Touchet v. United Specialty Insurance Company et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES TOUCHET 	CIVIL ACTION
VERSUS 	NO. 24-1020
UNITED SPECIALTY INSURANCE
COMPANY, ET AL.
SECTION “R” (2)
ORDER AND REASONS
Defendants Alive Free Transportation, LLC and Dorgelys Manzano
Borrell move for summary judgment. 1 Plaintiff Charles Touchet opposes the
motion. 2 For the following reasons, the Court grants the motion.
I. 	BACKGROUND
The record establishes that the undisputed facts are as follows. On May
16, 2023, Dorgelys Borrell was driving a tractor-trailer in the right lane
northbound on I-59 in the scope of his employment with Alive Free
Transportation, LLC (Alive Free). 3 	Behind Borrell, Charles Touchet was
driving a sweeper truck in the right lane northbound on I-59 in the scope of
his employment for BJs Service Group, Inc. (BJs). 4 	Touchet saw Borrell’s
1 	R. Doc. 46.
2 	R. Doc. 55.
3 	R. Doc. 51-5, at 6.
4 	Id.
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tractor-trailer half a mile ahead of him with its hazard lights on. 5 There were
no vehicles between them. 6 Touchet looked away, and when he looked back,
he had caught up to Borrell’s truck, which had slowed. 7 	Borrell was pulling
to the side of the interstate to check his load of steel pipes, which he believed
had come loose.8 	Touchet then tried to move into the left lane and clipped
Borrell’s tractor-trailer in the process. 9 Touchet was injured.
Touchet sued Borrell, Alive Free, and United Specialty Insurance
Company. 10 Touchet sued Borrell for negligence. 11 Touchet sued Alive Free
for vicarious liability and for independent liability for negligent entrustment,
negligent hiring, negligent training, and negligent failure to provide warning
equipment. 12 BJs, Touchet’s employer, intervened in the lawsuit. 13 BJs seeks
to recover the full amount of compensation benefits, medical expenses,
vocational expenses, and other expenses BJs has paid Touchet because of the
accident. 14
5 	R. Doc. 46-2, at 85.
6 	Id. at 83.
7 	R. Doc. 55-1, at 8.
8 	R. Doc. 51-7, at 16.
9 	R. Doc. 55-1, at 10.
10 	R. Doc. 1.
11 	R. Doc. 1, at 3.
12 	Id.
13 	R. Doc. 18.
14 	Id. at 3.
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Borrell and Alive Free jointly move for summary judgment for the
dismissal of Touchet’s and BJs’ lawsuits.15 	Touchet opposed the motion; 16
BJs did not respond. The Court considers the motion below.
II. 	LEGAL STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). 	The Court considers the evidence in
the 	record 	without 	making 	credibility 	determinations 	or 	weighing 	the
evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d
395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of
the nonmoving party. 	Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985). If the record could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine dispute of material fact. EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the material in the record capable of being made admissible
15 	R. Doc. 46.
16 	R. Doc. 51.
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is insufficient with respect to an essential element of the nonmoving party’s
claim. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 325. 	The burden then
shifts to the nonmoving party, who must, by submitting or referring to
material capable of being made admissible, set out specific facts showing that
a genuine dispute exists. See Celotex, 477 U.S. at 324. The nonmovant may
not rest upon the pleadings but must identify specific facts that establish a
genuine issue for resolution. See, e.g., id.
III. 	DISCUSSION
Plaintiff sued all defendants for negligence. 	Borrell and Alive Free
moved for summary judgment, on the ground that Touchet is presumptively
negligent and that this presumption should resolve the case. Touchet argues
in response that the presumption does not apply because he has rebutted the
presumption or, in the alternative, because the sudden emergency doctrine
bars the presumption from applying. 	Separately, Touchet argues that
summary 	judgment 	is 	inappropriate 	here 	because, 	even 	if 	he 	were
presumptively negligent, that presumption would not bar the application of
comparative negligence. The Court considers these arguments in turn.
A. Presumption of Liability
Borrell and Alive Free assert that they are entitled to summary
judgment because Touchet as the following motorist is presumed at fault for
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the rear-end collision accident and has not overcome that presumption.
