Suire v. Lafayette City-Parish Govt. 907 So.2d 37 (La. 2005)

8/19/2019 Suire v. Lafayette City-Parish Govt. 907 So.2d 37 (La. 2005)

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Supreme Court of Louisiana.

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907 So.2d 37 (La. 2005)

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SU11!RIES "R1 SUSEUE4$ C!SES ( )

I. “Holding that a contractual duty to defend or indemnify is premature until such time as a

determination of liability has been made and the indemnitee has sustained a loss or made payment”ROWAN COMPANIES INC. v. GREATER LAFOURCHE PORT COMMISSION, Civil Action. No. 05-30

Sction !"!#$%. #E.&. L'. A() 0$, $00*%

II. “Applying Meloy to a defense-and-indemnity contractual provision that was at issue in a

construction-tort lawsuit”E++ON MOIL v. TURNER IN&US. GROUP, 33 F.A//. 112 #5t Ci4. $00%

MO! "#MMAI!"

6E# &!SS!ES "R1 $'IS C!SE (22)

I. “$o establish detrimental reliance% a party must prove three elements by a preponderance

of the evidence& '() a representation by conduct or word* '+) ,ustifiable reliance* and ') a

change in position to ones detriment because of the reliance.” (ot 20 ti67

https://casetext.com/case/rowan-companies-inc-v-greater-lafourche-port-commission-1https://casetext.com/case/rowan-companies-inc-v-greater-lafourche-port-commission-1https://casetext.com/case/exxon-mobil-v-turner-indus-grouphttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/exxon-mobil-v-turner-indus-grouphttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/suire-v-lafayette-city-parish-govt?passage=GGbUkII11MGfeX7olF5GNQhttps://casetext.com/case/rowan-companies-inc-v-greater-lafourche-port-commission-1https://casetext.com/case/rowan-companies-inc-v-greater-lafourche-port-commission-1


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II. “$he plaintiff himself may serve as the witness to establish the e/istence of the oral

contract. 0ulf 1ontainer epair "ervs.% Inc. v. 2I1 3us. 2in. 1trs.% Inc.% 45-((66 '7a.App.

8 1ir. 9(:944)% ;8 "o.+d 6(% 6. $he ilpatric?% @@: "o.+d at (58. 3ut% the other corroboration must come from a source other

than the plaintiff.” (ot 8 ti67

III. “$he theory of detrimental reliance is codified at 7a. 1iv. 1ode art. (4@;& A party may be

obligated by a promise when he ?new or should have ?nown that the promise would

induce the other party to rely on it to his detriment and the other party was reasonable in

so relying. ecovery may be limited to the e/penses incurred or the damages suffered as

a result of the promisees reliance on the promise. eliance on a gratuitous promise made

without re=uired formalities is not reasonable.” (ot 1 ti67

I. “"ummary ,udgment should be granted where


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C. “A genuine issue e/ists where reasonable persons% after considering the evidence% could

disagree.” (ot $ ti67

CI. “In determining whether an issue is genuine% a court should not consider the merits% ma?e

credibility determinations% evaluate testimony or weigh evidence.” (ot $ ti67

CII. “Id. $hus% the focus of analysis of a detrimental reliance claim is not whether the parties

intended to perform% but% instead% whether a representation was made in such a manner

that the promisor should have e/pected the promisee to rely upon it% and whether the

promisee so relies to his detriment.” (ot $ ti67

CIII. “However% if the wor? he ma?es on his estate deprives his neighbor of en,oyment or

causes damage to him% he is answerable for damages only upon a showing that he ?new

or% in the e/ercise of reasonable care% should have ?nown that his wor?s would cause

damage% that the damage could have been prevented by the e/ercise of reasonable care%

and that he failed to e/ercise such reasonable care.” (ot 2 ti6

CI. “Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against

granting the motion and in favor of trial on the merits.” (ot 2 ti6

C. “1omparing the installation of metal sheeting and the activity normally considered to be


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duty upon 3oh 3rothers as a matter of law to defend the 1ity and Gubroc against the

