Thelma M. Hodges v. Michael A. Taylor

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1010

THELMA M. HODGES, ET AL.

VERSUS

MICHAEL A. TAYLOR, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-753-08
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders
and Jimmie C. Peters, Judges.

AFFIRMED.

Roy H. Maughan, Jr.
The Maughan Law Firm
634 Connell’s Park Lane
Baton Rouge, LA 70806
(225) 926-8533
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Thelma M. Hodges
Marcus J. McCoy

James D. “Buddy” Caldwell
Attorney General
Michael W. Landry
Adam L. Ortego
Assistant Attorneys General
One Lakeshore Dr., Suite 1200
Lake Charles, LA 70629
(337) 491-2880
COUNSEL FOR DEFENDANT /APPELLANT:
State of Louisiana, Dept. of Public Safety and Corrections

Bryan E. Lege
Kraft, Gatz, Lane
600 Jefferson St., Suite 410
Lafayette, LA 70501
(337) 706-1818
COUNSEL FOR DEFENDANT/APPELLEE:
Navarre Chevrolet, Inc.

PETERS, J.

The plaintiffs in this matter, Thelma Hodges and Marcus J. McCoy, appeal

the trial court‟s grant of a peremptory exception of no cause of action dismissing

their claims against the State of Louisiana, Through the Department of Public

Safety and Corrections (DPS). DPS also appeals the trial court judgment rejecting

its peremptory exception of prescription. For the following reasons, we affirm the

trial court judgment.

DISCUSSION OF THE RECORD

The matter now before us has as its origin a December 21, 2007 four-vehicle

automobile accident which occurred on U.S. Highway 165 in Jefferson Davis

Parish. On September 11, 2008, Thelma Hodges, the driver of one of the vehicles

involved in the accident, and Marcus J. McCoy, her guest passenger filed suit

against Michael A. Taylor, the driver of one of the other three vehicles. In their

petition, Ms. Hodges and Mr. McCoy asserted that the accident was caused solely

by Mr. Taylor‟s negligence. Mr. Taylor did not respond to the petition, and, on

November 20, 2008, the two plaintiffs caused a preliminary default to be entered

against him.

Mr. Taylor had purchased the vehicle he was driving at the time of the

accident from Navarre Chevrolet, Inc. (Navarre Chevrolet) on November 7, 2007,

and, on October 26, 2009, the plaintiffs amended their petition to name Navarre

Chevrolet as a party defendant. Ms. Hodges and Mr. McCoy based their claims

against Navarre Chevrolet on the fact that Mr. Taylor‟s vehicle was not insured for

liability purposes at the time of the accident. The plaintiffs asserted in their

amending petition that Navarre Chevrolet had a statutory duty pursuant to La.R.S.

32:862 to obtain an affidavit from Mr. Taylor “attesting to compliance with the

Compulsory Motor Vehicle Safety Responsibility Law” before selling him a

vehicle and that it failed to do so. They claimed that this negligent failure on the

part of Navarre Chevrolet to comply with the statute allowed Mr. Taylor to operate

a vehicle on the Louisiana highways “to the Plaintiffs‟ detriment.”

Navarre Chevrolet responded to this amended petition by filing a motion for

summary judgment. In support of its motion, Navarre Chevrolet provided the trial

court with what it described as a completed copy of the Louisiana Department of

Public Safety and Corrections Vehicle Application form executed by Mr. Taylor,

which states in pertinent part:

I do swear or affirm that the information contained in this
document is true and correct to the best of my knowledge.

I have and will maintain, during this registration period vehicle
liability insurance (security) required by LRS Title 32:861-865.
Failure to maintain as agreed will be a violation of law which may
result in criminal prosecution and/or suspension of registration
privileges.

If the vehicle being registered is defined as a commercial motor
vehicle by the Federal Motor Carrier Safety Regulation and/or Federal
Hazardous Material Regulations, by signature below registrant
declared knowledge of those federal regulations.

This language is followed by the signature of Mr. Taylor which was neither

witnessed nor notarized. Below the signature line, the form provides that “PROOF

OF LIABILITY INSURANCE MUST BE FURNISHED AS PROVIDED FOR

BY LAW BEFORE THIS FILE CAN BE PROCESSED.”

After a hearing on the motion, the trial court took the matter under

advisement. On October 26, 2011, the trial court issued written reasons for

judgment granting Navarre Chevrolet‟s motion and dismissing the claims against it.

