United States Court of Appeals for the Eleventh Circuit
February 15, 2022, Filed
No. 21-12159 Non-Argument Calendar

Reporter
2022 U.S. App. LEXIS 4180 ; 2022 WL 454176 JONATHAN ELLIS, Plaintiff-Appellant, JOYCE BROBECK, as Personal Representative of the Estate of Timothy Brobeck, Plaintiff, versus GEICO GENERAL INSURANCE COMPANY, Defendant-Appellee. Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS. Prior History: [1] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:19-cv-61611-WPD.

Brobeck v. Geico Gen. Ins. Co., 541 F. Supp. 3d 1371, 2021 U.S. Dist. LEXIS 122882 (S.D. Fla., May 28, 2021)
Disposition: AFFIRMED.
Core Terms

insurer, Traffic, bad faith, policy limit, voicemail, handling, diligence, coverage, good faith, confirm, settlement, reasonable jury, investigate, advise
Case Summary

Overview
HOLDINGS: [1]-In a case arising out of a fatal car accident involving a motorist and a bicyclist that occurred on September 7, 2014, and that resulted in the bicyclist’s death, the circuit court concluded that an insured raised no possible inference of bad faith on the part of the insurer. Once the insurer knew there was coverage upon receiving the traffic crash report on October 29, 2014, it immediately extended coverage for the loss, apportioned 100% liability on the insured, and immediately tendered the policy limits. Even if one of the insured’s alternate avenues of confirming coverage would have done so more quickly, under the totality of the circumstances, a reasonable jury could not say the insurer was not acting diligently and with the same haste and precision as if they were in the insured’s shoes.
Outcome
Summary judgment affirmed.
LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness
Civil Procedure > Appeals > Summary Judgment Review > Standards of Review
Civil Procedure > Appeals > Standards of Review > De Novo Review
HN1[ ] Entitlement as Matter of Law, Appropriateness
A federal appellate court reviews the district court’s grant of summary judgment de novo, viewing all facts and drawing all inferences in the light most favorable to the nonmoving party.

Civil Procedure > Preliminary Considerations > Jurisdiction > Diversity Jurisdiction
Civil Procedure > … > Federal & State Interrelationships > Choice of Law > Forum & Place
HN2[ ] Jurisdiction, Diversity Jurisdiction
In diversity cases, the court applies the substantive law of the forum state.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness
Insurance Law > Liability & Performance Standards > Bad Faith & Extracontractual Liability
Civil Procedure > Trials > Jury Trials > Province of Court & Jury
HN3[ ] Entitlement as Matter of Law, Appropriateness
Although bad faith is ordinarily a question for the jury, the courts have granted summary judgment where there is no sufficient evidence from which any reasonable jury could have concluded that there was bad faith on the part of the insurer.

Insurance Law > Liability & Performance Standards > Settlements > Good Faith & Fair Dealing
HN4[ ] Settlements, Good Faith & Fair Dealing
Florida courts have long recognized the good faith duty insurers owe to their insureds in handling their claims. Because the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.

Insurance Law > Liability & Performance Standards > Settlements > Good Faith & Fair Dealing
HN5[ ] Settlements, Good Faith & Fair Dealing
An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.

Insurance Law > Liability & Performance Standards > Settlements > Good Faith & Fair Dealing
Insurance Law > Liability & Performance Standards > Bad Faith & Extracontractual Liability > Payment Delays & Denials
HN6[ ] Settlements, Good Faith & Fair Dealing
Breach of an insurer’s duty to act in good faith may give rise to a cause of action for bad faith against the insurer. Where liability is clear, and injuries so serious that a judgment in excess of the policy limits is likely, an insurer has an affirmative duty to initiate settlement negotiations. In such a case, where the financial exposure to the insured is a ticking financial time bomb and suit can be filed at any time, any delay in making an offer, even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith.

Insurance Law > Liability & Performance Standards > Bad Faith & Extracontractual Liability > Elements of Bad Faith
HN7[ ] Bad Faith & Extracontractual Liability, Elements of Bad Faith
The question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the “totality of the circumstances” standard. The critical inquiry in a bad faith action is whether the insurer diligently, and with the same haste and precision as if it were in the insured’s shoes, worked on the insured’s behalf to avoid an excess judgment. While negligence is not the standard for evaluating bad faith actions, because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. The focus of the bad faith case is on the actions of the insurer, not those of the claimant. For that reason, a claimant’s actions cannot let the insurer off the hook when the evidence clearly establishes that the insurer acted in bad faith in handling the insured’s claim.

