Blanche Smith v. Doris Howell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-452

BLANCHE SMITH

VERSUS

DORIS HOWELL, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 258,156
HONORABLE MONIQUE RAULS, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.

REVERSED AND REMANDED.

Bonita Preuett-Armour
P. O. Box 8386
Alexandria, LA 71306
(318) 442-6611
COUNSEL FOR DEFENDANTS/APPELLANTS:
State Farm Mutual Automobile Insurance Company
Doris Howell

Joseph Payne Williams, Jr.
Williams Family Law Firm
P. O. Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Farm Bureau Casualty Ins.Co.

Brian M. Caubarreaux
Eugene A. Ledet, Jr.
Emily Gremillion
Wesley K. Elmer
Laura B. Knoll
Brian Caubarreaux & Associates
114 W. Tunica Drive
Marksville, LA 71351
(318) 253-0900
COUNSEL FOR PLAINTIFF/APPELLEE:
Blanche Smith

SAVOIE, Judge.

In this auto accident case, Defendants Doris Howell (“Ms. Howell”) and

State Farm Mutual Automobile Insurance Company (“State Farm”) appeal the trial

court’s partial summary judgment assessing them with one hundred percent

liability. For the following reasons, we reverse the judgment of the trial court and

remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2016, Blanche Smith (“Ms. Smith”) and Ms. Howell were

involved in an auto accident on Coliseum Boulevard (“Coliseum”) in Alexandria,

Louisiana. Coliseum is a divided highway with a median separating the eastbound

lanes from the westbound lanes. Ms. Howell was initially driving on the

westbound side of Coliseum, with her husband riding in the passenger seat. From

the left turn lane, Ms. Howell turned left into the intersection of Coliseum and

Vandenburg Drive (“Vandenburg”) and then proceeded to make a left turn, or U-

turn, into the eastbound side of Coliseum. In doing so, Ms. Howell’s vehicle

collided with a vehicle driven by Ms. Smith on the eastbound side of Coliseum,

near the intersection of Coliseum and Vandenburg.

On February 23, 2017, Ms. Smith filed a petition seeking damages she

claims were sustained in the July 12, 2016 accident and naming Ms. Howell, and

Ms. Howell’s insurer, State Farm, as Defendants. She also named her own auto

insurer, Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”), as

a defendant; however, her uninsured motorist claims against Farm Bureau were

dismissed pursuant to a consent judgment filed October 20, 2017, with a

reservation of rights to assert a claim for medical payments coverage against Farm

Bureau.

On February 28, 2019, Ms. Smith filed a motion for partial summary

judgment seeking a ruling that Ms. Howell was solely at fault in connection with

the subject accident, and therefore, that Ms. Howell and State Farm were liable for

one hundred percent of any damages Ms. Smith sustained in the accident. Therein,

Ms. Smith argued it was undisputed that Ms. Howell “breached her duty as a

reasonable and prudent motorist by failing to see what should have been seen

under the circumstances.” In support of her motion, Ms. Smith submitted the

deposition testimony of Ms. Howell, as well as the exhibits attached to Ms.

Howell’s deposition, which included a copy of Ms. Howell’s driver’s license, a

copy of Ms. Howell’s Registration Certificate pertaining to her vehicle, a

photograph of Ms. Howell’s vehicle following the accident, and a copy of a

“Google Earth” image showing the intersection of Coliseum and Vandenburg and

the location of the accident. During the hearing on the motion for partial summary

judgment, Ms. Howell’s deposition and attached exhibits were accepted into

evidence without objection. No other exhibits or affidavits were submitted in

support of Ms. Smith’s motion.

In her deposition, Ms. Howell testified as follows with respect to the subject

accident when questioned by counsel:

A. Well, we went to this little Dollar General . . . and then I was
going to go to Wal-Mart. And I had to pull out on the highway
[Coliseum] and I pulled out and I waited until the traffic on the other
side come down the road, and then I pulled out and I hit a car. But I
don’t know where the car come from and I don’t remember seeing it
until after it was all over with.

