FLORIBEL MORENO BANEGAS v. LANCE LEWIS TRIPLE EXPRESS INC AND HARTFORD FIRE INSURANCE COMPANY (2026)

Appellant, Floribel Moreno-Banegas (“Ms. Moreno”), has applied to this Court for rehearing of our May 05, 2026 opinion, which affirmed the district court's judgment dismissing with prejudice all of her claims against Appellees, Lance H. Lewis (“Mr. Lewis”), Triple G. Express, Inc. (“Triple G.”) and Hartford Fire Insurance Company (“Hartford”) (hereinafter collectively referred to as “Appellees”). After a careful review of our original opinion and for the following reasons, we grant rehearing, vacate our original opinion, reverse the district court's judgment granting summary judgment in favor of Appellees, and remand the matter to the district court for further proceedings consistent with this rehearing opinion.

In her rehearing application, Ms. Moreno asserts that, in our original opinion, this Court erred by characterizing Ms. Moreno's affidavit as self-serving and conclusory. Ms. Moreno points out that this Court in Dean v. De La Salle of New Orleans, Inc. reaffirmed its prior jurisprudence when it formulated a three-part test to determine whether an affidavit is self-serving: “1) it is inconsistent with previous sworn depositions—with no explanation for the inconsistencies; 2) is offered after the motion for summary judgment was filed; and 3) claims to create an issue of material fact.” 21-0388, p. 10 (La. App. 4 Cir. 12/21/21), 334 So.3d 425, 435 (first citing Hardison v. Byrne, 15-0111, p. 9 (La. App. 4 Cir. 12/9/15), 182 So. 3d 1110, 1116; then citing George v. Dover Elevator Co., 02-0821, p. 4 (La. App. 4 Cir. 9/25/02), 828 So. 2d 1194, 1197). Appellees posit in their opposition to Ms. Moreno's application that Ms. Moreno's deposition and affidavit offer self-serving testimony because they contradict the video evidence and her own expert's opinion. We now revisit that point of law.

As we noted in our original opinion, Ms. Moreno's deposition and affidavit were both consistent in alleging that Mr. Lewis was driving at an excessive rate of speed under the circumstances. And although the affidavit was offered after Appellees’ motion for summary judgment was filed, Ms. Moreno did not purport to create a genuine issue of material fact as to that issue, she simply reiterated what she had already testified to. Cf. Williams v. Touro Infirmary, 2023-CA-0180, pp. 14-15 (La. App. 4 Cir. 12/20/23) 382 So. 3d 345, 355-56 (wherein this Court found the plaintiff's affidavit to be self-serving because it was both internally inconsistent and inconsistent with the plaintiff's petition and other filed pleadings). Thus, we find that Ms. Moreno's statements regarding Mr. Lewis's speed are not self-serving in any jurisprudential sense.

Next, we re-examine whether Ms. Moreno's statements regarding Mr. Lewis's speed were conclusory. Louisiana Code of Civil Procedure article 967(A) requires, in pertinent part, that “[s]upporting and opposing affidavits [filed in relation to a motion for summary judgment] shall be made on personal knowledge” and “shall set forth such facts as would be admissible in evidence ․” This Court has utilized those prerequisites to determine whether a statement is conclusory. We addressed the issue of personal knowledge in Hernandez v. Northland Ins. Co. when we confirmed that “ ‘personal knowledge’ for the purpose of a supporting affidavit [is] ‘something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source.’ ” 24-0271, p. 8 (La. App. 4 Cir. 11/7/24), 402 So.3d 8, 14 (quoting Jones v. Boot Bar & Grill, 22-0154, p. 17 (La. App. 4 Cir. 10/5/22), 350 So.3d 968, 981). There is no dispute that Ms. Moreno possessed personal knowledge of the very events she was involved in.

