Suire v. Lafayette City-Parish Government

Decision Date12 April 2005
Docket Number No. 2004-C-1459, No. 2004-C-1466., No. 2004-C-1460
Citation907 So.2d 37
PartiesDarrell SUIRE v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
CourtLouisiana Supreme Court

Mahtook & Lafleur, Ward Lafleur, Laura K. Theunissen, Lafayette, for Applicant in No. 2004-C-1459.

Broussard & Kay, Hal James Broussard, Ped C. Kay, III, Lafayette; Voorhies

& Labbe, Richard D. Chappuis, Jr., Lafayette; Gieger, LaBorde & Laperouse, LLC, Robert Irwin Siegel, Brendan Patrick Doherty, New Orleans; Oliver & Way, LLC, Kenny Layne Oliver, David Oliver Way, Lafayette, for Respondent in No. 2004-C-1459.

Gieger, LaBorde & Laperouse, LLC, Robert Irwin Siegel, Brendan Patrick Doherty, New Orleans for Applicant in No. 2004-C-1460.

Mahtook & Lafleur, Ward Lafleur, Laura K. Theunissen, Lafayette; Broussard & Kay, Hal James Broussard, Ped C. Kay, III, Lafayette; Voorhies & Labbe, Richard D. Chappuis, Jr., Lafayette; Oliver & Way, LLC, Kenny Layne Oliver, David Oliver Way, Lafayette, for Respondent in No. 2004-C-1460.

Oliver & Way, LLC, Kenny Layne Oliver, David Oliver Way, Lafayette, for Applicant in No. 2004-C-1466.

Gieger, LaBorde & Laperouse, LLC, Robert Irwin Siegel, Brendan Patrick Doherty, New Orleans; Mahtook & Lafleur, Ward Lafleur, Laura K. Theunissen, Lafayette; Broussard & Kay, Hal James Broussard, Ped C. Kay, III, Lafayette; Voorhies & Labbe, Richard D. Chappuis, Jr., Lafayette, for Respondent in No. 2004-C-1466.

CALOGERO, Chief Justice.

We granted these writs to consider the court of appeal's rulings on various summary judgment motions in this lawsuit alleging damages to property resulting from a Lafayette construction project. In addressing the court of appeal's judgment, we must consider, among other issues, (1) whether the installation of metal sheeting is "pile driving" under Louisiana Civil Code article 667, for purposes of the plaintiff's absolute liability claim; and (2) whether a general contractor and its insurer owe a duty to indemnify and defend the Lafayette City-Parish Consolidated Government ("the City") and / or the City's engineering firm against the plaintiff's claims pursuant to either (a) a contractual indemnity clause in the contract between the City and the general contractor, or (b) the additional insured provision in the insurance contract between the contractor and its insurer. For the reasons that follow, and with the specificity of the rulings recited, we affirm in part, reverse in part, and remand the case to the trial court.

FACTS

Darrell Suire, the plaintiff, owns a residence and parcel of land at 114 St. James Drive in the city of Lafayette, Louisiana. Through Suire's land passes the Belle Terre Coulee, a large channel that provides drainage for several Lafayette Parish subdivisions. In 1998, the City applied for a permit to undertake the Belle Terre Coulee Drainage Improvement Project, in which the Coulee was to be dredged and lined with concrete. The permit was granted, and the City selected Boh Brothers Construction Co. L.L.C. ("Boh Brothers") as general contractor for the project, and Dubroc Engineering, Inc. ("Dubroc") to supply the plans and specifications.

Before construction began, representatives of the City and Boh Brothers went door-to-door to explain the project to affected property owners, including Suire. Suire was informed that a servitude had been established to permit access to his property for purposes of the project. Suire also claims that representatives of the City, Boh Brothers, and Dubroc all assured him that they would be responsible for remedying any damages to his property caused by the construction.

In August 1999, the construction reached the area immediately adjacent to Suire's home, and continued through roughly the end of 1999 or early 2000. The initial phase of the project called for construction of a box culvert on Suire's property to stabilize the sides of the channel and protect workers from cave-ins.1 Constructing the box culvert entailed placing steel sheeting into the ground at distances of fifteen to thirty feet from the foundation of Suire's home. The sheeting measured around one-fourth to one-half inch thick, two feet wide, and twelve to fifteen feet long. The installation of the sheeting involved, first, pushing the sheeting into place with a backhoe.2 Once in place, the bucket of the backhoe was used to pound the sheeting farther into the ground.

