Ioannis Maroulis Versus Castleman Donlea and Associates, LLC Ausi Builders and Construction, LLC Hotel Investors LLC and Expotel Hospitality - Him, LLC Ace American Ins. Co. Entergy Louisiana, LLC Evanston Ins. Co. Scottsdale Indem. Co. Sunbelt Rental Scaffold Services, LLC

Opinion

IOANNIS MAROULIS NO. 20-C-246

VERSUS FIFTH CIRCUIT

ENTERGY LOUISIANA, LLC, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 793-761, DIVISION "C"

HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

February 10, 2021

ROBERT A. CHAISSON

JUDGE

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.

WRIT GRANTED; SUMMARY JUDGMENT GRANTED; THIRD-PARTY CLAIMS DISMISSED WITH PREJUDICE RAC MEJ JJM

COUNSEL FOR PLAINTIFF/RESPONDENT, IOANNIS MAROULIS Chet G. Boudreaux William J. Mitchell, II Richard F. Zimmerman, III

COUNSEL FOR DEFENDANT/RELATOR, SUNBELT RENTAL SCAFFOLD SERVICES, LLC Kelsey A. Clark Douglas K. Williams Cullen J. Dupuy Druit G. Gremillion, Jr.

COUNSEL FOR DEFENDANT/RESPONDENT, EVANSTON INS. CO.

Sidney W. Degan, III Karl H. Schmid Paul A. Eckert

COUNSEL FOR DEFENDANT/RESPONDENT, HOTEL INVESTORS LLC AND EXPOTEL HOSPITALITY - HIM, LLC H. Minor Pipes, III Stephen L. Miles Patrick J. Lorio Emily E. Ross

COUNSEL FOR DEFENDANT/RESPONDENT, AUSI BUILDERS AND CONSTRUCTION, LLC Michael S. Futrell

COUNSEL FOR DEFENDANT/RESPONDENT, ENTERGY LOUISIANA, LLC Catharine O. Gracia Sandra Diggs-Miller John A. Braymer Darryl M. Phillips

COUNSEL FOR DEFENDANT/RESPONDENT, SCOTTSDALE INDEM. CO.

Douglas M. Kleeman Katherine K. Quirk

COUNSEL FOR DEFENDANT/RESPONDENT, CASTLEMAN DONLEA AND ASSOCIATES, LLC Andre' C. Gaudin Mindy N. Duffourc Jason R. Tomlinson

COUNSEL FOR DEFENDANT/RESPONDENT, ACE AMERICAN INS. CO.

Robert I. Siegel Elizabeth A. B. Carville

CHAISSON, J.

Sunbelt Rentals Scaffold Services, LLC (“Sunbelt”) seeks supervisory

review of a June 30, 2020 judgment of the trial court denying its motion for

summary judgment seeking dismissal of third-party claims for breach of contract

and indemnity filed by Castleman, Donlea, and Associates, LLC (“Castleman”).

Pursuant to the provisions of La. C.C.P. art. 966(H), this case was assigned for

briefing and oral argument. For the following reasons, we grant this writ

application, reverse that portion of the trial court’s ruling that denied Sunbelt’s

motion for summary judgment, render judgment granting Sunbelt’s motion for

summary judgment, and dismiss Castleman’s third-party claims against Sunbelt

with prejudice.

BACKGROUND

This complex, multiparty case arises from a work-related accident that

occurred during the renovation of the Hampton Inn located in Metairie, Louisiana.

Hotel Investors, LLC (“Hotel Investors”), the owner of the hotel, and its

management company, Expotel Hospitality - HIM, LLC (“Expotel”), hired Sigur

Construction, LLC (“Sigur”) and Castleman as the general contractors for the

project. Castleman, in turn, hired Sunbelt as the scaffolding subcontractor for the

project. On April 19, 2018, Ioannis Maroulis, an employee of Sunbelt, suffered an

electrical shock when a piece of scaffolding equipment came into contact with an

overhead power line.