In its written reasons for judgment, the trial court found that Mr. Taylor‟s signature

on the form provided Navarre Chevrolet by the Louisiana Department of Public

Safety and Corrections Vehicle Application satisfied the affidavit requirements of

La.R.S. 32:862. Based on the record, the trial court factually found that Navarre
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Chevrolet complied with La.R.S. 32:862, but went further to conclude that “the

plaintiffs have not introduced any persuasive evidence that NAVARRE owed a

duty to protect third parties from drivers without insurance or to keep uninsured

drivers off the roads.”

Ms. Hodges and Mr. McCoy appealed that judgment, and a panel of this

court reversed the trial court‟s judgment, finding that La.R.S. 32:862 did impose a

duty on Navarre Chevrolet to protect third parties from uninsured drivers; that the

document relied on by Navarre Chevrolet was not in affidavit form; and that there

existed other genuine issues of material fact which precluded the grant of a

summary judgment. Hodges v. Taylor, 12-107 (La.App. 3 Cir. 6/6/12), 91 So.3d

1259, prior to reversal. The supreme court, however, reversed the decision of this

court and reinstated the trial court judgment dismissing Navarre Chevrolet from the

litigation. Hodges v. Taylor, 12-1581 (La. 11/2/12), 101 So.3d 445. In doing so,

the supreme court found that La.R.S. 32:862 did not impose any duty on an

automobile dealer which would extend to the protection of third parties from

injuries they sustained at the hands of an uninsured driver.

Ms. Hodges and Mr. McCoy then amended their petition on November 29,

2012, to add DPS as a party defendant. The plaintiffs asserted as the basis of

DPS‟s liability their position that “the official „Vehicle Application‟ form provided

for use by the Department of Public Safety when registering the purchase of a

motor vehicle . . . did not comply with the requirements of Louisiana Revised

Statue 32:862.” Specifically, the plaintiffs asserted that DPS violated its

“affirmative duty . . . to promulgate rules to enforce the Motor Vehicle Safety

Responsibility Law, particularly rules to require documentation of proof of

compliance with the Motor Vehicle Safety Responsibility Law from those making

application . . . for registration in this State.” The failure of DPS to fulfill its
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statutory duty, the plaintiffs asserted, allowed uninsured drivers such as Mr. Taylor

to drive on Louisiana highways and “cause injuries to innocent victims.”

On January 16, 2013, DPS responded to the amending petition by filing

peremptory exceptions of no cause of action and prescription. Following a June 11,

2013 hearing, the trial court took the issues under advisement. Fifteen days later,

on June 26, 2013, the trial court filed written reasons for judgment granting the

exception of no cause of action and rejecting the exception of prescription. The

trial court executed a judgment to this effect on July 11, 2013, and both the

plaintiffs and DPS perfected appeals.

In their appeal, Ms. Hodges and Mr. McCoy assigns seven assignments of

error all asserting that the trial court erred in granting the exception of no cause of

action. Basically, they argue that DPS has not enacted provisions concerning

affidavits as is its statutory duty; that the document signed by Mr. Taylor was not

in affidavit form; that the trial court relied on evidence outside the petition to grant

the exception; and that some of the evidence relied on by the trial court had not

been introduced in support of the exception.

In its appeal, DPS asserts that the trial court correctly granted the exception

of no cause of action, but erred in rejecting its peremptory exception of

prescription.

OPINION

Because the peremptory exception of no cause of action “raises a question of

law and the lower court‟s decision is necessarily based solely on the sufficiency of

the petition[,]” we review the grant of the exception under a de novo standard.

State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur. Agency,

L.L.C., 10-2264, p. 9 (La. 5/10/11), 63 So.3d 940, 946 (citations omitted). “The

pertinent question is whether, in the light most favorable to plaintiff and with every
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doubt resolved in plaintiff‟s behalf, the petition states any valid cause of action for

relief.” Id. “No evidence may be introduced at any time to support or controvert

the objection that the petition fails to state a cause of action.” La.Code Civ.P. art.

931.

The claims by Ms. Hodges and Mr. McCoy in their pleadings question

DPS‟s compliance or lack of compliance with the duties imposed by La.R.S.

32:862 as that statute relates to preventing uninsured motorists from driving on the

highways of this state. Louisiana Revised Statutes 32:862 is a part of what is

generally referred to as the Louisiana Motor Vehicle Safety Responsibility Law,

La.R.S. 32:851 et seq. Louisiana Revised Statutes 32:861(A)(1) establishes the

requirement that all general purpose motor vehicles registered in Louisiana “shall

be covered by an automobile liability policy” or other form of security1 providing

the limits of liability required by statute. The duty to maintain such liability

coverage “shall be the duty of the registered owner of a motor vehicle,” and his or

her failure to maintain the appropriate coverage will subject the owner to statutory

sanctions. La.R.S. 32:861(A)(2).

