Raven Boyance v. United Fire & Casualty Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-876

RAVEN BOYANCE, ET AL.

VERSUS

UNITED FIRE AND CASUALTY COMPANY, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 82216
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

AFFIRMED.

Conery, J., dissents and assigns reasons.

David R. Rabalais
The Dill Firm
Post Office Box 3324
Lafayette, Louisiana 70502-3324
(337) 261-1408
Counsel for Defendants/Appellees:
Canal Insurance Company
Clodhopper Trucking, LLC
William Caldwell

Kraig Thomas Strenge
Post Office Drawer 52292
Lafayette, Louisiana 70502-2292
(337) 261-9722
Counsel for Defendants/Appellants:
Christopher Crain
Louisiana Fresh Produce, LLC
United Fire and Casualty Company

Harry K. Burdette
The Glenn Armentor Law Corporation
300 Stewart Street
Lafayette, Louisiana 70501
(337) 233-1471
Counsel for Plaintiff/Appellee:
Raven Boyance
Raven Boyance o/b/o Rashawn Boyance

KEATY, Judge.

This appeal arises out of a three-vehicle collision. Appellants, United Fire

and Casualty Company, Christopher Crain, and Louisiana Fresh Produce, LLC

(hereafter collectively referred to as the Crain Defendants), appeal a judgment

granting summary judgment in favor of defendants, Canal Insurance Company,

William Caldwell, and Clodhopper Trucking, LLC (hereafter collectively referred

to as the Caldwell Defendants), “finding that William R. Caldwell was without

fault in causing the accident giving rise to this litigation.” For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Raven Boyance, individually and on behalf of her minor son, Rashawn

Boyance (hereafter collectively referred to as Ms. Boyance or Plaintiff), filed a

Petition for Damages in January 2015 against the Crain and the Caldwell

Defendants. The Petition alleged, in pertinent part, as follows:

3.
On January 9, 2014, [Ms.] Boyance was the driver of a 1999
Dodge Dakota. . . .
4.

Ms. Boyance was traveling westbound on I-10, in St. Martin
Parish, State of Louisiana. She was forced to slow to a stop after a
2000 Kenworth Trailer/Truck, driven by WILLIAM R.
CALDWELL, and owned by CLODHOPPER TRUCKING,
L.L.C., pulled onto the roadway from the shoulder immediately ahead
of Ms. Boyance, without notice. Ms. Boyance immediately applied
her brakes.

5.
At that time, CHRISTOPHER D. CRAIN, while operating a
2012 Isuzu Truck owned by LOUISIANA FRESH PRODUCE,
L.L.C., suddenly, and without warning, violently struck the back of
Ms. Boyance’s vehicle. The force of the collision was so severe that
it forced Ms. Boyance’s vehicle to rotate clockwise and then be
pushed into the 2000 Kenworth Trailer/Truck being operated by Mr.
WILLIAM R. CALDWELL. The full force of the collision set off a
chain reaction that also forced Ms. Boyance’s vehicle into the rear of

the vehicle in front of her, then continue to rotate clockwise until it
came to a rest in the middle of the roadway, engulfed in flames.
Plaintiff, Rashawn Boyance was a passenger in the vehicle, and was
trapped in his car seat in the back seat of the burning car, as his
mother watched.
6.

At the time of the accident Mr. WILLIAM R. CALDWELL
was an employee and agent of CLODHOPPER TRUCKING,
L.L.C.. Further, at the time of the accident, Mr. CHRISTOPHER D.
CRAIN was an employee and agent of CUSIMANO-CUCCIA,
L.L.C. D/B/A LOUISIANA FRESH PRODUCE L.L.C. AND
LOUISIANA FRESH FRUITS AND VEGETABLES, D/B/A
LOUISIANA FRESH PRODUCE, L.L.C.

The Caldwell Defendants filed a Motion for Summary Judgment (MSJ) on

July 26, 2016, asserting that Ms. Boyance would be unable to meet her burden of

proving negligence on the part of Mr. Caldwell. After several continuances, the

MSJ came for hearing on April 13, 2017. At the conclusion of the hearing, the trial

court granted summary judgment in favor of the Caldwell Defendants.

