# Pigott v. Heath

> District Court, E.D. Louisiana · December 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10185098

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** December 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KENNETH PIGOTT, ET AL. CIVIL ACTION

v. NO. 18-9438

KAYLA HEATH, ET AL. SECTION “F”

ORDER AND REASONS
Before the Court is the defendants’ motion for partial summary
judgment to dismiss the plaintiffs’ punitive damages claims. For
the reasons that follow, the motion is GRANTED.
Background
This is a car accident case. The defendants’ motion presents
the question whether Arizona’s law of punitive damages applies in
a Louisiana lawsuit arising from a Louisiana collision between
citizens of Louisiana and Mississippi. It does not.
The collision occurred in fall 2017. At the time, Kayla Heath
was driving an 18-wheeler in the left lane of Highway 21 in

Bogalusa, Louisiana. She was working for Swift Transportation,
hauling Wal-Mart cargo from Swift’s Robert, Louisiana terminal.
Kenneth Pigott was driving a sedan in the right lane, and Dehendric
Bickham was riding along. Heath’s 18-wheeler moved into the right
lane and struck Pigott’s sedan. This lawsuit followed.

Pigott and Bickham sued Heath and Swift in state court. They
said that Heath’s negligence caused the collision and that Swift
was vicariously liable. In response, Heath and Swift removed the
case based on diversity jurisdiction. See 28 U.S.C. § 1332(a)(1).
Pigott and Bickham are citizens of Louisiana. Heath is a
citizen of Mississippi. Swift is a limited liability company with
one member: a Delaware corporation with a principal place of
business in Arizona.
Once in this Court, Pigott and Bickham moved to amend their

complaint to add claims of independent negligence against Swift.
Swift originally said it did not oppose. But it soon realized the
amendment contained a claim not discussed: a claim for punitive
damages under Arizona law. Upon review of that claim, Swift
reversed course and opposed the amendment.
In the proposed amendment, Pigott and Bickham said Swift
negligently hired, trained, and supervised Heath. They alleged no
facts to support the application of Arizona law to any claim; yet
they purported to allege an Arizona-law punitive damages claim:
Due to the high likelihood that the conduct of Swift
Transportation Co. of Arizona, L.L.C. would injure
Plaintiffs and/or persons in Plaintiffs’ position,
Plaintiffs herein assert a claim for punitive damages
under Arizona law.
The United States Magistrate Judge allowed the amendment over
Swift’s objection. Swift appeals that ruling and moves for partial
summary judgment dismissing the Arizona-law punitive damages

claim. Pigott and Bickham oppose. Because a ruling in favor of
Swift on its motion for partial summary judgment would moot its
appeal, the Court considers the motion first.
I.

Summary judgment is proper if the record discloses 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). A dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). A fact is “material” if it “might
affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial,
“the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” In re La. Crawfish Producers, 852 F.3d 456, 462
(5th Cir. 2017) (citation omitted).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See Anderson, 477 U.S. at 248. Nor do “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation[.]”
Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003).
Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
In deciding whether a fact issue exists, the Court views the
facts and draws all reasonable inferences in the light most
favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of
Franklin, 886 F.3d 507, 513 (5th Cir. 2018). The Court “resolve[s]
factual controversies in favor of the nonmoving party,” but “only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts.” Antoine v. First

Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (citation
omitted).
Pigott and Bickham fail to submit “evidence of contradictory
facts.” Antoine, 713 F.3d at 830. In fact, they offer no summary-
judgment evidence to controvert any of the properly-supported
assertions of fact contained in Swift and Heath’s Local Civil Rule
56.1 statement.1 So, Swift and Heath’s properly-supported

1 Pigott and Bickham designate six material facts as
“disputed” without citing any record evidence to support the
designations. See Docket Entry 53-1, ¶¶ 5-10.
assertions of fact are deemed undisputed for purposes of the
motion. See FED. R. CIV. P. 56(e)(2).

II.
Before moving to the merits, the Court considers an issue of

summary judgment procedure. Pigott and Bickham invoke Federal Rule
of Civil Procedure 56(d) and contend that summary judgment is
premature because discovery is not complete. They ask the Court to
deny or continue summary judgment.
A.