plaintiffs claims.” (ot 2 ti6

CIII. “An indemnitor is not liable under an indemnity agreement until the indemnitee


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Garrell "uire% the plaintiff% owns a residence and parcel of land at ((6 "t. James Grive in the cityof 7afayette% 7ouisiana. $hrough "uires land passes the 3elle $erre 1oulee% a large channel that provides drainage for several 7afayette arish subdivisions. In (445% the 1ity applied for a permit to underta?e the 3elle $erre 1oulee Grainage Improvement ro,ect% in which the 1ouleewas to be dredged and lined with concrete. $he permit was granted% and the 1ity selected 3oh

3rothers 1onstruction 1o. 7.7.1. '


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"ome of these latter claims were asserted in laintiffs 2irst "upplemental and Amended etition%filed April (% +::.

$he 1ity and Gubroc filed a cross-claim against 3oh 3rothers% see?ing defense andindemnification under the terms of the contract between the 1ity and 3oh 3rothers. $he 1ity andGubroc also filed a third party demand against Lational #nion 2ire Insurance 1ompany ofittsburgh and Lational #nion 2ire Insurance 1ompany of 7ouisiana 'collectively%


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case entirely% leaving 3oh 3rothers and the 1ity as the primary defendants and Lational #nion asthird party defendant. egarding the 1itys and Gubrocs claim for defense% the trial court heldthat Lational #nion and 3oh 3rothers owed a limited duty to defend the 1ity and Gubroc againstthe absolute liability claim alone% and that this duty had been satisfied. 3ecause the trial courtdismissed the absolute liability claim% the 1itys and Gubrocs indemnity claim had been

e/tinguished."uire% 3oh 3rothers% and Lational #nion all appealed from the trial courts rulings. $he plaintiffchallenged the trial courts dismissal of his absolute liability% breach of contract% detrimentalreliance% res ipsa lo=uitur% and e/propriation claims as a matter of law. 3oh 3rothers and Lational #nion disputed the trial courts determination that they owed the 1ity and Gubroc alimited defense on the absolute liability claim. 2inally% 3oh 3rothers appealed the dismissal ofGubroc from the case.

In an unpublished opinion% the $hird 1ircuit affirmed in part% reversed in part% rendered in part%and remanded. Suire v. Lafayette City-Parish Consol. Govt! et al.% +::-:((8: '7a.App. 1ir.69;9:6)% 5;( "o.+d (+;4. $he court of appeal initially reversed the trial courts ,udgment on the

absolute liability issue% finding that the installation of metal sheeting =ualified as '4o(7 'ctivit= '7 (7 in ti7 A4ticl i7 7t4ictl=

li6it to /il 4ivin) o4 :l'7tin) 9it /lo7iv7.

'!mphasis added).

$he court observed that


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concluded% drew no distinction in Lombard between these two activities in awarding damagesunder article @@;.

2urther% the $hird 1ircuit reasoned% pile driving is considered an ultrahaKardous activity becauseof the vibration damage it may cause. $he e/tent of damage depends upon factors such as soiland water table conditions% the siKe of the pilings% and the distance between the structure and the

location of the driving. 3ecause the installation of metal sheeting generates


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#nion owed the same duty as 3oh 3rothers to defend the 1ity and Gubroc against the plaintiffsabsolute liability claim. $hus% the $hird 1ircuit affirmed the trial courts resolution of thecontractual defense issues. 3ut% the court remanded to the trial court for determination of theactual defense cost for the absolute liability issue alone.

7a.ev."tat. 5&++(@'0) provides&

'0) It is hereby declared that any provision contained in a public contract% other than a contractof insurance% providing for a hold harmless or indemnity agreement% or both% '() 2rom thecontractor to the public body for damages arising out of in,uries or property damage to third parties caused by the negligence of the public body% its employees% or agents% or% '+) 2rom thecontractor to any architect% landscape architect% engineer% or land surveyor engaged by the public body for such damages caused by the negligence of such architect% landscape architect% engineer%or land surveyor is contrary to the public policy of the state% and any and all such provisions inany and all contracts are null and void.

