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Salathe v. Parish of Through

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

SHANE SALATHE
v.
THE PARISH OF JEFFERSON THROUGH THE DEPARTMENT OF SEWERAGE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 749-298, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, SHANE SALATHE Richard C. Trahant Jack E. Morris

          COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, CONSOLIDATED SEWERAGE DISTRICT NO. 1 OF THE PARISH OF JEFFERSON Guice A. Giambrone, III Jacob K. Best

          COUNSEL FOR DEFENDANT/APPELLEE, ALTERRA AMERICA INSURANCE COMPANY Patrick J. McShane Danica B. Denny Kathleen P. Rice

          COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, AMERICAN ALTERNATIVE INSURANCE COMPANY Tara E. Clement Jameson M. Taylor

          COUNSEL FOR DEFENDANT/APPELLEE, AMERISURE MUTUAL INSURANCE COMPANY Glen E. Mercer Kourtney T. French

          Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.

          SUSAN M. CHEHARDY CHIEF JUDGE.

         On appeal, appellants - Shane Salathe, the Parish of Jefferson, and its insurer, American Alternative Insurance Company - seek review of the trial court's grant of partial summary judgment in favor of Alterra America Insurance Company and Amerisure Insurance Company. For the following reasons, we reverse the partial summary judgment.

         Factual and Procedural History

         On November 7, 2014, the Consolidated Sewerage District No. 1 of the Parish of Jefferson (hereinafter "the Parish") and Fleming Construction Company, LLC (hereinafter "Fleming") entered a contract for replacement or restoration of existing sewer mains in Jefferson Parish. The "Standard General Conditions of the Construction Contract" (hereinafter "General Conditions Contract") between the Parish and Fleming required Fleming to procure certain insurance policies naming the Parish as an additional insured, including, inter alia, a commercial general liability and umbrella policy and also indemnifying the Parish, except in the instance of the sole negligence of the Parish.

         On or about August 26, 2014, Fleming procured from Amerisure the Commercial General Liability policy bearing Policy No. GL 20778990301, [1](hereinafter "Amerisure policy"), effective from August 1, 2014 through August 1, 2015, with the limit of $1, 000, 000.00 per occurrence. Further, Fleming procured from Alterra America Insurance Company the Commercial Excess Liability policy bearing Policy No. MAXA3EC50001291 (hereinafter "Alterra policy"), effective from August 1, 2014 through August 1, 2015, with the limit of $5, 000, 000.00 per occurrence.

         On January 8, 2015, the Parish issued a work order to Fleming to "Change all 4 Discharge Base Elbows, rails & all piping in wet wells" at Lift Station E7-6 in Metairie. On February 5, 2015, a Fleming foreman, Shane Salathe, appellant herein, descended a ladder into the wet well to perform his work. As Mr. Salathe ascended the ladder to exit the wet well, he grasped the door to the well to steady himself. When he put pressure on the door, the locking arm on the hatch door failed, allowing the door to slam, which caused Mr. Salathe to fall off of the ladder. Mr. Salathe fell almost thirty feet to the bottom of the well and suffered a traumatic brain injury and paraplegia.

         On May 1, 2015, Mr. Salathe filed a petition for damages, naming the Parish as defendant. In his petition, Mr. Salathe contends that the Parish is liable for his injuries through its negligence in, inter alia, failing to maintain the hinge on the door to the well, which failed and caused his injuries. On August 7, 2017, Mr. Salathe filed a "Second Amended Supplemental, Restated and Superseding Petition" adding, as defendants, the Parish's insurer, American Alternative Insurance Company (hereinafter "AAIC"), and Fleming's insurers, Amerisure and Alterra ...


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