The Crain Defendants now appeal, asserting that1:

1. Opposing counsel for Canal Insurance, Clodhopper and
Caldwell failed to make a proper record for summary judgment.

2. The Honorable Louis Pittman, Jr. erred in making a factual
finding on ruling on a Motion for Summary Judgment.
3. The Honorable Louis Pittman, Jr. erred in granting plaintiff’s[2]
Motion for Summary Judgment.

DISCUSSION

“Appellate review of the granting of a motion for summary judgment is de

novo, using the identical criteria that govern the trial court’s consideration of

whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-

2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. “The summary judgment procedure is

1
For ease of discussion, we renumbered the Crain Defendants’ assignments of error.
2
The Crain Defendants’ assignment of error is factually incorrect as the MSJ at issue in
this appeal was filed by the Caldwell Defendants rather than by Plaintiff. We note that Plaintiff
did not file any pleadings in response to the Caldwell Defendants’ MSJ.
2

designed to secure the just, speedy, and inexpensive determination of every

action. . . . The procedure is favored and shall be construed to accomplish these

ends.” La.Code Civ.P. art. 966(A)(2). On de novo review, “there is no deference

to the trial judge’s legal findings, and we make an independent review of the

evidence in determining whether there is no genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law under La.Code Civ.P.

art. 966.” Bridges v. Cepolk Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153

So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14), 147 So.3d 1117. “A genuine

issue of material fact 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.” Smitko, 94 So.3d at 755.

According to La.Code Civ.P. art. 966(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.

Code of Civil Procedure Article 967(B) further provides:

When a motion for summary judgment is made and supported
as provided above, an adverse party may not rest on the mere
allegations or denials of his pleading, but his response, by affidavits or
as otherwise provided above, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be rendered against him.

The basis of the Caldwell Defendants’ MSJ was that Ms. Boyance would be

unable to meet her burden of proving that Mr. Caldwell acted negligently and that

his negligence caused the harm suffered by her and her son. In support of their

3

MSJ, the Caldwell Defendants attached several excerpts from Ms. Boyance’s

deposition.

The Crain Defendants opposed the motion claiming summary judgment was

premature because discovery was not complete as they had been unable to locate

and depose Mr. Crain and because they and the Caldwell Defendants had hired

experts who had yet to be deposed. They further claimed that many genuine issues

of material fact remained which precluded the granting of summary judgment in

favor of the Caldwell Defendants. The Crain Defendants attached to their

opposition the complete depositions of Ms. Boyance and Mr. Caldwell, along with

the deposition of State Trooper Timothy Breaux, who investigated the accident.

In a reply memorandum, the Caldwell Defendants pointed out that their MSJ

was filed nineteen months after this suit was filed. They alleged that the “only

impediment to the motion moving forward” is the inability of the Crain Defendants

to produce their insured driver, Christopher Crain, for deposition. The Caldwell

Defendants submitted that the so-called questions posed in the Crain Defendants’

opposition were not questions of material fact and as such did not preclude the

granting of summary judgment in their favor. In January 2017, the trial court

granted the Caldwell Defendants’ request to reset the MSJ for hearing.

Thereafter, the Crain Defendants filed a supplemental opposition, to which

they attached excerpts of the deposition testimony of Brent Munyon, the Forensic

Accident Reconstructionist hired by the Caldwell Defendants; the preliminary

report written by Mr. Munyon; the transcript of a February 2014 recorded

statement of William Caldwell; and the transcript of a January 2014 recorded

statement of Joe Robinson, an independent witness who was driving behind

Mr. Crain’s truck when the January 9, 2014 accident occurred. According to the

Crain Defendants, the exhibits attached to their supplemental opposition
4

“emphasize[d] the numerous factual issues herein,” precluding the appropriateness

of utilizing the summary judgment procedure in this matter. In response, the

Caldwell Defendants filed an objection to the supplemental opposition and

additional documents filed by the Crain Defendants as it was filed only six days in

advance of the already several times continued April 13, 2017 hearing, in

contravention of the requirement in La.Code Civ.P. art. 966(B)(2) that “[a]ny

opposition to the motion [for summary judgment] and all documents in support of

the opposition shall be filed and served . . . not less than fifteen days prior to the

hearing on the motion.” Alternatively, the Caldwell Defendants requested that

they be allowed to file an accompanying supplemental reply memorandum in

support of their MSJ. They attached to the pleading Mr. Munyon’s entire

deposition, along with the aforementioned transcribed statements of William

Caldwell and Joe Robinson.

