Daneric Anderson v. Kenneth Briggs, Abc Insurance Company, Ports America Louisiana, L.L.C., Xyz Insurance Company, and Jkl Insurance Company

DANERIC ANDERSON * NO. 2023-CA-0814

VERSUS *
COURT OF APPEAL
KENNETH BRIGGS, ABC *
INSURANCE COMPANY, FOURTH CIRCUIT
PORTS AMERICA *
LOUISIANA, L.L.C., XYZ STATE OF LOUISIANA
INSURANCE COMPANY, AND *******
JKL INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

DANERIC ANDERSON NO. 2024-CA-0808

VERSUS

KENNETH BRIGGS, ABC INSURANCE
COMPANY, PORTS AMERICA
LOUISIANA, L.L.C., XYZ INSURANCE
COMPANY AND JKL INSURANCE
COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-11757, DIVISION “F-14”
Honorable Jennifer M. Medley, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge
Dale N. Atkins)

Jake J. Weinstock
Irvy E. Cosse, III
COSSE LAW FIRM, LLC
1515 Poydras Street, Suite 900
New Orleans, LA 70112

and

Andrew D. Weinstock
DUPLASS, APLC
433 Metairie Road
Metairie, LA 70005

Counsel for Daneric Anderson

Scott A. Soule
Frank J. Torres
Josephine H. Azuma
BLUE WILLIAMS, L.L.C.
3421 North Causeway Blvd., Suite 900
Metairie, LA 70002

Counsel for Ports America Louisiana, L.LC., and Kenneth Briggs

Raymond C. Lewis
Walter P. Maestri
DEUTSCH KERRIGAN, L.L.P.
755 Magazine Street
New Orleans, LA 70130

Counsel for Admiral Security Services, Inc., and Admiral Security Holdings,
LLC

JUDGMENT REVERSED AND RENDERED; JUDGMENT VACATED;
REMANDED WITH INSTRUCTIONS
APRIL 25, 2025

DNA

PAB

TGC

The case underlying this consolidated appeal concerns a motor vehicle

accident that occurred on December 9, 2016, at the Port of New Orleans between

Daneric Anderson (“Mr. Anderson”) and Kenneth Briggs (“Mr. Briggs”). At the

time of the accident, Mr. Anderson was acting within the course and scope of his

employment with Admiral Security Holdings, L.L.C. (“ASH”), while Mr. Briggs

was acting within the course and scope of his employment with Ports America

Louisiana, L.L.C. (“Ports America”). In the case docketed with this Court as 2023-

CA-0814 Daneric Anderson v. Kenneth Briggs, et al. (“2023-CA-0814”),

Appellant is Mr. Anderson, and Appellees are Ports America and Mr. Briggs. In

the case docketed with this Court as 2024-CA-0808 Daneric Anderson v. Kenneth

Briggs, et al. (“2024-CA-0808”), Appellants are Ports America and Mr. Briggs,

and Appellees are ASH and Admiral Security Services, Inc. (“ASSI”) (collectively

“Admiral”).

In 2024-CA-0808, Ports America and Mr. Briggs seek review of the trial

court’s March 21, 2023 judgment, which granted the Motion for Summary

Judgment filed by Admiral and dismissed Ports America’s Third-Party Demands

against Admiral with prejudice. In 2023-CA-0814, Mr. Anderson assigns error to

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actions that occurred during the jury trial of this matter, which took place in April

2023 after the trial court dismissed Ports America’s Third-Party Demands against

Admiral. In particular, Mr. Anderson alleges the jury was not properly charged

about Louisiana law as to the legal presumptions regarding left-turning vehicles;

Admiral should not have been included on the verdict form; Mr. Anderson was

erroneously denied a Housley jury instruction; the corporate representative for

Ports America should not have been permitted to give expert testimony; Mr. Briggs

should not have been allowed to testify about his personal life; and Mr. Anderson’s

treating physician should have been allowed to give testimony regarding the

reasonable cost of the medical treatment that Mr. Anderson underwent. At the

close of trial, the jury assigned fault as follows: 45% to Mr. Anderson; 40% to

Admiral; and 15% to Mr. Briggs. On May 8, 2023, the trial court signed a

judgment consistent with the jury’s verdict.

For the following reasons, we reverse the trial court’s March 21, 2023

judgment, finding the trial court erred in granting Admiral’s Motion for Summary

Judgment and in dismissing Ports America’s Third-Party Demands against

Admiral on the basis asserted in Admiral’s Motion. We render judgment denying

Admiral’s Motion for Summary Judgment and maintaining Ports America’s Third-

Party Demands against Admiral. Further, finding that Admiral should not have

been included on the jury verdict form, we vacate the trial court’s May 8, 2023

judgment, which the trial court signed consistent with the jury’s verdict; and we

remand this matter for a new trial. Additionally, we find the remaining issues

raised in 2023-CA-0814 and 2024-CA-0808 are rendered moot by this vacatur and

remand, so we pretermit discussion of same.

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RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Indemnification Provision

Prior to the subject automobile accident, in 2014, ASSI entered into an

agreement with Ports America for ASSI to perform security and personnel transit

work for Ports America at the Port of New Orleans. In pertinent part and at issue in

this appeal is a provision of that agreement regarding indemnification. It states:

INDEMNIFICATION: [ASSI] agrees to defend, indemnify, and
hold [Ports America] and its affiliates, and its and their officers,
directors, employees and agents harmless from and against any
claims, demand, damages, loss, and expense, action, suit, or legal
proceeding arising out of or relating to the negligence, misconduct, or
other fault of [ASSI], its agents or employees in performance of its
obligations arising under this Agreement.

Eventually, ASSI informed Ports America that ASH had purchased ASSI and

assumed the agreement. The parties do not dispute that the agreement was in effect

at the time of the subject automobile accident.

Mr. Anderson’s Petition for Damages

On December 8, 2017, Mr. Anderson filed a Petition for Damages

(“Petition”) in Orleans Parish Civil District Court regarding the December 9, 2016

motor vehicle accident that occurred at the Port of New Orleans. A prior Opinion

by this Court described Mr. Anderson’s Petition:

In his petition, Mr. Anderson alleged that he was driving eastbound on
Terminal Drive in a two-door 2000 International Bus when Mr.
Briggs, who was operating a 2003 Yard Dog YH908 connected to
Chassis BC392, attempted to make a left-hand turn out of the Chassis
Yard onto Terminal Drive and struck Mr. Anderson’s vehicle. At the
time of the accident, Mr. Briggs was an employee of Ports America
and was operating within the course and scope of his employment.
Mr. Anderson named Mr. Briggs, Ports America, and Ports America’s
liability and uninsured motorist insurers as defendants in his petition.

