Fin & Feather, LLC v. Plaquemines Parish Gov't

• Decision Date: 28 September 2016
• Docket Number: NO. 2016-CA-0256,2016-CA-0256
• Citation: 202 So.3d 1028
• Court: Court of Appeal of Louisiana — District of US
• Parties: Fin & Feather, LLC, et al v. Plaquemines Parish Government, et al

202 So.3d 1028

Fin & Feather, LLC, et al

v.Plaquemines Parish Government, et al

NO. 2016-CA-0256

Court of Appeal of Louisiana, Fourth Circuit.

SEPTEMBER 28, 2016

Gilbert R. Buras, Jr., ATTORNEY AT LAW, 710 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLANTS, FIN AND FEATHER, L.L.C. AND FIN AND FEATHER CHALETS, L.L.C.

G. Bruce Parkerson, Scott H. Mason, PLAUCHE' MASELLI PARKERSON, LLP, 701 Poydras Street, Suite 3800, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE, ALL SOUTH CONSULTING ENGINEERS, LLC

Shane P. Landry, Assistant Parish Attorney, PLAQUEMINES PARISH GOVERNMENT, 8056 Highway 23, Suite 303, Belle Chasse, LA 70037, COUNSEL FOR DEFENDANT/APPELLEE, PLAQUEMINES PARISH GOVERNMENT

Jeffery B. Struckhoff, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, 701 Poydras Street, 40th Floor, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE, ESSEX INSURANCE COMPANY

J. McCaleb Bilbro, THE JAVIER LAW FIRM, LLC, 1340 Poydras Street, Suite 2100, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES, DRC EMERGENCY SERVICES, LLC AND CAHABA DISASTER RECOVERY, LLC

(Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu )

Judge Terri F. Love

This appeal arises from debris removal activity in the Duvic drainage canal following Hurricane Katrina. Plaintiffs alleged that their property was damaged because the defendants dug a steeper slope in the canal, allegedly causing the land to slough off into the canal. Defendants all filed motions for summary judgment contending that they were statutorily immune pursuant to La. R.S. 9:2800.17

. Plaintiffs countered that immunity does not apply to gross negligence. The trial court found that the defendants were statutorily immune, and that plaintiffs failed to allege or present evidence of gross negligence over the course of the six-year suit. The defendants' motions for summary judgment were granted.

The plaintiffs appeal contending that the trial court abused its discretion by not permitting late supplementation of their opposition to the summary judgment, erred by finding that all of the defendants were immune, and erred by finding that no genuine issues of material fact existed as to gross negligence. We find that the trial court correctly determined that the defendants were all immune from suit based on La. R.S. 9:2800.17

, as the record is devoid of any evidence of gross negligence. Additionally, the trial court was well within its vast discretion by limiting supplementation of the motions for summary judgment after the hearing concluded. Accordingly, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Following Hurricane Katrina, the Plaquemines Parish Government (“PPG”) began a project to clean out hurricane debris and silt from the Duvic drainage canal, owned and maintained by PPG, in Boothville, Louisiana. In conjunction with this project, All South Consulting Engineers, LLC (“All South”) entered into a subcontract with PPG to provide “monitoring services” and “Project Management” of the removal of storm debris from rights of way, private property and waterways.¹ DRC Emergency Services, LLC (“DRC”) also entered into a contract with PPG wherein DRC agreed to remove debris from PPG's drainage canals. DRC then entered into a subcontract with Cahaba Disaster Recovery, LLC (“Cahaba”) wherein Cahaba contracted to remove hurricane debris “from public right-of-way and other areas as directed by DRC and PPG.” Cahaba and CDP Corp., Inc. (“CDP”) entered into a subcontract for CDP to also remove debris in Plaquemines Parish. Essex Insurance Company (“Essex”) insured CDP.

In June 2008, work was underway clearing the Duvic canal. During the dredging, immovable property and buildings, owned by Fin & Feather, LLC and Fin & Feather Chalets, LLC (collectively “Fin & Feather”), located along the canal were allegedly damaged by land sloughing off into the canal. As a result, Fin & Feather filed a Petition for Damages against Plaquemines Parish, PPG, DRC, Cahaba, and All South asserting negligence and contending that the “excavation activities went beyond or otherwise caused damage beyond the drainage canal servitude.” DRC and Cahaba then filed a third-party demand against CDP and Essex.