Ms. Boyance did not oppose the Caldwell Defendants’ MSJ, nor did she

appear when the motion was heard on April 13, 2017. After listening to oral

arguments, the trial court stated that it had read the Crain Defendants’

supplemental opposition despite the Caldwell Defendants’ opposition to its having

been filing late. Thereafter, the trial court granted summary judgment in favor of

the Caldwell Defendants and designated the judgment as final for purposes of

immediate appeal.

Did the Caldwell Defendants Make a Proper Record to Support Their MSJ?

In their first assigned error, the Crain Defendants assert that because counsel

for the Caldwell Defendants failed to “formally offer his supporting documents

into evidence,” the record does not contain evidence to support the granting of

summary judgment in their favor. Because our review of this appeal is de novo,

we can only consider evidence that was properly offered in support of and in
5

opposition to the MSJ. Accordingly, we must address this assignment of error

before considering the merits of the MSJ.

The procedural rules governing summary judgments are found in La.Code

Civ.P. art. 966, which at all times relevant to this appeal provided, in pertinent part,

as follows:

A. (4) The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions. . . .

....

D. (2) The court may consider only those documents filed in
support of or in opposition to the motion for summary judgment and
shall consider any documents to which no objection is made. Any
objection to a document shall be raised in a timely filed opposition or
reply memorandum. The court shall consider all objections prior to
rendering judgment. The court shall specifically state on the record or
in writing which documents, if any, it held to be inadmissible or
declined to consider.

Louisiana Code of Civil Procedure Article 966 no longer requires the formal

introduction of evidence at a summary judgment hearing. Evans v. Bordelon, 13-

888 (La.App. 3 Cir. 3/19/14), 161 So.3d 674. The documents attached to the

Caldwell Defendants’ various memoranda in support are the type of documents

authorized in La.Code Civ.P. art. 966(A)(4) for a court’s consideration of a MSJ.

Moreover, the Crain Defendants failed to object to any of the documents the

Caldwell Defendants filed in support of their MSJ. “The intent of Article

966(D)(2) was to make it mandatory that any objection to a document filed in

support of or in opposition to a motion for summary judgment must be objected to

in a timely filed opposition or reply memorandum.” Adolph v. Lighthouse Prop.

Ins. Corp., 16-1275, p. 6 (La.App. 1 Cir. 9/8/17), 227 So.3d 316, 320 (emphasis

added). Without addressing the merits, we find that the Caldwell Defendants

supported their MSJ in conformity with the procedural dictates of La.Code Civ.P.
6

art. 966. Therefore, the supporting documents filed by the Caldwell Defendants

became a part of the record and can be considered by this court on appeal. The

Crain Defendants’ first assigned error lacks merit.

Was Summary Judgment Properly Granted?

In their second and third assignments of error, the Crain Defendants insist

that the trial court erred in making a factual finding on a MSJ and in granting

summary judgment in favor of the Caldwell Defendants. Because the issues raised

in these two errors are intertwined, we will discuss them simultaneously.

As stated above, this court must perform “an independent review of the

evidence in determining whether there is no genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law under La.Code Civ.P.

art. 966.” Bridges, 153 So.3d at 1145 (emphasis added). In Phillips v. City of

Crowley, 12-1306, pp. 5-6 (La.App. 3 Cir. 6/19/13), 115 So.3d 1240, 1243-44

(citations omitted), writ denied, 13-1718 (La. 11/1/13), 125 So.3d 432, this court

explained:

“[F]acts are material if they potentially insure or preclude recovery,
affect a litigant’s ultimate success, or determine the outcome of the
legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512
(La.7/5/94), 639 So.2d 730, 751 (quoting South Louisiana Bank v.
Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596
So.2d 211 (La.1992)). A genuine issue is one in 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. Id. Whether a fact is material is determined
in light of the relevant substantive law. In determining whether an
issue is “genuine,” courts cannot consider the merits, make credibility
determinations, evaluate testimony or weigh evidence.

