FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-09618,
DIVISION "L-6" Honorable Kern A. Reese, Judge
J. Wells, Jr. Lee M. Peacocke LARZELERE PICOU WELLS SIMPSON
LONERO, LLC COUNSEL FOR PLAINTIFF/APPELLANT
A. Prather C. Bowman Fetzer, Jr. GALLOWAY, JOHNSON, TOMPKINS,
BURR & SMITH COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Daniel L. Dysart.
A. Lombard Judge.
Appellant, Orleans Parish School Board ("OPSB"),
seeks review of the district court's July 8, 2016
judgment granting a partial summary judgment in favor of
the Appellee, Woodrow Wilson Construction Company, Inc.
("WWCC).Finding that, as a matter of law, WWCC is
not entitled to summary judgment, we reverse the judgment of
the district court and remand for further proceedings.
instant appeal involves a dispute over the application of an
indemnity provision contained within a public contract
between the OPSB and WWCC obligating WWCC to defend,
indemnify and hold OPSB harmless from the Johnsons'
instant appeal arises from personal injuries sustained by
Leonard Johnson, Sr., while he was on or near a construction
site at New Edward Hynes Elementary School in Orleans Parish.
A tire blew out on a dump truck at the construction site and
the force of the blowout expelled debris, which struck and
injured Mr. Johnson. Resultantly, Mr. Johnson and his wife,
Merline Johnson ("the Johnsons") filed suit against
the OPSB, WWCC, as well as other defendants who were involved
in the construction project.
the general contractor for the project, was awarded a public
contract by OPSB. The public contract contained an indemnity
provision requiring WWCC to defend, indemnify, and hold the
OPSB harmless for injury claims made by third parties.
Pursuant to that provision, the OPSB demanded that WWCC
defend, indemnify and hold OPSB harmless from the claims of
the Johnsons, but to no avail. The OPSB later filed a
cross-claim against WWCC, which answered the demand and
asserted affirmative defenses, namely that the OPSB's
claims were barred by La. Rev. Stat. 38:2216(G)(1).
the OPSB moved for summary judgment seeking dismissal of the
causes of actions asserted against it by the Johnsons. The
district court denied the motion. However, this Court granted
the OPSB's supervisory writ application, reversed the
district court's judgment and granted the OPSB's
motion for summary judgment. Leonard Johnson, Sr., et al,
v. Hamp's Construction, unpub., 16-C-0128 (La.App.
WWCC filed a motion for partial summary judgment seeking
dismissal of the contractual indemnity claims of the OPSB
under La. Rev. Stat. 38:2216(G)(1). After the hearing, the
district court granted the motion and dismissed the
OPSB's cross-claim against WWCC. The judgment was
designated as a partial final judgment by the district court.
OPSB filed a Motion for New Trial, which the district court
denied. The Johnsons' remaining claims against all other
defendants were settled prior to trial.
instant timely appeal followed. The OPSB's sole
assignment of error on appeal is that the district court
committed a legal error in its application of La. Rev. Stat.
38:2216(G)(1) prohibiting the OPSB from asserting a claim for
contractual indemnity for recovery of its defense costs and
attorneys' fees since OPSB was found free of fault in
motion for summary judgment is designed to secure the just,
speedy, and inexpensive determination of an action." La.
Code Civ. Proc. art. 966(A)(2). "After an opportunity
for adequate discovery, a motion for summary judgment shall
be granted if the motion, memorandum, and supporting
documents show that there is no genuine issue as to material
fact and that the mover is entitled to judgment as a matter
of law." La. Code Civ. Proc. art. 966(A)(3). "In
general, summary judgment is appropriate as a matter of law
when all the relevant facts are marshaled before the court,
the facts are undisputed, and the only issue is the ultimate
conclusion to be drawn from the applicable law." Hon.
Max Tobias, Jr., John M. Landis, and Gerald E. Meunier,
Louisiana Practice Series, "Louisiana Civil
Pretrial Procedure, " § 14:31 (2016-2017 ed.)
