Timothy Cotone v. Corrosion Control Systems

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-201

TIMOTHY COTONE

VERSUS

CORROSION CONTROL SYSTEMS, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 109252-E
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and David E. Chatelain,*
Judges.

AFFIRMED.

Kevin Duck, Attorney at Law
4906 Ambassador Caffery Parkway, Suite 1010
Lafayette, LA 70505
Counsel for Plaintiff/Appellee:
Timothy Cotone

E. Phelps Gay, Attorney at Law
650 Poydras Street, Suite 2300
New Orleans, LA 70130
Counsel for Defendant/Appellee:
Maxum Industries, LLC

Scott A. Soule, Attorney at Law
2300 Energy Center
100 Poydras Street
New Orleans, LA 70163
Counsel for Defendant/Appellee:
American Longshore Mutual Assn.

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Thomas J. Wagner, Attorney at Law
650 Poydras Street, Suite 2660
New Orleans, LA 70130
Counsel for Defendant/Appellant:
Corrosion Control Systems, LLC

PAINTER, Judge.

Corrosion Control Systems, Inc. (Corrosion) appeals the trial court’s grant of

summary judgment in favor of one of its co-defendants, Maxum Industries, LLC

(Maxum), in this personal injury case. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Timothy Cotone (Cotone), was employed as a shipyard supervisor by

Superior Derrick Services (Superior). Superior was hired by Nabors Offshore

Corporation (Nabors) to convert Barge RIG 100, an inland barge, into a drilling rig.

Corrosion was hired to perform sandblasting and painting services. Maxum supplied

temporary workers to Superior for the performance of welding and fitting services.

Cotone alleges that he was injured on November 3, 2006, when he stepped into

an open hole on the barge owned by Nabors. Cotone initially filed suit against only

Corrosion, alleging that a Corrosion employee removed the safety cables used to

protect and secure the hole and covered the deck, including the hole, with a plastic

covering. By first supplemental and amending petition, Maxum, National Union Fire

Insurance Company of Louisiana, Evanston Insurance Company (Evanston), and XL

Specialty Insurance Company (XL Specialty) were added as defendants. In this

petition, Cotone alleged that either a Corrosion or Maxum employee removed the

safety cables. Evanston and XL Specialty were voluntarily dismissed by Cotone.

Maxum filed a motion for summary judgment alleging that there was an

absence of evidence that any employee of Maxum contributed to Cotone’s injury.

Cotone did not oppose the motion. Corrosion opposed the motion and asserted that

there were genuine issues of material fact regarding Maxum’s actions at and around

the hole in question.

The trial court granted Maxum’s motion, specifically finding that there was “no

evidence from which [it] or any trier of fact could conclude that a Maxum employee

either removed the safety cables, or placed the plastic over the hole.” Accordingly,

the trial court dismissed Cotone’s claims against Maxum with prejudice and

designated the judgment as final and appealable pursuant to La.Code Civ.P. art. 1915.

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Corrosion now appeals that judgment, asserting that the trial court lacked the

undisputed factual foundation necessary for its grant of summary judgment. Cotone

does not appeal the grant of summary judgment in favor of Maxum.

DISCUSSION

Louisiana Code of Civil Procedure Article 966(B) states that a summary

judgment shall be rendered “if 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.” If the party moving for summary judgment will not bear the burden of proof

at trial, it need merely point out that there is an absence of factual support for one or

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

Civ.P. art. 966(C)(2). Whether a particular fact in dispute is material can only be

determined in light of the substantive law applicable to the case. Foreman v. Danos

and Curole Marine Contractors, Inc., 97-2038 (La.App. 1 Cir. 9/25/98), 722 So.2d

1, writ denied, 98-2703 (La. 12/18/98), 734 So.2d 637.

It is well settled that appellate courts must use the de novo standard of review

to review a trial court’s grant or denial of a motion for summary judgment under the

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

judgment is appropriate in any given case. Indep. Fire Ins. Co. v. Sunbeam Corp.,

99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

Cotone asserts a claim of negligence against Maxum. Thus, the duty-risk

analysis is employed, and Cotone must prove five separate elements: (1) whether the

defendant had a duty to conform his conduct to a specific standard; (2) whether the

defendant’s conduct failed to conform to the appropriate standard; (3) whether the

defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries; (4)

whether the defendant’s substandard conduct was a legal cause of the plaintiff’s

injuries; and (5) whether the plaintiff was damaged. Cusimano v. Wal-Mart Stores,

Inc., 04-0248 (La.App. 1 Cir. 2/11/05), 906 So.2d 484.

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Cotone’s deposition was introduced in support of Maxum’s motion for

summary judgment. Maxum specifically points to Cotone’s testimony that he was the

last person to leave the barge on the evening before his accident and that, at the time

he left, the safety barricades were in place and that there was no plastic sheeting

obscuring the manhole in question. He further testified that he and his crew worked

days while the Corrosion painting crews worked nights.

In response to discovery propounded by Cotone, Maxum produced an invoice

submitted to Superior, which included a list of employees working at Superior’s yard

for the period beginning October 30, 2006, and ending November 5, 2006. Based on

these records and the testimony of Maxum representatives, the trial court found that

the majority of welders and fitters supplied by Maxum worked in other areas of

Superior’s yard and not on the barge.

Rigoberto Cornejo Garcia’s deposition was submitted in support of the motion

for summary judgment. Garcia was employed by Maxum as a welder. Garcia

testified that every single manhole had a barricade set up around it. Garcia further

testified that while he had to pass through the manholes to go beneath the barge deck

to do his work, he never removed the barricades or the wires to get down below the

deck. He also testified that he left at five o’clock every day. Garcia also testified that

Guadeloupe Robles, Desantos, and Isidro De La Cruz were other Maxum employees

who worked on the barge where Cotone’s accident occurred.

Brennan Segura’s deposition was also submitted in support of the motion for

summary judgment. Segura was a project manager for Maxum at the time of the

subject accident. He testified that he was responsible for recruiting welders and

fitters and placing them at the job site. He further testified as to the identity of

Maxum workers present at the job site during the dates at issue, including Garcia and

Porfirio Diaz.

Diaz, who was a translator for the Maxum employees, was also deposed. Diaz

testified that he never saw any holes without barricades and that Maxum employees

would climb between or over the cable wires to go down in a manhole. He also

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testified that, on the day before the accident, he did not recall seeing any plastic

sheeting on or around the barge.

Glenn Russo’s deposition was also taken. Russo was employed by Corrosion

as a manager at the time of the accident. Russo testified that his foreman, Jamie

Lopez, confirmed that it was Lopez’s crew that put the plastic sheeting over the

manhole.

Maxum’s evidence need not dispose of the issue of who removed the safety

barricades or placed the plastic sheeting over the manhole. No evidence was

submitted to the trial court which could have allowed a reasonable trier of fact to

conclude that a Maxum employee either removed the cables from the barrier or place

the plastic sheeting over the hole. We agree with the trial court that Corrosion failed

to present any evidence that Maxum was responsible for Cotone’s injuries.

Accordingly, the summary judgment in favor of Maxum is affirmed.

DECREE

The trial court’s summary judgment dismissing Cotone’s claims against

Maxum is affirmed. Costs of this appeal are assessed to Defendant-Appellant,

Corrosion.

AFFIRMED.

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