2021 WL 911882
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Fourth Circuit.
Byron G. FRANCOIS
v.
PORTS AMERICA LOUISIANA, L.L.C.; Ceres Gulf, Inc.; New Orleans Terminal LLC; and Unknown Hit-and-run Driver
NO. 2020-CA-0440
|
MARCH 10, 2021
Synopsis
Background: Driver of tractor-trailer brought negligence action against stevedoring service companies, alleging that unknown operator of yard mule vehicle owned by companies rear-ended tractor-trailer at container terminal in sea port and caused driver’s injuries. The District Court, Orleans Parish, No. 2018-11874, Civil District, Christopher J. Bruno, J., granted companies’ motion for summary judgment. Driver appealed.

[Holding:] The Court of Appeal, Lobrano, J., held that summary judgment was prematurely granted.

Vacated and remanded.

West Headnotes (10)

[1]
Judgment

Ordinarily, a motion for summary judgment may be granted only after an opportunity for adequate discovery. La. Code Civ. Proc. Ann. art. 966(A)(3).

[2]
Judgment

For purposes of a motion for summary judgment, a “genuine issue” is a triable issue; an issue is genuine if reasonable persons could disagree. La. Code Civ. Proc. Ann. art. 966.

[3]
Judgment

If reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is warranted. La. Code Civ. Proc. Ann. art. 966.

[4]
Judgment

For purposes of a motion for summary judgment, a fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. La. Code Civ. Proc. Ann. art. 966.

[5]
Judgment

When discovery is alleged to be incomplete, it is within the District Court’s discretion either to hear the summary judgment motion or to grant a continuance to allow for further discovery. La. Code Civ. Proc. Ann. art. 966.

[6]
Appeal and Error

The standard of review for a District Court’s choice to hear a motion for summary judgment or to grant a continuance when discovery is alleged to be incomplete is an abuse of discretion standard. La. Code Civ. Proc. Ann. art. 966.

[7]
Appeal and Error

Although the language of the statute governing summary judgment does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. La. Code Civ. Proc. Ann. art. 966.

[8]
Judgment

Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact for purposes of a motion for summary judgment. La. Code Civ. Proc. Ann. art. 966.

[9]
Judgment

The following four relevant factors should be considered with respect to a claim of inadequate discovery on a motion for summary judgment: (i) whether the party was ready to go to trial, (ii) whether the party indicated what additional discovery was needed, (iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and (iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment. La. Code Civ. Proc. Ann. art. 966.

[10]
Judgment

Summary judgment was prematurely granted in negligence action brought by driver of tractor-trailer against stevedoring service companies alleging that unknown operator of yard mule vehicle owned by companies rear-ended tractor-trailer, where there was no trial date set or any deadlines in which parties were required to complete discovery, companies did not file answer to driver’s negligence petition, only nine months had elapsed between filing of lawsuit and filing of motion, record did not indicate what discovery was done in period between motion and ruling, driver sought cooperation in identifying operator of yard mule, no depositions had been taken, and driver had opposed summary judgment on the basis of inadequate discovery and had requested two continuances. La. Code Civ. Proc. Ann. art. 966.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-11874, DIVISION “F”, Honorable Christopher J. Bruno, Judge
Attorneys and Law Firms
Keith A. Doley, ATTORNEY AT LAW, 1554 North Broad Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
José R. Cot, Robert K. Denny, HURLEY & COT, 365 Canal Street, Suite 2750, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Paula A. Brown)
Opinion

Judge Joy Cossich Lobrano

*1 **1 This is a tort case. Plaintiff/appellant, Byron G. Francois (“Francois”), appeals the March 20, 2020 judgment of the district court, which granted summary judgment in favor of defendants/appellees, Ceres Gulf, Inc. (“Ceres”) and New Orleans Terminal, L.L.C. (“NOT”), and dismissed all claims against Ceres and NOT. For the reasons that follow, we vacate the judgment and remand for further proceedings.

This litigation arises from an alleged hit-and-run accident on December 4, 2017 at the Napoleon Avenue Container Terminal located in the Port of New Orleans. On November 28, 2018, Francois filed a petition for damages alleging that he sustained personal injuries when an unknown driver operating a “yard mule” vehicle rear-ended the tractor-trailer that Francois was operating. In his petition, Francois alleged that the yard mule was owned and operated by Ceres, NOT,1 and/or Ports America Louisiana, L.L.C. (“Ports America”), all of which are companies providing stevedoring services in the Port of New Orleans.

