United States District Court, W.D. Louisiana, Monroe Division
PEREZ-MONTES MAG. JUDGE.
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
Plaintiffs filed suit against Keith Palmer, d/b/a Palmer
Construction and Heather Palmer Adams (“the
Palmers”) as a result of alleged negligent construction
of a grain bin storage system. The Palmers filed a third
party complaint against Timbo's Construction, Inc.
(“Timbo's) and Global Industries, Inc.
(“Global”) [Doc. No. 13], alleging that
Timbo's is liable, in whole or in part, to the Palmers
for any damages sustained by the Plaintiffs as to any defects
or errors in the construction of the foundation which were
due to the exclusive fault of Timbo's.
third party complaint, Timbo's filed a Motion To Dismiss
For Failure To State A Claim Upon Which Relief Can Be Granted
Or Alternatively, Motion For Summary Judgment [Doc. No. 55].
For the following reasons, Timbo's motion is GRANTED.
Plaintiffs, Ted Busby, Barbara S. Busby, Ryman Patrick, Erin,
Busby, Ryman Busby Farms, Inc. and Skunk Investments, Inc.
(“the Busbys”) filed suit on March 2, 2017, in
the State of Louisiana, Parish of Madison, Sixth Judicial
District Court. In the Petition, the Busbys named as
Defendants, Keith Palmer, d/b/a Palmer Construction. (Heather
Palmer Adams was later added as a Defendant). The Busbys
sought damages as a result of the alleged defective
construction of grain storage bins in Madison Parish,
Louisiana. The work was allegedly conducted from November
2012 until completed in July 2013.
allege that due to the design and negligent construction, the
foundation was too small to support the grain bin storage
system, which resulted in settling of the systems and
problems in the operation of the grain storage system.
April 5, 2017, the Palmers filed a Notice of Removal [Doc.
No. 1] which removed the above matter to this Court on the
basis of diversity jurisdiction.
on May 15, 2017, the Palmers filed a Third Party Complaint,
naming as Third Party Defendants, Timbo and Global alleging
that in the event of any liability on the part of the
Palmers, Timbo's and Global, are liable in whole or in
part, for any damages sustained by the Plaintiffs as to any
defects or errors in the construction of the foundation that
were due to the exclusive fault of Timbo's and Global. On
July 3, 2018, Timbo's filed a Motion To Dismiss For
Failure To State A Claim Upon Which Relief Can Be Granted,
Or, Alternatively, Motion For Summary Judgment [Doc. No. 55].
instant motion, Timbo's maintains the Palmers are not
entitled to indemnification and/or contribution from
Timbo's under Louisiana substantive law. Pursuant to
Louisiana Civil Code article 2324(B), a joint tortfeasor is
only liable for its percentage of fault. Timbo's further
maintains that prior to the 1996 amendment to article 2324,
joint tortfeasors were solidarily liable. Claims for
contribution or indemnification are no longer necessary
because a joint tortfeasor can no longer be liable for
damages in excess of the percentage of fault assigned to
him. Also, Timbo's maintains that there is no
“in solido” liability under article 2324(A).
Therefore, the only potential liability of Timbo's is
joint and severable.
opposition [Doc. No. 59], the Palmers oppose Timbo's
motion. The Palmers maintain that Timbo's could be found
solely at fault for the damages. The Palmers further maintain
that Federal Rule of Civil Procedure 14(a)(1) allows a
defending party to, as third party complainant, serve a
summons and complaint on the party who is or may be liable to
it for all or part of the claim against it.
LAW AND ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56(a), a party may move for
summary judgment, identifying each claim or defense - - or
the part of each claim or defense- -on which summary judgment
is sought. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. The moving party bears the initial burden of
informing the court of the basis for its motion by
identifying portions of the record which highlight the
absence of genuine issues of material fact. Topalian v
Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992);
see also FED. R. CIV. P. 56(C)(1)(A party asserting
that a fact cannot be . . . disputed must support the
assertion by . . . citing to particular parts of materials in
the record . . .). A fact is material if proof of its
existence or nonexistence would affect the outcome of the