Preston J. Dore, Jr. v. State Farm Mutual Auto Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-1191

PRESTON J. DORE, JR., ET AL.

VERSUS

STATE FARM MUTUAL AUTO INS. CO., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 104786-A
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED.

Raymond Morgan Allen
Allen Law Office
P. O. Drawer 3204
Lafayette, LA 70502
(337) 232-9918
Counsel for Defendant/Appellee:
State of LA, Thru The DOTD

Preston Miller Summers
Attorney at Law
P. O. Box 86
Abbeville, LA 70511-0086
(337) 893-0169
Counsel for Plaintiffs/Appellants:
Preston J. Dore, Jr.
Carrie Lynn Harris Dore

Kenny Layne Oliver
Oliver & Way
P. O. Box 80655
Lafayette, LA 70598-0655
(337) 235-2112
Counsel for Defendants/Appellees:
State Farm Mutual Auto Ins. Co.
Michael Goode
Overton Construction

Michael Edward Parker
Allen & Gooch
P. O. Drawer 3768
Lafayette, LA 70502-3768
(337) 291-1350
Counsel for Defendant/Appellee:
Gilchrist Construction Co.

Mark Reese Pharr, III
Galloway, Johnson, Tompkins, Butt & Smith
4021 Ambassador Caffery, Building A, Suite 175
Lafayette, LA 70503
(337) 735-1760
Counsel for Defendant/Appellee:
Scottsdale Ins. Co.

SAUNDERS, Judge.

Plaintiffs, Preston J. Dore, Jr. and Carrie Lynn Harris Dore, filed suit against

five defendants including, the State of Louisiana Department of Transportation and

Development (DOTD) and Gilchrist Construction Co., LLC (Gilchrist), for damages

arising out of a motorcycle/automobile accident, alleging general negligence, as well

as failure to provide supervision such as safety instruction, failure to properly

supervise signage and flagmen, failure to regulate traffic, and/or failure to ascertain

whether safety instruction had been provided. Plaintiffs subsequently filed an

amended petition, asserting claims against an additional defendant. Before the matter

came to trial, DOTD and Gilchrist filed motions for summary judgment. After

examining all the documentary evidence and testimony at the hearing on the motion,

the trial court determined that there was no genuine issue of material fact and granted

summary judgment in favor of Defendants, DOTD and Gilchrist. Plaintiffs

subsequently filed a motion for new trial, which was denied by the trial court.

Plaintiffs then filed a second amended petition, and now appeal the grant of summary

judgment in favor of Defendants, DOTD and Gilchrist, arguing that the trial court

erred in granting the summary judgments, dismissing all claims against Defendants

and designating the judgment granting summary judgment in favor of DOTD as a

final judgment, as there were amending pleadings filed asserting new causes of action

against Defendants. We affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of a collision that occurred on March 9, 2004,

in which Preston J. Dore, Jr.’s motorcycle struck the side of Michael Goode’s pick-

up truck. The collision occurred at the intersection of Louisiana State Highway 83

and Louisiana State Highway 90 in Iberia Parish, Louisiana. At the time of the

accident, Mr. Goode was in the course and scope of his employment with Overton

Construction Co., Inc. (Overton), and although he had only been working in the

construction business for two years, he was working as a supervisor on a construction

project along Highway 90. For this project, Gilchrist Construction Co., LLC

(Gilchrist) had subcontracted with Overton to install drainage pipes on a portion of

the Highway 90 overpass being constructed over Highway 83. DOTD had contracted

with Gilchrist for the construction of the overpass.

Mr. Dore was traveling northbound in the lefthand lane of Highway 83 on his

motorcycle when Michael Goode pulled his pickup truck, which had been parked on

the shoulder of Highway 83 in a construction zone, across the two northbound lanes

of traffic to reach the median. Mr. Goode testified that although he looked to his left

before pulling off the shoulder and across the lanes of travel, he did not see Mr. Dore,

and he pulled into Mr. Dore’s lane of travel, causing Mr. Dore to collide with the side

of his truck. As a result of the collision, Mr. Dore sustained severe lacerations to his

forehead and left eye, as well as a concussion.

