Daniel Bennett v. Demco Energy Services, Llc, Federated Rural Electric Insurance Exchange, Cox

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #022
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 10th day of May, 2024 are as follows:
BY Crichton, J.:
2023-CC-01358 DANIEL BENNETT VS. DEMCO ENERGY SERVICES, LLC, FEDERATED
RURAL ELECTRIC INSURANCE EXCHANGE, COX
COMMUNICATIONS, INC., COX COMMUNICATIONS LOUISIANA, LLC
INC. EastAND CABLE MAN, (Parish of Baton Rouge)
REVERSED AND REMANDED. SEE OPINION.

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S
UPREME COURT OF LOUISIANA
No.
2023-CC-01358
D
ANIEL BENNETT VS. DEMCO ENERGY SERVICES, LLC,
FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, COX
COMMUNICATIONS, INC., COX COMMUNICATIONS LOUISIANA,
LLC AND CABLE MAN, INC.
On W
rit of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton
Rouge
CR
ICHTON, J.
We granted the writ application in this matter to determine whether a cross
claim for indemnity and defense asserted before a judicial finding of liability or loss
is premature. For the reasons that follow, we find such a claim is not premature. We
therefore reverse the court of appeal’s ruling, reinstate the trial court’s judgment
denying the defendant Cable Man’s Exception of Prematurity and remand the matter
for further proceedings.
FACTS AND PROCEDURAL HISTORY
On June 22, 2022, plaintiff Daniel Bennett was traveling between 60 a nd 65
miles per hour on Samuels Road in Baton Rouge when he drove over a downed
telecommunications line belonging to defendant Cox Communications of Louisiana
(“Cox”). The line became caught underneath his vehicle, causing his vehicle to stop
abruptly. As a result, plaintiff alleges he suffered bodily injuries to his spine,
shoulder, and lower back. Plaintiff thereafter filed this suit, naming several
defendants, including Cox and Cable Man, Inc., (“Cable Man”).
1 Cable Man is a
company that provides contracting services, including maintenance and repair, for
telecommunications and broadband companies and was hired by Cox to perform
1 The other defendants named in the suit, not parties here, were Demco Energy Services, LLC,
Federated Rural Electric Insurance Exchange, and Cox Communications, Inc.

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maintenance on the subject line. Plaintiff’s petition alleges, inter alia, that Cable
Man and Cox and their respective employees were negligent in hanging, repairing,
and/or securing the line, and in their failure to train, monitor and supervise their
employees.
In response to the petition, Cox sent Cable Man notice of its indemnification
agreement under the Master Construction Agreement (“the Agreement”)
2 between
Cox and Cable Man , which requires Cable Man (in connection with the work
assigned by Cox to Cable Man) to:
[i]ndemnify, hold harmless, release and defend Cox . . . from and
against any and all claims, demands, suits, actions, damages,
judgments, settlements, losses, costs (including attorney’s fees, expert
costs, court costs and all other litigation expenses), expenses and/or
liabilities of every kind of character, in any way arising from or related
to, in any way whatsoever to Contractor’s or Contractor’s Personnel
performance or failure of performance of any Work or its obligations
under this Agreement or any Work Order, including without limitation,
(a) damage to property or for injuries or death of . . . any third parties .
. .

According to the petition, Cable Man refused the tender.
3
Cox then filed a cross claim against Cable Man, asserting that pursuant to the
terms of the Agreement, Cable Man is required to indemnify, hold harmless, release
and defend Cox from all claims brought against it by plaintiff in this matter. 4 Cox
also alleged the Agreement obligates Cable Man to indemnify Cox from damages
including, but not limited to, attorney’s fees, expert costs, court costs, damages,
judgments, settlements, losses and “all other litigation expenses.”

2 The Master Construction Agreement is not in the record before this Court. Although portions of
the agreement are set forth in the writ application, opposition, and the parties’ briefs, neither party
offered it into evidence and it is not attached to any pleading. This is a fundamental oversight and
poor trial practice. However, because no party disputes either the specific language of the relevant
provisions of the agreement or argued that any other provision that is not excerpted in the
submissions is relevant to this dispute, in the interest of judicial efficiency, we decide this matter
without a proper record.

