Home Ins. Co. v. A. J. Warehouse, Inc.
| Decision Date | 06 May 1968 |
| Docket Number | 1826,Nos. 1825,s. 1825 |
| Citation | 210 So.2d 544 |
| Parties | The HOME INSURANCE COMPANY et al. v. A. J. WAREHOUSE INC., et al. A. J. WAREHOUSE, INC. v. UNION ASBESTOS & RUBBER COMPANY et al. |
| Court | Court of Appeal of Louisiana — District of US |
Hammett, Leake & Hammett, H. L. Hammett, New Orleans, for A. J. Warehouse, Inc., appellant.
Ralph L. Kaskell, Jr., of Deutsch, Kerrigan & Stiles, New Orleans, Frederick R. Bott, New Orleans, of counsel, for Continental Casualty Co., third-party plaintiff and third-party defendant.
Normann & Normann, Frank S. Normann, Margot Mazeau, New Orleans, for Union Asbestos and Rubber Co. and Zurich Ins. Co., defendants-appellants-appellees.
Bienvenue & Culver, H. F. Foster, III, New Orleans, for Home Ins. Co. and Flintkote Co., plaintiffs-appellees.
Drury & Lozes, James H. Drury, New Orleans, for American Employers' Ins. Co., defendant-appellee.
Sessions, Fishman, Rosenson & Snellings, New Orleans, for Allied Equipment Sales, Inc., defendants-appellants, and third-party defendant-appellee.
Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Gordon O. Ewin, New Orleans, and William E. Crawford, Baton Rouge, for George V. LeGardeur, Jr., appellant.
Milling, Sal, Saunders, Benson & Woodward, J. Henry Phillips, III, New Orleans, for Carl E. Woodward, Inc., Carl E. Woodward and Armand LeGardeur, defendants and third-party defendants-appellees.
Christovich & Kearney, A. R. Christovich, Sr., New Orleans, for Fidelity and Casualty Co. of New York, third-party defendant and appellee, and third-party plaintiff and reconvenor against Continental Casualty Co.
Gauche, Wegener & Oster, Robert J. Oster, New Orleans, for Frank S . Foster, Jr., appellee.
Before SAMUEL, CHASEZ and JANVIER, JJ.
This involved litigation arose out of the collapse of a section of steel storage racks in the A. J. Warehouse in the City of New Orleans on April 26, 1961. A large quantity of floor tiles, which had been stored on the collapsed racks, were destroyed in the accident and the falling racks and tiles also damaged other merchandise stored nearby.
Two suits were filed as a result of the accident. They were consolidated for the purposes of trial and in that posture are before us in this appeal.
The plaintiffs in the first suit, No. 1825 of our docket, are The Flintkote Company, the manufacturer and supplier of the floor tiles, and its insurer the Home Insurance Company. The defendants in this suit are A. J. Warehouse, Inc. (hereinafter referred to as 'A.J.'), the owner of the warehouse; American Employers' Insurance Company, an insurer of A.J.; Union Asbestos and Rubber Co., Sturdi-Bilt Material Handling Division (now known as Unarco Industries, Inc. and referred to herein as 'Unarco'), the designer and manufacturer of the collapsed storage racks; Zurich Insurance Company, the insurer of Unarco; George V. LeGardeur, Jr., Armand LeGardeur, Carl E. Woodward and Carl E. Woodward, Inc., parties involved in the design and construction of the warehouse; and Allied Equipment & Sales, Inc ., referred to herein as 'Allied,' the local distributor for Unarco.
Flintkote and Home Insurance claimed the sum of $69,523.22, the amount allegedly lost by the destruction of the floor tiles. They invoked the doctrine of res ipsa loquitur on the ground that all of the facts and circumstances concerning the collapse of the racks were exclusively within the knowledge and control of the defendants. Alternatively plaintiffs alleged particular acts of negligence on the part of each of the defendants.
The defendant George V. LeGardeur, Jr., in turn made third party demands against Fidelity & Casualty Company of New York and Continental Casualty Company. He alleged these companies were his insurers under certain professional liability insurance policies and as such owed him coverage for any liability to which he might be exposed as a result of the suit.
In addition to making a third party claim against George V. LeGardeur, Jr. and Fidelity, Continental also brought in Frank S. Foster, an individual who later became LeGardeur's business associate, as a third party defendant.
Unarco, Zurich, Allied and George LeGardeur each made third-party claims against their original codefendants for any amount they might be condemned to pay.
