Dorothy Ross v. State of Louisiana Through the University of Louisiana System, University of New Orleans and Senator Nat G. Kiefer Univeristy of New Orleans Lakefront Arena

• Court: Louisiana Court of Appeal
• Decided: February 13, 2023
• Docket: 2022-CA-0652
• Status: Published

Opinion

DOROTHY ROSS * NO. 2022-CA-0652

VERSUS * COURT OF APPEAL STATE OF LOUISIANA * THROUGH THE UNIVERSITY FOURTH CIRCUIT OF LOUISIANA SYSTEM, * UNIVERSITY OF NEW STATE OF LOUISIANA ORLEANS AND SENATOR ******* NAT G. KIEFER UNIVERISTY OF NEW ORLEANS LAKEFRONT ARENA

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-03912, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Tiffany Gautier Chase ****** (Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge Tiffany Gautier Chase)

Robert E. Kerrigan, Jr. Jose R. Ruiz DEUTSCH KERRIGAN, LLP 755 Magazine Street New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

Jeff Landry, Attorney General LOUISIANA DEPARTMENT OF JUSTICE P. O. Box 94005 Baton Rouge, LA 70804—9005

Craig J. Hebert, AAG Amber Mandina Babin, AAG LA Attorney General's Office Dept. of Justice 1450 Poydras St., Ste. 900 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED FEBRUARY 13, 2023 1

TG CT FL PA Third-Party Defendant/Appellant, State of Louisiana through University of B Louisiana System, University of New Orleans and Senator Nat G. Kiefer

University of New Orleans Lakefront Arena (hereinafter collectively referred to as

“UNO”) seeks review of the trial court’s June 29, 2022 judgment granting an

exception of no cause of action filed by Algiers Charter School Association, Inc.

(hereinafter “ACSA”). After consideration of the record before this Court and the

applicable law, we reverse the trial court’s judgment granting ACSA’s exception

of no cause of action and remand the case to the trial court for further proceedings.

Facts and Procedural History

On February 2, 2012, UNO entered into a Licensing Agreement (hereinafter

“the Agreement”) with O. Perry Walker College Career Preparatory High School, a

school owned and operated by ACSA, whereby UNO granted the school limited

use of the Senator Nat G. Kiefer University of New Orleans Lakefront Arena

(hereinafter “the Arena”) for its May 12, 2012 graduation ceremony.

1 During the graduation ceremony, Ms. Dorothy Ross (hereinafter “Ms.

Ross”) alleges that she slipped and fell inside the Arena and suffered injuries. Ms.

Ross filed a petition for damages on April 24, 2013, naming UNO as the sole

defendant. Thereafter, UNO filed a motion for leave of court to file a third party

demand seeking to name ACSA and ACSA’s insurer, Lexington Insurance

Company (hereinafter “Lexington”), as third-party defendants. UNO’s third-party

demand alleges that ACSA breached its obligations under Clauses 3, 19, and 25 of

the Agreement.1

On April 20, 2020, Ms. Ross filed an unopposed motion to amend her

original petition for damages, naming ACSA and Lexington as additional

defendants. The amended petition alleges that her injuries and damages were a

1 The Agreement provides, in pertinent part:

Clause 3: INSURANCE: Licensee and all of its subsidiaries and parent companies agree to obtain at its own expense and to keep in full force and effect during the use or occupancy of the premises the following insurance policies with a company authorized to do business in Louisiana; EVIDENCE OF INSURANCE DUE UPON EXECUTION OF CONTRACT.

Workmen's Compensation Statutory Comprehensive General Liability: $1.000.000.00

The comprehensive general liability coverage is to include contractual liability applicable to the indemnification provisions of this license. The University of New Orleans shall be named as an additional insured for all coverage and ten (10) days prior to the Commencement Date the Licensee shall furnish the University with a certificate of insurance as evidence that the required coverage is in effect.

Clause 19: INDEMNIFICATION. Licensee and all of its subsidiaries and parent companies will protect, indemnify, save and hold harmless the University, its officers, agents, servants and employees, from and against any and all claims, demands, expense and liability arising out of injury or death to any person or the damage, loss or destruction of any property which may occur on or about the premises or which may arise from, or in any way grow out of any act or omission of the Licensee, its agents, subcontractors, servants, and employees or the use and occupancy of the premises by the Licensee or anyone using or occupying said premises as a patron or an invitee of Licensee, and from any and all costs, expenses and/or reasonable attorney's fees incurred by University as a result of any such claim, demand, and/or causes of action, except for such damages arising out of injuries or property damage caused by the sole negligence of the University, its agents and employees.

