Robbie Trahan v. Doerle Food Services, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-1121

ROBBIE TRAHAN

VERSUS

DOERLE FOOD SERVICES, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20084643
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters,
Judges.

REVERSED IN PART, AND REMANDED.

John Edmund McElligott, Jr.
Kevin M. Dills
Davidson, Meaux, etc.
P. O. Box 2908
Lafayette, LA 70502-2908
(337) 237-1660
COUNSEL FOR DEFENDANTS/APPELLANTS:
HUB Enterprises, Inc.
First Mercury Ins. Co.

Susan A. Daigle
Daigle, Jamison & Rayburn
303 W. Vermilion St., Ste 210
Lafayette, LA 70501
(337) 234-7000
COUNSEL FOR DEFENDANTS/APPELLEES:
Hercules Liftboat Co., LLC
Doerle Food Services, LLC

Kenneth Paul Mayers
Attorney at Law
P. O. Box 2217
Lafayette, LA 70502-217
(337) 237-9500
COUNSEL FOR PLAINTIFF/APPELLEE:
Robbie Trahan

Christopher T. Lee
Attorney at Law
P. O. Box 3525
Lafayette, LA 70502-3525
(337) 232-2390
COUNSEL FOR PLAINTIFF/APPELLEE:
Robbie Trahan

PETERS, J.

This appeal arises from a suit filed by Robbie Trahan against Hercules

Liftboat Company, LLC (Hercules) and Doerle Food Services, LLC (Doerle Food

Services) seeking to recover damages he sustained in an August 14, 2007 accident.

In that litigation, Hercules filed a third-party demand against Trahan’s employer,

HUB Enterprises, Inc. (HUB) and its liability insurer, First Mercury Insurance

Company (First Mercury), seeking to recover the expenses it incurred in defending

Trahan’s lawsuit. The matter now before us involves an appeal by HUB and First

Mercury seeking reversal of part of the grant of a summary judgment in favor of

Hercules awarding it indemnification from HUB for the expenses it incurred in the

litigation. For the following reasons, we reverse that part of the trial court’s grant

of the summary judgment addressed in this appeal, and remand this matter to the

trial court for further proceedings.

DISCUSSION OF THE RECORD

The basic facts applicable to this appeal are not in dispute. On August 8,

2006,1 HUB and Hercules entered into a written agreement entitled “SECURITY

CONTRACT” (hereinafter referred to as “Security Contract”) wherein HUB, as an

independent contractor, agreed to provide Hercules with “uniformed/unarmed,

guard protection service” at locations to be identified by Hercules. In a separate

document described as an “ACCESS AGREEMENT” (hereinafter referred to as

“Access Agreement”) made effective August 8, 2006, HUB and Hercules agreed to

indemnify each other for acts or omissions of their respective employees or agents.

One of the locations on which HUB ultimately provided security services

was property in Lafayette, Louisiana, that Hercules subleased from Doerle

1
The contract bears the date of August 8, 2006, although the document itself was
executed by the representative of HUB on August 18, 2006, and by the representative of
Hercules on August 24, 2006.

Properties, LLC (Doerle Properties) pursuant to a written agreement entitled

“SUBLEASE AGREEMENT” (hereinafter referred to as “Sublease Agreement”)

made effective October 7, 2005. 2 This Sublease Agreement also contained an

indemnity agreement wherein Hercules agreed to indemnify Doerle Properties for

certain claims made against it.

On August 14, 2007, Robbie Trahan was working on the Doerle Properties

location when a severe storm caused his guard shack to topple over. On year later,

he instituted this suit for damages against Hercules and Doerle Food Services.

After both defendants joined issue in the litigation by filing answers,

Hercules filed a third-party demand against HUB and First Mercury. In this

December 21, 2009 filing, Hercules sought judgment against HUB “for defense

and for indemnification for all amounts for which HERCULES may be cast in

judgment or may pay in settlement to [Robbie Trahan], for all costs and attorney’s

fees incurred in prosecuting th[e] Third Party Demand, and for all costs and

attorney’s fees incurred by HERCULES in defending [Robbie Trahan]’s demand.”

Additionally, Hercules sought judgment against HUB “for defense and for

indemnification for all amounts which HERCULES may be cast in judgment or

may pay in settlement to the plaintiff in connection [Robbie Trahan]’s claim

against DOERLE and for all costs and attorney’s fees incurred by HERCULES in

defending [Robbie Trahan]’s demand against DOERLE.” Hercules sought similar

relief from First Mercury.

