Maldonado v. Kiewit Louisiana Co., 053014 LACA1, 2012 CA 1868

Docket Nº:2012 CA 1868, 2012 CA 1869
Opinion Judge:HIGGINBOTHAM, J.
Party Name:MARIA CRUZ MALDONADO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ULVALDO SOTO MARTINEZ, DECEASED, AND AS NEXT FRIEND AND NATURAL GUARDIAN OF JUSTIN SOTO-MALDONADO AND USVALDO JESUS SOTO-MALDONADO, MINORS, MARIA MARTINEZ VASQUEZ, AS NATURAL MOTHER OF ULVALDO SOTO MARTINEZ AND GILBERTO SOTO MARTINEZ v. KIEWIT LOUISIANA CO. D/B/A KIEWIT MASSM
Attorney:Joseph L. McReynolds Terrence L. Brennan Francis J. Barry Scott J. Hedlund New Orleans, LA, Attorneys far Defendant-Appellant, Modjeski & Masters, Inc. H. Alston Johnson, III Baton Rouge, LA David S. Bland Beau E. LeBlanc New Orleans, LA Charles G. Clayton, IV Allison R. Colon New Orleans, LA Mad...
Judge Panel:BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, McCLENDON, HIGGINBOTHAM, JJ. GUIDRY, J., concurs in part, dissents in part, and assigns reasons. McDONALD, J., agreeing in part and dissenting in part:
Case Date:May 30, 2014
Court:Court of Appeals of Louisiana
 
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MARIA CRUZ MALDONADO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ULVALDO SOTO MARTINEZ, DECEASED, AND AS NEXT FRIEND AND NATURAL GUARDIAN OF JUSTIN SOTO-MALDONADO AND USVALDO JESUS SOTO-MALDONADO, MINORS, MARIA MARTINEZ VASQUEZ, AS NATURAL MOTHER OF ULVALDO SOTO MARTINEZ AND GILBERTO SOTO MARTINEZ

v.

KIEWIT LOUISIANA CO. D/B/A KIEWIT MASSMAN TRAYLOR CONSTRUCTORS A/K/A KMTC, TRAYLOR BROS., INC., KIEWIT SOUTHERN CO., & MASSMAN CONSTRUCTION CO., A JOINT VENTURE, TRAYLOR BROS., INC. AS A GENERAL PARTNER OF KMTC, KIEWIT SOUTHERN CORP. AS A PARTNER OF KMTC, MASSMAN CONSTRUCTION CO. AS A PARTNER OF KMTC, GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, PB AMERICAS, INC. F/K/A PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, LPA GROUP INCORPORATED AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, G.E.C. INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, ZURICH AMERICAN INSURANCE COMPANY, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND JL STEEL REINFORCING, LLC.

TWIN CITY FIRE INSURANCE COMPANY

v.

JL STEEL REINFORCING, LLC, KIEWIT LOUISIANA CO., MASSMAN CONSTRUCTION CO., AND TRAYLOR BROS, INC. D/B/A KIEWITT MASSMAN TRAYLOR CONSTRUCTORS, A JOINT VENTURE, ZURICH AMERICAN INSURANCE COMPANY, THE LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, ARCH INSURANCE COMPANY, LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP

Nos. 2012 CA 1868, 2012 CA 1869

Court of Appeals of Louisiana, First Circuit

May 30, 2014

On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge. State of Louisiana Trial Court Nos. 582, 129, 601, 860 Honorable Janice Clark, Judge Presiding.

Joseph L. McReynolds Terrence L. Brennan Francis J. Barry Scott J. Hedlund New Orleans, LA, Attorneys far Defendant-Appellant, Modjeski & Masters, Inc.

H. Alston Johnson, III Baton Rouge, LA David S. Bland Beau E. LeBlanc New Orleans, LA Charles G. Clayton, IV Allison R. Colon New Orleans, LA Madeleine Fischer New Orleans, LA, Jennifer L. Simmons Richard Edward King New Orleans Attorneys for Defendants- Appellants, Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc., A 7oint Venture, Kiewit Engineering Company and Zurich American Insurance Company.

Kenneth H. Hooks, III Baton Rouge, LA Mark D. Plaisance Thibodaux, LA Juan C. Hernandez Dallas, TX, Attorneys for Plaintiffs-Appellees, Maria Cruz Maldonado, Individually and as Representative of the Estate of Ulvaldo Soto Martinez, Deceased, and as Next Friend and Natural Guardian of Justin Soto-Maldonado and Usvaldo Jesus Soto- Maldonado, Minors

Robert Lyon Rowlett, TX, Attorney for Plaintiff-Appellee, Gilberto Martinez.

BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, McCLENDON, HIGGINBOTHAM, JJ.

HIGGINBOTHAM, J.

Defendants appeal a judgment rendered in favor of the plaintiffs after an eight-day jury trial in which the jury found a general contractor liable to its statutory employee for an "intentional act." The jury also found the engineering companies responsible for guy wiring and bridge design liable under a negligence theory. For the reasons assigned, we reverse the jury verdict in part, amend in part, affirm in part as amended, and render judgment.

