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.
M. Emonet Baton Rouge, Louisiana, Attorney for Plaintiff,
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.
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
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.
AND PROCEDURAL HISTORY
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.
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
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
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.
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.
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.
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.
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