Louisiana Revised Statutes 32:862 establishes the duty owed by the

registered owner of a vehicle to show proof of compliance as well as the duty

imposed on DPS in adopting certain forms for use in the process.2 As it relates to

the matter before us, La.R.S. 32:862 (emphasis added), reads in pertinent part:

B(1) The commissioner shall adopt rules to implement the
provisions of this Section. The rules shall provide that documentation
of insurance or other security shall be required for proof of

1
The statute provides other ways of meeting the liability responsibility generally covered
by the liability insurance policy, but they are not applicable to the matter now before us.
2
While that statute gives the responsibility for adopting the appropriate forms to be used
in conjunction with proof of compliance to the “commissioner,” La.R.S. 32:851(1) states that for
the purpose of the Motor Vehicle Safety Responsibility Law, “[c]ommissioner means the
Department of Public Safety and Corrections.” Thus, we will continue to refer to DPS as the
party at interest in this litigation.
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compliance. The rules shall require that the original, a photocopy, or
an image displayed on a mobile electronic device, of one of the
following documents be produced as documentation of insurance: an
insurance card; an insurance policy; or the declarations page of the
insurance policy showing coverages. The rules shall require insurance
and security companies to issue cards or similar documents, or an
image of the card or similar documents capable of being displayed on
a mobile electronic device, which indicate the existence of insurance
or security coverage, may establish the form for the cards or similar
documents, and may establish the form for the written declarations
required by this Section.

(2) The provisions of this Subsection with regard to the
documentation of insurance requirements shall not apply to new and
used automobile dealers as defined by law. However, the rules shall
provide for the use of affidavits to prove compliance when registration
is sought by a licensed new or used motor vehicle dealer on behalf of
a customer.

....

C. Each person who applies for the registration of a motor
vehicle, or who applies for the renewal of a registration of a motor
vehicle, or who applies for a motor vehicle inspection certificate shall
provide proof of compliance and shall declare in writing that the
applicant will remain in compliance during the time for which the
registration, the renewal of registration, or the certificate is issued.

....

H. No action taken by any person, whether private citizen or
public officer or employee, with regard to any license, registration, or
inspection certificate, or with regard to any document or electronic
image which indicates compliance with this Part, shall create a
presumption of the existence of insurance coverage, or be construed
by any court as a warranty of the reliability or accuracy of the
document or electronic image, or create any liability on the part of the
state, or on the part of any department, office, or agency of the state,
or on the part of any officer, employee, or agent of the state.

In their petition, Ms. Hodges and Mr. McCoy assert that DPS failed in its

duty to adopt the rules envisioned by La.R.S. 32:862(B), and that this failure

“allowed Michael Taylor to ultimately take to the highways of the State of

Louisiana without automobile liability insurance coverage and inflict severe injury

on Petitioners.” Specifically, they assert that DPS failed to adopt a rule providing

for the use of an affidavit of a licensed motor vehicle dealer as allowed by La.R.S.
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32:862(B)(2). Instead, according to the petition, DPS provided a form for the

dealers to use which did not satisfy affidavit form in that it did not provide a place

for a witness or notary to sign. Thus, when Navarre Chevrolet acted for Mr.

Taylor in attempting to register the vehicle it sold to him, it did not provide the

affidavit contemplated by La.R.S. 32:862(B)(2) because DPS had not adopted such

a form in accordance with its statutory duty.

With regard to the exception of no cause of action, the trial court stated in its

written reasons for judgment:

[T]he exception of no cause of action is granted. The plaintiffs are
arguing that the basis of their claim is the statute itself and not the
“vehicle application” form. However, LOUISIANA has enacted
provisions concerning affidavits attesting to insurance coverage and
an affidavit in this case was executed by the buyer of vehicle at the
dealership. Consequently, as argued by LOUISIANA, the Court
cannot find a basis for liability under LA R.S. 32:862(H).

As is the case with this court, the trial court found itself in the unique

situation of having to consider an exception of no cause of action in a record

wherein many of the factual assertions made by Ms. Hodges and Mr. McCoy

against DPS had been litigated in their claims against Navarre Chevrolet. Ms.

Hodges and Mr. McCoy assert generally throughout their argument in their

assignments of error that the trial court erred in considering facts established in the

Navarre Chevrolet phase of the litigation. We have to agree with that argument as

we are clearly limited to their pleadings only in considering this exception.

