Kelly Marshall v. Southwest Louisiana Electric Membership Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-328

KELLY MARSHALL

VERSUS

SOUTHWEST LOUISIANA ELECTRIC
MEMBERSHIP CORP., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2002-4727
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

Thomas L. Gaudry, Jr.
Michael D. Peytavin
John E. Maher, Jr.
Gaudry, Ranson, Higgins & Gremillion, L.L.C.
401 Whitney Avenue, Suite 500
Gretna, LA 70056
(504) 362-2466
Counsel for Defendant/Appellee:
Valiant Insurance Company

Walter Kay Jamison III
Daigle, Scofield & Rivera
P. O. Box 3667
Lafayette, LA 70502-3667
(337) 234-7000
Counsel for Defendant/Appellee:
Cable Man, Inc.

William E. Scott III
Thomas H. Wartelle
Watson, Blanche, Wilson & Posner
P. O. Drawer 2995
Baton Rouge, LA 70821-2995
(225) 387-5511
Counsel for Defendant/Appellee:
Bituminous Casualty Corporation

Paul A. Tabary III
Randy S. Nunez
Dysart & Tabary, LLP
Three Courthouse Square
Chalmette, LA 70043
(504) 271-8011
Counsel for Plaintiff/Appellee:
Kelly Marshall

Matthew J. Ungarino
David I. Bordelon
Ungarino & Eckert, L.L.C.
1280 Lakeway Two
3850 N. Causeway Boulevard
Metairie, LA 70002
(504) 836-7531
Counsel for Defendants/Appellants:
Southwest Louisiana Electric Membership Corp.
Cox Communications, La., LLC
Telecable Associates, Inc.
St. Paul Fire & Marine Ins. Co.

Musa Rahman
Attorney at Law
P. O. Box 98001
Baton Rouge, LA 70898
(225) 231-0756
Counsel for Intervenor/Appellee:
Louisiana Workers' Comp. Corp.

Charles M. Jarrell
Guglielmo, Lopez & Tuttle, Hunter & Jarrell
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
Counsel for Defendant/Appellee:
System Services Broadband, Inc.

DECUIR, Judge.

At issue in this appeal is a third party demand for defense and indemnity

asserted by Telecable Associates, Inc. and Cox Communications, Inc. (hereinafter

referred to as “TCA/Cox”) against System Services Broadband, Inc. and its insurer,

Bituminous Insurance Company, and Cableman, Inc. and its insurer, Valiant

Insurance Company. Summary judgment was granted in favor of System Services

and denied as to TCA/Cox, and the claims of TCA/Cox as to all parties were

dismissed. TCA/Cox has appealed. For the following reasons, we affirm.

Kelly Marshall, the plaintiff in the main demand and an employee of Cableman,

filed suit against Southwest Louisiana Electric Membership Corporation

(“SLEMCO”) and its insurer for personal injuries resulting from an accident which

occurred on September 11, 2001. Marshall’s petition alleges he was injured when a

SLEMCO utility pole on which he was working fell to the ground, causing him

injuries and damages. The sole cause of the accident, the petition asserts, was the

negligence of SLEMCO.

In its answer, SLEMCO denied liability and alleged the sole cause of the

accident was the plaintiff’s negligence. SLEMCO also filed a third party demand

against TCA/Cox seeking contractual indemnity pursuant to a joint use agreement

between SLEMCO and TCA, the predecessor corporation to Cox. TCA/Cox accepted

its obligations to SLEMCO under the indemnity provision of the joint use agreement.

However, TCA/Cox then filed a third party demand against System Services,

Cableman, and their insurers seeking indemnity pursuant to the terms of a

construction contract between TCA/Cox and System Services. The claim was strictly

one for contractual indemnity; no allegation of negligence on the part of System

Services or Cableman was asserted. In response, System Services specifically denied

that it had agreed to defend and indemnify TCA/Cox for claims arising out of

TCA/Cox’s contractual obligation to indemnify another party, i.e., SLEMCO.

At a hearing on the parties’ cross motions for summary judgment, the trial court

heard arguments on the meaning of the contractual provisions at issue. The court

determined that while the contract between TCA/Cox and System Services does

provide for a defense and indemnity in certain circumstances, the indemnity language

does not encompass contractual indemnity obligations owed by TCA/Cox to third

parties such as SLEMCO.

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). Summary judgment should be granted where "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

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

judgment as a matter of law." La.Code Civ.P. art. 966(B).

