Christopher Lee Therrell VS Rowan Companies, Inc.

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NOT DESIGNATED FOR PUBLICATION STATE OF LDUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 2144 CHRISTOPHER LEE THERRELL I VERSU5 ROWAN C4MPANIES INC Judgment Rendered December 22 2010 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 104088 The Honorable John E LeBlanc Judge Presiding Norman J Lake Counsel for Plaintiff Appetlee Christopher Lee Therrell Thigpen Charles LA Douglas W Truxillo Counsel for DefendantJAppellee Rowan Companies Inc James D Bayard Lafayette LA Jonathan M Wa1sh Robert E New Kerrigan Jr Orleans LA Robert R Johnson D Alto II Anthony New Orleans LA Charles A Mouton Lafayette Counsel for Third Party DefendantlAppellee NES Equipment Rentals L P Counsel for Third Party Appellant Defendant r Tidewat pock Inc and Bluetide Inc Counsel for Third Party Appellee Defendant LA JLG Industries Inc BEFORE WHIPPLE McDONALD AND McCLENDON JJ i L C y S1 S WHIPPLE J This matter is be us on appeal by Tidewater pock Inc and Blue Tide ore Inc hereinafter collectively referred to as Tidewater from a judgment of the trial court granting summary judgment in favor of NES Equipment Rental L P hereinafter NES For the following reasons we reverse the judgment of the trial court and remand this matter for further proceedings FACTS AND PROCEDURAL HISTORY I As a result of an accident on July 18 2006 involving a piece of equipment called a plaintiff Christopher Lee Therrell filed a petition for lift man damages against his employer Rowan Companies Inc hereinafter Rowan seeking recovery under the Jon Act and g maritime law Rowan in turn s neral filed third demands against 1 NES the owner of the man involved in party lift th accident herein 2 Tidewater who leased the man from NES and lift provided it to Rowan and 3 JLG Industries Inc hereinafter referred to as JLG the manufacturer of the man lift In response to Rowan claims third defendants NES Tid and s party water JLG filed motions for summary judgment contending that Rowan instruction to s Therrell who had no certification training or repair experience to troubleshoot or attempt to figure out what was wrong with the man without affording lift notice or an opportunity to repair to NES Tidewater or JLG when Rowan knew that the man was malfunctioning constituted a superseding cause relieving lift them of any liability Accordingly the third defendants contended that party Rowan was not entitled to contribution and indemnity for its own negligence in placing its seaman in harm way After hearing argument the trial court granted s As l the background facts and procedural history are fully set forth in the companion case to this appeal also handed down on this date we will note the facts particular to the issues before us in this appeal See Therrell v Rowan Companies Ine 2 S46 La App 1 09 l Cir unpublished opinion 2 summary judgment in favor of NES JLG and Tidewater and finding that Rowan should not have attempted to fix the man noting the lack of notice by Rowan lift to any of the pariy third s Rowan acts constituted endants de a Specifically the trial court found that superseding Individual judgments were cause submitted and signed by the trial court Rowat separately appealed each of the summary judgments in favor of the third defendants which resulted in our party reversing s the trial court judgments See Therrell v Rowan Companies Inc 1546 1547 1548 2009 2009 2009 La App 1 S Cir unpublished opinions also rendered this date However in the proceedings below in response to Rowan third s party demand NES filed a cross against Tidewater contending that pursuant to claim an indemnification clause conta in the Terms and Conditions of NES ined s rental agreement with Tidewater Tidewater was responsible for indemnifying and holding NES harmless from any and all claims demands or suits including any and all costs and attorney fees associated with NES defense of this matter s s As such NES sought judgment against Tidewater for indemnification and contribution for its costs and orneys at fees After the dismissal on summary judgment of Rowan claims against the third defendants NES filed a s pariy motion for summary judgment on its indemnity claims against Tidewater In support NES contended because the trial court determined that NES had no negligence in the underlying personal injury matter NES was contractually entitled to indemnity and repaym of its costs of deFense attorney fees expert nt s witness fees and all other costs of litigation from Tidewater After a hearing on September 4 24Q9 the trial court determined that th indemnity clause was enforceable and ordered Tidewater to indemnify NES for the costs of defense attorney fe expert witness f and all other costs of s s ES 3 litigation A written judgment granting NES motion for summary judgment s was signed by the trial court on October 9 2009 On appeal Tidewater contends that the trial court erred in determining that Tidewater must indemnify NES for its costs of defense attomeys fees expert ss witn fees and all other costs of litigation Alternatively Tidewater contends that the trial