Berry v. Orleans Parish School Bd.

830 So. 2d 283, 2002 La. LEXIS 2162, 2002 WL 1354227
CourtSupreme Court of Louisiana
DecidedJune 21, 2002
Docket2001-CC-3283
StatusPublished
Cited by29 cases

This text of 830 So. 2d 283 (Berry v. Orleans Parish School Bd.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Orleans Parish School Bd., 830 So. 2d 283, 2002 La. LEXIS 2162, 2002 WL 1354227 (La. 2002).

Opinion

830 So.2d 283 (2002)

Yolanda BERRY, et al.
v.
ORLEANS PARISH SCHOOL BOARD, et al.

No. 2001-CC-3283.

Supreme Court of Louisiana.

June 21, 2002.

TRAYLOR, J.

We granted a writ of certiorari in this case to consider whether an indemnity clause between the Lighthouse of the Blind and the Orleans Parish School Board requires the Lighthouse to indemnify the school board for the school board's alleged negligence. For the following reasons, we affirm the court of appeal and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Orleans Parish School Board ("OPSB") entered into a contract with the Lighthouse of the Blind in New Orleans, Inc. ("Lighthouse") whereby the Lighthouse provided mobility training services to Orleans Parish Public School students. Pursuant to that contract, the Lighthouse agreed to indemnify the OPSB in the following clause:

To the fullest extent permitted by law, the Contractor [Lighthouse] shall indemnify, hold harmless and defend the School Board, its employees and agents from and against all claims, demands, *284 suits, damages, judgments of sums of money, losses and expenses, including but not limited to attorney's fees and costs ("Claims") arising out of the performance of any of the services to be performed pursuant to the terms of this Agreement, provided that any such Claims (i) are attributable to bodily injury, sickness disease or death, or injury to or destruction of tangible property including the loss of use resulting therefrom; and (ii) is [sic] caused in whole or in part by any act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder....

After execution of the contract, two New Orleans Public School students were allegedly sexually molested by Francis O'Gara, an employee of the Lighthouse. As a result of the incident, the parents of the students filed separate suits against the Lighthouse and the OPSB.[1]

Subsequently, the Lighthouse filed a motion for summary judgment. While the Lighthouse did not dispute that it was required to indemnify the OPSB for Mr. O'Gara's actions, it argued the indemnity clause did not require it to indemnify the OPSB for the OPSB's independent negligence. The OPSB filed a cross motion for summary judgment, arguing that all the claims in this case were dependent upon Mr. O'Gara's conduct; therefore, the Lighthouse was required to indemnify it for all negligence, including its independent negligence.

After a hearing, the trial court granted the motion for summary judgment filed by Lighthouse and denied OPSB's motion. In its judgment, the trial court found that the contracts in question between the OPSB and the Lighthouse require the Lighthouse to indemnify the OPSB for any acts of negligence or fault committed by the Lighthouse or its employees for which the OPSB is found to be liable. The court further found that the indemnity contracts in question do not require the Lighthouse to indemnify the OPSB for any acts of independent negligence committed by the OPSB or its employees.

From this ruling, the OPSB applied for supervisory relief. The Court of Appeal reversed the trial court's ruling. The court reasoned that the contractual language providing that "all claims ... arising out the performance of any services to be performed under the terms of this Agreement," coupled with the language "regardless of whether or not it is caused by a party indemnified hereunder," was sufficient to encompass the OPSB's independent negligence. Accordingly, the court of appeal reversed the judgment of the trial court granting summary judgment in favor of the Lighthouse and rendered summary judgment in favor of the *285 OPSB to require the Lighthouse to defend and indemnify the OPSB.

We granted a writ of certiorari to review the lower courts' conclusions. Berry v. Orleans Parish School Board, et al., 01-3283 (La.3/15/02), 811 So.2d 891.

LAW AND ANALYSIS

In interpreting contracts, including indemnity clauses, we are guided by the general rules contained in articles 2045-2057 of the Louisiana Civil Code. The interpretation of a contract is the determination of the common intent of the parties. La. Civ.Code arts.2045, 2047; see e.g., Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 93-0911 (La.1994), 630 So.2d 759, 763. 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 intent of the parties. La. Civ.Code art. 2046.

This issue of whether an indemnitee may be indemnified against its own negligent acts was addressed over thirty years ago in Arnold v. Stupp Corp., 205 So.2d 797 (La.App. 1st Cir.1967), writ not considered, 251 La. 936, 207 So.2d 540 (1968). In that case, the court of appeal surveyed the case law and noted there was a majority and minority view on this issue:

The general rule is stated thus: `A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. 27 Am.Jr., Indemnity, § 15, page 464; 42 C.J.S. Indemnity § 12, page 580.' The established principle supporting the rule is that general words alone, i.e., `any and all liability', do not necessarily import an 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 minority view is bottomed on the premise that the words `any and all liability' are unambiguous and the use thereof means just that and the restrictive interpretation adhered to in the majority view is violative of the rule of law that a contract freely entered into, which is not against public policy or prohibited by law, is the law between the parties and subject to judicial recognition and enforcement. 77 A.L.R.2d 1134.
For reasons hereinafter stated we are of the opinion and so hold that Louisiana is committed to the majority view. (Citations omitted)

Subsequently, in Perkins v. Rubicon, Inc., 563 So.2d 258 (La.1990), this court held that an indemnity 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:

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. Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La. 1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977). The indemnity agreement here unequivocally states that B & B "shall indemnify and hold [Rubicon] harmless from all claims, suits, actions, losses and damages for personal injury,... even though caused by the negligence of [Rubicon]." As the court of appeal concluded both in the present case and in earlier litigation interpreting the same contract, Reliance Insurance Company v.

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Bluebook (online)
830 So. 2d 283, 2002 La. LEXIS 2162, 2002 WL 1354227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-orleans-parish-school-bd-la-2002.