Christy Robinette v. Old Republic Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-79

CHRISTY ROBINETTE
VERSUS
OLD REPUBLIC INSURANCE COMPANY,

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20140883
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED.

Philip E. Roberts

Ungarino & Eckert, LLC

600 Jefferson Street, Ste 850

Lafayette, LA 70501

(337) 235-6268

COUNSEL FOR DEFENDANT APPELLANT:
Old Republic Insurance Company
Joseph Zeno, Jr.

William H. Eckert

Ungarino & Eckert, LLC

600 Jefferson Street, Ste 850

Lafayette, LA 70501

(337) 235-5656

COUNSEL FOR DEFENDANT APPELLANT:
Old Republic Insurance Company
Joseph Zeno, Jr.

Keith P. Saltzman

Anderson & Dozier

P. O. Box 82008

Lafayette, LA 70598-2008

(337) 233-3366

COUNSEL FOR PLAINTIFF APPELLEE:
Christy Robinette

KYZAR, Judge.

This matter arose as the result of an accident involving a vehicle driven by
defendant, Joseph Zeno, Jr. (Zeno), in which the plaintiff, Christy Robinette
(Robinette), was a passenger. Defendants, Zeno and Old Republic Insurance
Company (Old Republic), appeal from the grant of a Motion for Summary
Judgment on the issue of liability in favor of the plaintiff. For the reasons herein,
we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On October 21, 2013, the defendant, Zeno, and the plaintiff, Robinette, were
involved in an automobile accident in which Robinette claims to have been injured.
On this day, Zeno had driven to Robinette’s school, Blue Cliff College in Lafayette,
in order to pick her up for lunch. Robinette got into the passenger side of the
vehicle. Though it is disputed how the argument began, both parties admit that
they quickly entered in to a heated discussion. Zeno asserts in his affidavit that
Robinette became verbally abusive, screaming and cursing at him as he attempted
to exit the parking lot of the school.

Because of this, Zeno states, he attempted to return Robinette to her school
rather than continue on to their planned lunch. At this point, Zeno was
approaching the exit of the parking lot and was on a downward incline, causing the
back of his vehicle to sit higher than the front. It is undisputed that Zeno placed
the vehicle in reverse and applied pressure to the accelerator. When the vehicle
accelerated in reverse, it collided with the vehicle behind it.

The plaintiff filed suit claiming damages for bodily injuries as a result of the
collision. She asserts that the accident was caused solely as a result of the

negligence of Zeno as driver of the vehicle. In answer to the petition, defendants

admitted that Robinette was a guest passenger at the time of the accident in the
vehicle, which was being driven by Zeno, owned by his employer, Genuine Parts
Company, and insured by Old Republic. Genuine Parts Company, as owner of the
vehicle, was voluntarily dismissed. The remaining defendants allege that the
accident was caused solely, or alternatively in part, by the negligence of the
plaintiff in distracting Zeno as he attempted to operate the vehicle.

On July 21, 2016, Robinette filed a Motion for Summary Judgment on the
issues of liability and insurance coverage in regards to injuries purportedly
sustained by Robinette as a result of the accident. At the hearing on that motion,
held on September 6, 2016, the parties agreed as to the existence of requisite
insurance coverage. Only the question of liability was disputed. After arguments
by counsel, the trial court found that there was no genuine issue of material fact
and granted Robinette’s motion for partial summary judgment, establishing
insurance coverage and liability against the defendants. Defendants appeal that
judgment as to the issue of liability only.

ASSIGNMENT OF ERRORS

On appeal, defendants urge only one assignment of error, which states:

The trial court abused its discretion in granting Plaintiff’s

Motion for Summary Judgment when material issues of fact remain

unresolved and by not correctly applying the burden of proof rule

contained in [La.Code Civ.P. art. 996(D)] by failing to construe all

“factual inferences reasonably drawn from the evidence in favor of the

party opposing the Motion” and resolving all doubt “in the opponent’s

favor.” Watters v. Dep’t of Soc. Servs., 2003-0703 (La.App. 4 Cir.

5/14/03), 849 So.2d 724, 731 citing Willis v Medders, 2000-2507, p. 2

(La. 12/08/00), 775 So.2d 1049, 1050.

OPINION

Appellate courts review summary judgments de novo under the same criteria

that governed the trial court's consideration of whether or not summary judgment

was appropriate. Schroeder v. Board of Sup'rs of La. State Univ., 591 So.2d 342
(La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97); 702 So.2d
818, writ denied, 97-2737 (La.1/16/98); 706 So.2d 979. Beard v. Grey Wolf
Drilling Co., 00-345 (La.App. 3 Cir. 11/2/00), 774 So.2d 287. Louisiana's Code of
Civil Procedure Article 966(A)(3) states that summary judgment shall be rendered
forthwith after an opportunity for adequate discovery, if “the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.”