**2 In response, on February 8, 2019, Ceres and NOT filed a dilatory exception of vagueness, contending that Francois failed to allege specific facts supporting that they owned the yard mule in question. The record does not reflect any hearing or ruling on this exception has gone forward, and Ceres and NOT did not file an answer or affirmative defenses to Francois’ petition. On March 20, 2019, Ports America filed a cross claim against NOT and Ceres alleging damage to its chassis trailer as a result of the accident.

On August 23, 2019, NOT and Ceres Gulf filed a motion for summary judgment, arguing Francois had no evidence of their involvement in or liability for the accident. In support of their motion, NOT and Ceres introduced, in relevant part, the affidavit of NOT manager Kristopher Calkins (“Calkins”), attesting that Ceres does not own any yard mules and that NOT reviewed its equipment and found no evidence of a damaged yard mule or NOT driver with knowledge of Francois’ accident. Calkins also attested that the area where the accident allegedly occurred is operated by Ports America. The hearing was initially set on October 4, 2019, but was continued on Francois’ unopposed motion. The hearing was again continued to January 10, 2020 on Ceres and NOT’s unopposed motion.

On December 20, 2019, Ports America filed an opposition to summary judgment, arguing that discovery is incomplete and that factual disputes exist as to whether NOT employees performed work in the vicinity of the accident scene. Ports America introduced affidavits by its employees Jason Reitmeyer and Anita Dargan, attesting that NOT exclusively conducts railcar operations in the area **3 where the accident occurred, along with a “dashcam” video purportedly showing a NOT top loader vehicle near the scene of the accident.

Francois likewise filed an opposition on December 23, 2019, arguing that discovery is ongoing and that NOT and Ceres have been uncooperative in obtaining said discovery and identifying the yard mule driver. Francois also introduced Anita Dargan’s affidavit in support of his opposition but did not introduce any additional evidence. On January 3, 2020, Ceres and NOT filed a reply memorandum arguing that Francois failed to adequately investigate the accident or conduct necessary discovery.

*2 The summary judgment hearing went forward on January 10, 2020, at which time Francois made an oral motion requesting 90 days in which to conduct discovery. The district court denied the requested continuance from the bench, and on March 30, 2020, the district court rendered summary judgment dismissing the claims against NOT and Ceres. This appeal followed, in which Francois raised two assignments of error:
I. The trial judge erred, as a matter of law, in granting summary judgment dismissing with prejudice appellant’s claims where Ceres Gulf, Inc. and New Orleans Terminal, LLC utterly failed to meet the burden of proof imposed upon them by Code of Civil Procedure Article 966, and genuine issues of material fact remain in dispute.
II. It was an abuse of the trial court’s discretion to refuse to allow additional time for appellant to complete discovery prior to granting summary judgment and dismissing appellant’s suit.

[1] [2] [3] [4]“Appellate courts review a judgment granting or denying a motion for summary judgment de novo.” **4 Serpas v. Univ. Healthcare Sys., 16-0948, p. 2 (La. App. 4 Cir. 3/8/17), 213 So.3d 427, 428 (quoting Louisiana High Sch. Athletics Ass’n, Inc. v. State, 12-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598).2 Ordinarily, a motion for summary judgment may be granted only “[a]fter an opportunity for adequate discovery…” La. C.C.P. 966(A)(3).

[5] [6]When discovery is alleged to be incomplete, it is within the district court’s discretion either to hear the summary judgment motion or to grant a continuance to allow for further discovery. Roadrunner Transportation Sys. v. Brown, 17-0040, p. 11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (citations omitted). The standard of review for a district court’s choice to hear a motion for summary judgment or to grant a continuance, in this procedural context, is an abuse of discretion standard. Id., 17-0040, p. 11, 219 So.3d at 1272-73 (citing Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403).

*3 **5 [7] [8]“Although the language of [Louisiana Code of Civil Procedure] article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case.” Serpas, 16-0948, p. 2, 213 So.3d at 429 (quoting Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.), 03-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969). “Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” Rivarde, 15-0655, p. 7, 190 So.3d at 405 (citations omitted).

[9]With respect to an inadequate discovery claim, this court has identified the following four relevant factors to be considered:
(i) whether the party was ready to go to trial,
(ii) whether the party indicated what additional discovery was needed,
(iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and
(iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment.
Roadrunner, 17-0040, pp. 11-12, 219 So.3d at 1273 (citing Bass P’ship v. Fortmayer, 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75; Greenhouse v. C.F. Kenner Associates Ltd. P’ship, 98-0496, p. 3 (La. App. 4 Cir. 11/10/98), 723 So.2d 1004, 1006).

[10]Applying those factors to the record on appeal, we are unable to conclude that there has been an opportunity for adequate discovery.