In October 2010, proceedings were stayed due to Chapter 11 bankruptcy protection of CDP. In May 2013, the stay was amended to reflect that only actions against CDP remained stayed. Essex then filed a Motion for Summary Judgment averring that Fin & Feather's damages were unambiguously excluded from the insurance policy, so no coverage or duty to defend existed. The trial court granted Essex's Motion for Summary Judgment in part, finding that policy 9CC4123 did not provide coverage to Fin & Feather, but denied the motion as to policy 3C00086.

PPG then filed a third-party cross-claim against DRC and Safeco Insurance Company of America. Subsequently, All South filed a Motion for Summary Judgment contending that no duty was owed to Fin & Feather and claiming statutory immunity, as provided by La. R.S. 9:2800.17

. Essex filed a Motion to Adopt All South's Motion for Summary Judgment in regards to the La. R.S. 9:2800.17 claims. DRC and Cahaba also filed a Motion for Summary Judgment based on statutory immunity. PPG's Motion for Summary Judgment followed. The trial court granted all four motions for summary judgment, finding that Essex, All South, DRC, Cahaba, and PPG were immune from suit pursuant to La. R.S. 9:2800.17, and that no genuine issues of material fact exist as to gross negligence.

Fin & Feather appealed asserting that the trial court: 1) abused its discretion by limiting supplementation of the opposition to the motion for summary judgment, 2) erred by finding that La. R.S. 9:2800.17

applied to all of the defendants, and 3) erred by finding that no genuine issues of material fact exist as to gross negligence.

SUMMARY JUDGMENT

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.”

La. C.C.P. art. 966(A)(2)

. “The procedure is favored and shall be construed to accomplish these ends.” Id . A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits ... show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). “[U]nverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; ‘merely stapling them to a motion for summary judgment’ does not ‘magically’ transform such documents into competent summary judgment evidence.” Williams v. Mem'l Med. Ctr. , 03–1806, pp. 14–15 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, quoting

Schully v. Hughes , 00–2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222.

“The burden of proof remains with the movant.” La. C.C.P. art. 966(C)(2)

. However, “if the movant will not bear the burden of proof at trial,” the movant need not “negate all essential elements of the adverse party's claim ... but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim.” Id. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Appellate courts review the grant of a motion for summary judgment de novo. Hebert v. St. Paul Fire & Marine Ins. Cos. , 99–0333, p. 3 (La.App. 4 Cir. 2/23/00), 757 So. 2d 814, 815

. “Appellate courts use the ‘same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Weintraub v. State Farm Fire & Cas. Co. , 08–0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196–97, quoting

Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc. , 06–1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

SUPPLEMENTATION

Fin & Feather contends that the trial court abused its discretion by denying leave to supplement the opposition to motions for summary judgment “considering that the immunity defense had not even been properly asserted by three of the defendants.” However, Fin & Feather did not cite any law or jurisprudence to support the position.

La. C.C.P. art. 966(B)(1)

provided that an opposition to a motion for summary judgment shall be filed “within the time limits provided in District Court Rule 9.9.” District Court Rule 9.9(c) stated that an opposition should be filed “at least eight calendar days before the hearing, unless the court sets a shorter time.” Fin & Feather filed a Motion for Leave of Court to File Supplemental Memorandum in Opposition to Motions for Summary Judgment on September 23, 2015, which was two days after the hearing on the motions.

“The abuse-of-discretion standard is highly deferential to the trial judge's determination under consideration.” A.S. v. D.S. , 14–1098, p. 17 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 257

. “When called upon to review discretionary rulings by a trial judge, we are highly deferential to the trial judge.” Baker Ready Mix, LLC v. Crown Roofing Servs., Inc. , 15–0565, p. 7 (La.App. 4 Cir. 12/16/15), 183 So. 3d 622, 626. “Nevertheless, a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law.” A.S. , 14–1098, p. 17, 165 So.3d at 257. “An abuse of discretion, however, generally results from a conclusion reached capriciously or in an arbitrary manner.” Id.

Considering that Fin & Feather attempted to supplement the opposition after the conclusion of the hearing and the trial court's vast discretion, we do not find that the trial court abused its discretion by denying leave to file the...