3 At oral argument of this matter, Cox indicated that the indemnification dispute essentially began
when it “sent Cable Man a bill,” although this is also not in the record.

4 In its cross claim, Cox also asserted a third party demand against Phoenix Insurance Company,
who provided an insurance policy for Cable Man. This third party demand is not at issue here.

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In response, Cable Man filed an Exception of Prematurity, arguing that
without a finding of liability or a judgment, the claim for indemnity has not accrued
and is therefore premature. Following a hearing, the trial court denied the exception
and adopted Cox’s memorandum in opposition to the Exception of Prematurity as
its reasons for judgment.
Cable Man sought supervisory writs with the Court of Appeal, First Circuit.
The court of appeal granted Cable Man’s writ application and reversed the trial court
ruling, finding Cox’s claim for indemnity to be premature:
. . . [I]t is well-established that claims for indemnity, as well as claims
for defense arising under an indemnity agreement, are premature prior
to a determination that damages are actually owed and the indemnitee
sustains a loss. See Willis v. Frozen Water, Inc. , 2015-0900 (La. App.
1st Cir. 12/23/15), 2015 WL 9466625, *3-4 (unpublished), writ denied,
2016-0146 (La. 3/14/16), 189 So.3d 1069 (citing Suire v. Lafayette
City-Parish Consolidated Government, 2004-1459 (La. 4/12/05), 907
So.2d 37, 51). At this time, the lawsuit is still pending against both Cox
and Cable Man, and no determination of liability had been made; thus,
there is no obligation for indemnity and defense costs. See Willis, 2015
WL 9466625 at *4. Stated differently, indemnity (or reimbursement) is
not available at this time because Cox has not discharged a liability
which Cable Man should have assumed or otherwise suffered any loss
or damages. See Id.

Bennett v. DEMCO Energy Services, LLC, et al. , 23 -581 (9/11/23) 2023 WL
5843557 (unpub’d).
This Court thereafter granted defendant Cox’s writ application. Bennett v.
Demco, 23-1358 (La. 1/17/24), 376 So. 3d 839.
LAW AND ANALYSIS
The rule of indemnity is based upon the general obligation to repair the
damage caused by one’s fault under La. C.C. art. 2315. Nassif v. Sunrise Homes,
Inc., 98-3193 (La. 6/29/99), 739 So. 2d 183, quoting Bewley Furniture Co., Inc. v.
Maryland Cas. Co., 285 So. 2d 216, 219 (1973). An indemnity agreement is 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

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third party. Ronald J. Scalise, Law of Obligations, 6 La. Civ. L. Treatise § 11.27
(2d. ed. 2023).5 Unless there is a special provision of law to the contrary, indemnity
agreements are valid and are not against the public order. A claim for indemnity is
ordinarily brought through a third party demand,6 although can be raised, as in this
matter, through a cross-claim pursuant to La. C.C.P. art. 1071.7
As s tated above, th e Agreement between Cox and Cable Man contains an
indemnity provision which sets forth an obligation assumed by Cable Man in
connection with the work assigned by Cox, in which Cable Man contractually agreed
it will indemnify, hold harmless, release and defend Cox and its related companies
from “any and all claims, demands, suits, actions. . . .” related to Cable Man’s
“performance or failure of performance of any Work or its obligations under this
Agreement. . .” While the merits of Cox’s indemnity claim are not before us, we
must determine whether that claim is premature before a legal finding of liability.
We hold that a claim for indemnity raised during the pendency of the litigation
and before a finding of liability is not premature. Not only does our finding comport
with principles of judicial economy and efficiency, the relevant Code of Civil
Procedure articles pertaining to third party practice dictate this result. As discussed

5 This Court has also defined indemnity as “reimbursement, and may lie when one party discharges
a liability which another rightfully should have assumed.” Reggio v. E.T.I., et al., 07- 1433 (La.
12/12/08), 15 So. 3d 951 (citing Nassif, supra).