Review of the indemnity provisions of the contract between TCA/Cox and

System Services is essential to a resolution of the claims raised herein:

5. INDEMNITY:

(a) Contractor assumes full responsibility for and agrees to
indemnify and hold harmless TCA and TCA’s officers, agents,
representatives, and employees from and against the following:

(i) all claims or causes of action for damages of any
type (including, but not limited to, actual damages,
exemplary or punitive damages, fines, penalties, damages
claimed under the Deceptive Trade Practices Act, losses,
costs, and expenses, including attorneys’ fees and expenses
incurred in prosecuting any action out of the performance
of the work herein) for bodily injury, illness, death,
property damage, economic injury, loss of use, or breach of
contract that arise in whole or in part from the conduct or
negligence of the Contractor or any of Contractor’s

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employees, agents, representatives, subcontractors, or
subcontractors’ employees;

(ii) all claims or causes of action based in whole or
in part on the alleged negligence, assumption of control,
breach of duty, strict liability, breach of warranty, or any
other theory of liability against TCA or TCA’s officers,
agents, representatives, or employees whether such claims
or causes of action are asserted by Contractor, any of
Contractor’s officers, agents, representatives, employees,
subcontractors, subcontractors’ employees, or any other
persons (including bystanders and other third parties) who
have become involved in any way in the supervision,
operations, or activities performed in association with the
completion of this Contract or who claim damage, injury,
or harm because of such supervision, operations, or
activities;

(iii) all claims and causes of action brought by any
person affected by the activities performed pursuant to this
Contract (including, but not limited to, bystanders, TCA’s
officers, agents, representatives, or employees; Contractor
or its officers, agents, representatives, or employees;
Contractor’s subcontractors or the subcontractors’ officers,
agents, representatives, or employees) claiming that TCA
or its officers, agents, representatives, or employees in any
way failed, refused, or neglected to perform any duty
expressly assumed by Contractor in this Contract.

The general rules of contract interpretation apply to indemnity agreements.

Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986). The

interpretation of a contract is the determination of the common intent of the parties.

La.Civ.Code art. 2045. When the words of a contract are clear and explicit and lead

to no absurd consequences, no further interpretation should be made in search of the

intent of the parties. La.Civ.Code art. 2046; Berry v. Orleans Parish School Bd.

01-3283 (La. 6/21/02), 830 So.2d 283; Richard v. Borden, Inc., 597 So.2d 60

(La.App. 1 Cir. 1992).

In cases involving similar claims for indemnity for one contracting party’s

contractual indemnification obligations to a third party, the jurisprudence consistently

holds that such a claim is viable only when the applicable contractual language is

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clear and express and the alleged indemnitor has notice of the obligation and gives

his express consent thereto. The Richard court stated as follows:

Nothing in the indemnity agreement supports the claim that the parties
intended for Pala to indemnify Borden for the consequences of the
negligent acts of IC or any other unnamed third party that Borden had
agreed to indemnify or may agree to indemnify in the future, without the
knowledge or consent of Pala. Such an interpretation of the indemnity
clause would lead to absurd consequences. Certainly IC's negligence
contributed to the injury to Mr. Richard, but IC's claim against Borden
for indemnification is based on the sidetrack agreement between Borden
and IC, not the injury to Mr. Richard.

597 So.2d at 64. Other cases reaching similar results include McKinney v. South

Cent. Bell Tel. Co., 590 So.2d 1220 (La.App. 1 Cir. 1991), writ denied, 592 So.2d

1302 (La.1992); Foreman v. Exxon Corp., 770 F.2d 490 (5th Cir. 1985); Corbitt v.

Diamond M Drilling Co., 654 F.2d 329 (5th Cir. 1981).

The contractual language presented in the case before us does not include any

specific provision pertaining to TCA/Cox’s contractual indemnification obligation

to any other entity not a party to the contract. No mention is made of SLEMCO’s

right to indemnity from TCA/Cox. The contract contains no expression of intent on

the part of System Services to assume TCA/Cox’s contractual liabilities to another

entity. Certainly, there is no notice to System Services that by signing the contract

it was thereby assuming contractual indemnity obligations of TCA/Cox to unnamed

parties.

In granting System Services motion for summary judgment, the trial court

acknowledged the apparent validity of the indemnity provisions set forth in the

TCA/Cox contract with System Services. However, the court explained that the

obligation arises when a claim is made against TCA/Cox, not when TCA/Cox is

asked to fulfill contractual commitments to another entity. We agree with this

rationale. Nothing in the contract at issue reveals that System Services expressly

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contemplated indemnification for TCA/Cox’s contractual obligations to SLEMCO.

Accordingly, we find summary judgment in favor of System Services was

appropriately granted herein.

For the foregoing reasons, the judgment of the trial court is affirmed. The third

party demand against System Services was properly dismissed. Likewise, those

claims asserted against Cableman, Bituminous, and Valiant which were not rendered

moot were properly dismissed. Costs of this appeal are assessed to TCA/Cox.

AFFIRMED.

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