CF Industries, Inc. and Hartford Fire Insurance Company VS Turner Industries Services, Inc., Cooperheat-MQS, Inc. and Catalyst Process Specialists, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0540 CF INDUSTRIES INC and HARTFORD FIRE INSURANCE COMPANY VERSUS TURNER INDUSTRIAL SERVICES INC COOPERHEAT MQS INC and CATALYST PROCESS SPECIALISTS INC Judgment Rendered AUG 2 4 2W On Appeal from the 23 Judicial District Court for the Parish of Ascension Docket No 69 737 Honorable Ralph Tureau Judge Presiding L J Hymel Michael Reese Counsel for Plaintiff Appellant CF Industries Inc and Illinois National Insurance Company David Timothy W Cerniglia Tim P Hartdegen Baton Rouge LA Arthur W New Counsel for Defendant Appellee Lumbermens Mutual Casualty Company Landry Orleans LA Thomas G Drennan James Pinderski Chicago IL l BEFORE GAIDRY f C tvN C McDO NALD AND HUGHES JJ 4 trr M fie HUGHES J This is an appeal from a judgment of the 23 Judicial District Court rendered after the conclusion of a jury trial The judgment held that a 1995 contract between appellants CF Industries Inc CFII and Cooperheat MQS Inc MQS was effective between the parties for damages arising out of services provided by an employee of 1v1QS that contributed to an explosion in 2000 The judgment further held that CFII is not an additional insured under the appellees defendants policy insurance of Lumbermens Mutual issued to Casualty MQS by Company Lumbermens and that Lwas only liable to indemnify CFII up to one million dollars under the applicable contract CFII and its insurer Illinois National Insurance Company collectively CFII appealed contending a different contract between the parties was controlling Lumbermens filed an answer to the appeal alleging that in the event the 1995 contract was not a binding agreement it owed no indemnity to CFII and the portion of the judgment so ordering should be reversed For the reasons that follow we deny the relief sought by Lumbermens in its answer and affirm the judgment of the district court FACTS AND PROCEDURAL HISTORY This action arises Donaldsonville Louisiana from an explosion at s CFII facility in The explosion occurred on May 24 2000 and was caused by a failed weld in a pressure vessel An employee of MQS Sammy Charlet had recently inspected the vessel CFII filed suit against MQS and Lumbermens MQS insurer at the time of the explosion CFII s alleges that the Agreement of Terms and Conditions signed by CFII and MQS in 1996 the 1996 ATC was in effect between the parties at the time of the explosion and governed MQS responsibility to indemnify CFII for s 2 any damages caused or contributed to by its employee Specifically CFII alleges that under the terms of the 1996 ATC which they also contend terminated any prior agreements MQS was required to name CFII as an additional insured under its policy with Lumbermens and is responsible to indemnify CFII for any and all damages caused or contributed to by its employee Sammy Charlet Lumbermens however alleges that the 1996 ATC did not govern its responsibilities to CFII for the fault or negligence of Sammy Charlet but that Sammy Charlet terms of employment were governed by a prior s agreement the 1995 ATC The 1995 ATC did not contain a provision requiring MQS to name CFII as an additional insured under its policy and it limited its indemnity exposure to a maximum of one million dollars Alternatively Lumbermens alleges in its answer to this appeal that if no agreement was reached as to the terms of the 1995 ATC as CFII now contends then there was no agreement in effect between the parties regarding Sammy Charlet employment at the Donaldsonville facility on s the day of the explosion and it is thus not liable to CFII for any amount of indemnification Previously in the course of this litigation the trial court ruled on a motion for summary judgment that the 1996 ATC governed the obligations between the parties at the time of the explosion and that CFII therefore qualified as an additional insured under the terms of the Lumbermens policy Lumbermens appealed that judgment and this court reversed it after a de novo review concluding that a factual dispute existed over whether it was 1 While signed in 1995 the revision date stated in the 1995 ATC is 4 As such 1994 25 throughout the course of the litigation the 1995 ATC was sometimes referred to as the Terms and Conditions dated 4 or the 1994 ATC In this opinion however for the purpose of 1994 25 consistency we reference the document as the 1995 ATC 3 the intent of the parties that the provisions in the 1996 ATC would terminate the earlier document the 1995 ATC CF Industries Inc v Turner Indus Services Inc 06 La App st Cir 2 unpublished 0856 07 9 949 So 675 2d Subsequently CFII tiled a third supplemental and amending petition to assert bad faith clai ris gair st Lwnbermei s under former LSAR S 658 22 and LSAR 22 for its failure to timely pay the indemnity S 1220 sought by CFII In response Lumbermens filed a motion for partial summary