The Court may deny or continue summary judgment if the parties
opposing summary judgment show “by affidavit or declaration that,
for specified reasons, [they] cannot present facts essential to
justify [their] opposition.” FED. R. CIV. P. 56(d). The parties
opposing summary judgment “may not simply rely on vague assertions
that additional discovery will produce needed, but unspecified
facts.” Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d
887, 894 (5th Cir. 2013). They must instead “set forth a plausible
basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the

outcome of the pending summary judgment motion.” Id. at 894.
B.
Pigott and Bickham are not entitled to a Rule 56(d)

continuance. They fail to present —— as Rule 56(d) requires —— a
declaration or affidavit in support of their request. And they
fail to identify “specified facts, susceptible of collection
within a reasonable time frame,” that would influence the Court’s
choice-of-law determination. Biles, 714 F.3d at 894. The Court
therefore denies the Rule 56(d) continuance request. The
procedural objection resolved, the Court turns to the merits.

III.
Swift contends that Pigott and Bickham cannot recover
punitive damages under Civil Code choice-of-law principles.

A.
Jurisdiction is based on diversity, so the Court applies the
substantive law of the forum —— Louisiana. See Boyett v. Redland
Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014) (citing Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938)). Because Louisiana choice-of-law
rules are substantive, they apply here. See Weber v. PACT XPP

Tech., AG, 811 F.3d 758, 770 (5th Cir. 2016) (citing Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941)). The first
step under those rules is determining whether the laws of two or
more states conflict on the particular issue. Lonzo v. Lonzo, 17-
549, p. 12 (La. App. 4 Cir. 11/15/17); 231 So. 3d 957, 966. If the
laws do not conflict, the Court applies forum law; if they do,
further analysis is required. See Am. Elec. Power Co. v. Affiliated

FM Ins. Co., 556 F.3d 282, 285 n.2 (5th Cir. 2009) (citing Mumblow
v. Monroe Broadcasting, Inc., 401 F.3d 616, 620 (5th Cir. 2005)).
The “particular issue” is punitive damages. The states with
allegedly conflicting (and potentially applicable) laws are
Louisiana and Arizona. Louisiana law prohibits recovery of
punitive damages “unless expressly authorized by statute.” Int’l
Harvester Credit Corp. v. Seale, 518 So. 2d 1039, 1042 (La. 1988).
Arizona law, by contrast, allows recovery of punitive damages upon
clear and convincing “evidence of an ‘evil mind’ and aggravated
and outrageous conduct.” Linthicum v. Nationwide Life Ins. Co.,

723 P.2d 675, 680 (Ariz. 1986). Because the laws of Louisiana and
Arizona conflict on the issue, the Court is informed by the choice-
of-law rules for delictual and quasi-delictual obligations. See
LA. CIV. CODE arts. 3542 — 3548.
B.

Civil Code choice-of-law rules prohibit an award of punitive
damages unless authorized
(1) By the law of the state where the injurious conduct
occurred and by either the law of the state where the
resulting injury occurred or the law of the place where
the person whose conduct caused the injury was
domiciled; or
(2) By the law of the state in which the injury occurred
and by the law of the state where the person whose
conduct caused the injury was domiciled.
LA. CIV. CODE art. 3546. Pigott and Bickham cannot recover punitive
damages under Civil Code Article 3546(2): their alleged injuries
occurred in Washington Parish, Louisiana, and Louisiana law does
not “authorize” an award of punitive damages here. So, the Court
turns to Civil Code Article 3546(1).
Under Civil Code Article 3546(1), Pigott and Bickham can
recover punitive damages if such damages are “authorized” by the
“law of the state where the injurious conduct occurred” and either
the “law of the state where the resulting injury occurred” or the
“law of the place where the person whose conduct caused the injury
was domiciled.” LA. CIV. CODE art. 3546(1).
Here, it is undisputed that the “resulting injuries”

allegedly occurred in Louisiana, which does not “authorize”
punitive damages under the facts of this case. So, Pigott and
Bickham may recover punitive damages only if such damages are
“authorized” by the “law of the state where the injurious conduct
occurred” and “the law of the place where the person whose conduct
caused the injury was domiciled.” LA. CIV. CODE art. 3546(1).
C.
Swift says punitive damages are unavailable under Civil Code