Insurance Law > Liability & Performance Standards > Bad Faith & Extracontractual Liability
Insurance Law > … > Commercial General Liability Insurance > Obligations of Parties > Settlements
Insurance Law > Liability & Performance Standards > Settlements > Good Faith & Fair Dealing
HN8[ ] Liability & Performance Standards, Bad Faith & Extracontractual Liability
An insurer – acting with diligence and due regard for its insured – is allowed a reasonable time to investigate a claim; no obligation exists to tender policy limits in advance of a settlement offer without time for investigation.
Counsel: For JONATHAN ELLIS, Plaintiff – Appellant: Joseph Sassoon Kashi, Joseph S. Kashi PA, PLANTATION, FL.
For GEICO GENERAL INSURANCE COMPANY, Defendant – Appellee: Adam Duke, Billy Richard Young, Young Bill Boles Palmer Duke & Thompson, PA, PENSACOLA, FL; Derek Veliz, Richard Alan Weldy, Young Bill Boles Palmer Duke & Thompson, PA, MIAMI, FL.
For SERVICE, Plaintiff: Hyram M. Montero, Montero Law Center, FORT LAUDERDALE, FL.
Judges: Before JORDAN, NEWSOM, and BLACK, Circuit Judges.
Opinion

PER CURIAM:
Jonathan Ellis appeals the district court’s grant of summary judgment to GEICO General Insurance Company in Ellis’s bad faith action against GEICO. Ellis filed an action for declaratory relief in Florida state court asking the court to determine whether GEICO should be held responsible for an excess judgment against Ellis in a wrongful death case brought by Joyce Brobeck, the personal representative of the Estate of Timothy Brobeck. Upon removal to federal district court, the court found that under the undisputed facts of the case, no reasonable jury could conclude that GEICO operated in [*2] bad faith in its handling of Ellis’s claim. After review,1 we affirm.