La.Code Civ.P. art. 931. However, in reviewing the matter de novo, we find that

the trial court reached the correct conclusion.

Ms. Hodges and Mr. McCoy assert a claim of negligence against DPS, and

we must consider the cause of action pursuant to the duty-risk analysis. Boykin v.

Louisiana Transit Co., Inc., 96-1932 (La. 3/4/98), 707 So.2d 1225. The duty-risk

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analysis requires consideration of five separate elements, all of which must be met

for the plaintiff to recover:

This negligence case is properly examined under the duty-risk
analysis. The determination of liability in a negligence case usually
requires proof of five separate elements: (1) proof that the defendant
had a duty to conform his conduct to a specific standard (the duty
element); (2) proof that the defendant‟s conduct failed to conform to
the appropriate standard (the breach element); (3) proof that the
defendant‟s substandard conduct was a cause-in-fact of the plaintiff‟s
injuries (the cause-in-fact element); (4) proof that the defendant‟s
substandard conduct was a legal cause of the plaintiff‟s injuries (the
scope of liability or scope of protection element); and (5) proof of
actual damages (the damages element). David W. Robertson et al.,
Cases and Materials on Torts 83-84 (1989); Fowler v. Roberts, 556
So.2d 1 (La.1989)(on original hearing).

Id. at 1230 (footnote omitted).

In the context of the case now before us, we must consider whether the well-

pleaded facts set forth in the petition of Ms. Hodges and Mr. McCoy, standing

alone, state a cause of action against DPS. We find that they do not.

It is undisputed that DPS had a statutory duty “to adopt rules to implement

the provisions of” the Louisiana Motor Vehicle Safety Responsibility Law with

regard to showing proof of compliance with the financial responsibility aspects of

that law. La.R.S. 32:862(B)(1). That duty includes adopting rules to “provide for

the use of affidavits to prove compliance when registration is sought by a licensed

new or used motor vehicle dealer on behalf of a customer.” La.R.S. 32:862(B)(2).

Accepting the well-pleaded facts of the petition of Ms. Hodges and Mr. McCoy as

true, DPS did breach the duty imposed on it by La.R.S. 32:862(B)(2) in that the

form provided to the licensed motor vehicle dealer is not in affidavit form. 3

The analysis of the third element of the duty-risk analysis, the cause-in-fact

element, “generally involves a „but-for‟ inquiry which questions whether or not the
3
While there is no statutory definition that covers all forms of affidavits, Black‟s Law
Dictionary defines an affidavit as “a voluntary declaration of facts written down and sworn to by
the declarant before an officer authorized to administer oaths, such as a notary public.” BLACK‟S
LAW DICTIONARY 62 (8th ed. 2004).
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injury would have occurred „but for‟ the defendant‟s substandard conduct.” Petre

v. State ex rel. DOTD, 00-545, p. 8 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252,

1259, aff’d, 01-876 (La. 4/3/02), 817 So.2d 1107. Similarly, the scope-of-

protection element of the duty-risk analysis involves whether the risk of harm to

the plaintiffs falls within the scope of protection afforded by the duty at issue. Id.

We find that the petition of Ms. Hodges and Mr. McCoy fails to state a cause of

action as to either of these two elements.

Ms. Hodges and Mr. McCoy do not assert that Navarre Chevrolet did not use

the form provided by DPS for registration under La.R.S. 32:862(B)(2), but rather

that the form provided for a private signature execution and not an affidavit

execution. However, there is nothing to suggest that had the form been

promulgated for Mr. Taylor‟s signature under oath, he would not have signed the

form, and had he done so, the vehicle would still have been sold to him by Navarre

Chevrolet. Thus, DPS‟s breach of duty as asserted in the petition fails to establish

a cause of action satisfying the cause-in-fact and scope-of-protection elements of

the duty-risk analysis.

Reaching the conclusion that Ms. Hodges and Mr. McCoy fail to state a

cause of action for negligence under the duty-risk analysis precludes any need to

consider the effect of the statutory prohibition against liability as set forth in

La.R.S. 32:862(H) and renders moot DPS‟s assignment of error addressing the trial

court‟s denial of its peremptory exception of prescription.

DISPOSITION

For the foregoing reasons, we affirm the trial court‟s grant of the peremptory

exception of no cause of action dismissing the claims of Thelma M. Hodges and

Marcus J. McCoy against the State of Louisiana, through the Department of Public

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Safety and Corrections. We assess all costs of this appeal to Thelma M. Hodges

and Marcus J. McCoy.

AFFIRMED.

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