Sandbom v. BASF Wyandotte Corp.
| Decision Date | 23 April 1993 |
| Docket Number | No. 92,92 |
| Citation | 618 So.2d 1019 |
| Parties | Timothy M. SANDBOM, et al., Plaintiff, v. BASF WYANDOTTE CORPORATION, Defendant/Appellant. CA 0515. |
| Court | Court of Appeal of Louisiana — District of US |
Julie Brown, Baton Rouge, for plaintiff.
Gary Bezet, Baton Rouge, for defendant/appellant BASF Wyandotte, Corp.
John S. White, Jr., Baton Rouge, for third party defendant La. Environmental Sales & Services, Inc.
Before CARTER, LeBLANC and PITCHER, JJ.
Plaintiff Timothy M. Sandbom ("Sandbom") filed suit against BASF Wyandotte Corporation ("BASF") for injuries he allegedly sustained while working at the BASF Plant. BASF, after answering Sandbom's suit, filed a third party demand against Louisiana Environmental Sales and Service, Inc. ("Louisiana Environmental"), Sandbom's employer, alleging contractual indemnity. Louisiana Environmental answered the third party demand and moved for summary judgment on the grounds that the contract between the parties did not apply to claims of negligence as asserted in the principal demand. The trial court granted the motion for summary judgment, and BASF appeals from that judgment. We reverse.
In the principal demand, plaintiff alleged that on or about August 8, 1986, at about 10:00 a.m., while acting within the course and scope of his employment for Louisiana Environmental, he was injured while working at the BASF plant in Geismer, Louisiana. Specifically, Sandbom alleged that he was asked to clean out certain chemicals without having first been given adequate instructions, warnings, or protective equipment, with the result that he inhaled noxious and hazardous vapors causing him to be seriously and permanently injured and disabled. BASF denied fault, stating that the injuries, if any, sustained by Sandbom, were the result of his own fault or negligence, or that of third parties for whom BASF is not responsible.
At the time of the alleged incident, Sandbom was employed by Louisiana Environmental and working at the BASF plant pursuant to a contract between BASF and Louisiana Environmental. This contract included an indemnification clause. 1
Pursuant to this indemnification agreement, BASF made demand upon Louisiana Environmental for indemnity and a defense. When Louisiana Environmental refused, BASF filed a third party demand. Louisiana Environmental thereafter filed a Motion for Summary Judgment, alleging that the indemnification agreement does not apply to Sandbom's claims.
After the hearing on Louisiana Environmental's Motion for Summary Judgment on December 10, 1991, the trial court granted summary judgment in favor of Louisiana Environmental and dismissed BASF's third party demand for indemnity. The court did not supply written reasons for judgment, but during the hearing the trial judge explained judgment would be rendered against BASF because the indemnity provision did not express a clear intent to indemnify BASF against its own negligence. The trial judge reasoned that he could not rule against Louisiana Environmental without "any allegations or any pleadings to the effect that Louisiana Environmental was negligent ...". The court therefore granted Louisiana Environmental's motion.
BASF appeals the trial court's judgment and asserts the following assignments of error for our review:
(1) The trial court erred in granting summary judgment when there were material issues of fact concerning the liability and/or fault of BASF, Louisiana Environmental, and the plaintiff.
(2) The trial court erred in finding that the indemnity provision does not provide for indemnity of BASF's negligence.
(3) The trial court erred in not finding that the indemnity provision provided for indemnity for BASF's strict liability.
LSA-C.C. art. 1906 defines a contract as an agreement by two or more parties whereby obligations are created, modified, or extinguished. Where the words of a contract are clear, explicit, and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the document and cannot be explained or contradicted by parol evidence. Billingsley v. Bach Energy Corp., 588 So.2d 786, 790 (La.App. 2nd Cir.1991).
An indemnity agreement is a specialized form of contract which is distinguishable from a liability insurance policy. It is the terms of the indemnity agreement which govern the obligations of the parties. Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987). The law permits an indemnitor, who is not at fault, to contractually indemnify an indemnitee, who is also not at fault, but such indemnity must be expressly provided for in the indemnity agreement. Palmer v. General Health, Inc., 552 So.2d 750, 755 (La.App. 1st Cir.1989).
In its first assignment of error, appellant, BASF, asserts that the trial court granted summary judgment dismissing BASF's claim for indemnity, despite the fact that Louisiana Environmental did not produce any evidence concerning the facts of the alleged accident to prove there are no material issues of fact.
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. McKinney v. South Central Bell Telephone Company, 590 So.2d 1220, 1221 (La.App. 1st Cir.1991), writ denied, 592 So.2d 1302 (La.1992). A fact is material, for purposes of determining whether to grant summary judgment, if its existence or non-existence may be essential to plaintiff's cause of action under the applicable theory of recovery, or if it potentially ensures or precludes recovery, affects the plaintiff's ultimate success or determines the outcome of the legal dispute. Dearie v. Ford Motor Co., 583 So.2d 28, 30 (La.App. 5th Cir.), writ denied, 588 So.2d 1117 (La.1991). See also Roadrunner Motor Rebuilders, Inc. v. Ryan, 603 So.2d 214 (La.App. 1st Cir.1992); and LSA-C.C.P. art. 966.
In the instant case, the trial court reviewed the evidence presented, and after concluding there was no genuine issue of fact, granted summary judgment. Summary judgment is appropriate only if the record discloses that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Before the non-moving party is required to produce evidence in opposition to a motion for summary judgment, the moving party in a motion for summary judgment must demonstrate that there are no factual issues warranting trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Russ v. International Paper Co., 943 F.2d 589 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1675, 118 L.Ed.2d 393 (1992). If the mover produces convincing proof by affidavit and other receivable evidence of the facts upon which the motion is based, and no countervailing evidence is offered by the opposing party, the conclusion may be justified that there is no dispute as to the material facts so proved. Waddell v. Bickham, 431 So.2d 59, 60 (La.App. 1st Cir.1983).
At issue is whether the trial court erred in judgment. The trial court, in its reasons for...
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