I. BACKGROUND
This case arises out of a car accident involving Ellis and Timothy Brobeck, resulting in Brobeck’s death. On September 7, 2014, Ellis struck the rear of Brobeck’s bicycle and fled. At the time of the accident, Ellis was insured by GEICO under an automobile liability insurance policy which provided bodily injury liability coverage in the amount of $10,000 per person and $20,000 per accident. Subsequent to the accident, Joyce Brobeck, as personal representative of Timothy Brobeck, filed suit against Ellis. Brobeck’s estate ultimately received a final judgment against Ellis for $479,280.56. On May 21, 2019, Ellis filed this declaratory action against GEICO, seeking a declaration that GEICO had handled the Estate of Brobeck’s claim against Ellis in bad faith.2
After fleeing the scene of the accident, Ellis hired a lawyer on September 8, and he was arrested on September 10. Ellis remained in jail until September 22, and upon release, obtained a new cellphone with a different number because the police did not return his previous cellphone. Ellis also stayed in the homes of a friend or his uncle because he [3] did not want to be alone and did not have the mail forwarded from his apartment. Ellis was advised by his criminal defense attorney not to talk with anyone about the accident, which Ellis believed included GEICO. Brobeck was survived by his mother, Joyce, his wife Laura, and their 16-year-old daughter, Barbara, who has cerebral palsy. Laura hired Fort Lauderdale lawyer Hyram Montero to represent Timothy’s estate, but Joyce served as personal representative because Laura lived in Argentina.3 Montero was unable to obtain a copy of the Florida Traffic Crash Report because the Fort Lauderdale Police Department (FLPD) was conducting a Traffic Homicide Investigation, but his team found a news article about the accident. Montero went to the FLPD and was provided with the hit and run driver’s name, his insurance company, and policy number. On September 16, 2014, Montero instructed his receptionist, Rosemary Gomez, to send a letter of representation to GEICO. On October 9, 2014, Montero asked Gomez to call GEICO because it had not responded to the letter. Gomez complied and provided GEICO with the information in the news article. GEICO’s claim activity log for October 9 shows Gomez told GEICO [4] that Brobeck was a bicyclist who died of his injuries, Ellis fled from the scene of the accident, Ellis was arrested a few days later when he went to the police department to claim his car, and a document referred to as a “complain[t] affidavit” showed when Ellis was arrested. Gomez informed Montero that GEICO claimed it had not received the September 16 letter of representation, and Gomez sent GEICO a new letter of representation by fax.
On October 9, GEICO assigned the case to adjuster Bobbie Harney, who attempted to contact Ellis and Montero on October 9, and was unable to reach either. Harney, however, left a voicemail for Ellis and mailed a first contact letter and a reservation of rights letter that day. On October 10, Montero’s office told Harney that Brobeck was thrown from his bike when Ellis struck it from the rear. Because Harney was unable to reach Ellis by telephone, she met with her supervisor, John Smith, and they decided to enlist the assistance of a field adjuster to locate Ellis.
On October 12, Harney again unsuccessfully tried to contact Ellis and left a voicemail. On October 13, Ann Sholar was assigned as the field investigator to locate Ellis. Sholar performed a [5] Google search and found a news article about the accident. On October 13, Harney again tried to contact Ellis but could not reach him. Harney left a voicemail with Ellis and tried to locate updated contact information for Ellis. On October 15, Sholar attempted to visit Ellis’s place of employment, Stache’s, but did not enter the building due to safety concerns as it was a windowless building named “Himmie Health Club.” Sholar also attempted to visit Ellis’s residence, but the apartment was empty. Sholar left a GEICOgram at Ellis’s residence requesting he contact GEICO. Sholar also received a return call from FLPD that day with Ellis’s case number, a confirmation that Ellis was out on bail, and the phone number the FLPD had for Ellis. On October 16, Harney unsuccessfully attempted to contact Ellis at two phone numbers and left voicemails at both. On October 17, Sholar called the FLPD and discovered it had Ellis’s traffic citation, but not the Florida Traffic Crash Report. Sholar did not request or follow up on Ellis’s traffic citation at that time. On October 20, Harney again tried to contact Ellis on both numbers she had for him, but she was unable to reach him and left voicemails. On [6] October 21, Sholar contacted the FLPD to obtain the Florida Traffic Crash Report but was informed the officer responsible for the report was not in that day. That same day GEICO received a voicemail advising that Officer Jill Hirsch was handling the investigation. GEICO returned the call and left a voicemail regarding the Florida Traffic Crash Report.
On October 22, Harney asked Montero for a copy of the Florida Traffic Crash Report. On that same day, GEICO again sent a reservation of rights letter to Ellis, noting his delay in reporting the loss may prejudice GEICO’s investigation of the claim. On October 23, Sholar again contacted FLPD to request a copy of the Florida Traffic Crash Report and was once again told that the report was not available.
On October 27, Sholar received notice that the Florida Traffic Crash report was available at the FLPD. On October 29, at 9:35 a.m., GEICO finally obtained a copy of the Florida Traffic Crash Report. Within minutes of the receiving the report, Smith and Harney met and decided to tender Ellis’s full bodily injury limits to Brobeck based on confirmation that Ellis’s vehicle was involved in the loss, and following the meeting, Harney immediately [7] updated the claim to list Ellis as 100% at fault. At the same time, GEICO dispatched Sholar to hand deliver a check for the policy limits and an accompanying release to Montero’s office. GEICO also sent a letter to Ellis advising him of the possibility of a judgment in excess of his policy limits, his right to hire his own counsel, that GEICO would provide him a defense if suit were filed, and of Ellis’s right to contribute toward the settlement of the claim. On November 11, 2014, GEICO received a letter from Montero rejecting the tender of the policy limits as untimely. Montero considered any tender after October 16, 2014 untimely, but would have provided GEICO a grace period through October 22, 2014, when GEICO provided him a verification of coverage. Montero’s opinion is that GEICO did not act in good faith towards Ellis and did not treat this case with the urgency it required because it failed to follow up on leads that would have enabled it to make a timely tender of policy limits. Montero faulted GEICO for failing to obtain the VIN and tag numbers from the wrecker company that towed the accident vehicle, failing to obtain the Complaint Affidavit, failing to obtain the traffic [8] citation, failing to enter Ellis’s place of employment because of the unjustified fear that it was unsafe, failing to act on leads because of scheduling conflicts, and failing to go to the police department in person.

II. DISCUSSION

A. Florida bad faith law
HN4[ ] Florida courts have long recognized “the good faith duty insurers owe to their insureds in handling their claims.” Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 6 (Fla. 2018); Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). “[B]ecause the insured ‘has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, . . . the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.'” Harvey, 259 So. 3d at 6 (quoting Boston Old Colony, 386 So. 2d at 785). HN5[ ] “An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Boston Old Colony, 386 So. 2d at 785.
This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The [9] insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Id. (citations omitted). HN6[ ] “Breach of this duty may give rise to a cause of action for bad faith against the insurer.” Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893, 898 (Fla. 2010). Where “liability is clear, and injuries so serious that a judgment in excess of the policy limits is likely, an insurer has an affirmative duty to initiate settlement negotiations.” Harvey, 259 So. 3d at 7 (quotation marks omitted). “In such a case, where the financial exposure to the insured is a ticking financial time bomb and suit can be filed at any time, any delay in making an offer . . . even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith.” Id. (quotation marks and alterations omitted). HN7[ ] “[T]he question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004). “[T]he critical inquiry in a bad faith action is whether the insurer diligently, and with the same haste and precision [10] as if it were in the insured’s shoes, worked on the insured’s behalf to avoid an excess judgment.” Harvey, 259 So. 3d at 7. While “negligence is not the standard” for evaluating bad faith actions, id. at 9, “[b]ecause the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith,” Boston Old Colony, 386 So. 2d at 785. The focus of the bad faith case is on the actions of the insurer, not those of the claimant. Berges, 896 So. 2d at 677. For that reason, a claimant’s “actions can[not] let the insurer off the hook when the evidence clearly establishes that the insurer acted in bad faith in handling the insured’s claim.” Harvey, 259 So. 3d at 11.

