United States District Court, M.D. Louisiana
STEVEN MOORE, ET AL.
HOME DEPOT U.S.A., INC., ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court are the Motions to Dismiss Entergy
Louisiana LLC's ("Entergy") Third Party
Complaint (Docs. 53, 54, 72) filed by
S&H Trucking, Inc., Commercial Coolants,
Inc. d/b/a Design Air Systems ("Design Air"), and
Fleet Personnel Corporation. Also before the Court is the
Motion for Summary Judgment (Doc. 66) filed
by Countrywide Payroll & HR Solutions, Inc., the
Motion to Dismiss (Doc. 71) filed by Design
Air, and the Motion to Dismiss
(Doc. 84) filed by Home Depot U.S.A., Inc. The
parties filed oppositions (Docs. 62, 78, 81, 86, 92) and
replies (Docs. 63 and 93), where applicable. For the
following reasons, the Motions to Dismiss (Docs. 53,
54, 71, 72, 84) are DENIED and the
Motion for Summary Judgment (Doc. 66) is
Steven Moore and Renee Moore claim that Steven Moore was
seriously injured while delivering equipment to a Home Depot
in Baton Rouge, Louisiana. (Doc. 1-2). Plaintiffs allege that
on November 2, 2015, Mr. Moore arrived at the Home Depot
before normal store hours to deliver some equipment for what
the Court presumes was some kind of construction project, and
that the Home Depot was not ready to unload his cargo.
Id. at ¶ 2. Plaintiffs allege that Home Depot
employees then directed Mr. Moore to a parking area on Home
Depot property where they should have known that there was a
high voltage power line. Id. at ¶ 3-4.
Plaintiffs further allege that while preparing to unload his
delivery, Mr. Moore came into contact with low-hanging power
lines and he sustained significant injuries, including the
loss of his leg. Id. at ¶¶ 7, 9.
Plaintiffs allege that he was employed by S&H Trucking
while making the delivery. Id. at ¶ 2. Mr.
Moore seeks damages as a result of his alleged injury and his
wife, Mrs. Moore, seeks damages for loss of consortium.
Id. at ¶¶ 9, 12)
sued Home Depot, Entergy, RLM Consulting, LLC, Richard
Morris, The Travelers Indemnity Company of Connecticut,
Design Air Systems, and Depositors Insurance Company. (Docs.
1-2 and 50). Plaintiffs claim that Home Depot failed to
maintain the power line in a safe condition, failed to warn
Mr. Moore of an unsafe condition, and failed to ensure that
the power line was a safe distance above the ground. (Doc.
1-2 at ¶ 10). Plaintiffs allege that Entergy failed to
maintain the power line and to ensure that it was at a safe
height, and that it failed to warn Mr. Moore of other
dangerous conditions. Id. at ¶ 11.
also claim that Mr. Morris is the sole stock holder of RLM
Consulting and that he was the project coordinator/manager of
the construction project at the Home Depot. (Doc. 50 at
¶ 1(c)). Plaintiffs claim that Design Air was involved
in the construction project as well. Id. at ¶
2-3. Plaintiffs claim that RLM Consulting, Mr. Morris, and
Design Air failed to provide Plaintiff a safe space to unload
the HVAC system, failed to ensure that Mr. Moore had a safe
area to park, failed to provide adequate supervision, and
failed to contact Entergy to ensure that the power line met
safe and proper height restrictions. Id. at ¶
2-3, 5. Plaintiff alleges that Travelers was the liability
insurer of RLM Consulting, Id. at ¶ 4, and that
Depositors provided an insurance policy to Design Air.
Id. at ¶ 5.
then filed third party demands against S&H Trucking,
(Doc. 9), Project RLM Consulting, LLC, Richard Morris, Design
Air Systems, and Fleet Personnel Corporation. (Doc.
Entergy seeks indemnification from these third party
defendants under the Louisiana Overhead Power Line Safety Act
because they allegedly failed to contact or notify Entergy of
any plans to perform work within ten feet of an Entergy power
line, as required by the Overhead Power Act. Id. at
Insurance Company then filed a crossclaim against Home Depot.