Defendants rely on La. Stat. § 32:81, and Sede v. Bullock, 734 F. Supp. 3d 524
(E.D. La. 2024), aff’d 2025 WL 1735722 (5th Cir. 2025), to support their
contention that Touchet is presumed at fault. Section 32:81 provides that:
The driver of a motor vehicle shall not follow another
vehicle more closely than is reasonable and prudent, having due
regard for the speed of such vehicle and the traffic upon and the
condition of the highway.
In Sede, a following motorcyclist crashed into a utility truck when the
utility truck turned right. 734 F. Supp. 3d at 527. The court found that the
plaintiff, the following motorcyclist, had a duty to refrain from following the
utility truck more closely than was reasonable and prudent. Id. at 529. The
court found that, as the following motorist, the plaintiff was presumed to
have breached that duty and accordingly that the presumption of liability
applied. Id. at 530.
Touchet indisputably had a duty to refrain from following Borrell’s
truck more closely than was reasonable and prudent. Defendants aver that
the undisputed facts show that Touchet was the following motorist and did
not exercise control of his vehicle, closely observe the vehicle ahead of him,
or follow at a safe distance. 17 	In support, defendants cite to Touchet’s
17 	R. Doc. 46-1, at 9.
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deposition, which provides the following undisputed facts. Touchet first saw
Borrell’s vehicle half a mile ahead of him in the right lane. 18 	Borrell’s truck
had its emergency hazard lights on. 19 	There were no vehicles between
Touchet’s sweeper truck and Borrell’s truck, nor were there vehicles in the
left lane ahead of Touchet. 20 Touchet looked away and when he looked back,
he had neared Borrell’s truck. 21 	Touchet struck Borrell’s truck as Touchet
attempted to move to the left lane. 22
Considering 	the 	deposition 	testimony, 	the 	Court 	finds 	that 	the
presumption of liability resulting from a violation of the duty set forth in La.
Stat. § 32:81 applies. Touchet was the following vehicle in relation to Borrell.
The Court finds that Touchet, as the “following” driver at all pertinent times
had a duty to refrain from following Mr. Borrell more closely than is
reasonable and prudent, having due regard for the speed of Mr. Borrell’s
truck and the traffic upon and condition of the interstate.
As the following motorist in a collision with the rear of a preceding
vehicle, Touchet is presumed to have breached this duty, which resulted in
the collision with the back left corner of Mr. Borrell’s truck. 	The “risk of a
18 	R. Doc. 46-2, at 9.
19 	Id.
20 	Id. at 10.
21 	R. Doc. 51-5, at 9.
22 	Id.
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rear-end collision (whether the collision occurs in an emergency lane, or in a
travelled portion of a roadway) is clearly within the scope of the statutory
prohibition against following too close.” Mart v. Hill, 505 So. 2d 1120, 1123
(La. 1987). 	Accordingly, the Court finds that defendants have carried their
burden in demonstrating that the presumption applies.
B. Rebutting the Presumption
The burden shifts to Touchet to demonstrate that a material issue of
fact remains as to his liability. First, Touchet argues that there are material
questions 	of 	fact 	as 	to 	whether 	he 	has 	rebutted 	the 	presumption 	of
negligence. 	Under Louisiana law, a following motorist may rebut the
presumption of following-driver negligence by proving that “he had his
vehicle under control, closely observed the preceding vehicle, and followed
at a safe distance under the circumstances . . . . ” 	Hooper v. Lopez, 344 So.
3d 656, 662 (La. App. 1 Cir. 2022).
Touchet has not pointed to any material in the record that rebuts the
presumption of liability. 	The record reflects that Touchet did not closely
observe the vehicle in front of him. 	Touchet himself noted that he looked
away from Borrell’s truck and did not see Borrell’s truck again until he was
quite close to it. 23 When a “stalled vehicle should have been seen by a driver
23 	R. Doc. 51-5, at 9.
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exercising the proper level of care, he is negligent in not seeing the vehicle
and avoiding it.” Douglas v. West, 65 So. 3d 746, 748 (La. App. 5 Cir. 2011).
The undisputed facts also show that Touchet did not follow at a safe distance
under the circumstances; if he had, he would not have crashed into Borrell’s
truck. 24 	Finally, Touchet does not show that Borrell negligently created a
hazard Touchet could not reasonably avoid. Instead, the record shows that
there were no vehicles between Touchet and Borrell when Touchet first saw
Borrell from a half-mile away, and Touchet could have reasonably moved in
to the left lane at that time. 25 	Thus, Touchet fails to rebut the presumption
of liability.