“We must analyze the substantive law governing the instant matter to determine

whether a fact is material.” Leblanc v. Bouzon, 14-1041, p. 3 (La.App. 3 Cir.

3/4/15), 159 So.3d 1144, 1146. Louisiana Revised Statutes 32:81(A), titled

“Following vehicles,” provides, that “[t]he driver of a motor vehicle shall not

7

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.” “A following motorist involved in a rear-end collision, therefore, is

presumed to have breached this statutory duty.” Bouzon, 159 So.3d at 1146.

[A] legal presumption does exist that a following motorist who
collides into the rear end of a leading automobile is at fault. Matherne
v. Lorraine, 03-2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246.
The following motorist must exonerate himself or herself from fault
before he or she can completely avoid liability. Id. However,
notwithstanding the presumption of negligence, a favored motorist
can still be assessed with comparative fault if his or her substandard
conduct contributed to the cause of the accident. Id. “[O]nce the
presumption of negligence attaches to the defendant, the ordinary
rules of comparative negligence apply[.”]

Id. at 1147 (quoting Graffia v. La. Farm Bureau Cas. Ins. Co., 08-1480, p. 7

(La.App. 1 Cir. 2/13/09), 6 So.3d 270, 274). “A motion for summary judgment

can be granted on the presumption that a following motorist who strikes a leading

motorist is negligent.” Lewis v. Old Republic Ins. Co., 17-456, p. 3 (La.App. 3 Cir.

8/23/17), 226 So.3d 557, 559.

In Bouzon, the lead driver in a three-vehicle collision appealed the trial

court’s grant of summary judgment in favor of the middle driver in the personal

injury lawsuit the lead driver filed against the drivers of the other two vehicles

involved in the accident. Upon de novo review, this court affirmed, noting that

“[t]he burden of proof remains with the following motorist who must prove that he

was not negligent.” Bouzon, 159 So.3d at 1147. Thereafter, we explained:

In order to rebut the objective evidence that [the driver of the
first vehicle] and [the driver of the second vehicle] were able to safely
stop and avoid a collision, [the driver of the third vehicle] must show
that he had his vehicle under control, closely observed the lead
vehicle, and followed at a safe distance prior to rear-ending [the
second] vehicle.

Id. at 1149. Because we concluded that the testimony and evidence submitted in

favor of and in opposition to the middle driver’s MSJ indicated that the driver of
8

the third vehicle would not be able to rebut the presumption that he was at fault in

causing the accident, we affirmed. We rejected the lead driver’s contention that

“some of the fault attributed to [the driver of the third vehicle] may be transferred

to [the driver of the second vehicle,]” finding no evidence to support the lead

driver’s suggestion that the middle vehicle struck her car two times. Id. at 1147.

Finally, we found the sudden emergency doctrine inapplicable to the third driver

where the drivers of the first two vehicles “stopped their vehicles and avoided a

collision despite the heavy traffic.” Id. at 1149.

In the instant case, Ms. Boyance, the driver of the middle car, explained in

her deposition that when Mr. Caldwell merged onto I-10 in front of her, she was

able to slow down from seventy miles per hour to approximately forty miles per

hour because she could see him from a far distance away. She recalled telling her

son, “thank God I saw him,” and being rear-ended before she could finish her

sentence. She stated that she did not strike Mr. Caldwell’s truck before she was

struck from behind. Mr. Robinson, a truck driver who was traveling westbound on

I-10 about 150 yards behind Mr. Crain’s “6 wheeler,” gave a recorded statement

eleven days after the accident. Mr. Robinson stated that he was able to see

Mr. Caldwell’s “18 wheeler” merge onto the highway. He explained that, from

what he saw, he “guess[ed] the 6 wheeler might have clipped [Ms. Boyance’s]

SUV in the tail end which spun it around which hit the back of the tractor trailer.”