(citing Smith v. Our Lady of the Lake Hosp., Inc.,
93-2512 (La. 7/5/94), 639 So.2d 730). The applicable law is
determined by the issues raised in a case and can even
involve an issue of first impression. Id. [citations
the burden of proof rests with the mover, if the mover does
not bear the burden of proof at trial on the issue before the
court, the mover need only point out an absence of factual
support for one or more elements of the adverse party's
claim, action, or defense. La. Code Civ. Proc. art. 966
(D)(1). The burden then shifts to the adverse party "to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law." La. Code Civ.
Proc. art. 966 (D)(1). If the adverse party fails to
establish that a genuine issue of material fact exists, the
mover is entitled to summary judgment as a matter of law.
Id. Appellate courts review summary judgments de
novo using the same standard that the district court
applies: determining whether a genuine issue of material fact
exists. Encalade v. A.H.G. Sols., LLC, 16-0357, p. 9
(La.App. 4 Cir. 11/16/16), 204 So.3d 661, 666 [citations
summary judgment in matters involving the interpretation of a
contract is appropriate when the document can be construed
from the four corners of the instrument without needing to
consider extrinsic evidence, as the matter is answered as a
matter of law. Hon. Max Tobias, Jr., John M. Landis, and
Gerald E. Meunier, Louisiana Practice Series,
"Louisiana Civil Pretrial Procedure, " § 14:32
(2016-2017 ed.) (citing LaFleur v. Hollier Floor
Covering, Inc., 00-0969 (La.App. 3 Cir. 12/6/00) 774
of La. Rev. Stat. 38:2216(G)(1)
OPSB argues that the district court erred in finding that La.
Rev. Stat. 38:2216(G)(1) prevents a non-negligent public
body, such as itself, from pursuing a claim for contractual
indemnity against a contractor to recover defense costs and
attorneys' fees. The OPSB maintains that its position is
supported by Louisiana's rules of statutory construction
as well as the state's public policy to support
enforcement of contractual indemnity provisions. Lastly, the
OPSB contends that analogous Louisiana jurisprudence supports
the enforcement of the contractual indemnity provision at
issue in its favor.
OPSB asserts that the statutory language of La. Rev. Stat.
38:2216(G)(1) is clear and unambiguous; thus, it should be
applied as written under La. Civ. Code art. 9. The statute
prohibits a public body from recovering under a contractual
indemnity provision when damages sustained by third parties
were caused by either its own negligence or that of its
employees or agents. The OPSB's argument is that it is a
non-negligent public body in the instant matter; therefore,
its indemnification claim is not barred. It maintains that
the enforcement of the contractual indemnity and hold
harmless provisions should be enforced in its favor in
accordance with Louisiana public policy under the Louisiana
Public Bid Law, La. Rev. Stat. 38:2212, et seq., of
which the statute at issue is a part. It further argues that it is
in the interest of the taxpaying citizenry to be unencumbered
from paying defense costs against meritless claims asserted
against a public body, which has not been found negligent.
OPSB relies upon three cases in support of its argument that
analogous Louisiana jurisprudence supports the enforcement of
the contractual indemnity obligations: Domingue v.
H&S Construction Company, 546 So.2d 913 (La.App. 3rd
Cir. 1989), writ granted, judgment rev'd, 551
So.2d 622 (La. 1989); Suire v. Lafayette City-Parish
Consolidated Government, 04-1459 (La. 4/12/05), 907
So.2d 37; and Meloy v. Conoco, Inc., 504 So.2d 833
(La. 1987). The OPSB points out there is no Louisiana
jurisprudence interpreting the statute at issue to prevent a
non-negligent public body from asserting a contractual
indemnity claim for recovery of its defense costs and
attorneys' fees against a contractor.
involved an interpretation of the La. Rev. Stat. 38:2216(E),
the predecessor of La. Rev. Stat. 38:2216(G)(1). The Third
Circuit in Domingue, according to the OPSB, held
that La. Rev. Stat. 38:2216 only prohibits a public body from
obtaining indemnification for its own negligence, but does
not bar all contracts for indemnification in favor of public
entities. Domingue, 546 So.2d at 917-18. It argues
that the public body in Domingue was entitled to