96 1751 La.App. 1 Cir. 6/20/97, Sanders v. Ashland Oil, Inc.

• Decision Date: 20 June 1997
• Citation: 696 So.2d 1031
• Parties: 96 1751 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1031

696 So.2d 1031

96 1751 La.App. 1 Cir. 6/20/97

Charles Ray SANDERS, et al. v. ASHLAND OIL, INC., et al.

No. 96 CA 1751.

Court of Appeal of Louisiana First Circuit.

June 20, 1997.

Patrick Hufft, New Orleans, for Plaintiff/Appellee Charles Ray Sanders.

Richard J. Petre, Jr., Lafayette, for Defendant/Appellee Roy Eschette.

Henry L. Terhoeve, Baton Rouge, for Defendants/Appellants Roy Eschette, Protech Environmental Services, Inc., Aetna Life and Casualty Company, and Aetna Casualty and Surety Company.

Aub A. Ward , Baton Rouge, for Plaintiff/Appellee Bobbie O. Bickford.

Francis Touchet, Livingston, for Defendant/Appellee Roy Eschette d/b/a Protech Environmental.

Vincent Fornias, Baton Rouge, for Defendant/Appellee Alvin Fairburn & Associates, Inc.

Larry Canada, Michael Johnson, New Orleans, for Defendant/Appellee Continental Casualty Company.

Robert T. Meyers, New Orleans, for Defendant/Appellee Agricultural Excess and Surplus Insurance Company.

Stephen Elliott, Jeffrey K. Warwick, Metairie, for Defendant/Appellee Asbestos Consulting Services, Inc.

T. Howard Leach, III, Metairie, for Defendant/Appellee Intrepid Underwriters, Ltd.

Joseph E. Juban, Baton Rouge, for Defendant/Appellee Southern University, State of Louisiana.

John R. Keogh, Baton Rouge, for Defendants/Appellees Asbestos Design, Inc., Alvin Fairburn & Associates, Alvin Fairburn, Sr.

Louis Galvis, New Orleans, for Defendant/Appellee The Home Depot.

David K. Johnson, Baton Rouge, for Defendant/Appellee Aetna Casualty & Surety Company.

William Kaufman, III, Baton Rouge, for Defendant/Appellee Ribando Electrical Supply, Inc.

Mark Taylor, Metairie, Richard Petre, Lafayette, for Owen Joyner.

Before CARTER, LeBLANC and PARRO, JJ.

[96 1751 La.App. 1 Cir. 3] CARTER, Judge.

This is an appeal from a trial court judgment, granting a motion for summary judgment.

BACKGROUND

On December 8, 1990, employees of Protech Environmental Services, Inc. (Protech) were performing asbestos abatement services in connection with the renovation of Grandison Hall dormitory at Southern University in Baton Rouge, Louisiana. A fire began in the dormitory where two Protech employees, Charles Ray Sanders and Jesse Wayne Bickford, were removing mastic tile adhesive from the floors. As a result of the fire, Charles Ray Sanders sustained serious injuries, and Jesse Wayne Bickford was killed. The fire also caused substantial damage to the dormitory.

On December 6, 1991, Charles Ray Sanders and Bobbie O. Bickford, individually, as administratrix of the Estate of Jesse Wayne Bickford, and as tutrix of the minor children, Brian Wayne Bickford and Travis Dan Bickford, filed the instant action for personal injuries and punitive damages, under docket number 376,039. Numerous defendants were named in the petition, including the State of Louisiana, through the Office of Risk Management, Division of Administration Office of the Governor, and Southern University (the State); Protech; Roy Eschette, President of Protech; and Aetna Life and Casualty Company (Aetna Life), the liability insurer of Protech. Aetna Casualty and Surety Company (Aetna Casualty), the workers' compensation insurer of Protech, subsequently intervened in the action to exercise its right of subrogation.

In a separate action, the State filed suit against Protech and its building loss insurer, Great American Insurance Company (Great American), under docket number 376,088, for property damages sustained to the dormitory. This suit was subsequently settled, and the State entered into a "General Release and Indemnity Agreement" with Protech and Great American for the sum of $10,000.00.

[96 1751 La.App. 1 Cir. 4] On June 29, 1995, in the action for personal injuries and punitive damages, Eschette, Protech, Aetna Life, and Aetna Casualty (hereafter collectively referred to as Protech) filed a cross-claim and third-party demand against the State. Protech alleged that, under the second paragraph of the "General Release and Indemnity Agreement" executed in the property damage suit, the State agreed to indemnify Protech for any amounts for which it may be cast, together with legal interest and costs. Additionally, Protech alleged that Aetna Casualty had paid substantial sums to defend and protect Eschette and Protech in connection with the claims for which the State agreed to provide indemnity, and, therefore, it was entitled to reimbursement by the State.

The State answered, contending that, in entering into the release and indemnity agreement, the parties intended to settle only those claims arising out of the State's suit for property damage, not claims arising out of the suit for personal injuries and punitive damages.

On September 26, 1995, the State filed a motion for summary judgment on the cross-claim/third-party demand, contending that the release and indemnity agreement did not grant Protech indemnification by the State because the parties to the agreement did not intend for the indemnification to extend to any suit other than the State's suit for property damage. Attached to the motion for summary judgment were four exhibits: (1) the "General Release and Indemnity Agreement;" (2) request for admissions, interrogatories, and request for production of documents to Protech, including exhibits A through E attached thereto; (3) response to the request for admissions, interrogatories, and request for production of documents by Protech; and (4) the transcript of the stipulation to settle between the State and Protech.

On October 23, 1995, a hearing was held on the State's motion for summary judgment. At the conclusion of the hearing, the trial court, for oral reasons assigned, granted the motion for summary judgment, dismissing, with prejudice, Protech's contractual indemnity claims against the State and assessing costs to Protech. A judgment was signed on November 16, 1995.

[96 1751 La.App. 1 Cir. 5] Protech appealed, assigning the following specifications of error:

1. The trial court erred in interpreting the agreement contrary to the clear and unambiguous meaning of its terms.

2. The trial court erred in considering parol evidence purporting to show the parties' intent.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Kidd v. Logan M. Killen, Inc., 93-1322, p. 4 (La.App. 1st Cir. 5/20/94); 640 So.2d 616, 618; Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94); 637 So.2d 467; Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993); Kidd v. Logan M. Killen, Inc., 640 So.2d at 618-19.

A fact is material if its existence is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Miramon v. Woods, 25,850, p. 10 (La.App. 2nd Cir. 6/22/94); 639 So.2d 353, 359; Jarrell v. Carter, 632 So.2d at 323.

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Robertson v. Our Lady of Lake Regional Medical Center, 574 So.2d 381, 384 [96 1751 La.App. 1 Cir. 6] La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991). To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear what the truth is and excludes any real doubt as to the existence of material fact. Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120.

The jurisprudence has traditionally held that summary judgments were not favored and should be used cautiously and sparingly. Penalber v. Blount, 550 So.2d at 583; Kidd v. Logan M. Killen, Inc., 640 So.2d at 619. In determining whether material facts had, in fact, been disposed of, any doubt was to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This was true even if grave doubt existed as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La.App. 3rd Cir.1985). Where the trial court was presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions, the reasonable inferences were required to be viewed in the light most favorable to the party opposing the motion. Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991). However, by La. Acts 1996, First Extraordinary Session, No. 9, the legislature amended LSA-C.C.P. art. 966, stating in paragraph A(2) that:

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. (Emphasis added.)

LSA-C.C.P. art. 967 provides that an affidavit used in a motion for summary judgment "shall set forth such facts as...