AMALEETA O'NEAL, ET AL.
FOREMOST INSURANCE COMPANY, ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
254, 445 HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Michael L. Glass Attorney at Law Counsel for
Plaintiffs/Appellees: Amaleeta O'Neal Jeffery O'Neal
G. Brenner Christina S. Slay Bolen, Parker, Brenner, Lee
& Engelsman, Ltd Counsel for Defendants/Appellants:
Foremost Insurance Company RLN Investments, LLC
Randall B. Keiser Matthew L. Nowlin Keiser Law Firm, P.L.C.
Counsel for Defendant/Appellee: Don Van Cleef
Christopher Auzenne Auzenne Law Firm, L.L.C. Counsel for
Defendant/Appellee: Messina Realty, LLC
E. Gilbert CNA Coverage Litigation Group One Galleria
Boulevard, Suite 1502 Counsel For Defendant/Appellee:
Continental Casualty Company
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks, and Phyllis M. Keaty, Judges.
PHYLLIS M. KEATY JUDGE
Investments, LLC, appeals the trial court's grant of
summary judgment in favor of Messina Realty, L.L.C., on the
issue of defense and indemnity. For the following reasons,
the trial court's judgment is reversed, and this matter
is remanded to the trial court for further proceedings.
AND PROCEDURAL HISTORY
appeal involves the interpretation of a defense and indemnity
clause in a property management agreement. On March 10, 2014,
a Petition for Damages was filed by Plaintiffs, Amaleeta
O'Neal and Jeffery O'Neal, against Foremost Insurance
Company and Ronald Nation. Plaintiffs alleged that Amaleeta
sustained injuries on March 31, 2013, when her vehicle
collided with a "rotten and defective" tree which
had fallen across Nation Road in Deville, Louisiana.
Plaintiffs asserted the tree was located at 207 Nation Road,
which was owned by Nation and insured by Foremost.
Plaintiffs, thereafter, filed an amended petition wherein it
dismissed Nation, individually, and added his business, RLN
Investments, LLC, as an additional defendant. In its amended
petition, Plaintiffs alleged the tree was located on property
owned by RLN Investments and requested the matter be
transferred from the Pineville City Court to the trial court.
Pursuant to the city court's order, Nation was dismissed
without prejudice, and the matter was transferred to the
23, 2016, RLN Investments filed a Third Party Demand against
Messina Realty, asserting that Christopher Mayes was renting
the property in question on the date of the incident. It also
alleged that prior to the incident, RLN Investments and
Messina Realty entered into a Property Management Agreement
(hereinafter "the contract") whereby Messina Realty
agreed to manage the property, which included notifying RLN
Investments "of any maintenance issues." RLN
Investments argued that Messina Realty breached the
contract's terms and should be liable for any damages
that may be assessed against RLN Investments. On July 20,
2016, Messina Realty filed a Motion for Summary Judgment
alleging that the contract contained a clause wherein RLN
Investments was required to indemnify and hold Messina Realty
harmless from liability for injury suffered by an employee,
tenant, or guest on or about the property. On April 25, 2017,
RLN Investments filed a First Supplemental and Amended Third
Party Demand naming Don Van Cleef and Continental Casualty
Company as additional third party defendants. Van Cleef was
named in his capacity as Messina Realty's employee and
property manager for 207 Nation Road. Continental was named
in its capacity as Messina Realty's Errors and Omissions
2, 2017, Van Cleef filed an Answer and Reconventional Demand
against RLN Investments, asserting that he was employed by
Messina Realty at the time of the incident and entitled to
defense and indemnity pursuant to the contract. Van Cleef
also asserted a cross-claim against Messina Realty for
defense and indemnity based upon vicarious liability arising
from a master/servant relationship. On September 21, 2017,
RLN Investments filed a Peremptory Exception of No Cause of
Action and Peremptory Exception of No Right of Action and
Motion to Strike the declaratory judgment filed by
Continental. RLN Investments also filed a Second Amended
Third Party Demand alleging negligence against Messina Realty
and/or Van Cleef. On October 17, 2017, Messina Realty filed
an Exception of Prematurity to Van Cleef's cross-claim.
On November 3, 2017, a Consent Judgment was executed between
RLN Investments and Continental, and the trial court issued
an order sustaining the exceptions and motion to strike filed
by RLN Investments. Therein, the trial court also struck the
request for attorneys' fees asserted in Continental's
answer to RLN Investments' third party demand, as
supplemented and amended.
Cleef named RLN Investments and Messina Realty in a Petition
for Declaratory Judgment filed on December 8, 2017,
reasserting his claims for defense and indemnity. On January
9, 2018, RLN Investments and Foremost filed a Petition for
Declaratory Relief against Continental on the issue of
coverage of claims. On January 26, 2018, Continental filed an
opposition memorandum and Motion to Strike RLN
Investments' and Foremost's Petition for Declaratory
Relief. On February 1, 2018, RLN Investments filed a Second
Amended Third Party Demand.
hearing was held on February 5, 2018, regarding Van
Cleef's Petition for Declaratory Judgment and Messina
Realty's Motion for Summary Judgment. The trial court
granted both via separate judgments. The judgment granting
Messina Realty's summary judgment was signed by the trial
court on February 23, 2018. RLN Investments appealed.
appeal, RLN Investments asserts the following assignments of
1. Whether the Honorable Lower Court erred in granting the
Motion for Summary Judgment finding that Messina Realty, LLC,
is entitled to defense and indemnity from RLN Investments,
LLC, when the record demonstrated that Messina Realty, LLC,
and/or its agent, Don Van Cleef, breached the Property
Management Agreement between RLN Investments, ...