judgment asserting that CFII had no legal basis for a bad faith action The trial court granted Lumbermens motion for partial summary judgment and dismissed CFII bad faith claims concluding that a s reasonable coverage dispute existed In making this conclusion the trial court relied on this court prior appeal decision discussed above which s reversed its g rant of a motion for summary judgment in favor of CFII finding that the 1996 ATC controlled Based on this court conclusion that s it was disputed whether it was the intent of the parties that the 1996 ATC terminated the prior 1995 ATC as to Sammy Charl employment the trial s t court found that the decision could on1 mean that a reasonable and y legitimate coverage dispute existed which would preclude a finding of bad faith on the part of Lumbermens On appeal this court again reversed the trial court judgment concluding that nothing in the prior reversal would s preclude a factfinder after hearing the evidence and making its credibility determinations from finding that Lumbetmens actions contravened the good faith requirements of former LSA R 22 and LSAR 22 S 658 S 1220 2 Effective January 1 LSAR 009 22658 was renumbered as LSA R S 221892 and S LSA R 22 was renumbered as LSAR 22 For consistency this opinion S 1220 S 1973 retains the numbering used by CFII in its supplemental and amending petition which was in effect at the time this cause of action arose 4 CF Industries Inc v Turner Indus Services Inc 09 0093 La App 1st Cir 6 unpublished 09 12 The case went to a trial on the merits At the conclusion of its case in chief CFII moved for a directed verdict which motion was denied by the court The jury ultimately returned a verdict finding that the 1995 ATC controlled the rights and obligations between CFII and MQS with respect to the services provided by Sammy Charlet on the date of the explosion The jury also found that the explosion was in some way connected to and arose out of Sammy Charlet services and attributed 52 of the fault to MQS s The jury denied CFII bad faith claims against Lumbermens s The trial court concluded that the jury findings as a matter of law resulted in the s ultimate conclusion that CFII was not an additional insured under the Lumbermens policy and that the indemnity claims asserted by CFII against MQS and Lumbermens were capped at the one million dollar limitation agreed upon by the parties in the 1995 ATC CFII moved for a JNOV and also filed a motion for new trial which were both denied by the trial court CFII now appeals the judgment and makes the following assignments of error 1 The trial court erred in allowing parol evidence and the jury erred in considering it 2 The jury was manifestly erroneous in finding that the 1995 Agreement of Terms and Conditions was the agreement which applied with respect to the services provided by MQS Inspection through Sammy Charlet on May 24 2000 and the trial court rulings and judgment s thereon were incorrect 3 The trial court abused its discretion by denying appellants CF Industries Inc and Illinois National s Insurance Company Motion for Directed Verdict that s the more recent 1996 Agreement of Terms and Conditions applied and by denying appellants Motion for JNOV and Motion for New Trial 5 Lumbermens answered the appeal asserting that in the event that the 1995 ATC was not a binding agreement then there was no agreement and that the portion of the judgment finding that it was to indemnify CFII up to one million dollars should be reversed LAW AND ANALYSIS I Assignment of Error No 1 Parol Evidence In its first assignment of error CF1I alleges that the trial court erred in admitting parol evidence for the purpose of determining whether the parties agreed to the 1995 ATC and whether the 1996 ATC terminated the 1995 ATC An appellate court may not overturn a jury findings of fact absent s manifest error or unless a finding is clearly wrong However if upon review we find that the trial court committed one or more evidentiary errors that interdict the fact finding process we are required to instead conduct a de novo review As such because a finding of an evidentiary error may affect the standard of review we should apply we will first address the alleged evidentiary errors Wright v Bennett 2004 1944 La App I Cir 05 28 9 924 So 178 182 2d We note however that in regards to the defendants allegations of error as to whether the trial court improperly admitted or excluded certain evidence the trial court is granted broad discretion in these rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion Wright 924 So 2d at 183 citing Turner v Ostrowe 2001 1935 La App 1 Cir 9 828 So 02 27 2d 1212 1216 writ denied 2002 2940 La 2 836 So 107 03 7 2d Morever this circuit has previously noted that LSAC art 103 E A provides in part that e may not be predicated upon a ruling which rror admits or excludes evidence unless a substantial right of the party is 6 i affected Wright 924 So at 183 The proper inquiry for determining 2d whether a