6 A third-party demand is generally brought via La. C.C.P. art. 1111 (“[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 princip al demand”), and “is a device principally
used for making claims of contribution or indemnity in the event that defendant is cast in judgment
on the principal demand.” Union Service & Maintenance Co., Inc. v. Powell, 393 So. 2d 94, 95
(La. 1980), citing Avegno v. Byrd, 377 So. 2d 268, 273 (La. 1979).

7 La. C.C.P. art. 1071 provides:

A party by petition may assert as a cross-claim a demand against a co-party arising
out of the transaction or occurrence that is the subject matter either of the original
action or a reconventional demand or relating to any property that is the subject
matter of the original action. The cross-claim may include a demand that the party
against whom it is asserted is or may be liable to the cross -claimant for all or part
of the demand asserted in the action against the cross-claimant.

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below, this Court has previously found that a claim for indemnity is premature before
a determination of judicial liability. However, in light of our ruling today, to the
extent any prior jurisprudence can be interpreted otherwise, we now clarify that such
a claim for indemnity is not prohibited before a liability adjudication.8
We find guidance in Justice Victory’s concurrence in Moreno v. Entergy
Corp., 10-2281 (La. 2/18/11), 62 So. 3d 704. In Moreno , the Court considered
whether the court of appeal erred in supplying its own “exception of no cause of
action based on prematurity” to a third-party cross claim for indemnity arising out
of injuries sustained when a worker came in contact with a power line, in which it
found that because there was no legal finding of fault, no cause of action for
indemnity had accrued. This Court did not directly address the timing of the claim
for indemnity, but instead found error in the court of appeal’s granting a sua sponte
court-supplied exception of prematurity. In his concurrence, Justice Victory
discussed the court of appeal’s finding of prematurity, but emphasized the primary
issue of “whether a third party indemnity claim is premature when the defendant has
not yet been cast in judgment.” Id., 10-2281, p. 5, 62 So. 3d at 708. Specifically,

8 Recognizing that our courts generally do not follow stare decisis, this Court has held that a “long
line of cases following the same reasoning within this state forms jurisprudence constante .”
Bergeron v. Richardson, M.D., 20- 1409, p. 7 (La. 6/30/21), 320 So. 3d 1109, 1114 (internal
citation omitted). Furthermore, “[u]nder the civilian tradition, while a single decision is not
binding on our courts, when a series of decisions form a “constant stream of uniform and
homogenous rulings having the same reasoning,” jurisprudence constante applies and operates
with “considerable persuasive authority.” Id. , citing James L. Dennis, Interpretation and
Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 15 (1993).
Finally, and most notably:

Because of the fact that “one of the fundamental rules of [the civil law tradition]
is that a tribunal is never bound by the decisions which it formerly rendered:
it can always change its mind,” 1 Marcel Planiol, Treatise on the Civil Law § 123,
(La. State Law Inst. trans. 1959) (12th ed.1939), prior holdings by this court are
persuasive, not authoritative, expressions of the law . [] Thus, it is only when
courts consistently recognize a long- standing rule of law outside of legislative
expression that the rule of law will become part of Louisiana’s custom under Civil
Code article 3 and be enforced as the law of the state. See La. Civ.Code art. 3.

Bergeron v. Richardson, 20-01409, p. 7 (La. 6/30/21), 320 So. 3d 1109, 1115 (emphasis added).
We do not find a line of cases sufficiently addressing this issue to demonstrate a jurisprudence
constante, and therefore are not compelled to follow prior decisions to the contrary.

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Justice Victory found error in the court of appeal’s conclusion that such a claim for
indemnity is premature, pointing to La. C.C.P. arts. 1111 - 1116, which state, as a
general matter, that a third party demand is not premature when asserted before a
finding of liability.9 Article 1111 provides that “a 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.”) (emphasis
supplied by Justice Victory). Articles 1112 and 1116 provide the same right to
defendants in reconvention and third party defendants. He noted that La. C.C.P. art.
1113, in particular, provides “harsh consequences for a defendant who fails to bring
in such a third party defendant”:
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 appraise him that the suit had been
brought.

