Pg Diners, Inc. v. Remson-Haley Architects, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-814

PG DINERS, INC.

VERSUS

REMSON-HALEY ARCHITECTS, INC., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-4401
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Michael G. Sullivan, Glenn B. Gremillion, and Billy Howard
Ezell, Judges.

AFFIRMED.

Kevin Lawrence Cole
James Anthony Prather
Attorney at Law
3 Sanctuary Blvd., Suite 301
Mandeville, LA 70471
(985) 674-6680
Counsel for Defendant/Appellee:
Certain Underwriters at Lloyd’s London

Thomas Livingston Gaudry, Jr.
Gaudry, Ranson, Higgins & Gremillion, L.L.C.
P.O. Box 1910
Gretna, LA 70054
(504) 362-2466
Counsel for Defendant/Appellee:
Assurance Company of America

Richard E. Gerard, Jr.
Scofield, Gerard, Scofield and Pohorelsky
P. O. Drawer 3028
Lake Charles, LA 70602
(337) 433-9436
Counsel for Plaintiff/Appellant:
PG Diners, Inc.

Thomas Walter Sanders
411 Clarence Street
Lake Charles, LA 70601-5203
(337) 433-1691
Counsel for Defendant/Appellee:
Touchstone Masonry

Charles A. Schutte, Jr.
Guglielmo, Marks, Schulte, Terhoeve & Love
320 Somerulos Street
Baton Rouge, LA 70802
(225) 387-8330
Counsel for Defendant/Appellee:
Liberty Mutual Insurance Company

Christopher Paul Pierce
Wray & Pierce
P. O. Box 3238
Baton Rouge, LA 70821-3228
(225) 334-9200
Counsel for Defendant/Appellee:
Bessette Development Corp.

James J. Hautot, Jr.
Judice & Adley
P. O. Drawer 51769
Lafayette, LA 70503
(337) 235-2405
Counsel for Defendant/Appellee:
R. Savant

Michael Glenn Hodgkins
Attorney at Law
721 Kirby Street
Lake Charles, LA 70601
(337) 310-1600
Counsel for Defendant/Appellee:
Bessette Development Corp.

James Albert Rowell
Attorney at Law
400 Poydras Street, Suite 2600
New Orleans, LA 70130
(504) 529-3333
Counsel for Defendant/Appellee:
Audubon Indemnity Company

Todd Michael Ammons
Stockwell, Sievert, Viccellio, Clements & Shaddock
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
Counsel for Defendant/Appellee:
R. Savant, Inc.

Kevin Louis Camel
Michael Kevin Cox
Richard Elliott Wilson
Cox, Cox & Filo
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
Counsel for Plaintiff/Appellant:
PG Diners, Inc.

Glen E. Mercer
Salley, Hite, Rivera & Mercer
365 Canal Street, Suite 1710
New Orleans, LA 70130
(504) 582-1513
Counsel for Defendant/Appellee:
Certain Underwriters at Lloyd’s London

EZELL, JUDGE.

In this matter, PG Diners appeals the decision of the jury finding Remson-

Haley Architects 100% liable for the failure of a parking lot constructed by Bessette

Development. For the following reasons, we affirm the jury’s finding.

PG Diners hired Remson-Haley to design plans for a truck stop to be built in

Iowa, Louisiana. Included in the plans was a very large parking lot that would need

to stand up to constant use by big trucks. One year prior to Remson-Haley finishing

the design, a geo-technical soil report was performed on the soil of the build site. The

soil report called for a crushed limestone base of four inches in the light-duty

automobile areas and a six-inch crushed limestone base for the intermediate and

heavy duty areas to be used by large trucks. Remson-Haley completed the design and

sent it out for bid. The design sent out by Remson-Haley called for the lot to have a

four-inch sand base. After Bessette won the bid, PG Diners asked them to look for

cost-cutting measures on the project. Bessette submitted proposed changes to PG

Diners and Remson-Haley, including reducing the four-inch sand base to one inch,

removing sub-surface drainage in favor of surface drainage, and placing dowels at a

spacing of two feet, rather than the one-foot intervals suggested by Remson-Haley.

The proposed changes were discussed with PG Diners and Remson-Haley and were

approved.