On March 4, 2005, Mr. and Mrs. Dore, filed suit against Mr. Goode, Overton,

DOTD, and State Farm Mutual Automobile Insurance Co. (State Farm) to recover

damages incurred as a result of the accident. In their petition, Plaintiffs alleged

general negligence as well as failure to provide supervision such as safety instruction,

failure to properly supervise signage and flagmen, failure to regulate traffic, and/or

failure to ascertain whether safety instruction had been provided. Additionally,

Carrie Lynn Harris Dore, who married Mr. Dore on April 8, 2004, asserted a claim

for loss of consortium in the petition.

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A motion for summary judgment was filed on behalf of Gilchrist on December

28, 2005, and the hearing on said motion was set for March 1, 2006. DOTD filed a

motion for summary judgment on January 9, 2006. After the hearing on both motions

on March 1, 2006, the trial court granted summary judgment in favor of DOTD and

Gilchrist, thereby dismissing all claims against them. The trial court reasoned that

there was no evidence presented to show Defendants’ failure to train Mr. Goode, nor

was there any indication that had Mr. Goode been trained, what training might have

been provided to avoid an accident such as the one at issue. Moreover, it was not

suggested by Plaintiffs what additional signage, flagmen, or warnings would have

been necessary. Plaintiffs filed a motion and rule for a new trial on March 16, 2006,

and the hearing on said motion was set for April 21, 2006.

The trial court heard oral argument on Plaintiffs’ motion for a new trial on

April 21, 2006. After hearing the arguments, the trial court denied the motion,

adopting the reasons for judgment assigned on March 1, 2006. Plaintiffs then filed

a second amending petition on April 24, 2006 and filed the affidavit of Duaine Evans,

an expert in highway safety, on June 12, 2006. Plaintiffs now appeal, with four

assignments of error.

ASSIGNMENTS OF ERROR

1) The trial court erred in designating the judgment in favor of DOTD’s motion for
summary judgment as a final judgment, thereby dismissing all claims against it, when
amended pleadings had been filed detailing additional causes of action against
DOTD.

2) The trial court erred in dismissing all claims against Gilchrist in its grant of
summary judgment in favor of Gilchrist.

3) The trial court erred in determining that there was no genuine issue of material fact
and that summary judgment was appropriate.

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4) The trial court erred in determining that Defendants, Gilchrist and DOTD, were
entitled to judgment on the facts as a matter of law.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary

judgment. “It is well established that a summary judgment shall be rendered if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc. v.

Crane Servs. Inc., 03-0614, p.3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774, quoting

Shelton v. Standard/700 Associates, 01-587, p.5 (La. 10/16/01), 798 So.2d 60, 64-65;

La.Code Civ.P. art. 966(B).

LAW AND ANALYSIS

Assignments of Error Nos. 1 & 2:

Plaintiffs argue that the trial court erred in making the judgments granting

summary judgment in favor of DOTD and Gilchrist final judgments. Plaintiffs assert

that they should be partial judgments, as the trial court allowed an amendment of the

pleadings, indicating that the May 9, 2006 judgment was a partial summary judgment,

in accordance with La.Code Civ.P. art. 1915(B), which provides, in pertinent part:

A. A final judgment may be rendered and signed by
the court, even though it may not grant the successful party
or parties all of the relief prayed for, or may not adjudicate
all of the issues in the case, when the court:

(1) Dismisses the suit as to less than all of the parties,
defendants, third party plaintiffs, third party defendants, or
intervenors.

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(2) Grants a motion for judgment on the pleadings, as
provided by Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as provided by
Articles 966 through 969, but not including a summary
judgment granted pursuant to Article 966(E).

(4) Signs a judgment on either the principal or incidental
demand, when the two have been tried separately, as
provided by Article 1038.

(5) Signs a judgment on the issue of liability when that issue
has been tried separately by the court, or when, in a jury
trial, the issue of liability has been tried before a jury and
the issue of damages is to be tried before a different jury.

(6) Imposes sanctions or disciplinary action pursuant to
Article 191, 863, or 864 or Code of Evidence Article
510(G).

B. (1) When a court renders a partial judgment or
partial summary judgment or sustains an exception in part,
as to one or more but less than all of the claims, demands,
issues or theories, whether in anoriginal demand,
reconventional demand, cross claim, third party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay.

(2) In the absence of such a determination and designation,
any order or decision which adjudicated fewer than all
claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims
or parties, and shall not constitute a final judgment for the
purpose of an immediate appeal. Any such order or
decision issued may be revised at any time prior to rendition
of all the judgment adjudicating all the claims and the rights
and liabilities of the parties.

