Alisha Allen and Jason Allen v. Fcci Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-624

ALISHA ALLEN AND JASON ALLEN

VERSUS

FCCI INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 145440
HONORABLE RICHARD ERIC STARLING, JR., CITY COURT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED.

Allena W. McCain
Butler Snow, LLP
445 N. Boulevard, Suite 300
Baton Rouge, LA 70802
(225) 325-8700
COUNSEL FOR DEFENDANTS/APPELLANTS:
FCCI Insurance Company
Zachary Waltenbaugh
Sign Edge USA, LLC

Wilbert J. Saucier, Jr.
2220 Shreveport Hwy
Pineville, LA 71360
(318) 473-4146
COUNSEL FOR PLAINTIFFS/APPELLEES:
Alisha Allen
Jason Allen

Michael L. Glass
1733 White Street
Alexandria, LA 71301
(318) 484-2917
COUNSEL FOR PLAINTIFFS/APPELLEES:
Alisha Allen
Jason Allen

EZELL, Judge.

Summary judgment was granted in this case on the issue of liability, finding

that Zachary Waltenbaugh was solely at fault for a vehicular accident he was

involved in with Alisha Allen. Mr. Waltenbaugh, Sign Edge USA, LLC, and FCCI

Insurance Company, appeal the judgment of the trial court. For the following

reasons, we affirm.

FACTS

At the time of the accident, Mr. Waltenbaugh was employed by Sign Edge

USA. On May 10, 2019, Mr. Waltenbaugh was in Alexandria, Louisiana

proceeding in a southerly direction on Jackson Street in a company truck, looking

for a location to install a sign for a real estate company. Meanwhile, Ms. Allen

was driving east on 4th Street. At the intersection of Jackson Street and 4th Street,

Mr. Waltenbaugh’s truck collided with Ms. Allen’s car.

Ms. Allen and her husband, Jason, filed suit against Mr. Waltenbaugh, Sign

Edge USA, and its insurer, FCCI Insurance Company, on November 14, 2019.

They subsequently filed a motion for partial summary judgment on the issues of

liability, insurance coverage, and marital status.

At the hearing on the motion for partial summary judgment on October 21,

2020, the parties agreed that there was no objection to the Allens’ position on

insurance coverage and marital status, so the hearing proceeded on the issue of

liability only. The trial court ruled that Mr. Waltenbaugh ran a red light and

granted summary judgment in favor of the Allens finding Mr. Waltenbaugh one-

hundred percent at fault for the accident. Judgment was signed that same day. In

addition to finding Mr. Waltenbaugh solely at fault for the accident, the judgment

also established that the policy issued by FCCI Insurance Company afforded

coverage for the accident and that Alisha was married to Jason at the time of the

accident. The judgment was certified as a final judgment pursuant to La.Code

Civ.P. art. 1915, and Defendants filed the present appeal.

SUMMARY JUDGMENT

On appeal, Defendants claim that the trial court applied improper legal

standards, made inappropriate credibility determinations, and improperly weighed

conflicting testimony evidence in granting the Allens’ motion for summary

judgment on liability. They claim that there are genuine issues of material fact as

to whether Alisha Allen was at fault for the accident.

“A motion for summary judgment is a procedural device used to avoid a

full-scale trial when there is no genuine issue of material fact.” N. Am. Fire & Cas.

Co. v. State Farm Mut. Auto. Ins. Co., 03-300, p. 3 (La.App. 3 Cir. 10/1/03), 856

So.2d 1233, 1235, writ denied, 03-3334 (La. 2/13/04), 867 So.2d 694. Appellate

courts review motions for summary judgment de novo, using the same criteria that

the trial court considers in determining whether summary judgment is appropriate.

Dunn v. City of Kenner, 15-1175 (La. 1/27/16), 187 So.3d 404.

The summary judgment procedure is favored and “designed to secure the

just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.

966(A)(2). Appellate courts review the grant or denial of a motion for summary

judgment de novo, “using the same criteria that govern the trial court’s

determination of whether summary judgment is appropriate; i.e., whether there is

any genuine issue of material fact, and whether the movant is entitled to judgment

as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880,

882-83; La.Code Civ.P. art. 966(A)(3).

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The moving party has the burden of proof unless 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[.]” La.Code Civ.P. art. 966(D)(1). In that case, the mover

need only:

[P]oint 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.

Id.

In the motion for summary judgment, Mrs. Allen argues that she had a green

light when she proceeded into the intersection and that Mr. Waltenbaugh

proceeded through a red light when he entered the intersection. Louisiana Revised

Statutes 32:232 governs the duty of drivers when faced with traffic-control signals.

