Sidney Rubin, Jr. v. State Farm Mutual Automobile Insurance

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-358

SIDNEY RUBIN, JR., ET AL.

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE

COMPANY, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 87553
HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Ledricka J. Thierry, and Guy E. Bradberry,
Judges.

AFFIRMED.

Julius Willis Grubbs, Jr.
Haik, Minvielle & Grubbs
1017 E. Dale Street
New Iberia, La 70562-1040
(337) 365-5486
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Surgical Hospital, LLC

Ian A. Macdonald
Jones Walker LLP
600 Jefferson St., Suite 1600
Lafayette, LA 70501
(337) 593-7600
COUNSEL FOR DEFENDANT/APPELLEE:
Progressive Paloverde Insurance Company

Mark G. Artall
109 South College Road
Lafayette, LA 70503
(337) 233-1777
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Sidney Rubin, Jr.
Katie Rubin

William Compton Helm
Kinchen, Walker, Bienvenu
9456 Jefferson, Bldg 3, Ste F
Baton Rouge, LA 70809
(225) 923-7844
COUNSEL FOR DEFENDANT/APPELLEE:
P.L.Z. Trucking, LLC

Steven Brian Perry
Allen & Gooch
2000 Kaliste Saloom Rd, #400
Lafayette, LA 70598
(337) 291-1410
COUNSEL FOR DEFENDANT/APPELLEE:
DG Construction and Hauling, LLC

Thomas Richard Temple, Jr.
Breazeale, Sachse & Wilson
301 Main St, # 2300
Baton Rouge, LA 70801
(225) 381-8024
COUNSEL FOR DEFENDANT/APPELLEE:
James Construction Group, LLC

SAVOIE, Judge.

In this auto accident case, Plaintiffs, Sidney Rubin, Jr. and Katie Rubin,

appeal a summary judgment rendered in favor of Progressive Paloverde Insurance

Company (“Progressive”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 26, 2018, Sidney Rubin Jr. (“Rubin”) and his wife Katie

(collectively, “Plaintiffs”) filed a Petition for Damages seeking relief for injuries

sustained in connection with an auto accident. Specifically, Plaintiffs alleged that

on July 19, 2018, Rubin was driving a 1988 Peterbilt dump truck in an easterly

direction in the left-hand lane of travel on Interstate 10 (“I-10”) in St. Martin

Parish. At the same time, a 2017 Chevrolet Traverse driven by Mason Ortego

(“Ortego”) was travelling eastbound on I-10, directly behind Rubin. As Rubin

slowed to enter a construction worksite in the median of I-10, which was part of an

ongoing I-10 improvement project, the Traverse struck the rear of the dump truck.

According to Plaintiffs, the force of the impact caused the dump truck to strike a

concrete barrier, and Rubin sustained severe injuries. The accident happened at

approximately 10:30 a.m. on a clear, sunny day.

Plaintiffs named multiple parties as Defendants, including P.L.Z. Trucking,

LLC (“PLZ”), who was the owner of the dump truck that Rubin was driving. PLZ

was a subcontractor in connection with the I-10 improvement project and provided

dump trucks for the hauling of construction materials. PLZ, in turn, subcontracted

with Rubin as a commercial truck driver and independent contractor to drive its

dump truck and haul dirt and debris from the construction site.

Plaintiffs asserted various negligence claims against PLZ, including claims

arising out of PLZ’s alleged failure to place proper warning signs on the rear of its

dump truck that Rubin was driving. Plaintiffs also named PLZ’s insurer,

Progressive, as a Defendant.

Progressive issued a commercial auto insurance policy to PLZ that was in

effect at the time of the accident (“the policy”). The policy provides, in pertinent

part, as follows:

INSURING AGREEMENT – LIABILITY TO OTHERS

Subject to the Limits of Liability, if you pay the premium for liability
coverage for the insured auto involved, we will pay damages, other
than punitive or exemplary damages, for bodily injury, property
damage, and covered pollution cost or expense, for which an
insured becomes legally responsible because of an accident arising
out of the ownership, maintenance or use of that insured auto.

On May 7, 2021, Progressive filed a Motion for Summary Judgment seeking

the dismissal of Plaintiffs’ claims against it. Progressive argued that coverage was

not available because PLZ did not breach any duty to Rubin that would result in

liability covered by the policy and/or because Plaintiffs’ claims did not arise out of

the ownership, maintenance, or use of the dump truck Rubin was driving.