B. GEICO did not operate in bad faith
Ellis contends the district court erred in granting summary judgment to GEICO because the record contains sufficient evidence from which a reasonable jury could conclude GEICO acted in bad faith in the handling of the Estate of Brobeck’s wrongful death claim against Ellis. Because the case was a ticking financial time bomb with aggravated liability, big damages, and low insurance policy limits, GEICO was required to take a proactive role to settle the case within policy limits. Ellis asserts with the information [11] GEICO had—Ellis’s arrest and traffic citation, a news article, a telephone conversation with FLPD, and the location of the towing company where Ellis’s vehicle was towed—coverage could have been verified within days after notice of the Brobeck claim. Instead, GEICO needlessly prolonged its investigation by waiting until it could obtain a copy of the Florida Traffic Crash Report when GEICO knew the release of police reports are delayed when a fatality occurs. Ellis contends under these circumstances, a reasonable jury could find that GEICO did not act with the same degree of care and diligence as a person of ordinary care and prudence should exercise with the management of his own business, or that GEICO diligently, and with the same haste and precision as if it were in Ellis’s shoes, worked on his behalf to avoid an excess judgment. While Ellis points to speculative, alternative investigatory avenues that GEICO’s adjusters could have explored in the time period between October 9 and October 29, Ellis overlooks the efforts GEICO did take to investigate the claim and confirm coverage. Given the undisputed facts of this case, we agree with the district court that no reasonable jury could [12] conclude that GEICO operated in bad faith under the totality of the circumstances. Upon receiving late notice of the accident on October 9, 2014, GEICO immediately began its investigation and was diligent in its investigation. However, despite its efforts to investigate the loss, GEICO was unable to determine to what extent Ellis and his vehicle were involved in the loss until GEICO obtained the Florida Traffic Crash Report on October 29, 2014. The Florida Traffic Crash Report contained Ellis’s vehicle identification number, which allowed GEICO to confirm Ellis’s vehicle was involved in the loss. Once GEICO knew there was coverage upon receiving the Florida Traffic Crash Report on October 29, 2014, it immediately extended coverage for the loss, apportioned 100% liability on Ellis, and immediately tendered the policy limits.
GEICO’s efforts in timely confirming coverage were frustrated by Ellis’s lack of communication. While GEICO’s actions, not Ellis’s, are the focus of the bad faith case, Ellis’s lack of communication with GEICO can be considered when determining the totality of the circumstances. See Berges, 896 So. 2d at 677, 680. The same day it received notice of the accident, GEICO attempted to discuss the [13] loss with Ellis and left a voicemail. Ellis did not respond or return GEICO’s call. GEICO attempted to contact Ellis repeatedly during the next 20 days and left multiple voicemail messages for Ellis to confirm his involvement. GEICO also sent Ellis multiple letters. None of GEICO’s attempts to communicate received a response. GEICO also made other attempts to verify coverage. On October 13, GEICO assigned a field representative to assist in locating Ellis and obtaining a copy of the police report. Over the next 16 days, Sholar communicated with FLPD on many occasions. Sholar also visited Ellis’s alleged place of employment, although she did not enter for safety concerns. She then attempted to visit Ellis’s residence, and Ellis’s apartment was empty. Sholar left a GEICOgram at Ellis’s residence requesting he contact GEICO as “there has been a report of an accident involving an injury to another.” HN8[ ] An insurer—acting with diligence and due regard for its insured—is allowed a reasonable time to investigate a claim; no obligation exists to tender policy limits in advance of a settlement offer without time for investigation. See Boston Old Colony, 386 So. 2d at 785 (explaining part of good faith duty is obligation of insurer [14] to investigate the facts); De Laune v. Liberty Mut. Ins. Co., 314 So. 2d 601, 603 (Fla. 4th DCA 1975) (recognizing the right to first make an inquiry and evaluate merits of a claim before obligation to settle is triggered). Even if one of Ellis’s alternate avenues of confirming coverage would have done so more quickly, under the totality of the circumstances, a reasonable jury could not say GEICO was not acting diligently and with the same haste and precision as if they were in the insured’s shoes.

