Ordonez v. W. T. Grant Co.
| Decision Date | 09 July 1974 |
| Docket Number | No. 6297,6297 |
| Citation | 297 So.2d 780 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Josephine ORDONEZ, wife of/and Alfred A. Ordonez v. W. T. GRANT COMPANY et al. |
Rudolph R. Schoemann, New Orleans, for Crisler of Louisiana, Inc., third-party plaintiff-appellee.
Louis M. Kiefer, Jr., and Ethel H. Cohen, New Orleans, for Carothers and Carothers Const. Co. and Employers Mut. Liability Ins. Co. of Wisconsin, third-party defendants-appellants.
Before SAMUEL, STOULIG and MORIAL, JJ.
Plaintiffs, Mr. and Mrs. Alfred A. Ordonez, were awarded a judgment in a personal injury suit against Carothers and Carothers Construction Company (Carothers) and Employers Mutual Liability Insurance Company of Wisconsin (Employers), its public liability carrier.
Mrs. Ordonez sued multiple defendants, one of whom was Crisler of Louisiana, Inc. (Crisler), owner of the property, for a trip-and-fall accident in the W. T. Grant Company shopping center parking lot at Chalmette, Louisiana.
Upon Employers rejection of the tender of defense on its behalf, Grisler filed a third party action alleging the contractor was liable for the cost of defense under a building contract and Employers solidarily liable under a comprehensive general liability insurance policy in which it was an additional named insured. The trial court ruled these two third party defendants were liable for Crisler's costs to defend and further ordered the amount should be determined at 'a show cause hearing.' From this part of the judgment, Carothers and Employers have appealed.
Carothers and Employers satisfied the judgment rendered in favor of the original plaintiffs, Mr. and Mrs. Albert A. Ordonez, but lodged this suspensive appeal from that portion of the judgment on the third party demand awarding Crisler the costs of its defense, including reasonable attorney fees.
Crisler argues Carothers' liability arises from this portion of a building contract between them executed June 2, 1970, in which the general contractor bound himself to:
'* * * provide * * * public liability insurance * * * property damage and OWNERS' Protective Liability * * * naming CONTRACTOR and OWNER as assureds * * * certificates of insurance shall be delivered to OWNER * * * at the expense of CONTRACTOR * * *.
'Should the OWNER * * * be compelled to employ an attorney to enforce any part of this Contract against CONTRACTOR * * * the reasonable fees of such attorneys shall be a charge against the CONTRACTOR * * *.'
That same day Arnold Carothers, the contractor's president, asked his insurer Employers to quote a rate to add Crisler as a named insured on its public liability policy to cover the W. T. Grant-Chalmette job. Prior to furnishing the rate information, the agent, at the request of Carothers, immediately issued a certificate of insurance naming Crisler as an additional insured, effective June 16, 1970. This certificate was sent to Crisler's president, Charles Crisler, a Mississippi attorney. After its receipt by Crisler, Arnold Carothers was informed his company would have to pay an additional 10 percent of the policy premium to cover Crisler and he advised Bill Tucker, agent with Employers, it would not pay the additional premium.
The record indicates Carothers found the additional premium prohibitive, but this opinion--valid or not--did not relieve his company of its obligation to furnish the insurance coverage specified in the building contract. Nor can we conclude it was reasonable for Carothers to expect Employers to insure Crisler after it refused to pay the premium.
Under these circumstances we hold Carothers was liable for attorney fees and other costs of defense incurred by Crisler. Had Crisler been a named insured under the policy, his defense would have been an obligation of Employers. Carothers' failure to place the insurance specified in the building contract constituted a breach of the agreement and resulted in Crisler's having to bear all of the costs of its defense of the suit. Under LSA-C.C. art. 1930 Crisler is entitled to...
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