**6 First, no party indicates readiness for trial. There was no trial date set or any scheduling order or deadlines in which the parties were required to complete discovery. In the Civil District Court of the Parish of Orleans, Local Rule 9.14 specifies the district court’s procedure – that cases may be set for trial upon a written motion by a party certifying, among other things, that all depositions and discovery have been completed, and that the matter is ready to be set for trial. Ceres and NOT did not file an answer to Francois’ petition, and the record reflects no resolution of those defendants’ exception of vagueness. Regarding the second and third factors, it is evident from the record that discovery was in its infancy when the motion for summary judgment was filed. No depositions had been taken, and the record does not bear out what discovery was done in the period between the motion for summary judgment’s filing and the district court’s ruling. Francois does not explain what specific discovery he will do if afforded more time, though he argues he seeks Ceres’ and NOT’s cooperation in identifying the at-fault yard mule and driver, presumably through written and deposition discovery. Turning to the fourth factor, both Francois and Ports America opposed summary judgment on the basis of inadequate discovery, and Francois requested two continuances of the summary judgment hearing, the second of which specifically cited the need for more time to conduct discovery. Taken together, these factors support Francois’ position that the district court abused its discretion in failing to allow adequate discovery before ruling on Ceres and NOT’s motion for summary judgment.

**7 This Court has found summary judgment premature where the party opposing summary judgment was not afforded a reasonable opportunity to take relevant depositions prior to being required to defend against the motion for summary judgment. Serpas, 16-0948, p. 2, 213 So.3d at 429 (citing Doe v. ABC Corp., 00-1905, p. 11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143); see also Milton-Gustain v. Salvage Store, Inc., 19-01854, pp. 1-2 (La. 2/10/20), 289 So.3d 48, 48. We recognize that, unless plaintiff shows “probable injustice,” courts will refuse to delay determination of summary judgment under the guise of pending discovery, when it appears at an early stage of the litigation that no genuine issues of fact exist. See Rivarde, 15-0655 at p. 7, 190 So.3d at 405 (quotations omitted). The record here does not support such a result. A scant nine months elapsed between the filing of this lawsuit and the filing of Ceres and NOT’s summary judgment motion. While Ceres and NOT point to some lack of diligence in Francois’ discovery efforts, we find no indication at this stage that any party completed its discovery or had adequate opportunity to do so, and it remains too early in the litigation to determine whether material factual disputes remain.

*4 On the particular facts of this case, summary judgment was prematurely granted.3 We, therefore, vacate the judgment of the district court and remand this matter for further proceedings.

VACATED AND REMANDED

All Citations
— So.3d —-, 2021 WL 911882, 2020-0440 (La.App. 4 Cir. 3/10/21)

Footnotes

1
NOT is a joint venture between Ceres and a nonparty, Container Marine Terminals, L.L.C.

2
An appellate court, using the same standard used by the district court, must determine:
whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law….
…[A] “genuine issue” is a “triable issue.” … An issue is genuine if reasonable persons could disagree. If … reasonable persons could reach only one conclusion, there is no need for a trial on that issue. … A fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.
Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, pp. 4-5 (La. 5/22/07), 958 So.2d 634, 638 (internal citations omitted).
La. C.C.P. art. 966(D)(1) sets forth a shifting burden of proof as follows:
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.

3
Because we find the prematurity issue dispositive, we pretermit consideration of Francois’ remaining assignment of error.

2021 WL 855282

United States District Court, W.D. Louisiana,
Lake Charles Division.
ASHLEY MOREAUX
v.
CLEAR BLUE INSURANCE CO. ET AL.
CASE NO. 2:18-CV-01255
|
Filed 03/05/2021

MEMORANDUM RULING
JAMES D. CAIN, JR. UNITED STATES DISTRICT JUDGE
*1 Before the court is a Motion for Partial Summary Judgment [doc. 102] filed by defendants Hallmark Insurance Company (“Hallmark”) and James River Insurance Company (“JRIC”) and seeking dismissal of the claims for punitive damages raised against them. Plaintiff Ashley Moreaux opposes the motion. Doc. 110. Oral argument was had on the motion on March 4, 2021, and the undersigned now issues this ruling.

I. BACKGROUND
This suit arises from a motor vehicle accident that occurred at about 4:05 am on March 1, 2018, on Interstate 10 in Calcasieu Parish, Louisiana. The accident involved a vehicle driven by plaintiff Ashley Moreaux and a tractor-trailer allegedly “owned, managed, possessed, operated and/or controlled” by defendants Tim Ables Trucking Company LLC (“Tim Ables Trucking”), Shannon Wayne Watson, and Kevin Posey.1 Doc. 16, ¶¶ 8–9.

