TIMOTHY PAUL DESCANT v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO ET AL (2023)

In my view, and as Judge Perry noted in his dissent, “genuine issues of material fact are indeed present. ․ [R]easonable people could disagree on the disputed question of the speed at which Gaspard was traveling when the accident occurred and whether that speed contributed to the accident and resulting damage.” Descant v. Louisiana Farm Bureau Cas. Ins. Co., 2022-7 (La. App. 3 Cir. 11/2/22), --- So. 3d ---,---, 2022 WL 16635298 at *5 (unpub.)

A motion for summary judgment “shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A) (3); Davis v. A Bar & Grill with a Bite, Inc., 2019-1928 (La. 3/16/20), 294 So. 3d 1051, 1052. Where there are contested issues of material fact[,] ․ summary judgment [is] inappropriate.” Larson v. XYZ Ins. Co., 2016-0745, p. 7 (La. 5/3/17), 226 So. 3d 412, 417.

In this matter, the appellate court determined that partial summary judgment was warranted because the accident made subject of this lawsuit was caused solely by the fault of defendant, Justin Opdenhoff. In so finding, the court altogether disregarded the affidavit of defendants’ accident reconstruction expert, Eric Burson, who opined that:

․ if Gaspard was indeed traveling between forty (40) and forty-five miles per hour (45 mph) as he testified, then the crash would have been avoided because based on LDRR software, which predicts the average perception response time; post-impact distance traveled; and the length of the vehicles, Opdenhoff “would have needed approximately one additional second to clear the lane ahead of” Gaspard.

Id., 2022-7, 2022 WL 16635298 at *3-4. The court of appeal concluded that, because of Mr. Opdenhoff's “breach of his duty as a left turning motorist,” Mr. Burson's affidavit “as to Gaspard's speed does not create a genuine issue of material fact.” Id., 2022-7, 2022 WL 16635298 at *4.

In so determining, both lower courts impermissibly made determinations involving the weight or credibility of the expert testimony. Our jurisprudence reflects that, in determining whether an issue is “genuine,” for summary judgment purposes, courts may not “consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Crescent City Prop. Redevelopment Ass'n, LLC v. Muniz, 2021-00371 (La. 6/1/21), 347 So. 3d 682, 684, reh'g denied, 2021-00371 (La. 10/1/21), 324 So. 3d 1057; See also, King v. Town of Clarks, 2021-01897, p. 2 (La. 2/22/22), 345 So. 3d 422, 423 (“It is not the function of the trial court on a motion for summary judgment to determine, or even inquire into, the merits of issues raised, or to weigh conflicting evidence of material fact.”). The lower courts reached the decision that Mr. Opdenhoff was solely at fault in the accident despite an expert's opinion that might suggest otherwise; it is clear that the trial court improperly weighed evidence. For these reasons and because genuine issues of material fact remain, I would grant the writ application and reverse the decisions of the lower courts granting the partial summary judgment.

McCALLUM, J., would grant and assigns reasons.