Holly Fontenot v. Safeway Insurance Co. of La

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-780

HOLLY FONTENOT, ET AL

VERSUS

SAFEWAY INSURANCE COMPANY OF LOUISIANA

************
APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2016-0232
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE
************
SYLVIA R. COOKS
JUDGE
************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc
T. Amy, Phyllis M. Keaty and John E. Conery, Judges.

REVERSED AND REMANDED.

Amy, J., dissents and assigns reasons.

R. Scott Iles
P.O. Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Holly Fontenot and Kristi Young

Holly K. Yandle
Tracey L. Oakley
Angelique P. Provenzano-Walgamotte
W. Brett Cain
Michael W. Landry
400 E. Kaliste Saloom Rd., Suite 4300
P.O. Box 92807
Lafayette, LA 70509
(887) 323-8040
COUNSEL FOR DEFENDANT/APPELLEE:
Safeway Insurance Company of Louisiana

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

This appeal stems from a single vehicle accident which occurred on

December 20, 2015 on South Texas Street in DeRidder, Louisiana. On that date

the plaintiff, Holly Fontenot, was operating a 2008 Subaru Impreza with the

permission of the owner. The vehicle had been purchased used from a car

dealership approximately six months before the accident by Patricia Neil and her

husband.1 The Neils were the parents of Holly Fontenot’s fiance, Chris Reid.

Guest passengers in the vehicle that day were two minors, Haley Young and

Makenzy Young, who were sitting in the backseat. Plaintiff lost control of the

vehicle and it ran off the roadway, striking a utility pole. No other vehicle was

involved.

Holly Fontenot and Kristi Young, on behalf of her two minor children,

Haley and Makenzy, filed suit seeking damages for the injuries allegedly sustained

as a result of the accident. The petition alleged Ms. Fontenot suffered “injuries to

her back, knees and hand/finger as a consequence of the accident.” It was further

alleged the two minor children “sustained whiplash type injuries as a consequence

of the accident.” The sole defendant named in the suit was Safeway Insurance

Company of Louisiana, who had issued a policy of insurance covering the Impreza

to Patricia Neil.

It was alleged that the accident occurred due to a lack of maintenance on the

vehicle. In particular, Plaintiffs contended the Impreza ran off the road because of

a broken tie rod, which caused the immediate failure of the steering mechanism.

An answer was filed by Safeway, denying the allegations.

The matter was tried before the district court on April 19, 2017. After the

close of Plaintiffs’ case, Defendant moved for a directed verdict/involuntary

1
Since the purchase of the vehicle a few months prior to the accident, Mrs. Neil, who was the
mother of Ms. Fontenot’s fiancé, passed away.
2

dismissal pursuant to La.Code Civ.P. art. 1672(B), contending Plaintiffs failed to

show any right to relief under the evidence presented. After hearing oral argument

from the parties, the trial court orally granted the motion for directed verdict,

stating as follows:

At this time, I will grant the directed verdict. I think that while
I don’t doubt that the injuries occurred, I believe the basis of this law
suit has not been proved. There’s been insufficient evidence to prove
that there has been no maintenance on the vehicle. There’s not been
introduced anything about the purchase of the vehicle verifying the
mileage, the condition of the vehicle, the warranties or anything other
things. There’s nothing to prove by any expert what actually caused
the car to go off the road. Whether or not as the Officer said, the tie
rod broke as a result of causing the crash or if hitting the curb caused
the tie rod to break. It could be either way and we don’t presume
thins under the law. That has to be proven and I think there is a lack
of sufficient evidence to prove that at this time. So, the directed
verdict is granted.

Judgment was rendered on May 17, 2017, dismissing Plaintiffs’ claims with

prejudice. Plaintiffs have appealed, arguing the trial court erred in failing to find

liability on the part of Safeway as the insurer of a defective vehicle.

ANALYSIS

A motion for involuntary dismissal is the proper procedural vehicle in cases

where the action is not tried before a jury. The procedure governing motions for

involuntary dismissal is found in La.Code Civ.P. art. 1672(B), which provides as

follows:

B. In an action tried by the court without a jury, after the
plaintiff has completed the presentation of his evidence, any party,
without waiving his right to offer evidence in the event the motion is
not granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render judgment
against the [2007-1588 La.App. 3 Cir. 5] plaintiff and in favor of the
moving party or may decline to render any judgment until the close of
all the evidence.

