Sewerage and Water Bd. of New Orleans v. Sanders

• Decision Date: 06 July 1970
• Docket Number: No. 4064,4064
• Citation: 239 So.2d 414
• Parties: SEWERAGE AND WATER BOARD OF NEW ORLEANS v. Jack SANDERS, d/b/a Laguna Construction Company et al.
• Court: Court of Appeal of Louisiana — District of US

Page 414

239 So.2d 414

SEWERAGE AND WATER BOARD OF NEW ORLEANS v. Jack SANDERS, d/b/a Laguna Construction Company et al.

No. 4064.

Court of Appeal of Louisiana, Fourth Circuit.

July 6, 1970.

Rehearing Denied Oct. 5, 1970.

Writ Refused Nov. 9, 1970.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood, Ernest A. Carrere, Jr., and George Piazza, New Orleans, for plaintiff-appellant.

Deutsch, Kerrigan & Stiles, Malcolm W. Monroe, New Orleans, for Great Lakes Dredge & Dock Company, defendant-appellee.

Before BARNETTE, LeSUEUR and SWIFT, JJ.

BARNETTE, Judge.

The plaintiff, Sewerage and Water Board of New Orleans, filed this concursus proceeding pursuant to LSA-R.S. 38:2243 citing the prime contractor and its surety, the subcontractors, and other claimants. Among the claimants cited was Great Lakes Dredge & Dock Company. In its petition for concursus the plaintiff asserted alternatively a claim against Great Lakes for damages which it alleged resulted from certain improper workmanship in the performance by Great Lakes of its work under a subcontract. Great Lakes filed various motions and exceptions, including an exception of no cause or right of action for damages. The trial court maintained the exception of no cause or right of action for damages and to that extent dismissed plaintiff's suit against Great Lakes Dredge & Dock Company. The plaintiff has appealed.

The appellee has answered the appeal in this court and complains of the failure of the trial court to maintain its other exceptions including prescription and prays that in the event this court does not affirm the judgment dismissing plaintiff's damage claim on the exception of no cause or right of action, that it then maintain the other exceptions and dismiss or remand as may be in accordance with law.

The material facts upon which the issues presently before the court are founded, are briefly as follows:

The Sewerage and Water Board of New Orleans, a public agency entered into a public works contract with the prime contractor, Jack Sanders, doing business as Laguna Construction Company, for a major construction project. It is alleged that the contractor (Sanders) defaulted and failed to resume operations after formal demand, whereupon plaintiff took possession of the construction project and proceeded toward completion of the work at its own expense. Notice of default was recorded in accordance with statutory requirements.

It is alleged that under the provisions of the contract certain backfill operations were specified in connection with a pipeline crossing of the Mississippi-Gulf Outlet, for which work the prime contractor engaged a certain named subcontractor (Joint Venture) who in turn engaged Great Lakes Dredge & Dock Company to perform the work. It is because of the alleged improper and unworkmanlike manner in which this work was done that plaintiff seeks damages from Great Lakes.

In its petition for concursus the plaintiff has named several claimants who filed claims within 45 days from the filing of notice of default. Among these is Great Lakes, whose claim is $173,623.25. Certain other claimants are also named who had either filed suit on claims or given notice of claims. Joint Venture was made a party defendant to assert whatever claims it may have.

The proceeding was brought under the provisions of LSA-R.S. 38:2243 which is as follows:

'If at the expiration of the forty-five days any filed and recorded claims are unpaid, the governing authority shall file a petition in the proper court of the parish where the work was done, citing all claimants and the contractor, subcontractor, and surety on the bond and asserting whatever claims it has against any of them, and shall require the claimants to assert their claims. If the governing authority fails to file the proceeding any claimant may do so.

'All the claims shall be tried in concursus and the claims of the claimants shall be paid in preference to the claims of the governing authority.'

The plaintiff alleged that Joint Venture undertook the backfilling operation under subcontract with Sanders, the prime contractor, and in turn engaged Great Lakes. Alternatively it alleged a subcontract by Great Lakes direct from Sanders. It alleged Joint Venture's liability to it for the alleged damages to the pipeline crossing and then alleged in a separate article (XVII) as follows:

'Plaintiff alleges on information and belief that defendant, Great Lakes, in the backfilling of the said pipeline crossing, whether under a subcontract with the Joint Venture or with Sanders, caused damage to said pipeline crossing by failing to perform said work in a proper and workmanlike manner and by failing to adequately protect said pipeline; and is therefore liable to plaintiff in solido with the Joint Venture and its surety, for the damages to said pipeline crossing in the event that plaintiff is judicially determined to bear the risk of loss therefor, and alternatively at least to the extent of any claim by Great Lakes against plaintiff or against funds in the hands of plaintiff. Plaintiff further desires to and does hereby expressly reserve all its rights to pursue claims for said damage against Great Lakes and the vessel 'Duplex,' in a Court of Admiralty.'

Its petition concludes with a prayer that all claimants be cited to answer and assert contradictorily their claims arising out of the project against the funds in its hands and that the respective rights of all parties be judicially determined. It then prays for judgment against Sanders and his surety for a sum in excess of a million dollars with attorney's fees and then prays:

'Plaintiff further prays in the alternative, should it be judicially determined that the risk of loss of said pipeline crossing of the Mississippi River Gulf Outlet be imposed on plaintiff, that there be judgment in favor of plaintiff and against Great Lakes Dredge and Dock Company and/or Anthony Vullo and Coastline, Inc., a Joint Venture and its surety, State Automobile Casualty Underwriters, in solido, for the damages occasioned to said crossing, or in the further alternative, at least to the extent of any claims made by Great Lakes Dredge & Dock Company against funds in the hands of the plaintiff, and that there be reserved to plaintiff all rights to proceed against Great Lakes Dredge & Dock Company or its vessel 'Duplex', for such damages, in a Court of Admiralty.'

The exception of no cause or right of action is predicated on three points, namely:

1. That the petition does not allege any facts upon which an action ex delicto can be maintained against Great Lakes and that its allegations in Article XVII (see above) are mere conclusions of the plaintiff.

2. That no contractual obligation is alleged upon which plaintiff can assert its claim for damages.

3. That the claim for damages is outside the scope and purview of a concursus proceeding.

The judgment maintaining the exception refers to 'reasons orally assigned.' The reasons are not recorded and therefore we do not know upon which of the above points the exception was maintained. We will address ourselves first to point number 3.

The use of concursus procedure is not new to the jurisprudence of Louisiana, but until the adoption of the Code of Civil Procedure in 1960 (effective January 1, 1961) the rules of procedure were not clearly defined. The introduction to LSA-C.C.P. Title X entitled 'CONCURSUS PROCEEDINGS' clearly states the intent that the procedure be adopted in its broadest form which eliminates the restriction of the 'strict interpleader' concept that the party invoking the procedure is a mere stakeholder having no further claims to nor interest in the fund or property subject of the action. We quote from the 'Introduction' in pertinent part:

'The fountain-head of Anglo-American interpleader is the old common law writ of the same name. Chafee, Cases on Equitable Remedies 1 (1938). But it was in the chancery courts that the principles of interpleader were developed, and the use of the remedy became common. Limitations on the use of the equitable remedy were imposed by four technical requirements: (1) the same thing, debt, or duty had to be claimed by all the parties interpleaded; (2) all of the claims had to be derived from a common source; (3) the plaintiff could not claim any interest in the subject matter; and (4) the plaintiff must have had no independent liability to any defendant, but must be a mere stakeholder. 4 Pomeroy, Equity Jurisprudence (5th ed.) 906 et seq. (1941). These restrictions...