(Doc. 68). Depositors alleges that Home Depot demanded that
it defend and indemnify Home Depot. Id. at ¶
10. Depositors alleges that about a month later, it declined
to defend and indemnify Home Depot. Id. at ¶
33. Depositors alleges that it issued a general liability
policy and an umbrella policy to Design Air, in effect at the
time of Mr. Moore's accident. Id. at ¶ 27.
It also claims that Home Depot was not a named insured on the
Depositors insurance policies that were issued to Design Air.
Id. at ¶ 27. Depositors also asserts that Home
Depot is not covered by the blanket additional insured
endorsements. Id. at ¶ 27. Based on these
allegations, Depositors seeks a declaratory judgment that it
does not owe a duty to indemnify or defend Home Depot.
Id. at ¶ 35.
Motions to Dismiss
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint against the legal standard set forth in Rule
8, which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Rule 8(a)(2). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ail. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Ashcroft, 556 U.S. at 679.
plausibility" exists "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out
"detailed factual allegations, " but something
"more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action" is
required. Twombly, 550 U.S. at 555. When conducting
its inquiry, the Court "accepts all well-pleaded facts
as true and views those facts in the light most favorable to
the plaintiff." Bustos v. Martini Club Inc.,
599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted).
Design Air System's Motion to Dismiss
allege that Design Air's negligence caused Mr.
Moore's injuries. (Doc. 1-2). Design Air argues that
Plaintiffs negligence claim should be dismissed because
Design Air Systems did not owe a duty to Mr. Moore at the
time of the accident. (Doc. 71-1 at p. 1). In a negligence
action under Louisiana law, courts apply the "duty risk
analysis" in which a plaintiff must establish, among
other things, that the defendant owed the plaintiff a duty of
care. Rando v. Anco Insulations Inc., 16 So.3d 1065,
1086 (La. 2009). Determining whether a defendant owes a duty
of care to a plaintiff is a question of law, which turns on
"whether the plaintiff has any law (statutory,
jurisprudential, or arising from general principles of fault)
to support the claim that the defendant owed him a
duty." Id. In Louisiana, "[t]here is an
almost universal duty on the part of the defendant in a
negligence action to use reasonable care to avoid injury to
another." Id. But "[i]n some cases, the
duty is refined more specifically that the defendant must
conform his or her conduct to some specially defined standard
of behavior." Boykin v. Louisiana Transit Co.,
707 So.2d 1225, 1231 (La. 1998).
Air argues that it did not owe a duty to Mr. Moore because
Design Air did not exert any control over Mr. Moore while he
was delivering equipment to Home Depot. (Doc. 71-1 at p. 6).
In support of this contention, Design Air cites Groover
v. Camp Dresser & McKee Inc., 420 Fed.Appx. 358 (5th
Cir. 2011). In Groover, the court held that a
principal is not liable for the injuries resulting from the
negligent acts of an independent contract, unless the
principal controls the contractor's work. Id. at
362. Here, however, Plaintiffs do not allege that Design Air
was an independent contractor or a principal, rather
Plaintiffs allege that Design Air "was involved in the
installation of the HVAC equipment for the construction
project at the Home Depot facility in Baton Rouge,
Louisiana[.]" (Doc. 50 at ¶ 1(f)). Plaintiffs
further allege that Design Air was negligent by failing to
provide Mr. Moore a safe place to unload, failing to ensure
the location to park was safe, and failing to provide
adequate supervision of the unloading operation. (Doc. 50 at
¶ 5). In other words, Plaintiffs allege that Design Air
was directly negligent to Mr. Moore, and the claims do not
implicate agency theories of principal and independent
contractor liability. The facts as alleged do not implicate
Groover. Because Plaintiffs allege that Design Air
was involved in the very construction project that resulted
in Mr. Moore's injuries, Plaintiffs have alleged
sufficient facts to establish that Design Air owed Mr. Moore
a duty of care at the time he was injured. Ashcroft,
556 U.S. at 679. Plaintiffs therefore adequately allege a
claim of negligence against Design Air. Design Air's
Motion to Dismiss is denied.
S&H Trucking, Design Air, and Fleet Personnel's
Motions to Dismiss ...