conclusory opinions and speculative

statements.
1 Mr. Mejia was uninsured; the 18-wheeler was leased by North American Transport Service and

insured by Northland Insurance Company.
2 The NATS Defendants aver that the cross-claim was never served, and there is no evidence of

service in this record. The record also reveals that Mr. Mejia was represented by counsel at the
hearing on the motion for summary judgment.

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Based on the evidence provided, particularly referencing the dash camera

and data recording videos, the trial court orally granted the motion for summary

judgment in favor of the NATS Defendants. Judgment was rendered on February

12, 2024, dismissing all claims asserted by the Plaintiffs against the NATS

Defendants. This appeal followed.3

LAW AND ANALYSIS

On appeal, the Plaintiffs assert eight assignments of error, which we will

address in three categories as follows:

I. The trial court erred in excluding portions of the Plaintiffs’ affidavits.

II. The trial court erred in granting summary judgment by: 1) failing to

properly evaluate the evidence; 2) misapplying the sudden emergency

doctrine; 3) finding that the merging vehicle caused the accident

without considering the evidence of the 18-wheelers’ actions; and 4)

failing to construe all factual inferences and doubt in favor of the

Plaintiffs.

III. The trial court erred in awarding costs and attorneys’ fees to the

NATS Defendants.

Summary Judgment Principles and Standard of Review

The summary judgment procedure is favored and “designed to secure the

just, speedy, and inexpensive determination of every action.” La. C.C.P. art.

966(A)(2). The summary judgment procedure is designed to pierce the pleadings

and to assess the evidence to determine if any genuine issue of material fact exists

warranting a trial. See Cutrone v. English Turn Prop. Owners Ass’n, Inc., 2019-

0896, p. 7 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214 (quoting Bridgewater v.

3 Mr. Mejia adopted the Hernandezes’ motion for devolutive appeal and their appellant brief.

3

New Orleans Reg’l Transit Auth., 2015-0922, p. 4 (La. App. 4 Cir. 3/9/16), 190

So.3d 408, 411).

Pursuant to La. C.C.P. art. 966(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.

La. C.C.P. art. 967(B) further provides:

When a motion for summary judgment is made and supported
as provided above, an adverse party may not rest on the mere
allegations or denials of his pleading, but his response, by affidavits or
as otherwise provided above, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be rendered against him.

Appellate courts review the grant or denial of a summary judgment

motion de novo using the identical criteria that trial courts use to determine

whether summary judgment is proper. See Planchard v. New Hotel

Monteleone, LLC, 2021-00347, p. 2 (La. 12/10/21), 332 So.3d 623, 625

(citations omitted). “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). “In determining whether an issue is genuine, courts cannot

consider the merits, make credibility determinations, evaluate testimony, or

weigh evidence.” Tran v. Collins, 2020-0246, p. 3 (La. App. 4 Cir. 8/20/21),

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326 So.3d 1274, 1278 (quoting Lewis v. Jazz Casino Co., 2017-0935, p. 6

(La. App. 4 Cir. 4/26/18), 245 So.3d 68, 72).

We now review the evidence presented in connection with the motion for

summary judgment.

Trooper Heriot testified in his deposition that he had a personal recollection

of the accident. He also referred to the accident report made in connection with his

investigation. Trooper Heriot noted that Mr. Mejia and his passengers fled on foot,

but were apprehended and returned to the scene by the Sheriff’s department. Mr.

Mejia was cited for hit-and-run, improper lane use, no driver’s license and no

insurance. Cutting-in and improper passing were also listed as violations.

Trooper Heriot stated that, as standard procedure, he viewed the 18-

wheeler’s dash camera video on the scene; it revealed the following: 1) the Mejia

vehicle entered the interstate from LA 434 and switched lanes into the path of the

18-wheeler; 2) there was no vehicle or debris ahead of the Mejia vehicle in the

entrance/acceleration lane when it entered the interstate; 3) there was additional

length of lane for the Mejia vehicle to continue in the entrance/acceleration lane

without impeding the traffic on the interstate; 4) as it merged onto the interstate,

the Mejia vehicle’s brake lights illuminated; and 5) the impact occurred within two

seconds of the Mejia vehicle merging onto the interstate.

