Team Contractors, L.L.C. v. Waypoint NOLA, L.L.C. et al, No. 2:2016cv01131 - Document 247 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying Waypoint's 123 Motion for Partial Summary Judgment regarding HCA and KLG's Liability. Signed by Judge Susie Morgan on 9/22/2017. (tsf)
Download PDF
<![CDATA[
Team Contractors, L.L.C. v. Waypoint NOLA, L.L.C. et al Doc. 247 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TEAM CON TRACTORS, LLC, Plain tiff CIVIL ACTION VERSU S N O. 16 -113 1 W AYPOIN T N OLA, LLC, ET AL., D e fe n d an ts SECTION : “E”( 2 ) ORD ER AN D REAS ON S Before the Court is Plaintiff-in-Crossclaim Waypoint NOLA, L.L.C.’s (“Waypoint”) Motion for Partial Sum m ary J udgm ent. 1 Waypoint seeks sum m ary judgm ent on liability in its crossclaim against Defendants-in-Crossclaim HC Architecture, Inc. (“HCA”) and Salas O’Brien South, successor in interest to KLG, L.L.C. (“KLG”). 2 The m otion is opposed by both HCA3 and KLG. 4 The Court heard oral argum ent on August 18, 20 17, during which the Court instructed the parties to subm it additional briefing on the issue of HCA’s liability for its subcontractors. 5 The parties duly subm itted additional m em oranda. 6 The Court has considered the briefs, record, and applicable law, and now issues its ruling. For the reasons that follow, the Motion for Partial Sum m ary J udgm ent is D EN IED . BACKGROU N D This case involves the developm ent and construction of the Hyatt House hotel in downtown New Orleans, Louisiana (“the Project”). It is undisputed that Team Contractors, L.L.C. (“Team ”), the owner of the Project, entered into a contract with 1 R. Doc. 123. R. Doc. 14. 3 R. Doc 155. 4 R. Doc. 157. 5 R. Doc. 187. 6 R. Doc. 190 (Waypoint); R. Doc. 191 (HCA); R. Doc. 192 (Plaintiff Team Contractors, L.L.C.); R. Doc. 199 (HCA). 2 1 Dockets.Justia.com Waypoint for the construction and/ or renovation of seven floors of the property located at 1250 Poydras Street, New Orleans, Louisiana. 7 Team alleges it incurred dam ages during construction in the form of additional subcontractor work, hourly labor at Team ’s expen se, and other related costs, when it was directed to rem ove deficient plum bing an d m echanical system s (“MEP system s”) and re-install revised system s. 8 Specifically, Team claim s the original plum bing system designs did not com ply with ventilation requirem ents in the New Orleans plum bing code, 9 and the m echanical designs om itted m ore than 150 sm oke dam pers, in violation of other applicable m unicipal codes. 10 Team filed a com plaint in this Court to recover these costs from Waypoint, the owner; HCA, the architect with which Team contracted; and KLG, HCA’s m echanical, electrical, and plum bing engineering subcontractor. 11 Waypoint filed a crossclaim against HCA and KLG, and a third-party dem an d against Bobby Beach and Danny Lundstrom , two licensed engineers who provided engineering services for KLG and HCA on the Project. 12 Waypoint alleges that HCA breached its duty to Waypoint by providing substandard plans and specifications for the Project, failing to properly oversee its subcontractors, failing to properly coordin ate the design of the project, and failing to tim ely rem edy the relevant design errors. 13 As to KLG, Waypoint alleges that KLG negligently perform ed its duties as engineer by producing MEP system designs that did not com ply with local codes. 14 7 R. Doc. 1 at 2. R. Doc. 1 at 2-3. 9 R. Doc. 123-2 at 5. 10 R. Doc. 123-2 at 6. 11 R. Doc. 1. 12 R. Doc. 14 at 25-26. 13 R. Doc. 14 at 18 . 14 R. Doc. 14 at 18-19. 8 2 On August 2, 20 17, Waypoint filed a Motion for Partial Sum m ary J udgm ent on the liability of HCA and KLG. 15 Waypoint argues there is no genuine dispute of m aterial fact as to the liability of HCA and KLG, and that it is thus entitled to judgm ent as a m atter of law on its crossclaim . 16 LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”17 “An issue is m aterial if its resolution could affect the outcom e of the action.”18 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”19 All reasonable inferences are drawn in favor of the nonm oving party. 20 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 21 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”22 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving 15 R. Doc. 123. R. Doc. 123-2 at 19. 