Daryel Ledet v. Jo-De Equipment Rental Co., Inc.

• Court: Louisiana Court of Appeal
• Decided: April 7, 2010
• Docket: CA-0009-1267
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 09-1267

DARYEL LEDET

VERSUS

JO-DE EQUIPMENT RENTAL COMPANY, INC., ET AL.

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 70726 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell, Judges.

AFFIRMED.

John Felton Blackwell P. O. Box 10051 New Iberia, LA 70562-0051 (337) 367-8517 Counsel for Defendant/Appellee: Spider Staging Corporation Timothy George Schafer Schafer & Schafer 328 Lafayette Street New Orleans, LA 70130 (504) 522-0011 Counsel for Defendant/Appellee: Spider Staging Corporation

Michael Anthony McGlone Clay A. Cosse, Jr. Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman 909 Poydras Street, Suite 1450 New Orleans, LA 70112 (504) 585-3050 Counsel for Defendant/Appellee: Corrosion Control Specialists, LLC

Arthel Joan Scheuermann Scheuermann & Jones Law Office 909 Poydras St., Suite 2556 New Orleans, LA 70112 (504) 525-4361 Counsel for Plaintiff/Appellee: Daryel Ledet

Paul D. Palermo Craig V. Sweeney Spyridon Palermo & Dornan, L.L.C. 3838 N. Causeway Blvd., #3010 New Orleans, LA 70002 (504) 830-7800 Counsel for Defendant/Appellant: Jo-De Equipment Rental Co., Inc.

Patricia Jackson Delpit Craig Vincent Sweeney Johnson, Stiltner & Rahman P. O. Box 98001 Baton Rouge, LA 70898-8001 (225) 231-0899 Counsel for Intervenor/Appellee: Louisiana Workers’ Compensation Corporation EZELL, JUDGE.

At issue in this appeal is whether or not an employer waived its tort immunity

when it signed a rental agreement for some equipment which contained an indemnity

agreement. The trial court granted a motion for summary judgment in favor of the

employer holding that the employer did not waive its exemption from tort immunity.

FACTS

Corrosion Control Specialists was hired to perform some sandblasting and

painting at the North American Salt Dome in Cote Blanche. In order to perform this

work, Corrosion Control needed to rent some suspensive scaffolding. In December

2004, Travis Segura, president and one owner of Corrosion Control, contacted Larry

Langlinais, manager of Jo-De Equipment Rental Company in New Iberia, regarding

renting an Air Spider suspensive scaffold. After Mr. Segura and Mr. Langlinais

discussed the specifics, Terry Bernard, the second owner of Corrosion Control, went

to Jo-De to pick up the Air Spider scaffold on December 23, 2004. Mr. Bernard was

required to sign a “SHIPPING OR DRAY RECEIPT” at the time.

On April 7, 2005, the Air Spider scaffold had to be replaced with another Air

Spider scaffold, which Jo-De delivered. Again, on April 27, 2005, that Air Spider

scaffold had to be replaced with yet another Air Spider scaffold.

On June 17, 2005, Daryel Ledet was working for Corrosion Control at the salt

dome when the Air Spider scaffold fell while he was inside the lift, dropping him

thirty-five feet to the ground. As a result of the accident, he received serious injuries.

On June 22, 2006, Mr. Ledet filed suit against Jo-De and SafeWorks, LLC

a/k/a Spider Staging Corporation for the injuries he received. On August 10, 2007,

Jo-De filed a third-party demand against Corrosion Control alleging that, pursuant to

the rental agreement, Corrosion Control was obligated to defend and indemnify Jo-De

1 from any loss arising out of the use of the rented equipment. Jo-De filed a motion for

summary judgment that Corrosion Control is contractually obligated to defend and

indemnify Jo-De for the claim asserted by Mr. Ledet. Corrosion Control filed a cross

motion for summary judgment seeking to dismiss Jo-De’s third-party claim against

it.

On April 22, 2009, a hearing was held on both motions for summary judgment.

The trial court denied Jo-De’s motion for summary judgment but granted Corrosion

Control’s motion for summary judgment. Judgment was signed on May 7, 2009. Jo-

De appealed the judgment.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

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.” La.Code Civ. Proc. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action . . . The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. Proc. art. 966(A)(2).

Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar.

Ass’n, 09-23, p.5 (La. 6/26/09), 17 So.3d 350, 353-54.

DISCUSSION

Judicial Confession

Jo-De first argues that Corrosion Control confessed the terms of the rental

agreement in its answer. Thus, Corrosion Control cannot now argue that the terms

2 and conditions of the rental agreement do not apply to the relationship between the

parties.

Pursuant to La.Civ.Code art. 1853, a judicial confession is a declaration made

by a party in a judicial proceeding and constitutes full proof against the party who

made it. A review of Corrosion Control’s answer to the third-party demand of Jo-De

does indicate that Corrosion Control admitted to signing the rental agreement.

However, a further review of the whole answer clearly indicates that Corrosion

Control denied that it owed any duty to defend or indemnify Jo-De. We do not find

that Corrosion Control judicially confessed that the terms of the rental agreement

were applicable, only that it signed the agreement which contained the terms as noted.

See Opti-Flow, LLC v. Prod. Servs. Intern., Ltd., 04-1357 (La.App. 3 Cir. 6/1/05),

903 So.2d 1171, writ denied, 05-1748 (La. 1/13/06), 920 So.2d 240.

Applicability of Indemnity Provisions

Jo-De claims that the trial court erred in failing to enforce the terms and

agreements of the rental agreement which contained an indemnity provision. In

granting Corrosion Control’s motion for summary judgment, the trial court found that

there was no discussion between the parties about an indemnity agreement. The court

found that Corrosion Control did not make a knowledgeable waiver of its tort

immunity under the Workers’ Compensation Law. The court recognized that usually

an employer who waives its right to tort immunity gets something in return for the

waiver.

The shipping receipt was signed by both Mr. Bernard and Mr. Langlinais when

Mr. Bernard picked up the Spider scaffold on December 23, 2004. “As consideration

of this agreement of lease, lessee agrees to agreement printed on reverse side” was

typed above the signature lines. The language on the reverse side of the shipping

3 receipt that Jo-De relies on provides:

LESSEE shall defend, indemnify, and hold harmless LESSOR from and against any and all loss, damage, expense, injury, liability, and claims thereof arising out of, connected with, incident to, or directly or indirectly resulting from or related to LESSEE’s performance of this agreement, including but not limited to, LESSEE [sic] use of equipment provided by LESSOR or others, for injury to or death of any person including, but not limited to any employee, agent, servant or contractor, or its employees, agents, or servants of LESSEE or LESSEES [sic] subcontractors or for loss or damage to the property of LESSOR or others, by whomever brought, whether based on statute, tort, contract, quasi-contract and whether or not LESSOR was or is claimed to be solely, concurrently, or comparatively negligent, and regardless of whether or not LESSORS negligence or fault pre-existed or occurred prior to the performance of the AGREEMENT. LESSEE SHALL PROMPTLY PAY (1) TO lessor all costs and attorney’s fees incurred by LESSOR resulting directly or indirectly from any loss, damage, injury, liability, or claim for which LESSEE is obligated in indemnify LESSOR pursuant to this paragraph and (2) to LESSOR all costs and responsible attorney’s fees in any legal action in which LESSOR prevails in whole or in part brought against LESSEE based on a breach of the agreement. LESSOR shall have the right at its option to participate in the defense of any suit or claim without relieving LESSEE of its obligation hereunder.

“A statutorily immune employer is free to enter into an indemnification

agreement with persons who are potential third party tortfeasors.” Gauthier v.