The judgment granting summary judgment in favor of DOTD was submitted and

signed by the trial court on March 10, 2005. The judgment provides, “Furthermore,

this judgment is being designated as a final judgment in accordance with Louisiana

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Code of Civil Procedure Article 1915.”1 Plaintiffs argue that pursuant to comment

19842 of Article 966, summary judgment on the issue of liability is a partial final

judgment and it should be designated as such, as there was no express determination

that there is no just reason for delay, as required by art. 1915(B)(1). It is Plaintiffs’

position that they are entitled to proceed with their case as set out in their second

amended petition against Gilchrist and DOTD, and the judgments dismissing all

claims against Defendants, DOTD and Gilchrist, should be amended to provide that

they are partial summary judgments.

Defendants counter Plaintiffs’ position, arguing that although Plaintiffs filed an

amending petition in December 2005, there were no new allegations of negligence

asserted against them in the pleading, and therefore Plaintiffs are not entitled to

proceed with their case. Defendants further point out that the hearing on the motions

for summary judgment filed by them individually was held, and the motions were

granted on March 1, 2006, with the trial court giving its reasons for judgment in open

court. The judgment granting summary judgment in favor of DOTD and the judgment

granting summary judgment in favor of Gilchrist Construction Co. were signed on

March 10, 2006 and March 13, 2006, respectively. They further point out that

Plaintiffs’ second amending petition was not filed until April 24, 2006, approximately

six weeks after the judgments were signed by the trial court. Therefore, any new

1
The judgment granting summary judgment in favor of Gilchrist was not designated as a
final judgment.
2
Comment 1984 provides: “The effect of the amendment is to make a summary judgment
on the issue of liability a partial final judgment. This brings Article 966 into accord with the
other provisions of the Code of Civil Procedure dealing with partial final judgments–see Articles
1841 and 1915, especially 1915(A)(5). The word ‘liability’ is used in its broad sense and is not
limited to delictual liability.

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causes of action alleged in the second amended petition were not at issue when the

judgments were rendered.

Defendants assert that the judgments granting summary judgment and

dismissing them from the case constitute final partial judgments by definition, as

Plaintiffs stated in their brief. However, they argue that because all claims asserted

by Plaintiffs were disposed of, the judgments are not a partial summary judgments.

Rather, they are partial final judgments, and La.Code Civ.P. art. 1911 provides that if

a partial final judgment is rendered pursuant to La.Code Civ.P. art. 1915(A), it is not

required to be designated as a final judgment.

In the instant case, the March 10, 2006 judgment and the March 13, 2006

judgment on Defendants’ motions for summary judgment dismissed all claims asserted

against Defendants at that time. Plaintiffs’ amending petition filed in December,

2005, asserted no new causes of action against Defendants, and their second amending

petition was not filed until approximately six weeks after the judgments granting

summary judgment and dismissing all claims against Defendants were filed.

Therefore, we find that the judgments are partial final judgments under La.Code.

Civ.P. art. 1915(A). See Motorola, Inc. v. Associated Indem. Corp., 02-716 (La.App.

1 Cir. 4/30/03), 867 So.2d 715, appeal decided, 02-716 (La.App. 1 Cir. 6/25/04), 878

So.2d 824, writ denied, 04-2314 (La.11/19/04), 888 So.2d 207, writ denied, 04-2323

(La. 11/19/04), 888 So.2d 211, writ denied, 04-2326, 04-2327 (La. 11/19/04), 888

So.2d 212. Therefore, under La.Code. Civ.P. art. 1911, designation of the judgments

as final judgments is not required.

Plaintiffs further argue that “subsequent amendment of the pleadings as allowed

by the court indicated that the Judgment of May 9, 2006, is a partial Summary

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Judgment in accordance with Article 1915 A of the Code of Civil Procedure. . . .”

However, Plaintiffs are referring to the judgment rendered on their motion for a new

trial, which has not been appealed to this court. Thus, we may not consider any oral

argument or testimony from that hearing as evidence, as it is not properly before us.

We find the trial court’s judgments granting summary judgment in favor of

DOTD and Gilchrist to be partial final judgments by definition, dismissing all

Plaintiffs’ existing claims against Defendants.

Assignments of Error Nos. 3 & 4:

Plaintiffs argue that material issues of fact remain, and therefore, DOTD and

Gilchrist are not entitled to summary judgment as a matter of law. La.Code Civ.P. art.