Based on his review of the video, Trooper Heriot estimated Mr. Mejia’s

speed at 45 mph, and the 18-wheeler at 70 mph. He also stated that Mr. Sanabria

could not have switched lanes to get out of the way because another vehicle

(operated by Nathan Hotard) was immediately to his left.4 Trooper Heriot

4 After the collision with the 18-wheeler, the Mejia vehicle struck the Hotard vehicle.

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concluded that Mr. Sanabria could not have stopped in time. Finally, Trooper

Heriot confirmed that pursuant to La. R.S. 32:71, Louisiana law mandates that all

vehicles, including the 18-wheeler, travel in the right lane of the interstate unless

passing another vehicle.5

Mr. Sanabria stated in his affidavit that: 1) he was traveling in the right lane

of Interstate 12 when the Mejia vehicle suddenly moved from the

entrance/acceleration lane directly in front of his vehicle, and appeared to apply its

brakes; 2) he applied his brakes but was unable to avoid striking the rear of the

Mejia vehicle; 3) he was unable to move to the left because there was another

vehicle in the left lane; 4) after the impact, the Mejia vehicle came to rest in the

median and the three occupants exited the vehicle and fled the scene; and 5) the

18-wheeler was equipped with a dash camera video, which accurately depicted the

accident scene. Regarding the dash camera video, Mr. Sanabria stated that it

shows: 1) the Mejia vehicle traveling in the entrance/acceleration lane at a rate of

speed slower than the 18-weeler; 2) the Mejia vehicle merging to the left, directly

in front of the 18-wheeler, and the brake lights illuminate; 3) the impact occurred

within two seconds of the Mejia vehicle moving in front of the 18-wheeler; and 4)

when the Mejia vehicle merged to the left, the entrance/acceleration lane was still

open for at least one hundred feet, and free of any obstacles.

5 La. R.S. 32:71B.(1)(a) provides:

Upon all multilane highways, no vehicle shall be driven in the left-hand lane
except when directed otherwise, preparing for a left turn at an intersection or
private road or driveway, overtaking or passing another vehicle proceeding in the
same direction, or when right-hand lanes are congested; however, no vehicle
being driven in the left lane except when directed otherwise or preparing for a left
turn at an intersection, private road, or driveway shall impede any other vehicle
that is traveling in the same lane and behind that vehicle.

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Ms. Sandri stated as follows in her affidavit: 1) the dash cameras on the 18-

wheeler are equipped with data recordings, which include a record of the vehicle’s

speed simultaneously with the video; 2) Exhibit 1 (attached to her affidavit) is the

original, unedited download of the dash camera video depicting the incident as

well as the data recording showing the driver’s speed at the time of impact; and 3)

Exhibit 2 (also attached) is the original, unedited download of the dash camera

video depicting the driver’s viewpoint. Ms. Sandri authenticated the videos.

The Hernandezes attested in their affidavits that: 1) prior to merging, Mr.

Mejia activated his left turn signal; 2) Mr. Mejia gave advanced warning of his

intent to merge; 3) they observed two disabled vehicles on the shoulder of the road

in the vicinity; 4) as they merged into the right lane of the interstate, they were

struck from the rear by the 18-wheeler; 5) the collision was unexpected and

unavoidable; and 6) Mr. Sanabria never slowed down or applied his brakes prior to

the collision.

Mr. Mejia stated in his affidavit that: 1) as he merged onto the interstate, he

maintained a safe and appropriate speed for the road conditions; 2) he initiated his

turn signal; 3) the collision was unavoidable as the driver of the merging vehicle;

and 4) he maintained a safe and defensive driving technique of avoiding the

disabled vehicles on the shoulder of the road.

Evidentiary Ruling on the Affidavits

Prior to the ruling on the motion for summary judgment, the NATS

Defendants objected to what they considered to be the Hernandezes’ unsupported

speculative statements in the affidavits, particularly that Mr. Sanabria never slowed

down or applied his brakes prior to the collision. They submited that the statement

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is not based on personal knowledge, as the Hernandezes could not have observed

whether or not Mr. Sanabria applied his brakes.