Moreno, 10-2281, p. 5, 62 So. 3d at 708-09 (Victory, J., concurring).

We agree with this reasoning. Practical aspects of third-party practice dictate
that a claim for indemnity asserted before a finding of liability is not premature.
10

9 La. C.C.P. art. 1112 provides:

The defendant in reconvention likewise may bring in his warrantor, or any person
who is or may be liable to him for all or part of the reconventional demand, and the
rules provided in Articles 1111, and 1113 through 1115 shall apply equally to such
third party actions.

La. C.C.P. art. 1115 provides: “The third party defendant may assert against the plaintiff
in the principal action any defenses which the third party plaintiff has against the principal
demand.”

La. C.C.P. art. 1116 provides: “A third party defendant may proceed under Articles 1111
through 1115 against any person who is or may be liable to him for all or any part of the third party
demand.”

10 See also, Pizani v. St. Bernard Parish, 12- 1084 (La. App. 4 Cir. 9/26/13), 125 So. 3d 546 (the
court finding the case “squarely presents the unresolved issue raised by Justice Victory in his
concurrence in Moreno []” and concluding that Justice Victory’s position that a third party
indemnity claim is not premature is consistent with the legislative history and purpose of La.
C.C.P. art. 1111).

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In addition to the fact that none of the aforementioned articles require an adjudication
of liability before assertion of an incidental claim, the very purpose of these articles
is to promote judicial economy and efficiency. “Third party practice was adopted in
Louisiana with these purposes in mind: to avoid multiple lawsuits; to facilitate and
expedite the trial of litigation; and, wherever possible, consistent with orderly
procedure and due regard for the rights of all litigants, to dispose of all phases of an
action in a single proceeding.” Hon. Max Tobias, Jr., John M. Landis, and Gerald
Meunier, La. Practice Series, §10:69 (2023 ed). See also La. C.C.P. art. 1071 cmt.
(“The addition of the cross -claim serves the interest of judicial economy and
convenience as to the other incidental actions.”).11 The fact that the indemnity claim
in this matter arises out of a cross -claim rather than a third- party claim does not
change our analysis. The principles are the same: to avoid wasting judicial resources
on a “circuity of proceeding[s]” and to promote judicial economy, asserting a claim
for indemnity prior to a finding of liability is not premature. See Jeub v. B/G Foods,
Inc., et al., 2 F.R.D. 238 (D. Minn 1942).
T he court of appeal in this matter relies upon Suire v. Lafayette City -Parish
Consolidated Government, et al., 04-1459, 04-1460, 04-1466 (La. 4/12/05), 907 So.
2d 37, a case involving a cross claim for indemnification between defendants named
in a construction dispute. In Suire, this Court found that because no determination
of liability had been made, the claim for indemnity was not ripe for adjudication.
Notably, however, this Court did not dismiss the claim for indemnity based on
prematurity but deferred the claim until the lawsuit was concluded and liability was

11 In Smitherman, Lunn, Chastain & Hill v. Killingsworth, 561 So. 2d 816 (La. App. 2nd Cir. 1990),
the court noted that “[a] cross-claim, like an intervention, is an incidental demand which can be
asserted against a co-defendant where the demand arises out of the subject matter or relates to the
property that is the subject matter of the original action.” Id., citing La. C.C.P. arts 1031 and 1071.
Quoting the comment to La. C.C.P. art. 1071, the court explained that “[w]here such a demand is
properly institute d and cumulated in response to the principal demand, the trial court should
“resolve all claims by the parties in one proceeding . . .in the interest of judicial efficiency.”
[internal citation omitted].