While the construction was ongoing, Suire began to notice damage to his home. Among other things, Suire observed cracks in the front door, the floor, the foundation, the ceiling, and the walls, crumbling of the mortar in the patio outside, and leaks in the roof.

THE COURTS BELOW

On April 25, 2001, Suire sued the City, Boh Brothers, and Dubroc, alleging that these defendants were jointly, severally, and solidarily liable for the damage to his property resulting from their negligence and / or strict liability in carrying out the construction project. Suire claimed that the defendants' wrongful acts included selecting deficient plans and specifications, using improper equipment, failing to exercise due care in operating and maintaining equipment, and, generally, "fail[ing] ... to act with the required degree of care commensurate with the existing situation." In addition to his negligence and strict liability claims, Suire sought recovery under a theory of absolute liability, claiming that the installation of the metal sheeting to construct the box culvert constituted the ultrahazardous activity of "pile driving." Finally, Suire alleged claims of trespass, breach of contract, detrimental reliance, res ipsa loquitur, and expropriation.3

The City and Dubroc filed a cross-claim against Boh Brothers, seeking defense and indemnification under the terms of the contract between the City and Boh Brothers. The City and Dubroc also filed a third party demand against National Union Fire Insurance Company of Pittsburgh and National Union Fire Insurance Company of Louisiana (collectively, "National Union"), Boh Brothers' insurer, seeking defense and indemnification as additional insureds under Boh Brothers' insurance policy.4

The parties filed numerous motions for summary judgment, on which the trial court ruled as follows:

• Dubroc's motion for summary judgment was granted, and all claims against Dubroc were dismissed with prejudice;5The court denied the plaintiff's motion for partial summary judgment on the absolute liability issue, finding, as a matter of law, that the installation of metal sheeting was not "pile driving" under Civil Code article 667. The City's motion on the absolute liability issue was granted and made effective as to Boh Brothers as well, even though Boh Brothers had not filed its own motion, because the court wished to avoid the illogical result that one defendant (Boh Brothers) would have to litigate the merits of the absolute liability claim while the other defendant (the City) would not.
• The City's and Dubroc's motion seeking defense from Boh Brothers and National Union was granted. The court found that National Union and Boh Brothers owed the City and Dubroc a limited defense against the absolute liability claim. This duty to defend was satisfied on the date of the hearing on the summary judgment motions, after which the court disposed of the absolute liability claim against the City and dismissed Dubroc from the case. Similarly, the court denied National Union's and Boh Brothers' motions opposing the City's and Dubroc's claim for defense;
The court granted in part National Union's and Boh Brothers' motions opposing the City's and Dubroc's claim for indemnity and coverage, finding that dismissal of the absolute liability claim extinguished any duty to indemnify. Consistent with this holding, the court denied the City's and Dubroc's motion seeking indemnity;
The court granted in part the City's motion for summary judgment seeking dismissal of Suire's claims of res ipsa loquitur, detrimental reliance, breach of contract, and expropriation; but, the court denied in part the City's motion seeking dismissal of the trespass claim, deferring this claim to the merits; and
The court denied Boh Brothers' motion for summary judgment claiming immunity under La.Rev.Stat. 9:2771, a statute which provides for limited immunity for a contractor who has performed according to plans provided by a third party.6

Thus, following the trial court's rulings on the parties' summary judgment motions, many of the plaintiff's claims were dismissed as a matter of law: absolute liability involving the installation of metal sheeting, detrimental reliance, res ipsa loquitur, breach of contract, and expropriation. The plaintiff's claims of negligence and trespass still remained viable. Dubroc was dismissed from the case entirely, leaving Boh Brothers and the City as the primary defendants and National Union as third party defendant. Regarding the City's and Dubroc's claim for defense, the trial court held that National Union and Boh Brothers owed a limited duty to defend the City and Dubroc against the absolute liability claim alone, and that this duty had been satisfied. Because the trial court dismissed the absolute liability claim, the City's and Dubroc's indemnity claim had been extinguished.

Suire, Boh Brothers, and National Union all appealed from the trial court's rulings. The plaintiff challenged the trial court's dismissal of his absolute liability, breach of contract, detrimental reliance, res ipsa loquitur, and expropriation claims as a matter of law. Boh Brothers and National Union disputed the trial court's determination that they owed the City and Dubroc a limited defense on the absolute liability claim. Finally, Boh Brothers appealed the dismissal of Dubroc from the case.

In an unpublished opinion, the Third Circuit affirmed in part, reversed in part, rendered in part, and remanded. Suire v. Lafayette City-Parish Consol....

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