LIBERTY MUTUAL FIRE INS. CO.
RANDALL J. HEBERT & ASSOCIATES, INC., ET AL.
FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 84573 HONORABLE CURTIS SIGUR, DISTRICT JUDGE
Boudreaux Keith R. Giardina COUNSEL FOR PLAINTIFF/APPELLANT:
Liberty Mutual Fire Ins. Co.
S. Mosley Grotefeld Hoffman COUNSEL FOR DEFENDANT/APPELLEE:
Hanover Ins. Co.
Charles E. Riley, IV Simon, Peragine, Smith & Redfern,
LLP COUNSEL FOR DEFENDANT/APPELLEE: Hanover Ins. Co.
L. Durand COUNSEL FOR DEFENDANT/APPELLEE: St. Martin Economic
composed of Elizabeth A. Pickett, John E. Conery, and Candyce
G. Perret, Judges.
E. CONERY JUDGE.
Mutual Fire Insurance Company (Liberty Mutual) appealed, and
Hanover Insurance Company (Hanover) filed a brief in support
of Liberty Mutual's appeal of the December 4, 2017
judgment of the trial court granting summary judgment in
favor of the St. Martin Economic Development Authority
(SMEDA), thereby dismissing Liberty Mutual and Hanover's
claims for flood damage to the building of their insured,
Waukesha Pearce Industries, LLC (WPI). For the following
reasons, we affirm.
AND PROCEDURAL HISTORY
is a Louisiana non-profit corporation created in 1994 to
encourage economic growth in St. Martin Parish, Louisiana. In
2003, the St. Martin Parish Government (Parish), not SMEDA,
received a grant from the U.S. Economic Development Agency
that the Parish used to purchase a 160 acre tract of land to
create a light industrial park in St. Martin Parish, later
named the Highway 90 Industrial Park (the Park). WPI
purchased Lot 21-A in the Park and constructed a building on
Petroleum Parkway. On November 6, and 7, 2015, the WPI
building located in the Park suffered flood damage, which was
covered and paid for by its insurers, Liberty Mutual and
to the flood damage to the WPI building, the Parish had
acquired a right-of-way and entered into a construction
contract in order to construct Petroleum Parkway, as well as
other streets in the Park. SMEDA was neither a party to the
contract to acquire the right-of-way nor to the construction
contract for Petroleum Parkway.
Parish further contracted for the installation of the water
and sewer lines in the Park, which ran parallel to and within
twenty-five feet of Petroleum Parkway. The right-of-way for
the water and sewer lines was also owned by the Parish and
SMEDA was not a party to that contract either.
Mutual and Hanover each filed petitions for damages against
SMEDA, along with five other entities, alleging that these
defendants were responsible for the flooding of the WPI
building because "[t]he drainage and elevation system on
or surrounding properties were negligently designed, created
installed, and/or maintained" by the defendants. Both
petitions alleged negligence and res ipsa loquitur
against all defendants, including SMEDA. A joint motion to
transfer and consolidate the two cases was filed and signed
by the trial court.
filed a motion for summary judgment claiming that based on
the pleadings, affidavits and evidence in the record, there
is no genuine dispute as to material facts and it is entitled
to judgment as a matter of law. SMEDA's motion was ultimately
heard by the trial court on November 3, 2017.
filed the affidavit of Fred H. Mills, Jr. in support of its
motion. Mr. Mills is the President of SMEDA and also serves
on its Board of Directors. Mr. Mills has served in both
capacities since prior to 2005, and therefore had personal
knowledge of the sale of Lot 21-A in the Park to WPI in 2007.
SMEDA also filed an affidavit from Ms. Beth Guidry, the duly
appointed Executive Director of SMEDA since October 31, 2001.
During that time period, Ms. Guidry has served as SMEDA's
only employee. The attestations contained in the two
affidavits in support of the motion for summary judgment
submitted by SMEDA were unopposed by Liberty Mutual and
Hanover. Mr. Mills' affidavit provides that, "In
connection with the installation of the streets as well as
the water and sewer lines, neither SMEDA nor anyone acting on
behalf of SMEDA performed any work which altered the contours
or the surface of Lot 21-A [(later)] purchased by WPI."
No dirt work was done by SMEDA on Lot 21-A and any dirt work
done on any of the lots located in the Park was conducted by
Guidry attested in her affidavit that SMEDA did not own Lot
21-A or any other lot in the Park developed by the Parish.
SMEDA bought the lot from the prior owner on May 18, 2007 and
immediately sold Lot 21-A to WPI. Lot 21-A, consisted of
8.915 acres, as evidenced by the "Plat attached to the
Act of Sale at Conveyance Book 1470, page 623, Entry No.
400116 of the Conveyance Records of St. Martin Parish."
above described Act of Sale, which was attached to Mr.
Mills' affidavit, provided: "The above-described
property is conveyed to the Purchaser 'as-is where
is' without any warranties whatsoever as to fitness or
condition." There have been no acts ...