Notwithstanding, in Surcouf v. Darling, we clarified that in addition to the necessity of personal knowledge, “affidavits with conclusory allegations of fact which are devoid of specific facts are not sufficient to defeat summary judgment.” 15-0278, p. 14 (La. App. 4 Cir. 10/21/15), 177 So.3d 1085, 1094 (alteration in original) (quoting Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09–1633, p. 16 (La.4/23/10), 35 So.3d 1053, 1062). In her affidavit, Ms. Moreno provided specific facts relating to: the positions of her vehicle and the tractor trailer relative to one another prior to the accident; the lane in which each was traveling; the vehicles traveling on a downslope towards a red light with busy traffic around them; the tractor trailer's excessive speed in light of those conditions.

This Court explained in Domino v. Matthews that lay witness testimony as to the speed of a vehicle involved in a collision is entirely permissible, and that, at trial, the lay status of a witness might affect the weight of the testimony, but not its admissibility. 508 So.2d 167, 168 (La. App. 4 Cir. 1987) (citation omitted). This is in keeping with La. C.E. art. 701, which provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Furthermore, although Ms. Moreno's assessment of Mr. Lewis's speed prior to the accident appears to be in conflict with the expert witness testimony, as we highlighted in our original opinion, “[w]hen the evidence presented is subject to different interpretations and the trier of fact must weigh contradictory testimony and assess witness credibility on a material fact, summary judgment is not proper.” Carlin v. Clear Blue Ins. Co., 22-0566, p. 12 (La. App. 4 Cir. 2/8/23), 357 So.3d 533, 539 (quoting Tate v. Progressive Sec. Ins. Co., 05-0393, pp. 8-9 (La. App. 4 Cir. 3/22/06), 929 So.2d 188, 193).¹ Based on the foregoing discussion, we find that Ms. Moreno's affidavit is not conclusory.

Ms. Moreno argues that, at the very least, her statements create a genuine issue of material fact as to whether Mr. Lewis caused or contributed to the sudden emergency by breaching the duty conferred on all Louisiana drivers by La. R.S. 32:64.² We agree. Louisiana Revised Statutes 32:64, entitled General speed law, provides, in pertinent part:

A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.

In a factually similar case—in inclement weather conditions, two tractor trailers collided after a third-party vehicle cut off one of the tractor trailers, giving the driver only two seconds to react—our Supreme Court illuminated the approach courts should employ for claims such as the one now before us in the context of a motion for summary judgment. The Court set forth that, “[o]rdinarily, the determination of whether negligence exists is a question of fact.” Burns v. Loomis Armored U.S., LLC, 25-01635, p. 1 (La. 1/7/26), 425 So.3d 831 (Mem) (citing Freeman v. Teague, 37,932 (La. App. 2 Cir. 12/10/03), 862 So.2d 371, 373). “Cases involving a question of negligence ordinarily are not appropriate for summary judgment. Id. “This principle extends to questions of comparative fault.” Id. “However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment.” Id. Here, reasonable minds could differ as to whether, under the specific conditions presented in this case, Mr. Lewis's speed caused or contributed to the sudden emergency that confronted him. Accordingly, we find that summary judgment was not appropriate in this case.

DECREE

For the foregoing reasons, we grant rehearing, vacate our original opinion, reverse the district court's judgment granting summary judgment in favor of Appellees, and remand the matter to the district court for further proceedings consistent with this opinion.

REHEARING GRANTED; ORIGINAL OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; REMANDED

FOOTNOTES

1.   See also Scott v. City of New Orleans By & Through New Orleans Aviation Bd., (“In consider[ing] a motion for summary judgment, the trial court cannot make credibility determinations but must construe reasonable factual inferences in favor of the party opposing the motion, resolving all doubt in favor of the opponent.”) 25-0513, p. 6 (La. App. 4 Cir. 2/18/26), ___So.3d ____, ____ (alteration in original) (citation omitted).

2.   Notably, Mr. Lewis testified in his deposition that: traffic was beginning to get busy at the time of the collision; he traveled that exact route every day; and, the left-hand lane leading to the red light was routinely backed up from vehicles attempting to turn left.

Judge Paula A. Brown