$he $hird 1ircuit reasoned that the trial court erred in casting 3oh 3rothers and Lational #nionwith the entire cost of defense through March +6% +::% rather than calculating the cost of

defense for solely the absolute liability issue.

$he $hird 1ircuit then affirmed the trial courts grant of Gubrocs summary ,udgment motion anddismissal of Gubroc from the case. As discussed su"ra% at note five% Gubroc and the plaintiffannounced that they had reached an agreement by which Gubroc would pay the plaintiff a smallamount of money in e/change for the plaintiffs promise not to oppose Gubrocs motion forsummary ,udgment. $he court found that the announcement of the agreement between Gubrocand the plaintiff did not render the trial courts ruling on Gubrocs summary ,udgment motion anadvisory opinion on a moot issue. $he court reasoned that the arrangement between Gubroc andthe plaintiff was not a settlement% but simply an agreement by the plaintiff not to opposeGubrocs summary ,udgment motion. $he trial court properly considered all the evidence in therecord and% based on its finding that there were no remaining factual issues concerning Gubrocsfault% granted summary ,udgment for Gubroc% the $hird 1ircuit stated.

2inally% the $hird 1ircuit reversed the trial courts grant of summary ,udgment on the plaintiffs breach of contract% detrimental reliance% and e/propriation claims. $he court found that genuineissues of material fact remained that precluded summary ,udgment on these claims. However% the$hird 1ircuit agreed with the lower court that the plaintiffs res ipsa lo=uitur claim was withoutmerit% and affirmed the lower courts pro-defense grant of summary ,udgment on this claim.

3oh 3rothers% the 1ity% and Lational #nion all applied for writs in this court. e granted allthree applications to consider the court of appeals rulings on the parties summary ,udgmentmotions% specifically& '() the holding that the installation of metal sheeting constitutes


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In its brief to this court% 3oh 3rothers also argues that it is entitled to statutory immunity under7a.ev."tat. 4&+;;(% discussed su"ra% at note si/. $he trial court denied 3oh 3rothers motion for summary ,udgment on this claim% and 3oh 3rothers failed to appeal this determination. Leitherdid 3oh 3rothers raise this issue in its writ application. $hus% we decline to consider thisargument.

e apply a de novo standard of review in considering the $hird 1ircuits rulings on the partiessummary ,udgment motions. Smith v. Our Lady of the La#e $os".! %n&.% 4-+8(+ '7a.;98946)% @4 "o.+d ;:% ;8: 'citing S&hroeder v. Bd. of Su"ervisors of La. State 'niv.% 84( "o.+d6+% 68 '7a. (44()).

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"ummary ,udgment should be granted where < the pleadings% depositions% answers tointerrogatories% and admissions on file% together with the affidavits% if any% show that there is nogenuine issue as to material fact% and that mover is entitled to ,udgment as a matter of law.


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1ode art. @@;. $his article imposes absolute liability only where the proprietor engages in an


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Oh% you would have a crane with a hundred-foot boom% a big old heavy set of leads% you wouldhave an air hammer% you would have an air compressor half the siKe of this room to drive Fdrive the air . . . but we didnt have that on this ,ob.

,

1omparing the installation of metal sheeting and the activity normally considered to be < piledriving < in the construction industry% Moore observed%DAE sheeting is li?e a sliver% it ,ust F theres not much vibration because it ,ust F its li?e it ,ustslivers on the ground% where a pile youve got something two foot round and youre beating it togo in a pile. $he ground up-heaves% its got F you ?now% you put a piling in one spot% youve gotmud displaced and its got to go somewhere. 3ut with the sheeting thats why a sheeting is done%is because its real thin and it ,ust slides in the mud* theres not much vibration.