III. CONCLUSION
On the undisputed facts, Ellis has raised no possible inference of bad faith. See Eres, 998 F.3d at 1281. We affirm the district court.
AFFIRMED.

United States Court of Appeals for the Fifth Circuit
February 17, 2022, Filed
No. 21-30196

Reporter
2022 U.S. App. LEXIS 4368 ; 2022 WL 488052 TYREA ARCENEAUX, Plaintiff—Appellant, versus AMERICAN TRUCKING & TRANSPORTATION INSURANCE COMPANY RISK RETENTION GROUP; M V T SERVICES, L.L.C., DOING BUSINESS AS MESILLA VALLEY TRANSPORTATION, Defendants—Appellees. Prior History: [1] Appeal from the United States District Court for the Western District of Louisiana. USDC No. 6:20-CV-70.
Core Terms

tire, district court, repair, tractor-trailer’s, underinflation, material fact, summary judgment, genuine dispute, injuries, res ipsa loquitur, reasonable care, no evidence, trailer’s, mechanic, records, tractor, rear, vice
Case Summary

Overview
HOLDINGS: [1]-In a negligence action after a tractor-trailer tire blew out and the dislocated tread struck plaintiff’s vehicle, plaintiff could not recover under La. Civ. Code Ann. art. 2317.1, as she had not raised a genuine dispute of material fact as to whether the tire had a defect that presented an unreasonable risk of harm, and did not even offer any admissible evidence regarding the tire’s failure or surrounding circumstances; even if she did raise a genuine dispute of material fact, she still failed to raise a genuine dispute as to whether defendants knew, or should have known, of any such defect; [2]-By conceding that an open question remained as to whether an object was struck in the road causing the tire to blowout, plaintiff failed to sufficiently eliminate other more probable causes of the injury; thus, there was no basis in the record to apply res ipsa loquitur.
Outcome
Judgment affirmed.
LexisNexis® Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN1[ ] Appellate Jurisdiction, Final Judgment Rule
The failure to dispose of unserved, nonappearing defendants does not prevent a judgment from being final and appealable.

Civil Procedure > Appeals > Standards of Review > De Novo Review
Civil Procedure > Preliminary Considerations > Federal & State Interrelationships > Erie Doctrine
HN2[ ] Standards of Review, De Novo Review
Federal courts sitting in diversity must apply state substantive law and federal procedural law. The United States Court of Appeals for the Fifth Circuit reviews applications of state substantive law de novo.

Civil Procedure > Appeals > Standards of Review > De Novo Review
Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law
Civil Procedure > Appeals > Summary Judgment Review > Standards of Review
Civil Procedure > … > Summary Judgment > Evidentiary Considerations > Scintilla Rule
Civil Procedure > … > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof
HN3[ ] Standards of Review, De Novo Review
The United States Court of Appeals for the Fifth Circuit reviews a grant of summary judgment de novo, applying the same standard as the district court. Fed. R. Civ. P. 56(a) requires a court to enter summary judgment when the movant establishes that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A fact is material if it might affect the outcome of the suit under the governing law. And a dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Moreover, summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. Rather, the nonmovant must come forward with competent evidence, such as affidavits or depositions, to buttress his claims.

Torts > Negligence > Elements
HN4[ ] Negligence, Elements
Louisiana’s general negligence statute provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. Civ. Code Ann. art. 2315(A). This statute focuses on an alleged tortfeasor’s conduct.

Torts > Strict Liability > Abnormally Dangerous Activities > Factors in Determining Abnormal Danger
Torts > … > Proof > Res Ipsa Loquitur > Limits on Application
Torts > … > Res Ipsa Loquitur > Elements > Type of Event
Torts > … > Comparative Fault > Common Law Concepts > Res Ipsa Loquitur
HN5[ ] Abnormally Dangerous Activities, Factors in Determining Abnormal Danger
Negligence claims arising out of injuries caused by defective things implicate La. Civ. Code Ann. art. 2317.1, which provides: The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Thus, to recover for damages caused by a defective thing, a plaintiff must prove (1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his/her claim fails.

Torts > Negligence > Elements
HN6[ ] Negligence, Elements
There is essentially no difference between La. Civ. Code Ann. art. 2315 and 2317.1 claims under Louisiana law.