3

Anderson v. Briggs, 2023-0483, pp. 1-3 (La. App. 4 Cir. 1/10/24), 381 So.3d 165,

166-67 (footnote omitted). Of note, Mr. Anderson did not assert any allegations of

negligence on the part of Admiral in his Petition.

In response to Mr. Anderson’s Petition, on April 6, 2018, Ports America

filed an Answer. In pertinent part, Ports America asserted no affirmative defenses

in its Answer whereby it alleged negligence on the part of Admiral.

Ports America’s Third-Party Demands

Thereafter, Ports America filed Third-Party Demands against Admiral, one

against ASSI and one against ASH. On September 14, 2020, Ports America filed

its Third-Party Demand against ASSI, which stated, in pertinent part:

[I]n the event, and only in the event, there is judgment in favor of
Defendant/Third-Party Plaintiff [Ports America] and against original
Plaintiff Daneric Anderson, [Ports America] avers that [it] is entitled
to full indemnification of all sums due, as well as reimbursement of
all defense costs and attorneys’ fees in connecti[on] with defending
this matter, by . . . ASSI.

Ports America then quoted the indemnification provision from its agreement with

Admiral. Thereafter, Ports America explained that because Mr. Anderson, an

employee of ASSI, made a claim against Ports America for alleged liability on

behalf of Mr. Briggs, an employee of Ports America, in the event Mr. Anderson

was found to be at fault for the subject accident, then Ports America was entitled to

defense, indemnification, costs, and attorney’s fees from ASSI. Ports America then

prayed for “full indemnification of any costs and expenses incurred for defending

this suit.”

On December 22, 2021, after learning that ASH was the employer of Mr.

Anderson, not ASSI, Ports America filed a Third-Party Demand against ASH. It

stated, in pertinent part:

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Ports America asserts that it is entitled to defense,
indemnification, hold harmless, costs, and attorney’s fees, from
Third[-] Party Defendant Admiral Services Holdings, L.L.C.

WHEREFORE, Ports America Louisiana, L.L.C, prays for full
indemnification for any costs and expenses incurred for defending this
suit against original Plaintiff, Daneric Anderson . . . .

Neither of Ports America’s Third-Party Demands alleged negligence on the part of

Admiral. In response to these Third-Party Demands, Admiral filed a Motion for

Summary Judgment.

Admiral’s Motion for Summary Judgment

On February 3, 2023, Admiral filed its Motion for Summary Judgment,

therein contending the issues raised were purely legal, with no facts in dispute.

Admiral argued the agreement between Admiral and Ports America required

Admiral to indemnify Ports America only to the extent Admiral or its employees

were negligent and did not entitle Ports America to “full indemnification” or

“reimbursement of all defense costs and attorney’s fees incurred in defending the

subject suit.” As summarized by Admiral, in its Third-Party Demands, Ports

America sought to expand the language of their agreement to the effect that

Admiral owed a defense and indemnity for damages arising from Ports America’s

own alleged negligence. Admiral noted in its Motion, however, that while this was

“not clearly stated in [Ports America’s] Third-Party Demands,” Ports America took

such a position via its Third-Party Demands. Admiral acknowledged that

contractual indemnity for an indemnitee’s own negligence is not prohibited by law;

but Admiral argued the agreement between Admiral and Ports America did not

contain the required unequivocal language to establish such indemnity. Further,

Admiral asserted that when it is unclear if an indemnity agreement provides

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coverage for the indemnitee’s own negligence, there is a presumption that the

indemnity agreement does not provide that type of coverage.

Admiral noted Mr. Anderson’s Petition made no allegations against Admiral

and did not name ASSI or ASH as defendants; rather, the only allegations of

negligence made by Mr. Anderson were against Mr. Briggs and Ports America.

Similarly, Admiral contended Ports America’s Third-Party Demands made no

allegations of negligence against ASSI or ASH, instead only claiming indemnity

from Admiral if there were to be judgment in favor of Ports America and against

Mr. Anderson. Accordingly, Admiral listed three scenarios that could result from

the jury’s ultimate deliberation in this matter: 1) allocation of 100% fault to Mr.

Anderson; 2) allocation of 100% fault to Ports America; or 3) allocation of fault to

Mr. Anderson and Ports America. Admiral stated:

The contract between Ports America and ASSI or ASH does not
contain language that unequivocally reflects an intention that ASSI or
ASH would defend and indemnify Ports America for damages caused
by its negligence. ASSI and ASH pray[] that summary judgment be
granted recognizing this contractual reality.

In its Motion for Summary Judgment, Admiral requested dismissal with prejudice

of all of Ports America’s claims in its Third-Party Demands.

Opposition to Admiral’s Motion for Summary Judgment by Ports America
and Mr. Briggs

On February 23, 2023, Ports America and Mr. Briggs filed an Opposition to

Admiral’s Motion for Summary Judgment. Therein, they argued “the evidence

demonstrates [Mr. Anderson] was at fault for this accident and that the contract at

the center of this controversy establishes Ports America is to be provided a full

defense, indemnity, and to be held harmless by ASSI/ASH.” Ports America and

Mr. Briggs further stated the agreement called for the “full” defense and indemnity

6

of Ports America by Admiral “under all circumstances, including this present

litigation.” They requested that the trial court deny Admiral’s Motion for Summary

Judgment and find the agreement mandated Admiral to defend, indemnify, and

hold Ports America harmless in the present litigation.

March 21, 2023 Judgment on Admiral’s Motion for Summary Judgment

On March 21, 2023, the trial court issued a judgment, which granted

Admiral’s Motion for Summary Judgment and dismissed Ports America’s Third-

Party Demands against Admiral with prejudice, thereby dismissing Admiral from

the lawsuit. The judgment stated:

IT IS ORDERED, ADJUDGED AND DECREED that
Judgment be entered in favor of Third[-]Party Defendants, Admiral
Security Services, Inc., and Admiral Security Holdings, LLC and
against Defendant, Ports America Louisiana, LLC in which Third[-]
Party Defendants, Admiral Security Services, Inc., and Admiral
Security Holdings, LLC’s Motion for Summary Judgment, is hereby
GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that . . . Judgment be entered in favor of Third[-]Party
Defendants, Admiral Security Services, Inc., and Admiral Security
Holdings, LLC and against Defendant, Ports America Louisiana, LLC
in which all claims of Defendant, Ports America Louisiana, LLC
against Third[-]Party Defendants, Admiral Security Services, Inc., and
Admiral Security Holdings, LLC are hereby DISMISSED WITH
PREJUDICE.

On that same day, the trial court also issued reasons for judgment, which stated, in

pertinent part, that the trial court was “adopt[ing] in toto, the Motion for Summary

Judgment, filed on February 3, 2023, on behalf of . . . [ASSI] and [ASH] as its

written reasons for judgment.”