,

Moore maintained throughout his deposition testimony that no pile driving was performed in the

3elle $erre 1oulee pro,ect% and distinguished the potential vibrations caused by installing metalsheeting as compared to that caused by conventional pile driving.e find that the court of appeal erred in holding% as a matter of law% that the installation of metalsheeting in this case constituted the ultrahaKardous activity of < pile driving. < e find% rather% thatthe trial court correctly determined% as a matter of law% that the installation of sheetingis not < pile driving. < e find that article @@;s strict limitation of ultrahaKardous activities to piledriving and blasting indicates a legislative intent to restrict application of the absolute liabilitystandard to the activity generally considered to be < pile driving < in the construction industry%namely% using a crane and air hammer to drive broad-based pilings% for the purpose of providingsupport to a structure. $he wor? the defendants performed in this case is not pile driving as thatterm is understood in the construction industry. $he defendants have demonstrated that the

material < driven < in this case% thin metal sheets% and the e=uipment used% a bac?hoe% differedfrom the materials and e=uipment involved in conventional pile driving.

It is not sufficient to show that there may be some similarities between the activities of installingmetal sheeting and conventional pile driving% e.g.% the production of vibrations% because article@@; strictly limits ultrahaKardous activities to actual


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ultrahaKardous activities to pile driving and blasting. $he Lombard court thus considered aversion of article @@; that differed dramatically from the present version of the article% and thecourts conclusions regarding the articles application to the installation of metal sheeting do notcontrol our analysis.

3ecause we find that the defendants installation of metal sheeting in this case is not


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e find that the 1itys and Gubrocs claim for defense under the indemnity agreement is premature under settled law% as these parties have not yet sustained any compensable loss. $hiscourt has observed that an indemnity agreement is a


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re=uired to name as additional insureds in a written contract. $he terms of the public contract between 3oh 3rothers and the 1ity re=uired onl= that 3oh 3rothers cover the 1ity and itsofficials% employees% and volunteers as additional insureds. $hus% Gubroc may not claim a rightto defense from Lational #nion as an additional insured.

In contrast% the 1ity clearly satisfies the initial re=uirement for additional insured status% as the

public contract e/pressly re=uired 3oh 3rothers to cover the 1ity as an additional insured. As thescope of Lational #nions obligation to provide additional insured coverage is limited by theterms of the indemnity provision in the contract between 3oh 3rothers and the 1ity% we mustdetermine whether the terms of the indemnity provision unambiguously e/clude the plaintiffsclaims. $he indemnity provision re=uires 3oh 3rothers to indemnify and defend the 1ity against


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$his court has stated that any attempt by a party to obtain indemnity for damages due to the partys own negligence must be e/pressed in une=uivocal terms. Polo,ola v. Garlo % 6 "o.+d(:::% (:: '7a. (4;;). On its face% the clause at issue does not provide indemnity for the 1itysand Gubrocs sole negligence. 3ut% the indemnity provision does purport to re=uire indemnity tothe 1ity against claims resulting from


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contained in the public contract% and Lational #nion therefore may not benefit from this statuteas 3oh 3rothers insurer.

Having re,ected Lational #nions statutory arguments for finding the indemnity provisionunenforceable% and% having concluded above that the indemnity provision does notunambiguously e/clude the plaintiffs claim that the defendants were ,ointly liable under an

absolute liability theory% we hold that Lational #nion owes the 1ity a defense against theabsolute liability claim.

$hus% we reverse the court of appeals holdings% as a matter of law% that '() 3oh 3rothers owed aduty to defend and indemnify the 1ity and Gubroc against the absolute liability claim under theterms of the indemnity agreement* and '+) Lational #nion owed a duty to defend Gubroc as anadditional insured against the absolute liability claim. 3ut% we affirm the court of appealsdetermination that Lational #nion owed a contractual duty to defend the 1ity as an additionalinsured against the plaintiffs claim of ,oint absolute liability. e remand this matter to the trialcourt to determine the 1itys actual defense costs on the absolute liability claim alone. 3ecausewe have dismissed the plaintiffs absolute liability claim as a matter of law% we find that the 1itys

indemnity claim against Lational #nion is now moot.