party was prejudiced by a trial court alleged erroneous ruling on s the admission or denial of evidence is whether the alleged error when compared to the entire record had a substantial effect on the outcome of the case If the effect on the outcome of the case is not substantial reversal is not warranted Wright 924 So at 183 As such even if we determine 2d that the trial court abused its discretion and improperly admitted or excluded certain evidence we must then also find that the error when compared to the entire record had a substantial effect on the outcome of the case in order for the error to warrant a reversal of the verdict The First Circuit in Spohrer v Spohrer 610 So 849 851 53 La 2d App 1st Cir 1992 held the following regarding interpretation of contractual provisions Legal agreements have the effect of law upon the parties and as they bind themselves they shall be held to a full performance of the obligations flowing therefrom When the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent The rules of interpretation establish that when a clause in a contract is clear and unambiguous the letter of the clause should not be disregarded under the pretext of pursuing its spirit As a general rule paroi evidence is inadmissible to vary modify explain or contradict a writing In Investors Associates Ltd V B Trappey Sons Inc 500 So 909 Fs 2d 912 La App 3 Cir writ denied 502 So 116 La 1987 3d the court noted that ontracts C subject to interpretation from the instrument sfour comers without the necessity of extrinsic evidence are to be interpreted as a matter of law The use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners ofthe agreement However as pointed out by the court in Investors Associates Ltd there are exceptions which permit reference to parol and other outside evidence One such instance is where the mutual intention of the parties has not been fairly explicit 7 i In such instances the court may consider all pertinent facts and circumstances including the party own conclusions rather s than adhere to a forced meaning ofthe terms used Further when the terms of a written contract are susceptible to more than one meaning or there is uncertainty or ambiguity as to its provisions or the intent of the parties cannot be ascertained from the language employed or fraud is alleged parol evidence is admissible to clarify the ambiguity show the intention of the parties or prove fraud Borden v Gulf States Utilities Company 543 So at 927 Schroeter v Holden 2d 499 So at 311 2d Louisiana Civil Code article 2045 defines interpretation of a contract as the determination of the common intent of the parties Lindsey v Poole 579 So 1145 1147 La App 2d 2nd Cir writ denied 588 So 100 La Such intent is 2d 1991 to be determined in accordance with the plain ordinary and popular sense of the language used and by construing the entirety of the document on a practical reasonable and fair Moreover LSAC art 2047 provides that t C he words of a contract must be given their generally prevailing basis meaning Words of art and technical terms must be given their technical meaning when the contract involves a technical matter The rule of strict construction does not authorize courts to make a new contract where the language employed expresses the true intent of the parties One of the best ways to determine what the parties intended in a contract is to examine the method in which the contract is performed particularly if performance has been consistent for a period of many years Intent is an issue of fact which is to be inferred from all of the surrounding circumstances The applicable standard of review for contractual interpretation was set forth by this court in Borden Inc v Gulf States Utilities Company 543 So 924 928 1989 2d Citations omitted Whether a contract is ambiguous or not is a question of law Where factual findings are pertinent to the interpretation of a contract those factual findings are not to be disturbed unless manifest error is shown However when an appellate review is not premised upon any factual findings made at the trial level but is instead based upon an examination of the independent contract review on its face and the manifest error rule does not apply In such cases appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect Citations omitted 8 In this case there are two master contracts to be interpreted The dispute lies with whether the terms of the two were ever agreed upon and if so then which of the two applies under the facts of this case The pertinent language in the contracts makes clear and neither party disputes that The 1995 ATC if agreed upon as modified by MQS did not require MQS to list CFII as an additional insured under its policies of insurance and capped s MQS potential indemnity exposure at one million dollars the 1996 ATC did require that MQS list CFII as an additional insured under its policies of insurance and did not contain a limit ofindemnification liability However CFII contends that the 1995 