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Thibodeaux v. Gulfgate Construction, LLC

Court of Appeals of Louisiana, Third Circuit

March 7, 2019

JOHN THIBODEAUX, ET AL.
v.
GULFGATE CONSTRUCTION, LLC, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20154167 HONORABLE JULES DAVIS EDWARDS, III DISTRICT JUDGE.

          Melvin A. Eiden Blake T. Couvillion Rabalais & Hebert COUNSEL FOR DEFENDANT/APPELLANT: J.M. Drilling, LLC

          Edward O. Taulbee, IV Taulbee & Associates COUNSEL FOR PLAINTIFFS/APPELLEES: Amy Thibodeaux John Thibodeaux John and Amy Thibodeaux obo Gabrielle Thibodeaux John and Amy Thibodeaux obo Emily Thibodeaux

          Max Michael Menard COUNSEL FOR PLAINTIFFS/APPELLEES: Amy Thibodeaux John Thibodeaux John and Amy Thibodeaux obo Gabrielle Thibodeaux John and Amy Thibodeaux obo Emily Thibodeaux

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.

          BILLY HOWARD EZELL JUDGE.

         In this matter, J.M. Drilling ("J.M.") appeals decisions of the trial court below granting summary judgment in favor of John Thibodeaux on the issue of liability, excluding some of its expert testimony, and denying its motions for judgment notwithstanding the verdict (JNOV) or new trial. J.M. further appeals the jury awards made to Mr. Thibodeaux and his spouse as excessive. For the following reasons, we affirm the decision of the trial court, as amended.

         The facts of this matter were described by this court in our previous case, Thibodeaux v. Gulfgate Construction, LLC, 17-495, pp. 1-2 (La.App. 3 Cir. 11/22/17), 234 So.3d 100, 102, writ denied, 17-2149 (La. 2/23/18), 237 So.3d 519, as such:

This negligence matter arose on June 9, 2015, when Plaintiff, John Thibodeaux, injured his right leg while splicing fiber optic cable on behalf of his employer, American Telephone & Telegraph (AT & T), at 114 Meadow Gate Drive in the Sawgrass subdivision in Lafayette, Louisiana. Thibodeaux had to access hand holes, which are rectangular, underground vaults where fiber optic cables come together and are spliced. The two hand holes at issue were equipped with covers, i.e., lids, which rested on top of the ground. They were located near a rectangular, pre-cast slab which held an AT & T cabinet. On the day of his accident, Thibodeaux lifted a hand hole cover and placed it by the AT & T cabinet when the ground beneath him gave way, causing his right leg to fall into a hole, sustaining injury.
Prior to Thibodeaux's accident, Gulfgate Construction and J. M. Drilling performed work on the property pursuant to separate contracts with AT & T. Gulfgate Construction's job, which was the F1 part of the project, consisted of preparing a pre-cast slab, installing a cabinet on top of the pre-cast slab, digging two hand holes, and feeding fiber optic cable into hand hole number two. After Gulfgate Construction finished its job, J. M. Drilling performed the F2 part of the project, which consisted of installing fiber optic lines by accessing the hand holes and feeding the cable out to the rest of the subdivision.
It is alleged that during operations on the property . . . J. M. Drilling struck and damaged an underground sewer force main line. The main line purportedly began leaking and caused a washout under the pre-cast slab upon which the AT & T cabinet was situated, ultimately forming the hole into which Thibodeaux fell. The main line, which ran from a sewer lift station on the property to the street, belonged to Water & Wastewater Utilities, Inc. (Wastewater), the owner and operator of the lift station. Gulfgate Construction repaired Wastewater's broken main line after Thibodeaux's accident. Wastewater had not marked its main line prior to the commencement of work performed by Gulfgate Construction and J. M. Drilling. The hand holes had to be repositioned as a result of the existence of the underground main line.
On August 24, 2015, Thibodeaux and his wife, Amy, individually and on behalf of their minor daughters, Gabrielle and Emily, filed suit against [J.M. Drilling, ] Gulfgate Construction, Milton Water System, Inc., and Wastewater.

         Gulfgate and the remaining Defendants in the suit were dismissed on summary judgments, which were upheld by this court and had writs denied by the supreme court. J.M. remains as the only defendant in this case.

         Mr. Thibodeaux then filed a motion for summary judgment on the issue of liability, which was granted by the trial court. The suit then proceeded to a jury for the determination of damages. The jury awarded Mr. Thibodeaux, among other amounts, future medical expenses in the amount of $500, 000.00; loss of future earning capacity in the amount of $2, 275, 000.00; loss of household services in the amount of $90, 000.00; and loss of consortium to Mrs. Thibodeaux in the amount of $150, 000.00. From that decision, J.M. appeals.

         On appeal, J.M. asserts six assignments of error. J.M. claims that the trial court erred in granting Mr. Thibodeaux's motion for summary judgment on the issue of liability; it claims in separate assignments of error that the jury awards were excessive for future medical expenses, loss of future earning capacity, and loss of consortium; that the trial court erred in granting Mr. Thibodeaux's motion in limine precluding the testimony of Dr. Greg Gidman as duplicative; and it claims the trial court erred in denying its motion for new trial/JNOV.

         SUMMARY JUDGMENT

         J.M. first claims that the trial court erred in granting summary judgment in favor of Mr. Thibodeaux on the issue of liability, as it claims genuine issues of material fact exist as to the cause of the hole. We disagree.

         Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action . . . . and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876, cert. denied, ___ U.S. ___, 135 S.Ct. 197 (2014).

         The burden of proof is on the mover unless the mover will not bear the burden of proof at trial, in which case the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. La.Code Civ.P. art. 966(D)(1). "The burden is on the adverse party to produce factual support sufficient to establish the ...


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