....

Q. All right. Before you decided to make your turn, before the
accident happened, you first started going west on . . . Coliseum
Boulevard, correct?

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A. Yes.

Q. And then you got to the turning lane at the intersection of
Vandenburg?

....

A. Yes.

Q. Okay. And then you waited for the cars to pass you that were
coming the opposition direction?

....

A. Yes.

....

Q. Okay. And you never saw Ms. Blanche Smith, where she was
coming from?

A. I never saw her at all. Now, when it happened, my husband said
where did that car come from because we hadn’t seen her, we don’t
know. But she was there[,] and we hit her and that was that.

Q. Okay. Do you know if Ms. Blanche Smith, the person you hit, do
you know if she did anything wrong to cause this accident?

A. No.

Q. Do you accept responsibility for causing the accident?

A. Yes.

....

A. Well, if it was my fault, it was my fault. I don’t know for sure. I
didn’t see her. I don’t know where she was[.]

In connection with her deposition testimony, Ms. Howell also identified her

path of travel on the Google Earth image of the Coliseum and Vandenburg

intersection. Ms. Howell testified that prior to turning into the eastbound lanes of

Coliseum, she entered the turning lane on the left side of the westbound lanes at

the intersection of Coliseum and Vandenburg, and she completed the “whole turn”

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onto the eastbound side of Coliseum. She marked an “X” on the Google Earth

image at the location where she believed the accident took place and testified as

follows when questioned by counsel:

Q. Ms. Howell, it’s my understanding that your vehicle was, as
you’ve identified on “Exhibit 4” [the Google Earth image], made this
path of travel where the arrows are drawn, is that correct?

A. Uh-huh, and this is about where the wreck was. See, there’s a
driveway right there. She could have come out of that driveway, I
don’t know where she came from.

....

Q. Now, you said that you looked and you never saw her?

A. No. Now, I sat here a little while because there was an SUV, a
green SUV . . . but I waited until that car passed before I pulled out.

....

Q. And your vehicle sat here at this, in the turn lane?

A. Yeah, until I watched the traffic come down the road.

Q. And then it moved across the median area?

A. Uh-huh.

....

Q. And it moved across the left lane of travel [on the eastbound side
of Coliseum]?

A. Yeah, and it moved across the left and it was over there on the
right side.

Q. So there was a distance of the median and the left lane that you
traveled before this contact occurred, is that right?

....

A. Yeah.

The Google Earth image shows that at the intersection of Coliseum and

Vandenburg, there is a traffic light directing the westbound lanes of traffic on

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Coliseum, and also a traffic light directing the southbound traffic on Vandenburg.

Given the angle of the image, however, it is unclear whether there was also a

traffic light directing the eastbound traffic on Coliseum or the northbound traffic

on Vandenburg. In addition, the Google Earth image indicates that there is access

to the eastbound lanes of Coliseum from either Vandenburg on the southside of the

intersection and/or the driveway or parking lot of what appears to be a business

along the eastbound side of Coliseum near where the accident took place.

Ms. Howell further testified that there was not anything in her way to

obscure her vision, and “[t]here wasn’t hardly no traffic on the road.” The

following colloquy also took place between Ms. Howell’s counsel and Ms. Howell

in connection with the deposition:

Q. Do you know if there were any obstructions that would have
prevented her from seeing you cross these lanes?

A. No. . . and she said the light was green and she said that she saw
me but she couldn’t get out of the way so I don’t know what . . .

Q. So you don’t know whether or not she had time enough to avoid
the accident or not, do you?

A. No, I don’t know. But she said she saw me, that she tried to get
out of the way, so I don’t know.

....

Q. Now, [Ms. Smith’s counsel] asked you if you took responsibility
for this accident. Well, she may have had some responsibility for this
accident too because she could have seen you and tried to avoid that,
correct?

