Reliance Ins. Co. v. Barnard & Burk, Inc.

428 So. 2d 1097
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1983
Docket82 CA 0433, 82 CA 0434
StatusPublished
Cited by7 cases

This text of 428 So. 2d 1097 (Reliance Ins. Co. v. Barnard & Burk, Inc.) 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
Reliance Ins. Co. v. Barnard & Burk, Inc., 428 So. 2d 1097 (La. Ct. App. 1983).

Opinion

428 So.2d 1097 (1983)

RELIANCE INSURANCE COMPANY, et al.
v.
BARNARD & BURK, INC., et al.
FIREMAN'S FUND INSURANCE COMPANY
v.
RELIANCE INSURANCE COMPANY.

Nos. 82 CA 0433, 82 CA 0434.

Court of Appeal of Louisiana, First Circuit.

February 22, 1983.
Writ Denied April 15, 1983.

*1098 Peter T. Dazzio, Baton Rouge, for plaintiffs-appellees Reliance Ins. Co. and Rubicon Chemicals, Inc.

Boris Navratil, Dorothy Dubroc Thomas, Jay G. McMains, Baton Rouge, for defendants-appellants Barnard & Burk, Inc., Plant Services Const. Div. and Fireman's Fund Ins. Co.

Before LOTTINGER, COLE and CARTER, JJ.

CARTER, Judge.

This is an appeal by Barnard & Burk, Inc. and Fireman's Fund Insurance Company from a partial summary judgment in favor of Reliance Insurance Company (insurer of Rubicon Chemicals, Inc.). The issue is whether an indemnity provision in the contract between Rubicon Chemicals, Inc. and Barnard & Burk, Inc. is applicable and enforceable in the instant case.

On January 29, 1974, a release of phosgene gas occurred at the Geismar, Louisiana plant of Rubicon Chemicals, Inc. Fourteen employees of Barnard & Burk, Inc., Plant Service Construction Division, were injured and one employee was killed as a result of the accident. Barnard & Burk, Inc. was at that time under contract with Rubicon to do certain maintenance work at the Rubicon Plant. Employees of Barnard & Burk had shut down the MDI Reactor section and were in the process of cleaning coils and reactor walls when the release of gas occurred.

Reliance Insurance Company, Rubicon's liability insurer, without admitting any liability, paid to the fourteen injured Barnard & Burk, Inc. employees the sum of $46,312.54 for injuries, loss of wages, and medical expenses. Rubicon and Reliance then filed suit on January 28, 1975 against Barnard & Burk and Fireman's Fund Insurance Company, liability insurer of Barnard & Burk, for the sums paid by Reliance plus legal interest and for investigative expenses and attorney fees. Rubicon and Reliance based their suit for indemnification on a section in the contract between Rubicon and Barnard & Burk which reads as follows:

"Contractor shall indemnify and hold Owner harmless from all claims, suits, actions, losses and damages for personal injury, including death and property damage, even though caused by the negligence *1099 of the Owner, arising out of Contractor's performance of the work contemplated by this Agreement."

Alternatively, Rubicon and Reliance claimed that they became legally and conventionally subrogated to the claims of the workers against defendants and sought indemnification from the defendants as sole tortfeasors, or, in the further alternative, contribution as joint tortfeasors.

Reliance and Rubicon filed a supplemental and amended petition naming as additional defendants Dean Armstrong, Rodney L. Cook, John S. "Jack" Burk, John L. Daniel, Sidney A. Blanchard, and Allen Harth, all employees of Barnard & Burk. In a second supplemental and amended petition, Reliance alleged that it was also the liability insurer of Rubicon's agents, executive officers, employees and others who were allegedly insured for any and all alleged liability which was the subject of this litigation. A third supplemental and amended petition prayed for an additional $100,000.00 recently paid to the daughter and widow of Mack Hamptom, employee of Barnard & Burk who died as a result of the accident.

Fireman's Fund filed suit against Reliance for the sum of $32,835.70 plus legal interest and costs. This sum represented the amount Fireman's Fund had paid in workmen's compensation benefits to the injured Barnard & Burk workers. Fireman's Fund also asked for any additional amounts it might have to pay in the future. Fireman's Fund alleged that the negligence of certain Rubicon employees was the proximate cause of the injuries and that Reliance, as liability insurer of Rubicon, was liable to it, in solido, with the Rubicon employees for reimbursement of the workmen's compensation benefits paid. Reliance answered this petition and made third-party demands against Barnard & Burk, Fireman's Fund, Dean Armstrong, Rodney L. Cook, John L. Daniels, Sidney A. Blanchard, and Allen Harth for any amounts it might be liable to pay to Fireman's Fund for the workmen's compensation benefits paid. Reliance also repeated the allegations and demands made in its petitions against Barnard & Burk and Fireman's Fund.

On November 4, 1981, these two suits were consolidated for trial, and on January 7,1982, Reliance and Rubicon filed a motion for summary judgment for the sum of $146,312.54 with legal interest plus investigative expenses and attorney fees. On May 6, 1982, the district court granted a partial summary judgment in favor of Reliance and against Barnard & Burk and Fireman's Fund in solido holding that Reliance was entitled to full indemnification for $146,312.54, the amount of the settlement payments made. The court also rejected Fireman's Fund's third-party demand against Reliance claiming indemnification for all sums which Fireman's Fund, in its capacity as workmen's compensation insurer of Barnard & Burk, paid to injured employees.

The trial court based its judgment on principles enunciated in the case of Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), which construed an indemnity provision in a contract between Dow Chemical Company and National Maintenance Corporation to cover the negligent acts of Dow's employees.

Barnard & Burk and Fireman's Fund appeal with the following two specifications of error.

SPECIFICATIONS OF ERROR

1. The trial judge erred in interpreting an indemnity contract so as to afford indemnity to corporate officers and supervisors who were not specifically named in the indemnity agreement.
2. Alternatively, the trial judge erred in allowing Rubicon to be indemnified against payments made in settlement of claims which Rubicon did not owe.

SPECIFICATION OF ERROR NO. 1

Appellants argue that the indemnification clause applies only to claims against the "Owner" (Rubicon, Inc.) and not to claims against officers, agents, or employees of Rubicon. Appellants urge that a reasonable interpretation of the clause is *1100 that it was intended to cover only Rubicon's corporate liability to persons other than those in employment relationships with the company, such as neighbors injured by a phosgene spill from within the Rubicon Plant caused by faulty maintenance work done by Barnard & Burk. Further, appellants note that article 16 of the contract contains a separate indemnity clause dealing with liability arising from the use of tools lent by Rubicon to Barnard & Burk workers, which extends to Rubicon's "officers, agents and employees." Appellants argue that the fact that the parties obviously knew how to express their intent to indemnify employees by specific language only serves to underscore that they intended no such result when it came to general indemnity obligations covered by the general indemnity clause.

Appellants strenuously contend that the trial judge misinterpreted Polozola. Appellants contend that Polozola is factually distinguishable from the instant case because in Polozola

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Daniels v. Int'l Paper Co.
245 So. 3d 180 (Louisiana Court of Appeal, 2017)
Hampton v. Rubicon Chemicals, Inc.
579 So. 2d 458 (Louisiana Court of Appeal, 1991)
Perkins v. Rubicon, Inc.
563 So. 2d 258 (Supreme Court of Louisiana, 1990)
Perkins v. Rubicon Inc.
552 So. 2d 762 (Louisiana Court of Appeal, 1989)
Reliance Insurance Co. v. Barnard & Burk, Inc.
433 So. 2d 154 (Supreme Court of Louisiana, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
428 So. 2d 1097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reliance-ins-co-v-barnard-burk-inc-lactapp-1983.