On appeal, defendants argue summary judgment was not appropriate as
issues of material fact remain in regards to the question of liability. Defendants
also contend that the correct burden of proof rule was not applied, as required by
the provisions of La. Code Civ.P. art. 966, which provides, in pertinent part:

D. (1) 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.

Defendants maintain that because there are variations in the accounts of the
event given by Robinette and Zeno, certain material facts remain disputed. They
further assert the factual contentions contained in their affidavits were not provided
the required deference given to the claims of a non-movant for summary judgment
pursuant to La.Code Civ.P. art. 966. This court recognizes the requirement to

construe factual inferences that are reasonably drawn from the evidence in favor of

the party opposing the motion. See Johnson, 8 So.3d at 808. All doubt is to be

resolved in the non-moving party’s favor. /d. However, not all facts or assertions
regarding a certain event will be relevant in the consideration of summary
judgment.

The threshold question in reviewing a trial court’s grant of summary
judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97—
386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-50 (La.3/13/98); 712
So.2d 882. Grey Wolf Drilling Co., 774 So.2d at 289. Facts are material, for
purposes of summary judgment, if they determine the outcome of the legal dispute,
and the determination of the materiality of a particular fact must be made in light
of the relevant substantive law. /d. Thus, summary judgment is appropriate when
all relevant facts are brought before the court, the relevant facts are undisputed, and
the sole remaining issue relates to the legal conclusion to be drawn from the facts.
Kumpe, 712 So.2d at 882; Grey Wolf Drilling Co., 774 So.2d at 289. Defendants
contend that because Zeno and Robinette offer differing accounts, material facts
remain in dispute. The following facts, however, are undisputed: 1) at the time of
the accident, Zeno was driving the vehicle and Robinette was a guest passenger in
said vehicle; 2) the two parties were having a heated discussion; 3) during this
discussion and while attempting to exit the school parking area, Zeno put the truck
he was driving in reverse and pressed on the accelerator; and 4) this acceleration
caused Zeno’s truck to strike the vehicle behind it.

The claim leveled against defendants in the current proceeding is one of
negligence. Defendants argue Robinette bears some percentage of comparative
fault for the accident, stating that Robinette began screaming, yelling, and cursing
at Zeno “in a very insulting and distracting manner” immediately prior to the

accident, and these actions make her liable, either solely or in part, as she

distracted Zeno from driving. No party argues that Robinette struck, obstructed the
vision of, or physically interfered with Zeno in his operation of the vehicle at any
time.

Louisiana’s case law has consistently held that a driver’s negligence is not
imputed to a guest passenger. Adams v. Sec. Ins. Co. of Hartford, 543 So.2d 480,
485 (La.1989); Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973);
Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Felt v. Price, 240 La.
966, 126 So.2d 330 (1961); White v. State Farm Mut. Auto. Ins. Co., 222 La. 994,
64 So.2d 245 (1953); Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292
(1945); Sqguyres v. Baldwin, 191 La. 249, 185 So. 14 (1938); Lawrason v. Richard, 172 La. 696, 135 So. 29 (1931); Churchill v. Texas & Pac. Ry. Co., 151 La. 726,
92 So. 314 (1922); Daull v. New Orleans Ry. & Light Co., 147 La. 1012, 86 So.
477 (1920); Maritzky v. Shreveport Rys. Co., 144 La. 692, 81 So. 253 (1919); and
Peterson v. New Orleans Ry. & Light Co., 142 La. 835, 77 So. 647 (1918). A
driver’s negligence is not imputable because it is unrealistic to hold that a guest
passenger factually has any control or right of control over the motorist with whom
he rides. Nowell v. State Farm Mut. Auto. Ins. Co., 576 So.2d 77, 80 (La. Ct. App.
1991), writ denied, 580 So.2d 923 (La.1991). Louisiana law does recognize that a
passenger in a motor vehicle can have fault imposed where there is a Joint venture,
an independent negligent act by the passenger, or a showing that the rider had
actual or constructive knowledge of a driver’s incompetence or impaired ability to

operate the vehicle.' This theory has only been used, however, in special and out-

' Sledge v. Cont'l Cas. Co., 639 So.2d 805 (La. Ct. App. 1994) (finding that a father-passenger
could be held partially negligent for causing an accident where he asked his 15-year-old son to
drive at 3:00 a.m., knowing the teen had gotten less than an hour of rest but would be unlikely to
refuse a request from his father, and promptly went to sleep himself, leaving the unlicensed teen
driver alone and unsupervised); Adams v. Security Ins. Co. of Hartford, 543 So.2d 480 (La. 1989)

of-the-ordinary situations. It has not been used, in Louisiana or other jurisdictions,
to hold a guest passenger subject to comparative fault where the passenger,
knowingly or otherwise, entered the vehicle of a driver in a heightened emotional
state, as defendants argue herein. There is no precedent in Louisiana law for
holding a guest passenger contributorily liable under these conditions.