Thereafter, on March 28, 2023, Ports America filed a Motion for New Trial

regarding the trial court’s March 21, 2023 judgment, which the trial court

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ultimately denied. Ports America and Mr. Briggs’ timely appeal to this Court

followed.

Trial and May 8, 2023 Judgment

The parties subsequently proceeded to trial before a jury from April 10 - 13,

2023. Relevant to this appeal, on the jury verdict form, the first and second jury

interrogatories asked the jurors to determine whether Mr. Briggs and Mr.

Anderson, respectively, were—by a preponderance of the evidence—at fault for

the subject accident. Then, the third interrogatory stated:

3. Please assign a percentage of fault to each of the following
parties:

___ Kenneth Briggs/Ports America Louisiana L.L.C.

___ Danerica [sic] Anderson (if you answered no to question 2. You
must put a zero.)

___ Admiral Security Services, Inc.

Thereafter, the trial court signed a judgment so as to reflect the jury’s verdict. It

stated, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment in favor of plaintiff, Daneric Anderson, and against
Defendants, Kenneth Briggs and Ports America Louisiana LLC, for
the personal injuries and damages in the full amount of $104,310.00,
which represents the jury’s apportionment of fault as to these
defendants.

IT IS ORDERED, ADJUDGED AND DECREED that fault
be apportioned as follows: Kenneth Briggs/Ports America Louisiana,
L.L.C. 15% Daneric Anderson 45% Admiral Security Services 40%
which apportionment has already been accounted for in the above
paragraphs.

Mr. Anderson filed a “Motion for Judgment Notwithstanding the Verdict, or in the

Alternative, Motion for New Trial.” The trial court denied that motion, and Mr.

Anderson’s timely appeal to this Court followed.

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ASSIGNMENTS OF ERROR

In 2024-CA-0808, Ports America and Mr. Briggs assert four assignments of

error:

[(1)]. The [trial] court erred in granting ASSI/ASH’s Motion for
Summary Judgment based upon the plain language of the
contract between ASSI and Ports America, L.L.C., at the time
of the alleged accident that ASSI would remain responsible for
its fault and its employees’ fault.

[(2)]. The [trial] court erred in its application of [La. C.C.P. art.]
966(F) by rendering judgment on issues not set forth in the
motion under consideration.

[(3)]. The [trial] court erred in prematurely dismissing ASSI/ASH
with prejudice, as judgment and allocation of fault had not yet
been rendered, an essential element to determining the outcome
of a defense and indemnity agreement.

[(4)]. The [trial] court erred in its application of La. C.C.P. [a]rt.
966(D)(1).

In 2023-CA-0814, Mr. Anderson asserts six assignments of error:

(1) The Jury was not properly charged regarding Louisiana law as
to the legal presumptions that exist as to left-turning vehicles.

(2) Admiral Security Services, Inc./Admiral Security Holdings,
LLC should not have been included on the verdict form, and
their inclusion, over [Mr. Anderson]’s objections, resulted in a
compromised verdict.

(3) [Mr. Anderson] was denied a Housley jury instruction, despite
unanimous testimony from the medical experts that the lumbar
and left-knee symptomatology experienced by [Mr. Anderson]
was caused by the December 8, 2016 crash.[1]

1 As this Court has explained, with the Housley presumption, a tort plaintiff, who must

establish “by a preponderance of the evidence that the accident more probably than not caused
the claimed disabling condition” might:

be aided by a presumption of causation “if before the accident the injured person
was in good health, but commencing with the accident the symptoms of the
disabling condition appear and continuously manifest themselves afterwards,
providing that the medical evidence shows there to be a reasonable possibility of
causal connection between the accident and the disabling condition.”

9

(4) The Corporate Representative for Ports America, Emmett
Wright, was permitted to give expert testimony, presumably as
an “expert” pursuant to Louisiana Code of Evidence 701,[2] but
Emmett Wright did not possess personal knowledge, in open
defiance of Louisiana Code of Evidence Article 602’s
requirement.[3]

(5) Th[e] [trial court] erred in allowing inadmissible (irrelevant)
testimony from Defendant-Appellee, Kenneth Briggs[,]
regarding his personal life, all of which was designed to
influence the emotions of the jury.

(6) [Mr. Anderson]’s treating physician, Dr. Everett Robert, M.D.,
was not allowed to give testimony regarding the reasonable cost
of the medical treatment that [Mr. Anderson] underwent.

Akers v. Douglas, 2024-0033, p. 17 (La. App. 4 Cir. 8/16/24), 399 So.3d 656, 669 (quoting
Ruffin v. Burton, 2008-0893, pp. 4-5 (La. App. 4 Cir. 5/27/09), 34 So.3d 301, 303-04). See also
Housley v. Cerise, 579 So.2d 973, 980 (La. 1991). The Housely presumption can be given as a
charge to the jury:

A Housley [jury] charge states that a fact finder may presume causation in
personal injury cases only when the plaintiff can prove that (1) he was in good
health before the accident at issue; (2) after the accident, symptoms of the alleged
injury appeared and continuously manifested themselves; and (3) there is a
reasonable possibility of causation between the accident and the claimed injury.

Aych v. State Farm Mut. Auto. Ins. Co., 2023-89, p. 9 (La. App. 5 Cir. 10/31/23), 374 So.3d
1000, 1007 (citing Oregan v. Cashio, 2016-563, p. 6 (La. App. 5 Cir. 4/26/17), 220 So.3d 845,
850).
2 Louisiana Code of Evidence Article 701 is titled “Opinion testimony by lay witnesses.”

It states:

If the witness is not testifying as an expert, his testimony in the form of
opinions or inferences is limited to those opinions or inferences which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the determination
of a fact in issue.
3 Louisiana Code of Evidence Article 602 is titled “Lack of Personal Knowledge.” It

establishes:

A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that he has personal knowledge of the matter.
Evidence to prove personal knowledge may, but need not, consist of the testimony
of the witness himself. This Article is subject to the provisions of Article 703,
relating to opinion testimony by expert witnesses.

10

Based on our review of the consolidated record and the parties’ briefs, we

have determined that resolution of this matter hinges on answering the following

questions: 1) whether the agreement between Ports America and Admiral

unequivocally established that Admiral would defend and indemnify Ports

America for its own negligence; 2) if not, whether the trial court nonetheless erred

in granting Admiral’s Motion for Summary Judgment and dismissing Ports

America’s Third-Party Demands with prejudice on that basis (Ports America and

Mr. Briggs’ first and third assignments of error, respectively, in 2024-CA-0808);

3) whether Admiral should have been included on the jury verdict form (Mr.

