Elda B. Fortner v. Quincy M. Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-638

ELDA B. FORTNER, ETC., ET AL.

VERSUS

QUINCY M. LEWIS, ET AL.

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ON WRIT OF CERTIORARI FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, DOCKET NO. C-14-15
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Billy H. Ezell, Shannon J. Gremillion, John E. Conery, Van H.
Kyzar, and Jonathan W. Perry, Judges.

EZELL, J., dissents.

WRIT GRANTED AND MADE PEREMPTORY. SUMMARY
JUDGMENT GRANTED IN FAVOR OF THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT. CASE DISMISSED.

Jeff Landry
Attorney General
Donald Guidry
Assistant Attorney General
Louisiana Department of Justice
Litigation Division
556 Jefferson Street, 4th Floor
Lafayette, Louisiana 70501
337-262-1700
COUNSEL FOR DEFENDANT - RELATOR:
State of Louisiana, through the Department of Transportation and
Development

Hunter W. Lundy
Jackey W. South
T. Houston Middleton, IV
Lundy, Lundy, Soileau & South, L.L.P.
Post Office Box 3010
Lake Charles, Louisiana 70602-3010
337-439-0707
COUNSEL FOR PLAINTIFFS - RESPONDENTS:
Elda B. Fortner, Individually and on Behalf of the Estate of Donald
Fortner; Heather Fortner Kasak; Joshua W. Fortner; Christopher A.
Fortner; and Matthew C. Fortner

CONERY, Judge.

Relator, Louisiana Department of Transportation and Development (DOTD),

seeks supervisory writs from the judgment of the Thirty-First Judicial District

Court, the Parish of Jefferson Davis, the Honorable Steve Gunnell, presiding,

which denied Relator’s motion for summary judgment based on the immunity

granted to DOTD pursuant to the provisions of the Louisiana Homeland Security

and Emergency Assistance and Disaster Act (LHSEADA), La.R.S. 29:735. For

the following reasons, DOTD’s writ application is granted.

FACTS AND PROCEDURAL HISTORY

This case involves a fatal automobile accident which occurred at

approximately five o’clock on the morning of January 24, 2014. The National

Weather Service issued weather advisories and freeze warnings due to the

likelihood of a major ice storm affecting the roadways in Jefferson Davis Parish.

Governor Bobby Jindal declared a State of Emergency later the same day. In his

affidavit in support of DOTD’s summary judgment motion, Mr. Donald L.

Duberville, Assistant District Administrator of Operations for the State of

Louisiana, DOTD District 7, which includes Jefferson Davis Parish, attested that

he oversaw the emergency preparedness activities in Jefferson Davis Parish prior

to the storm. In accordance with DOTD’s Operations Plan (OPLAN) 13-01,

Winter Response, Phase III-Operations, in the early morning hours of January 24,

2014, the DOTD dispatched personnel to spray potassium acetate on Interstate 10

cattle crossing at Milepost 62 in Jefferson Davis Parish in order to melt the ice

accumulating on the roadway. The affidavit of Mr. Damon Lee Cooler, a DOTD

engineer, stated that the roadway at issue was sprayed at 12:10 a.m. and 1:43 a.m.

At approximately five o’clock a.m., Mr. Donald Fortner was traveling on the

portion of Interstate 10 at issue when, allegedly due to the icy roadway, he lost

control of his vehicle and moved into the adjacent westbound lane of travel. His

vehicle was struck on the driver’s side by an eighteen wheeler driven by Mr.

Quincy M. Lewis, who was accelerating to pass Mr. Fortner’s vehicle. Mr. Fortner

died as a result of the accident.

Mr. Fortner’s wife, Mrs. Elda B. Fortner, filed suit individually and on

behalf of the Estate of Donald Fortner, along with their four adult children, against

DOTD, Mr. Lewis, his employer B.E. Delivery, and its insurer, Hallmark Specialty

Underwriter, Inc. (Hallmark), Mr. Lewis, B.E. Delivery and Hallmark settled with

respondents and were dismissed from the litigation. DOTD, the only remaining

defendant, filed a motion for summary judgment based on immunity pursuant to

LHSEADA, La.R.S. 29:735.