Following a hearing held December 7, 2022, the trial court signed a

judgment on January 4, 2023, granting Progressive’s motion and dismissing

Plaintiffs’ claims against it. Plaintiffs appeal and assert the following as

assignments of error:

1. The Trial Court erred in granting PROGRESSIVE’S Motion for
Summary Judgment, finding that neither [La.Civ.Code art.] 2315
nor [La.R.S.] 32:377 applies to establish a duty on the part of
P.L.Z. to affix warning devices onto the rear of its dump trucks
under the circumstances under which those dump trucks were
being used when the subject accident occurred.

2. The Trial Court erred in granting PROGRESSIVE’S Motion for
Summary Judgment, finding that there was no duty on the part of
P.L.Z. to affix a warning device onto the rear of its truck when
uncontested facts indicate that the placement of a sign onto the rear

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of the dump truck in question was not only the responsibility of
P.L.Z. but also would have prevented the accident.

3. The Trial Court erred in granting PROGRESSIVE’S Motion for
Summary Judgment finding that the PROGRESSIVE policy in
question does not provide coverage for the failure of P.L.Z. to affix
warning signs to the rear of vehicles because this activity did not
arise out of the ownership, maintenance[,] or use of the vehicle in
question.

ANALYSIS

A summary judgment is reviewed on appeal de novo, with the
appellate court 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, pp. 3–4 (La. 2/26/08), 977 So.2d 880, 882.

“[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).

At issue are Plaintiffs’ negligence claims against PLZ and whether any

liability for those claims is covered by Progressive’s policy issued to PLZ.

Louisiana courts have adopted a duty-risk analysis in
determining whether liability exists under the facts of a particular
case. Under this analysis, a plaintiff must prove five separate
elements: (1) the defendant had a duty to conform his or her conduct

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to a specific standard of care; (2) the defendant failed to conform his
or her conduct to the appropriate standard of care; (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries; (4)
the defendant’s substandard conduct was a legal cause of the
plaintiff's injuries; and (5) actual damages.

Bufkin v. Felipe’s Louisiana, LLC, 14-288, pp. 4–5 (La. 10/15/14), 171 So.3d 851,

855.

In connection with their first two assignments of error, Plaintiffs argue that

the trial court erred in failing to find that PLZ owed a duty to Rubin, an

independent contractor and driver of PLZ’s truck, to place appropriate warning

devices or warning signs onto the rear of the dump truck Rubin was driving.1

A threshold issue in any negligence action is whether the
defendant owed the plaintiff a duty. Whether a duty is owed is a
question of law. In deciding whether to impose a duty in a particular
case, the court must make a policy decision in light of the unique facts
and circumstances presented. The inquiry is whether the plaintiff has
any law (statutory, jurisprudential, or arising from general principles
of fault) to support the claim that the defendant owed him a duty.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La. 3/10/06), 923 So.2d 627,

633 (internal citations omitted). The issue of duty may be resolved by summary

judgment “when it is clear no duty exists as a matter of law; and, the facts or

credibility of the witnesses are not in dispute.” Parish v. L.M. Daigle Oil Co., 98-

1716, pp. 2–3 (La.App. 3 Cir. 7/23/99), 742 So.2d 18, 20.

Plaintiffs first suggest on appeal that La.R.S. 32:377 imposed a statutory

duty on PLZ to install a slow-moving vehicle emblem on the truck Rubin drove.

Louisiana Revised Statutes 32:377 states, in part:

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Plaintiffs have asserted additional negligence claims against PLZ including claims
arising out of PLZ’s alleged failure to evaluate the construction area and/or its failure to provide
adequate site access. However, Plaintiffs concede these alleged acts of negligence “may not be
directly related to the ownership, maintenance[,] and use of the truck[.]” Therefore, at issue for
purposes of this appeal of the summary judgment rendered in favor of Progressive is solely
whether PLZ owed a duty to Rubin to attach warning signs on the back of the dump truck Rubin
was driving and, if so, whether liability for any breach of that duty is covered by the Progressive
policy.

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Every motor vehicle, combination of motor vehicle and towed
equipment, every self-propelled unit of equipment, self-propelled
implement of husbandry, or towed implement of husbandry normally
operating at speeds not in excess of twenty-five miles per hour on
public streets and roads at all times shall be equipped with a slow
moving vehicle emblem as follows:

....

(3) The emblem required shall comply with current standards
and specifications as established by the American Society of
Automotive Engineers and approved by the commissioner.