The second suit, No. 1826 of our docket, which also forms a portion of this appeal, was an action by A.J. against Unarco, Zurich, Allied and George V. LeGardeur, Jr., for $139,272.09, allegedly the damages suffered by Flintkote, loss of storage area by A.J., and the value of other products in the warehouse which were also destroyed in the rack collapse.
Third party actions were initiated in this suit, similar to those in the first action. George LeGardeur brought in Continental & Fidelity as defendants and each of the defendants named other codefendants as third party defendants.
In this posture the entire matter came to trial. The trial judge found the doctrine of res ipsa loquitur applicable. Under this theory he held that certain defendants in the first suit, George V. LeGardeur, Jr., Carl E. Woodward, Carl E. Woodward, Inc., Armand LeGardeur, Allied, and American Employers' Insurance, had successfully carried their burden of proving they were not at fault in connection with the collapse of the storage racks and he dismissed the suit as to them. However, the trial judge found that Unarco and its insurer Zurich had failed to prove they were not negligent and, applying res ipsa loquitur, he rendered judgment against them. As to A.J., which had not contested its liability to Flintkote and Home Insurance, the trial judge found it to be guilty of particular acts of negligence which contributed to the collapse of the racks, and cast it in judgment with Unarco and Zurich for $69,523.22 the full amount of the claim. The Court rejected the third party demands of Unarco and Zurich. The extent of Zurich's liability was recognized as $50,000, the policy limits of its contract with Unarco.
As an element of this judgment the trial judge recognized Continental Casualty Company as the insurer of George V. LeGardeur, Jr. and as such he held it owed LeGardeur a defense of this suit. Accordingly, Continental was cast for $7,000, the expenses the trial court found LeGardeur had incurred as a result of Continental's refusal or failure to defend on behalf of its insured.
All other third party demands by all parties were dismissed.
In the second action, No. 1826, the trial judge found A.J. had been contributorily negligent in the collapse of the storage racks and therefore barred from a recovery; its suit was dismissed in toto .
Again, as in the first suit, Continental was recognized as insurer of George V. LeGardeur, Jr., and was condemned to pay to him $7,000 as his attorney's fees for defending himself in this second suit.
All other third party demands were dismissed.
Appeals have been taken by A.J. from both judgments; by Continental from both judgments; and by Unarco and Zurich from the judgment in the other consolidated suit. All successful parties in the two suits have answered these appeals. George V. LeGardeur, Jr. incorporated as part of his answer to both of Continental's appeals, a plea that his legal expenses be increased in each from $7,000 to $10,000, that he be awarded the 12% Penalty as per R.S. 22:658, and that his expense for answering each appeal be set at $3,000 and be included as damages.
The entire matter is now before us for our consideration of the merits.
Certain facts appear from the record to be clear and uncontradicted and at this point, as did the trial judge in his reasons for judgment, we accept those facts as true. They are:
In the fall of 1959 A.J. entered into an agreement with Carl E. Woodward, Inc., whereby the latter contracted to design and partially construct a warehouse for A.J. At A.J.'s request the floor of the warehouse was to consist of a 'floating slab' of concrete. A.J. itself was to do most of the construction work, other than the structural framework of the building, including the actual construction of the 'floating slab' floor. Carl E. Woodward, Inc., engaged the services of George V. LeGardeur, Jr., for the design of the warehouse foundation and floor. During the trial much was made of LeGardeur's recommendation to use sloping pedestal foundations for the warehouse.
While the warehouse was under construction A.J. contracted with Flintkote to store Flintkote's tile in the warehouse when it was completed. A.J. then contracted with Unarco to supply storage racks to accommodate the tile in the warehouse. A.J. made the arrangements for the acquisition of the racks through Allied, a local distributor of Unarco. Unarco undertook to design and build racks specifically to support the Flintkote tiles.
The racks when completed were delivered to A.J. and installed by A .J., through its own employees, under the direction of Allied. After the installation of the racks they were then loaded with the Flintkote tiles and were used for storage for a period of approximately eight months prior to their collapse. The basic question underlying this whole litigation then is: who was to blame for the collapse of the racks? To answer this question we must first decide an even more basic question: what actually caused the racks to collapse?
Each of the parties involved had their own version of what caused the racks to collapse. Actually, the question of ultimate liability by someone to Flintkote and its insurer is not denied by any party and A.J. admits its liability, but without admitting negligence on its part, to Flintkote and Home Insurance. Each defendant attempted to fix the blame on one or all of the other defendants.
In the first suit Flintkote and its insured alleged there were many different factors which, added together, caused the failure of the storage racks. First, they alleged A.J. was negligent in its method of assembling,...
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