Herzog Contracting Corp. v. Oliver

918 So. 2d 516, 2005 La. App. LEXIS 2581, 2005 WL 3445516
CourtLouisiana Court of Appeal
DecidedDecember 16, 2005
Docket40,342-CA
StatusPublished
Cited by5 cases

This text of 918 So. 2d 516 (Herzog Contracting Corp. v. Oliver) 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
Herzog Contracting Corp. v. Oliver, 918 So. 2d 516, 2005 La. App. LEXIS 2581, 2005 WL 3445516 (La. Ct. App. 2005).

Opinion

918 So.2d 516 (2005)

HERZOG CONTRACTING CORPORATION, Plaintiff-Appellee
v.
Robert OLIVER, et al., Defendant-Appellee.

No. 40,342-CA.

Court of Appeal of Louisiana, Second Circuit.

December 16, 2005.

*517 John Whitney Pesnell, Shreveport, for Third Party Plaintiff-Appellant, Geotechnical Testing Laboratory, Inc.

Barham & Warner, L.L.C., by Henry N. Bellamy, Shreveport, for Third Party Defendant-Appellee, West American Insurance Company.

Before STEWART, DREW and LOLLEY, JJ.

DREW, J.

Geotechnical Testing Laboratory, Inc., defendant and third-party plaintiff, appeals judgments denying its motion to strike and granting third-party defendant West American Insurance Company's motion for summary judgment. We affirm.

FACTS

In October of 1988, Herzog Contracting Corporation purchased property (also referred to as "site") in Shreveport, Louisiana, from a partnership and individuals collectively referred to as the "Oliver Group." This property had earlier been the site of creosote wood treatment operations. Prior to the sale, Herzog hired Geotechnical Testing Laboratory ("GTL") to perform an environmental survey of the property. According to a report prepared by GTL, the purposes of the survey were to "(1) explore the subsurface conditions present at the site, and (2) determine any possible contamination from a wood preserving plant previously located on this site." GTL concluded that "the site is free of contamination and no extensive clean up operations are anticipated in order to utilize this site for commercial construction." GTL added that "if any contamination is present and not detected in any of our borings, it should be minor enough and not pose a threat of spreading."

Following a citizen's complaint in 1991 about improper disposal of creosote on the site, the Louisiana Department of Environmental Quality (`DEQ") commenced an investigation of the site. Among the contaminants discovered at the site by DEQ were Benzo(a)Anthracene, Benzo(a)Pyrene, Chrysene, and Chromium.

On February 13, 1998, Herzog filed suit against the Oliver Group and GTL. Herzog alleged that any release, discharge, *518 or disposal of hazardous substances or hazardous wastes occurred on the property prior to its purchase of the property. Herzog further alleged in the suit that GTL had breached its contract with Herzog by failing to discover the contamination. Herzog sought from GTL the damages caused by this breach including, but not limited to, reimbursement to Herzog for all sums paid for the site, all sums paid by Herzog for remediation of the site, plus costs, interest, and attorney fees.

Answering the petition, GTL denied that it was hired by Herzog to perform or conduct an environmental survey, investigation, assessment, or evaluation of the site. Rather, GTL contended that it was only hired to take soil borings at locations, to depths and in the manner specified by Herzog; send certain of these soil borings to a lab for testing for the presence of contaminants specified by Herzog; and report the results of the laboratory tests to Herzog. GTL also argued that the work it performed was done in the manner specified by Herzog and under the control and supervision of Herzog.

GTL subsequently filed a third-party demand on February 16, 1999, against the Oliver Group (which had settled with Herzog in December of 1998), Riverwood International Corporation, Maryland Insurance Company, Maryland Casualty Company, National Standard Insurance Company, and West American Insurance Company. Riverwood had conducted creosote wood treatment operations at the site. It was alleged that Maryland Insurance, Maryland Casualty, and National Standard Insurance (collectively referred to as the "Maryland Defendants") had issued commercial general liability ("CGL") policies to GTL in March of 1988. West American had issued a CGL policy to GTL on September 1, 1995, and this policy was renewed through September 1, 1998.

Herzog amended its petition in September of 1999 to add West American and the Maryland Defendants as defendants to its original petition. Herzog amended the petition to allege that in the alternative, GTL had negligently performed the work and/or services provided to Herzog. Herzog alleged that as a consequence of GTL's negligence, Herzog suffered damages including, but not limited to, payments for remediation of the site, and payments for the acquisition and upkeep of the property. It was also alleged in the amended petition that West American and the Maryland Defendants had policies of liability insurance providing coverage for GTL at the time of GTL's breach of contract.

In their answer to Herzog's amended petitions, the Maryland Defendants admitted that National Standard Insurance had issued a policy to GTL that was effective from March 5, 1988, through March 5, 1989. However, as an affirmative defense, they denied that either Maryland Casualty Company or Maryland Insurance Company had insured GTL.

This is not the first time this lawsuit has been before this court. The first time concerned a protective order excluding a settlement agreement between Herzog and the Oliver Group from discovery by GTL. The trial court denied GTL's motion to compel production of the settlement agreement. This court denied GTL's supervisory writ. However, the supreme court granted the supervisory writ and remanded the matter back to this court for briefing, argument, and opinion. Herzog Contracting Company v. Oliver, XXXX-XXXX (La.1/12/01), 778 So.2d 1149. In an unpublished opinion, this court remanded to the trial court for it to conduct an in camera inspection of the confidential settlement agreement and to craft a discovery order *519 regarding the settlement agreement that balanced the interests of the involved parties. Herzog Contracting Company v. Oliver, 34,472 (La.App. 2d Cir.8/1/01), 797 So.2d 190, writ denied, 2001-2839 (La.1/4/02), 805 So.2d 206. Upon examining the agreement, the trial court concluded that the protective order should not be modified.

Later, this court reviewed the granting of a motion for summary judgment filed by the Maryland Defendants in which they argued that the claims filed by Herzog were not for "property damage" caused by an "occurrence" covered by the policy, and that the claims were excluded by the professional services provision of the policy. This court affirmed the judgment, concluding that the professional services exclusion in the policy applied and, because coverage was unambiguously excluded under the terms of the policy, the Maryland Defendants had no duty to defend GTL. Herzog Contracting Corporation v. Oliver, 35,219 (La.App. 2d Cir.12/19/01), 805 So.2d 313, writ denied, XXXX-XXXX (La.3/28/02), 812 So.2d 632.

On October 25, 2001, West American filed a motion for summary judgment. West American argued that the damages allegedly sustained by Herzog did not occur during the policy period and are specifically excluded from the policy. Attached to the motion was an affidavit from Clifford Taft, Underwriting Manager for West American, who attested that attached to his affidavit was a copy of the policy issued to GTL from September 1, 1995, to September 1, 1996. Also attached to the motion were the West American policies issued to GTL from September 1, 1996, to September 1, 1997, and from September 1, 1997, to September 1, 1998. In addition to opposing the motion for summary judgment, GTL filed a motion to strike the affidavit and insurance policies attached to West American's motion. The motion to strike was denied.

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