Plaintiffs argue that because Rubin had to reduce the speed of the dump

truck to twenty miles per hour or less in order to turn into the construction worksite

and because he turned into the worksite at least thirteen times per day, the dump

truck was “normally operating at speeds not in excess of twenty-five miles per

hour” and, therefore, was required to have a “slow moving vehicle emblem”

contemplated by La.R.S. 32:377.

In response, Progressive argues that there is no evidence suggesting that the

dump truck normally operated at speeds less than twenty-five miles per hour, and,

therefore, La.R.S. 32:377 does not apply in this case. We agree.

Rubin testified during his deposition that on the day of the accident, he had

already hauled three loads from the worksite and was travelling on I-10 toward the

construction worksite to pick up more materials to haul. He stated that he travelled

at sixty miles per hour, which was the speed limit in the construction zone on I-10,

and, approximately one mile before he needed to enter the worksite, he activated

the left turn signal, moved into the left lane, turned off the signal, and activated the

emergency flashers. He then activated the left turn signal again approximately ¼

mile before the entrance into the worksite. He indicated that, during this time, he

gradually reduced his speed as he approached the worksite entrance, and, when he

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was a couple of truck lengths away from the entrance, he was rear-ended by the

Traverse, which was driven by Ortego. He testified that, at the time of impact, he

was travelling at approximately twenty miles per hour or less.

While Rubin testified that he was travelling approximately twenty miles per

hour or less at the time of impact, there is no indication that he normally drove at

this speed when hauling construction materials for PLZ or otherwise. Rather, his

testimony was that he travelled the speed limit on I-10 until he gradually reduced

his speed within a mile of the entrance to the worksite to prepare to turn.

Therefore, we find no merit to Plaintiffs’ argument that La.R.S. 32:377 is

applicable in this case.

Plaintiffs also cite to Williams v. Galliano, 601 So.2d 769 (La. App. 1 Cir.),

writ denied, 604 So.2d 1306 (La.1992), which, according to Plaintiffs in their

appellate brief, “recognizes the duty owed by a truck owner to properly equip its

truck with appropriate warning devices[.]” In Williams, a garbage truck driver was

killed when he was outside of his truck closing the tailgate and a Mack truck

reversed toward him, pinning him between the two trucks. At issue was whether

there was insurance coverage under the Mack truck owner’s comprehensive

general liability policy, which excluded coverage for bodily injury arising out of

the ownership, maintenance, or use of any automobile owned or operated by the

insured, and specifically whether the Mack truck was “mobile equipment”

excluded from the policy’s definition of “automobile.” The appellate court

affirmed a summary judgment in favor of the insurer and found no coverage. It

concluded that the Mack truck was an automobile and stated that there was no

basis for the Mack truck owner’s liability that was “independent of and not

concurring with the ownership, maintenance, use, loading or unloading of the truck

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as an automobile[,]” and that any “potential liability” on the part of the Mack truck

owner “for failing to equip the truck with an audible back up warning is directly

related to the ownership or maintenance of the truck.” Id. at 775. It further stated

that given its conclusion that the truck was an automobile “and that the ownership,

maintenance, use, loading or unloading of any automobile was an essential

ingredient of any duty which [the Mack truck owner] may have breached in this

case,” the policy did not provide coverage. Id. at 775.

While Williams suggests that coverage was not available under the policy at

issue because the truck was considered an automobile and because its maintenance

or use was necessarily part of any duty that may have been owed or breached, we

fail to see how Williams establishes a duty on the part of PLZ in the instant case to

equip its dump truck with a warning sign or emblem, as the case did not involve

the question of whether and to what extent a duty was owed.

Plaintiffs also argue that the facts of the case establish that PLZ owed a duty

to Rubin, its contracted driver, to equip the dump truck with some type of warning

sign. Specifically, Plaintiffs suggest that the testimony of the rear-ending driver,

Ortego, indicating that an orange warning sign affixed to the rear of the dump truck

would have helped him avoid the accident, establishes that PLZ owed a duty to

Rubin to install such a sign.