The NATS Defendants also objected to Mr. Mejia’s statements that he safely

merged into the right lane maintaining a “legal and safe speed” when he was

unexpectedly struck from the rear. The NATS Defendants objected to this

statement as a legal conclusion, urging the court to consider the video recordings

that showed Mr. Mejia driving significantly below the speed limit for interstate

traffic.

Following oral argument on the issue, the trial court held that it would not

consider any “conclusory opinions and speculative statements” contained in the

affidavits submitted by the parties. We find no error in that ruling.

As this Court explained in Jones v. Boot Bar & Grill, 2022-0154, p. 17 (La.

App. 4 Cir. 10/5/22), 350 So.3d 968, 981,

Louisiana Code of Civil Procedure Article 967(A) states, in pertinent
part, that “[s]upporting and opposing affidavits [in connection with a
motion for summary judgment] shall be made on personal
knowledge” and “shall set forth such facts as would be admissible in
evidence ....” This Court has defined “personal knowledge” for the
purpose of a supporting affidavit as “something which a witness
actually saw or heard, as distinguished from something a witness
learned from some other person or source.” Harris v. Boh Bros.
Constr. Co., 2020-0248, p. 8 (La. App. 4 Cir. 5/26/21), 322 So.3d
397, 405 (quoting Capital One Bank (USA), NA v. Sanches, 2013-
0003, p. 6 (La. App. 4 Cir. 6/12/13), 119 So.3d 870, 873-74). It
“encompasses only those facts which the affiant saw, heard or
perceived with his [or her] own senses.” Id.

Here, the trial court accepted statements in the affidavits as to what was

personally observed, specifically disregarding the statements that Mr. Sanabria

never slowed down or applied his brakes prior to the collision. As the trial court

noted, the Hernandezes had no personal knowledge of that fact, as they were in

front of the 18-wheeler at the time of the collision. The court also specifically

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struck Mr. Mejia’s statement that his vehicle was legally and safely operated,

considering that to be a proposition for the Court to address.

Based on the well-established principles reiterated above, we find no error in

the trial court’s ruling, striking those portions of the affidavits submitted by the

parties that were inadmissible pursuant to La. C.C.P. art. 967. We now consider

whether summary judgment was properly granted.

Summary Judgment Rendered in favor of the NATS Defendants

The Plaintiffs assert that the trial court failed to properly evaluate the

evidence and misapplied the sudden emergency doctrine. More specifically, they

argue that the sudden emergency doctrine should not have been used to shield Mr.

Sanabria from liability when the evidence clearly showed that he could have

avoided the accident by exercising proper caution.

The sudden emergency doctrine provides that “a driver without sufficient

time to weigh all the circumstances and whose actions did not contribute to the

emergency cannot be assessed with negligence....” Causey v. New Orleans Reg’l

Transit Auth., 2018-0983, p. 4 (La. App. 4 Cir. 3/20/19), 267 So.3d 187, 190

(quoting Coffey v. Mushatt, 2003-0232, p. 4 (La. App. 4 Cir. 10/1/03), 859 So.2d

727, 730). The jurisprudence also recognizes that “the sudden emergency does not

apply to situations in which the party asserting the doctrine was also negligent.”

Waters v. Oliver, 2016-1262, p. 11 (La. App. 4 Cir. 6/22/17), 223 So.3d 37, 46

(citing State Farm Mut. Auto. Ins. Co. v. LeRouge, 2007-0918, p. 18 (La. App. 4

Cir. 11/12/08), 995 So.2d 1262, 1275).

The Plaintiffs maintain that Mr. Sanabria had sufficient time and space to

react to Mr. Mejia’s lane change, but failed to do so. However, they presented no

evidence, other than the unsubstantiated statements made in their affidavits, to

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show negligence on the part of Mr. Sanabria. As stated above, the trial court ruled

that the conclusory opinions and speculative statements contained in the affidavits

would be disregarded.