On May 5, 2010, Hercules filed a motion for summary judgment addressing

the relief prayed for in its third-party demand. This motion was followed on May

17, 2010, by a cross-motion for partial summary judgment filed by HUB and First

2
The Sublease Agreement states that Doerle Properties possessed the property pursuant
to a Lease Purchase Agreement entered into on August 26, 2005, wherein B-H Operations of
Broussard, L.L.C. was identified as the owner/landlord.
2

Mercury seeking a judgment to the effect that they did not owe indemnity to

Hercules for any expenses associated with its indemnification obligations to Doerle

Food Services.

The motion and cross-motion were heard by the trial court on July 12, 2010.

After listening to the oral arguments and considering the evidence before it, the

trial court rejected the cross-motion for partial summary judgment filed by HUB

and First Mercury, and granted Hercules the relief it prayed for, but only as to

HUB and not First Mercury.3 The August 10, 2010 judgment arising from this

ruling reads in pertinent part as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
THAT THE Motion for Summary Judgment filed by HERCULES is
GRANTED in part. Specifically, this Court finds that a valid contract
for defense and indemnity was in effect between HERCULES and
HUB at the time of the alleged August 14, 2007 incident involving
Plaintiff, Robbie Trahan, and, therefore, HUB owes contractual
defense and indemnity to HERCULES, with respect to the claims of
plaintiff, ROBBIE TRAHAN, against HERCULES, on all amounts
for which HERCULES may be cast in judgment or may pay in
settlement to the plaintiff, and for all costs and attorney fees incurred
by HERCULES in defending plaintiff’s claims.

IT IS FUTHER ORDERED, ADJUDGED, AND DECREED
that the above referenced contract for defense and indemnity between
HERCULES and HUB extends to and covers the contractual defense
and indemnity claim made by Defendant, DOERLE FOOD
SERVICES, LLC (“DOERLE”), against HERCULES pursuant to a
contract that was in effect between DOERLE and HERCULES at the
time of the alleged August 14, 2007 incident.

It is this second paragraph of the judgment that gives rise to this appeal.

The judgment rendered did not constitute a final judgment for the purposes

of an immediate appeal. La.Code Civ.P. art. 1915(B). However, before the matter

went to trial on the merits, Robbie Trahan settled his claims against Doerle Food

Services and Hercules. On June 12, 2012, the trial court executed an order wherein

3
The parties agreed that the insurance coverage issue would not be addressed in the
written judgment to be rendered by the trial court, and that the issue would be left for another
day.
3

Mr. Trahan, HUB, and First Mercury dismissed all of their claims against Doerle

Food Services. In that pleading, HUB and First Mercury reserved all of their rights

to fully litigate the indemnification issues──including the right to appeal the

August 10, 2010 judgment as well as the right to recover certain sums they had

paid to Doerle Food Services under protest pursuant to that judgment. Twenty-

four days later, on June 26, 2012, Robbie Trahan dismissed his claims against

Hercules, acknowledging that he had received nothing from Hercules for the

dismissal.

The dismissal of the principal claims had the effect of making the judgment

on the indemnity claims final. Recognizing this change in the posture of the

judgment, on July 10, 2010, HUB and First Mercury filed a motion to appeal that

portion of the August 10, 2010 judgment ordering indemnification to Hercules for

any amounts Hercules might be required to pay Doerle Food Services under the

terms of the Sublease Agreement with Doerle Properties. The trial court granted

the motion on July 12, 2012. In their appeal, HUB and First Mercury asserted in

their one assignment of error that the trial court erred in concluding that the

indemnity provisions of the Access Agreement extended to cover the

indemnification obligations owed by Hercules to Doerle Properties under the

Sublease Agreement. Under these facts, HUB and First Mercury argue, the trial

court should have granted their motion for partial summary judgment and rejected

Hercules’ motion for summary judgment on that issue.

OPINION

“Appellate courts review grants of summary judgment de novo, using the

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

judgment is appropriate, that is, whether there is a genuine issue of material fact

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and whether the mover is entitled to judgment as a matter of law.” Alexander v.

Terra Nova Ins. Co., Ltd., 06-1348, p. 4 (La. App. 3 Cir. 3/7/07), 953 So.2d 152,

155. A fact is “material” if it influences a litigant's ultimate success, potentially

assures or prohibits recovery, or resolves the legal dispute. Smith v. Our Lady of

the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. An issue is a

genuine issue if reasonable persons could disagree on that point; on the other hand,

if reasonable people could reach only one conclusion, the issue is not a “genuine”

issue and summary judgment is appropriate. Id.

