Conti Enters. v. Providence/GSE Assocs.
| Docket Number | 2022 CA 1249[1] |
| Decision Date | 30 October 2023 |
| Parties | CONTI ENTERPRISES, INC. v. PROVIDENCE/GSE ASSOCIATES, LLC., ROBERT E. WILLIAMS, JR. AND ASPEN SPECIALTY INSURANCE COMANY |
| Court | Court of Appeal of Louisiana — District of US |
On Appeal from the 32nd Judicial District Court Terrebonne Parish State of Louisiana No. 174385 Judge Randall L Bethancourt, Presiding
Stephen P. Hall
Phelps Dunbar, LLP
New Orleans, Louisiana
Attorneys for Appellee/Defendant XL Specialty Insurance Company
Adrian G. Nadeau
J Weston Clark
Baton Rouge, Louisiana
Attorneys for Appellees/Defendants Hartman Engineering, Inc. and Jared Monceaux
Brian J. Marceaux
Julius P. Hebert, Jr.
In this appeal, Terrebonne Parish Consolidated Government (TPCG) appeals a trial court's judgment granting a motion for summary judgment dismissing all of TPCG's claims against Hartman Engineering, Inc. and Jared Monceaux (sometimes collectively referred to as "Hartman"). We affirm.
This lawsuit arises out of a road construction project in Terrebonne Parish commonly called the "Hollywood Road Widening Project" ("the Project"). On April 21, 2015, Conti Enterprises, Inc. (Conti), which served as the general contractor on the Project, filed a lawsuit against Providence/GSE Associates, LLC (Providence), Robert E. Williams, Jr., and Aspen Specialty Insurance Company, Providence's insurer. By amended petition filed on November 2, 2018, Conti added TPCG and the Louisiana Department of Transportation (DOTD) as defendants in the litigation.
In the original and amending petitions, Conti alleged that TPCG entered into a written contract with Providence to perform construction engineering and inspection services, including construction administration, in connection with the Project. Conti further alleged that it based its bid price on the ability to construct the Project in strict compliance with the plans, specifications, and bidding documents. Conti alleged that during construction, it became obvious that the plans, specifications, and bidding documents, including the portions designed, issued, and let for bid by TPCG and DOTD, were inadequate and insufficient for proper construction of the Project. Conti sought to recover all losses it claimed were caused by the wrongful acts of the defendants in connection with the design phase and construction administration of the Project, including all amounts for additional time, effort, manpower, labor, equipment and money for which Conti had not been paid, as well as extended overhead and home office expenses.
On May 14, 2020, TPCG filed a reconventional demand, cross-claim, and third-party demand in which it made Hartman and its insurer, XL Specialty Insurance Company (XLSIC), third party defendants in the litigation.[2] In the third-party demand, TPCG alleged that Hartman contracted with TPCG on October 7, 1998, to prepare an environmental assessment and to prepare plans and specifications for the roadway, including storm drains, associated with the Project. TPCG alleged that the TPCG-Hartman contract required Hartman to defend and indemnify TPCG and to maintain insurance for the Project, listing TPCG as an additional insured. TPCG asserted that in the event it was found liable to Conti, Hartman and its insurers were obligated to indemnify TPCG for any and all damages cast against TPCG in the Conti lawsuit for all costs and expenses, including attorney's fees. More specifically, TPCG alleged that if Conti was able to prove its allegations regarding the site conditions or defective roadway plans, Hartman, through its contract with TPCG, was liable to TPCG for its negligence or fault based upon Hartman's numerous alleged breaches of the TPCG-Hartman contract, including: preparing plans and specifications which contained errors and omissions; deficient preparation of topological surveys, roadway plans, including drainage specifications, environmental assessments and Project designs; and Hartman's deficient implementation of its scope of work associated with the Project.