Article 3546(1) because such damages are not “authorized” under
the law of Louisiana, Swift’s domicile for choice-of-law purposes.
To determine Swift’s domicile for choice-of-law purposes, the
Court turns to Civil Code Article 3548, which provides:
For the purposes of this Title, and provided it is
appropriate under the principles of Article 3542, a
juridical person that is domiciled outside this state,
but which transacts business in this state and incurs a
delictual or quasi-delictual obligation arising from
activity within this state, shall be treated as a
domiciliary of this state.
LA. CIV. CODE art. 3548. It is undisputed that Swift is a “juridical
person” domiciled outside Louisiana, that Swift “transacts
business” in Louisiana, and that Swift “incur[red] a delictual
obligation arising from activity within” Louisiana. LA. CIV. CODE
art. 3548. So, Swift is a Louisiana domiciliary for choice-of-law
purposes, “provided it is appropriate under the principles of
Article 3542.” LA. CIV. CODE art. 3548. The Court turns now to
Article 3542.
Article 3542 sets general rules for choice-of-law problems in
tort cases. Marchesani v. Pellerin-Milnor Corp., 269 F.3d 481, 486
(5th Cir. 2001). It provides:
Except as otherwise provided in this Title, an issue of
delictual or quasi-delictual obligations is governed by
the law of the state whose policies would be most
seriously impaired if its law were not applied to that
issue.
That state is determined by evaluating the strength and
pertinence of the relevant policies of the involved
states in the light of: (1) the pertinent contacts of
each state to the parties and the events giving rise to
the dispute, including the place of conduct and injury,
the domicile, habitual residence, or place of business
of the parties, and the state in which the relationship,
if any, between the parties was centered; and (2) the
policies referred to in Article 3515, as well as the
policies of deterring wrongful conduct and of repairing
the consequences of injurious acts.
LA. CIV. CODE art. 3542. The first paragraph captures the aim of the
Article: Apply the law of the state whose policies would be most
seriously impaired if its law were not applied. Id.; see also
Arabie v. CITGO Petroleum Corp., 2010-2605, p. 10 (La. 3/13/12);
89 So. 3d 307, 316. The second paragraph cites factors a court
should consider in identifying that state. See LA. CIV. CODE art.
3542. Those factors are:
(1) the pertinent contacts of each state to the parties;
(2) their contacts to the events giving rise to the
dispute, including the place of conduct and the
injury;
(3) the domicile, habitual residence, or place of
business of the parties;
(4) the state in which the relationship between the
parties was centered;
(5) deterring wrongful conduct;
(6) repairing the consequences of injurious acts;
(7) the relationship of each state to the parties and
the dispute; and
(8) the policies and needs of the interstate system,

including the policies of upholding the justified
expectations of the parties and of minimizing the
adverse consequences that might follow from
subjecting a part to the law of more than one state.2
Arabie, 89 So. 3d at 316. The list is not exhaustive; it merely
illustrates the “‘most important’” contacts “‘to discourage
mechanistic counting of contacts.’” Id. (quoting LA. CIV. CODE art.
3542, Revision Comment (a)). Quality —— not quantity —— counts.
See id. The Court considers each factor in turn.
1.

The first factor calls for consideration of the “pertinent
contacts” of Louisiana and Arizona to the parties. Arabie, 89 So.
3d at 316-17. Louisiana has “pertinent contacts” to each: Pigott
and Bickham are Louisiana citizens; the collision occurred in
Louisiana; the alleged injuries occurred in Louisiana; and the
alleged negligence occurred in Louisiana. By contrast, Arizona has
“pertinent contact” to only one party —— Swift —— because it is
the state where Swift has its principal place of business. The

2 Factors seven and eight derive from Civil Code Article 3515.
Arabie, 89 So. 3d at 316.
first factor therefore favors a finding that Louisiana is Swift’s
domicile for choice-of-law purposes under Civil Code Article 3548.
2.

The second factor resembles the first; it calls for
consideration of the contacts of each state to “the events giving
rise to the dispute, including the place of conduct and the
injury.” Arabie, 89 So. 3d at 315. Again, Louisiana is the place
of the collision and of Pigott’s and Bickham’s alleged injuries.
Louisiana, too, is the place where Heath’s alleged negligence (in
operating the 18-wheeler) occurred. The place of Swift’s alleged
negligence (in training, hiring, and supervising Heath) is less
certain. But it is not Arizona. To be sure, Swift offers summary-

judgment evidence showing that it hired and trained Heath at its
Memphis, Tennessee terminal and that it supervised Heath through
a “driver manager” located in Minneapolis, Minnesota. Pigott and
Bickham marshal no record evidence to rebut these properly-
supported facts. Accordingly, the second factor favors a finding
that Louisiana is Swift’s domicile for choice-of-law purposes
under Civil Code Article 3548.
3.
The third factor is the “domicile, habitual residence, or

place of business” of the parties. Arabie, 89 So. 3d at 315. Pigott
and Bickham are Louisiana domiciliaries, and Heath is a Mississippi
domiciliary. Swift has its principal place of business in Arizona.
Because Louisiana is the “domicile, habitual residence, or place
of business” of two parties, and Arizona is the “domicile, habitual