In support of its motion for summary judgment, Hercules provided the trial

court with the Security Contract and Access Agreement between it and HUB, the

Sublease Agreement between it and Doerle Properties, and a copy of the insurance

contract between HUB and First Mercury. In support of their motion for partial

summary judgment and in opposition to Hercules’ motion for summary judgment,

HUB and First Mercury provided the trial court with the same Security Contract

and Access Agreement.

Louisiana Civil Code Article 2045 provides that “[i]nterpretation of a

contract is the determination of the common intent of the parties.” Additionally,

“[w]hen 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.” La.Civ.Code art. 2046. “A person who signs a written contract is

presumed to know its contents and cannot avoid its obligations by contending that

he did not read it, that he did not understand it, or that the other party failed to

explain its meaning.” Carter Logging, L.L.C. v. Flynn, 44,188, p. 4 (La.App. 2 Cir.

4/9/09), 7 So.3d 195, 198.

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It has long been held that “[a] contract of indemnity whereby the indemnitee

is indemnified against the consequences of his own negligence is strictly construed,

and such a contract will not be construed to indemnify an indemnitee against losses

resulting to him through his own negligent act, unless such an intention was

expressed in unequivocal terms.” Polozola v. Garlock, Inc., 343 So.2d 1000, 1003

(La.1977). Additionally,

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 clear and express
and the alleged indemnitor has notice of the obligation and gives his
express consent thereto.

Marshall v. Southwest Louisiana Elec. Membership Corp., 05-328, pp. 3-4
(La.App. 3 Cir. 11/2/05), 915 So.2d 1026, 1029.

With regard to HUB’s obligations to Hercules, the Access Agreement stated

the following:

In consideration of being allowed access to certain premises and/or
vessels and for other good and valuable consideration, the
undersigned entity (hereinafter referred to as “Company”) agrees with
Hercules Liftboat Company, L.L.C., including any parent, subsidiary,
or affiliated company thereof (hereinafter Hercules Liftboat Company,
L.L.C., its parent, subsidiary and affiliated companies are referred to
collectively as “Hercules”) as follows: To the fullest extent permitted
by law, Company agrees to release, defend, indemnity and hold
harmless Hercules, its employees, managers, officers and directors,
and vessels owned, operated and/or charged by Hercules (hereinafter
collectively referred to as the “Protected Parties”) and their respective
insurers, from and against all claims, lawsuits, loss, damage, costs and
expenses (including, without limitation, contractual defense and
indemnity claims and defense costs and attorney fees) of any kind or
character for illness, injury or death of employees, servants, agents or
representatives of Company, arising out of or attributable to, directly
or indirectly, the presence by any such persons or parties on Hercules’
owned or operated vessels or premises and/or any work, services,
equipment or supplies being furnished to or performed for Hercules,
whenever and wherever located, EVEN IF SAID CLAIMS,
DEMANDS, SUITS AND/OR CAUSES OF ACTION ALLEGEDLY
OR ACTUALLY ARISE SOLELY OR PARTIALLY FROM
NEGLIGENCE (INCLUDING SOLE, JOINT, CONCURRENT,
ACTIVE OR PASSIVE), STRICT LIABILITY, PRODUCTS
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LIABILITY, UNSEAWORTHINESS OF ANY VESSEL AND/OR
UNAIRWORTHINESS OF ANY AIRCRAFT ATTRIBUTABLE TO
THE PROTECTED PARTIES.

Similar language followed establishing reciprocal indemnity obligations on

Hercules in the event that a Hercules employee, agent, servant, or representative

instituted a claim against HUB under similar circumstances.4

The indemnity agreement found in the Access Agreement provides

unequivocally that HUB “agrees to release, defend, indemnity and hold harmless

Hercules . . . from and against all claims, lawsuits, loss, damage, costs and

expenses . . . of any kind or character for . . . injury of [HUB’s employees . . .

arising out of . . . the presence of [HUB’s employee] on Hercules’ . . . premises . . .

EVEN IF SAID CLAIMS . . . ARISE SOLELY OR PARTIALLY FROM

NEGLIGENCE . . . ATTRIBUTABLE TO [Hercules].” The obligation of HUB

and First Mercury with respect to Hercules is not in dispute.

What is in dispute is the effect of the language in the indemnity clause which

expands the obligation of HUB and First Mercury to “include contractual defense

and indemnity claims.” It is this language that Hercules relies on to assert that

HUB and First Mercury owes it indemnification for anything it might owe Doerle

Properties under the indemnification language found in the Sublease Agreement.