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determined. 12 Furthermore, this Court in Suire did not distinguish between the right
to make a claim for indemnity and the right to collect indemnity. We find such a
distinction, for purposes of judicial economy, important.
In this regard, t hen-Associate Justice Weimer’s concurrence in Reggio v.
E.T.I., et al., 07-1433 (La. 12/12/08), 15 So. 3d 951 , is instructive. In Reggio, this
Court considered whether a third party claim for indemnity, filed three years after
the main demand was served, had prescribed. This Court held that prescription does
not commence on a claim for indemnity until a party has sustained a loss, either
through payment, settlement, or an enforceable judgment. Therefore, the indemnity
claim in Reggio had not prescribed because there had not yet been a “loss.” Justice
Weimer concurred, emphasizing the distinction between the righ t to “claim”
indemnity and the right to “collect” indemnity, explaining:
Generally, a person cannot exercise his right of action until the
corresponding cause of action accrues. However, a solidary obligor
may exercise his right of action for indemnity before the cause of action
accrues. LSA -C.C. art. 1805. Subrogation is the source of
indemnification, and ‘[s]ubrogation takes place by operation of law . .
. [i]n favor of an obligor who pays a debt he owes with others or for
others and who has recourse against those others as a result of the
payment.’ LSA-C.C. art. 1829(3); [internal citation omitted].

Id. at 960-61.

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

12 This Court answered a certified question in M eloy v. Conoco, Inc., 504 So. 2d 833 (La. 1987) ,
finding a cause of action for indemnification for cost of defense does not arise until the lawsuit is
concluded and defense costs are paid. However, it highlighted that it is the terms of the indemnity
agreement which governs the obligations of the parties , concluding that “the indemnitor’s
obligation for cost of defense cannot be determined until there has been a judicial finding that the
indemnitee is liable or that the charges against it were baseless.”). Id. at 839.

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same proceeding.13 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.14
CONCLUSION
For the reasons assigned herein, the court of appeal’s ruling is reversed and
the trial court’s ruling denying the Exception of Prematurity is reinstated. The matter
is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.

13 See also Burns v. McDermott, Inc., 95-0195 (La. App. 1st Cir. 11/9/95), 665 So. 2d 76, 79 (under
Meloy v. Conoco, Inc., 504 So. 2d 833, 839 (La. 1987), although indemnity claim cannot be
resolved until fault is determined, no prohibition exists from asserting the claim prior to fault
determination)).

14 Several federal courts have historically found the same. For example, in Jeub v. B/G Foods,
Inc., et al., 2 F.R.D. 238 (D. Minn 1942), the court considered the federal counterpart to our La.
C.C.P. art. 1111 (a “defendant in a principal action . . . may bring in any person . . . who is or may
be liable to him for all or part of the principal demand.”), Rule 14 of the Federal Rules of Civil
Procedure, to determine whether a third party demand made prior to a finding of loss is premature:

The apparent purpose of Rule 14 is to provide suitable machinery whereby the
rights of all parties may be determined in one proceeding. Manifestly, if Swift
and Company is liable over to B/G Foods, Inc., for any or all damages sustained by
reason of the tortious act alleged, no cogent reason is suggested why the original
defendant should not avail itself of this rule. Otherwise, B/G Foods, Inc., would be
required to await the outcome of the present suit, and then if plaintiffs recover, to
institute an independent action for contribution or indemnity. The rule under
consideration was promulgated to avoid this very circuity of proceeding.
Neither is any good reason suggested why the determination of the entire
controversy in one proceeding will prejudice the rights of any of the parties.

(emphasis added). See also Taylor Deggs, individually and o/b/o the minor children of Stephen
Deggs, deceased v. Aptim Maintenance, LLC, et al., 2021 WL 1206592 (M.D. La. 3/30/21) (the
court denying a Motion to Dismiss Third Party Demand for indemnity (asserted pursuant to a
Master Construction Agreement), “in the interest of efficiency,” deferring the determination of
indemnification obligations until after a liability determination), citing Borman v. Shamrock
Energy Sols., LLC, No. CV 17-11720, 2019 WL 670402, at *5 (E.D. La. Feb. 19, 2019) (denying
third party defendants’ Motion to Dismiss because the court could not determine the enforceability
of defendants’ defense and indemnity obligations at that time).