Torts > … > Standards of Care > Reasonable Care > Recognition of Risk
HN7[ ] Reasonable Care, Recognition of Risk
Constructive knowledge exists if the conditions that caused the injury existed for such a period of time that the owner or custodian of a thing, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.

Torts > … > Res Ipsa Loquitur > Elements > Causation
Torts > … > Res Ipsa Loquitur > Elements > Type of Event
Torts > … > Proof > Evidence > Circumstantial & Direct Evidence
Torts > … > Proof > Res Ipsa Loquitur > Evidentiary Effect
Torts > … > Proof > Evidence > Inferences & Presumptions
HN8[ ] Elements, Causation
Louisiana courts apply the of res ipsa loquitur doctrine of circumstantial evidence, allowing an inference of negligence, when: First, the injury is the kind which ordinarily does not occur in the absence of negligence; Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person; and Third, the negligence of the defendant must fall within the scope of his duty to the plaintiff.

Torts > … > Res Ipsa Loquitur > Elements > Causation
Torts > … > Proof > Evidence > Inferences & Presumptions
Torts > … > Comparative Fault > Common Law Concepts > Res Ipsa Loquitur
Torts > … > Proof > Res Ipsa Loquitur > Evidentiary Effect
Torts > … > Proof > Res Ipsa Loquitur > Limits on Application
HN9[ ] Elements, Causation
Application of the of res ipsa loquitur doctrine is defeated if an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.
Counsel: For Tyrea Arceneaux, Plaintiff – Appellant: Rebecca Marie Massa, Blake Jones Law Firm, L.L.C., New Orleans, LA.
For American Trucking & Transportation Insurance Company Risk Retention Group, M V T Services, L.L.C., doing business as Mesilla Valley Transportation, Defendants – Appellees: Matthew W. Bailey, Hillary Brouillette, Irwin Fritchie Urquhart & Moore, L.L.C., Baton Rouge, LA; Kelly E. Brilleaux, Esq., Irwin Fritchie Urquhart & Moore, L.L.C., New Orleans, LA.
Judges: Before JONES, HAYNES, and COSTA, Circuit Judges.
Opinion

PER CURIAM:*
Appellant Tyrea Arceneaux sustained injuries after a tractor-trailer tire blew out and the dislocated tread struck her vehicle. She filed various negligence claims against the tractor-trailer’s owner, its driver, and its insurer. The district court granted summary judgment in favor of the Defendant-Appellees and dismissed Arceneaux’s claims with prejudice. For the following reasons, the judgment of the district court is AFFIRMED.

I. BACKGROUND
Arceneaux commuted from her workplace in Breaux Bridge, Louisiana to her home in Lafayette by traveling southwest on Interstate [2] 10. One day in March 2018, a tractor-trailer owned by Appellee MVT Services, LLC and driven by its employee, Wilson Gonzales, passed Arceneaux and changed lanes in front of her.1 Suddenly, part of the tractor-trailer’s backmost “driver’s side tire failed or blew out, and the tread separated . . . .” The dislocated tread “struck the front driver’s side of [Arceneaux’s] vehicle.”2 Ultimately, it “got caught under [Arceneaux’s] vehicle, halting her in the middle of Interstate 10 causing severe injury to her knee which required surgery[.]” Arceneaux filed suit against MVT, Gonzales, and American Trucking & Transportation Insurance Company Risk Retention Group (the tractor-trailer’s insurer) in January 2020. She claimed that Gonzales failed to properly maintain and control the tractor-trailer and that he otherwise operated it recklessly, carelessly, and inattentively. She attributed the same conduct to MVT based on a respondeat superior theory and separately insisted that MVT failed to properly train and supervise Gonzales. During the course of litigation, MVT produced repair and maintenance records for the tractor-trailer involved in the incident.3 A repair order from March 18, 2019 [3] (the date of the incident) describes a “blown” tire and attributes the cause to “Under Inflation.” Another repair order indicates that the “RR” (presumably right rear) tire failed in February 2019 due to “tread separation.” Yet another order indicates that MVT replaced the tractor-trailer’s left rear tire on March 2, 2019 (two weeks before the incident). MVT also replaced the tractor-trailer’s right rear tire in December 2018 (approximately three months before the incident).
Appellees jointly moved for summary judgment, arguing that Arceneaux failed to satisfy the requirements of Louisiana Civil Code Article 2317.1 because she did not show that the tire had a defect or that MVT or Gonzales knew, or should have known, of any defect. The district court granted the motion based on the first argument and dismissed the action following a hearing. It then entered a short order confirming its oral ruling. Arceneaux timely appealed.

