223 So. 3d 658
La. Ct. App.2017Background
- On Oct. 6, 2013 Tobias Dixon (motorcyclist) collided with a vehicle driven by Devyn Allen; Dixon was ejected and lay on the pavement.
- Patrick Jackson, driving a pickup, allegedly struck Dixon while he was on the pavement; Jackson, his employer Command Construction, and insurer The Gray moved for summary judgment denying liability.
- The trial court granted summary judgment for Jackson, Command, and The Gray on July 27, 2016; Dixon initially sought an appeal but later dismissed it; co-defendant LPG (Louisiana Pizza Group) timely appealed.
- Appellees argued there was no evidence Jackson ran over Dixon; LPG argued genuine fact issues remained about Jackson’s fault and that comparative fault should be for the trier of fact.
- The majority affirmed the summary judgment as to Jackson and held that La. C.C.P. art. 966(G) precludes any trial evidence or argument as to Jackson’s fault because Jackson was adjudicated not at fault and Dixon did not appeal.
- A dissent (Gravois, J.) argued LPG’s appeal should be considered on the merits: 966(G) is silent on appealability, the summary judgment was not final as to LPG, and precedent (Grimes/Nunez) and later cases counsel review of a co-defendant’s appeal so comparative-fault allocation can be considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred granting summary judgment for Jackson | Dixon (and LPG) argued genuine issues of fact existed whether Jackson struck Dixon | Jackson argued there was no evidence he ran over or caused plaintiff’s injuries | Majority: cannot review merits as to Dixon because Dixon did not appeal; summary judgment final as to Dixon and Jackson; affirmed for Jackson |
| Whether LPG may appeal and obtain consideration of Jackson’s fault at trial after Dixon failed to appeal | LPG argued it may appeal and, if successful, present evidence of Jackson’s fault so comparative fault can reduce LPG’s liability | Jackson argued dismissal as to Dixon is final and art. 966(G) bars any trial evidence of Jackson’s fault; co-defendant cannot relitigate dismissed party’s fault | Majority: LPG may appeal but art. 966(G) forbids any evidence/argument regarding Jackson’s fault at trial because Jackson was adjudicated not at fault and Dixon did not appeal; LPG’s appeal is without merit on that basis |
| Scope and effect of La. C.C.P. art. 966(G) after a summary judgment dismissing a party | LPG (and dissent) contended 966(G) applies only once the summary judgment is final as to the appealing party and does not strip appeal rights | Appellees and majority read 966(G) to bar admission of evidence or submission of dismissed party’s fault at trial once that party was adjudicated not at fault by summary judgment final between plaintiff and that defendant | Majority: 966(G) unambiguously prohibits evidence or jury submission of fault of a party adjudicated not at fault at summary judgment; that adjudication here is final as to Dixon and Jackson, so fault cannot be considered at trial |
Key Cases Cited
- Bank of New York Mellon v. Smith, 180 So.3d 1238 (La. 2015) (standard of appellate review for summary judgment)
- Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d 730 (La. 1994) (summary judgment standard)
- Grimes v. La. Med. Mut. Ins. Co., 36 So.3d 215 (La. 2010) (appeal by co‑defendant does not bring up portions of judgment adverse to plaintiff)
- Nunez v. Commercial Union Ins. Co., 780 So.2d 348 (La. 2001) (plaintiff must appeal adverse dismissal to obtain affirmative relief)