C. Sudden Emergency
Touchet next argues that the sudden emergency doctrine applies,
refuting 	his 	liability. 	In 	Louisiana, 	the 	“sudden 	emergency” 	doctrine
provides that an individual in a position of imminent peril is not negligent if
he “fails to adopt what subsequently and upon reflection may be the better
method, unless the emergency is brought about by his own negligence.”
Manno v. Gutierrez, 934 So. 2d 112, 117 (La. App. 1 Cir. 2006). 	Under the
sudden emergency doctrine, a following motorist “must show that the lead
24 	Id.
25 	Id. at 10.
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driver negligently created a hazard which could not be reasonably avoided.”
Holland v. State Farm Mut. Auto. Ins. Co., 973 So. 2d 134, 137 (La. App. 2
Cir. 2007). If so, the following motorist would not be found negligent. Id.
Touchet has not met his burden at summary judgment to show that the
sudden emergency doctrine applies. For it to apply, Touchet would need to
point to material capable of being made admissible that creates question of
material fact as to whether Borrell negligently created a hazard that could
not be avoided. Fed. R. Civ. P. 56. Touchet has not done so. Plaintiff points
to no material that creates a question of fact as to whether the hazard could
not have been reasonably avoided.
Indeed, the record shows that no hazard existed that Touchet could not
have reasonably avoided. Touchet saw Borrell’s truck, with its hazard lights
on, from half a mile away, and there were no vehicles in the left lane
preventing him from changing lanes. 26 	Had Touchet “maintained a proper
lookout, he would or should have noticed” the truck in time to avoid the
collision. 	Spears v. Aguilar, 436 So. 2d 672, 675 (La. App. 4 Cir. 1983).
“Read-end collisions are common occurrences on the roadways of this state,
and an abruptly stopped vehicle is not an unanticipated occurrence by any
means.” Daigle v. Scioneaux, 2016 WL 687157, at *7 (La. App. 1 Cir. Feb. 17,
26 	R. Doc. 51-5, at 9-10.
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2016). Had Touchet maintained the proper lookout, he would have seen the
slowing vehicle, which is “not an unanticipated occurrence” and therefore
avoided the emergency. Id.
The sudden emergency doctrine cannot be invoked by an individual
who “has not used due care to avoid” the emergency. 	Dick v. Phillips, 218
So. 2d 299, 302 (La. 1969). 	Accordingly, the Court finds that Touchet has
failed to create a genuine dispute of material fact as to whether the sudden
emergency doctrine applies.
D. Comparative Negligence
Finally, Touchet asserts that the doctrine of comparative negligence
makes 	summary 	judgment 	inappropriate, 	because 	the 	presumption 	of
Touchet’s negligence does not show that Borrell was not also negligent.
Notwithstanding “the presumption of negligence, a favored motorist
can still be assessed with comparative fault if his or her substandard conduct
contributed to the cause of the accident.” 	Eastman v. State Farm Mutual
Auto. Ins. Co., 384 So. 3d 865, 874 (La. 2024). 	After the presumption of
negligence has attached, the “ordinary rules of comparative negligence apply
and, thus, a plaintiff’s damages may be reduced by the degree that he was
comparatively at fault.” 	Graffia v. Louisiana Farm Bureau Cas. Ins. Co., 6
So. 3d 270, 274 (La. App. 1 Cir. 2009).
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Touchet asserts that there remain questions of material fact as to
whether Borrell was negligent. To establish an action for negligence under
Louisiana law, Touchet must prove five elements at trial by a preponderance
of the evidence: (1) the defendant had a duty to conform conduct to a specific
standard; (2) the defendant’s conduct failed to conform to that standard
(breach); (3) the defendant’s conduct was a cause-in-fact of the injury; (4)
the defendant’s conduct was a legal cause of the injury; and (5) proof of
damages. 	Campbell v. Orient-Express Hotels Louisiana, Inc., 403 So. 3d
573, 580-81 (La. 2025). 	At the summary judgment stage, Touchet must
identify 	specific 	material 	capable 	of 	being 	made 	admissible 	on 	each
contested, essential element and explain how that material defeats the
motion. Fed. R. Civ. P. 56(a).
Touchet asserts that Borrell was negligent in three ways: (1) failing to
use brake lights or turn signals when slowing down and turning onto the
shoulder; (2) traveling below the speed limit; (3) pulling to the side of the
interstate to check his load. The Court will consider each alleged negligent
act in turn.