residence, or place of business” of only one, the third Arabie
factor favors a finding that Louisiana is Swift’s domicile for
choice-of-law purposes under Civil Code Article 3548.
4.
The fourth factor is the state where the parties’ relationship
was “centered.” Arabie, 89 So. 3d at 315. That is Louisiana——the
only state with a link to each party. Pigott and Bickham are
Louisiana citizens. The collision occurred in Louisiana, where on
this record Swift had “substantial business operation[s].” And at

the time of the collision, Heath was driving for Swift on one of
her “regular” delivery routes from the Wal-Mart distribution
center in Robert, Louisiana. The fourth factor therefore favors a
finding that Louisiana is Swift’s domicile for choice-of-law
purposes under Civil Code Article 3548.
5.
The fifth factor, “deterring wrongful conduct,” appears to
favor the imposition of punitive damages. Arabie, 89 So. 3d at
318. After all, punitive damages are “designed to ‘punish’ the

individual tortfeasor, to deter him and other potential
tortfeasors in the future.” LA. CIV. CODE art. 3546 Revision Comment
(b). But the strength of this factor is “diminished by Louisiana’s
policy disfavoring punitive damages in general.” Arabie, at 89 So.
3d at 318. Accordingly, this factor is neutral. See id.

6.
The sixth factor, “repairing the consequences of injurious
acts,” is also neutral. Arabie, 89 So. 3d at 318. Punitive damages
are not designed to compensate; “their objective is deterrence or
punishment[.]” LA. CIV. CODE art. 3546 Revision Comment (b). So, the
imposition of punitive damages has “no bearing” on this factor.
Arabie, 89 So. 3d at 318.

7.
The seventh factor is the “relationship of each state to the
parties and the dispute.” Arabie, 89 So. 3d at 315. The Court
explored those relationships in analyzing the six preceding
factors. To sum them up: Arizona has no “relationship” to any party
except Swift, which maintains its principal place of business
there; Louisiana has a “relationship” to each party and to the
dispute. Obviously, Louisiana is the place of the collision —— the
one event linking all parties. Pigott and Bickham are Louisiana
citizens. Swift and Heath allegedly engaged in negligent conduct
(in Louisiana and elsewhere) causing the Louisiana collision and

injuring Louisiana citizens. The seventh factor therefore favors
a finding that Louisiana is Swift’s domicile for choice-of-law
purposes under Civil Code Article 3548.

8.
The eighth factor requires the Court to consider the “policies
and needs of the interstate system, including the policies of
upholding the justified expectations of the parties.” Arabie, 89
So. 3d at 315-16. Those “policies and needs” favor the application
of Louisiana law. For Swift could not expect that training, hiring,
or supervision decisions made in Minnesota and Tennessee could
result in the imposition of Arizona law to a collision taking place
in Louisiana, injuring Louisiana citizens, and occurring during
Louisiana-focused business operations. See Arabie, 89 So. 3d at

319. The eighth factor therefore favors a finding that Louisiana
is Swift’s domicile for choice-of-law purposes under Civil Code
Article 3548.
Six of the eight Arabie factors favor a finding that Louisiana
is Swift’s domicile for choice-of-law purposes under Civil Code
Article 3548. The Court therefore finds that “it is appropriate
under the principles of Article 3542” to treat Swift as a Louisiana
domiciliary for choice-of-law purposes. LA. CIV. CODE art. 3548.
IV.

Because (1) Swift is a Louisiana domiciliary for choice-of-
law purposes under Civil Code Article 3548, (2) Pigott and
Bickham’s alleged injuries occurred in Louisiana, and (3)
Louisiana law does not “authorize” an award of punitive damages in
the circumstances, punitive damages are unavailable under Civil
Code Article 3546.% Accordingly, IT IS ORDERED: that the motion
for partial summary judgment dismissing Pigott and Bickham’s
punitive damages claims is GRANTED, and the punitive damages
claims are DISMISSED with prejudice; the motion for review of the
United States Magistrate Judge’s ruling is DENIED as moot.

New Orleans, Louisiana, December 16, 2019

MARTIN . C. LDMAN
UNITED STATHS DISTRICT JUDGE

3. This analysis is familiar. See, e.g., Stacks v. Harco
Servs., LLC, No. 17-1321, 2019 WL 1191059, at *5 (W.D. La. Mar.
13, 2019) (dismissing Georgia-law punitive damages claim under
Article 3546); Taylor v. Clarke Power Servs., No. 16-15890, 2017
WL 4540758, at *7 (E.D. La. Oct. 11, 2017) (dismissing Ohio-law
punitive damages claim under Civil Code Article 3546).
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185098. Public record. Not legal advice.