C. Su!!ary ug!ent for Dubroc on All Clai!s

3oh 3rothers argues that Gubroc and the plaintiff entered into a settlement by agreeing thatGubroc would pay the plaintiff


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balanced by the danger of losing.< 7a. 1iv. 1ode art. :;(. $he article re=uires that such anagreement either be in writing% or recited in open court% so that it may be transcribed from therecord. %d. A compromise agreement% li?e other contracts% is the law between the parties% andmust be interpreted according to the parties true intent. Boyette v. 3iverwood %ntl % +;%45:'7a.App. + 1ir. 9(94@)% @@4 "o.+d ;:% ;% writ granted in "art! on other grounds! and denied

in "art % 4@-(6(5 '7a. (:9694@)% @;4 "o.+d (@@. $he party who attempts to rely on the e/istenceof a compromise agreement bears the burden of proof to show that the re=uirements for a validcompromise are present% including that the parties intended to settle. %d.

3oh 3rothers% as the party attempting to rely on the e/istence of a settlement between Gubrocand the plaintiff% must show that the parties agreement complied with article :;( and thatGubroc and the plaintiff intended to settle their claims. 3oh 3rothers argues that Ge#a#is v.Southern /ra&e Pro"erty Owners +ssn% @%@:4 '7a.App. + 1ir. (+9((9:+)% 5 "o.+d (((@% supports its claim that the agreement between Gubroc and the plaintiff constituted a settlementthat rendered Gubrocs summary ,udgment motion moot. In Ge#a#is% 5 "o.+d at (((;% the plaintiffs sought% among other things% to en,oin a couple% the Mi,alises% from constructing a homeon an ad,acent lot% which% the plaintiffs alleged% violated the subdivisions protective covenants

and building restrictions and impaired their servitude of view. 3esides their claims against theMi,alises% the plaintiffs sought in,unctive relief and damages from the property ownersassociation% because the association had granted a variance permitting the construction. %d. at(((;-(5.

$he trial court denied the plaintiffs re=uest for a preliminary in,unction% and granted theMi,alises e/ception of no cause of action. %d. at (((5. $he plaintiffs appealed% urging theappellate court to find% among other things% that the in,unction should have been granted. %d. at(((5. hile an appeal was pending% the plaintiffs settled with the Mi,alises. %d. $he plaintiffs andthe Mi,alises filed a ,oint motion for partial dismissal% dropping all claims against the Mi,alisesand attempting to reserve the plaintiffs rights against the owners association. %d. $he court

dismissed the appeal% finding that the partial settlement agreement rendered moot the plaintiffsclaims for in,unctive relief. %d. at (((5-(4. $he court reasoned that


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of a valid compromise agreement under article :;(. $hus% we re,ect 3oh 3rothers contentionthat Gubrocs motion for summary ,udgment was moot.

Gubroc notes in its brief to this court that 3oh 3rothers could have obtained a copy of theagreement between Gubroc and the plaintiff through written discovery% but failed to do so.

3oh 3rothers also argues that the court of appeal erred in affirming summary ,udgmentdismissing all claims against Gubroc% because the facts establish a triable issue concerningGubrocs fault. $he party see?ing summary ,udgment bears the burden to establish the absence of a genuine issue of material fact. 7a. 1ode 1iv. . art. 4@@'1)'+)* Cham"agne v. Ward % +::-+(('7a. (9(49:8)% 54 "o.+d ;;% ;;8. If the movant satisfies this initial burden% the burden shifts tothe party opposing summary ,udgment to present factual support ade=uate to establish that hewill be able to satisfy the evidentiary burden at trial. %d. If the adverse party fails to carry this burden% the movant is entitled to ,udgment as a matter of law. %d.

In this case% Gubrocs motion for summary ,udgment was not opposed by any party. 3oh3rothers only response to Gubrocs motion consisted of a three-page


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&. The City's Summary Judgmet !"ti" " the #$aiti%%'s Brea&h "% C"tra&t Detrimeta$

Re$ia&e ad E()r")riati" C$aims

(. 4'c o; Cont4'ct

$he 1ity argues that the court of appeal erred in reversing the trial courts grant of summary

,udgment in the 1itys favor on the plaintiffs breach of contract claim. $his claim involves Mr."uires allegations that% before construction began on the 3elle $erre 1oulee pro,ect%representatives of the 1ity wal?ed through his neighborhood and promised him that any damageto his property would be repaired and9or restored. "pecifically% in deposition% the plaintiff statedthat nine persons approached his home and represented to him that portions of his patio% dec?ing%and landscaping would have to be removed to accommodate the impending construction% but that


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1ity% through the plaintiffs asserted


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ather% the basis of detrimental reliance is < the idea that a person should not harm another person by ma?ing promises that he will not ?eep.