O’Brien, 618 So.2d 825, 828, fn 9 (La.1993); Stelly v. Overhead Door Co. of Baton

Rouge, 94-569 (La. 12/8/94), 646 So.2d 905. However, an employer must knowingly

waive his tort immunity. Graves v. Lou Ana Foods, Inc., 604 So.2d 150 (La.App. 3

Cir. 1992); Jones v. Vela’s Garage & Rental, Inc., 97-2486 (La.App. 4 Cir. 5/27/98),

717 So.2d 246, writ denied, 98-1760 (La. 10/9/98), 726 So.2d 35.

Waiver has been defined as “the intentional relinquishment of a known right,

power, or privilege.” Steptore v. Masco Const. Co., Inc., 93-2064, p.3 (La. 8/18/94),

643 So.2d 1213, 1216; Allstate Indem. Co. v. Knighten, 30,012 (La.App. 2 Cir.

12/10/97), 705 So.2d 240. “Waiver occurs when there is an existing right, a

knowledge of its existence and an actual intention to relinquish it or conduct so

4 inconsistent with the intent to enforce the right as to induce a reasonable belief that

it has been relinquished.” Id.

Mr. Langlinais of Jo-De initially met with Mr. Segura from Corrosion Control

about renting a Spider in December 2004. Mr. Langlinais showed Mr. Segura how

the Spider worked. A few days later, Mr. Segura contacted Mr. Langlinais and told

him he would need a 200 foot cable with the Spider. They also discussed the price

and payment terms at that time. Mr. Bernard picked up the Spider on December 23.

Mr. Langlinais acknowledged that at no time did he discuss an indemnity agreement

with Mr. Segura. He also acknowledged that he does not typically discuss indemnity

agreements with his customers. Mr. Langlinais did not call any attention to the

language on the back of the shipping receipt when Mr. Bernard picked up the Air

Spider. Mr. Bernard stated that he read what he was picking up on the shipping

receipt but did not read any of the other language. He did not see the indemnity

language on the back of the receipt.

Corrosion Control contends that the shipping receipt is of no moment because

an oral agreement was confected concerning the rental of the Spider before the receipt

was signed. There is no dispute that indemnity was not an issue during Mr.

Laglinais’s and Mr. Segura’s negotiations. Furthermore, in its oral reasons for

judgment it is apparent that the trial court found that a contract was confected by the

parties before the signing of the shipping receipt. The trial court found it important

that there was no discussion of an indemnity agreement between the parties who

agreed on the contract, i.e. Mr. Laglinais and Mr. Segura.

Pursuant to La.Code Civ.P. art. 1846, an oral contract for a price in excess of

$500 can be proven by one witness and other corroborating circumstances. White v.

Rogers, 04-1434 (La.App. 5 Cir. 4/26/05), 905 So.2d 1088. This is a factual finding

5 to which the manifest error standard of review applies. Id.

In Coleman v. Jim Walter Homes, Inc., 08-1221 (La. 3/17/09), the supreme

court was faced with the issue of whether an arbitration agreement found in the

closing documents for the building of a manufactured home was applicable. The

buyer had argued that an oral agreement had been confected as to the design of the

home and the price with no mention of the arbitration provision. The supreme court

found that when parties intend to reduce their negotiations to writing, they are not

bound until the contract is reduced to writing and signed by them.

In this case there is no evidence whatsoever that a written contract was

contemplated. All details of the rental had been agreed upon by Mr. Langlinais and

Mr. Sequra prior to the signing of the shipping receipt by Mr. Bernard. Mr. Laglinais

testified that he and Mr. Segura agreed on the model of the Air Spider scaffold that

would be rented and the price. The evidence is very clear that at no point during the

negotiations was an indemnity agreement discussed. Furthermore, Mr. Bernard was

simply sent to pick up the Air Spider scaffold after the contract had been confected.

The signing of the rental agreement was simply a routine practice that Jo-De followed

when a piece of equipment was picked up, as it followed this same procedure when

it had to replace the Air Spider scaffold on two occasions. Mr. Laglinais explained

that these are delivery tickets and return tickets for the incoming and outgoing

equipment.

Therefore, we find that an oral agreement had been confected for the Air Spider

scaffold prior to Mr. Bernard signing the shipping receipt. No indemnity agreement

had been contemplated or discussed. Corrosion Control did not waive its tort

immunity. Jo-De was not entitled to defense and indemnity from Corrosion Control.

6 The judgment of the trial court granting Corrosion Control Specialists’ motion

for summary judgment and dismissing Jo-De Equipment Rental Company’s claims

is affirmed. Costs of this appeal are assessed to Jo-De Equipment Rental Company.