Ms. Moreaux alleges that she was seriously injured when her vehicle was struck by the tractor-trailer driven by Mr. Watson, as he attempted to merge from the shoulder onto the interstate. Id. at ¶¶ 10–16. She further alleges that Mr. Watson only stopped for a brief time after the crash, then continued down the interstate for another forty miles before eventually reporting the accident. Id. at ¶¶ 17–25. Finally, she asserts that the tractor-trailer had an inoperable turn signal and that a prescription bottle containing a Schedule V drug, Soma (carisoprodol), was found in the cab but that authorities were unable to test Watson for his level of impairment at the crash due to the delay caused when he fled the scene. Id. at ¶¶ 26–27.

Ms. Moreaux filed suit against the above-named defendants and their insurer, Clear Blue Insurance Company, in this court on September 24, 2018.2 Doc. 1. She seeks compensatory damages as well as punitive and exemplary damages under Louisiana Civil Code article 2315.4. Doc. 16. In the Second Amended and Restated Complaint she added excess insurers JRIC and Hallmark as defendants. Doc. 57. Since that time Ms. Moreaux has also executed a Gasquet settlement and dismissed her claims against any named defendant, except to the extent that insurance coverage is found applicable to the claims proven at trial. Docs. 88, 90.

JRIC and Hallmark admit that they issued excess liability insurance policies to Tim Ables Trucking, which were in effect at the time of the accident. Doc. 63, ¶ 32; doc. 74, ¶ 33. They now move for partial summary judgment, arguing that Ms. Moreaux’s claims for punitive damages are barred by results of a toxicology study conducted on Mr. Watson after the accident and by the absence of any other direct evidence of intoxication. Doc. 102, att. 2. By separate, unopposed summary judgment motion brought by JRIC, this court determined that claims for exemplary and/or punitive damages against that defendant are barred under an exclusion in its policy. Hallmark, however, has not pointed to any such exclusion in its own policy. Accordingly, the court considers its arguments as to lack of merit in the punitive damages claims.

II. SUMMARY JUDGMENT STANDARD
*2 Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go beyond the pleadings and show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit “significant probative evidence” in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

III. LAW & APPLICATION
Under Louisiana law, punitive or exemplary damages are available only where expressly authorized by statute. Int’l Harvester Credit Corp. v. I.T. Seale, 518 So.2d 1039, 1041 (La. 1988). Here the plaintiff brings her claim for punitive damages under Civil Code article 2315.4, which provides:
In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.
La. Civ. Code art. 2315.4.

Defendants argue that the claim for punitive damages should be dismissed, because plaintiff cannot establish that Watson was intoxicated at the time of the accident.3 Specifically, they note that the state trooper who interviewed Watson after he stopped recalled that Mr. Watson appeared to be “fine” and that a blood sample taken shortly thereafter showed that (1) there was no carisoprodol (Soma) in Watson’s system, (2) there were no other positive drug or alcohol levels, and (3) the only substance detected was Meprobamate, a metabolite of carisoprodol. Doc. 102, att. 3, pp. 7, 9–10; doc. 102, att. 5, pp. 1–2. Mr. Watson also testified that he had not used carisoprodol since about five to seven days before the accident. Doc. 102, att. 4, pp. 9–10. Based on these findings, defendants’ expert toxicologist concluded that the meprobamate levels in Mr. Watson’s blood would have had little to no effect and that it was more likely than not that Mr. Watson was unimpaired by meprobamate, carisoprodol, or alcohol at the time of the accident. Doc. 102, att. 5, pp. 1–2.

In response, plaintiff argues that there is sufficient evidence of possible impairment to withstand summary judgment. Specifically, she points to the fact that Mr. Watson did not contact the police until an hour and forty-four minutes after the crash, despite driving on after admittedly feeling the impact of the crash (which he attributed to a pothole or bump in the road) and stopping a total of three times over the next hour.4 See doc. 110, att. 2, pp. 5–24. As a result, Mr. Watson was arrested for hit and run. Doc. 110, att. 5, p. 2. Both a state trooper who investigated the crash and plaintiff’s trucking expert testified that Mr. Watson should have realized immediately that he had been hit from behind, based on the direction and force of impact with Ms. Moreaux’s vehicle traveling at over 70 miles per hour and Mr. Watson’s at 12 miles per hour. Doc. 110, att. 3, pp. 15–6; doc. 110, att. 6, pp. 2–3. The trucking expert opined that Mr. Watson’s apparent lack of awareness called into question his astuteness and vigilance. Doc. 110, att. 6, p. 3.