17 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 18 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 19 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 20 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 21 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 22 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 16 3 party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 23 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonm ovant’s claim . 24 When proceeding under the first option, if the nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 25 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”26 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 27 If the m ovant m eets this 23 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Brennan, J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 25 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 26 Celotex, 477 U.S. at 332– 33. 27 Id. 24 4 burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”28 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”29 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”30 LAW AN D AN ALYSIS A. Duty/ Risk Analysis Under Louisiana Law Waypoint seeks sum m ary judgm ent that HCA and KLG are liable to it for dam ages caused by the two firm s’ negligence. Because jurisdiction in this m atter is based on diversity, the Court will apply Louisiana negligence law. 31 Louisiana law em ploys a dutyrisk analysis in determ ining liability for negligence. 32 This test requires a plaintiff to prove five elem ents: 28 Celotex, 477 U.S. at 332– 33, 333 n.3. Id.; see also First N ational Bank of Arizona, 391 U.S. at 289. 30 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 31 See Erie R.R. Co. v . Tom pkins, 30 4 U.S. 64 (1938). 32 Bufkin v. Felipe’s Louisiana, LLC, 20 14-0 28 8 (La. 10 / 15/ 14), 171 So.3d 851, 855. 29 5 (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in -fact of the plaintiff’s injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries; and (5) actual dam ages. 33 The question of whether a duty is owed, and the scope of that duty, is a question of law. Whether there was a breach of the duty, whether the substandard conduct was the causein-fact an d legal cause of the dam ages, and whether dam ages resulted, are questions of fact. 34 Louisiana courts have recognized that the five-factor negligence inquiry presents a particularly difficult challenge at the sum m ary judgm ent stage, because “a negative answer to any of the inquiries of the duty/ risk analysis results in a determ in ation of no liability.”35 Moreover, Louisiana courts have m ade clear that sum m ary judgm ent should not be granted on particular elem ents of a negligence claim , because, “by dividing the issue of liability into sm aller issues. . . . [t]here is a possibility of confusion arising out of the factual interrelationship between the adjudicated elem ent and the unadjudicated elem ent that could lead to inconsistent rulings and piecem eal litigation.”36 In other words, sum m ary judgm ent “m ay not be granted for purposes of determ ining a particular elem ent of liability where such a determ in ation is not com pletely dispositive of the question of liability between the parties concerning the claim and where other issues such as com parative fault rem ain unresolved.”37 Thus, to succeed on sum m ary judgm ent, Waypoint m ust provide undisputed evidence entitling it to judgm ent as a m atter of law 33 Id. Teter v. Apollo Marine Specialties, Inc., 20 12-1525 (La. App. 4 Cir. 4/ 10 / 13), 115 So. 3d 590 , 598 . 35 Hanks v. Entergy Corp., 20 0 6-477 (La. 12/ 18/ 0 6), 944 So.3d 564. 36 Jones v. LSU Health Scien ces Center-Shrev eport, 39,292CW (La. Ct. App. 2 Cir. 20 0 4), 8 80 So. 2d 269. 37 W illiam s v. City of N ew Orleans (La. Ct. App. 1994) 637 So. 2d 1130 , 1132, w rit denied, 94-1587 (La. 10 / 7/ 94), 644 So. 2d 632. 34 6 with respect to all five elem ents of the negligence analysis under Louisiana law. Waypoint has not m et this burden, however, because Defendants-in-Crossclaim raise disputes of m aterial fact regarding the causation prong of the negligence inquiry, and factual issues regarding com parative fault and superseding cause rem ain unresolved. B. Causation Waypoint’s m otion does not directly address the causation elem ent of the negligence test and, in stead, appears to assum e a causal connection between the codedeficient MEP drawings and its dam ages. HCA and KLG disagree and provide sum m ary judgm ent eviden ce they say shows that the fault of Waypoint, Team , and Team ’s m echanical and plum bing subcontractor caused the dam ages. This evidence creates a genuine dispute of m aterial fact regarding the cause of Waypoint’s dam ages. It is undisputed that Team retain ed Ray & Sons Heating & Air Conditioning (“Ray”), a Georgia-based contractor, as the m echanical, plum bing, and heating an d air conditioning subcontractor for the Project. 