Anderson’s second assignment of error in 2023-CA-0814); and 4) whether we

should consider and resolve the remaining assignments of error in 2023-CA-0814

and 2024-CA-0808 in light of our resolution of issues one through three. Because

the first two issues concern the trial court’s grant of Admiral’s Motion for

Summary Judgment and dismissal of Ports America’s Third-Party Demands on the

basis asserted in Admiral’s Motion for Summary Judgment, we begin our

discussion section with the principles and standard of review applicable to the

summary judgment procedure. We then resolve each of the issues in turn.

DISCUSSION

Summary Judgment Principles and Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It

“is favored and shall be construed to accomplish these ends.” Id. A trial court

grants a motion for summary judgment if “[a]fter an opportunity for adequate

discovery,” the mover’s “motion, memorandum, and supporting documents show

11

that there is no genuine issue as to material fact and that the mover is entitled to

judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

On a motion for summary judgment, “[t]he burden of proof rests with the

mover.” La. C.C.P. art. 966(D)(1). In particular, a “party seeking summary

judgment has the burden of proving there is no genuine issue of material fact.”

Bankers Ins. Co. v. EMIII Holdings, LLC, 2024-0386, p. 6 (La. App. 4 Cir.

12/16/24), ___ So.3d ___, ___, 2024 WL 5116650, at *13 (quoting Haynes v.

Sewerage & Water Bd. of New Orleans, 2023-0678, p. 13 (La. App. 4 Cir.

7/31/24), 399 So.3d 626, 637). “[A] genuine issue” as this Court has defined it, is

“a triable issue.” Id. More specifically, “an issue is genuine if reasonable persons

could disagree” about the issue. Id. at p. 14, ___ So.3d at ___, 2024 WL 5116650,

at *6 (quoting Haynes, 2023-0678, pp. 14-15, 399 So.3d at 638). However, “[t]here

is no need for a trial on [the] issue” when “reasonable persons could reach only one

conclusion” on that issue based on “the state of the evidence.” Id. (quoting Haynes,

2023-0678, p. 14, 399 So.3d at 638). A material fact is defined as one “whose

‘existence or non-existence may be essential to the plaintiff’s cause of action under

the applicable theory of recovery.’” Id. When a particular fact “potentially

insure[s] or preclude[s] recovery, affect[s] a litigant’s ultimate success, or

determine[s] the outcome of the legal dispute,” then it constitutes a material fact.

Id. (alterations in original). For a court to determine whether “a particular disputed

fact is material or not,” the court must look to “the substantive law applicable to

the case . . . because the applicable substantive law determines materiality.” Id.

If and when the party moving for summary judgment satisfies the initial

burden of proving no genuine issue of material fact, then “the burden shifts to the

party opposing summary judgment to present factual support sufficient to show he

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[or she] will be able to satisfy the evidentiary burden at trial.” Bankers Ins. Co.,

2024-0386, p. 14, ___ So.3d at ___, 2024 WL 5116650, at *7 (alteration in

original) (quoting Haynes, 2023-0678, p. 14, 399 So.3d at 638). “[I]f the mover

will not bear the burden of proof at trial on the issue that is before the court on the

motion for summary judgment, the mover’s burden on the motion does not require

him [or her] to negate all essential elements of the adverse party’s claim, action, or

defense, but rather to point out to the court the absence of factual support for one

or more elements essential to the adverse party’s claim, action, or defense.” La.

C.C.P. art. 966(D)(1). “[T]he burden shift[s] from the mover to the adverse party”

only if “the motion has been made and properly supported.” Bankers Ins. Co.,

2024-0386, p. 15, ___ So.3d at ___, 2024 WL 5116650, at *7 (quoting Haynes,

2023-0678, p. 15, 399 So.3d at 638).

Upon the burden shifting, “the adverse party [must] produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

mover is not entitled to judgment as a matter of law.” La. C.C.P. art. 966(D)(1). In

producing this support, “[the] adverse party may not rest on the mere allegations or

denials of his [or her] pleading, but his [or her] response, by affidavits or as

otherwise provided . . . must set forth specific facts showing that there is a genuine

issue for trial.” La. C.C.P. art. 967(B). When the trial court considers a motion for

summary judgment, “the trial court cannot make credibility determinations but

must construe reasonable factual inferences in favor of the party opposing the

motion, resolving all doubt in favor of the opponent.” Bankers Ins. Co., 2024-

0386, p. 15, ___ So.3d at ___, 2024 WL 5116650, at *7 (quoting Haynes, 2023-

0678, p. 15, 399 So.3d at 638). After the burden has shifted, “if the party opposing

the motion fails to establish the existence of a genuine issue for trial, ‘summary

13

judgment, if appropriate, shall be rendered against him [or her].’” Id. (quoting La.

C.C.P. art. 967(B)). The reason is that “[w]hen the party opposing the motion for

summary judgment fails to provide factual evidence sufficient to establish that he

[or she] will be able to satisfy his [or her] evidentiary burden of proof at trial, there

is no genuine issue of material fact and summary judgment is appropriate.”

Bankers Ins. Co., 2024-0386, p. 15, ___ So.3d at ___, 2024 WL 5116650, at *7

(alterations in original) (quoting Haynes, 2023-0678, p. 15, 399 So.3d at 639).

When an appellate court reviews a trial court’s ruling on a motion for

summary judgment, the appellate court reviews the matter de novo, using “the

same criteria that govern the trial court’s determination of whether summary

judgment is appropriate.” Bankers Ins. Co., 2024-0386, p. 16, ___ So.3d at ___,

2024 WL 5116650, at *7 (quoting Haynes, 2023-0678, p. 16, 399 So.3d at 639).

To determine whether summary judgment was appropriate, the “appellate court[]

ask[s] the same questions the trial court does,” specifically “whether there is any

genuine issue of material fact, and whether the mover is entitled to judgment as a

matter of law.” Id. (alterations in original). With these principles in mind, we now

turn our discussion to resolution of the four issues outlined previously.

1) Whether, as Argued by Admiral in Its Motion for Summary Judgment, the
Agreement between Ports America and Admiral Did Not Entitle Ports
America to Defense and Indemnification for Its Own Negligence

As stated before, in its Motion for Summary Judgment, Admiral sought a

ruling that Ports America was not entitled to defense and indemnity for Ports

America’s own negligence. That is, Admiral argued the indemnity provision in its

contract with Ports America did not contain language unequivocally reflecting an

intention that Admiral would defend and indemnify Ports America for damages

caused by Ports America’s own negligence and sought summary judgment

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“recognizing this contractual reality.” In its reply brief to this Court, Ports America

clarifies that it was not and “is not requesting any indemnity for [its] own assigned

negligence/the negligence of [its] employee,” Mr. Briggs. In fact, as previously

summarized, in its Motion for Summary Judgment, Admiral acknowledged that

Ports America’s Third-Party Demands did “not clearly state[]” that Ports America

was seeking indemnification and defense for its own negligence. Thus, before

determining whether the trial court correctly granted Admiral’s Motion for

Summary Judgment and dismissed Ports America’s Third-Party Demands, we first

consider if the agreement between Ports America and Admiral reflected that

Admiral would defend and indemnify Ports America for its own negligence.