In Amos v. Taylor, 51,595, pp. 4-5 (La.App. 2 Cir. 9/27/17), 244 So.3d 749,

753, the duty of a driver faced with a green signal was explained as follows:

A motorist with a green signal when approaching an
intersection cannot depend exclusively on a favorable light. The
motorist has a duty to watch for vehicles already in the intersection
when the light changed. This duty does not extend to watching for
traffic that has not yet entered the intersection. Mosely [sic] [v. Griffin,
50,478 (La.App. 2 Cir. 2/24/16, 191 So.3d 16] . . . In order to
preempt an intersection, the motorist must show that he made a lawful
entry, at a proper speed, after ascertaining that oncoming traffic was
sufficiently removed to permit a safe passage and under the bona fide
belief and expectation that he can negotiate a crossing with safety. He
must show that he entered the intersection at a proper speed and
sufficiently in advance of the vehicle on the intersecting street to
permit him to cross without requiring an emergency stop by the other
vehicle. Mosley, supra; Gardner v. State Farm Mut. Auto. Ins. Co.,
43,499 (La. App. 2 Cir. 9/17/08), 996 So.2d 320.

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Therefore, the Allens carried the burden of proof to establish that Mrs. Allen

entered the intersection on a green light at a proper speed and in advance of Mr.

Waltenbaugh entering the intersection.

According to Mrs. Allen in her deposition testimony, she left work early that

day and was just casually riding around. No one was with her, and she was not on

her phone. She turned onto 4th Street, two blocks before the intersection with

Jackson Street. At this point, 4th Street is two lanes of one-way traffic heading in

an easterly direction. The speed limit is about twenty to twenty-five miles per hour.

From the time she turned onto 4th Street, she had a green light at the intersection

with Jackson Street. There was a truck in the right lane, which was moving slowly,

so she moved into the left lane. Mrs. Allen explained that she was already moving

through the intersection and passed what she thought was a crosswalk when she

saw the truck driven by Mr. Waltenbaugh, so she applied her brakes. The

headlight on his truck passenger side was in front of her when she applied her

brakes. She impacted with his rear passenger tire fender. She looked at the traffic

lights after the accident, and the light facing her was still green, while the light

facing Mr. Waltenbaugh was red. Mr. Waltenbaugh told Mrs. Allen that he was

looking at Google Maps to find the location at which he was supposed to place a

sign.

In his deposition testimony, Mr. Waltenbaugh explained that he was slowing

down looking for the location to put a sign for work. Mr. Waltenbaugh testified

that the light was green as he was coming up to the intersection. He was two car

lengths from the light when he saw it was green. As he proceeded ahead, he was

glancing back and forth to see where he was supposed to turn to place the sign. Mr.

Waltenbaugh attested: “So I was looking at the light, and I guess whenever I

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turned, turned my head to see where to turn in at, it went from green to yellow, and,

of course, to red.” He was looking for the location to place the sign when the

impact occurred. Mr. Waltenbaugh further explained that he saw Mrs. Allen and

sped up to get out of the way. Mr. Waltenbaugh stated that he did not see the light

facing him turn yellow or red. He agreed that he does not know what color the

light was when he went through the intersection.

Kevin Broussard is an architect who works in an office on Jackson Street.

He was walking back to his office from lunch when he witnessed the accident. Mr.

Broussard explained that he had a clear view of the accident as he was walking

south down the Jackson Street sidewalk, the same direction Mr. Waltenbaugh was

travelling in the truck. He was facing the accident when it occurred. He stated that

the truck had a red light as it entered the intersection, and it remained red. The

truck did not stop, and Mr. Broussard saw no attempt of the truck to slow down. It

was Mr. Broussard’s observation that the truck proceeded through the red light.

He could not see the color of the light facing Mrs. Allen. Mr. Broussard stated that

Mr. Waltenbaugh made statements that he was distracted and did not notice the

light was red after he got out of the truck. Mr. Waltenbaugh was very apologetic

and acknowledged that he was in error.

Officer David Allen Moore with the Alexandria Police Department

investigated the accident. Officer Moore testified that Mr. Waltenbaugh told him

that he was distracted because he was looking for a place to put a sign and drove

through the red light. Mr. Waltenbaugh never mentioned anything about the light

being any other color. Officer Moore obtained no information that anything Mrs.

Allen’s actions caused or contributed to the accident.

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After our de novo review of the testimony and evidence, we agree with the

trial court’s grant of summary judgment on the issue of liability in favor of the

Allens. Nothing in the record contradicts Mrs. Allen’s testimony that she was

going the speed limit and entered a clear intersection on a green light. There is no

evidence whatsoever that Mr. Waltenbaugh entered the intersection on anything

but a red light. His testimony was clear that he does not know what color the light

was and that he never saw it turn yellow or red. The last time he knows the light

was green was when he was at least two car lengths before the intersection. He

admittedly was distracted looking for the address of where he was supposed to be.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Zachary Waltenbaugh, Sign Edge USA, LLC, and

FCCI Insurance Company.

AFFIRMED.

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