Dustin Brown Versus Rlc Trucking LLC, Guideone Mutual Insurance Company, and Charles Johnson

DUSTIN BROWN NO. 24-C-431

VERSUS FIFTH CIRCUIT

RLC TRUCKING LLC, GUIDEONE MUTUAL COURT OF APPEAL

INSURANCE COMPANY, AND CHARLES STATE OF LOUISIANA

JOHNSON

September 20, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE GUIDEONE MUTUAL INSURANCE COMPANY, RLC TRUCKING, LLC AND CHARLES JOHNSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
LAUREN D. ROGERS, DIVISION "E", NUMBER 90,653

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, Marc E. Johnson, John J. Molaison, Jr., and Scott U. Schlegel

WRIT GRANTED IN PART; DENIED IN PART

In this emergency writ application, relators/defendants, RLC Trucking, LLC,
GuideOne Mutual Insurance Company, and Charles Johnson, seek this Court’s
supervisory review of the trial court’s September 19, 2024 judgment which denied
their motion in limine to exclude evidence of direct negligence of RLC Trucking
and their motion in limine to exclude evidence of lost wages or loss of earning
capacity. For the following reasons, we grant the writ in part (as to defendants’
motion in limine to exclude evidence of direct negligence of RLC Trucking), and
deny the writ in part (as to defendants’ motion in limine to exclude evidence of lost
wages or loss of earning capacity).

FACTS AND PROCEDURAL BACKGROUND

On June 28, 2022, plaintiff, Dustin Brown, filed a petition for damages,
alleging that on March 20, 2022, he was traveling west in the right lane of
Highway 90 in St. Charles Parish when a truck operated by Charles Johnson

24-C-431

entered his lane and collided with him. Plaintiff alleged that he sustained serious
injuries to his neck and back as a result of Mr. Johnson’s negligence in the
following respects: entering an intersection and attempting a right turn from the
extreme left-hand lane in violation of La. R.S. 32:101; failing to maintain
reasonable and proper control of the vehicle under his control on a public road;
operating a vehicle under his control in a reckless and negligent manner; failing to
see what should be seen; and any other acts of negligence which were the cause of
the accident. Plaintiff claimed that at the time of the accident, Mr. Johnson was
acting within the course and scope of his employment at RLC Trucking, and thus,
RLC Trucking is liable for the negligent fault, acts, and omissions of its employee.

On September 16, 2024, defendants’ motion in limine to exclude evidence of
direct negligence of RLC Trucking and motion in limine to exclude evidence of
lost wages or loss of earning capacity, came before the trial court for a hearing.
The trial court signed a written judgment denying both motions on September 19,
2024. Trial on this matter is scheduled for September 23, 2024.

ANALYSIS

Motion in Limine to Exclude Evidence of Direct Negligence of RLC Trucking
In their motion in limine to exclude evidence of direct negligence of RLC
Trucking, defendants sought to prohibit plaintiff and his witnesses from asking
questions, making arguments, or giving testimony related to the direct negligence
of RLC Trucking, specifically testimony concerning its hiring, training,
supervision, and retention of Mr. Johnson. Defendants argued that plaintiff never
asserted a direct negligence claim against RLC Trucking in any manner in his
petition. Defendants claimed they did not receive notice that plaintiff intended to
introduce evidence that RLC Trucking was directly negligent until it received
plaintiff’s pretrial order inserts on August 23, 2024. In the pretrial order, plaintiff
listed three witnesses he intended to call for the following purpose:

Individually and as representative(s) and/or designee(s) of RLC
Trucking LLC - Course and scope of employment of Charles Johnson;
insurance coverage; property damage; employment history, hiring,
training, supervision, retention of Charles Johnson; RLC Trucking
policies and procedures regarding the foregoing; FMCSA and DOT
rules and regulations and compliance therewith; foundation testimony
for the admissibility of Chares Johnson’s employment file and RLC
Trucking’s business records, including any alcohol and drug testing of
Charles Johnson at any time.

2

In response, as part of their pre-trial inserts, defendants stated that the issue
of whether any evidence of RLC Trucking’s hiring, training, and supervision
practices is admissible is contested and any evidence relating to the alleged direct
negligence of RLC Trucking is irrelevant and inadmissible.

In opposition to the motion in limine, plaintiff argued that he did not learn
until June 26, 2024, when Mr. Johnson’s deposition was taken, that RLC Trucking
did not provide Mr. Johnson with any driving training. Plaintiff argued he had
attempted to take Mr. Johnson’s deposition for 21 months, and it wasn’t until a
hearing date was set on his motion to compel that defendant produced Mr. Johnson
for his deposition.1 Additionally, at the hearing on this matter, plaintiff asserted
that in February 2023, he filed a witness and exhibit list and disclosed as a witness
a representative of RLC Trucking for the purpose of testifying concerning the
hiring, training, supervision, and retention of Mr. Johnson.2 Plaintiff argued that
although his petition does not have an express claim for direct negligence against
RLC Trucking, it does allege facts necessary to support this cause of action.
Plaintiff also argued that outside the claim of direct negligence, the evidence of
RLC Trucking’s policies and procedures is relevant to the issue of the scope of Mr.
Johnson’s duty to plaintiff and whether the collision that occurred was foreseeable.

Following the hearing on the motion, the trial court orally denied the motion
and stated:

So as it relates to the direct negligence, I’m going to deny the motion
in limine. It seems clear to me that the defense was on notice and they
tried for two years. The plaintiff tried for two years to get a
deposition, and I think a lot of the -- I think a lot of the testimony and
evidence about direct negligence is going to overlap with the vicarious
liability. So at this time, I’m going to deny the motion in limine as it
regards to the direct negligence.
In their writ application, defendants argue that the trial court erred in
denying their motion in limine since any evidence related to the hiring, training,
supervision, or retention of Mr. Johnson is beyond the scope of the pleadings and

1
Importantly, plaintiff’s opposition to the motion in limine contained in the writ
application fails to explain or indicate why plaintiff did not or could not have filed an amended
petition specifically asserting a claim of direct negligence of RLC Trucking right after plaintiff’s
deposition was taken in June 2024. Plaintiff did not assert or indicate in his opposition to the
motion in limine that any pretrial deadlines had passed making it too late to file such an amended
petition, or if such a deadline had passed, why he should not still have been allowed to file an
amended petition after the deadline had passed because of the circumstances presented.
2
This exhibit and witness list was not included in the writ application.

3

allows for the introduction of a new cause of action on the eve of trial, thereby
prejudicing defendants.

A motion in limine presents an evidentiary matter that is subject to the great
discretion of the trial court. Moonan v. Louisiana Med. Mut. Ins. Co., 16-113 (La.
App. 5 Cir. 9/22/16), 202 So.3d 529, 534, writ denied, 16-2048 (La. 1/9/17), 214
So.3d 869.

It is well-established that Louisiana is a fact pleading state. La. C.C.P. art.
862; Reynolds v. Brown, 11-525 (La. App. 5 Cir. 12/28/11), 84 So.3d 655, 658-59.
The theory of the case doctrine, under which a party must select a theory of his
case or defense and adhere to it throughout the litigation, was abolished. Solis v.
NPK, LLC, 10-465 (La. App. 5 Cir. 3/29/11), 63 So.3d 236, 238, writ denied, 11-
1094 (La. 9/16/11), 69 So.3d 1145; First S. Prod. Credit Assoc. v. Georgia-Pacific,
585 So.2d 545, 548 (La. 1991). The party must set forth facts supporting the cause
of action, but is not required to assert all theories of recovery. Solis, 63 So.3d at
238. As long as the facts constituting a claim are alleged, the party may be granted
any relief to which he is entitled under the pleadings and the evidence. Trust for
Schwegmann v. Schwegmann Family Trust, 05-95 (La. App. 5 Cir. 5/31/05), 905
So.2d 1143, 1147.

The Louisiana Supreme Court noted in Martin v. Thomas, 21-1490 (La.
6/29/22), 346 So.3d 238, that a claim subject to respondeat superior and a claim of
negligent hiring or negligent entrustment are separate and independent theories of
liability. Id. at 243 (citing Roberts v. Benoit, 605 So.2d 1032, 1037 (La. 1991));
see also Chaisson v. Progressive Ins. Co., 21-0669 (La. App. 4 Cir. 7/27/22), 345
So.3d 1131, 1135.

It is uncontested that plaintiff’s petition for damages does not specifically
allege a direct negligence claim against RLC Trucking, and it is uncontested that
plaintiff has not filed an amended petition for damages. The petition for damages
only alleges that due to Mr. Johnson’s negligence in operating his vehicle while in
the course and scope of his employment, plaintiff sustained serious injuries. We
do not find that the facts alleged in plaintiff’s petition for damages support a claim
against RLC Trucking for the negligent hiring, training, supervision, and retention
of its employee. As such, we find the trial court abused its discretion in denying
the motion in limine to exclude evidence of direct negligence of RLC Trucking.

4

Accordingly, we grant defendants’ writ application in part and reverse the
trial court’s ruling denying defendants’ motion in limine to exclude evidence of
direct negligence of RLC Trucking.

Motion in Limine to Exclude Evidence of Lost Wages or Loss of Earning
Capacity
In defendants’ motion in limine to exclude evidence of lost wages or loss of
earning capacity, they asserted that plaintiff has not produced any corroborating
testimony or documentation to support his claims of lost wages or loss of earning
capacity and has never supplemented defendants’ written discovery. Thus,
defendants argue plaintiff should be precluded from offering any evidence to
support a loss of wage or loss of earning capacity claim at trial.