Preliminarily, as this Court recently held, “An indemnity agreement is a

specialized form of contract.” Riggio v. Ports Am. La., L.L.C., 2024-0436, p. 10

(La. App. 4 Cir. 12/5/24), ___ So.3d ___, ___, 2024 WL 4986530, at *4 (citing

Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La. 1987)). Specifically, it constitutes

“a contract wherein a party (the indemnitor) agrees to protect another (the

indemnitee) against damages incurred by the latter as a result of his breach of a

duty owed to a third party.” Id. at p. 11, ___ So.3d at ___, 2024 WL 4986530, at *4

(citing Bennett v. DEMCO Energy Servs., LLC, 2023-01358, pp. 3-4 (La. 5/10/24),

386 So.3d 270, 273). The concept of indemnity stems from “the general obligation

to repair the damage caused by one’s fault under La. C.C. art. 2315.[4]” Id. (citing

Bennett, 2023-01358, p. 3, 386 So.3d at 273). Because an indemnity agreement

constitutes a specialized form of contract, it is subject to the interpretation

principles applicable to contracts. Akers v. Columns Hotel, Inc., 2016-0870, p. 5

4 Louisiana Civil Code Article 2315(A) states, “Every act whatever of man that causes

damage to another obliges him by whose fault it happened to repair it.”

15

(La. App. 4 Cir. 5/10/17), 220 So.3d 138, 142 (quoting Yocum v. City of Minden,

566 So.2d 1082, 1086 (La. App. 2nd Cir. 1990)). One such interpretation principle

is that “[i]nterpretation of a contract is the determination of the common intent of

the parties.” La. C.C. art. 2045. Another interpretation principle is established in

La. C.C. art. 2046, which states, “When the words of a contract are clear and

explicit and lead to no absurd consequences, no further interpretation may be made

in search of the parties’ intent.” Yet another interpretation principle is that “a

contract [is] subject to interpretation on the four corners of the instrument without

the necessity of extrinsic evidence” and “is interpreted as a matter of law.” Fertitta

v. Regions Bank, 2020-0300, p. 10 (La. App. 4 Cir. 12/9/20), 311 So.3d 445, 452

(quoting New Orleans Jazz & Heritage Found., Inc. v. Kirksey, 2009-1433, p. 9

(La. App. 4 Cir. 5/26/10), 40 So.3d 394, 401). Only if a court has examined the

four corners of the contract and determined the contract is ambiguous will the court

construe the contract “according to the intent of the parties, which is to be inferred

from all of the surrounding circumstances.” Id. at p. 11, 311 So.3d at 453 (quoting

Kirksey, 2009-1433, p. 10, 40 So.3d at 401-02).

Turning to interpretation of indemnity agreements specifically, this Court

has explained, “It is well settled in Louisiana jurisprudence that a contractual

indemnity agreement will not be construed to require the indemnitor to indemnify

the indemnitee for the indemnitee’s own negligence.” Morella v. Bd. of Comm’rs

of Port of New Orleans, 2004-0312, p. 12 (La. App. 4 Cir. 10/27/04), 888 So.2d

321, 327. Rather, an indemnity agreement is only construed to indemnify an

indemnitee against losses resulting to him through his own negligent act if that

intention was expressed in unequivocal terms. Id. (quoting Polozola v. Garlock,

Inc., 343 So.2d 1000, 1003 (La. 1977)). For example, in Polozola, the subject

16

“agreement state[d] that National Maintenance will indemnify Dow, its agents,

servants or employees against claims made by National Maintenance or its

subcontractors, agents, servants or employees because of injury ‘whether caused

by Dow’s negligence or otherwise.’” 343 So.2d at 1002 (emphasis added). The

Louisiana Supreme Court held this language established the agreement required

National Maintenance to indemnify Dow employees against losses resulting to

them through their own negligence. Id., 343 So.2d at 1003.

In the matter sub judice there is nothing in the indemnity provision that

unequivocally states that Ports America will be indemnified for its own negligence.

The subject indemnification agreement stated Admiral agreed to defend,

indemnify, and hold Ports America harmless from and against any claims, demand,

damages, loss, and expense, action, suit, or legal proceeding arising out of or

relating to the negligence, misconduct, or other fault of Admiral in performance of

the agreement between Admiral and Ports America. After construing the instant

indemnity agreement in accordance with the above-stated rule, we find it did not

constitute an agreement by which Admiral would indemnify Ports America against

losses resulting from Ports America’s own negligence because the indemnification

provision contained no unequivocal intention to that effect. Rather, it constituted

an agreement by which Admiral would indemnify Ports America against losses

resulting from Admiral’s own negligence.

2) Whether, Despite the Lack of Such Unequivocal Language, Summary
Judgment and Dismissal of Ports America’s Third-Party Demands Were
Appropriate

As previously stated, the trial court not only granted Admiral’s Motion for

Summary Judgment but did so on the basis asserted in Admiral’s Motion and

further found that dismissal of Ports America’s Third-Party Demands against

17

Admiral was also warranted. We must next consider whether, despite the lack of

such unequivocal language, summary judgment and dismissal of Ports America’s

Third-Party Demands were appropriate actions for the trial court to take.

In Morella, this Court explained that when an indemnitee’s “negligence or

lack thereof has not yet been determined, any obligations that [the indemnitor] has

. . . to indemnify and defend . . . have not yet arisen,” such that the indemnitee’s

claims for indemnification and defense are premature. 2004-0312, p. 14, 888 So.2d

at 328. However, in Bennett, the Louisiana Supreme Court emphasized that “the

distinction between the right to make a claim for indemnity and the right to collect

indemnity” is important “for purposes of judicial economy” in terms of disposing

of all phases of an action in a single proceeding. 2023-01358, p. 8 (La. 5/10/25),

386 So.3d 270, 276. As the Louisiana Supreme Court further explained:

In other words, asserting a claim for indemnity, arising out of
the same facts and circumstances, is not premature before a judicial
finding of liability. The right to collect on an indemnity agreement is
determined upon judgment or finding of liability or loss, but there is
no prohibition on asserting a claim for indemnity in the same
proceeding. Again, to require a party to file a separate indemnification
action after a finding of liability runs afoul of our well-established
principles of judicial efficiency.

Id. at pp. 8-9, 386 So.3d at 276 (footnotes omitted). In terms of judicial efficiency,

“the purpose of the impleader procedure . . . is to ‘avoid multiple lawsuits; to

facilitate and expedite the trial of litigation; and, wherever possible, consistent with

the orderly procedure and due regard for the rights of all litigants, to dispose of all

three phases of an action in a single proceeding.’” Conrad Shipyard, L.L.C. v.

