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Charles v. Gervais

Court of Appeal of Louisiana, Fourth Circuit

December 10, 2014

LOUIS A. CHARLES, JR.
v.
JASON GERVAIS, BOARD OF COMMISSIONERS FOR THE PORT OF NEW ORLEANS AND REDLAND INSURANCE COMPANY

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2008-11074, DIVISION " N-8" . Honorable Ethel Simms Julien, Judge.

James L. Donovan, Jr., DONOVAN & LAWLER, APLC, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLANT, BOARD OF COMMISSIONERS FOR THE PORT OF NEW ORLEANS.

Christopher E. Carey, William W. Sentell, III, Pugh, Accardo, Haas, Radecker & Carey L.L.C., New Orleans, LA, COUNSEL FOR THIRD PARTY DEFENDANT/APPELLEE UNIVERSAL MARITIME SERVICE CORPORATION.

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins).

OPINION

Page 794

Roland L. Belsome, Judge.

[2014-0447 La.App. 4 Cir. 1] This appeal is taken from the trial court's granting of a motion for summary judgment in favor of Universal Maritime Service Corporation (UMS), and dismissing the third party claims of the Board of Commissioners for the Port of New Orleans (Board). For the following reasons, we affirm.

The Board owns the Nashville Avenue terminal and leases it to Ceres Gulf, Inc. (Ceres). UMS is allowed access to the terminal pursuant to a license agreement with Ceres. This lawsuit arises from an accident which occurred at the Nashville Avenue terminal. Louis Charles alleges that he was injured during a vehicular accident while working for UMS, and operating a vehicle owned by Ceres. The vehicle he was operating was struck by a vehicle operated by Jason Gervais. At the time of the accident, Mr. Gervais was acting in the course and scope of his employment with the Board.

Mr. Charles filed suit naming Mr. Gervais, the Board, and their insurer as defendants. Later, the Board filed several third-party demands against various parties. This appeal relates to the Board's claims against UMS for defense, [2014-0447 La.App. 4 Cir. 2] indemnity and insurance coverage pursuant to a clause in the license agreement between UMS and Ceres. UMS sought and was granted summary judgment on the claims asserted by the Board and this appeal followed.

On appeal, the Board argues that the trial court erred in granting summary judgment and by failing to find that the Ceres/UMS license agreement created a stipulation pour autrui requiring UMS to defend and indemnify the Board.

Louisiana law is clear, third parties can benefit from contracts for which they were not privy. See, La.C.C. art. 1978, et seq. This is considered a stipulation pour autrui. However, there is no presumption in favor of a stipulation pour autrui. Smith v. State Farm Ins. Companies, 2003-1580, pp. 4-5 (La.App. 4 Cir. 3/3/04), 869 So.2d 909, 912-13. The intent of the party to create the stipulation in favor of a third party must be manifestly clear. Id. Further, establishing the existence of a stipulation pour artrui rests with the party demanding performance. See, La.C.C. art. 1831.

In Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, pp. 8-9 (La. 10/15/06), 939 So.2d 1206, 1212, the Supreme Court concisely set forth the requirements of a valid stipulation pour autrui : (1) the stipulation for a third party is manifestly clear; (2) there is certainty as to the benefit provided the third party; and (3) the benefit is not a mere incident of the contract between the promisor and the promisee. Joseph also stated that " [e]ach contract must be evaluated on its own terms and conditions in order to determine

Page 795

if the contract stipulates a benefit for a third ...


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