38 Ray’s responsibilities included building the MEP system s designed by HCA and KLG. 39 HCA delivered a com plete set of plans and specifications, including KLG’s drawings, to Team on Septem ber 26, 20 14, 40 and by the end of J anuary, Ray had com pleted a significant am ount of the plumbing and m echan ical work. 41 According to Defendants-in-Crossclaim ’s sum m ary judgm ent evidence, Ray began the MEP work before obtaining the relevant perm its from New Orleans building 38 R. Doc. 157-2 at 133-35 (Deposition of Brett Fortner, Team Contractors). See 157-4 (Subcontract between Team and Ray). Ray & Sons is not a party to this case. 39 R. Doc. 157-3 (plum bin g subcontract); R. Doc. 157-4 (heating, ventilation, and air conditionin g subcontract). 40 R. Doc. 155-2 at ¶ 9 (Affidavit of Tom Hogan ). 41 R. Doc. 157-8 at 20 7 (Hyatt House New Orleans Monthly Report, J anuary 20 15). 7 authorities. 42 Under the rules of the New Orleans Sewerage and Water Board (“SWR”), a project’s m aster plum ber m ust obtain a perm it prior to com m encing construction: 2.6.1 Application – Before beginning the construction, reconstruction, alteration or repair of any part of a plum bing system , the files for the Sewerage and Water Board Plum bing Departm ent shall be checked for clearance and perm ission granted by the departm ent to do such work. 43 Further, the SWR rules place the ultim ate burden of com pliance on the property owner: No property owner shall cause, or perm it any installation, connection, addition, or alteration to be m ade to any water, drain , soil, waste pipe, or any pipe connected thereto, unless a perm it therefore shall have been issued by the Plum bing Departm ent of the Sewerage and Water Board[.] 44 This is consistent with Louisiana law, which assigns the duty to obtain necessary perm its to the owner. 45 Although Ray started the MEP work in J anuary, em ployees from Ray and Team did not seek SWR approval for the plum bing plans until February 24, 20 15, 46 around the tim e that the errors and om issions in the project becom e apparent. 47 Sim ilarly, work began on the m echanical system s in J anuary, 20 15, but a perm it application was not subm itted until February 9, 20 15. 48 In response to requests by the m unicipal authorities, the plans were revised and resubm itted less than a m onth later. 49 Defendants-inCrossclaim ’s sum m ary judgm ent evidence has created a genuine issue of disputed fact with respect to the causal connection between HCA/ KLG’s conduct and Waypoint’s 42 R. Doc. 157, Exhibit D at 90 (Deposition of Brett Fortner). R. Doc. 157-20 at 6 (Rules of the New Orleans Sewerage and Water Board § 2.6.1). 44 Id. at § 2.2.4. 45 See LA. R EV. STAT. ANN . § 37:2160 A, 2161 (20 0 9). 46 R. Doc. 157-7 at 11 (Deposition of Steve Laski). 47 R. Doc. 157-7 at 13 (Deposition of Steve Laski). R. Doc. 123-20 . 48 R. Doc. 157-14 (Application Confirm ation Form ). 49 Id. 43 8 dam ages. Accordingly, Waypoint is not entitled to sum m ary judgm ent on its claim of negligence. C. Superseding Causes and Com parative Fault Further, because Defendants-in-Crossclaim s’ sum m ary judgm ent evidence raises issues of superseding cause an d com parative fault that would be unresolved by this m otion, sum m ary judgm ent is not appropriate. Under Louisiana law, a m otion for partial sum m ary judgm ent on the determ in ation of tort liability includes a determ ination of all issues of proxim ate cause, in cluding com parative fault, concurrent causes, an d superseding causes. 50 “Ordin arily, the determ ination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for sum m ary judgm ent. This principle exten ds to a question of com parative fault as well.”51 Even if Waypoint were able to satisfy the elem ents of breach, causation, and dam ages, the Court should not grant Waypoint’s m otion if the judgm ent is “not com pletely dispositive of the question of liability between the parties concerning the claim and where other issues such as com parative fault rem ain unresolved.”52 Because granting the present m otion would leave questions of superseding cause an d com parative fault unanswered, sum m ary judgm ent m ust be den ied. 50 See W illiam s v. City of N ew Orleans, 93-20 43 (La. App. 4 Cir. 5/ 17/ 94), 637 So.2d 1130 , 1132; see also Rance v. Harrison Co., 31,50 3 (La. App. 2 Cir. 1/ 20 / 99), 737 So.2d 80 6, 810 w rit denied, 99-0 778 (La. 4/ 30 / 99), 743 So.2d 620 6 (“[T]he grantin g of sum m ary judgm ent as to liability m ust dispose of all liability issues, including contributory or com parative negligence.”). See also Cun ningham v. N orthland Ins. Co., 0 0 -88 8 (La. App. 5 Cir. 9/ 14/ 0 0 ), 769 So.2d 689. 