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Continental Casualty Co. v. Entergy Gulf States Louisiana, L.L.C.

Court of Appeals of Louisiana, First Circuit

February 27, 2018

CONTINENTAL CASUALTY COMPANY AND COST SEGREGATION SERVICES, INC.
v.
ENTERGY GULF STATES LOUISIANA, L.L.C., CITY OF BATON ROUGE, EAST BATON ROUGE PARISH, ANDCSRS, INC. AMERICA FIRST INSURANCE COMPANY
v.
CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE, AND ENTERGY GULF STATES, LLC, AND ABC INSURANCE COMPANY

         On 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

          Brent 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.

          Dan M. Boudreaux Baton Rouge, LA Attorney for Defendant-Appellee, America First Insurance Company

          Steven B. Loeb John T. Andrishok Baton Rouge, LA Attorney for Defendant-Appellee, CSRS, Inc.

          Todd 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.

          HIGGINBOTHAM, J.

         This 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").

         BACKGROUND

         This 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 negligence.[1]

         After 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.[2] 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 damages.

         SUMMARY JUDGMENT

         Appellate 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 ...


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