Moreno v. Entergy Corp.

105 So. 3d 40, 2012 La. LEXIS 3270, 2012 WL 6015581
Supreme Court of Louisiana·Decided December 4, 2012·No. No. 2012-C-0097·Published·Cited by 26 cases

Opinions

WEIMER, Justice.

1 iThis matter is before this court following the granting of motions for summary judgment in the district court. The district court dismissed the claims of an electrical utility company for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service. An employee of one (or more) of the repair contractors was injured when another employee working on a scaffold contacted an overhead power line with a metal object, thereby conducting electricity through the scaffolding. For the reasons that follow, we find that the Overhead Power Line Safety Act allows for indemnity to be provided by contractors who violate the act, to an electrical utility company. However, based on the record before us, we do not reach the issue of whether indemnity is actually owed by any party or is precluded by any party’s defense, but instead we remand this matter to the district court for further proceedings consistent with this opinion.

LFACTUAL BACKGROUND

This matter has been the topic of several reported opinions, including one from this court. The factual history here draws from those prior opinions, as well as from other contents of the record now before this court.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center at 7100 Veterans Memorial Boulevard in Metairie, Louisiana. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landa-verde”) to assist with providing labor.

Stewart provided a two-story high scaffold in order to facilitate the work on the shopping center wall. Landaverde assisted Stewart’s superintendent with constructing the scaffolding. As work on the shopping center wall progressed, a third level was added to the scaffold and the scaffolding was moved near overhead power lines which provided electrical service to the shopping center. The overhead power lines were owned and operated by Entergy Louisiana, LLC (“Entergy”).

There is some dispute as to how close the scaffolding was located in relation to the overhead power lines, although there seems to be a general agreement among [43] everyone involved that at some point the scaffolding was within ten feet of the overhead power lines. There is no serious dispute, however, that in December 2005, Woodward contacted Entergy because of concerns about the power lines. There is similarly no dispute that on January 3, 2006, an Entergy representative met with Woodward personnel at the shopping center.

| ^During the meeting, the Entergy representative informed Woodward it would take approximately a month for Entergy to devise and implement a plan to make the overhead power lines safe for nearby workers. Entergy also stated that the scaffold was currently too close to the overhead power lines and must be removed without delay.

The next day, January 4, 2006, a Woodward representative instructed a Stewart representative to remove the scaffolding. The Stewart representative was apparently not told that the reason the scaffolding was to be removed was its proximity to the overhead power lines. The Stewart representative informed another Stewart representative to use personnel from Landaverde, the company that had provided labor for erecting the scaffolding, to remove it.

On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. There is some dispute as to whether the Landaverde laborers were told to roll the wheeled scaffold to the center of the parking lot (away from the overhead power lines) and disassemble it there. Mr. Moreno would later recall that the scaffolding had to be disassembled without first moving it because the multi-level scaffold was attached to the building for stability. Rolling the scaffold, in Mr. Moreno’s view, would risk it toppling over and crashing to the ground.

As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

| ¿PROCEDURAL HISTORY

On January 4, 2007, Mr. Moreno sued Entergy and others for damages resulting from the power line incident. Entergy answered, denying fault and pleading the comparative fault of Mr. Moreno and the fault of third persons Woodward, Stewart, and Landaverde.

Significantly, Entergy also filed third party demands against Woodward, Stewart, and Landaverde, seeking complete indemnity under the Louisiana Overhead Power Line Safety Act (“OPLSA”) for any amounts which Entergy might be cast into judgment to pay Mr. Moreno. Citing La. R.S. 45:142,1 Entergy alleged that Woodward, Stewart, and Landaverde had violated the OPLSA by performing work within ten feet of Entergy’s overhead power lines without first making arrangements with Entergy to prevent anyone from contact[44] ing the power lines. Entergy additionally pleaded that the indemnity owed by Woodward, Stewart, and Landaverde under the OPLSA included interest, attorneys’ fees, and all costs associated with Entergy’s investigation of the incident and defense of itself.

Of the three contractors targeted by Entergy’s indemnity claims, Landaverde was the first to argue that if Entergy were ultimately found at trial to have been negligent, the OPLSA did not require indemnity for Entergy’s own negligence. The issue of indemnity was joined in the district court as Landaverde brought a motion for summary judgment seeking dismissal of Entergy’s indemnity claim and, for its part, | ¡;Entergy brought a motion for summary judgment against Stewart urging that the OPLSA required indemnity from Stewart.

The district court considered these motions for summary judgment at a hearing on July 8, 2009. The district court granted Landaverde’s motion for summary judgment and dismissed, with prejudice, Entergy’s third party claim against Landa-verde. Consistent with that ruling, the district court denied Entergy’s motion for summary judgment against Stewart.2 Later, Stewart and Woodward filed motions for summary judgment citing the same reasoning as the motion successfully brought by Landaverde. The district court granted the motions of Stewart and Woodward, dismissing, with prejudice, En-tergy’s third party demands for indemnity against those contractors.

The district court’s reasons for dismissing Entergy’s demands appear in a somewhat extended colloquy with counsel for the parties. From the colloquy, it appears that the district court accepted for the sake of argument the proposition that the OPLSA might require indemnity for En-tergy’s own negligence. However, it is also apparent that the district court found, in this particular case, no indemnity was due to Entergy because the OPLSA required indemnity only if: 1) notice to En-tergy had not been given before work commenced and 2) the parties involved in the work failed to formulate a work plan with Entergy. The district court found those two conditions in the OPLSA were not met:

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Moreno v. Entergy Corp., 105 So. 3d 40, 2012 La. LEXIS 3270, 2012 WL 6015581 (La. 2012).

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