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Johnson v. Hamp's Construction, LLC

Court of Appeals of Louisiana, Fourth Circuit

June 7, 2017

LEONARD JOHNSON, SR., HUSBAND OF/AND MERLINE JOHNSON
v.
HAMP'S CONSTRUCTION, LLC, HAMP'S ENTERPRISES, LLC, JOSE DOE AND XYZ INURANCE COMPANY AND WOODROW WILSON CONSTRUCTION COMPANY, INC. AND AMERISURE INSURANCE COMPANY AND BOARD OF SECONDARY AND ELEMENTARY EDUCATION AND LOUISIANA DEPARTMENT OF EDUCATION D/B/A RECOVERY SCHOOL DISTRICT

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-09618, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Morgan J. Wells, Jr. Lee M. Peacocke LARZELERE PICOU WELLS SIMPSON LONERO, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          James A. Prather C. Bowman Fetzer, Jr. GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart.

          Edwin A. Lombard Judge.

         The 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).[1]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.

         Facts

         The 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' claims.

         The 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.

         WWCC, 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).

         Later, 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. 4Cir. 05/18/16).

         Thereafter, 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.

         The 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 this matter.

         Standard of Review

         "A 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 omitted].

         Although 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 omitted].

         Lastly, 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 So.2d 359).

         Application of La. Rev. Stat. 38:2216(G)(1)

         The 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.

         The 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.[2] 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.

         The 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.

         Domingue 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 obtain ...


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