FACTS AND PROCEDURAL HISTORY

This is a wrongful death case arising out of the collapse of a steel reinforcing bar (rebar) cage built during a 2009 bridge-widening project on the Huey P. Long Bridge near the Westbank of the Mississippi River in Bridge City, Louisiana. Two men who were working on the rebar cage, Ulvaldo Soto Martinez and Martin Reyes, died as a result of the collapse.1 The decedents were employees of J.L. Steel Reinforcing, LLC (J.L. Steel), which was the subcontractor responsible for constructing the rebar cage and securing it in place on top of a 60-foot-high footing that had been built to support one of the bridge columns. The rebar cage was actually designed and built to become the interior reinforcement for the vertical concrete column known as W-2, which would ultimately support part of the newly widened roadbed for the bridge. The rebar cage was raised by a crane and placed on top of the column footing that had been erected days prior to the collapse of the cage.

The Louisiana Department of Transportation and Development (DOTD) contracted with the design engineering firm of Modjeski & Masters, Inc. (M&M) to design the bridge-widening project. DOTD contracted with a joint venture of Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc., (KMTC-JV), a new company that was jointly formed for purposes of the project, to serve as the general contractor on the project. Kiewit. Engineering Co. (KECO) was hired by KMTC-JV to design guy-wiring plans to be used by KMTC-JV in connection with the placement of the steel rebar cages. The purpose of the guy wiring plan was to protect the rebar cage from possible collapse due to wind forces. KMFC-JV subcontracted with the decedents' employer, J.L. Steel, to pre-assemble and install steel rebar cages for the project. CMC Rebar manufactured the steel rebars that were used on the project and also created the placement plan drawing for the W-2 column.

On June 12, 2009, KMTC-JV employees used two cranes to raise the pre-constructed 62, 888-pound rebar cage that had been built by J.L. Steel employees in a horizontal position on the ground. One crane lifted the top portion of the 55 to 60-foot tall cage while the other was used, , temporarily, to hold the bottom of the cage steady. KMTC-JVs crane operator, Jeff Mayon, operated the lift and placed the rebar cage on top of the column footing. J.L. Steel's workers, Martinez and Reyes, then tied the rebar extending from the column footing on which they were standing to the rebar cage that had just been set in place. KMTC-JV employees tied guy wires from various levels of the rebar cage to 9, 600-pound concrete deadman blocks on the ground, x After the tie-in was complete, Martinez and Reyes were instructed to unhook the crane from the top of the rebar cage, Within thirty minutes of the removal of the crane, the rebar cage collapsed and the two workers fell approximately 60 feet to their deaths.

On September 2, 2009, suit was filed by Martinez's wife, Maria Cruz Maldonado, individually, as representative-of the decedent's estate, and on behalf of their two minor children, Justin and Usvaldo Maldonado, and by the decedent's brother, Gilberto Soto Martinez (hereafter referred to as plaintiffs). Made defendants were KMTC-JV, KECO, their insurer Zurich American Insurance Company (Zurich), M&M and others.2 Maldonado asserted a survival claim on behalf of Martinez' estate and wrongful death claims on behalf of herself and her two children. Gilberto Martinez asserted a claim for bystander damages pursuant to La. Civ. Code art, 2315.6 Plaintiffs asserted claims against KMTC-JV for negligence and "intentional acts, " Plaintiffs' claims against KECO and M&M were based in negligence. On the first. day, of trial, the trial court granted KMTC-JV's motion for summary judgment, finding that Martinez was the statutory employee of KMTC-JV, thereby limiting the plaintiffs1 recovery from KMTC-JV to workers' compensation unless plaintiffs could prove that KMTC-JV acted intentionally in causing Martinez's death.

After trial, the jury rendered a verdict against KMTC-A^ for intentional acts. It also concluded that KECO and M&M were negligent in causing the accident. The jury allocated fault as follows: 80% to KMTC-JV, 10% to KECO, and 10% to M&M. The jury awarded a total of $13 million to plaintiffs. The trial court entered a judgment in accordance with the jury verdict on June 1, 2012. KMTC-JV, KECO, Zurich3 and M&M all suspensively appealed the judgment

ASSIGNMENTS OF ERROR

Defendants KMTC-JV and KECO aver that the trial court legally erred in admitting evidence of subsequent remedial measures, prior dissimilar accidents not involving KMTC-JV or KECO, privileged attorney-client communications, and prejudicial photographs. They also contend that the trial court gave erroneous instructions and an erroneous verdict form to the jury. These defendants maintain that all of the legal errors tainted the jury's verdict, thereby requiring de novo review by this court. These defendants further argue that, even if the trial court did not commit legal error, the jury committed manifest error in concluding that KMTC-JV acted intentionally in causing the death of Martinez; assigning 10% fault to KECO; and alternatively, awarding excessive damages.

Defendant M&M avers that the trial court committed legal error in allowing plaintiffs' expert to give opinion testimony on the interpretation of M&M's contract with DOTD; prohibiting M&M from meaningful cross-examination of plaintiffs' expert on voir dire regarding the local standard of care applicable to M&M's performance; and refusing to allow M&M's expert to testify as a professional engineer because, in retired status, he did not maintain his license. M&M further avers that the jury erred in finding M&M at fault and in awarding Martinez's brother mental anguish damages without evidence to support the claim and in awarding him excessive damages. M&M also contends that the jury erred in awarding excessive damages to Martinez's surviving wife and two minor sons and in awarding excessive general damages for suffering by Martinez before his death.

STANDARD OF REVIEW

The resolution of legal issues may involve questions of fact and questions of law. Wingfield v. State, ex rel. Dept. of Transp. and Development, 2001-2668, 2001-2669 (La.App. 1st Cir. 11/8/02), 835 So.2d 785, 799, writs denied, 2003-0313...

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