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$o establish the placement of the drainage bin beyond the servitude boundaries% the plaintiffoffered% in addition to his own deposition% the deposition of Angela $hibodeau/% a Gubrocemployee.

In deposition% "uire described the basis of his e/propriation claim&

Im losing soil. $he way it was before% everything was in place% nothing was crac?ed. Iwasnt losing land. Low Im losing land. Ive got a big old drain sitting in the bac? yardthats about a foot lower than the level than my land itself. !verything is sliding.

,

Article (% section 6'3) of the 7ouisiana 1onstitution provides authority for the bringing of aninverse condemnation claim& < roperty shall not be ta?en or damaged by the state or its politicalsubdivisions e/cept for public purposes and with ,ust compensation paid to the owner or into thecourt for his benefit.


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demonstrated its entitlement to ,udgment as a matter of law on the plaintiffs e/propriation claim%and we affirm the court of appeals reversal of summary ,udgment in the 1itys favor.

DECREE

Having addressed all of the parties assignments of error% our disposition of this case is as

follows& e reverse the court of appeals grant of summary ,udgment to the plaintiff on the absoluteliability claim involving the installation of metal sheeting. e reinstate the trial courts grant ofsummary ,udgment for the 1ity and 3oh 3rothers on this claim. e reverse the court ofappeals ,udgment that% under the contractual indemnity provision% 3oh 3rothers owed a duty todefend the 1ity and Gubroc against the absolute liability claim. e hold that 3oh 3rothersobligation to indemnify or defend any party under the provisions of the indemnity agreementmay not be determined until the conclusion of the lawsuit.

e reverse the court of appeals ,udgment that Lational #nion owed a duty to defendand9or indemnify Gubroc against the absolute liability claim. e affirm the court of

appeals ,udgment that Lational #nion owed a duty to defend the 1ity as an additionalinsured against the absolute liability claim. e remand this claim to the trial court for adetermination of the actual cost of defense on the absolute liability claim alone. Havingdisposed of the absolute liability claim by summary ,udgment% we find that the 1itysindemnity claim against Lational #nion is moot.

e affirm the court of appeals grant of summary ,udgment dismissing all of the plaintiffsclaims against Gubroc. e reverse the court of appeals ,udgment overturning the trial courts pro-1ity grant of summary ,udgment on the plaintiffs breach of contract claim and reinstate thetrial courts grant of summary ,udgment for the 1ity on this claim. e affirm the court of appealsreversal of summary ,udgment on the plaintiffs detrimental reliance and e/propriation claims.

e remand this case to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART RE!ER"ED INPART AND REMANDED.

1A7O0!O% 1hief Justice.

4 !&&LIC!$I4 "R RE'E!RI4

1A7O0!O% 1hief Justice% concurring.


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In our opinion on original hearing% we found that the plaintiff did not provide sufficientcorroborating evidence of an oral contract with value in e/cess of P8::. Accordingly% wereversed the court of appeal and reinstated the district courts pro-7afayette 1ity grant of partialsummary ,udgment% which dismissed the plaintiffs breach of contract claim. On application forrehearing% the plaintiff directs our attention to some corroborating deposition testimony%

admittedly limited% from a roommate who overheard the representations of the 1itys agents thatform the basis of plaintiffs claim. $his evidence was not introduced or filed in the district courtand thus is not part of the record on which our opinion was based. $herefore% it is not consideredon this rehearing application. I thus concur in the denial of the plaintiffs application forrehearing.

$he roommate testified that

Suire v. Lafayette City-Parish Govt. 907 So.2d 37 (La. 2005)

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