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Ponder v. SDT Waste & Debris Services, L.L.C.

Court of Appeals of Louisiana, First Circuit

August 16, 2017

JEFFREY PONDER
v.
SDT WASTE & DEBRIS SERVICES, L.L.C. AND/OR PROGRESSIVE WASTE SOLUTIONS OF LA, INC. AND GREENWICH INSURANCE COMPANY

         On Appeal from The Injudicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C614617 The Honorable Donald R. Johnson, Judge Presiding.

          Scott M. Emonet Baton Rouge, Louisiana, Attorney for Plaintiff, Jeffrey Ponder.

          Charles J. Duhe Jr. D. Scott Rainwater J. David Harpole III Baton Rouge, Louisiana, Attorneys for Defendants/ Appellees, SDT Waste & Debris Services, L.L.C. and/or Progressive Waste Solutions ofLa, Inc. and Greenwich Insurance Company.

          Brad J. Brumfield Baton Rouge, Louisiana, Attorney for Third-Party Defendant/ Appellant, Stroubes Chop House, L.L.C.

          BEFORE: WHIPPLE, C.J., McCLENDON, WELCH, CRAIN, AND HOLDRIDGE, JJ.

          WELCH, J.

         The third-party defendant, Stroubes Chop House, L.L.C. ("Stroubes"), appeals two judgments rendered in favor of the principal defendants, SDT Waste & Debris Services, L.L.C. and/or Progressive Waste Solution of LA, Inc., and its insurer, Greenwich Insurance Company (collectively "SDT"). The first judgment denied Stroubes' motion for summary judgment, granted SDT's motion for summary judgment, and declared that Stroubes owed a defense and indemnity to SDT for defending the plaintiffs claims and for the amount of the settlement SDT subsequently paid to the plaintiff. The second judgment awarded SDT the fees and costs that it expended in defending the plaintiffs action, the amount of the settlement SDT paid to the plaintiff, and attorney fees, costs, and expenses SDT incurred to enforce the defense and indemnification. For reasons that follow, we affirm in part and reverse in part the first judgment, and we vacate the second judgment.

         FACTUAL AND PROCEDURAL HISTORY

         On August 14, 2012, the plaintiff, Jeffrey Ponder, instituted this proceeding seeking to recover damages for injuries that he sustained in an accident that occurred on January 13, 2012, while he was working for Stroubes. According to the plaintiffs petition, he was injured when the wheels fell off a garbage dumpster causing the dumpster to fall on his foot. The plaintiff sued the owner of the dumpster, SDT, alleging that the sole cause of the accident was SDT's negligence, specifically, its failure to use reasonable care to keep the dumpster in a safe condition.

         On October 1, 2012, SDT filed an answer generally denying liability, and then on April 4, 2013, SDT filed a third-party demand against Stroubes seeking indemnity and to have Stroubes provide a defense. SDT's demand for indemnity and defense was based upon a provision in a July 22, 2009 service contract between SDT and Stroubes, which provided as follows:

Customer [(Stroubes)] accepts responsibility, garde, safekeeping, and liability for Contractor's [(SDT's)] equipment and its contents .... Customer agrees to defend, indemnify, reimburse, and hold harmless the Contractor, its officers, agents, and employees, from and against any and all liability, suits, legal proceedings, demands, judgments, settlements, fines, damages, costs, or loss of any kind, and attorneys' fees arising out of, incident to, or resulting from any work or services done pursuant to this Agreement, theft of or damage to Contractor's equipment, and/or use, operation, confiscation, or impoundment of Contractor's equipment.

         Stroubes filed an answer to the third-party demand on June 7, 2013, generally denying liability. Thereafter, on August 8, 2014, Stroubes filed a motion for summary judgment seeking the dismissal of the third-party demand on the basis that the indemnity provision did not cover SDT's alleged liability to Ponder. Stroubes claimed that the indemnity provision did not apply to losses resulting from SDT's own negligence, which, according to the plaintiffs petition, was the sole cause of the accident. In support of its motion for summary judgment, Stroubes relied on: (1) the plaintiffs petition for damages wherein the plaintiff alleged that the accident was caused solely and proximately by the gross and flagrant negligence of SDT; and (2) SDT's third-party demand against Stroubes, which had attached to it the July 22, 2009 service contract between SDT and Stroubes (containing the indemnity provision) and correspondence from SDT tendering defense of this matter to Stroubes.

         SDT opposed Stroubes' motion and subsequently filed its own motion for summary judgment on December 3, 2014 seeking a judicial declaration that the indemnity provision obligated Stroubes to provide SDT with indemnity and a defense. SDT maintained that Stroubes accepted garde and legal responsibility for the dumpster and that the plaintiffs claims arose out of Stroubes' use of the dumpster; therefore, the terms of the indemnity provision were satisfied. SDT also maintained that it was not at fault in causing the accident. In support of its opposition to Stroubes' motion for summary judgment, SDT relied on: (1) the plaintiffs petition for damages wherein the plaintiff alleged that he was injured in the course and scope of employment, as well as the claims of negligence alleged against SDT; (2) an excerpt from the deposition of the plaintiff wherein he described the accident; (3) Stroubes' responses to requests for admissions wherein Stroubes admitted that there were no prior accidents with the dumpster, that it did not observe any apparent or visible defects during its use of the dumpster, and that Stroubes had no notice or knowledge of any issues with the dumpster; and (4) the July 22, 2009 service contract between SDT and Stroubes. In support of its own motion for summary judgment, SDT essentially relied on the same documents it relied on in opposition to Stroubes' motion for summary judgment.

         While both motions for summary judgment were pending, the plaintiffs claim was settled against SDT and was dismissed. The trial court then heard the cross-motions for summary judgment on the third-party demand and ruled in favor of SDT, signing a judgment on February 24, 2015, that granted SDT's motion for summary judgment declaring that Stroubes owed indemnity and a defense to SDT, including the cost of defending the plaintiffs claim and the resulting settlement. In the same judgment, the trial court denied Stroubes' motion for summary judgment.

         SDT then filed a motion requesting a judgment against Stroubes for the amount of the settlement plus its defense costs. After a hearing on the motion, the trial court signed a judgment on June 3, 2015, awarding SDT the settlement amount of $35, 000.00, attorney fees and costs to defend Ponder's claims in the amount of $39, 320.20, and an unspecified amount for attorney fees and costs incurred to enforce the indemnity agreement.

         Stroubes appealed the June 3, 2015 judgment. After the record was lodged on appeal, this court remanded the matter to the trial court for the limited purpose of signing, if appropriate, a judgment that contained proper decretal language disposing of the remaining claims and quantifying the amount of attorney fees awarded. On remand, the trial court signed another judgment on April 29, 2016, awarding the amounts set forth in the original judgment, plus $19, 350.50 in attorney fees and ...


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