Lacy Berthiaume v. Keith Gros

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-116

LACY BERTHIAUME, ET AL.

VERSUS

KEITH GROS, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-0679-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Peter F. Caviness
Falgoust, Caviness & Bienvenu, L.L.P.
Post Office Drawer 1450
Opelousas, LA 70571-1450
(337) 942-5812
COUNSEL FOR DEFENDANTS/APPELLANTS:
Keith Gros
Bitco General Insurance Company

Brian M. Caubarreaux
Brian Caubarreaux & Associates
Post Office Box 129
Marksville, LA 71351
(318) 253-0900
COUNSEL FOR PLAINTIFFS/APPELLEES:
Lacy Berthiaume
Gaynell Coco

AMY, Judge.

The parties were involved in an automobile accident in which the

defendant‟s vehicle rear-ended the plaintiffs‟ automobile. The plaintiffs filed suit

alleging that they were injured as a result of the accident. The plaintiffs

subsequently filed a motion for summary judgment on the issue of liability. The

defendant conceded that he was at fault, but contested whether he was solely liable

for the accident. The trial court granted the motion for summary judgment and

entered judgment finding that the defendant was solely liable for the accident. The

defendant appeals. For the following reasons, we reverse and remand.

Factual and Procedural Background

The genesis of this lawsuit is an automobile accident which allegedly caused

injuries to the plaintiffs, Lacey Berthiaume1 and Gaynelle Coco. According to the

record, Ms. Berthiaume was driving along a busy highway with her mother, Ms.

Coco, as a passenger. An unknown vehicle (“Vehicle 1”) pulled out on to the

highway in front of the vehicle ahead of Ms. Berthiaume (“Vehicle 2”). Both

Vehicle 2 and Ms. Berthiaume were forced to stop short. Ms. Berthiaume testified

in her deposition that she was able to stop with approximately one foot between

her vehicle and Vehicle 2. However, Ms. Berthiaume‟s car was rear-ended by a

truck driven by the defendant, Keith Gros. Mr. Gros‟ truck was owned by his

employer, M.D. Descant, Inc., and insured by Bitco General Insurance

Corporation. The record indicates that the identities of Vehicle 1 and Vehicle 2‟s

owners or occupants are unknown.

Ms. Berthiaume and Ms. Coco filed suit against Mr. Gros and Bitco, seeking

damages for injuries they allegedly incurred as a result of the accident. The

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Ms. Berthiaume‟s first name is also spelled as “Lacy” in the record.

plaintiffs thereafter filed a motion for summary judgment on the issues of

insurance coverage and liability. After a hearing, the trial court granted the motion

as to both issues, finding that Mr. Gros was solely liable for the accident and that

there was coverage under the insurance policy. Mr. Gros and his insurer have

appealed, asserting error only as to the trial court‟s determination that Mr. Gros

was solely liable for the accident.

Discussion

Summary Judgment

Summary judgment is favored and is designed to secure the just, speedy, and

inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2). A motion

for summary judgment shall be granted “if the pleadings, depositions, answers to

interrogatories, and admissions, together with the affidavits, if any, admitted for

purposes of the motion for summary judgment, show that there is no genuine issue

as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B)(2). Although the burden of proof remains with the

moving party,

if the movant will not bear the burden of proof at trial on the matter
that is before the court on the motion for summary judgment, the
movant‟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 that there is an absence of factual
support for one or more elements essential to the adverse party‟s
claim, action, or defense. Thereafter, if the adverse party fails to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

La.Code Civ.P. art. 966(C)(2).

A fact is considered “material” when its existence or nonexistence might be

essential to a plaintiff‟s cause of action under his or her applicable theory of

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recovery. Ebarb v. Matlock, 46,243 (La.App. 2 Cir. 5/18/11), 69 So.3d 516, writ

denied, 11-1272 (La. 9/23/11), 69 So.3d 1164. Thus a fact is material if it

potentially insures or precludes recovery, affects a litigant‟s ultimate success, or

determines the outcome of the legal dispute. Id. “A genuine issue is one as to

which reasonable persons could disagree; if reasonable persons could reach only

one conclusion, there is no need for trial on that issue and summary judgment is

appropriate.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66.