Pursuant to Article 1672, the trial court must consider and weigh the

Plaintiffs’ evidence and dismiss the matter if it determines they have not met their

burden of proof. Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271.
3

The trial court’s grant of an involuntary dismissal is subject to the well-settled

manifest error standard of review. Id. Accordingly, in order to reverse the trial

court’s grant of involuntary dismissal, we must find, after reviewing the record,

that there is no factual basis for its finding or that the finding is clearly wrong or

manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880

(La.1993). The issue is not whether the trial court was right or wrong, but whether

its conclusion was reasonable. Id.

A review of the oral reasons for judgment show that the trial court granted

the motion for involuntary dismissal because Plaintiffs failed to establish “what

actually caused the car to go off the road,” as well as “producing insufficient

evidence to prove that there has been no maintenance on the vehicle.” Therefore,

to grant Plaintiffs the relief they seek on appeal, we must find the trial court’s

conclusion in these areas to be unreasonable.

Plaintiffs based their suit on the fact that they suffered injuries arising out of

the use of a vehicle owned by the Defendant’s insured that had a dangerous defect.

The Louisiana Supreme Court in King v. Louviere, 543 So.2d 1327 (La.1989) held

the owner of a vehicle, rather than a driver who has not been charged with

maintenance of the vehicle, is liable for damages when an automobile accident

arises out of a defect in a vehicle in his care or “garde.” Under our law, the

responsibility for damages in such a case rests with the owner of the vehicle when

it remains in his care. Id. In Williams v. U.S. Agencies Casualty Ins. Co., 00-1693

(La.2/21/01), 779 So.2d 729, Justice Victory, in his concurring opinion, discussed

the need for placing such responsibility on the owner in such cases:

. . . the owner is the party liable for damages caused by his vehicle’s
defects, [and to hold otherwise] would leave the motoring public
unprotected whenever such . . . an accident occurs as a consequence
of a latent defect in a vehicle that remains under the care and custody
of its owner. For instance, if the owner of a vehicle with faulty brakes
lends the vehicle to a friend who has an accident as a consequence of
the brake failure, the injured party could sue the owner’s insurer. . . If
4

there is no coverage for the owner because of a policy exclusion, the
innocent injured third party may have no effective recovery. This
result would defeat the public policy manifested in the compulsory
insurance law and La. R.S. 32:900B(2), which provides that an
owner’s policy shall insure against loss arising out of ownership,
maintenance, or use.

In this case, the testimony of Ms. Fontenot stated she was driving, with permission,

Safeway’s insured’s vehicle, within the posted speed limit on Texas Street, when

she heard a loud pop. Her steering mechanism then failed, the vehicle left the

roadway and struck the utility pole. Ms. Fontenot’s testimony admittedly is

sketchy as to the time and distance she traveled after hearing the pop, but she

stated she did lose consciousness as a result of the accident. However, there is no

indication in the record she was doing anything other than driving her vehicle

within her lane of travel until she heard the loud pop. The investigating officer

found nothing to indicate Ms. Fontenot had committed any driving infraction. At

the scene, a broken tie rod was found on the ground which broke off from the

vehicle.

Officer Edward Kuzmik of the DeRidder Police Department, who was called

to the scene and investigated the accident at issue, testified as follows concerning

the events that surrounded the accident:

Q. Any evidence that this accident happened because of a blow out of
a tire or anything like that?

A. No, sir.

Q. Did you have a conclusion of how this accident happened?

A. Based off looking at the totality of the parts on the car and
brakeage [sic], I’m not a mechanic but based off of what I’ve seen in a
pat on prior crashes, it appeared that in the front part of the drive train
area. The front wheel something broke off on there. I don’t know if
that was the actual causing factor of it but that was part of it that I
observed on the vehicle.

Q. Okay. Do you know of any infractions, driving infractions that
had been committed by Ms. Fontenot that caused or contributed to this
accident or was it all mechanical failure?

5

A. I didn’t see any time of – there was no indicators of any speeding.
Didn’t have any witnesses, there was no marks on the roadway so, no
indicators of any moving violations[or] infraction due to her driving,
no.

Q. Were you able to converse with Ms. Fontenot or were her injuries
preventative from you having any kind of communication with her at
the scene?

