Francis Boutte, Et Ux. v. Motorcycle Tour Conversions, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-686

FRANCIS BOUTTE AND DELLA BOUTTE

VERSUS

MOTORCYCLE TOUR CONVERSIONS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2012-10724
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David E. Chatelain*, Judges.

AFFIRMED.

Chatelain, J., concurs and assigns additional reasons.

___________________
*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

John Edward Ortego
Katherine Paine Martin
Gretchen Heider Mayard
Martin Mayard, L.L.C.
P. O. Box 81338
Lafayette, LA 70598-1338
(337) 291-2440
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Auto Insurance Company

Jeffery F. Speer
George A. Wright
Doucet-Speer, APLC
P. O. Drawer 4303
Lafayette, LA 70502-4303
(337) 232-0405
COUNSEL FOR PLAINTIFF/APPELLANT:
Francis Boutte
Della Boutte

SAUNDERS, Judge.

This case involves the grant of an insurance company’s motion for summary

judgment dismissing a claim made by its insureds for intentional spoliation of

evidence. The insureds were in a motorcycle/trike (trike) accident. Prior to the

accident, the trike had been modified with an aftermarket product.

The insurance company timely adjusted the insureds’ property damage to be

a total loss. After having paid the insureds for the total loss, the insureds signed

documents making the insurance company the owner of the wrecked trike.

Thereafter, the insurance company sold the wrecked trike as salvage.

In the meantime, the insureds filed suit against various parties, including the

manufacturers of the trike and its various component pieces. While this suit was

pending, the insureds requested the insurance company turn over the trike to them.

The insurance company told the insureds that the trike had been sold.

Thereafter, the insureds brought a claim against the insurance company for

spoliation of evidence. The insurance company moved for, and was granted, a

motion for summary judgment. The insureds appeal.

FACTS AND PROCEDURAL HISTORY:

Francis and Della Boutte (the Bouttes) were in a motorcycle/trike accident

on July 22, 2011. Ms. Boutte was injured in the accident which led to an initial

suit by the Bouttes against the manufacturers of the trike and its various component

pieces.

On July 22, 2011, the trike was removed from the scene of the accident by

Cliff’s Towing Service and transported to Church Point, Louisiana. On July 25,

2011, Mr. Boutte notified State Farm that there had been an accident. Mr. Boutte

then moved the trike from Cliff’s Towing Service in Church Point to Acadiana

Bikes in Eunice, Louisiana, to obtain an estimate. On August 2, 2011, State Farm

determined that the trike was a total loss. On August 8, 2011, State Farm obtained

ownership of the trike from Mr. Boutte in exchange for payment to the Bouttes for

their total loss of the trike.

On October 11, 2011, after obtaining ownership of the trike, State Farm sold

it for salvage. Thereafter, the trike moved locations numerous times according to

State Farm documents.

In February 2012, the Bouttes’ attorney put State Farm on formal notice that

it should do everything in its power to preserve the trike. State Farm produced

evidence that it attempted to assist the Bouttes’ attorney in finding the trike, to no

avail.

In July 2012, the Bouttes filed suit against Motorcycle Tour Conversions

and D&L Equipment for the alleged mechanical failures of the trike. In November

2012, the Bouttes filed a supplemental petition adding a claim against Diedrich

Trading Company. All of these defendants were dismissed via summary

judgments signed February 3 and February 5, 2014.

On February 20, 2014, the Bouttes filed a supplemental petition adding State

Farm as a defendant. They brought a spoliation claim against State Farm alleging

that State Farm intentionally deprived them of the trike. In response, State Farm

filed several pleadings including an exception of no cause of action, a motion for

summary judgment, and an exception of prescription.

On May 13, 2016, the trial court signed a judgment granting State Farm’s

motion for summary judgment and exception of prescription. The trial court did

not rule on the exception of no cause of action. The trial court found that State

Farm met its burden of showing that there was an absence of factual support for

key elements of the Bouttes’ spoliation claim, particularly that State Farm disposed

of the trike with the intent to deprive the Bouttes of evidence.
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The Bouttes appeal. They allege a single assignment of error.

DISCUSSION OF THE MERITS:

The Bouttes assert, in their sole assignment of error, that the trial court erred

in granting State Farm’s motion for summary judgment. We find no merit to this

assertion.