court erred in considering NES motion for summary judgment and s an failing to find the motion was premature given the pending appeals to this court involving the dismissal of Rowan third demands against NES s party Tidewater and JLG APPLICBLE LAW The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action P C LSA art 9 2 A b Appellate courts review summary judgments de novo under the same criteria that govern the trial court determination of whether a summary judgment is s appropriat Duplantis v s Dillard Department Store 0852 2002 La App l st Cir 5 49 So 2d 675 679 writ denied 2003 La 10 8S5 03 9 1620 03 So 2d 350 A motion for summary judgment will be granted 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 P GC LSA art 966 B Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case Dickerson v The trial court initially signed a judgment on September 15 2009 granting NES s motion for summary judgment and ardering that Tidewater indemnify NES However that judgment failed to cantain a required designation af nality pursuant to LSA art P C B 1915 Thus a show order was issued by this court granting the parties leave to cause supplement the record with a proper final judgment for purposes of appeal An amended judgment containing the proper designation and signed by the trial court an October 9 2009 was submitted by the parties Accordingly the appeal was maintained 4 I Piccadil Restaurants Inc 2633 99 La App 1 St Cir 12 785 So 2d 00 22 842 44 The substantive interpretation of law indemnity applicable contracts herein is the law governing the A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms Berry v Orleans Pa rish School Board 2001 La 6 830 So 2d 283 285 citing Perkins v 3283 02 21 Rubicon Inc 563 So 2d 2S 2S9 La 1990 The basis for this principle was succinctly expressed in Arnold v Stu Carporation 245 So 2d 797 799 La p App 1 Cir 1967 writ not considered 251 La 936 207 So 2d 540 196 eneral G words alone i any and all liability do not necessarily import an e intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter The general rules which govern the interpretation of other contracts likewise apply in construing a contract of indemnity Dean v Griffin Crane Steel Inc 2005 La App l Cir 5 935 So 2d l 191 writ 1226 06 b 1334 denied 2006 La 9 06 22 937 So 2d 387 The following codal principles apply and guide our interpretation of the contract including its indemnity provisions See Berrv v Orleans Parish School Board 830 So 2d at 285 the Interpretation of a contract is the determination of the common intent of parties GC LSA art 2045 This is an abjective inquiry thus a party s declaration of will becomes an integral part of his will LSA art 2045 GC Revision Comments b When the words of a contract are clear and 1984 explicit and lead to no absurd consequences no further interpretation may be S made in search of the parties intent LSA art 2046 Instead the words of GC a contract must be 2047 the given their generally prevailing meaning C LSA art Words susc o different meanings must be interpreted as having ptible meaning that best conforms to the object of the contract GC LSA art 2048 Moreover each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as I I a whole LSA art 2050 GC ASSIGNMENT OF ERROR NUMBER ONE The indemnity clause at issue herein provides as follows 19 Indemni Customer Tidewater agrees to indemnify and hold Company NES harmless against any and all claims demands or suits including costs of defense attorney fees expert s witness fees and all other costs of litigation for any and all bodily injury property damage or ariy other damages or loss regardless of whether such injury damage or loss is caused in whole or part by negligence which arises out of r from or relate to the use sult operation condition or presence of the equipment except where such injury damage or loss is caused solely by the Company NES In its first assignment of error on appeal Tidewater contends that the trial court etred in determining that the indemnity clause set forth above entitled NES to recover its costs of defense in this litigation Tidewater contends that pursuant to Louisiana jurisprudence a contractual indemnity agreement will not be construed to require the indemnitor Tid to indemnify the indemnitee water NES for the indemnitee own negligence unless such an intention is clearly s expressed in s unequivocal terms Thus Tidewater contends because Rowan party third demand against NES alleges that NES negligence caused the s s plaintiff accident the critical inquiry is whether Tidewater unequivocally The 3 parties do not dispute that the Louisiana Oilfield Indemnity Act LOIA which basically nullifies any pravision in an agreement pertainin to wells for oil gas or water ar drilling for minerals that requires defense and indemnification where there is any or negligence or fault on the part af the indemnitee as codified in LSA 9 is S R 2780 inapplicable h See Meloy v Conoco Inc 504 So 2d 833 838 La 1987 arein In 4 support for this propositian Tidewater cites Folozola v Garlock 343 So 2d 1000 La 1977 6 intended and agreed to indemnify NES for NES s own negligence Tidewater argues that the