A. No, sir. I did speak with her and she did complain of some pain,
yes, sir.

Q. Did she tell you what happened prior to the crash?

A. Yes, sir.

Q. Tell us.

A. When I spoke to her, I asked what took place and what happened.
She said, she was driving, she heard a loud pop and the car jerked
over to the right, she struck a pole and the air bag exploded. That’s
what the words she said.

Q. Okay. And that was compatible with what you saw at the scene of
the accident?

A. Yes, sir.

On cross-examination, Officer Kumzik confirmed the tie rod broke off the vehicle

and again reiterated he did not believe the car left the roadway for any other

reason:

Q. You testified earlier that you did not see any evidence that the loss
of control, experience by Ms. Fontenot was anyway related to a
possible tire failure or tire blow. Let me correct myself. How are you
sure of that?

A. Based off of us picking – myself and Officer Boone, was on scene
as well. We picked the tire up and it wasn’t flat.

Q. Okay. You testified earlier that you did not observe any markings
on the concrete leading up to where the vehicle left the road way; did
you specifically look for them or did you just not notice any?

A. No, I can stand corrected on the actual mark where – I know on
my crash report there’s a spot where it left the road way on the curb.
There was some marks on that but I was actually referring to any skid
marks in the road way. But there was a point of impact where she
camo off the road way, hit the curb and then directly into the pole.

6

Officer Kumzik acknowledged he could not say categorically if the tie rod

breaking was the “causing factor of the accident.” Admittedly, as he noted several

times, Officer Kumzik is not a mechanic and felt hesitant to make such a

conclusion. However, a review of his testimony indicates he saw nothing to reveal

that Ms. Fontenot was driving erratically or at an excess speed. There were no skid

marks on the roadway, and there was only a scuff mark on the curb where the

vehicle left the road. He specifically testified a tire blowout could not have been

the cause of the loss of vehicle control, as it was not flat at the scene. The only

thing he observed that indicated a reason for the vehicle to have suddenly left the

road way was the broken tie rod. Although not a mechanic, Officer Kumzik

believed such a malfunction could certainly have led the vehicle to veer suddenly

off the road.

We find the evidence adduced during Plaintiff’s case in chief was enough to

survive a motion for involuntary dismissal. Ms. Fontenot presented evidence that

the broken tie rod was the reason for her losing control of the vehicle, veering off

the road and striking the utility pole. At this stage the burden shifted to the

Defendant’s insured to show that the accident was caused by a latent defect which

the owner was not aware of and did not result from the failure to maintain and care

for the vehicle. Apparently, the trial court improperly placed this burden on the

Plaintiffs. It may be true Defendants may be able to meet this burden, but this

evidence does not exist in the record before us. All that was offered was

speculation that the tie rod may have broken as a result of the vehicle striking the

curb or utility poll. However, as Officer Kumzik clearly testified, there was no

physical evidence presented below that supported such speculation. Thus, the

testimony and evidence presented below preponderates that the broken tie rod was

the cause of the accident and the trial court at this stage was manifestly erroneous

in concluding otherwise. The law is clear that “[i]n view of the clear legislative
7

policy and other empirical considerations, . . . the owner of an automobile

continues to have the garde of it and to be responsible for the damage caused by its

vice or defect even while it is in the physical custody or control of another.” King,

543 So.2d at 1330.

We likewise find nothing elicited at trial below indicates that Ms. Fontenot

had been delegated the right or the obligation to perform maintenance on the

vehicle. She specifically stated she was not responsible for the maintenance of the

vehicle and there was nothing to challenge that assertion. There was nothing

presented that she had the right of direction or control of the vehicle to the extent

that she was empowered to maintain its structural equipment. Consequently, Ms.

Fontenot was not in “a position to detect, evaluate or remedy any vice or defect in

the automobile’s [structural] system.” King, 543 So.2d at 1330.

We note part of the trial court’s stated reasoning for granting the motion for

involuntary dismissal was that Plaintiffs produced “insufficient evidence to prove

that there has been no maintenance on the vehicle.” As the law clearly provides

that duty should be placed on the owner unless Ms. Fontenot was in “a position to

detect, evaluate or remedy any vice or defect in the automobile’s [structural]

system,” it was error for her to be held to that duty.