On January 6, 2022, Hartman filed a motion for summary judgment in which it asserted that TPCG's claims were barred by the five-year peremptive period set forth in La. R.S. 9:5607 for actions seeking damages against a professional engineer. Hartman relied on La. R.S. 9:5607(A)(3), which provides that the peremptive period in a claim against an engineer that furnished services preparatory to construction, but did not perform inspection of the work, commences to run from the date the engineer has completed its services. According to Hartman, the services it was contracted by TPCG to perform in connection with the Project were completed when Hartman signed and sealed the last revision to its final set of roadway plans on September 16, 2013. Hartman urged that pursuant to La. R.S. 9:5607(A)(3), all claims against Hartman related to its services on the Project had to be brought no later than September 16, 2018. Since TPCG's third-party demand against Hartman was filed in May of 2020, nearly two years after the five-year peremption period had expired. Hartman argued that TPCG's claims were perempted as a matter of law and should be dismissed.
In opposition to the motion, TPCG insisted that the statutes pertaining to public works projects undertaken by DOTD provide the exclusive time limitation for all work arising out projects related to a DOTD contract. The provision relied on by TPCG, La. R.S. 48:251.3, provides that any action arising out or related to a DOTD contract or on a bond furnished by a contractor prescribes five years from recordation of the acceptance of such contract. According to TPCG, the DOTD prescription statutes applied to this case because the Project was let out by DOTD on TPCG's behalf, TPCG was required to follow the protocol set forth in the DOTD statutes, Hartman's work done on the Project undoubtedly arises out of and is related to the DOTD Project, and Hartman provided design services, inspection services, and other preparatory services outside of design engineering in connection with the Project. TPCG asserted that the five-year prescriptive period on such actions commenced on the date of acceptance of the work by DOTD was recorded. TPCG relied on evidence showing that on June 15, 2017, DOTD's chief engineer, Janice Williams, signed and approved the final acceptance of the Project and recorded that acceptance with the clerk of court in Terrebonne Parish. On June 23, 2017, TPCG filed its final accepted completion of the Project. TPCG urged that pursuant to the DOTD statutes, the five-year prescriptive period began to run on June 23, 2017, making its 2020 claims against Hartman timely.
Alternatively, TPCG maintained that if La. R.S. 9:5607's peremptive period in actions against engineers provides the applicable time limitation in this case, subsection (A)(1) governs its claims against Hartman, which provides the same time period for claims against engineers as La. R.S. 48:251.3-five years from the recordation date. Thus, TPCG posited that as a matter of law, it had five years from the recordation of the acceptance of the Project by DOTD to file its lawsuit against Hartman, La. R.S. 9:5607(A)(3) did not apply in this case, and Hartman was not entitled to summary judgment dismissing TPCG's claim.
On January 6, 2022, XLSIC filed a separate motion for summary judgment, seeking dismissal of all claims against it as Hartman's insurer. XLSIC argued in its motion that there was nothing in either the TPCG-Hartman Contract or the XLSIC insurance policy at issue which rendered TPCG an insured under that policy. XLSIC further argued that TPCG's claims on its alleged status as an additional insured of XLSIC were perempted. Therefore, XLSIC urged the trial court to grant its motion for summary judgment.
By judgment dated June 28, 2022, the trial court granted Hartman's motion for summary judgment, and in a second judgment signed on that same date, the trial court granted XLSIC's motion for summary judgment. TPCG filed separate motions appealing both judgments.[3] TPCG's appeal from the summary judgment rendered in favor of XLSIC was docketed as 2022-CA-1248, while the judgment granting Hartman's motion for summary judgment was docketed as 2022-CA-1249. In connection with both appeals, this court initially issued rules to show cause orders as to whether the appeals should be dismissed. Thereafter, this court maintained the appeals. Conti Enterprises, Inc. v. Providence/GSE Associates, LLC, 2022-1248 (La.App. 1 Cir. 4/17/23); Conti Enterprises, Inc. v. Providence/GSE Associates, LLC, 2022-1249 (La.App. 1 Cir. 4/17/23). The appeals were later consolidated for oral argument and submission by this court.
After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3); Turner v. Rabalais, 2017-0741 (La.App. 1 Cir. 12/21/17), 240 So.3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.
A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one...
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