Franco Marine 1 LLC, 431 F.Supp.3d 839, 848 (U.S. E.D. La. 2020) (quoting

Breaux v. Texas & Pac. Ry. Co., 147 So.2d 693, 698 (La. App. 1st Cir. 1962)). In

support of this holding, the Louisiana Supreme Court further noted in Bennett that

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“La. C.C.P. arts. 1111 - 1116 . . . state, as a general matter, that a third[-]party

demand is not premature when asserted before a finding of liability.” Id. at p. 6,

386 So.3d at 274 (citing Moreno v. Entergy Corp., 2010-2281, p. 5 (La. 2/18/11),

62 So.3d 704, 708 (Victory, J., concurring)). In fact, the Louisiana Supreme Court

observed La. C.C.P. art. 1113 “provides ‘harsh consequences for a defendant who

fails to bring in such a third[-]party defendant.’” Id. at p. 6, 386 So.3d at 275. It

states, in pertinent part:

A defendant who does not bring in as a third[-]party defendant
a person who is liable to him for all or part of the principal demand
does not on that account lose his right or cause of action against such
person, unless the latter proves that he had means of defeating the
action which were not used, because the defendant either failed to
bring him in as a third[-]party defendant, or neglected to apprise him
that the suit had been brought.

La. C.C.P. art. 1113.

Discussing a defendant’s ability to bring in a third person, La. C.C.P. art.

1111 provides that “[t]he defendant in a principal action by petition may bring in

any person, including a codefendant, who is his warrantor, or who is or may be

liable to him for all or part of the principal demand.” As this Court has previously

explained, “A third[-]party demand is a device principally used for making claims

of contribution or indemnity in the event the defendant loses on the principal

demand.” Herman v. Tracage Dev., L.L.C., 2016-0082, 0083, p. 7 (La. App. 4 Cir.

9/21/16), 201 So.3d 935, 941 (citing Union Serv. & Maint. Co. v. Powell, 393

So.2d 94, 95 (La. 1980)). If a third-party demand fails to “allege facts indicating

that the third[-]party defendant is either a warrantor of the third[-]party plaintiff, or

is liable for all or part of the principal demand, the third[-]party demand fails to

state a cause of action.” Id. at pp. 7-8, 201 So.3d at 941 (first citing Boyer v. Trinity

Universal Ins. Co. of Kan., Inc., 576 So.2d 444, 446 (La. 1991); then citing Powell,

19

393 So.2d at 95-96; and then citing Karam v. St. Paul Fire & Marine Ins. Co., 281

So.2d 728, 732 (La. 1973)). Such was not the case here.

In its Third-Party Demands, Ports America explained that the plaintiff in the

subject suit, Mr. Anderson, was an employee of Admiral and that there had not yet

been a determination of fault for the accident, including of Mr. Anderson’s

potential fault. Ports America further pointed to the indemnification provision in

the agreement between it and Admiral by which Admiral agreed to defend,

indemnify, and hold Ports America harmless from and against any claims, demand,

damages, loss, and expense, action, suit, or legal proceeding arising out of or

relating to the negligence, misconduct, or other fault of Admiral or its employees

in performance of the agreement between Admiral and Ports America. Thus, as

Ports America correctly explained in its Third-Party Demands, “in the event Mr.

Anderson was found to be at fault for the subject accident, then Ports America was

entitled to defense, indemnification, hold harmless, costs and attorney’s fees from”

Admiral to that degree of fault. (Emphasis added.) In its Third-Party Demands,

Ports America established that Admiral was its warrantor for any fault attributable

to Mr. Anderson thereby stating a cause of action against Admiral. Via its Third-

Party Demands, Ports America sought to bring Admiral into Mr. Anderson’s

lawsuit and requested defense and indemnification per the indemnity agreement

between them.

Based on Morella and Bennett, Ports America had a right to claim indemnity

and defense at that time but not the right to collect indemnity and defense costs

from Admiral because there had not yet been an allocation of fault to establish the

percentage of indemnification and defense for which Admiral might be

responsible, i.e., any fault attributed to its employee, Mr. Anderson. Because Ports

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America stated a cause of action against Admiral in its Third-Party Demands, to

grant Admiral’s Motion for Summary Judgment and dismiss Ports America’s

defense and indemnity claim prior to the liability determination, as the trial court

did, was procedurally improper and runs afoul of principles of judicial efficiency.

By doing so, the trial court effectively dismissed the indemnity provision in its

entirety and failed to consider the defense and indemnification potentially owed to

Ports America for any fault that could ultimately be assigned to Mr. Anderson. The

trial court should have deferred its determination of the import of the indemnity

provision between Admiral and Ports America until after the jury made its liability

determination in April 2023. See Suire v. Lafayette City-Par. Consol. Gov., 2004-

1459, 1460, 1466, pp. 17-18 (La. 4/12/05), 907 So.2d 37, 51 (holding the

Louisiana Third Circuit Court of appeal erred in finding “a duty to defend, or pay

for defense costs, under the terms of the contractual indemnity provision” because

the “lawsuit [was] still pending, and no determination of liability ha[d] been

made,” such that the claim for defense and indemnity needed to be “defer[red] . . .

until the lawsuit . . . concluded and liability [was] determined”). Cf. Bollinger

Marine Fabricators, LLC v. Marine Travelift, Inc., 2015 WL 4937839, at *4 (E.D.

La. 2015) (holding the plaintiff’s claim for fees and expenses was not premature

because “there [was] no dispute that the underlying lawsuit . . . concluded and that

[the plaintiff] . . . incurred defense costs” during it).

Thus, we conclude the trial court erred by prematurely granting Admiral’s

Motion for Summary Judgment and dismissing Ports America’s claims in its

Third-Party Demands simply based on the finding that Ports America was not

entitled to defense and indemnification for its own negligence. Because Ports

America had a right to claim defense and indemnification based on the indemnity

21

provision and delineated a claim for same in its Third-Party Demands, the trial

court should have denied Admiral’s Motion for Summary Judgment insofar as

Admiral sought complete dismissal of Ports America’s claims against it.

Accordingly, we reverse the trial court’s March 21, 2023 judgment, which granted

Admiral’s Motion for Summary Judgment and dismissed Ports America’s Third-

Party Demands with prejudice. We render judgment denying Admiral’s Motion for

Summary Judgment and maintaining Ports America’s Third-Party Demands.