Following a hearing on July 3, 2018, the trial court denied DOTD’s motion

for summary judgement on the basis that there was a genuine issue of fact as to

whether DOTD was entitled to immunity pursuant to La.R.S. 29:735. Respondents

claimed DOTD’s actions in addressing the icing conditions on Interstate 10 were

prior to the actual signing of the Declaration of a State of Emergency by the

Governor later in the day. The trial court ruled that there were questions of fact as

to when the Governor signed the State of Emergency, and whether the immunity

statute applied. The DOTD requested written reasons, which were issued by the

trial court on July 16, 2018. The judgment was signed on the same date by the trial

court. A timely request for supervisory relief was filed by DOTD on August 15,

2018.

SUPERVISORY RELIEF

Since the denial of a motion for summary judgment is an interlocutory ruling

from which no appeal may be taken, the only practical remedy available to avoid a

possible trial on the merits is to request that the appellate court exercise its
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supervisory jurisdiction to review the propriety of the trial court’s ruling. Louviere

v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988.)

On November 27, 2018 a writ was granted in this case pursuant to La.Code

Civ.P. art. 966(H). We ordered this case assigned for briefing and possible oral

argument. 1 This court required that DOTD submit any additional briefing by

December 11, 2018, and that respondents were to file any additional briefing by

December 18, 2018. The parties were to notify this court no later than December

11, 2018, if oral argument was requested. No additional briefing or request for oral

argument was timely filed by either party. Therefore, DOTD’s request for

supervisory relief is in the proper posture for decision by this court.

STANDARD OF REVIEW

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). “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.” La.Code Civ.P art. 966(A)(4).

The immunity defense pursuant to La.R.S. 29:735 is an affirmative defense.

Rogers v. State ex rel. Dep’t of Public Safety & Corr., 07-1060 (La.App. 3 Cir.

1/30/08), 974 So.2d 919, writ denied, 08-504 (La. 4/25/08), 978 So.2d 367.

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Louisiana Code of Civil Procedure Article 966(H) provides: “On review, an appellate court
shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary
judgment dismissing a case for a party without assigning the case for briefing and permitting the
parties an opportunity to request oral argument.”

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Accordingly, the burden of proof as to the application of an affirmative defense

lies with DOTD to prove that the immunity under LHSEADA entitles it to

summary judgment. La.Code Civ.P. art. 966(D). Additionally, immunity statutes

are strictly construed against the party claiming the immunity. Banks v. Par. of

Jefferson, 08-27 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, writ denied, 08-1625 (La.

10/24/08), 992 So.2d 1043.

LAW AND DISCUSSION

DOTD argues that the LHSEADA, La.R.S. 29:735, and the definitions

provided in La.R.S. 29:723 entitle DOTD to immunity for the accident involving

Mr. Fortner.

Louisiana Revised Statutes 29:735(A)(1) (emphasis ours) provides:

Neither the state nor any political subdivision thereof, nor other
agencies, nor, except in case of willful misconduct, the agents’
employees or representatives of any of them engaged in any homeland
security and emergency preparedness activities, while complying
with or attempting to comply with this Chapter or any rule or
regulation promulgated pursuant to the provisions of this Chapter
shall be liable for the death of or any injury to persons or damage
to property as a result of such activity.

The statute has no requirement that a State of Emergency must be declared

by the Governor before immunity applies. Louisiana Revised Statutes 29:723(4)

defines “emergency preparedness” as “the mitigation of, preparation for, response

to, and the recovery from emergencies or disasters.” Further, this portion of the

statute indicates that “[t]he term ‘emergency preparedness’ shall be synonymous

with ‘civil defense’, ‘emergency management’, and other related programs of

similar name.” Id.

Louisiana Revised Statutes 29:723(2) (emphasis ours) defines a “disaster” in

pertinent part as “the result of a natural or man-made event which causes loss of

life, injury, and property damage, including, but not limited to natural disasters

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such as hurricane, tornado, storm, flood, high winds, and other weather related

events…” Louisiana Revised Statutes 29:723(3)(a) defines an “Emergency” as

“[t]he actual or threatened condition which has been or may be created by a

disaster[.]”