Clause 25: ATTORNEY FEES. If suit of action is instituted by the University to enforce compliance with this license, the University shall be entitled to recover reasonable attorney’s fees and costs and expenses from this Licensee.

2 result of UNO, ACSA, and Lexington’s negligence in failing to properly light the

Arena and failing to warn guests of hazardous conditions.

ACSA filed an answer and exception of no cause of action to both Ms. Ross’

amended petition and UNO’s third party demand. ACSA denied liability

contending that UNO was solely liable for any injuries or damages alleged by Ms.

Ross.

Following a January 21, 2022 hearing on ACSA’s exception of no cause of

action, the trial court granted the exception of no cause of action and ordered UNO

to amend its third party demand against ACSA on or before March 7, 2022. UNO’s

amended third party demand specifically alleges: (1) ACSA failed to furnish UNO

with a valid certificate of insurance coverage as required by the Agreement; (2)

ACSA failed to indemnify UNO; and (3) UNO is entitled to reasonable attorney’s

fees, costs, and expenses.

On April 19, 2022, ACSA filed a second exception of no cause of action

maintaining that Clause 19 of the Agreement precludes liability for Ms. Ross’

damages or injuries because her injuries were caused by the sole negligence of

UNO. The trial court granted the exception of no cause of action dismissing all

claims by UNO against ACSA, with prejudice. This timely appeal followed.

Standard of Review

This Court reviews a trial court’s ruling on an exception of no cause of

action under the de novo standard of review. Herman v. Tracage Development,

L.L.C., 2016-0082, p. 4 (La.App. 4 Cir. 9/21/16), 201 So.3d 935, 939. “The

pertinent inquiry is whether, viewed in the light most favorable to the plaintiff, and

with every doubt resolved in the plaintiff’s favor, the petition states any valid cause

of action for relief.” Maw Enterprises, L.L.C. v. City of Marksville, 2014-0090, p. 6

(La. 9/3/14), 149 So.3d 210, 215.

3 Discussion

On appeal, UNO argues that the trial court erred in granting ACSA’s

exception of no cause of action. Specifically, it avers that the amended third party

demand sufficiently states a breach of contract claim against ACSA.

“A peremptory exception of no cause of action questions whether the law

affords a remedy against a particular defendant under the factual allegations of a

petition.” Niang v. Dryades YMCA School of Commerce, Inc. 2019-0425, p. 4

(La.App. 4 Cir. 12/4/19), 286 So.3d 506, 509. “The purpose of the peremptory

exception of no cause of action is to test the legal sufficiency of the plaintiff's

petition by determining whether the law affords a remedy on the facts alleged in

the petition.” Maw Enterprises, L.L.C., 2014-0090, p. 6, 149 So.3d at 215.

A trial court begins with the premise that all facts pled in the petition are

true. Id. In deciding on an exception of no cause of action, a court considers the

petition, any attachments to the petition, and any amendments to the petition. See

Niang, 2019-0425, pp. 4-5, 286 So.3d at 509 (citation omitted). The mover carries

the burden of demonstrating that a petition fails to state a cause of action. Maw

Enterprises, L.L.C., 2014-0090, p. 6, 149 So.3d at 215. “However, the mere

conclusions of the plaintiff unsupported by the facts do not set forth a cause of

action.” Ross v. State through Univ. of Louisiana System, 2022-0382, p. 8 (La.App.

4 Cir. 11/18/22), 352 So.3d 90, 95.

La. C.C.P. art. 1111 provides that a “defendant in a principal action by

petition may bring in any person, including a codefendant, who is his warrantor, or

who is or may be liable to him for all or part of the principal demand.” Further, a

third party demand is generally used to make claims of “contribution or indemnity

in the event the defendant loses on the principal demand.” Herman, 2016-0082, p.

7, 201 So.3d at 941 (citation omitted). However, a third party demand fails to state

a cause of action when it fails to allege facts that indicate whether the third party

4 defendant is either a warrantor of the third party plaintiff or is liable for all or part

of the principal demand. Id., 2016-0082, p. 8, 201 So.3d at 941 (citation omitted).