966. To support their position, Plaintiffs offer the report of Mr. Evans, who reviewed

the deposition of Mr. Goode and opined that had Mr. Goode received the proper

training with regard to work zone safety, it is likely that the accident at issue would

not have occurred. Defendants point out, however, that Mr. Evans’ report was not

submitted to the trial court until June 12, 2006, well after it had rendered its opinion

on Defendants’ motions for summary judgment and denied Plaintiffs’ motion for a

new trial. Therefore, the trial court never had the opportunity to review Mr. Evans’

report.

It is well settled in Louisiana jurisprudence that appellate courts cannot review

evidence that has not been before the trial court, as they are not courts of first

impression. See Uniform Rules, Courts of Appeal, Rule 1-3, Arceneaux v. Arceneaux,

98-1178 (La.App. 4 Cir. 3/17/99), 733 So.2d 86, writ denied, 99-518 (La. 4/9/99), 740

So.2d 633, writ not considered, 99-1351 (La. 6/25/99), 745 So.2d 642. Therefore, the

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report of Mr. Evans is not properly before us, and accordingly, we will not consider

it.

Plaintiffs further argue that a material issue of fact exists as to whether the

“unusual nature of working on a construction site in the middle of a public highway

requires safety training.” They argue that although Mr. Evans’ report was not

submitted until after the trial court’s opinion was rendered, they “believe that the

opinion expressed is a common sense opinion regarding safety and can be adopted by

the [appellate] court.” As stated above, this court cannot consider an opinion as a

form of evidence if it was not first introduced at the trial court level; we certainly

cannot “adopt” an opinion as “common sense” when it has not properly been admitted

into evidence and weighed by a trial court.

Pursuant to La.Code Civ.P art. 966(C)(2), if the party who moves for summary

judgment is not the party who bears the burden of proof at trial, he only has to point

out to the trial court that there is an “absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense.” Once he has done

so, the burden shifts to the adverse party to prove there is “factual support sufficient

to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id.

If he fails to produce such support, there is no genuine issue of material fact. In this

case, both DOTD and Gilchrist presented evidence that they had no duty to train or

supervise Mr. Goode to prevent an accident such as the one at issue. They also

testified that all the appropriate warning and construction signs were in place at the

time of the accident and that no additional signs or flagmen were necessary. Plaintiffs

point out that Mr. Goode was new to the construction business and had no particular

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knowledge of highway construction and no particular highway training, as he had

spent most of his life as a farmer. However, as the trial court noted in its reasons for

judgment, Plaintiffs presented no evidence that had Mr. Goode been trained, the

accident would not have happened. The record reflects that Mr. Goode is a licensed

driver, and as such, he should know the traffic laws and would be expected to proceed

with caution when leaving the shoulder and entering lanes of traffic. Mr. Goode

testified that he looked to his left and did not see the Plaintiff, who was clearly in a

position to be seen. The duty to see what is to be seen is one common to all motorists,

and Plaintiffs have not shown or suggested how additional training of any kind would

have taught Mr. Goode to see the obvious and thus, have prevented the accident.

Based on the record, we find that Defendants have met their burden of proof

under La.Code Civ. P. 966(C)(2). However, we find that Plaintiffs have failed to

produce factual support sufficient to satisfy their evidentiary burden of proving at trial

the fact that Defendants contributed to the accident through their failure to train Mr.

Goode. Therefore, we find that there is no genuine issue of material fact that would

preclude the granting of summary judgment in favor of Defendants. Id. Accordingly,

we hold that the trial court did not err in granting summary judgment in favor of

Defendants, DOTD and Gilchrist.

CONCLUSION

We do not find that the trial court erred in making the judgments granting

summary judgment in favor of the State of Louisiana, Department of Transportation

and Development and Gilchrist Construction Co., LLC, final judgments, thereby

dismissing all claims against them, as the amended pleadings detailing additional

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causes of action against Defendants were filed after the judgments were signed.

Accordingly, we do not find that the trial court erred in designating the judgment in

favor of the State of Louisiana, Department of Transportation and Development as a

final judgment. Additionally, we do not find that the trial court erred in granting

summary judgment in favor of Defendants, the State of Louisiana, Department of

Transportation and Development and Gilchrist Construction Co., LLC, as we find

there is no genuine issue of material fact, and accordingly, Defendants are entitled to

judgment as a matter of law. The judgment of the trial court is affirmed. Costs of the

appeal are assessed against Plaintiffs.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts
of Appeal.

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