For the above reasons, the judgment of the trial court granting the

defendant’s motion for involuntary dismissal is reversed. The case is remanded to

the trial court for further proceedings. All costs of this appeal are assessed to

defendant-appellee, Safeway Insurance Company of Louisiana.

REVERSED AND REMANDED.

8

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

17-780

HOLLY FONTENOT, ET AL.

VERSUS

SAFEWAY INSURANCE COMPANY OF LOUISIANA

AMY, J., dissenting.

I respectfully dissent as I find an affirmation required in this matter.

Importantly, a trial court evaluates a motion for involuntary dismissal upon

consideration of all evidence, without special inference in favor of the opponent of

the motions, and grants the dismissal if the plaintiff has not established proof by a

preponderance of the evidence. Trahan v. Acadiana Mall of Del., 14-232 (La.App.

3 Cir. 10/1/14), 149 So.3d 359. It appears to me that trial court, as the trier of fact,

made a straightforward determination that the plaintiffs failed to meet that burden

at the close of their case. I find no manifest error in that determination.

Fundamentally, Ms. Fontenot explained only that she was the permissive

driver of a vehicle, that she was driving reasonably, and that she heard a “pop”

before the vehicle apparently left the road. Officer Kuzmik’s testimony was

similarly limited as he identified an area where the vehicle hit the curb, left the

road, and struck the light pole. He explained that, after the accident, he identified

that the tie rod assembly was broken. However, as evidenced by the following

passage, Officer Kuzmik did not testify as to the chain of events:

Q Are you able to say if striking the curb was or was not a
possible source of the loud pop that Ms. Fontenot heard before she
lost control?

A No, ma’am.

....

Q A few minutes ago when Mr. Iles was asking you some
questions, I thought I heard you say that you don’t know if the tie rod
br[e]aking was the causing factor of the accident. As you sit here
today, you still can’t say if that’s what caused the chain of events.

A That’s correct.

Q Or if the broken tie rod was [a] consequence of something that
caused the chain of events.

A I don’t know. To be honest with you, I’m not a mechanic so I
couldn’t really tell you. And we’re not trained to - - we’re not crash
Reconstructionist[s].

Q Sure.

A So, I can’t say that, no.

Thus, upon consideration of either Ms. Fontenot’s testimony or that of Officer

Kuzmik, it seems to me that the plaintiffs lacked evidence of whether the tie rod

assembly was a causative factor in the vehicle leaving the road, or whether the

vehicle striking the curb was the source of the loud pop. Given that paucity of

factual evidence, I find that the trial court acted permissively in dismissing this

matter upon a conclusion that the plaintiff failed to meet her burden of proof.

Although I recognize that King v. Louviere, 543 So.2d 1327 (La.1989),

discusses an owner’s responsibility for the maintenance of his or her vehicle, I find

that case ultimately unhelpful in the present matter. Rather, King inquired into

whether the permissive driver could be held solidarily liable with the vehicle’s

owner (who was sued in strict liability) for the plaintiff’s injuries. Id. The

permissive driver in that case claimed a latent defect defense in an attempt to

exculpate herself from the negligence action lodged against her by the plaintiff.

While the supreme court observed that it was the owner who had the duty of

maintenance given the facts of that case (the permissive driver was using the car

for a work-related errand), it further explained that the permissive driver failed to

carry her burden of proving the applicability of the latent defect defense. Id. In

2

short, the plaintiff failed to demonstrate “that the accident was caused exclusively

by a latent defect in her vehicle and that she was not guilty even of slight

negligence that in any way contributed to the accident.” Id. at 1331. The

surrounding discussion demonstrates that the inquiry in King focused on the

permissive driver’s own negligence, not on the existence of an alleged defect.

Even assuming the owner’s duty of maintenance, however, it seems to me

that the plaintiffs were required to demonstrate the existence of the purported

defect and, in turn, causation. In my opinion, the trial court’s conclusion that they

did not do so is supported by the record as, ultimately, the plaintiffs proved only

the existence of a sound prior to the subject accident and a post-accident

observation regarding the car’s condition. Notably, no expert opinion testimony

was offered regarding the potential cause of the sound heard by the driver or the

potential mechanical issues involved.

For these reasons, I would affirm the trial court’s dismissal of this matter

pursuant to La.Code Civ.P. art. 1672(B).

3