Ortego testified during his deposition that on the day of the accident, he

entered I-10 at the Rayne/Church Point exit, the speed limit was seventy miles per

hour, and he was almost certain that he travelled at that speed. He also testified

that he was aware that he was in a construction zone prior to the accident, he did

not know for sure whether he observed a reduction of speed in the construction

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zone but guessed that the speed limit was sixty or sixty-five miles per hour, and he

believed he reduced his speed. He described the accident as follows:

[S]o, I’m driving eastbound. . . . There’s a vehicle in front of
me, though. I’m driving behind that vehicle. . . . I could vaguely see
the construction truck way up ahead. But from my perspective . . .
there was a vehicle in front me, so that may have sort of affected my
judgment as to . . . whether this truck was moving or what. But from
my point of view, it seemed as though this was just a construction
truck travelling down the interstate. . . . So if I recall correctly, I
looked over to the right because I was . . . travelling in the left lane,
but I could see that it was slowing down, so . . . I looked over to the
right with the intention to change lanes. By the time I looked back . . .
suddenly I realized . . . that this construction truck was . . . at least
barely moving and was taking up virtually the entire left lane.

So if I recall correctly, the vehicle in front of me moved out of
the way. . . . So I think probably they changed lanes because they
realized that it was, in fact, moving very slowly or not all - - the
construction truck, that is. And after that, like I said, I looked right
because I was . . . intending on merging. And when I looked back, I
believe that the vehicle in front of me sort of somewhat rapidly
merged to the right lane. And then, boom, right there in front of me
was . . . what I initially perceived as being a moving . . . construction
truck, rather, stopped . . .

So once I got right there, just a few yards . . . the vehicle in
front of me merged, and I realized it was too late and . . . this truck is
definitely not going anywheres [sic]. And there’s an 18-wheeler in
the right lane. I had no way to swerve.

Ortego also testified that while he was aware he was driving in the

construction zone on I-10, he did not realize there was ongoing construction until

he was about to make impact, there were no flagmen present, and there was no

indication that the dump truck at issue was related to the construction site.

During his deposition, Ortego was also shown a photograph of a truck that

had a large orange sign affixed to the back of it stating, “Construction Vehicle Do

Not Follow.” Counsel indicated that the photo was not taken in connection with

the accident but rather “was taken off of the internet yesterday” following a

“google search.” Following multiple objections, Ortego testified, “I think that if

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there would have been . . . any indicators, such as this orange sign . . . this accident

probably would not have occurred.” Ortego was also asked how such a sign would

have prevented the accident given that he saw the dump truck before hitting it, and

Ortego stated, “I’m just thinking it . . . certainly wouldn’t have hurt. I mean, it’s a

bright orange sign. . . . I didn’t say that . . . I absolutely unequivocably [sic] would

not have gotten in this accident if this sign were here.”

Plaintiffs also argue that because several other trucks working at the

construction site had orange warning signs affixed to them, PLZ owed a duty to

Rubin to place the same type of sign on the truck Rubin drove. Plaintiffs point to

the deposition testimony of Brett Deshotels, the corporate representative for DG

Construction and Hauling, LLC (“DG”),2 who indicated that DG’s trucks operating

at the I-10 worksite had orange signs affixed to the rear that said, “Construction

Vehicle, Keep Back, Do Not Follow” or “Construction Vehicle, Do Not Follow[.]”

Deshotels explained, however, that these signs were not required in connection

with the I-10 improvement project job, but rather they were required for another

job at a plant in Luling. He said:

A They [DG’s trucks] were hauling dirt into a plant, and . . . they
[the general contractor/DG’s “client”] wanted that the vehicles
inside the plant wouldn’t follow the trucks into some areas that
they didn’t need to go into.

Q So, it’s your testimony that those signs were placed there to
keep vehicles inside the plant from following your dump trucks
inside the plant?

A So, inside –

....
2
James Construction Group, LLC was the general contractor on the I-10 construction
project at issue, and it contracted with DG for truck and hauling services. DG, in turn,
contracted with PLZ to perform some of the truck hauling services originally to be performed by
DG, and PLZ contracted with Rubin, an independent contractor, to drive the dump truck at issue
and haul construction materials to and from the worksite.

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A Inside the plant you would be working, if there was a pickup
truck following your truck to go off road, they didn’t want
those pickup trucks following the dump trucks to go off road.
These trucks could go off road.

When asked how he knew that was the purpose of signs, Deshotels

explained that the superintendent of Cajun Constructors, who was the general

contractor in connection with plant job, told him that. Deshotels also explained

that the reason the signs were not taken off the back of DG’s trucks in connection

with the I-10 project was that the signs were stickers and removing them would

pull the paint off the rear of the truck.

Deshotels also testified that the general contractor of the I-10 improvement

project, James Construction Group, LLC (“James”), did not require any type of

signage to be affixed to any of the dump trucks working in connection with the

project and he was not aware of whether James’ trucks working on site had any

warning signs affixed to them. He also stated that DG did not require any of its

own contractors to apply signage to their trucks in connection with the I-10 project.