UNO argues that its amended third party demand sets forth a valid cause of

action for breach of contract and ACSA breached the terms of the contract as

follows: (1) failed to perform the obligations, pursuant to clause 3 of the

Agreement, by not obtaining the required insurance; (2) failed to produce a valid

certificate of insurance as evidence of coverage pursuant to clause 3 of the

Agreement; (3) failed to protect and indemnify UNO for the injury or damages of

any person on the premise pursuant to clause 19 of the Agreement; and (4) failed to

provide UNO with reasonable attorney’s fees, costs, and expenses from the

Agreement pursuant to clause 25 of the Agreement. UNO maintains that the trial

court erred by making the factual determination that ACSA does not have to

indemnify UNO for any injuries or damages that arise from UNO’s sole negligence

thus concluding that UNO is solely at fault for Ms. Ross’ alleged injuries.

ACSA argues that the trial court did not err in granting its exception of no

cause of action as it is not liable for any of Ms. Ross’ injuries because her injuries

arise from conditions outside of its control, namely, lighting, seat height, stairs not

being uniform and “other acts of negligence to be proven at trial.” In support of its

exception of no cause of action, ACSA contends that UNO’s third party demand,

pursuant to Clause 19 of the Agreement, fails to assert a valid claim of defense

and/or indemnification; contains legal conclusions; and fails to allege any facts to

support its allegation that ACSA caused or contributed to Ms. Ross’ accident. The

crux of ACSA’s argument is that UNO’s third party demand fails to state a valid

breach of contract claim.

Our review of UNO’s third party demand and amended third party demand,

reveals that UNO does in fact state a valid cause of action against ACSA. “The

party claiming the rights under the contract bears the burden of proof.” 1100 South

5 Jefferson Davis Parkway, LLC v. Williams, 2014-1326, p. 5 (La.App. 4 Cir.

5/20/15), 165 So.3d 1211, 1216 (citation omitted). In order to show a breach has

occurred the party claiming rights must show that a contract exists, the party’s

breach thereof, and the resulting damages. Id.

UNO and ACSA entered into a contract on February 2, 2012, this fact is not

in dispute. The terms were set forth in the Agreement. UNO alleges that ACSA

breached the Agreement by failing to provide protection and indemnification

against Ms. Ross’ claims as required in clause 19 of the Agreement which

provided that ACSA “indemnify, save and hold harmless, the University…from

and against any and all claims, defenses, expense and liability arising out of injury

or death to any person...which may occur on or about the premises.”

Furthermore, UNO alleges that ACSA failed to name UNO as an additional

insured and provide it with proof of insurance as required in clause 3 of the

Agreement. Clause 3 provided that ACSA “and all of its subsidiaries and parent

companies agree to obtain as its own expense and to keep in full force and effect

during the use or occupancy of the premises” a comprehensive general liability

policy of $1,000,000.00. Clause 3 further provided that ACSA’s general liability

coverage was to include “contractual liability applicable to the indemnification

provisions” within the Agreement.

UNO also alleges that ACSA denied UNO’s request for reasonable attorney

fees, costs, and expenses within this litigation as set forth in clause 25 of the

Agreement. Clause 25 states “[i]f suit or action is instituted by [UNO] to enforce

compliance with this license, [UNO] shall be entitled to recover reasonable

attorney’s fees and costs and expenses from [ACSA].” UNO’s third party demand

clearly alleges that it has suffered financial damages as a result of this litigation.

A third party demand states a cause of action when it alleges facts that the

third party defendant is liable for all or part of the principal demand or that they are

6 a warrantor of the third party plaintiff. See Herman, 2016-0082, pp.7-8, 201 So.3d

at 941. UNO has adequately pled sufficient facts establishing the existence of a

contract with ACSA. UNO states a breach of contract claim when it specifically

alleges ACSA breached several clauses [clauses 3, 19, and 25] of the Agreement.

Lastly, UNO alleges financial expenses were incurred as a result of this litigation.

Although Clause 19 of the Agreement between UNO and ACSA states that UNO

will not be indemnified by ACSA for any injuries or damages that arise out of its

sole negligence, UNO or ACSA’s alleged negligence in Ms. Ross’ fall and

subsequent injuries remains disputed and has yet to be determined by the trier of

fact.

Our de novo review indicates that UNO’s third party demand and amended

third party demand states a valid cause of action and sets forth sufficient facts

asserting a valid cause of action. Thus, we find the trial court erred in granting

ACSA’s exception of no cause of action.

Decree

For the foregoing reasons, we find that the trial court erred in granting

ACSA’s exception of no cause of action. Accordingly, we reverse the June 29,

2022 judgment and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED