Naquin v. Louisiana Power & Light Co.

951 So. 2d 228, 2006 WL 3378312
Louisiana Court of Appeal·Decided November 17, 2006·No. 2005 CA 2104·Published·Cited by 13 cases

Opinion

951 So.2d 228 (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 2104.

Court of Appeal of Louisiana, First Circuit.

November 17, 2006.

*230 Charlton B. Ogden, III, John J. Zvonek, New Orleans, for Cross-Claim 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 Cross-Claim Plaintiff/Appellee, The Louisiana Land & Exploration Company.

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

CARTER, C.J.

This is an appeal of a judgment awarding damages, costs and attorney fees pursuant to an indemnity contract, rendered in favor of cross-claim plaintiff/appellee, The Louisiana Land & Exploration Company (hereafter referred to as "LL & E") and against cross-claim defendant/appellant, Entergy Louisiana, L.L.C., formerly known as Entergy Louisiana Inc. and formerly known as Louisiana Power & Light Company (hereafter referred to as "Entergy"). This appeal marks the fourth time we have considered issues related to this litigation, which now spans thirteen years. We refer to our previous opinions for the factual and procedural background.[1]

After a trial on the merits of the liability issue, the trial court concluded that Entergy owed indemnification to LL & E pursuant to the terms and conditions of a 1973 Right-of-Way Permit Agreement (hereafter referred to as the "Agreement"). We affirmed the trial court's findings and conclusion in a related appeal, Naquin v. Louisiana Power & Light Co., 05-2103 (La. App. 1 Cir. 9/15/06), 943 So.2d 1156, which was released simultaneously with this opinion.

The instant appeal involves a separate trial court judgment signed on May 6, 2005, awarding damages, costs and attorney fees to LL & E in the amount of $183,064.27, pursuant to the Agreement, which contained an indemnity clause. Entergy appeals, arguing that the amount awarded is unreasonably high, unsubstantiated by the evidence, and beyond the provisions of the Agreement. LL & E answered the appeal, requesting an additional amount for costs and attorney fees incurred in connection with this appeal and seeking post-judgment interest on the trial court award. For the following reasons, we affirm the trial court judgment, as amended.

THE AGREEMENT

In 1973, Entergy and LL & E entered into an Agreement wherein Entergy was granted a right-of-way to construct, operate and maintain an electric distribution line upon, over and across LL & E property. The right-of-way was subject to certain conditions and limitations, one of which was an indemnity clause that provided as follows:

[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] *231 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 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]. (Emphasis added.)

Focusing on the broad language in the indemnity clause, the trial court awarded $183,064.27 in damages, costs and attorney fees for LL & E's expenses related to defending the underlying tort claim and establishing the right to indemnification. At the hearing on the motion to set the judgment amount, the trial court orally ruled:

After considering everything, it just seems to the Court that to be made whole, to be indemnified, means . . . what it says. Free and hold harmless . . . means . . . we shouldn't have had to pay, we shouldn't have even been here, so whatsoever expenses and costs we incurred should be wiped out. It is broad. . . . [T]he Court finds that this language does include the right for LL & E to have their attorney's fees paid, and costs. . . . The Court finds that it is almost impossible to incur attorney's fees without incurring court costs, or costs incurred in litigation. . . . So the Court interprets that to include costs.

The trial court also stated:

It is a broad contract. . . . But the way I read it, given the whole picture, given what I know about this case, and given the fact that this was written so many years ago, the way I read it is that it included everything, and it seems to me it was the intention of the parties for LL & E in this instance to be made whole, and to be made whole means . . . what it means, to be made whole, to walk out of here without having to pay one penny out of its pocket ultimately.

On appeal, Entergy strongly urges that the indemnity clause did not cover any amount related to establishing the right to indemnification or any amount of costs incurred in either the underlying tort claim or the indemnity claim.

LAW AND ANALYSIS

Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183, 185; Richey v. Moore, 36,785 (La.App. 2 Cir. 3/7/03), 840 So.2d 1265, 1270, writ denied, 03-0987 (La.5/30/03), 845 So.2d 1054. The general rules governing the interpretation of contracts apply in construing a contract of indemnity. Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982, 985 (La. 1986); Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1 Cir. 5/5/06), 935 So.2d 186, 191.

Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LSA-C.C. art.2046. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. LSA-C.C. art. 2051. When the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone. LSA-C.C. art.2052. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, *232 the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. LSA-C.C. art.2053. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. LSA-C.C. art.2054. Equity is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another.

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Naquin v. Louisiana Power & Light Co., 951 So. 2d 228, 2006 WL 3378312 (La. Ct. App. 2006).

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