Paragraph 14.1 of that document reads as follows:

Indemnification. Subtenant will indemnify, defend and hold
harmless each of Sublessor and B-Hand their respective agents and
employees from and against, any and all demands, claims, causes of
action, fines, penalties, damages (including consequential damages),
losses, liabilities, judgments, and expenses (including, without
limitation, attorney fees and court costs) incurred in connection with
or arising from: (a) the use or occupancy of the Leased Premises by
Subtenant or any person claiming under Subtenant or the condition,
upkeep or maintenance of the Leased Premises; (b) any activity, work,
or thing done, or permitted or suffered by Subtenant in or about the
4
The language of the Access Agreement makes each employer responsible to its injured
worker for all workers’ compensation benefits as well as full tort liability.
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Leased Premises; (c) any acts, omissions or negligence of Subtenant
or any person claiming under Subtenant, or the contractors, agents,
employees, invitees, or visitors of Subtenant or any such person; (d)
any breach, violation, or nonperformance by Subtenant or any person
claiming under Subtenant or the employees, agents, contractors,
invitees, or visitors of Subtenant or any such person of any term,
covenant, or provision of this Lease or any law, ordinance, or
governmental requirements of any kind; (e) (except for loss of use of
all or any portion of the Leased Premises or Subtenant’s property
located within the Leased Premises which is proximately caused by or
results proximately from the gross negligence of Sublessor) any injury
or damage to the personal, property, or business of Subtenant, its
employees, agents, contractors, invitees, visitors, or any other person
entering upon the Leased Premises under the express or implied
invitation of Subtenant or (f) demands made or suits filed by
Sublessor or B-H to enforce the foregoing indemnification provisions.
If any action or proceeding is brought against Sublessor or B-H, their
employees, officers, owners or agents by reason of any such claim,
Subtenant, upon notice from Sublessor, will defend the claim at
Subtenant’s expense with counsel satisfactory to Sublessor or B-H, as
the case may be.

Clearly, this language established contractual defense and indemnity obligations on

Hercules with respect to Doerle Properties and its use of the property identified in

the Sublease Agreement. It is equally clear that HUB agreed to indemnify

Hercules for some “contractual defense and indemnity claims” arising from its

contractual relationship with Hercules. Insofar as the trial court reached this

conclusion as well, we find no error in that determination.

However, we find that the trial court erred in finding that the indemnification

agreement between Hercules and Doerle Properties extended to cover the

contractual defense and indemnity claim made by Doerle Food Services against

Hercules. First, the Sublease Agreement is between Hercules and Doerle

Properties, not between Hercules and Doerle Food Services. The indemnification

clause in the Sublease Agreement provides that Hercules “will indemnify, defend

and hold harmless . . . Sublessor . . . [its] respective agents and employees. . . .”

While Doerle Food Services may be an agent of Doerle Properties, nothing in the

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record supports that contention. Given the fact that there exists no direct

indemnification relationship between Hercules and Doerle Food Services, absent

the establishment of Doerle Food ServiceS as the agent of Doerle Properties, HUB

does not owe indemnification to Hercules. Crucially, this relationship is a genuine

issue of material fact which precludes the grant of a summary judgment.

Furthermore, even assuming that a principal/agent relationship exists such

that Doerle Food Services is entitled to indemnification pursuant to the terms of the

Sublease Agreement, certain particulars of that indemnification also constitute

genuine issues of material fact. Mr. Trahan’s claim for damages arose when the

guard shack in which he was working separated from its footings. His claim

against Doerle Food Services was based on negligence related to the failure of that

defendant to safely secure the structure. While the indemnification language of the

Sublease Agreement clearly places some indemnification obligations on Hercules,

we do not find that the indemnification language found in the Sublease Agreement

unequivocally states that Hercules is bound to indemnify Doerle Food Services for

its own negligence. Polozola, 343 So.2d 1000. If Hercules is not bound to

indemnify Doerle Food Services for its own negligence, HUB and First Mercury

have no similar obligation to indemnify Hercules for the expenses of Doerle Food

Services.

DISPOSITION

We reverse that portion of the trial court’s grant of summary judgment in

favor of Hercules Liftboat Company, LLC wherein the trial court found that the

indemnification language of the August 8, 2006 Access Agreement between

Hercules Liftboat Company, LLC and HUB Enterprises, Inc. extends to cover the

contractual defense and indemnification claim made by Doerle Food Services,

9

LLC against Hercules Liftboat Company, LLC pursuant to the October 7, 2005

Sublease Agreement; and we remand the matter to the trial court for further

proceedings consistent with this opinion. We assess all costs of this appeal to

Hercules Liftboat Company, LLC.

REVERSED IN PART, AND REMANDED.

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