Mr. Robinson stated that he told his version of the accident to the investigating

state trooper.

Trooper Breaux testified in his deposition that Mr. Crain told him that he

was following behind Ms. Boyance’s vehicle on I-10 West, and when he realized

that her vehicle was slowing down, he was unable to stop in time to avoid hitting

her from behind. Trooper Breaux explained that he found no evidence that
9

Plaintiff’s SUV struck Mr. Caldwell’s truck before she was hit from behind by

Mr. Crain. After completing his investigation, Trooper Breaux concluded that

Mr. Crain had not maintained a safe, appropriate distance between his vehicle and

Ms. Boyance’s vehicle and issued a citation to him for following too close.

The Crain Defendants put great emphasis on the statement in Mr. Caldwell’s

deposition that he felt two bumps, the first one of which was very light and the

second one which was harder, and they suggest that Mr. Caldwell created a sudden

emergency by improperly merging in front of Ms. Boyance. They also point to

inconsistencies between the testimonies of Ms. Boyance, Mr. Caldwell, Trooper

Breaux, and Mr. Munyon regarding the precise location of the accident, which they

claim present a genuine issue of material fact that make the issue of Mr. Caldwell’s

liability inappropriate for resolution via summary judgment.

The Caldwell Defendants counter that the Crain Defendants have failed to

present any evidence that Mr. Caldwell “merged improperly or illegally” or in an

otherwise negligent manner. They refer to Ms. Boyance’s testimony wherein she

stated that it “wasn’t in a manner of me just jamming my foot on the brakes” but it

also “wasn’t just me slowly as if coming in to a stop sign.” Finally, they submit

that the minor discrepancies noted by the Crain Defendants do not amount to

genuine issues of a material fact.

We have completed a de novo review of the evidence offered in support of

and in opposition to the MSJ, and we conclude that the Crain Defendants failed to

rebut the presumption that Mr. Crain was negligent in causing the accident. We

are satisfied that no genuine issues of material fact remain in dispute and that the

Crain Defendants cannot exonerate Mr. Crain of fault or establish facts sufficient

to demonstrate the comparative fault of Mr. Caldwell. Although the initial burden

of proof would rest with Ms. Boyance at trial, if she were to succeed in proving
10

Mr. Crain’s fault in causing this accident, the burden would shift to the Crain

Defendants, based on their alleged affirmative defense, to prove that Mr. Caldwell

was comparatively at fault. Accordingly, the Crain Defendants had to do more

than simply “rest on the mere allegations . . . of [their] pleading” and were

required to “set forth specific facts” to show that a genuine issue remained

regarding Mr. Caldwell’s liability for causing the subject accident. La.Code Civ.P.

art. 967(B). They failed to do so. Because we are convinced that “reasonable

persons could reach only one conclusion,” i.e., that Mr. Caldwell did not commit

any negligence that resulted in the damages suffered by Ms. Boyance and her son,

we conclude that summary judgment was properly rendered in favor of the

Caldwell Defendants. Phillips, 115 So.3d at 1244. There is no merit to the Crain

Defendants’ second and third assigned errors.

DECREE

For the foregoing reasons, the trial court judgment in favor of Canal

Insurance Company, William Caldwell, and Clodhopper Trucking, LLC is

affirmed. All costs of this proceeding are assessed against Appellants, Christopher

Crain, Louisiana Fresh Produce, LLC, and United Fire and Casualty Company.

AFFIRMED.

11

Conery, J., dissents and assigns reasons.

I respectfully dissent. After reviewing all the evidence and the trial judge’s

reasons, I would find that this “chain reaction collision” is not appropriate for

summary judgment.

A review of the summary judgment evidence shows that plaintiff, Ms.

Boyance, was driving in the right lane of I-10 W with her son as a passenger. She

saw an eighteen-wheeler, driven by Mr. Caldwell, unexpectedly pull into the lane

in front of her, requiring her to immediately apply her brakes. Ms. Boyance was

then hit from behind by Mr. Crain, propelling her vehicle into Mr. Caldwell’s

truck, where she then spun on the road, and her vehicle burst into flames. Ms.