Soon after construction was finished on the project, sections of the lot began

to fail. Bessette originally replaced some of the panels according to a cost-sharing

agreement with PG Diners, but after deciding it was not responsible for the failure,

Bessette declined to replace additional failed sections. PG Diners filed suit against

Remson-Haley and Bessette for the failure of the lot. PG Diners settled with

Remson-Haley and proceeded to trial against Bessette only, claiming faulty

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construction led to the lot’s failure. After a long jury trial, the jury found that

Remson-Haley was solely responsible for the failure of the lot and assessed them with

100 % liability. From this decision, PG Diners appeals.

PG Diners asserts as their sole assignment of error on appeal that the jury

committed error in failing to assign Bessette any fault for the failure of the lot. We

disagree.

As noted by this court in Layssard v. State, Department of Public Safety and

Corrections, 07-78, p.3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057-58, writ

denied, 07-1821 (La. 11/09/07), ____So.2d _____.

The Louisiana Supreme Court, in Duncan v. Kansas City
Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670,
680-81, set forth the standard for reviewing comparative fault
determinations as follows:

This Court has previously addressed the allocation of fault
and the standard of review to be applied by appellate courts
reviewing such determinations. Finding the same
considerations applicable to the fault allocation process as
are applied in quantum assessments, we concluded “the
trier of fact is owed some deference in allocating fault”
since the finding of percentages of fault is also a factual
determination. Clement v. Frey, 95-1119 (La.1/16/96), 666
So.2d 607, 609, 610. As with other factual determinations,
the trier of fact is vested with much discretion in its
allocation of fault. Id.

Therefore, a trier of fact’s allocation of fault is subject to the
manifestly erroneous or clearly wrong standard of review. A trial
judge’s findings of fact will not be disturbed unless they are manifestly
erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp.
& Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it
is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be
disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,
1111 (La.1990). “If the trial court or jury’s findings are reasonable in
light of the record reviewed in its entirety, the court of appeal may not
reverse, even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.” Id. at 1112.

It is evident from the immense record before us that the jury’s decision was not

manifestly erroneous, as there clearly existed a reasonable factual basis for its

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findings.

The contract between PG Diners and Bessette set forth that Bessette, as the

contractor, was “not responsible for the liability or acts of architect . . . arising out of

the preparation or approval of reports, opinions, surveys, maps, drawings, designs or

specifications” which give rise to any injury or damage. Remson-Haley’s duties

included designing the lot to the standard of an architect to ensure that the lot did not

fail. Their own contract with PG Diners stated that Remson-Haley were to assist

them in reviewing documents, alternatives, and other proposals submitted by the

contractor. However, the evidence showed that they failed to meet this duty.

PG Diners claims that Bessette altered the Remson-Haley design by reducing

the sand base from four inches to one inch, as well as by removing the sub-surface

drainage and spacing the dowels farther apart and, in doing so, assumed liability for

the design. However, PG Diners’ owner, Bob King, as well as Harvey Bessette and

Sam Cavys, an employee of Bessette, all testified that PG Diners, Remson-Haley, and

Bessette met prior to the signing of the contract between PG Diners and Bessette to

discuss the changes. They all testified that Remson-Haley approved the changes. Mr.

King specifically testified that he would not have accepted the changes without

Remson-Haley’s approval and that he was shocked when it later denied responsibility

for the design of the lot. Both experts, including PG Diners’ own expert, Charles

Ladner, testified that by approving the changes, Remson-Haley retained liability for

the design.

Furthermore, Remson-Haley admitted they did not use the soil report in

preparing their design, despite having over one year to incorporate the report’s

findings into its plans. Again, both experts testified that the failure of Remson-Haley

to follow the soil reports recommendation that the parking lot should have a crushed

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limestone base doomed the lot to failure from the outset and that the lot would have

failed even if Bessette had otherwise built the lot perfectly or if the sand base had

been four inches as originally specified.

It is clear from the record that there existed a reasonable factual basis for the

jury’s determination that Remson-Haley was 100 % at fault for the failure of the

parking lot. Accordingly, the jury’s conclusion cannot be manifestly erroneous.

The decision of the trial court is hereby affirmed. Costs of this appeal are

assessed against PG Diners.

AFFIRMED.

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