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Hanover Insurance Co. v. Plaquemines Parish Government

United States District Court, E.D. Louisiana

July 10, 2015




Before the Court is a Motion for Summary Judgment (Doc. 467) and a Motion for Discovery (Doc. 588). For the following reasons, the Motion for Summary Judgment is GRANTED IN PART, and the Motion for Discovery is DENIED. The Parish's negligence claims against Southeast Engineers, LLC are DISMISSED WITH PREJUDICE.


In 2008, Defendant Plaquemines Parish ("the Parish") hired Catco General Contractors to construct a community center in Boothville, LA. Plaintiff Hanover Insurance Company issued a performance bond for the project. Due to several disputes regarding the quality of the completed work, the Parish refused to tender the final payment on the construction contract to Catco. Catco in turn refused to pay certain subcontractors on the project. Those subcontractors filed claims with Hanover seeking amounts due on the subcontracts. Hanover paid those claims and instituted the instant litigation. Hanover claims that the Parish wrongfully withheld the final payment from Catco, resulting in several hundred thousand dollars in various claims against it.

On May 29, 2013, in response to Hanover's Complaint, the Parish asserted a counterclaim against Hanover and a third-party demand against Catco and several other entities who were involved in the design of the community center. The Parish's counterclaim and third-party demand allege that Catco failed to complete the construction according to specifications. On June 21, 2013, in response to the Parish's counterclaim, Hanover filed a third-party demand against several of the subcontractors involved in the construction of the community center.

Presently before the Court are the Parish's claims against Southeast Engineers, LLC ("Southeast"). The Parish hired Sizeler, Thompson, Brown Architects ("Sizeler") to create the architectural drawings for the community center. Sizeler, in turn, hired Southeast to provide structural engineering services for the project. The Parish has asserted two claims against Southeast. First, the Parish alleges that Southeast was negligent in the performance of its engineering services. Second, the Parish asserts a breach of contract claim, arguing that it is a third-party beneficiary to the contract between Sizeler and Southeast. Southeast now moves for summary judgment on both claims. The Parish claims that it is entitled to additional discovery and moves the Court to deny Southeast's Motion for that reason.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[1] A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."[2]

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[3] "If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial."[4] Summary judgment is appropriate if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case."[5] "In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial."[6] "We do not... in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts."[7] Additionally, "[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion."[8]

Rule 56(d) permits a court to deny a motion for summary judgment, or to defer consideration of it, pending necessary discovery. Rule 56(d) relief is available when "a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition."[9] "Rule 56[(d)] allows for further discovery to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose."[10] "Such motions are broadly favored and should be liberally granted."[11] Nonetheless, "a request to stay summary judgment under Rule 56[(d)] must 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."[12] "If it appears that further discovery will not provide evidence creating a genuine issue of material fact, the district court may grant summary judgment."[13]


Southeast seeks summary judgment on the Parish's negligence claim, arguing that it is prescribed, and on the Parish's breach of contract claim, arguing that the Parish is not a third-party beneficiary to Southeast's contract with Sizeler. The Court will address each claim in turn.

I. The Parish's Negligence Claim

Southeast argues that the Parish's negligence claim against it is prescribed. In this diversity case, the Court must apply state law, including the law of prescription.[14] The prescriptive period for tort suits in Louisiana is one year from the day of injury or damage.[15] Louisiana requires that prescription statutes be strictly construed in favor of maintaining the action.[16] "The burden of proof on the prescription issue lies with the party asserting it unless the plaintiff's claim is barred on its face, in which case the burden shifts to the plaintiff."[17] ...

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