Mr. Maroulis filed a petition for damages against Hotel Investors and

Expotel, and various other defendants, alleging various counts of negligence.

Hotel Investors and Expotel then filed a third-party demand against Castleman and

its insurer, Evanston Insurance Company (“Evanston”), alleging a breach of the

construction contract between Hotel Investors and Castleman and seeking

insurance coverage under the Evanston policy. Castleman filed its own third-party

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demand against Sunbelt and its insurer, ACE American Insurance Company

(“ACE”), seeking contractual indemnification and insurance coverage as an

additional insured under the commercial general liability policy issued by ACE.

Castleman alleged in its third-party complaint that Sunbelt owes contractual

indemnity to Castleman for the damages asserted by Hotel Investors and Expotel.

Castleman further alleged that Sunbelt agreed to provide insurance coverage to

Castleman to insure it against claims that arose in connection with Sunbelt’s work

on the project and to add Castleman as an additional insured on its liability policy

that was issued by ACE. According to Castleman, Sunbelt provided it with a

certificate of insurance to prove that it had sufficient coverage to insure Castleman

against claims arising in connection with Sunbelt’s work. Castleman also alleged

that Sunbelt is in breach of an oral obligation requiring it to insure Castleman.

In response to Castleman’s claims against it, Sunbelt filed a motion for

summary judgment in which it asserted that, because no written contract was ever

executed between Castleman and Sunbelt, there was no contractual

indemnification agreement between them. Sunbelt further asserted there was no

evidence of any agreement by Sunbelt to procure insurance for Castleman or add

Castleman as an additional insured under its policy.

The trial court denied Sunbelt’s motion for summary judgment, finding that

there were genuine issues of material fact remaining with respect to whether

Sunbelt owes contractual or quasi-contractual indemnity to Castleman. This timely

writ application followed.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s determination of whether summary judgment is

appropriate. David v. Dollar Tree Stores, Inc., 19-36 (La. App. 5 Cir. 10/2/19),

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282 So.3d 329, 331. The evidentiary burden on a motion for summary judgment

before the trial court is articulated in La. C.C.P. art. 966, in pertinent part:

D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Thus, Sunbelt needed only to show an absence of evidentiary support for

Castleman’s claims against it to prevail. The evidence introduced by Castleman in

support of its claims against Sunbelt included a pricing proposal from Sunbelt, a

certificate of insurance showing Sunbelt had obtained an insurance policy from

ACE, and the deposition testimony of Ms. Linda Castleman Donlea, a principal of

Castleman.

Unlike the prime AIA construction contract between Hotel Investors and

Castleman, it is undisputed that no written contract existed between Castleman and

Sunbelt. It is also clear that some form of agreement existed between Castleman

and Sunbelt whereby Castleman agreed to pay Sunbelt certain sums of money in

exchange for scaffolding and other construction services. The parties dispute

whether this agreement also included an agreement by Sunbelt to indemnify

Castleman or name Castleman as an additional insured on Sunbelt’s commercial

general liability policy with ACE.1

In finding that there remained genuine issues of material fact, the trial court,

in its written reasons for judgment, cited the provision of the Sunbelt pricing

proposal which states, “all personnel employed and actually engaged in carrying

1 In addition to contractual indemnity, Castleman also alleges that Sunbelt owes Castleman “quasi- contractual indemnity” for the damages asserted by Hotel Investors and Expotel in their third-party demand. Since reforms to our tort law in 1996, Louisiana law no longer recognizes “quasi-contractual” indemnity claims like the ones articulated by Castleman.