Deshotels also indicated that, other than the plant project that required DG’s

trucks to have signage to prevent other vehicles from following them into restricted

areas of the plan, he was not aware of any other requirement that the orange

signage on DG’s trucks was to be used by construction vehicles on highway

projects such as the one at issue.

During his deposition, Deshotels was also shown a photo dated September

25, 2018, and when asked what the photo depicted, he testified: “This is Barriere

laying asphalt. . . . We don’t have asphalt tarps on our trucks. . . [T]hey’re not

doing dirt work.” Deshotels further indicated that DG did not work for Barriere

and he did not know how the trucks depicted in the photograph entered or exited

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the worksite. He also stated that while three or four of the trucks in the photo

appeared to have orange signs affixed to the rear of them, the image was “too

distorted[,]” and he could not read the wording on the signs.

Deshotels also indicated that there were multiple orange signs posted along

the roadway warning motorists of the construction zone, but neither PLZ, DG, nor

James decided where those signs were to be placed; rather, that was determined by

the project engineer, and Deshotels did not know who that was.

Plaintiffs also point to the corporate deposition of James, through its

representative, Rusty Bergeron. Bergeron testified that the Department of

Transportation and Development’s (DOTD’S) plans and specifications for the I-10

improvement project governed the traffic controls that were in place and that

DOTD had third-party representatives on site to ensure daily compliance. He also

stated that the contract between DOTD and James did not have any requirements

regarding signage for the back of the dump trucks that were hauling materials in

connection with the I-10 project.

In response to Plaintiffs’ arguments, Progressive argues on appeal that there

is no contract, statute, or legal authority under Louisiana law that imposed a duty

on PLZ to supplement the lights and emergency flashers on the rear of its dump

truck with an additional warning sign of any kind. Progressive further argues that

it was Rubin as an independent contractor, and not PLZ, who was responsible for

providing himself with a safe place to work. Progressive also points to Rubin’s

own testimony about how the accident happened, and his acknowledgment that

there was nothing that PLZ could have done to have made the dump truck more

visible at the time of the accident.

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Rubin testified in his deposition that PLZ was responsible for maintenance

of the dump truck; however, Rubin indicated that the dump truck was in good

mechanical condition the entire time that he drove it. Rubin also testified that

approximately a mile before the accident, he activated his rear emergency flashers

and his left turn signal and, based on his pre-trip inspection of the dump truck, he

had no reason to believe that they were not working. He also stated that there was

nothing that would have prevented another driver from seeing them and he

acknowledged that the rear-ending driver, Ortego, said that he saw the dump truck

before impact. Rubin further testified as follows:

Q Are you aware of anything that Perry [PLZ’s owner] did or
didn’t do on this particular day to make your vehicle more
visible to traffic traveling behind it?

A No, sir.

....

Q Okay. Are you aware of anything Perry could have done to
prevent this accident?

A Put a merging lane. (Witness chuckles.)

....

Q Anything else?

A That’s it.

....

Q Did you ever complain to anyone about signs on the back of
your
truck, during the work that you performed for PLZ Trucking on
this job?

A No, sir.

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Rubin also indicated that there were multiple signs along the roadway prior

to entering the construction site that warned motorists that trucks would be exiting

and entering the highway.

While Rubin’s testimony suggests that PLZ owed him a duty regarding the

maintenance of the dump truck, he admitted that truck was in proper working order

on the day of the accident and that there was nothing PLZ could have done to make

the dump truck more visible or otherwise prevent the accident, except for installing

a merge lane. Neither Ortego’s testimony, nor that of DG or James, suggests that

any type warning sign was required to be affixed to the back of the dump truck in

connection with the I-10 construction project at issue, and there is no statute or

jurisprudence that otherwise establishes that PLZ owed its contracted driver,

Rubin, a duty to install any type of warning sign on its dump truck. Therefore, we

conclude that PLZ did not owe such a duty to Rubin in this case, and summary

judgment dismissal of Plaintiffs’ claims against Progressive was proper.

Because we conclude that PLZ did not owe a duty to Rubin to affix a

warning sign on the back of the dump truck at issue in this case, the issue of

whether any liability for a breach of that duty is covered by Progressive’s policy at

issue is moot.

DECREE

For the reasons stated above, the summary judgment dismissal of Plaintiffs’

claims against Progressive is hereby affirmed. Costs of this appeal are assessed to

Plaintiffs, Sidey Rubin, Jr. and Katie Rubin.

AFFIRMED.

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