1. Lights
Touchet presents his deposition as evidence to assert that Borrell used
neither his brake lights nor his turn signal in slowing down and moving to
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the shoulder of the interstate. 27 Touchet asserts that this alleged omission is
a breach of Borrell’s duty to drive with due care. 	Although the defendant
contests the factual premise of this assertion, the Court finds that Touchet’s
deposition testimony creates an issue of fact as to whether Borrell failed to
activate his brake lights or turn signal for the purposes of the summary
judgment motion.
But breach is not enough to show negligence. Touchet must also point
to a genuine dispute of material fact as to causation. There can be more than
one cause in fact of an accident if each cause “bears a proximate relation to
the harm that occurs and is substantial in nature.” Rando v. Anco Insulations
Inc., 16 So. 3d 1065, 1088 (La. 2009). 	Negligent conduct is a substantial
factor if “but for defendant’s conduct, plaintiff would not have sustained
injury.” Id.
Touchet points to no material capable of being made admissible that
Borrell’s alleged failure to use his brake lights or turn signal was a but-for
cause of the accident. 	Touchet said in his deposition that he looked away
from Borrell’s vehicle and was close behind it when he again looked
27 	R. Doc. 51, at 4.
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forward. 28 Turning his head away would have prevented his seeing the brake
lights or turn signal.
Further, Borrell had activated his four emergency hazard lights, as
Touchet admitted in his deposition. 29 	The four emergency lights activated
on Borrell’s truck drew “attention to the danger before it was otherwise
apparent.” McCrory v. Rochester, 398 So. 2d 1115, 1116 (La. 1981). The law
“charges 	the 	driver 	with 	having 	seen 	what 	he 	should 	have 	seen 	and
subsequent events are judged as though he did see what he should have
seen.” 	Stephens v. Fuller, 907 So. 2d 917, 920 (La. App. 2 Cir. 2005).
Touchet could have reduced his speed when he saw the truck in front of him
with active hazard lights. 	See McCrory v. Rochester, 398 So. 2d 1115, 1117
(La. 1981).
Touchet points to nothing in the record suggesting that the addition of
the turn signal or the brake lights would have prevented the accident and
that therefore their alleged absence was a but-for cause of the accident. Here,
the alleged failure to use brake lights or turn signals is not a substantial factor
in the accident. Touchet has not created a genuine issue of material fact as
28 	R. Doc. 51-5, at 9.
29 	R. Doc. 46-2, at 85; R. Doc. 46-3, at 9.
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to whether the alleged failure to use brake lights and a turn signal was a cause
of the accident.
2. Minimum Speed
Next, Touchet asserts that Borrell’s failure to drive above the minimum
speed on the highway was a breach of duty. The statute requiring compliance
with the minimum speed provides that except “when a special hazard exists
that requires lower speed . . . no person shall operate or drive a motor vehicle
upon the highways of this state at such a low speed as to impede the normal
and reasonable movement of traffic.” La. Stat. § 32:64.
Touchet fails to show that Borrell breached this duty. Touchet points
to no specific minimum speed under which Borrell was allegedly driving that
is applicable to the relevant section of I-59. 	Additionally, Borrell’s slowing
of his vehicle did not impede the normal and reasonable movement of traffic.
It is undisputed vehicles could pass Borrell in the left lane. 30 Further, Borrell
perceived that a special hazard existed that required a lower speed. Borrell,
in his deposition, remarked that he “noticed a problem with [his] load,” and
then decided to slow down and began to look for a safe place to pull over to
check his load. 31 	Here, the possibility of the loose load of steel pipes was a
30 	Id. at 10.
31 	R. Doc. 46-3, at 8-9.
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“special hazard” that required Borrell to slow down. 	Touchet points to no
material capable of being made admissible that disputes that Borrell believed
there was a problem with his load, which amounted to a special hazard.
There is no genuine dispute of material fact as to whether Borrell’s driving
below the minimum speed in response to that hazard was a breach of duty.
3. Use of Shoulder
Finally, Touchet asserts that Borrell’s “attempting to pull over” to the
shoulder was a breach of Borrell’s duty of reasonable care. Touchet points to
no statute or case law creating a duty not to pull over to the shoulder when
faced with a perceived emergency. 	Louisiana law prohibits stopping or
standing on the shoulder unless “made necessary by an emergency.” La. Rev.
