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McDonald v. Brookshire Grocery Co.

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

September 18, 2019

MARGARET MCDONALD
v.
BROOKSHIRE GROCERY CO., ET AL.

          KAREN L. HAYES JUDGE.

          RULING

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE.

         Pending here is the Motion for Partial Summary Judgment on Behalf of Argel Building Services, Inc. (“Argel”) [Doc. No. 82]. Plaintiff Margaret McDonald (“McDonald”) filed an opposition [Doc. No. 87].

         The motion is fully briefed, and the Court is prepared to rule.

         I. FACTS AND PROCEDURAL BACKGROUND

         McDonald contends that she suffered injuries on June 20, 2016, when she slipped and fell on water left after a floor was cleaned and buffed at the Brookshire store in Jonesboro, Louisiana. On May 26, 2017, she filed a Petition for Damages against Defendants Brookshire Grocery Company (“Brookshire”), Nationwide Building Services, Inc. (“Nationwide”), and The Travelers Indemnity Company of Connecticut (“Travelers”) in the Second Judicial District Court for the Parish of Jackson, State of Louisiana. On August 1, 2017, the lawsuit was removed to this Court.

         On March 12, 2018, McDonald filed a First Supplemental and Amended Petition [Doc. No. 16], adding as an additional Defendant Argel Building Services, Inc., (“Argel”). She alleged liability on the basis that Brookshire had retained the services of Nationwide, who, in turn, had retained the services of Argel to clean the floors of the business.

         On March 5, 2019, McDonald filed a Second Supplemental and Amended Petition [Doc. No. 36] adding as an additional Defendant United Specialty Insurance Company (“USIC”), the alleged insurer of Argel.

         On March 7, 2019, Nationwide filed a Motion for Partial Summary Judgment [Doc. No. 38], contending that it had no liability to McDonald because it had not cleaned or buffed the floors at the Jonesboro Brookshire store, but, rather, had sub-contracted that work to Argel, as an independent contractor.

         On April 5, 2019, the Court granted Nationwide’s Motion for Partial Summary Judgment [Doc. No. 38], concluding that Nationwide has no liability to McDonald because under Louisiana law a party is not liable for the torts of its subcontractor unless that party retains the right to control the manner in which the contractor performs his work, which, in this case, Nationwide did not do. Thus, the Court concluded that Nationwide was entitled to judgment as a matter of law holding that it has no liability to McDonald [Doc. Nos. 52, 53].

         On April 30, 2019, Brookshire and Travelers filed a motion for partial summary judgment asking that McDonald’s claims against them be dismissed because: (1) Brookshire did not perform any floor cleaning services that allegedly caused or contributed to McDonald’s slip and fall; and, (2) Brookshire contracted all floor cleaning services for the premises in question to Nationwide as an independent contractor, and, therefore, Brookshire was entitled to summary judgment dismissing McDonald’s claims against it for the same reason the Court granted summary judgment in favor of Nationwide [Doc. No. 54].

         On June 7, 2019, the Court granted Brookshire and Travelers’ motion for summary judgment [Doc. Nos. 68, 69]. On July 1, 2019, McDonald filed a Notice of Appeal [Doc. No. 72], which the United States Court of Appeals for the Fifth Circuit dismissed for want of jurisdiction, on July 30, 2019 [Doc. No. 78].

         On July 3, 2019, USIC, Argel’s insurer, filed a Motion to Dismiss on the basis that McDonald’s tort claims are time-barred by liberative prescription [Doc. No. 73]. On August 26, 2019, the Magistrate Judge issued a Report and Recommendation in which she recommended the motion to dismiss be granted [Doc. No. 84]. On September 10, 2019, the Court entered Judgment adopting the Report and Recommendation [Doc. No. 86].

         On August 24, 2019, Argel filed the pending Motion for Partial Summary Judgment [Doc. No. 82], asserting that McDonald’s claim against it, too, is time-barred.

         For the following reasons, Argel’s motion is GRANTED.

         II. LAW AND ANALYSIS

         A. ...


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