Boyance sued Mr. Caldwell, his employer and its insurer, as well as Mr. Crain, his

employer and its insurer, claiming the collision and resulting damages were caused

by the fault of both drivers.

Nineteen months after suit was filed, the three Caldwell defendants filed a

collective motion for summary judgment, which was granted by the trial court.

The trial judge carefully weighed all of the evidence and concluded in his

oral reasons that when Ms. Boyance saw Mr. Caldwell’s eighteen-wheeler enter

her traffic lane, “she (Ms. Boyance) did moderate braking. She didn’t say she

slammed on her brakes, she said moderate braking and the fact that rains crystal

clear to me that Louisiana Fresh Produce (Mr. Crain’s vehicle) was the vehicle that

struck her first.” The conscientious trial judge in this case carefully reviewed all

the evidence and obviously made factual findings as to when Ms. Boyance first

saw Mr. Caldwell’s vehicle attempt to merge, whether she forcefully applied her

brakes, the relative speeds of the three vehicles and whether to accept Mr.

Caldwell’s testimony that he felt two impacts. Had all of this same evidence been
12

submitted for a decision on the merits, I would likely agree to affirm, as at a trial

on the merits, the trial judge has the duty and obligation to weigh the evidence,

assess credibility, make factual findings, and render a decision in accordance with

the law and the evidence.

However, I would find that the well-meaning trial judge improperly

weighed the evidence and made factual findings and conclusions that are

inappropriate for summary judgment based on the conflicting evidence in this case.

See Mecon v. Mobil Oil Company, 299 So.2d 380 (La.App. 3 Cir.), writ denied,

302 So.2d 308 (La.1974) (“the weighing of conflicting evidence on a material fact

has no place in summary judgment procedure”). I would submit that at the very

least, there is a genuine issue of material fact as to whether but-for Mr. Caldwell’s

manner of merging into traffic on I-10, this accident would not have occurred.

While I agree that the Crain vehicle was following too closely and/or driving

without due regard as to the safety of the preceding vehicle driven by Ms.

Boyance, there are genuine issues of material fact as to Mr. Caldwell’s

comparative fault for improperly merging onto I-10 from the shoulder or the merge

lane from the weigh station.

The majority affirmed the trial court’s judgment finding no genuine issues of

material fact to defeat the Caldwell defendants’ motion. The majority opinion

explores the law on following too closely and the presumption that a second driver,

Mr. Crain, who rear-ends the driver in front of him, Ms. Boyance, is presumed to

be at fault, and the Crain defendants did not properly show the existence of

genuine issues of material facts. The majority finds that the trial court was correct

to apply the presumption of negligence against Mr. Crain, his employer and its

insurer, and grant the Caldwell defendants’ motion for summary judgment

exculpating the driver of the eighteen-wheeler, Mr. Caldwell, from fault.
13

However, it is undisputed that Mr. Caldwell’s Kenworth eighteen-wheeler

tractor trailer attempted to merge onto I-10, a heavily traveled interstate at

approximately 8:00 am during peak traffic time. Ms. Boyance then saw the

eighteen-wheeler and immediately applied her brakes. Mr. Crain’s truck then

struck her from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler. The

record evidence shows that when Mr. Caldwell entered onto I-10 in Ms. Boyance’s

lane of travel, the distance from the truck weigh station, the distance between the

three vehicles and the relative speed of the vehicles are all in dispute.

Ms. Boyance clearly stated in her deposition that Mr. Caldwell pulled onto I-

10 from the shoulder of the road unexpectedly and without warning or turn signals:

“once I saw him merger, I immediately just hit my brakes.” When asked whether

she gradually slowed down on seeing the eighteen-wheeler “merge on”, she stated:

“I wouldn’t say gradual . . . . I mean I seen him on the side of the road but his

merge on was unexpected. I had to kind of hesitate a little bit, but I didn’t actually

have to slam it (meaning her brakes) and tires burning, it wasn’t that extent. But it

was enough for me to have to quickly react.”

