CONTINENTAL CASUALTY COMPANY AND COST SEGREGATION SERVICES, INC.
ENTERGY GULF STATES LOUISIANA, L.L.C., CITY OF BATON ROUGE, EAST BATON ROUGE PARISH, ANDCSRS, INC. AMERICA FIRST INSURANCE COMPANY
CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE, AND ENTERGY GULF STATES, LLC, AND ABC INSURANCE COMPANY
Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
600, 987 Consolidated With Trial Court No. 601, 271 Honorable
William A. Morvant, Judge Presiding
E. Kinchen Sallie C. Dupont Baton Rouge, LA Attorneys for
Defendant-Appellant, Baton Rouge Water Works Company
Richard B. Levin J. Brint Marks Metairie, LA Attorneys for
Plaintiffs-Appellants, Continental Casualty Company and Cost
Segregation Services, Inc.
Boudreaux Baton Rouge, LA Attorney for Defendant-Appellee,
America First Insurance Company
B. Loeb John T. Andrishok Baton Rouge, LA Attorney for
Defendant-Appellee, CSRS, Inc.
S. Manuel Joseph R. Ballard Baton Rouge, LA Attorney for
Defendant-Appellee, Entergy Gulf States Louisiana, L.L.C.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
consolidated matter concerns damage to an office building
after a main water line was unintentionally cut by a utility
company, Entergy Gulf States Louisiana, L.L.C.
("Entergy"), during underground utility work for a
road-expansion project ("the project") in Baton
Rouge, Louisiana. When Entergy was dismissed from the
litigation by means of a partial summary judgment granted in
its favor, two appeals were filed: the first appeal was filed
by Baton Rouge Water Works Company ("BRWW") and the
second appeal was filed by the owner of the office building
that was damaged, Cost Segregation Services, Inc.
("CSS"), along with its insurer, Continental
Casualty Company ("Continental").
matter is before us for review of a motion for summary
judgment. Consequently, the facts have not been fully
developed. However, for the purpose of this review, the
following facts are essentially undisputed. The project at
issue in this litigation involved relocating and adding
underground utility lines in order to improve/expand Siegen
Lane. On April 27, 2010, Entergy was engaged in underground
directional boring work that was necessary for relocating a
six-inch gas main line in the vicinity of CSS's office
located at 10343 Siegen Lane. During the boring work, Entergy
unintentionally struck BRWW's main water line, causing
the water line to rupture and resulted in both water and
sewage to flow into CSS's office, damaging the office, as
well as office equipment, furniture, computers, and the
surrounding property. CSS settled its claim with Continental,
its business interruption insurer. CSS and Continental then
filed a petition for subrogation and damages on April 25,
2011, alleging negligence. The lawsuit named defendants:
Entergy, the City of Baton Rouge's Department of Public
Works/Parish of East Baton Rouge ("City/Parish"),
and CSRS, Inc., the contractor for the project.
Continental/CSS later amended the petition to remove CSRS as
a defendant and to add BRWW as a defendant, again alleging
several years of discovery, Entergy moved for summary
judgment with respect to the claims asserted by
Continental/CSS. Entergy maintained that it had requested
"locates" of all underground utilities prior to
beginning its work of installing/relocating the gas line, as
required by the Louisiana Underground Utilities and
Facilities Damage Prevention Law, La. R.S. 40:1749.11, et
seq., (hereafter referred to as the "LA One-Call
Law"). Because Entergy complied with the LA One-Call
Law, Entergy argued that it was entitled to statutory
immunity and, therefore, summary judgment dismissal of
Entergy was appropriate since there was no proof of a breach
of any duty. Continental/CSS and BRWW all opposed
Entergy's motion for summary judgment, but after a
hearing on the matter, the trial court granted a partial
summary judgment in favor of Entergy, dismissing Entergy with
prejudice. In oral reasons for judgment, the trial
court found that Entergy's compliance with the LA
One-Call Law and its reliance on the location markings made
by BRWW revealed that Continental/CSS and BRWW could not
prove a breach of any duty owed by Entergy. Continental/CSS
and BRWW appealed, essentially arguing that Entergy is not
automatically absolved of liability for damages simply by
notifying LA One-Call of the excavation, because there
remained a genuine issue of material fact as to whether
Entergy failed to maintain a safe clearance zone around
BRWW's water main, which caused Continental/CSS's
courts review summary judgments de novo under the
same criteria that govern a trial court's consideration
of whether summary judgment is appropriate. Lieux v.
Mitchell, 2006-0382 (La.App. 1st Cir. 12/28/06), 951
So.2d 307, 314, writ denied, 2007-0905 (La.
6/15/07), 958 So.2d 1199. In ruling on a motion for summary
judgment, the trial court's role is not to evaluate the
weight of the evidence or to determine the truth of the
matter, but instead to determine whether there is a genuine
issue of triable fact. All doubts should be resolved in the
non-moving party's favor. Hines v. Garrett,
2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A
fact is material if it potentially ensures or precludes
recovery, affects a litigant's ultimate success, or
determines the outcome of the legal dispute. A ...