Employers Insurance of Wausau v. Cajun Contractors & Engineers Inc.

459 So. 2d 610, 1984 La. App. LEXIS 9970
CourtLouisiana Court of Appeal
DecidedNovember 13, 1984
DocketNo. 84-CA-59
StatusPublished

This text of 459 So. 2d 610 (Employers Insurance of Wausau v. Cajun Contractors & Engineers Inc.) 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
Employers Insurance of Wausau v. Cajun Contractors & Engineers Inc., 459 So. 2d 610, 1984 La. App. LEXIS 9970 (La. Ct. App. 1984).

Opinion

BOUTALL, Judge.

This case arises from damages to equipment at a building project. The plaintiff has appealed a summary judgment dismissing its suit. We affirm.

The plaintiff, Employers Insurance of Wausau (“Employers”), is insurer of a crane owned by Audubon Construction Company (“Audubon”). The defendants are Cajun Contractors and Engineers, Inc. (“Cajun”) and their insurer, North-West Insurance Company. Cajun was the general contractor for a construction job and subcontracted to Audubon the work of pile driving. The crane was damaged while Audubon’s operator assisted Cajun employees in attempting to free a dozer owned by Cajun that had become stuck in the mud. Employers, as Audubon’s subrogee, seeks reimbursement from Cajun of $34,422.00, paid for repairs to the crane, on the ground of Cajun’s negligence.

Cajun answered, denying negligence, and filed a motion for summary judgment on the premise that the indemnity clause of the contract between the parties provided that Audubon would assume the risk and indemnify Cajun for all damages to Audubon’s equipment, including damages caused by Cajun’s negligence. Summary judgment was granted on December 7, 1983, dismissing the plaintiff’s suit at its costs. Employers then filed this appeal.

The appellant assigns as errors: 1) the trial court’s finding that the contract between the parties for Audubon’s services provided that Audubon would indemnify Cajun for damages to Audubon’s property caused solely by the negligence of Cajun; and 2) the trial court’s granting the motion for summary judgment when there was a material issue of fact in dispute.

The contract in effect at the time of the damage contains the following clause:

“Article 7 — Subcontractor General Liability A. The Subcontractor assumes all risk for injuries and/or death of its employees and for damages to or destruction of its property, while on or about the project site covered under this agreement, or while traveling to or from office or other place of consultation, howsoever caused, growing out of, connected with or incident to the service performed or to be performed by the Subcontractor hereunder; and the Subcontractor hereby indemnifies and saves harmless the Contractor and the Owner, its officers, employees, agents and insurers from and against all claims, demands, liability, expenses, and causes of action connected therewith.”

Summary Judgment

We first take up the issue of whether there is a material issue of fact in dispute. The law regarding summary [612]*612judgment is summarized in Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981), as follows, at 1269:

“A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. La.C.C.P. art. 966; Cates v. Beauregard Electric Coop., 328 So.2d 367 (La.1976).
The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. Mashburn v. Collin, 355 So.2d 879 (La.1977). And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Mashburn v. Collin, supra; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); 6 Moore’s Federal Practice, Section 56.15[1]; Green v. Southern Bell Tel. & Tel. Co., 204 So.2d 648 (La.App. 3d Cir.1968).”

The appellant argues that whether or not the work being performed by Audubon at the time of the accident grew out of, was connected with or was incident to service to be performed under the contract is a material question of fact. We disagree. The relevant facts are not disputed. The crane was on the project site. A Cajun employee asked the Audubon crane operator for help in dislodging a Cajun dozer from the mud on the site, and the crane operator came to his aid. The crane was damaged in the process. The question posed by the appellant is not a factual one but a legal question, the resolution of which depends on the court’s interpretation of the contract. Clearly, helping to recover a Cajun machine is not specifically listed as work to be performed by Audubon in the contract.1 Returning to the subcontractor general liability clause, it is written in the broadest of language. The subcontractor assumes “all risk ... for damages to or destruction of its property, while on or about the project site ..., howsoever caused, growing out of, connected with or incident to the service performed or to be performed by the Subcontractor herewith. ...” The crane was on the building site, as required by the contract, to perform work under the contract. We can only conclude that Audubon’s coming to the aid of Cajun was an event “connected with or incident to” the service performed by the subcontractor. The contract could have been written to limit the risk only to specified contractual services to be covered but it was not. Accordingly, we hold that the trial judge was not in error in granting summary judgment on grounds that no material fact is in dispute.

Indemnity Agreement

We next consider the opposite interpretations of the indemnity provision of the contract argued by the appellant and appel-lee. Employers argues that Audubon undertook to indemnify Cajun only for Audubon’s negligent acts, as the contract did not specifically state that Audubon intended to indemnify for the negligent acts of the indemnitee, Cajun. On the other hand, Cajun’s position is that the plain meaning of the phrases “all risks” and “howsoever caused” indicate that the contract provides indemnification for damage caused by Cajun’s own negligence.

Indemnity agreements appearing in the jurisprudence fall into three classes: 1) those which state specifically that indemnity is provided for the indemnitee’s own negligent acts; 2) those which specifically exclude indemnity for the indemnitee’s neg[613]*613ligence; and 3) those which do not refer to the subject directly but contain language that may be construed as showing the parties intended indemnification for acts of negligence by the indemnitee. We have compared the provisions of other cases with the contract before us.

The case of Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), falls into the first category. There an employee of a contractor was injured because of the negligence of the owner’s (Dow’s) engineers. The pertinent portion of the hold harmless agreement between Dow, the owner, and National Maintenance Corporation provided the following, at 1002:

“ARTICLE YI — INDEMNITY
6.1 Contractor assumes the entire responsibility and liability and will protect, indemnify and hold harmless Dow, its agents, servants, and employees from and against any and all losses, expenses, demands and claims made against Dow, its agents, servants and employees, by Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors or any other third person because of injury or alleged injury (including death), whether caused by Dow’s negligence or otherwise, arising from any source....” [Emphasis omitted.]

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Related

United States v. Diebold, Inc.
369 U.S. 654 (Supreme Court, 1962)
Daigle v. Lang
377 So. 2d 1384 (Louisiana Court of Appeal, 1979)
Jennings v. Ralston Purina Company
201 So. 2d 168 (Louisiana Court of Appeal, 1967)
Green v. Southern Bell Telephone & Telegraph Co.
204 So. 2d 648 (Louisiana Court of Appeal, 1968)
Cates v. Beauregard Electric Cooperative, Inc.
328 So. 2d 367 (Supreme Court of Louisiana, 1976)
Polozola v. Garlock, Inc.
343 So. 2d 1000 (Supreme Court of Louisiana, 1977)
Mashburn v. Collin
355 So. 2d 879 (Supreme Court of Louisiana, 1977)
Duvalle v. Lake Kenilworth, Inc.
396 So. 2d 1268 (Supreme Court of Louisiana, 1981)
Polozola v. Garlock, Inc.
376 So. 2d 1009 (Louisiana Court of Appeal, 1979)

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Bluebook (online)
459 So. 2d 610, 1984 La. App. LEXIS 9970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-insurance-of-wausau-v-cajun-contractors-engineers-inc-lactapp-1984.