Further, the trial court‟s determination in a motion for summary judgment is

reviewed de novo. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995.

Accordingly, the appellate court uses the same criteria as the trial court in

determining whether summary judgment is appropriate—whether there is a

genuine issue of material fact and whether the moving party is entitled to judgment

as a matter of law. Id.

Liability

In order to impose liability under the general negligence principles of

La.Civ.Code art. 2315, a plaintiff must prove five elements: 1) that the defendant

had a duty to conform his conduct to a specific standard of care; 2) that the

defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the

plaintiff‟s injuries; 4) that the conduct was a legal cause of the plaintiff‟s injuries;

and 5) actual damages. Ebarb, 69 So.3d 516 (citing Pinsonneault v. Merchants &

Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270). Whether a duty

is owed is a question of law. Id. Although the determination of whether the

defendant‟s conduct was the cause-in-fact of the plaintiff‟s damages is a factual

question, whether that conduct is also the legal cause of the plaintiff‟s damages is

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purely a legal question. Brown v. Entergy Corp., 03-1452 (La.App. 3 Cir. 2004),

870 So.2d 422.

“The driver of a motor vehicle shall not follow another vehicle more closely

than is reasonable and prudent, having due regard for the speed of such vehicle and

the traffic upon and the condition of the highway.” La.R.S. 32:81(A). In a rear-

end automobile accident, the following motorist is presumed to have breached that

duty and is therefore presumed negligent. Ebarb, 69 So.3d 516 (citing Mart v.

Hill, 505 So.2d 1120 (La.1987)). “To avoid liability, a following motorist who

rear-ends another vehicle must prove he was not at fault by establishing that he had

his vehicle under control, closely observed the lead vehicle and followed at a safe

distance under the circumstances.” Id. at 520-21. Alternatively, the following

motorist may show that the lead motorist negligently created a hazard which could

not reasonably be avoided. Id.

Generally, when other vehicles are able to stop behind the lead vehicle

without incident and the driver of the last vehicle is the one that causes the

collision, the driver of the last vehicle is negligent. Ebarb, 69 So.3d 516. See also

Viator v. Gilbert, 206 So.2d 106 (La.App. 4 Cir.), judgment amended, 216 So.2d

821 (La.1968); Billiot v. Noble Drilling Corp., 109 So.2d 96 (La.1959); Price-

Dunham-Fenet Brick Mfg. Co., Inc. v. Reeves, 85 So.2d 635 (La.App. 1 Cir. 1956).

In this matter, Mr. Gros has conceded that he is at fault for the accident. However,

he contests the trial court‟s determination that he was solely at fault. More

specifically, Mr. Gros argues that Vehicle 1 entered the highway negligently and

caused Vehicle 2, Ms. Berthiaume, and Mr. Gros to stop short. Accordingly, Mr.

Gros asserts that Vehicle 1 is partially at fault for the accident, or, at minimum, a

genuine issue of material fact exists with regard to this issue.

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Comparative fault allows a percentage of fault to be allocated to each party

that contributes to an injury or loss. La.Civ.Code art. 2323(A); State Farm Mut.

Auto. Ins. Co. v. McCabe, 14-501, 14-502 (La.App. 3 Cir. 11/5/14), 150 So.3d 595.

This allocation is made “regardless of whether the person is a party to the action or

a nonparty, . . . or that the other person‟s identity is not known or reasonably

ascertainable.” La.Civ.Code art. 2323(A). The allocation of fault is a factual

finding. Ly v. State Through Dept. of Pub. Safety & Corr., 633 So.2d 197 (La.App.

1 Cir. 1993), writ denied, 93-3134 (La. 2/25/94), 634 So.2d 835. Where

reasonable minds could differ as to the comparative fault of the parties, summary

judgment is inappropriate. See Favre v. Boh Bros. Const. Co., L.L.C., 11-451

(La.App. 5 Cir. 3/13/12), 90 So.3d 481, writ denied, 12-1024 (La. 6/22/12), 91

So.3d 976; Brown, 870 So.2d 422; Allen v. Integrated Health Servs., Inc., 32,196

(La.App. 2 Cir. 9/22/99), 743 So.2d 804; Chapman on Behalf of Arvie v. Liberty

Mut. Ins. Co., 96-458 (La.App. 3 Cir. 11/6/96), 682 So.2d 906.