ATC could not be applicable because the parties never reached a meeting of the minds as to its terms The 1995 ATC was sent signed by CFII to MQS along with an unsigned copy MQS did not sign the copy that was signed by CFII but instead modified the indemnity portion of the unsigned agreement by writing by hand on the heading See MQS Proposal 1 Psl INDEMNITY 031 Section attached This modification by MQS was signed and returned to CFII with the referenced attachment a letter written by Jim Gregory and Bill McDonough dated September 6 1995 detailing the specific changes proposed by MQS Thereafter on September 20 1995 Purchase Order 4976085 was issued by CFII to MQS for the requisition of Sammy Charlet certified s inspection services at the CFII facility The purchase order stated that CF Industries Inc CFII Appendix of Terms and Conditions TC dated 4 s 94 25 the 1995 ATC attached two copies apply to this purchase order On September 29 1995 Change Order 1 to Purchase Order 976085 was issued and was signed by both parties The change order stated This change is issued to acknowledge the indemnity requirements as outlined in 9 Jim s Gregory and s Bill McDonough proposal of 9 1995 06 These requirements will become part of the indemnity requirements of CFII s Contractors Terms and Conditions as submitted with the original order Clearly the change order establishes that the parties agreed upon the terms and conditions that would apply to Sammy Charlet employment at s the CFII facility As such CFII argument that the 1995 ATC never s became effective as to the parties must fall The 1995 ATC was a binding contract between the parties and thus became the law between them But CFII also contends that in the event the 1995 ATC became a binding contract the 1996 ATC still controlled at the time of the explosion in 2000 because the 1996 ATC served to terminate any prior agreements of the parties A review of the language of the 1996 ATC however reveals no language expressly terminating the 1995 ATC In fact language in the 1996 ATC creates the possibility that its terms could be modified or superseded in the event that a more specific contract or purchase order applies 29 CONFLICT Should the parties hereto enter into a Service Agreement or Purchase Order or any other written contract excluding work order job tickets or similar documents issued by CFII which is specifically prepared for a particular job to be done or service to be rendered by CONTRACTOR MQS then in the event of a conflict between the terms of such Service Agreement Purchase Order or contract and the terms of this Agreement the terms of the Service Agreement Purchase Order or specific special contract for the particular job or service shall prevail 3 Even in instances where the law requires that a contract must be in writing it is not necessary that the contract be included in only one document The offer acceptance and terms can be in two or more separate documents and the memorandum of the contract will be sufficient if the offer acceptance and all required terms are present Salmon Falls Manufacturing Co v Goddard 55 U 446 1852 WL 6760 U Mass Dozier v Rhodus 08 1813 La App 1 S S Cir 5 17 So 402 rehearing denied La App 1 Cir 6 writ denied La 09 3d 09 19 09 30 10 Doiron v Louisisna Farm Bureau Mutual Ins Co 982818 La App I Cir 00 18 2 753 So 357 2d 10 The 1995 ATC also contains the CONFLICT verbatim Here there is a specific purchase order section above for a particular job to be done or service to be renderedfor the employment of Sammy Charlet And that purchase order by its terms is governed by the 1995 ATC The 1995 ATC was a binding contract between CFII and MQS and the language of the contracts makes clear that the 1995 ATC was not terminated by the 1996 ATC We note that CFII made no objection to the admission of parol evidence at the trial in this case Louisiana Code of Evidence article 1 A 103 which is the article governing rulings admitting evidence clearly sets forth a two fold procedure for objecting It requires both a contemporaneous objection and an enunciation of the specific grounds for the objection The purpose of this rule is to afford the trial court an opportunity to prevent or correct prejudicial error Jeansonne v Bosworth 601 So 739 91 0461 La App 1 Cir 5 rehearing denied La 2d 92 22 92 9 12 If no objection is made the party is precluded from raising the issue on appeal Jeansonne v Bosworth 601 So at 744 2d As such because CFII made no contemporaneous objection at the trial it is precluded from raising this issue on appeal Moreover the testimony at the trial is merely cumulative of the language in the contracts Where evidence is admitted that is merely cumulative of other evidence in the record any error in its admission is harmless Brumfield v Guilmino 93 0366 La App 1 Cir 3 writ 94 11 denied 94 0806 La 5 637 So 2d 1056 Alcorn v City of Baton 94 6 Rouge ex re the Baton Rouge Police Dept 02 0952 La App 1 Cir 04 16 1 863 So 517 remanded 02 0952 La 1 Cir 12 898 2d