3) Whether Admiral Should Have Been Included on the Jury Verdict Form

As stated previously, in 2023-CA-0814 Mr. Anderson assigns error to

actions that occurred during the jury trial of this matter, which took place in April

2023 after the trial court dismissed Ports America’s Third-Party Demands against

Admiral. We next consider the second assignment of error Mr. Anderson asserted

in 2023-CA-0814, wherein he contends that Admiral should not have been

included on the jury verdict form. We do so after recognizing that resolution of this

assignment of error may be dispositive of the remaining assignments of error in

2023-CA-0814 and 2024-CA-0808. In this assignment of error, Mr. Anderson

explains that the trial court permitted Ports America and Mr. Briggs to offer

evidence to the jury in connection with a proposed affirmative defense to the effect

that Admiral had improperly or negligently trained Mr. Anderson in the operation

of the bus he drove at the time of the subject accident. However, as explained by

Mr. Anderson, Ports America and Mr. Briggs failed to specifically plead this as an

affirmative defense, such that Ports America and Mr. Briggs should not have been

allowed to present this evidence to the jury and Admiral should not have been

included on the jury verdict form. As argued by Mr. Anderson, “[t]he inclusion of

Admiral . . . on the verdict form, based on an unpled affirmative defense that was

22

raised for the first time via e-mail days before trial, which was improper, . . . led to

a compromised and tainted verdict.”

Before discussing the merits of Mr. Anderson’s argument, we begin with the

standard of review applicable to this assignment of error. As this Court has

previously explained, an appellate court applies the manifest error-abuse of

discretion standard of review when considering a trial court’s jury verdict form.

Danna v. Ritz-Carlton Hotel Co., 2020-0116, 0187, 0318, p. 22 (La. App. 4 Cir.

3/24/21), 365 So.3d 679, 696 (citing Young v. Logue, 1994-0585, p. 23 (La. App. 4

Cir. 5/16/95), 660 So.2d 32, 48). If a jury verdict form is misleading or confusing,

then this may constitute reversible error. Id. (citing McMillion Dozer Service, Inc.,

93-590 at p. 2, 639 So.2d at 768). An appellate court should set aside a jury verdict

form if it was “so inadequate or incorrect as to preclude the jury from reaching a

verdict based on the law and the facts.” Id. at p. 23, 365 So.3d at 696-97 (quoting

Young, 1994-0585, p. 23, 660 So.2d at 48). With this standard of review in mind,

we agree with Mr. Anderson that Admiral should not have been included on the

jury verdict form: we find Admiral’s inclusion was erroneous and constituted

reversible error for two reasons.

First, in terms of fault allocation, the general rule is that the trier of fact must

consider the fault of all persons and apportion fault accordingly. That is, La. C.C.P.

art. 1812 is titled “Special verdicts.” It provides, in pertinent part:

C. In cases to recover damages for injury, death, or loss, the
court at the request of any party shall submit to the jury special
written questions inquiring as to:

(1) Whether a party from whom damages are claimed, or the
person for whom such party is legally responsible, was at fault, and,
if so:

23

(a) Whether such fault was a legal cause of the damages, and,
if so:

(b) The degree of such fault, expressed in percentage.

(2)(a) If appropriate under the facts adduced at trial, whether
another party or nonparty, other than the person suffering injury,
death, or loss, was at fault, and, if so:

(i) Whether such fault was a legal cause of the damages, and, if
so:

(ii) The degree of such fault, expressed in percentage.

(b) For purposes of this Paragraph, nonparty means a person
alleged by any party to be at fault, including but not limited to:

(i) A person who has obtained a release from liability from the
person suffering injury, death, or loss.

(ii) A person who exists but whose identity is unknown.

(iii) A person who may be immune from suit because of
immunity granted by statute.

La. C.C.P. art. 1812(C). However, the more specific rule is that the fault of one

dismissed via summary judgment is not to be considered by the trier of fact and no

fault may be assigned to one dismissed via summary judgment:

When the court renders judgment in accordance with the provisions of
[La. C.C.P. art. 966] that a party or nonparty is not negligent, is not at
fault, or did not cause in whole or in part the injury or harm alleged,
that party or nonparty shall not be considered in any subsequent
allocation of fault. Evidence shall not be admitted at trial to establish
the fault of that party or nonparty, except that evidence may be
admitted to establish the fault of a principal when the party or
nonparty acted pursuant to a mandate or procuration. During the
course of the trial, no party or person shall refer directly or indirectly
to any such fault, nor shall that party or nonparty’s fault be submitted
to the jury or included on the jury verdict form except where evidence
is admitted of the acts of the party or nonparty for purposes of
establishing the fault of the party or nonparty’s principal. This
Paragraph does not apply if the trial or appellate court’s judgment
rendered in accordance with [La. C.C.P. art. 966] is reversed. If the
judgment is reversed by an appellate court, the reversal is applicable
to all parties.

24

La. C.C.P. art. 966(G).

As the Louisiana Supreme Court has explained, when statutes conflict, “the

statute specifically directed to the matter at issue must prevail as an exception to

the statute more general in character.” LeBreton v. Rabito, 1997-2221, p. 7 (La.

7/8/98), 714 So.2d 1226, 1229. In this instance, the provisions of the more specific

statute directed at the matter, La. C.C.P. art. 966(G), should have prevailed over

the provisions of the more general provision, La. C.C.P. art. 1812. As such, in

granting Admiral’s Motion for Summary Judgment and dismissing Ports

America’s Third-Party Demands with prejudice, the trial court should not have

included Admiral on the jury verdict form because doing so contravened La.

C.C.P. art. 966(G). See Amedee v. Aimbridge Hosp. L.L.C., 2021-01906, p. 20 (La.

10/21/22), 351 So.3d 321, 334-335 (holding that, although the fault of all parties is

to be quantified, the trier of fact is not to consider the fault of a party dismissed

from a suit on a summary judgment pursuant to La. C.C.P. art. 966(G)).

Second, even if the trial court had correctly denied Admiral’s Motion for

Summary Judgment and maintained Ports America’s Third-Party Demands (as we

have done in this Opinion), the trial court nonetheless should not have included

Admiral on the jury verdict form. As quoted above, La. C.C.P. art 1812(C)(2)(a)

provides for a party or nonparty to be on the jury verdict form when there is a need

for an allocation of fault. The article defines nonparty as “a person alleged by any

party to be at fault.” La. C.C.P. art. 1812(C)(2)(b) (emphasis added). A defendant

can assert the fault of another via an affirmative defense. Louisiana Code of Civil

Procedure Article 1005 provides that a defendant’s “answer shall set forth

affirmatively negligence, or fault of the plaintiff and others.” A court may consider

an incidental demand containing an affirmative defense, such as a third-party

25

demand, as an affirmative defense even if a party has improperly designated the

pleading. La. C.C.P. art. 1005. In discussing La. C.C.P. art. 1005, this Court has

noted the policy underlying the article is to give a plaintiff fair notice of, and an

opportunity to prepare an opposition to, a defense and prevent trial by ambush.

Harvey v. Hamby, 2023-0084, p. 19 (La. App. 4 Cir. 10/4/23), 376 So.3d 225, 240.