II. STANDARD OF REVIEW
HN2[ ] Federal courts sitting in diversity must apply state substantive law and federal procedural law. Erie R.R. v Tompkins, 304 U.S. 64, 79-80, 58 S. Ct. 817, 823, 82 L. Ed. 1188 (1938). This court reviews applications of state substantive law de novo. Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013) (citation omitted).
HN3[ ] “This court reviews a grant of summary judgment de novo, applying the same standard as the [*4] district court.” Renfroe v. Parker, 974 F.3d 594, 599 (5th Cir. 2020) (citations omitted). Federal Rule of Civil Procedure 56(a) requires a court to enter summary judgment when the movant establishes that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is material if it “might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). And a dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 477 U.S. at 252, 106 S. Ct. at 2512. Moreover, “[s]ummary judgment is also proper if the party opposing the motion fails to establish an essential element of his case.” Bradley v. Allstate Ins. Co., 620 F.3d 509, 516 (5th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986)). “Rather, the nonmovant must come forward with competent evidence, such as affidavits or depositions, to buttress his claims.” Id. (citing Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552-53).

III. DISCUSSION
Arceneaux articulates eleven issues for review. But, at base, all of those issues center on whether the district court erred by dismissing her negligence claims because she failed to create genuine issues of material fact.
HN4[ ] Arceneaux frames the bulk of her [5] claims as arising under Louisiana’s general negligence statute, which provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civ. Code Ann. art. 2315(A). This statute focuses on an alleged tortfeasor’s conduct. In that regard, Arceneaux attributes her injuries, at least in part, to actions or omissions by MVT or Gonzales. But she also emphasizes that the “tractor—trailer tire which caused injury to [her] was due to ‘under-inflation’ of the tire.” The only record evidence Arceneaux cites to support her arguments is the post-incident repair order discussing the tire. She cites no evidence suggesting that the conduct of any defendant contributed to her injuries. Because Arceneaux heavily emphasizes the tire itself, Appellees insist that it, an allegedly defective thing, caused her claimed injuries. HN5[ ] Negligence claims arising out of injuries caused by defective things implicate another statute that provides: The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, [6] that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.4
La. Civ. Code Ann. art. 2317.1. Thus, to recover for damages caused by a defective thing, a plaintiff must prove “(1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his/her claim fails.” Riggs v. Opelousas Gen. Hosp. Tr. Auth., 997 So. 2d 814, 817 (La. Ct. App. 2008).
HN6[ ] Despite the parties’ disagreement as to the statutory basis of Arceneaux’s claims, “‘[t]here is essentially no difference between [article 2315 and 2317.1 claims] under Louisiana law[.]'” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 616 n.12 (5th Cir. 2018) (quoting Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., L.L.C., 850 F.3d 714, 729 (5th Cir.), cert. denied sub nom. Bd. of Comm’rs of the Se. La. Flood Prot. Auth. v. Tenn. Gas Pipeline Co., L.L.C., 138 S. Ct. 420, 199 L. Ed. 2d 306 (2017) (alterations in original)). Arceneaux must make the same showing irrespective of whether the tire itself, the conduct of [*7] MVT or Gonzales, or a combination of the two caused her injuries. She has failed to sustain her burden on the second and third elements listed above.

A.
Arceneaux has not raised a genuine dispute of material fact as to whether the tractor trailer’s tire had a defect that presented an unreasonable risk of harm.
At the conclusion of the summary judgment hearing, the district court surmised that “all I have is one piece of paper, really, that says ‘underinflation.’ There’s no [admissible evidence], nothing to explain what that means or how it was arrived at that or whatever.” The district court further explained that “[t]here is a scintilla of evidence in this repair order, but I don’t think that’s enough to prevent a motion for summary judgment.” To avoid summary judgment, the district court wanted Arceneaux to provide “something, even the mechanic or an expert or something, something more than this one piece of paper[.]”
Arceneaux contends that the district court improperly weighed the evidence and that MVT’s maintenance records conclusively reveal that the tire’s “underinflation” was the cause-in-fact of the blow-out and subsequent incident.5 She describes the maintenance records as “substantial [8] and significant” evidence that raise genuine disputes of material fact regarding her claims. But Arceneaux necessarily relies on one repair order that a roadside mechanic prepared after arriving on the scene to replace the tire. The post-incident repair order raised a potential issue as to whether the tire was defective because of “underinflation.” But even assuming the underinflation made the tire dangerously defective, there is no evidence to suggest what or who caused the underinflation. A variety of external objects and circumstances or internal defects could cause underinflation. Arceneaux even concedes that some unknown object may have punctured the tire. She also conceded to the district court that the repair order does not explain how or why the mechanic deduced the cause of the tire’s failure. Leaving aside the question of expert testimony (of which there was none), Arceneaux did not even offer any admissible evidence regarding the tire’s failure or surrounding circumstances.6 Indeed, the district court emphasized that she could have deposed the mechanic who produced the repair order or obtained an affidavit explaining his notation. She could have also deposed or obtained [9] affidavits from the responding police officer, the mechanic(s) who previously serviced the tractor trailer, or Gonzales himself. Finally, while the record contains three post-incident pictures of the tire, Arceneaux did not ascertain its age, mileage, or provenance. The post-incident repair order alone was insufficient to establish the tire’s “vice or defect” that made it unreasonably dangerous.