App 04 30 2d So 385 writ denied 05 0255 La 4 899 So 12 05 8 2d 11 As such the admission of the testimony when compared to the entire record did not have substantial effect on the outcome of this case and does not warrant reversal Wright 924 So at 183 Therefore the applicable standard of 2d review has not been affected and we proceed to address the remaining assignments of error under the manifest error standard of review IL Assignment of Error No 2The 1995 ATC We now look to CFlFs allegation that the jury committed manifest error in its finding that the 1995 ATC was the agreement that applied with respect to the services provided by MQS through Sammy Charlet on May 24 2000 This issue involves factual determinations and must be decided by the jury based on the surrounding circumstances See Wegman v Central Transmission Inc 499 So 436 La App 2 Cir 12 rehearing 2d 86 3 denied La App 2 Cir 1 writ denied La 3 87 15 87 20 A court of appeal may not set aside a trial court or a jury findings s s of fact in the absence of manifest error or unless it is clearly wrong Rosell v ESCO 549 So 840 844 La 1989 The supreme court has 2d announced a twopart test for the reversal of a factfinder sdeterminations 1 the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and 2 the appellate court must further determine that the record establishes that the finding is clearly wrong manifestly erroneous Stobart v State Department of Transportation and Development 617 So 880 882 La 1993 see also 2d Mart v Hill 505 So 1120 1127 La 1987 2d Thus the issue to be resolved by a reviewing court is not whether the trieroffact was right or wrong but whether the factfnder conclusion was a reasonable one s Stobart v State Department of Transportation and Development 617 2d So at 882 Where factual findings are based on determinations regarding 12 the credibility of witnesses the trieroffact findings demand great s deference Boudreaux v Jeff 031932 La App 1st Cir 9 884 04 17 2d So 665 671 Secret Cove L v Thomas 02 2498 La App 1st Cir C 03 7 11 862 So 1010 1016 writ deniedd 040447 La 4 869 2d 04 2 2d So 889 Even though an m ppe court may feel its own evaluations and late inferences are more reasonable than the tactfinder reasonable evaluations s of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Rosell v ESCO 549 So at 2d 844 Moreover where two permissible views of the evidence exist the s factfinder choice between them cannot be manifestly erroneous or clearly wrong Stobart v State Department of Transportation and Development 617 So at 883 2d After a thorough review of the record before this court we are unable to say that there was no reasonable basis for the jury factual findings nor s can we say that the findings were clearly wrong Stated differently there is a reasonable factual basis in the record for the jury conclusion that the s terms of the 1995 ATC were applicable to the services provided by Sammy Charlet on the date of the explosion Both the 1995 ATC and the 1996 ATC were valid agreements between the parties The question is which applied to the accident in 2000 The evidence established the following facts The 1996 ATC was signed by all parties as 96 31 of 10 In connection therewith Purchase Order 980794 was issued for the purpose of requisitioning from MQS the services of one W crew to support T M F inspection daring an ammonia II turnaround This job is referred to throughout the litigation as the wet mag job The record establishes and 13 the parties do not contest that this crew was separate from and did not include Sammy Charlet Purchase Order No 976085 dated 9 provided for the services 95 20 of a lead inspector Sammy Charlet It specified that the 1995 ATC would apply using the following language CF INDUSTRIES INC CFII APPENDIX OF TERMS S CONDITIONS TC DATED 4 25 94 ATTACHED TWO COPIES APPLY TO THIS PURCHASE ORDER NOT THE T C PRINTED ON THE REVERSE SIDE OF THIS PURCHASE ORDER On 9 Change Order 1 to Purchase Order No 976085 signed 95 29 by both parties was issued and provided THIS CHANGE IS ISSUE TO ACKNOWLEDGE THE D INDEMNITY REQUIREMENTS AS OUTLINED IN JIM S GREGORY AND BILL MCDONOUGH SPROPOSAL OF 09 06 95 THESE REQUIREMENTS WILL BECOME PART THE OF INDEMNITY S REQUIREMENTS OF CFII S TERMS CONTRACTOR AND CONDITIONS AS SUBMITTED WITH THE ORIGINAL ORDER Through this change order signed by both parties the terms and conditions contained in the Gregory and McDonough letter became part of the requirements of the 1995 ATC Change Order 2 dated 11 extended the services of Sammy 96 2 Charlet to 12 but also contained the following language 97 31 WE REQUEST THAT YOU SIGN AND RETURN ONE 1 SET OF S CFII CONDITIONS AGREEMENT FOR SERVICE OF TERMS COMPANIES AND AND CONTRACTORS THAT WAS PROVIDED WITH OUR P O 980794 THESE TERMS ARE MODIFIED AS NOTED IN CHANGE ORDER ONE 1 OF THIS ORDER THE TERMS AND CONDITIONS WILL APPLY TO ALL FUTURE ORDERS WE PLACE WITH YOUR COMPANY As noted P 980794 was the wet mag job issued in conjunction O with the 1996 ATC The above language