Maldonado v. Kiewit La. Co.

• Decision Date: 26 September 2014
• Docket Number: Nos. 2012 CA 1868,2012 CA 1869.,s. 2012 CA 1868
• Citation: 152 So.3d 909
• Court: Court of Appeal of Louisiana — District of US
• Parties: 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, LP A 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.

152 So.3d 909

Maria Cruz MALDONADO, individually and as Representative of the Estate of Ulvaldo Soto Martinez, deceased, and as next friend and naturalguardian of Justin Soto–Maldonado and Usvaldo Jesus Soto–Maldonado, minors, Maria Martinez Vasquez, as naturalmother 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 GeneralPartner of KMTC, Kiewit Southern Corp. as a Partner of KMTC, Massman Construction Co. as a Partner of KMTC, GEC Louisiana Timed Managers, A Joint VenturePartnership, PB Americas, Inc. f/k/a Parsons, Brinckerhoff, Quade & Douglas, Inc. As Partner of GEC Louisiana Timed Managers, A Joint VenturePartnership, LP A Group Incorporated as partner of GEC Louisiana Timed Managers, A Joint VenturePartnership, G.E.C. Inc. As Partner of GEC Louisiana Timed Managers, A Joint VenturePartnership, Zurich American Insurance Company, TheState 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, TheLouisiana Department of Transportation and Development, Arch Insurance Company, Louisiana Timed Managers, A Joint VenturePartnership.

Nos. 2012 CA 1868, 2012 CA 1869.

Court of Appeal of Louisiana, First Circuit.

May 30, 2014

Rehearing Denied March 24, 2014

Rehearing Denied Sept. 26, 2014

Affirmed as amended in part, reversed in part, and remanded.

Guidry, J., concurred in part, dissented in part, and assigned reasons and would grant rehearing.

McDonald, J., agreed in part, dissented in part, and assigned reasons.Joseph L. McReynolds, Terrence L. Brennan, Francis J. Barry, Scott J. Hedlund, New Orleans, LA, for Defendant–Appellant, Modjeski & Masters, Inc.

H. Alston Johnson, III, Baton Rouge, LA, David S. Bland, Beau E. LeBlanc, Charles G. Clayton, IV, Allison R. Colon, Madeleine Fischer, Jennifer L. Simmons, Richard Edward King, New Orleans, LA, for Defendants–Appellants, Kiewit Louisiana Co., Massman Construction Co, and Traylor Bros, Inc., A Joint 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, 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, for Plaintiff–Appellee, Gilberto Martinez.

Before WHIPPLE, C.J., GUIDRY, McDONALD, McCLENDON, and 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.¹The 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.KMTC–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–JV's 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.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.²Maldonado 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 plaintiffs' 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–JV 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, Zurich ³ 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, 2003–0339, 2003–0349 (La.5/30/03), 845 So.2d 1059–1060, cert. denied,540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282(2003).Factual...