Defendants cite multiple out-of-state cases to support their contention that
Robinette’s contributory negligence remains a genuine issue of material fact.
While the conclusions of law reached are not binding upon this court, we will
address each of the cited cases as they are easily distinguishable from the facts
presented herein. Defendants cite Kuebler v. Kuebler, 90 A.D.3d 1611, 936
N.Y.S.2d 448 (2011), in which a New York appellate court found that the question
of a plaintiff-passenger’s actions in terms of potential comparative fault defeated
summary judgment. However, that case involved the failure of a father to
supervise his son, an unlicensed driver with a learner’s permit. /d. As that court
notes, “A licensed driver supervising an unlicensed driver with a learner’s permit
owes a duty...to take necessary measures to prevent negligence on the part of the
driver with the learner’s permit (see generally Lazofsky v. City of New York, 22

A.D.2d 858, 254 N.Y.S.2d 349). Kuebler, 90 A.D.3d at 1612. The court’s

(finding that a guest passenger may be found guilty of contributory negligence for a failure to
protest a driver’s negligence, but only in special circumstances which indicate that a passenger’s
protests might have influenced a driver to operate more prudently); Nowell v. State Farm Auto.
Ins. Co., 576 So.2d 77 (La.App. 2d Cir. 1991), writ denied, 580 So.2d 923 (La. 1991) (which
held a passenger has a duty to avoid exposing himself to risk by riding with an intoxicated driver,
if the alcchol-induced impairment of the driver is a substantial cause of the driver’s negligence
and if the passenger voluntarily rides with the intoxicated individual or where there is a showing
that the driver was impaired to such a degree that his conduct and driving would cause the
passenger to know, actually or constructively, of the driver’s condition so as to support the
finding the passenger was comparatively negligent either in riding with the driver or in not
protesting the driver’s operation of the vehicle); Daugherty v. Casualty Reciprocal Exchange Ins.
Co., 522 So.2d 1323 (La.App. 2d Cir. 1988) (finding recovery by guest passenger was lessened,
but not totally barred, by the assumption of risk doctrine where both passenger and driver were
high from their joint participation in drug use over several hours and driver told passenger she
was tired and did not wish to drive the rest of the trip).

analysis centered on the fact that the plaintiff had a clear duty by law, and whether
the breach of that duty, supported by evidence, constituted a genuine issue of
material fact in the granting of a summary judgment. /d. In the case at hand, Zeno
was a licensed and experienced driver whom Robinette, as a guest passenger, had
no duty to supervise’ and, thus, could not be liable for any breach thereof.

Defendants next cite a decision from the Supreme Court of Oklahoma which
discusses the possibility of active negligence on the part of a passenger. That court
introduces the theory and sets forth the example of passengers who had been
drinking heavily, teasing a newly-licensed driver about his cautious driving, and
actively urging him to drive at high speeds in a neighborhood with winding roads.
See Snyder v. Dominguez, 2008 OK 53, 202 P.3d 135, 139 (2008). This idea of
active negligence comes from common law principles and the Restatement (Second)
of Torts (1965), which states that an individual may be liable if he or she knows
that another person’s conduct constitutes a breach of duty and gives “substantial
assistance or encouragement to the other” to breach that duty. Defendants have
offered no evidence that Robinette encouraged Zeno to act negligently or that she
assisted him in so doing. There is no showing of Robinette encouraging or
substantially assisting Zeno in his decision to place the vehicle in reverse and
accelerate while another vehicle was behind his own. Absent such evidence, the
theory of active negligence contemplated by the Oklahoma Supreme Court, supra,
and put forth by defendants clearly does not apply in this instance.

Defendants finally point to a New Jersey appellate court decision whtch

found that a passenger in a motor vehicle has a duty not to interfere with the

> See Adams v. Security Ins. Co. of Hartford, 543 So.2d 480, 485 (La. 1989); White v.
State Farm Mut. Auto. Ins. Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338 (1953).