requests only that the vendor sign and return a copy of the 1996 ATC and does not specifically address its 14 i adoption or incorporation but even if such intent could be discerned these terms are modified as noted in Change Order one 1 of this order There is nothing in the record to suggest that this order refers to anything other than Purchase Order No 976085 Change Order 2 also contanis the following language on page 3 CF INDUSTRIES ICFII APPENDIX OF TERMS CONDITIONS TC DATED 4 2594 ATTACH ED TWO COPIES APPLY TO THIS PURCIFUSE ORDER NOT THE TC PRINTED ON THE REVERSE SIDE OF THIS PLRCHASE ORDER Change Order 2 thus adopts the 1995 ATC by its plain language or perhaps the 1996 ATC as modified by the terms of the 1995 ATC and the Gregory and McDonough letter set forth in Change Order 1 s Charlet services were again extended by Change Order 3 to Purchase Order No 976085 on 1 The following language was again 98 3 included CF INDUSTRIES INC CFII APPENDIX OF TERMS S CONDITIONS T C DATED 425 94 ATTACHED TWO NOT COPIES APPLY TO THIS PURCHASE ORDER THE T C PRINTED ON THE REVERSE SIDE OF THIS PURCHASE ORDER In a special jury interrogatory the jury was asked whether the 1997 ATC or the 1996 ATC applied to the services provided by Sammy Charlet The evidence as detailed above provided the Jury with a reasonable basis to find as a matter of fact that the 1995 ATC applied to Purchase Order No 976085 the requisition of the certified inspection setvices of Sammy Charlet and continued to be the applicable agreement between MQS and CFII as to Sammy Charlet employment until he resigned after the date of s the explosion While more recent the 1996 ATC appears tied to the wet mag job and is not specifically referenced by the purchase order for the 15 services of Sammy Charlet which in each of its change orders specifically references the 1995 ATC The finding by the jury that the 1995 ATC applied is amply supported by the record and we will not disturb it Assignment of Error No 3Directed Verdict JNOV New Trial III In this assignment of error CFII contends that the trial court abused its discretion in denying its Motion for Directed Verdict Motion for Judgment Notwithstanding the Verdict JNOV and Motion for a New Trial In ruling on a motion for directed verdict or a JNOV under LSA P C arts 1810 and 1811 the trial court is required to employ the following legal standard A directed verdict or a JNOV should be granted only if the trial court after considering the evidence in the light most favorable to the party opposed to the motion finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue Petitto v McMichael 588 So 1144 1147 La App 1st Cir writ 2d 1991 denied 590 So 1201 La 1992 Barnes v Thames 578 So at 1169 2d 2d Lilly v Allstate Insurance Company 577 So 80 83 La App 1st 2d 1990 Cir writ denied 578 So 914 La 1991 2d If there is substantial evidence opposed to the motion of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions the motion must be denied Petitto v McMichael 588 So at 1147 Barnes v Thames 578 So at 2d 2d 1169 Further a new trial should be granted upon contradictory motion of a party if the verdict or judgment appears contrary to the law and evidence a A court also has discretionary power to grant a new trial Art 1972 Peremptory grounds A new trial shall be granted upon contradictory motion of any party in the following cases 16 CFII argues that there is no substantial evidence opposed to its motions of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions In its motion for new trial CFII alleged that the judgment was contrary to law based on the same arguments Based on our conclusions reached hereinabove there is substantial evidence opposed to the motions for directed verdict and JNOV of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach the conclusion that the 1995 ATC was in effect governing Sammy Charlet employment at the time of the accident s Likewise we find no legal basis upon which the trial court was required to grant the motion for new trial and no abuse of discretion in the trial court s ruling to deny the motion for new trial As such this assignment of error is also without merit CONCLUSION For the reasons assigned herein the judgment of the 23 Judicial District Court for the Parish of Ascension is affirmed The answer is denied All costs of this appeal are assessed to the plaintiffs appellants CF Industries Inc and Illinois National Insurance Company ANSWER DENIED JUDGMENT AFFIRMED 1 When the verdict or judgment appears clearly contrary to the law and the evidence 2 When the party has discovered since the trial evidence important to the cause which he could not with due diligence have obtained before or during the trial 3 When the jury was bribed or has behaved improperly so that impartial justice has not been done 5 Art 1973 Discretionary grounds A new trial may be granted in any case if there is good ground therefor except as otherwise provided by law 17
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