B.
Even if Arceneaux did raise a genuine dispute of material fact as to whether the tire was defective, she still fails to raise a genuine dispute of material fact as to whether MVT or Gonzales knew, or should have known, of any such defect.
Because Arceneaux offers no evidence suggesting that MVT or Gonzales actually knew the tractor trailer’s tire was underinflated, she must establish that they had constructive knowledge. HN7[ ] Constructive knowledge exists “if the conditions that caused the injury existed for such a period of time that [the owner or custodian of a thing], by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.” Tsegaye v. City of New Orleans, 183 So. 3d 705, 718 (La. Ct. App. 2015), writ denied, 188 So. 3d 1064 (citing Boutin v. Roman Catholic Church of the Diocese of Baton Rouge, 164 So. 3d 243, 246-47 (La. Ct. App. 2014), writ denied, 159 So 3d 469)).
But Arceneaux also offers no evidence as to [*10] whether MVT or Gonzales could have reasonably discovered any alleged defect in the tractor trailer’s tire. She did not depose or obtain an affidavit from anyone regarding the nature or frequency of any inspections performed on the tire at issue, much less on best practices for maintenance of heavy truck tires. With respect to maintenance, the sporadic and terse repair records in the record indicate that MVT had recently replaced the tractor-trailer’s rear tires before the incident occurred. Those records imply, if anything, that MVT was attending to the need for proper and properly inflated tires. In sum, there is no genuine dispute of material fact as to whether MVT or Gonzales knew, or should have known, of any alleged defect in the tire.7

C.
Arceneaux’s final argument relies on the doctrine of res ipsa loquitur, which was not pled but to which she devoted two paragraphs arguing in her response to the motion for summary judgment. She barely acknowledged the theory during the summary judgment hearing. Given this cursory treatment, the district court understandably did not address the theory. Nonetheless, the theory is plainly inapposite here.
HN8[ ] Louisiana courts apply this doctrine of circumstantial [11] evidence, allowing an inference of negligence, when: ○ First, the injury is the kind which ordinarily does not occur in the absence of negligence; ○ Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person; and ○ Third, the negligence of the defendant must fall within the scope of his duty to the plaintiff. Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So. 2d 36, 44 (La. 2007); see also Restatement (Second) Of Torts § 328D (Am. Law Inst. 1965). On these facts, Arceneaux cannot show that tire blowouts do not ordinarily occur in the absence of negligence, because “[t]here are numberless means or causes other than a defect in the manufacture, which bring about a blow out of a tire.” Williams v. U.S. Royal Tires, 101 So. 2d 488, 492 (La. App. 1958). Arceneaux attempts to analogize a case where the plaintiff “was following a tractor-trailer rig when suddenly the rear axles of the trailer separated from the chassis, striking the [plaintiff’s] vehicle. Gautreaux v. W. W. Rowland Trucking Co., Inc., 757 So. 2d 87, 89 (La. Ct. App. 2000). The Gautreaux court did apply res ipsa loquitur. Id. at 93. But Arceneaux offers no evidence suggesting that a failed tire is anywhere near as unusual as axles separating from a vehicle’s chassis. Arceneaux fails to confront the workaday nature of tire failure, the opposite of this component of res ipsa loquitur. Further, she cannot and has not [12] attempted to eliminate other potential causes of the injury, as required by the second element. HN9[ ] “Application of the doctrine is defeated if an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.” Montgomery v. Opelousas Gen. Hosp., 540 So. 2d 312, 320 (La. 1989). By conceding that an open question remains as to whether “an object was struck in the road causing the tire to blowout,” Arceneaux fails to sufficiently eliminate other more probable causes of the injury.8 There is no basis in the record to “sparingly appl[y]” res ipsa loquitur. Spott v. Otis Elevator Co., 601 So. 2d 1355, 1362 (La. 1992) (citing Day v. National U.S. Radiator Corp., 241 La. 288, 128 So. 2d 660, 665 (La. 1961)).
The judgment of the district court is AFFIRMED.