Cajun Contractors, Inc. v. Peachtree Prop. Sub, LLC

• Decision Date: 30 June 2021
• Docket Number: A21A0311, A21A1120
• Citation: 360 Ga.App. 390,861 S.E.2d 222
• Court: Georgia Court of Appeals
• Parties: CAJUN CONTRACTORS, INC. v. PEACHTREE PROPERTY SUB, LLC et al. Cajun Contractors, Inc. v. Laguerre et al.

360 Ga.App. 390

861 S.E.2d 222

CAJUN CONTRACTORS, INC.

v.PEACHTREE PROPERTY SUB, LLC et al.

Cajun Contractors, Inc.

v.Laguerre et al.

A21A0311, A21A1120

Court of Appeals of Georgia.

June 30, 2021

Laurie Webb Daniel, Atlanta, Todd Michael LaDouceur, Michael Austin Moretz, Matthew D. Friedlander, Philip J. George, Atlanta, for Appellant in A21A0311.

Robert David Ware, Russell A. Britt, Pearson Kern Cunningham, Atlanta, for Appellee in A21A0311.

Laurie Webb Daniel, Atlanta, Todd Michael LaDouceur, Michael Austin Moretz, Matthew D. Friedlander, Philip J. George, Atlanta, for Appellant in A21A1120.

Quynh-Huong Nguyen Davis, Bethany Lynn Schneider, Michael Brian Terry, Robert David Ware, Nneka Alysia Egwuatu, Pearson Kern Cunningham, Atlanta, for Appellee in A21A1120.

Barnes, Presiding Judge.

Max Laguerre was injured by a metal pipe that fell from a construction site located on the roof of a hotel. Laguerre settled his negligence claims against the entities that owned and managed the hotel, Peachtree Property Sub, LLC, d/b/a Crowne Plaza Hotel Atlanta-Midtown, FO Peachtree Property, LLC, d/b/a Crowne Plaza Hotel Atlanta-Midtown, and AWH Partners, LLC, d/b/a Crowne Plaza Hotel Atlanta-Midtown (collectively, the "Hotel Defendants"). A trial thereafter ensued on Laguerre's negligence claims against the general contractor for the construction project, Cajun Contractors, Inc., and the jury awarded Laguerre compensatory and punitive damages and apportioned 100 percent of the fault to Cajun. The trial court subsequently awarded attorney fees to Laguerre under OCGA § 9-11-68 based on Cajun's pre-trial rejection of his offer to settle. Additionally, the trial court granted summary judgment in favor of the Hotel Defendants on their cross-claims for contractual indemnification against Cajun. These companion appeals followed.

In Case No. A21A1120, Cajun appeals from the final judgment entered on the jury verdict, contending that the trial court erred in denying its motions for directed verdict, for judgment notwithstanding the verdict ("JNOV"), and for a new trial, and that the trial court erred in its award of attorney fees to Laguerre. In Case No. A21A0311, Cajun appeals the trial court's order granting summary judgment in favor of the Hotel Defendants on their contractual indemnification cross-claims. For the reasons discussed more fully below, we affirm in Case No. A21A1120 but reverse in Case No. A21A0311.

Case No. A21A1120

Following a jury verdict, we view the evidence in the light most favorable to the prevailing party. Norton v. Holcomb , 299 Ga. App. 207, 208, 682 S.E.2d 336 (2009). So viewed, the evidence shows that in March 2015, Cajun entered into a contract to perform renovation work at the Crowne Plaza Atlanta – Midtown Hotel, which was owned and managed by the Hotel Defendants (the "Trade Contract"). Under the Trade Contract, Cajun agreed to supervise the work done on the renovation project and to be liable for any loss or damage to the property or injuries to persons caused by the action or neglect of its employees, subcontractors, or consultants. Cajun also agreed to "keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by operations under the [Trade] Contract," and to "take all reasonable actions needed to provide clean, unencumbered, well defined, and safe access to the Owner's facilities for vehicles, guests, visitors, and employees."

The renovation project was later expanded through a change-work order to include renovations to the outside pool deck located on the roof of the hotel.¹ As part of the renovation, Cajun was to demolish cabanas and a wall along the edge of the hotel roof. Cajun hired RYR Construction, LLC² to perform some of the renovation work at the hotel, including the painting of a ballroom and the pool deck renovation. With respect to the pool deck renovation, workers for RYR considered Troy Bossier, the president of Cajun, to be their boss on the job, and he was at the work site everyday and controlled the demolition work done in the pool area. No decisions were made about the work done on the roof without first talking to Bossier, who would come to the pool deck and direct RYR workers "as to what part of the project they should be doing." Cajun provided tools and equipment to RYR, told RYR what hours it could work on the pool deck, devised the plan for demolishing the rooftop wall and the sequence in which the work should be performed, and controlled the work site and work flow.