A. Correct, she could have.

Ms. Howell also consistently testified in connection with her deposition that

she never saw Ms. Smith or her vehicle until after the accident, so she did not

know how fast Ms. Smith was driving at the time, where her vehicle had come

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from prior to the two vehicles making contact in the righthand lane of the

eastbound side of Coliseum, or what Ms. Smith did, or could have done, to avoid

the accident. In addition, Ms. Howell’s deposition testimony indicates that the

front passenger side of her vehicle made contact with the driver’s side of Ms.

Smith’s vehicle, but that she “didn’t see anything on her [Ms. Smith’s] car to show

where she had got hit[.]”

In opposition to Ms. Smith’s motion for summary judgment, Ms. Howell

submitted a one-page excerpt from Ms. Smith’s deposition testimony, wherein Ms.

Smith was asked whether she saw Ms. Howell before the contact occurred and Ms.

Smith testified “[m]aybe five seconds before, not more.” This was also accepted

into evidence without objection.

Following the hearing on Ms. Smith’s motion for partial summary judgment,

the trial court stated as follows:

Okay. The Court’s going to grant the Motion for Summary
Judgment on liability. It’s clear that the defendant, herself, has clearly
stated that she’s liable; she didn’t see her. And there’s nothing, no
more than the defendant herself said, that, yeah, maybe she could have
done something, but - - I’m - - in the face of the other testimony, it’s
clear that Ms. Howell believes that she caused this accident, and that
Ms. Smith definitely didn’t.

So, the - - the Court doesn’t see that there is a genuine issue.
There’s no conflict that’s regarding that, in the court’s eyes. And so,
the Court’s granting the Motion for Summary Judgment.

The trial court then rendered a judgment on April 15, 2019, ordering “that

[P]laintiff’s Motion for Summary Judgment on the Issue of Liability is hereby

granted, whereby [D]efendants, State Farm . . . and Doris Howell are assessed with

100% liability in this matter.” The trial court further designated the judgment as

final and appealable.

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Thereafter, Defendants Ms. Howell and State Farm appealed the partial

summary judgment rendered against them. In their sole assignment of error, they

state “[t]he trial court erred in granting Plaintiff’s Motion for Summary Judgment,

where genuine issues of material fact exist with regard to Plaintiff’s comparative

fault in causing the accident, which issues of fact preclude summary judgment.”

ANALYSIS

“[T]he trial court’s determination in a motion for summary judgment is

reviewed de novo. Accordingly, the appellate court uses the same criteria as the

trial court in determining whether summary judgment is appropriate[.]”

Berthiaume v. Gros, 15-116, p. 3 (La.App. 3 Cir. 6/3/15), 165 So.3d 1275, 1277

(internal citations omitted).

The Louisiana Code of Civil Procedure provides as follows with respect to

summary judgments: “After an opportunity for adequate discovery, a motion for

summary judgment shall be granted 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.” La.Code Civ.P. art. 966(A)(3).

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.

La.Code Civ.P. art. 966(D)(1).

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 recovery. Ebarb v. Matlock, 46,243
(La.App. 2 Cir. 5/18/11), 69 So.3d 516, writ denied, 11-1272 (La.

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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.

Berthiaume, 165 So.3d at 1277.

“The allocation of fault is a factual finding. Where reasonable minds could

differ as to the comparative fault of the parties, summary judgment is

inappropriate.” Id. at 1278 (internal citations omitted).

In the instant case, Ms. Howell and State Farm argue that genuine issues of

material fact pertaining to Ms. Smith’s comparative fault preclude summary

judgment. They note that the record is unclear as to where Ms. Smith was coming

from prior to impact with Ms. Howell’s vehicle or how fast Ms. Smith was

traveling just prior to the accident. Ms. Howell and State Farm further argue that

the trial court erred in concluding it was “clear that Ms. Howell believes that she

caused this accident, and that Ms. Smith definitely didn’t[.]” They note that this

conclusion is contrary to Ms. Howell’s deposition testimony and that Ms. Howell’s

statement regarding her own responsibility is not a judicial confession or otherwise

determinative of Ms. Smith’s comparative fault.

