Cox Communications v. Tommy Bowman Roofing, LLC

929 So. 2d 161, 2006 La. App. LEXIS 927, 2006 WL 1047128
CourtLouisiana Court of Appeal
DecidedMarch 15, 2006
DocketNo. 2004-CA-1666
StatusPublished
Cited by16 cases

This text of 929 So. 2d 161 (Cox Communications v. Tommy Bowman Roofing, LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox Communications v. Tommy Bowman Roofing, LLC, 929 So. 2d 161, 2006 La. App. LEXIS 927, 2006 WL 1047128 (La. Ct. App. 2006).

Opinions

LEON A. CANNIZZARO, JR., Judge.

|,The plaintiff, Cox Communications (“Cox”), appeals a district court judgment rendered in its favor against the defendants, Tommy Bowman Roofing, L.L.C. (“Bowman Roofing”), and its insurer, Colony Insurance Company.

FACTS AND PROCEDURAL HISTORY

Cox entered into a contract with Bowman Roofing to replace the roof of its office building located at 2120 Canal Street in New Orleans. During the course of the work, vapors from the asphalt surface primer entered the building through an air-intake vent on the roof. Due to the noxious odor emanating from the vapors, Cox’s management ordered the evacuation of the building. As a result, Cox’s sales representatives and service employees were away from the office building for approximately three hours.

Cox subsequently filed suit against the defendants, seeking to recover the loss of revenue and profits, lost wages, medical expenses, attorney fees, and litigation costs that it incurred as a result of the evacuation. Alternatively, Cox claimed that the written contract between the parties contained an indemnity | ^provision that required Bowman Roofing to indemnify Cox for any claims resulting from Bowman Roofing’s negligent performance under the contract.

Following a trial, the trial court found that Cox sustained a loss of profits due to Bowman’s negligence and determined that the indemnity provision in the contract required the defendants to indemnify Cox against third party claims only. The trial court rendered judgment against the defendants, awarding Cox loss of profits of $3,428.00, employee medical expenses of $450.90, and attorney fees of $337.50, with interest from the date of judicial demand as well as the costs of the proceedings.

DISCUSSION

On appeal, Cox argues that the trial court erred in interpreting the contractual indemnity provision as requiring Bowman Roofing to indemnify, defend and hold harmless Cox for only third party claims against Cox. Cox contends that the contractual provision does not expressly limit indemnification to third party claims and, therefore, Bowman Roofing must indemnify it for its total losses as a result of the roofing contractor’s negligence, including loss revenue, attorney fees and litigation expenses incurred to recover those losses.

[164]*164Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly 1 swrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error- — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844.

Where the trier of fact, however, has not applied the correct law in arriving at its conclusions, the standard of review that this Court must use is different. In the Rosell case, the Supreme Court stated:

Nevertheless, when the court of appeal finds that- a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.

549 So.2d at 844, n. 2, citing Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

Applicable Law and Analysis

The general rules that govern the interpretation of other contracts apply in construing a contract of indemnity. Soverign Ins. Co., v. Texas Pipe Line Co., 488 So.2d 982 (La.1986). Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La. C.C. arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La. C.C. art. [42046. 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 a whole. La. C.C. art. 2050. Whether or not a contract is ambiguous is a question of law. American Deposit Ins. Co. v. Myles, 00-2457 (La.4/25/01), 783 So.2d 1282, 1286.

The indemnity provision set forth in paragraph 10 of the Independent Contractor Agreement between Bowman Roofing and Cox reads as follows:

Contractor shall indemnify, defend and hold harmless Cox, its officers, directors, shareholders, employees, agents and representatives, from any and all claims, demands, losses, costs (including attorney’s fees), expenses and liabilities of any nature whatsoever in connection with or resulting from Contractor’s performance under this Agreement, the fulfillment of Contractor’s obligations or failure to fulfill its obligations under this Agreement, the breach of any representation or warranty made by Contractor under this Agreement, the conduct of Contractor’s employees or agents, and/or the breach of any Applicable Laws by Contractor, its employees or agents.

[165]*165Furthermore, the insurance provision set forth in paragraph 9 of the agreement requires that Cox be named as an additional insured under the Contractor’s General and Automobile liability policy.

In his reasons for judgment, the trial court stated that he disagreed with Cox’s suggested interpretation of the indemnity agreement, as it would lead to absurd consequences, i.e., Bowman Roofing would have to defend, indemnify and hold harmless Cox against Cox. After reviewing the written contract, we find that the trial court erred as a matter of law in determining that the indemnity provision required Bowman Roofing to indemnify Cox only for third party claims against the company.

This is not a dispute in which Cox is seeking indemnity for its | Rown negligence. If that were the case, i.e., the indemnitee was to be indemnified for its own negligence, the contract must unequivocally demonstrate such an intent. See Perkins v. Rubicon, Inc., 563 So.2d 258 (La.1990) and Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977). Rather, in this case, Cox seeks indemnification for all claims resulting from Bowman Roofing’s negligent performance under the contract. That being said, we now examine the contractual provision at issue.

Here, the indemnity provision contains no limiting language and, read literally, applies to any and all claims brought in connection with or resulting from Bowman Roofing’s performance under the contract.

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929 So. 2d 161, 2006 La. App. LEXIS 927, 2006 WL 1047128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-communications-v-tommy-bowman-roofing-llc-lactapp-2006.