In Bertrand v. Henry, 01-348 (La.App. 3 Cir. 12/19/01), 815 So.2d 868, writ

denied, 02-190 (La. 3/28/02), 811 So.2d 945, the plaintiff-driver successfully

stopped in time to avoid an accident with a Cadillac that was at a dead stop in the

middle of the Atchafalaya Basin Bridge. However, a truck immediately behind the

plaintiff‟s vehicle was unable to stop and rear-ended her vehicle. Id. After a trial,

the jury determined that the driver of the truck was not “the cause” of the

plaintiff‟s accident. Id. However, a panel of this court determined that the jury‟s

conclusion in that regard was manifestly erroneous. Id. Having made that

determination, the panel then addressed the proper apportionment of fault, finding

that “[c]learly, had [the other driver] not stopped his Cadillac in the travel lane,

[the plaintiff] and [the truck driver] would not have been forced to brake and

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presumably there would have been no accident.” Id. at 874. Accordingly, the

panel assessed fault at 25% to the Cadillac‟s driver and 75% to the truck driver. Id.

See also Harbin v. Ward, 13-1620 (La.App. 1 Cir. 5/29/14), 147 So.3d 213; Ly,

633 So.2d 197.

In contrast, in Billiot, 109 So.2d 96, which was decided before the enactment

of Louisiana‟s comparative fault scheme,2 the plaintiff‟s vehicle was the second in

a line of three cars. When the first vehicle slowed to make a right turn, the

plaintiff‟s car struck the first vehicle from behind, although this impact did not

cause any damage to the two vehicles. Id. Thereafter, the plaintiff‟s vehicle was

subsequently rear-ended by the third vehicle. Noting that the first accident caused

no damage and that the plaintiff‟s actions violated no duty to the defendant, the

supreme court opined that

[the plaintiff‟s] negligence, if any, in following [the first] car too
closely, has no causal connection with the collision and does not
absolve the operator of the [third car] from liability for failing to
perform his duty . . . in violating the rule that „the driver of a motor
vehicle shall not follow another vehicle more closely than is
reasonable and prudent, having due regard to the speed of such
vehicle and the traffic upon and the condition of the highway.‟

Id. at 98.

Pursuant to La.R.S. 32:124, “[t]he driver of a vehicle about to enter or cross

a highway from a private road, driveway, alley or building, . . . shall yield the right

of way to all approaching vehicles so close as to constitute an immediate hazard.”

According to the evidence submitted in support of the motion for summary

judgment, Vehicle 1 entered the highway in front of Vehicle 2 in a manner that

caused Vehicle 2 to stop short. The record indicates that both Vehicle 2 and Ms.

Berthiaume were able to avoid an accident. Noting the differing results in

2
See 1979 La. Acts 431, § 1, eff. August 1, 1980.

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Bertrand, 815 So.2d 868, and Billiot, 109 So.2d 96, we conclude that reasonable

minds could differ about the other drivers‟ responsibility for the accident. Thus,

our review of the record indicates that genuine issues of material fact remain with

regard to the comparative fault of the various actors. Accordingly, we reverse the

trial court‟s grant of the motion for summary judgment with regard to the issue of

liability and remand for further proceedings.3

DECREE

For the foregoing reasons, the trial court‟s judgment granting the plaintiffs‟

motion for summary judgment with regard to liability is reversed, and this matter is

remanded for further proceedings. Costs of this matter are assessed to the

appellees, Lacey Berthiaume and Gaynell Coco.

REVERSED AND REMANDED.

3
Partial summary judgment is inappropriate where the determination of a particular
element of liability when that determination is not completely dispositive of the question of
liability between the parties and where other issues such as comparative fault remain unresolved.
Tye v. Co-Mar Offshore Operators, Inc., 95-94 (La.App. 1 Cir. 10/6/95), 669 So.2d 438, writ
denied, 96-1051 (La. 6/7/96), 674 So.2d 975.

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