Lawyers Title Ins. Co. v. Carey Hodges & Associates, Inc.

• Decision Date: 13 February 1978
• Docket Number: No. 11758,11758
• Citation: 358 So.2d 964
• Parties: LAWYERS TITLE INSURANCE COMPANY v. CAREY HODGES & ASSOCIATES, INC., and Paul J. Morel.
• Court: Court of Appeal of Louisiana — District of US

Page 964

358 So.2d 964

LAWYERS TITLE INSURANCE COMPANY v. CAREY HODGES & ASSOCIATES, INC., and Paul J. Morel.

No. 11758.

Court of Appeal of Louisiana,First Circuit.

Feb. 13, 1978.

Paul M. Hebert, Baton Rouge, of counsel for plaintiff-appellant Lawyers Title Insurance Corp.

Jack Roberts, Jr., Baton Rouge, of counsel for defendant-appellee Carey Hodges Associates, et al.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Lawyers Title Insurance Company (Appellant) subrogee of its insured, Lowe's Companies, Inc. (Lowe's), appeals dismissal of its subrogated demand against defendants Carey Hodges & Associates, Inc. (Surveyor) and Surveyor's employee Paul J. Morel, for reimbursement of a claim paid Lowe's pursuant to a policy of title insurance issued by Appellant covering a parcel of land purchased by Lowe's on the strength of a survey by Surveyor. The survey erroneously located drainage facilities on Lowe's land which in reality were on neighboring land. Relying on the survey, Lowe's planned its drainage to utilize the facilities indicated as being on its property. The error was discovered after Lowe's installed its drainage. The work installed by Lowe's had to be removed and new facilities constructed. The trial court found that Surveyor made a mistake but that a mistake does not necessarily constitute actionable negligence and rejected Appellant's demand on the ground that Appellant failed to produce expert testimony to establish Surveyor's negligence by showing that Surveyor failed to exercise the degree of skill and care exercised by other surveyors in the vicinity. We reverse and render judgment for Appellant.

Subject property fronts on a service road running along and parallel to the north side of Florida Boulevard in Baton Rouge, which thoroughfare is subject to the jurisdiction of the State Department of Highways. Surveyor's plat, dated July, 1973, shows a 24"' reinforced concrete pipe situated in the southwest corner of Lowe's property beginning at the south property line and lying approximately one foot east of Lowe's western boundary. The pipe was in fact one foot inside the east boundary line of Lowe's adjoining owner Howard J. Brinkhaus. The plat also shows three catch basins, each measuring 3' X 4% 2c, and a 24"' pipe lying within the highway right of way parallel to Lowe's front property line.

Lowe's intended to use the land for a large retail outlet. Prior to purchasing the location, Lowe's had the property inspected by its design and construction Engineer, Ken Canter. With Surveyor's plat in hand, Canter went on the property and observed the drainage facilities existing in the highway right of way, including the 24"' drain pipe and some catch basins. He also saw the drain pipe which Surveyor's plat indicated was located on the land which Lowe's proposed to purchase. Fearing that there might be a drainage problem, Canter contacted representatives of the Highway Department and was told emphatically that no additional drainage would be permitted to empty into the Department's existing facilities. After careful study of the situation, Canter concluded that the drain pipe shown on Surveyor's plat was adequate to drain the property Lowe's intended to buy. He then gave his approval of the purchase. Lowe's then purchased the land and began construction in November, 1973. The work included a drainage system consisting of curbs, gutters, catch basins and other facilities designed to channel water from Lowe's premises into the drainage system within the highway right of way via the drainage pipe shown on Surveyor's plat. Lowe's completed its project in early July, 1974, and scheduled the opening of its new store for July 26, 1974. On July 2, 1974, Lowe's first received notice, in the form of a letter from Brinkhaus, that Lowe's had erroneously utilized drainage facilities located on Brinkhaus' land. On July 12, 1974, Lowe's received a letter from Charles Hair, Chief Engineer of the City-Parish Government, informing Lowe's that Brinkhaus' complaint was being investigated. Before Lowe's could open its store, it had to have an occupancy permit from the City-Parish Government. It was made plain to Lowe's that the permit would not be forthcoming until the drainage problem was solved. Lowe's then requested bids from several contractors, including its on-the-job contractor, to perform the work necessary to remedy the error. Lowe's on-the-job contractor submitted a low bid of $8,983.00. On July 19, 1974, Lowe's deposited a cash bond of $8,983.00 with City-Parish authorities as a good faith deposit to insure performance of the remedial work. Lowe's also requested and, on July 22, 1974, was granted a permit by the Department of Highways to install a catch basin within the highway right of way to drain into the Department's system.

The curative work involved removal of the encroachment from Brinkhaus' land. This necessitated a complete revamping of the original drainage plan including removal and relocation of curbing, installation of more than 200' of pipe, construction of catch basins, removal of some asphalt paving, reworking a sewerage treatment plant, seeding, landscaping and miscellaneous clean up. The contractor submitted to Lowe's a bill for $8,215.00 which Lowe's paid...