Application of La.R.S. 29:735 And La.R.S. 29:723

Louisiana Revised Statutes 1:3 provides, with respect to the interpretation of

a statute, as follows:

Words and phrases shall be read with their context and shall be
construed according to the common and approved usage of the
language. Technical words and phrases, and such others as may have
acquired a peculiar and appropriate meaning in the law, shall be
construed and understood according to such peculiar and appropriate
meaning.

Louisiana Civil Code Article 9 provides, “When a law is clear and

unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written and no further interpretation may be made in search of

the intent of the legislature.”

The uncontested information presented to the trial court by DOTD in the

form of documentation and affidavits, coupled with the language of the

LHSEADA, La.R.S. 29:735, as well as the definitions contained in La.R.S. 29:723,

all demonstrate DOTD’s actions in spraying Interstate 10 with potassium acetate in

order to melt the ice accumulating on the roadway were the result of “emergency

preparedness activities” contemplated in La.R.S. 29:735, and defined in La.R.S.

29:723(4) as “mitigation of, preparation for, [and] response to … disasters.”

“Emergency,” as defined in La.R.S. 29:723(3)(a) means, “[t]he actual or threatened

condition which has been or may be created by a disaster.” A “Disaster” is defined

in La.R.S. 29:723(2) as a “natural … event which causes loss of life” including

“other weather related events,” such as an ice storm in south Louisiana.

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In his affidavit Mr. Duberville, the Assistant District Administrator of

Operations for DOTD District 7, attested that “The Operation Plan [OPLAN] 13-

01, Winter Response[s] was created in response to the Louisiana Homeland

Security and Emergency Assistance and Disaster Act [LHSEADA] on or about

November 30, 2013 and was applicable in the winter of 2014.” The OPLAN

“went into effect on or about November 30, 2013.” We find that in making the

necessary preparations, and then taking the action required by Phase III of the

OPLAN, i.e. spraying Interstate 10 with potassium acetate on the morning of

January 24, 2014, DOTD was acting under the auspices of La.R.S. 29:735 and its

definitions in anticipation of a pending disaster.

DOTD’s Actions Prior To The Declaration Of A State Of Emergency

Respondents oppose DOTD’s motion for summary judgment on the basis

that DOTD’s actions preceded the signing of the Declaration of a State of

Emergency by the Governor. Respondents rely on Banks, 990 So.2d at 32, which

states, “Turning to the cases which have interpreted emergency preparedness

immunity, emergency preparedness immunity pursuant to La.R.S. 29:735 has

never been granted to activities performed outside of a declared state of

emergency.” The cases discussed by Banks involved hurricanes, in which the

Declaration of a State of Emergency usually allows for an extended period for

preparation and cleanup.

In Castile v. Lafayette City-Par. Consol. Gov., 04-1569 (La.App. 3 Cir.

3/2/05), 896 So.2d 1261, writ denied, 05-860 (La. 5/13/05), 902 So.2d 2019, a state

of emergency was declared by Governor Mike Foster after Hurricane Lili struck

Lafayette on October 3, 2002. On October 5, 2002, the plaintiffs were injured in

an automobile accident due to the alleged negligent placement of debris from the

storm. A panel of this circuit granted immunity pursuant to La.R.S. 29:735, as the
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state of emergency was still in effect at the time of the accident.

In Clement v. Reeves, 05-616 (La.App. 3 Cir. 6/26/06), 935 So.2d 279, a

panel of this court found that the immunity of La.R.S. 29:735 did not apply to the

Lafayette City-Parish for its failure to maintain an advance-turn warning sign, as

the state of emergency declaration from Hurricane Lili had expired six days before

the accident at issue.

In Banks, 990 So.2d 26, homeowners filed suit against Jefferson Parish for

damage to their homes created by construction work on the Gardere Canal, which

construction was intended to improve flood control. A panel of our sister circuit in

Banks found that La.R.S. 29:735 did not apply and denied the parish immunity.

The panel found there was no need for the court to “find that the statute is limited

to activities which occur during a declared state of emergency.” Id. at 34. The

panel found that La.R.S. 29:735 “was intended to address actions taken pursuant to

a particular emergency, not to general levee construction.” Id. The Banks panel

also found, “that emergency preparedness immunity applies only when the

activities complained of are taken to address a discreet or specific condition or

event.” Id.

