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Busby v. Palmer

United States District Court, W.D. Louisiana, Monroe Division

July 25, 2018

TED BUSBY, ET AL
v.
KEITH PALMER D/B/A PALMER CONSTRUCTION, ET AL

          PEREZ-MONTES MAG. JUDGE.

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE.

         The 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.

         To the 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.

         I. FACTS

         The 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.

         Plaintiffs 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.

         On 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.

         Thereafter, 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].

         In the 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.

         In its 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.

         II. LAW AND ANALYSIS

         A. Standard of Review

         Under 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 lawsuit ...


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