*3 Because of the delay, a contemporaneous field sobriety test could not be conducted and Mr. Watson’s blood and urine samples were not collected until over four hours after the crash. Id. at 5. A state trooper testified that, at the accepted metabolization rate of .0 to .015 percent per hour, it would take over four hours for a blood alcohol level at an impairment level of .08 percent to drop down to zero. Id. However, plaintiff maintains that based on Mr. Watson’s irrational behavior at the time of the accident (including his failure to contact police and alleged failure to notice he had been in an accident), his admitted use of Soma, and his avoidance of a field sobriety test or blood or alcohol test until well after the event, there is sufficient circumstantial evidence to create a factual issue as to his impairment at the time of the crash. She further argues that she is entitled to an adverse presumption against Mr. Watson for spoliation of evidence.

The court regards the spoliation claim as an evidentiary issue better suited to a motion in limine. As for the other evidence presented, Louisiana jurisprudence allows that a driver’s intoxication may be proven by circumstances even in the absence of a positive toxicology report. Lyons v. Progressive Ins. Co., 881 So.2d 124, 127 (La. Ct. App. 4th Cir. 2004). A plaintiff’s circumstantial evidence, however, must be sufficient to “exclude every other hypothesis with a reasonable amount of certainty.” Stephenson v. Bryce W. Hotard Sunbelt Rentals, Inc., 271 So.3d 190, 192 (La. 2019). At the defendant’s motion for summary judgment, this means that the plaintiff must present factual support sufficient to establish that he can satisfy this burden at trial. Id. at 192–93; see also Dickerson v. Hapl, 2020 WL 5993148, at *2 (E.D. La. Oct. 9, 2020). Accordingly, the Louisiana Supreme Court recently reversed a district court’s denial of summary judgment against a plaintiff’s Article 2315.4 claim when the plaintiff relied on his own testimony that the driver “was nervous, sweaty and had ‘droopy’ eyes” but admitted that he did not smell of alcohol or have impaired speech. Stephenson, 271 So.3d at 192. Likewise, the Eastern District recently granted summary judgment for defendants on such a claim where defendants identified “extensive evidence from a totality of the circumstances – in the form of trained law enforcement officers who spent hours with [the driver] following the accident and who were charged with determining whether she was impaired” to counter plaintiff’s circumstantial evidence, which also admitted the possibility that the driver was merely distracted at the time of the accident. Rivera v. Robinson, 2020 WL 3403075, at *4 (E.D. La. June 19, 2020).

Here the toxicology report and unrebutted opinion of defendants’ expert appear to exclude the possibility of intoxication with alcohol or Soma at the time of the accident. Defendant’s expert, however, did not discuss the half-life of any other drugs in the context of the delay.5 Plaintiff’s evidence is sufficient to support the possibility of intoxication by other substances – particularly in light of the unresolved spoliation issue. Plaintiff’s witnesses have called into question Mr. Watson’s reasons for fleeing the scene of a severe wreck, including his excuse that he thought he had merely hit a bump or pothole. This is more evidence than the plaintiff presented in Stephenson, supra. And unlike Rivera, the defendants have failed to identify sufficient countervailing evidence in light of the suspicious circumstances identified by plaintiff – which are considerably stronger in the instant case. Viewed in a light most favorable to plaintiff, the circumstantial evidence presented thus far could meet her burden of establishing Mr. Watson’s intoxication with some substance at the time of the accident. Accordingly, summary judgment must be denied.

IV. CONCLUSION
*4 For the reasons stated above, the Motion for Partial Summary Judgment [doc. 102] will be DENIED as to defendant Hallmark Insurance Company and DENIED AS MOOT as to defendant James River Insurance Company.

THUS DONE AND SIGNED in Chambers on this 5th day of March, 2021.

All Citations
Slip Copy, 2021 WL 855282

Footnotes

1
Mr. Posey is only specifically named under the negligent entrustment claim and appears to pay some sort of supervisory role at the company.

2
Plaintiff’s father, Chris Moreaux, originally joined the suit as a plaintiff based on his emotional distress at witnessing the crash scene. See docs. 1, 16. He later voluntarily dismissed these claims. Doc. 44.

3
Defendants also summarily assert that plaintiff cannot establish that any such impairment was a cause in fact of the accident, but they have not briefed this issue. See doc. 102, att. 2, p. 11. Accordingly, the court considers it waived.

4
The third stop was at the truck stop in Egan, Louisiana, from which Watson eventually called police.

5
The court also notes that plaintiff’s counsel has not yet had the opportunity to depose defendants’ toxicologist and explore the degree of impairment that might arise from Mr. Watson’s meprobamate levels.