The Supreme Court has long indicated, “The failure to set forth affirmative

defenses waives those defenses and bars the introduction of evidence offered in

connection with an affirmative defense.” Amedee, p.17, 351 So.3d at 333 (citing

Davis v. Nola Home Constr., L.L.C., 2016-1274, p. 9 (La. App. 4 Cir. 6/14/17),

222 So.3d 833, 841).

In the matter sub judice, none of Ports America’s relevant pleadings—its

Answer and Third-Party Demands—assert fault on the part of Admiral. Ports

America’s Answer alleged, in part, that the accident resulted from Mr. Anderson in

creating a sudden emergency, failing to maintain control, driving in a careless

manner, failing to keep a proper lookout, failing to see what he should have seen,

and failing to yield. However, none of these allegations speak to a deficiency in

Mr. Anderson’s training so as to have sufficiently informed him of the affirmative

defense of fault of another, i.e., Admiral. Ports America brought Admiral into the

case via its Third-Party Demands, which solely asserted a contractual claim for

indemnity. Ports America’s Third-Party Demands did not assert any fault on the

part of Admiral whether in training Mr. Anderson or otherwise. The trial court

committed manifest error and abused its discretion in including Admiral on the

jury verdict form.

We must next consider how to proceed in light of our conclusion that the

trial court erred in permitting Ports America and Mr. Briggs to introduce evidence

26

of Admiral’s alleged fault and in including Admiral on the jury verdict form. In

particular, the first and second interrogatories asked the jury to determine whether

Mr. Briggs and Mr. Anderson, respectively, were at fault for the subject accident.

The jury answered affirmatively to both. Then, the third interrogatory instructed

the jurors to assign fault to Mr. Briggs, Mr. Anderson, and Admiral. The jury

assigned 15% fault to Mr. Briggs, 45% fault to Mr. Anderson, and 40% fault to

Admiral. Thus, the jury assigned a percentage of fault to Admiral despite not first

finding that Admiral was actually at fault for the accident. Likewise, the trial court

then signed the May 8, 2023 judgment which allocated 15% fault to Mr. Briggs,

45% fault to Mr. Anderson, and 40% fault to Admiral even though the jury had not

delineated that Admiral was at fault for the accident. Because the jury only

affirmatively found that Mr. Briggs and Mr. Anderson were at fault for the

accident, “[i]t is evident that the [trial] court’s judgment could not and does not

adequately comport with the conclusions that the jury reached” because it allocated

fault to Admiral without the jury concluding that Admiral was at fault for the

accident. C.D.W. Servs, LLC v. New Bridge Partners, LLC, 2024-0081, p. 6 (La.

App. 4 Cir. 11/12/24), ___ So.3d ___, ___, 2024 WL 5086306, at *3. We vacate

the trial court’s May 8, 2023 judgment, and we remand this matter for a new trial.

See id., 2024-0081, pp. 6-7, ___ So.3d at ___, 2024 WL 5086306, at *3 (vacating

and remanding for a new trial after finding the jury’s answers to the interrogatories

“led to no clear result” as to what the jury intended).

Whether to Consider the Remaining Assignments of Error

Finally, we must determine whether to consider the remaining assignments

of error asserted by the parties. In 2024-CA-0808, the remaining assignments of

error asserted by Ports America and Mr. Briggs are numbers two and four. Therein,

27

Ports America and Mr. Briggs contend the trial court erred in its application of La.

C.C.P. art. 966(F) and La. C.C.P. art. 966(D)(1), respectively, in granting

Admiral’s Motion for Summary Judgment and dismissing Ports America’s Third-

Party Demands. In 2023-CA-0814, we have not yet addressed five of Mr.

Anderson’s assignments of error regarding the jury trial.5

“It is well settled that courts will not decide abstract, hypothetical, or moot

controversies, or render advisory opinions with respect to controversies.” Firestone

Polymers, L.L.C. v. La. Dep’t of Env’t Quality, 2019-0308, p. 9 (La. App. 1 Cir.

5/28/20), 304 So.3d 1056, 1063 (citing Joseph v. Ratcliff, 2010-1342, p. 7 (La.

App. 1 Cir. 3/25/11), 63 So.3d 220, 225). When an appellate court “remand[s] for a

new trial, without any limitations of issues being specified,” then this “is . . . held

to vacate completely the judgment of the lower court and open the whole case up

for a new trial as to all issues.” Zuelke v. Cambre, 97 So.2d 442, 443 (La. App. 1st

Cir. 1957) (citation omitted).

As we are remanding the matter sub judice for a new trial, without any

limitation on the issues, we have also vacated completely the trial court’s May 8,

2023 judgment and opened the whole case up for a new trial as to all issues. See

Zuelke, 97 So.2d at 443 (citation omitted). Since we have determined that this

matter must be remanded for a new trial, the remaining assignments of error raised

in 2023-CA-0814, which pertain to the prior trial, are all irrelevant now. Likewise,

because we have already rendered judgment denying Admiral’s Motion for

5 The assignments of error from 2023-CA-0814 that we have not yet addressed are Mr.

Anderson’s first, third, fourth, fifth, and sixth assignments of error: 1) the jury was not properly
charged about Louisiana law as to the legal presumptions regarding left-turning vehicles; 3) Mr.
Anderson was erroneously denied a Housley jury instruction; 4) the corporate representative for
Ports America should not have been permitted to give expert testimony; 5) Mr. Briggs should not
have been allowed to testify about his personal life; and 6) Mr. Anderson’s treating physician
should have been allowed to give testimony regarding the reasonable cost of the medical
treatment that Mr. Anderson underwent.

28

Summary Judgment and maintaining Ports America’s Third-Party Demands, it is

of no utility for us to determine whether the trial court erred in its application of

La. C.C.P. art. 966, which are the remaining assignments of error asserted in 2024-

CA-0808. Accordingly, we pretermit discussion of assignments of error numbers

two and four in 2024-CA-0808 and assignments of error numbers one, three, four,

five, and six in 2023-CA-0814.

DECREE

For the foregoing reasons, we reverse the trial court’s March 21, 2023

judgment, which granted Admiral’s Motion for Summary Judgment and dismissed

Ports America’s Third-Party Demands against Admiral with prejudice. We render

judgment denying Admiral’s Motion for Summary Judgment and maintaining

Ports America’s Third-Party Demands. Finding that the trial court erred in

including Admiral on the jury verdict form and that we are unable to determine

how the jury would have allocated fault without Admiral on the form, we vacate

the trial court’s May 8, 2023 judgment, rendered in accordance with the jury’s

verdict, and we remand this matter for a new trial.

JUDGMENT REVERSED AND RENDERED; JUDGMENT VACATED;
REMANDED WITH INSTRUCTIONS

29