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
20-C-246 1 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),
20-C-246 2 282 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
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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
20-C-246 1 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),
20-C-246 2 282 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.
20-C-246 3 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
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.
20-C-246 4 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
20-C-246 5 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 JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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)
MAILED EMILY E. ROSS (RESPONDENT) KATHERINE K. QUIRK (RESPONDENT) KARL H. SCHMID (RESPONDENT) ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW 1100 POYDRAS STREET 365 CANAL STREET 400 POYDRAS STREET SUITE 1800 SUITE 2000 SUITE 2600 NEW ORLEANS, LA 70163 NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70130
ANDRE' C. GAUDIN (RESPONDENT) PAUL A. ECKERT (RESPONDENT) CHET G. BOUDREAUX (RESPONDENT) JASON R. TOMLINSON (RESPONDENT) ATTORNEY AT LAW WILLIAM J. MITCHELL, II ATTORNEYS AT LAW 5555 HILTON AVENUE (RESPONDENT) 5213 AIRLINE DRIVE SUITE 620 ATTORNEYS AT LAW METAIRIE, LA 70001 BATON ROUGE, LA 70808 5656 HILTON AVENUE BATON ROUGE, LA 70808 JOHN A. BRAYMER (RESPONDENT) CATHARINE O. GRACIA (RESPONDENT) SANDRA DIGGS-MILLER (RESPONDENT) ATTORNEY AT LAW KELSEY A. CLARK (RELATOR) ATTORNEYS AT LAW 639 LOYOLA AVENUE ATTORNEY AT LAW 639 LOYOLA AVENUE SUITE 2600 ONE AMERICAN PLACE, 23RD FLOOR 26TH FLOOR NEW ORLEANS, LA 70113 POST OFFICE BOX 3197 NEW ORLEANS, LA 70113 BATON ROUGE, LA 70821-3197