“On appeal, the trial court’s resolution of a summary judgment motion is

reviewed de novo.” Rose v. Liberty Mut. Fire Ins. Co., 15-1184, p. 3 (La.App. 3

Cir. 5/18/16), 192 So.3d 881, 884. Louisiana Code of Civil Procedure Article

966(D)(1) details a motion for summary judgment procedure, stating:

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.

In this case, the Bouttes’ claim is based on spoliation of evidence. Our

supreme court, in Reynolds v. Bordelon, 14-2362 (La. 6/30/15), 172 So.3d 589,

found that no cause of action exists for negligent spoliation of evidence. However,

there still exists the possibility of a claim for intentional spoliation of evidence.

The theory of “spoliation of evidence” refers to an intentional
destruction of evidence for purpose of depriving opposing parties of
its use. The tort of spoliation of evidence has its roots in the
evidentiary doctrine of “adverse presumption,” which allows a jury
instruction for the presumption that the destroyed evidence contained
information detrimental to the party who destroyed the evidence
unless such destruction is adequately explained. Prior to 1997, the
only remedy Louisiana courts have granted for spoliation of evidence
claims has been the application of the above-mentioned adverse
presumption. Recently, several Louisiana jurisdictions may have set
the stage to recognize spoliation of evidence as a distinct and separate
tort.

3

Pham v. Contico Int’l, Inc., 99-945, p. 4 (La. App. 5 Cir. 3/22/00), 759 So.2d 880,

882 (citations omitted, footnotes omitted, and emphasis added).

In its motion for summary judgment, State Farm points out that the Bouttes

have no evidence that it intentionally deprived them of any evidence. State Farm

produced evidence supporting its position that it did not have any intent to deprive

the Bouttes of evidence. Thus, it is incumbent on the Bouttes to produce evidence

that they can carry their burden to prove at trial that State Farm intentionally

deprived them of any evidence.

The Bouttes argue in brief and at oral argument that State Farm did things

purposefully to prevent them from obtaining the wrecked trike. However, these

arguments are not supported by any evidence in the record. These mere allegations

do not constitute supporting evidence sufficient to prevent State Farm’s motion for

summary judgment. Accordingly, after thoroughly reviewing the record and

hearing oral arguments, we find that the Bouttes have produced no evidence that

they can carry their burden to prove at trial that State Farm intentionally deprived

them of any evidence. As such, this assignment of error lacks merit.

DISPOSITION:

Francis and Della Boutte raise one assignment of error. We find no merit in

this assignment. Therefore, we affirm the trial court’s judgment granting State

Farm Mutual Automobile Insurance Company’s motion for summary judgment.

All costs associated with this appeal are assessed to Francis and Della Boutte.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

4

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-686

FRANCIS BOUTTE, ET UX.

VERSUS

MOTORCYCLE TOUR CONVERSIONS, INC., ET AL.

CHATELAIN, Judge, concurring to assign additional reasons.

I concur in the decision to affirm the trial court’s dismissal of the plaintiffs’

claim. Clearly, State Farm presented evidence to controvert the plaintiffs’

intentional spoliation claim and shifted the burden of proof to the plaintiffs to

establish otherwise. The plaintiffs failed to offer other evidence which would have

established a genuine issue of material fact.

I also find the plaintiffs failed to appeal and argue that portion of the trial

court judgment that granted State Farm’s peremptory exception of prescription and

have advanced no argument that the interests of justice require us to address that

issue. In my view, the plaintiffs’ failure to advance any argument on the propriety

of the trial court’s granting of State Farms’ peremptory exception of prescription

constitutes an abandonment of that issue.

It is well settled that “[t]he function of the peremptory exception is to have

the plaintiff’s action declared legally nonexistent, or barred by effect of law, and

hence this exception tends to dismiss or defeat the action. La.Code Civ.P. art. 923.

I find that portion of the trial court’s judgment which granted State Farms’

peremptory exception of prescription has become final. See La.Code Civ.P. art.

1841. Accordingly, in addition to our treatment of the summary judgment issue, I

find the peremptory exception of prescription further defeats the plaintiffs’ claim

against State Farm.

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