51 Lew is v. Pin e Belt Multipurpose Cm ty . Action Acquisition Agency , Inc., 48 ,8 80 (La. App. 2 Cir. 5/ 7/ 14), 139 So.3d 562, 569 w rit denied 20 14-0 98 8 (La. 8/ 25/ 14) and 20 14-1190 (La. 8/ 25/ 14) (citations om itted); see also Pruitt v. N ale, 45,483 (La. App. 2 Cir. 8/ 11/ 10 ), 46 So.3d 780 , 783; but see Rance v. Harrison Co., Inc., 31,50 3 (La. App. 2 Cir. 1/ 20 / 99), 737 So.2d 80 6, 810 (“Where reasonable m inds cannot differ, the question of contributory or com parative negligence is a question of law that m ay be resolved by sum m ary judgm ent.”). 52 W illiam s v. City of N ew Orleans (La. Ct. App. 1994) w rit denied, 94-1587 (La. 10 / 7/ 94), 644 So.2d 632. 9 For instance, HCA and KLG provide sum m ary judgm ent evidence that Waypoint’s and Ray’s failure to obtain perm its prior to beginning construction is a superseding cause of Waypoint’s dam ages, or alternatively that Waypoint and Ray are com paratively at fault. “A superseding or intervening cause is one which com es into play after the defendant’s negligent conduct has ceased, but before the plaintiff suffers injury,”53 which “m ay sever the causal connection between a plaintiff’s injuries and a defen dant’s negligence.”54 However, “[i]f the original tortfeasor could or should have reasonably foreseen that the accident m ight occur, he or she will be liable notwithstanding the in tervening cause.”55 In this case, there is a question of fact as to the foreseeability of Waypoint’s and Ray’s failure to obtain all legally required perm its before beginning construction. Brett Fortner of Team Contractors testified he has worked on “countless exam ples” of projects in which the subcontractor was allowed to start the plum bing work without final perm its. 56 This testim ony suggests it m ay be com m on industry practice to begin work without m unicipal approval. If so, it m ay have been foreseeable to HCA that construction would begin before issuance of final perm its. In opposition, HCA provides eviden ce that it is “custom ary” for architects and engineers to revise perm itting plans when m unicipal authorities m ake com m ents for correction. 57 This dispute is dispositive as to Defendants-in -Crossclaim ’s supersedin g cause defense, and so m ust be resolved before the Court m ay grant sum m ary judgm ent. Finally, in addition to the superseding cause doctrine, there rem ain factual disputes relevant to a final determ ination of com parative fault. Because Waypoint is 53 Johnson v. Morehouse General Hosp. 10 -0 387 (La. 5/ 10 / 11), 63 So.3d 87. Lahare v. Valentine Mechanical Services, LLC 17-28 9 (La. App. 5 Cir. 6/ 29/ 17), 20 17 WL 28 0 720 9. 55 Adam s v. Rhodia, Inc., 20 0 7-2110 (La. 5/ 21/ 0 8), 983 So.2d 798 , 80 8 . 56 R. Doc. 155, Exhibit D at 90 (Deposition of Brett Fortner). 57 R. Doc. 155-2 at ¶¶ 12-13 (Affidavit of Tom Hogan). 54 10 entitled to sum m ary judgm ent only if the Defendants are solely at fault, the Court should focus on “whether the Defendants have offered com petent sum m ary judgm ent eviden ce sufficient to show a genuine issue of m aterial fact as to the com parative fault of the [Plaintiff-in-Crossclaim ].”58 Construing the evidence described above in the light m ost favorable to HCA and KLG, the eviden ce raises sufficient factual issues to defeat any determ ination on sum m ary judgm ent that HCA and KLG are solely at fault. Because sum m ary judgm ent as prayed for would not be “com pletely dispositive of the issue of liability between the parties and other issues such as com parative fault rem ain,” Waypoint’s m otion for sum m ary judgm ent m ust be denied. CON CLU SION The Court finds genuine disputes of m aterial fact regarding HCA and KLG’s liability to Waypoint. Accordingly; IT IS ORD ERED that Plaintiff’s Motion for Partial Sum m ary J udgm ent on the liability of HCA and KLG is hereby D EN IED . N e w Orle a n s , Lo u is ian a, th is 2 2 n d d ay o f Se p te m be r, 2 0 17. _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 58 Rea v. W isconsin Coach Lines, Inc., 20 14 WL 4999447 (E.D. La. 20 14). 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