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out the herein described work will be fully covered by workmens’ compensation

and general liability insurance in adequate limits.” The interpretation of this

provision is not a question of fact, but rather a question of law.2 There is no factual

dispute that Sunbelt did obtain CGL and workers’ compensation policies to protect

itself against risks during the construction project; however, this pricing proposal

makes no mention of naming Castleman as an additional insured and does not state

that Sunbelt will indemnify Castleman in case of injury to the workers. This

pricing proposal supports only the fact that there was a construction agreement

between Sunbelt and Castleman, not Castleman’s claims that there were

agreements to include it as an additional insured on the ACE policy.

Castleman acknowledges that there was no written indemnity agreement, but

states that there was an oral agreement between the parties. However, evidence on

the motion for summary judgment included the deposition testimony of Ms.

Donlea, who was the only party who contracted with Sunbelt on behalf of

Castleman. In that deposition, Ms. Donlea specifically testified that she never had

any discussions with anyone from Sunbelt regarding a requirement that Sunbelt

either name Castleman as an additional insured or obtain insurance coverage for

Castleman.

Concerning oral agreements, this Court has previously held:

The party that demands performance of an obligation must prove the existence of that obligation. La. C.C. art. 1831. If a contract is not reduced to writing and its price or value is greater than $500, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846; Treen Constr. Co. v. Schott, 03-1232 (La. App. 5 Cir. 1/27/04), 866 So.2d 950, 954; Le Blanc v. Falgout, 144 So.2d 616 (La. App. 4 Cir. 1962). A party may offer his own testimony in support of a claim of an oral contract. Gulf Container Repair Servs. v. FIC Bus. & Fin. Ctrs., Inc., 98-1144 (La. App. 5 Cir. 3/10/99), 735 So.2d 41, 43. Corroborating circumstances must come from a source other than the plaintiff. Id.

Knight v. Magri, 15-543 (La. App. 5 Cir. 2/24/16), 188 So.3d 311, 315, writ denied, 16-0741 (La. 6/3/16), 192 So.3d 747. 2 See Espinosa v. Accor N. Am., Inc., 14-0001 (La. App. 4 Cir. 9/24/14), 148 So.3d 244, 249.

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No such corroborating circumstances exist here. While the evidence shows

that there existed an agreement between Castleman and Sunbelt for paid services

related to the construction project, none of this evidence shows that there ever

existed an indemnity agreement between the parties or that Sunbelt was ever

obligated to name Castleman as an additional insured on its insurance policy. In

the absence of evidence of such an agreement, the trial court erred in denying

Sunbelt’s motion for summary judgment.

CONCLUSION

Upon de novo review, we find that Castleman has failed to produce factual

support sufficient to establish the existence of a genuine issue of material fact or

that Sunbelt is not entitled to summary judgment as a matter of law as required

under La. C.C.P. art. 966(D). Accordingly, we grant this writ application, reverse

that portion of the trial court’s ruling that denied Sunbelt’s motion for summary

judgment, render judgment granting Sunbelt’s motion for summary judgment, and

dismiss Castleman’s third-party claims against Sunbelt with prejudice.

WRIT GRANTED; SUMMARY JUDGMENT GRANTED; THIRD-PARTY CLAIMS DISMISSED WITH PREJUDICE

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA

FREDERICKA H. WICKER CHIEF DEPUTY CLERK

JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK

HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 10, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-C-246

E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) RICHARD F. ZIMMERMAN, III CULLEN J. DUPUY (RELATOR) DOUGLAS K. WILLIAMS (RELATOR) (RESPONDENT) SIDNEY W. DEGAN, III (RESPONDENT) H. MINOR PIPES, III (RESPONDENT) DRUIT G. GREMILLION, JR. (RELATOR) STEPHEN L. MILES (RESPONDENT) MICHAEL S. FUTRELL (RESPONDENT) PATRICK J. LORIO (RESPONDENT) DOUGLAS M. KLEEMAN (RESPONDENT) MINDY N. DUFFOURC (RESPONDENT) DARRYL M. PHILLIPS (RESPONDENT) ROBERT I. SIEGEL (RESPONDENT) ELIZABETH A. B. CARVILLE (RESPONDENT)

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