In plaintiff’s deposition, parts of which were attached to the motion in limine
and the opposition thereto, plaintiff stated that at the time of the accident, he was a
process operator at Valero, and he missed two days of work as a result of the
accident. Since he started working at Valero, he served on Emergency Response
Teams. Though he is still considered part of an Emergency Response Team, since
the accident, he cannot participate and thus does not receive the “extra income.”
He testified that by being on the team, he would receive an additional $.40 per hour
and he also had the opportunity for overtime training days. Since the accident, he
is able to go to in-class trainings, but is not able to participate in “different outside
trainings.”

In opposition, plaintiff argued that he is only seeking a claim for future lost
wages – specifically that he will not be able to earn certain overtime hours and the
additional $.40 per hour as he did before the accident. Plaintiff argued that the jury
should be left to weigh the evidence and determine if he is entitled to an award.

At the hearing on this motion in limine, plaintiff’s counsel stated that he was
not seeking a claim for lost earning capacity, only lost wages. He also informed
the trial court that he would not be admitting into evidence any documents that
have not been provided to the defense, but also stated that he did “disclose certain
people that [plaintiff] works with at the plant to buttress all of that testimony.”

Upon review, on the showing made, we find no error in the trial court’s
denial of defendants’ motion in limine to exclude evidence of lost wages or loss of
earning capacity. We find that the issue in this motion in limine relates more to the
weight and credibility of the evidence in question, instead of the admissibility of
the evidence. Accordingly, the writ application is denied as to the judgment
5

denying defendants’ motion in limine to exclude evidence of lost wages or loss of
earning capacity.

CONCLUSION

For the foregoing reasons, this writ application is granted in part and denied
in part. The writ application is granted in part, and the trial court’s ruling denying
defendants’ motion in limine to exclude evidence of direct negligence of RLC
Trucking is reversed. The writ application is denied in part as to the judgment
denying defendants’ motion in limine to exclude evidence of lost wages or loss of
earning capacity.

Gretna, Louisiana, this 20th day of September, 2024.

JGG
FHW
SUS

6

DUSTIN BROWN NO. 24-C-431

VERSUS FIFTH CIRCUIT

RLC TRUCKING LLC, GUIDEONE MUTUAL COURT OF APPEAL

INSURANCE COMPANY, AND CHARLES STATE OF LOUISIANA

JOHNSON

MOLAISON, J., CONCURS IN PART AND DISSENTS IN PART
While I concur with the majority that the trial court correctly denied the

relators’ motion in limine to exclude evidence of lost wages or loss of earning

capacity,3 I disagree with granting the motion in limine to exclude evidence of

direct negligence of RLC Trucking. As our supreme court recently opined in

Martin v. Thomas, 21-01490 (La. 6/29/22), 346 So.3d 238, 242–43:

Louisiana's Code of Civil Procedure establishes a system of fact
pleading. La. Code Civ. Proc. art. 891. So long as the facts
constituting a cause of action are alleged, the party may be granted
any relief to which he is entitled under the pleadings and the evidence;
the “theory of the case” doctrine, under which a party must select a
theory of his case or defense and adhere to it throughout the litigation,
has been abolished. First S. Prod. Credit Ass'n v. Georgia-Pac., 585
So.2d 545, 548 (La. 1991). This allows a plaintiff to recover under
whatever legal theory is appropriate based on the facts pleaded.
Perkins v. Scaffolding Rental & Erection Serv., 568 So.2d 549, 553
(La. 1990). Further, Louisiana Code of Civil Procedure art. 892
provides for pleading two or more causes of action in the alternative,
“even though the legal or factual bases thereof may be inconsistent or
mutually exclusive.”

After a review of the plaintiff’s petition, I conclude that the facts of

negligence alleged generally are sufficient to allow evidence of RLC Trucking’s

direct negligence at trial. For these reasons, I would deny the writ in its entirety.

I also note that the relators have an adequate remedy on appeal in the event of an

adverse judgment.

JJM

3
According to my reading of the hearing transcript, the plaintiff’s claim is only for future lost wages, not loss of
future earning capacity.

24-C-431

DUSTIN BROWN NO. 24-C-431

VERSUS FIFTH CIRCUIT

RLC TRUCKING LLC, GUIDEONE MUTUAL COURT OF APPEAL

INSURANCE COMPANY, AND CHARLES STATE OF LOUISIANA

JOHNSON

JOHNSON, J., CONCURS IN PART AND DISSENTS IN PART

I, respectfully, concur in part and dissent in part for the reasons set forth in
Judge Molaison’s concurrence in part and dissent in part.
MEJ

24-C-431

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/20/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-431
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable Lauren D. Rogers (DISTRICT JUDGE)
Przemek M. Lubecki (Respondent) Lee M. Peacocke (Relator)

MAILED
Kristen L. Burge (Relator)
Attorney at Law
400 Poydras Street
Suite 1300
New Orleans, LA 70130