Based on our de novo review of the record, we find that the sudden

emergency doctrine was properly applied. The videos clearly demonstrate that Mr.

Sanabria was traveling in the right lane of the interstate, at a proper rate of speed,

when Mr. Mejia suddenly merged directly in front of him, and almost immediately

applied his brakes. Although Mr. Sanabria applied his brakes, the collision

occurred within two seconds, demonstrating that Mr. Sanabria had no time to react.

It is also evident that Mr. Sanabria could not have changed lanes in order to avoid

the collision due to the Hotard vehicle traveling immediately to his left.

The Plaintiffs further argued that material factual disputes and conflicting

versions of the accident still exist. We disagree.

To reiterate, the video evidence clearly establishes Mr. Mejia’s negligence in

merging, at a slow rate of speed, directly in front of the 18-wheeler, then braking.

It also demonstrates that Mr. Sanabria was traveling in the right lane in accordance

with La. R.S. 32:71, at approximately 68 mph, which is just below the posted

speed limit of 70 mph. Finally, the video reflects Mr. Sanabria’s proper reaction

under the circumstances (applying his brakes and reducing his speed to

approximately 65 mph) in attempting to avoid the collision. Thus, we find that the

NATS Defendants, as the parties moving for summary judgment, satisfied their

initial burden of proving that there is no genuine issue of material fact remaining

here.

Conversely, the Plaintiffs, presented nothing to contradict the evidence

submitted by the NATS Defendants. Discounting the conclusory and self-serving

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statements that Mr. Sanabria never applied his brakes or slowed down, the

Plaintiffs presented no evidence of negligence on the part of Mr. Sanabria. It is

well-established that …”[m]ere conclusory allegations, improbable inferences and

unsupported speculation will not support a finding of a genuine issue of material

fact.” Moon v. Safeway Ins. Co. of Louisiana, 2022-0455, p. 15 (La. App. 4 Cir.

12/6/22), 353 So.3d 352, 362 (quoting Sears v. Home Depot, USA, Inc., 2006-

0201, p. 12 (La. App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228).

Here, because the Plaintiffs failed to provide any factual evidence of Mr.

Sanabria’s negligence sufficient to establish that they will be able to meet their

burden of proof at trial, summary judgment was properly granted. Moreover,

based on the record before us, we do not find, as the Plaintiffs assert, that the trial

court impermissibly weighed the evidence or made an improper credibility

determination.

The Award of Costs and Attorneys’ Fees

Finally, the Plaintiffs argue that the trial court erred in awarding costs and

attorneys’ fees to the NATS Defendants. However, the record reflects that

attorneys’ fees were not awarded.6 Rather, the judgment provides that the NATS

Defendants were awarded $330.00 in costs incurred in connection with the filing

and serving of their motion for summary judgment.

“As a general rule, the party cast by the judgment bears all costs, including

its own and those of the prevailing party.” Certain St. Bernard Parish Gov’t

Computer Disks v. St. Bernard Parish Gov’t ex rel. Ponstein, 2013-1054, p. 8 (La.

App. 4 Cir. 12/18/13), 130 So.3d 56, 61 (citing Clarkston v. Louisiana Farm

6 The transcript reflects that at the conclusion of the hearing, the trial court instructed the NATS
Defendants to submit an affidavit for attorneys’ fees. However, the NATS Defendants contend
they did not pursue an award for attorneys’ fees.

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Bureau Cas. Ins. Co., 2007-0158, p. 40 (La. App. 4 Cir. 7/2/08), 989 So.2d 164,

191). Moreover, La. C.C.P. art. 1920 provides that “the court may render

judgment for costs or any part thereof, against any party, as it may consider

equitable.”

As the NATS Defendants prevailed on summary judgment, we find no error

or abuse of discretion in the trial court’s assessment of costs incurred in filing the

motion.

DECREE

For the foregoing reasons, we find no error in the trial court’s February 12,

2024 judgment granting summary judgment in favor of the NATS Defendants and

in awarding costs.

AFFIRMED

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