In this case, the “specific condition or event” was a winter weather advisory

which began during the early morning hours of January 24, 2014 and required

DOTD to immediately begin implementation of its OPLAN 13-01, Winter

Response. See id.

Declaration Of A State Of Emergency and Time Of Signing By Governor

Finally, respondents argue that La.R.S. 29:735 does not allow immunity for

the actions of DOTD prior to the Governor signing the Declaration of a State of

Emergency. However, La.R.S. 29:735 does not contain any language requiring a

formal signing of a Declaration of a State of Emergency before “emergency
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preparedness activities” can commence.

Louisiana Revised Statutes 29:735 does not contain the words, “During a

declared state of emergency,” unlike three other portions of the immunity statute

which clearly provide that a Declaration of a State of Emergency must have been

signed by the Governor for immunity to attach. These include the following:

Louisiana Revised Statutes 29:735.1 (emphasis ours):

During a declared state of emergency anywhere in the state,
any health care provider who in good faith voluntarily renders
emergency care or first aid to assist persons injured as a result of the
emergency whether the aid is rendered in the area subject to the
declaration of emergency or elsewhere shall not be civilly liable for
causing the death of, or injury to, any person or damage to any
property except in the event of gross negligence or willful misconduct.

Louisiana Revised Statutes 29:735.3(A) (emphasis ours):

A. During a declared state of emergency, medical personnel,
who render or fail to render emergency care, health care services, or
first aid, shall not be liable for any civil damages to a person as a
result of an evacuation or treatment or failed evacuation or treatment
conducted in accordance with disaster medicine protocol and at the
direction of military or government authorities, unless the damage or
injury is caused by willful and wanton misconduct.

Louisiana Revised Statutes 29:735.3.1(A) (emphasis ours):

A. During a declared state of emergency, any natural or
juridical person, who gratuitously and voluntarily renders any disaster
relief or recovery services in coordination with the state or its political
subdivisions shall not be liable to the recipient thereof for any injury
or death to a person or any damage to property resulting therefrom,
except in the event of gross negligence or willful misconduct.

In Cooley v. Acadian Ambulance, 10-1299, pp.12-13 (La.App. 4 Cir. 5/4/11),

65 So.3d 192, 199, a panel of our sister circuit found:

Our review of the statutory definitions of an “emergency” and
“emergency preparedness”, as well as our review of the relevant case
law, reveals that the declaration of an emergency, though not
insignificant for the purposes of executing emergency preparedness
procedures, is not relevant to determining whether immunity under
La.Rev.Stat. 29:735 applies. From these cases, it is clear that applying
immunity was not dependent upon an official declaration of
emergency, but whether an emergency situation existed, and whether
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the defendant government was operating in a manner that promoted
emergency preparedness and protection of persons and property.

We therefore do not accept respondents’ argument that DOTD is not entitled

to the immunity granted pursuant to La.R.S. 29:735 as soon as DOTD

implemented its actual “emergency preparedness activities” which, for purposes of

this decision we will assume took place prior to the signing of the Declaration of a

State of Emergency by the Governor. Rather, we find that DOTD was following

its emergency preparedness plan and is entitled to immunity pursuant to La.R.S.

29:735.

CONCLUSION

We find for the foregoing reasons that although the Governor may not have

signed the Declaration of a State of Emergency prior to the time DOTD began its

“emergency preparedness activities” on Interstate 10, this does not bar DOTD from

the immunity granted under the provisions of La.R.S. 29:735. We hereby grant the

supervisory writ filed on behalf of the Department of Transportation and

Development, overrule the decision of the trial court, and grant relator’s motion for

summary judgment dismissing the Department of Transportation and Development

with prejudice at respondents’ costs. All costs of this writ are likewise assessed to

respondents, Elda B. Fortner, the Estate of Donald Fortner, Heather Fortner Kasak,

Joshua W. Fortner, Christopher A. Fortner, and Matthew C. Fortner.

WRIT GRANTED AND MADE PEREMPTORY. SUMMARY
JUDGMENT GRANTED IN FAVOR OF THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT. CASE DISMISSED.

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