Before the work on the pool renovation commenced, Cajun did not develop a public hazard control plan or a site-specific safety plan, have any safety meetings with RYR, or inform RYR of any safety rules. Cajun simply told RYR to ensure that nothing fell from the roof, even though RYR had no prior experience performing exterior demolition work. No barriers, catch platforms, enclosures, or perimeter debris netting were installed to protect the public from hazards from the rooftop construction site. No signs were placed outside the hotel to warn that there was construction overhead, and no portion of the sidewalk below was blocked off with barricades. Nor was any effort made to relocate the hotel taxi stand, which was in the front of the hotel below the elevated construction site.

On July 20, 2015, RYR was demolishing part of the wall along the side of the hotel roof, which caused the cabanas to shake. As a result of the shaking caused by the demolition work, an unsecured eight-foot metal pipe fell from the roof of one of the cabanas down the side of the hotel and struck Laguerre, a taxi cab driver, who was standing outside of his cab at the hotel taxi stand.³ As a result of the impact, Laguerre suffered a broken nose and injuries to his arm, face, head, and wrist, and he was diagnosed with a "mild traumatic brain injury." Prior to the incident, RYR had not inspected the pool cabana roofs, even though one of RYR's partners who worked on the project acknowledged that he knew that there was a danger of objects or debris falling from the hotel roof as a result of the demolition work, and even though Cajun had provided ladders to RYR so that workers could see and reach the top of the cabanas. Nor did Cajun ever direct RYR to conduct such an inspection as part of the demolition plan that Cajun developed, and Cajun disavowed any responsibility to itself conduct a safety inspection.

In April 2017, Laguerre filed suit against the Hotel Defendants and Cajun.⁴ Laguerre's complaint alleged, among other things, that Cajun breached its duty of reasonable care by negligently failing to implement safety precautions for the pool renovation project and by negligently training, supervising, and retaining those who worked on the project. The complaint further alleged that Cajun was vicariously liable under respondeat superior and agency principles for the negligence of RYR in failing to secure the construction site from the risk of falling objects. Laguerre sought compensatory damages and later amended his complaint to seek punitive damages.

Shortly before trial, the Hotel Defendants reached a settlement with Laguerre.⁵ In the ensuing jury trial between Laguerre and Cajun, AWH Partners, which was the Hotel Defendant that hired Cajun and communicated with Bossier about the pool renovations, remained on the special verdict form for apportionment purposes. Following the close of evidence in the liability phase of the trial, the jury returned a verdict in favor of Laguerre and against Cajun, awarding Laguerre $5,000,000 in compensatory damages and finding that Laguerre was entitled to recover punitive damages. On the special verdict form, the jury found that the employees of RYR were employees of Cajun such that Cajun was vicariously liable for the negligence of RYR. The jury apportioned 100 percent of the fault to Cajun and no fault to AWH Partners. After a second phase of the trial addressing the amount of punitive damages, the jury awarded $500,336 in punitive damages to Laguerre.

The trial court entered judgment in favor of Laguerre and against Cajun in the amount of $5,250,000, representing the jury's award of compensatory damages of $5,000,000 and a statutorily capped $250,000 for punitive damages. See OCGA § 51-12-5.1 (g). Cajun moved for JNOV and for a new trial,⁶ and the trial court denied the motions following a hearing on the matter. Laguerre moved for attorney fees under OCGA § 9-11-68 based on a prior offer of settlement he made to Cajun that had been rejected, and he submitted affidavits from his trial counsel and an expert in support of his motion. After a hearing, the trial court awarded Laguerre $1,050,000 in attorney fees and $45,196.47 in litigation expenses.

1. Cajun contends that the trial court erred in denying its motions for directed verdict, for JNOV, and for a new trial.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant's motion for directed verdict, new trial and JNOV will not be disturbed.

(Citation and punctuation omitted.) Mosaic Business Advisory Svcs. v. Stone , 336 Ga. App. 28, 28, 784 S.E.2d 426 (2016). Guided by this standard of review, we turn to Cajun's specific arguments.

(a) Cajun argues that it was entitled to a directed verdict on the issue of its vicarious liability for the negligence of RYR. According to Cajun, there was no evidence presented at trial to support a finding by the jury that the employees of RYR were acting as employees of Cajun in carrying out the...