indemnity clause would have expressed the unequivocal intent for Tidewater to defend and indemnify NES for NES own negligence if the s indemnity clause contained the word Company before the word negligence s as such 19 Indemnity Customer Tidewater agrees to indemnify and hold Company NES har against any and all claims mless demands or suits including costs of defense attorney fees expert s witness fees and all other costs of litigation for any and all bodily injury property damage or any other damages or loss regardless of whether such injury damage or loss is caused in whole or part by s s Company NES negligence which arises out of result from or relate to the use operation condition or presence of the equipment except where such injury damage or loss is caused solely by the Company NES Emphasis added Thus Tidewater contends as worded in the contract the indemnity provision at issue is ambiguous and unenforceable as it expresses no such intention NES counters that the terms at issue setting forth the indemnity provision are clear and contain no ambiguities NES contends that in accordance with the terms of the provision Tidewater owes indemnity to NES inasmuch as 1 NES obtained a judicial determination in the underlying proceedings that it was free from fault i that plaintiffls accident was not caused solely by NES and 2 e NES has incurred and paid defense costs NES further cont that Rowan nds s party third demand against NES arose out of result from or relate to the ed d use operation condition or presence of the man NES leased to Tidewater lift such that pursuant to the clear and plain wording of the indemnification clause Tidewater must indemnify NES for its costs of defense attorney fees expert s witness fees and all other costs of litigation 7 On review we reject Tidewater contention that the indemnity provision s herein is ambiguous Instead we find that the trial court correctly concluded that the indemnity provision herein is unambiguous and that Tidewater intention s e i to indemnify NES for any and all damage arising from use of the equipment unless the damage is caused solely by the negligence of NES is expressed in unequivocal terms See Berry v Orleans Parish School Boa 830 So 2d at 285 rd Accordingly we find no merit to this assignment of error ASSIGNMENT OF ERROR NUMBER TWO In its second assignment of error Tidewater cont that the trial court nds s grant of summary judgment on NES claim was premature considering that s Rowan appealed the grants of summary judgment in favor of the third party defendants including NES which are pending before this court An indemnitor is not liable under an indemnity agr until the ement indemnitee Parish actually makes payment Consolidated Government or sustains a loss Suire v Lafavette City 1459 1460 2004 2004 1466 2004 La OS 12 4 907 So 2d 37 S 1 citing Meloy v Conoco Inc 504 So 2d at 39 Thus a cause of action for indemnification for costs of defense does not arise until the lawsuit is concluded and defense costs are paid Suire v Lafa ette Cit Parish Consolidated Government 907 So 2d at 51 As noted above the judgments of the trial court granting summary judgment in favor of each of the third defendants and dismissing Rowan party s party third claims against them were considered by this court in the companion cases to this appeal In the opinions rendered therein and also handed down this date we have reversed the summary judgments rendered therein See Therrell v Rowan Com anies Inc 2009 2009 2009 La App 1 Cir 1546 1547 1548 unpublished opinions In particular given our reversal of the judgment of the trial court granting summary judgment in favor of NES and 8 dismissing Rowan third claims against NES see Therrell v Rowan s party Companies Inc 1546 2009 La App 1 Cir unpublished opinion we agree that the trial court judgment ordering Tidewater ta indemnify NES is s premature and must likewise be reversed until such time as there is a determination af fault See Suire v Lafa ette Cit Parish Consolidated Government 907 So 2d at 51 Thus although we affirm the trial court determination that the indemnity s provision herein is unambiguous we find merit to Tidewater second assignment s of error that until a determination of negligence if any is made an order of indemnification is premature This assignment of error has merit CONCLUSION For the above and oregoing reasons the Qctober 9 2009 judgment of the trial court granting summary judgment in favor of NES and ordering that Tidewater indemnify NES for the costs of defense attorney fees expert witness s fees and all other costs of litigation is hereby reversed This matter is remanded to the trial court for further proceedings Costs of this appeal ar assessed equa to the appellee NES Equipment 11y Rentals L and appellant Tidewater pock Inc and Bluetide Inc P REVERSED AND REMANDED 9 STATE OF LOUISIANA COURT OF APPEAL I YRST CIRCUIT 2009 CA 2144 R CHRISTOPH LEE THERRELI VERSUS ROWAN COMPANIES INC McCLENDON concurs and assigns reasons I agree that any order of indemnification respectfully concur with the result reached is premature Therefore I

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