She further testified that she would have had to continue to brake to avoid

hitting Mr. Caldwell’s truck. At the very least Ms. Boyance’s deposition testimony

leaves open an interpretation of the evidence that Mr. Caldwell “unexpectedly” and

improperly merged into Ms. Boyance’s lane of traffic, causing her to “react

quickly” and “immediately just hit my brakes”, causing Mr. Crain then to strike her

vehicle from the rear, propelling her into Mr. Caldwell’s eighteen-wheeler.

Louisiana Revised Statutes 32:124 (the statute governing motorists entering

highways from private driveways), provides, “[t]he driver of a vehicle about to

enter or cross a highway from a private road, driveway, alley or building, shall stop

such vehicle . . . and shall yield the right of way to all approaching vehicles so
14

close as to constitute an immediate hazard.” In Sholar v. U.S. Fire Ins. Co., 261

So.2d 327, (La.App. 1 Cir. 1972) the court held that a motorist who enters the

highway from the shoulder is held to the same standard of care as a motorist

entering the highway from a private driveway.

A panel of our court in Loveday v. Travelers Ins. Co., 585 So.2d 597

(La.App. 3 Cir.); writ denied 590 So.2d 65 (La.1991) stated in a case similar to the

case at bar:

It is clear from the testimony and evidence that Jowers breached the duty set

for the under LSA - R.S. 32:64(B) by failing to accelerate his speed sufficiently

prior to attempting to re-enter the interstate from the shoulder. This negligence

was a cause in fact of the accident.

[6] Also, under LSA - R.S. 32:124 Jowers had a duty, in attempting to enter

the interstate from the shoulder, to yield the right of way to all approaching

vehicles so close as to constitute an immediate hazard. A motorist attempting to

enter the highway from the shoulder of the road is held to the same standard of

care as the motorist entering a highway from a private driveway. The motorist

entering a highway from a private driveway has the primary duty to avoid a

collision. Sholar v. U.S. Fire Ins. Co., 261 So.2d 327 (La.App. 1st Cir. 1972).

Also, Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385

(1972); Boutte v. Rig Hammers, Inc., 303 So.2d 805 (La.App. 3d Cir.1974); Bates

v. Lagars, 193 So.2d 375 (La.App. 2d Cir.1966), writ refused, 250 La. 267, 195

So.2d 146 (1967).

[7] This duty becomes more onerous as the hazards increase and requires a

motorist to use every reasonable means available to ascertain that his entry onto

the highway may be made in safety. Further, such a driver is required to keep a

lookout for vehicles upon the highway and to desist from entering until it is
15

apparent to a reasonable prudent person that such can be done in safety. Soileau v.

LaFosse, 558 So.2d 294 (La.App. 3d Cir.1990); Wells v. Allstate Insurance Co.,

510 So.2d 763 (La.App. 1st Cir.,) writ denied, 514 So.2d 463 (La.1987); Hardee v.

St. Paul Fire and Marine Ins. Co., 445 So.2d 771 (La.App. 3d Cir.1984).

In Maylen v. Great West Casualty Company, 15-484, (La.App. 3 Cir.

11/4/15), 178 So.2d 302, another panel of our court found that because the facts

were not in dispute in that case, summary judgment was appropriate. While

recognizing the duty of the merging motorist to yield the right of way, the

uncontroverted facts in that case indicated that once the defendant driver merged,

the second and third vehicles following him were able to slow their vehicles and

avoid a collision. “Neither was forced to make a complete stop or travel off of the

shoulder of the road.” The court stated: “Accordingly, the summary judgment

evidence shows that David (the merging vehicle) did not fail to yield to the

approaching vehicles so close as to constitute an immediate hazard. Thus David

did not breach his duty.” Id at p 306.

I would submit that the driver of an eighteen-wheeler entering traffic

on a heavily traveled Interstate Highway during peak traffic hours from a highway

weigh station or shoulder has an exceptionally high duty of care when attempting

to merge onto that busy interstate highway. Loveday v. Travelers Ins. Co., supra.

I would find that in this case there are genuine issues of material fact as to whether

Mr. Caldwell improperly merged onto I-10, which action contributed to this “chain

reaction collision.” I would reverse the summary judgment and remand the case to

the trial court for a full trial on the merits.

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