Ms. Smith, however, argues that the summary judgment should be

maintained, indicating that there is a presumption of fault imposed on a left turning

or U-turning motorist and Defendants failed to provide any positive evidence

indicating that Ms. Smith did anything to cause the accident at issue, despite their

burden of doing so.

We agree with Ms. Howell and State Farm that the record on summary

judgment creates issues of material fact that preclude summary judgment. There is

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no positive evidence regarding Ms. Smith’s actions just prior to the accident, other

than: (1) Ms. Howell’s testimony that the front passenger side of her vehicle made

contact with the driver’s side of Ms. Smith’s vehicle in the righthand lane of the

eastbound side of Coliseum; (2) Ms. Howell’s testimony that Ms. Smith reported

to her after the accident that the “the light was green and she said that she saw me

but she couldn’t get out of the way,” with no indication as to which traffic light at

the intersection was being referenced;1 and (3) Ms. Smith’s testimony that she saw

Ms. Howell’s vehicle “maybe five seconds before the accident happened.” There

is no other positive testimony from Ms. Smith in the record regarding her actions,

and Ms. Howell consistently testified she did not see Ms. Smith’s vehicle prior to

the accident or otherwise know where Ms. Smith had come from.

In addition, the Google Earth image of the intersection at issue indicates that

there was a road or driveway at the intersection of the eastbound side of Coliseum

and Vandenburg, as well as other locations along the eastbound side of Coliseum,

from which Ms. Smith could have turned right onto Coliseum just prior to the

accident. This, coupled with the lack of positive evidence concerning Ms. Smith’s

actions just prior to the accident, creates an issue of material fact regarding

whether Ms. Smith was comparatively at fault in causing the accident, and also

whether Ms. Howell could have, or should have, reasonably seen Ms. Smith prior

to the accident. While Ms. Smith argues that the facts “unequivocally establish

that prior to the collision, plaintiff, Blanche Smith, was driving eastbound on

Coliseum” and suggests that she had the right of way “at all times,” these

1
There is no indication in the record whether Ms. Howell was referring to a traffic light
directing the eastbound traffic on Coliseum at the intersection of Vandenburg, or a traffic light
directing the northbound traffic on Vandenburg, or the business driveway at the intersection,
which could turn right into the eastbound side of Coliseum or cross north through the
intersection.

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statements are not supported by the record. Rather, the record merely reflects that

the parties’ vehicles collided in the righthand lane on the eastbound side of

Coliseum, with the front passenger side of Ms. Howell’s vehicle coming into

contact with an unknown location on the driver’s side of Ms. Smith’s vehicle. This

is insufficient to support a summary judgment finding of sole liability on the part

of Ms. Howell.

We further note that Ms. Howell’s statement in her deposition wherein she

answered “Yes” to Ms. Smith’s counsel’s question asking whether she accepted

responsibility for causing the accident, when taken together with her entire

deposition testimony and attached exhibits, does not equate to an admission of sole

liability for the accident or otherwise support a summary judgment finding that Ms.

Howell was solely at fault. While Ms. Smith suggests on appeal that we should

disregard Ms. Howell’s subsequent deposition testimony clarifying or explaining

this initial statement because it was the result of improper leading questions by Ms.

Howell’s counsel, we note that Ms. Howell later stated in response to a question by

Ms. Smith’s counsel, “Well, if it was my fault, it was my fault. I don’t know for

sure. I didn’t see her. I don’t know where she was[.]” We further note that it was

Ms. Smith who submitted Ms. Howell’s entire deposition testimony into the record,

and the deposition was accepted by the trial court without objection. Therefore, we

may consider the entire deposition testimony in connection with our review of the

summary judgment at issue.

Accordingly, we conclude, for the reasons set forth above, that the trial court

erred in granting partial summary judgment on the issue of liability, and we

remand the matter for further proceedings.

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DECREE

The partial summary judgment granted in favor of Ms. Smith and against Ms.

Howell and State Farm is hereby reversed, and this matter is remanded to the trial

court for further proceedings. Costs of this appeal are assessed to Ms. Smith.

REVERSED AND REMANDED.

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