driver’s operations. Kubert v. Best, 432 N.J. Super, 495, 515, 75 A.3d 1214, 1226
(App. Div. 2013). Louisiana courts, and other jurisdictions, have found that a
passenger can be at fault where there is an independent negligent act by the
passenger. Sledge v. Continental Cas. Co., 25, 770 (La. App. 2 Cir. 6/24/94), 639
So.2d 805. The Kubert court dealt with the issue of texting while driving, again in
clear violation of local law, ultimately finding summary judgment to be proper on
the issue of liability. The court goes on to give examples of actions that might
breach a passenger’s duty to not interfere with the driver’s operations, including
holding a piece of paper in front of the driver’s face or urging the driver to look at
or read a text message or cell phone screen. Kubert, 432 N.J. Super at 515.
Defendants do not allege Robinette obstructed Zeno’s view or in any way
physically interfered with his operation of the vehicle. None of the cited cases
have found an ordinary guest passenger, who has no duty to supervise, at fault for
the use of words or phrases that do not relate to the operation of the vehicle or
encourage the driver to take his eyes off of the roadway or otherwise act
negligently. In other words, no showing has been made, nor does any
jurisprudence support, that a passenger may be held liable merely for participating
in an emotional or heated discussion with a driver at the time of an accident.
Defendants proclaim a passenger has a duty to avoid yelling or screaming in
such a manner as to distract the driver from operating a vehicle and that
Robinette’s actions violated this duty, making her solely or partly at fault in
causing the accident. However, as the New Jersey appellate court’ notes and this
court reiterates: It is the primary responsibility of the driver to obey the law and to

avoid distractions. Imposing a duty on a passenger to avoid any conduct that might

> Kubert v. Best, 75 A.3d 1214.

theoretically distract the driver would open too broad a swath of potential liability
in ordinary and innocent circumstances.’ Courts must be careful not to create a
broadly worded duty and run the risk of unintentionally imposing liability in
situations far beyond the parameters we now face. The Louisiana Supreme Court
has shown that it intends to move with caution in expanding new areas of delictual
responsibility. Edwards v. Louisville Ladder Co., 796 F.Supp. 966, 971 (W.D.
La.1992). Acceptance of defendants’ assertion that Robinette’s actions of
screaming and yelling breached a duty and place her at fault for causing the
accident would require the adoption of a cause of action for comparative fault of a
guest passenger more expansive than any recognized in any jurisdiction in this
country.

Robinette did not strike Zeno, encourage him to take his eyes off the road, or
do anything to impede Zeno’s operation of the vehicle other than purportedly
screaming, yelling, and cursing. To impose liability upon a passenger for such
would allow drivers to avoid responsibility for their own actions any time a
passenger acted out of turn. Every conversation has the potential to be distracting,
but no court has held that a conversation mitigates a driver’s responsibility to avoid
acting negligently. If a motorist is driving a parent and children, and the children
are screaming, yelling, or otherwise behaving in a distracting manner in the
backseat, is the parent vicariously liable in the case of an accident? Is a passenger
who turns up a car radio to a volume that is arguably distracting to be held partially
liable for a driver’s negligence? If the song playing loudly on the stereo contains
potentially offensive language, is the guest passenger then liable for a driver’s

distraction? Clearly not. While this court does not condone the behavior of which

4 Id at 516

Robinette is accused, we decline to impose liability here on a guest passenger who
was merely participating in a discussion with the driver, however heated. We find
Robinette did not breach any duty owed to Zeno. A motorist has a duty of care
which includes the duty to keep his vehicle under control and to maintain a proper
lookout for hazards. Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158,
(La.App. 4 Cir. 7/2/08), 989 So.2d 164. It is the primary duty of the driver to obey
the law and avoid distractions. A passenger is entitled to entrust his safety to the
driver. Gaspard v. LeMaire 245 La. 239, 158 So.2d 149 (1963).

Both Zeno and Robinette admit to being engaged in a heated discussion at
the time of the accident. Some dispute remains between the parties as to the
degree to which the argument escalated. However, even if we fully accept Zeno’s
version of the event, this court will not impose liability on Robinette in these
circumstances. Zeno, the driver of the vehicle, chose to return Robinette to her
school with no request or demand from her. Zeno chose the manner by which he
attempted to do so. Zeno undisputedly put the vehicle into reverse and pressed
down on the accelerator with no urging or assistance from Robinette. Pursuant to
these facts, there is simply no basis in Louisiana law upon which to impose
passenger liability. Once the motion for summary judgment has been properly
supported by the moving party, the failure of the adverse party to produce evidence
of a material factual dispute mandates the granting of the motion. Hyman v. E.
Jefferson Gen. Hosp., 04-1222 (La.App. 5 Cir. 3/1/05, 4), 900 So.2d 124, 126;
Foster v. Consolidated Employment Systems, Inc., 98-948 (La.App. 5 Cir. 1/26/99),
726 So.2d 494, writ denied, 99-0523 (La. 4/30/99), 741 So.2d 14. There must be a
genuine or triable issue of relevance and materiality on which reasonable persons

could disagree in order to defeat such a motion. Rowley v. Loupe, 96-918 (La. App.

10

5 Cir. 4/9/97), 694 So.2d 1006, 1008. In the current case, the relevant material
facts are before the court and undisputed. As such, the grant of summary judgment
on the issue of liability was proper as a matter of law.
DISPOSITION
For the reasons set forth herein, we affirm the ruling of the trial court on the
issue of liability. Costs of this appeal are assessed to defendant-appellants.

AFFIRMED.

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