Stat. § 32:296. In Louisiana, pulling over to the shoulder is not negligence if
the driver faces a “perceived or apparent danger.” 	Durrett v. State, 416 So.
2d 562, 568 (La. App. 1 Cir. 1982); accord Robertson v. Handy, 354 So. 2d
626 (La. App. 1 Cir. 1977). 	Pulling over to the shoulder to check on what
Borrell perceived to be loose steel pipes was thus not negligent, even given
the “high standard of care” applied to professional truck drivers. See Davis
v. Witt, 851 So. 2d 1119, 1129 (La. 2003). 	Touchet points to no material
capable of being made admissible that creates a factual issue as to whether
Borrell perceived there was an emergency with his load. There is no genuine
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dispute of material fact as to whether Borrell’s decision to pull over to the
shoulder was a breach of his duty.
*****
Touchet is presumptively liable for the accident. 	Touchet has not
rebutted the presumption of his liability, either through the criteria for
rebuttal or the criteria for the application of the sudden emergency doctrine.
Further, 	Touchet 	has 	not 	pointed 	to 	material 	capable 	of 	being 	made
admissible that creates a genuine dispute of material fact as to whether
Borrell was negligent. As Touchet has not met this burden as to the essential
elements of his negligence claim, Borrell is entitled to judgment as a matter
of law. 	The Court grants Borrell’s motion for summary judgment on
Touchet’s claims.
E. Claims Against Alive Free
Defendants also move for summary judgment on plaintiff’s claims
against Alive Free. Because the Court has found that plaintiff has raised no
genuine issue of material fact as to whether Borrell was negligent, Alive Free
does not have vicarious liability. 	See McCoy v. City of Monroe, 747 So. 2d
1234, 1241 (La. App. 2 Cir. 2012) (finding that if an employee is not liable for
his or her actions, “no other entity would have vicarious liability as a result
of those actions”).
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Touchet alleges that Alive Free was independently liable for negligence
in two ways: (1) negligently failing to train Borrell and (2) negligently hiring
Borrell because he does not speak English. 	Under Louisiana law, an
employer can “only be liable under theories of negligent hiring, supervision,
training, and retention, and negligent entrustment if the employee is at
fault . . . .” Martin v. Thomas, 346 So. 3d 238, 247 (La. 2022). The Louisiana
Supreme Court noted that “‘no degree of negligence’ on the part of the
employer hiring the employee would make the employer liable if the
employee did not breach a duty to the plaintiff.” Id. (nothing that if “no fault
is shown on the part of the employee, the inquiry is ended”). As there is no
genuine dispute of material fact as to whether Borrell was negligent, Alive
Free cannot be held liable for negligent hiring, training, or entrustment as a
matter of law. The Court grants Alive Free’s motion for summary judgment
on Touchet’s claims.
F. BJs Service Group’s Claims
BJs Service Group did not respond to the motion for summary
judgment. 	In the Fifth Circuit, a district court may not grant a “default”
summary judgment on the ground that it is unopposed. 	Morgan v. Fed.
Express Corp., 114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases).
Even in the context of unopposed motions for summary judgment, the
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movant must still show that there is no genuine issue of material fact, and
that it is entitled to summary judgment as a matter of law. 	Hetzel v.
Bethlehem Steel Corp., 50 F.3d 360, 363 n.3 (5th Cir. 1995). When a motion
for summary judgment is unopposed, a court may accept the movant's
evidence as undisputed. Morgan, 114 F. Supp. 3d at 437. Nevertheless, if the
moving party fails to meet its burden, the Court must deny its motion for
summary judgment. Hetzel, 50 F.3d at 362 n.3.
Here, 	BJs 	Service 	Group’s 	complaint 	adopted 	the 	allegations 	of
Touchet’s petition for damages as to the liability of Borrell and Alive Free. 32
As the Court has found Borrell and Alive Free entitled to summary judgment
on 	Touchet’s 	claims, 	Borrell 	and 	Alive 	Free 	are 	entitled 	to 	summary
judgment on BJs Service Group’s adoption of those claims.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS Borrell and Alive Free’s
motion for summary judgment. 	Touchet’s and BJs Service Group’s claims
against Borrell and Alive Free are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 2nd day of February, 2026.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
32 	R. Doc. 18, at 2.
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