Naquin v. Louisiana Power & Light Co.

943 So. 2d 1156, 2006 WL 2642128
CourtLouisiana Court of Appeal
DecidedSeptember 15, 2006
Docket2005 CA 2103
StatusPublished
Cited by7 cases

This text of 943 So. 2d 1156 (Naquin v. Louisiana Power & Light Co.) 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
Naquin v. Louisiana Power & Light Co., 943 So. 2d 1156, 2006 WL 2642128 (La. Ct. App. 2006).

Opinion

943 So.2d 1156 (2006)

Wilson NAQUIN and Gladys Naquin, Individually, and Wilson Naquin as Administrator of the Estate of His Minor Children, Wilson Naquin, Jr., Peter Naquin and Chad Naquin
v.
LOUISIANA POWER & LIGHT COMPANY.

No. 2005 CA 2103.

Court of Appeal of Louisiana, First Circuit.

September 15, 2006.

*1158 Charlton B. Ogden, III, John J. Zvonek, New Orleans, for Co-Defendant/Appellant, Entergy Louisiana, L.L.C., f/k/a Entergy Louisiana, Inc., f/k/a Louisiana Power & Light Company.

Robert T. Lorio, Covington, for Co-Defendant/Appellee, The Louisiana Land & Exploration Company.

Before: CARTER, C.J., McDONALD, and WELCH, JJ.

CARTER, C.J.

At issue in this appeal is a third party demand for indemnity asserted by co-defendants in the main demand, The Louisiana Land & Exploration Company (hereafter referred to as "LL & E") against Entergy Louisiana, L.L.C., formerly known as Entergy Louisiana, Inc. and formerly known as Louisiana Power & Light Company (hereafter referred to as "Entergy"). After a four-day trial, judgment was granted in favor of LL & E and against Entergy, finding that Entergy owed indemnification to LL & E pursuant to the terms and conditions of a 1973 Right-of-Way Permit Agreement. Entergy appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff in the main demand, Wilson Naquin, filed suit thirteen years ago, naming Entergy and LL & E as co-defendants.[1] Plaintiff alleged in his petition that he injured his back on January 18, 1992, while operating his boat across a small cut of water located between two LL & E leased campsites on marshland property owned by LL & E near Bayou Jean Lacroix in Terrebonne Parish.[2] According to plaintiff, his forehead struck a low-hanging electric power line that was suspended *1159 between two posts and hanging across the waterway. The power line that plaintiff allegedly struck supplied electricity to the last campsite located along the well canal. The line was constructed after LL & E's lessee, Roger E. Braud, applied to Entergy for electrical service to the camp in 1984.[3] Because the leased campsite was located 580 feet away from Entergy's tie-in pole, Entergy gave Braud the option of either having Entergy construct the connecting facility at an estimated $8,000 cost to Braud or he could construct his own facility with cable donated by Entergy, and following Entergy specifications. Braud chose to construct the line himself, using Entergy's cable, with the help of an electrician.

Entergy supplied the electricity flowing through the subject line, pursuant to a 1973 Right-of-Way Permit Agreement (hereafter referred to as the "Agreement") between Entergy and LL & E. The Agreement specifically provided, in pertinent part, the following:

[LL & E], in consideration of the sum of [$10.00] cash, . . . grants unto [Entergy] . . ., its successors and assigns . . ., the right and privilege to construct, operate and maintain an electric distribution line, including poles, wires and other appurtenances, . . . upon, over and across the following described property, . . . :
A strip of land thirty (30) feet in width, measuring fifteen (15) feet on each side of the center line across the following described property:
Section 20, all lying south and west of those certain boundary lines fixed and agreed upon in those certain boundary agreements . . .
Section 28, all except NE 1/4 of NE 1/4
Section 29, all
Section 32, all
Section 33, all
In Township 19 South, Range 20 East along those portions of the routes and courses which cross the aforesaid property as are shown outlined in red on the map marked Exhibit "A" attached hereto and made a part hereof.

Subject to all of the conditions and limitations hereinafter set forth:

1. [Entergy], its successors and assigns, hereby assume the full liability and responsibility of all risks and hazards and shall be solely and directly responsible and liable for all personal injury and/or loss of life and/or damage or destruction of the property of third persons, as well as all servants and employees of [LL & E] and/or [Entergy], caused by the construction, existence, operation and maintenance of said distribution line, and shall hold [LL & E] free and harmless with respect to any and all claims for loss, death, destruction or damage arising from the construction, existence, operation and maintenance of said electric distribution line, including a reasonable attorney fee; provided, however, that [Entergy] does not agree to hold [LL & E] harmless from any liability contributed to or caused by any act of negligence of [LL & E].

Based upon the Agreement, LL & E filed a cross-claim against Entergy for indemnity. After many years of litigation, including two prior appeals[4] and a settlement *1160 of plaintiff's underlying claim, a four-day trial was had on the indemnity issue. The trial court considered testimony and evidence as to the facts and circumstances surrounding the intent of the parties at the time the Agreement was entered into. The trial court ultimately found that the purpose of the Agreement was to allow Entergy to provide electrical services to those LL & E campsites in existence at the time of the Agreement and to those campsites constructed along the well canal in the future. The trial court also found that the subject line was a necessary appurtenance to Entergy's electric distribution line system, because without the line, Entergy would not have been able to distribute electricity to the campsite. Therefore, the trial court held that Entergy must uphold its contractual obligation to indemnify LL & E for all damages, costs and attorney fees pursuant to the Agreement.

Entergy appealed, contending that there was no reasonable basis for the trial court to determine that the electric distribution line was an appurtenance as contemplated by the Agreement, and therefore, the trial court committed manifest error in holding that Entergy owed LL & E indemnity under the Agreement. Entergy's main contention on appeal is that the evidence made it abundantly clear that the subject line was not constructed, owned, operated or maintained by Entergy, and therefore, it was not a part of the electrical distribution facilities contemplated by the Agreement. Entergy maintains that the line was a service line, constructed and maintained by its customer. Furthermore, Entergy argues that the subject line was not within the described area allowed by the Agreement, and thus, the indemnity provision did not cover this scenario, maintaining that the trial court's reluctance to rely on the plat attached to the Agreement was clearly wrong.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). According to the Louisiana Supreme Court, the manifest error/clearly wrong standard is now well-established doctrine. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94. The issue is not whether the trier of fact's determination was right or wrong, but whether it was reasonable. Id., 877 So.2d at 98. In Bonin, the supreme court stated:

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951 So. 2d 228 (Louisiana Court of Appeal, 2006)

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Bluebook (online)
943 So. 2d 1156, 2006 WL 2642128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naquin-v-louisiana-power-light-co-lactapp-2006.