Lafayette Steel Erector, Inc. d/b/a LSE Crane and Transportation and IC Rigging, LLC v. G. Kendrick, LLC, Low Land Construction Co., Inc., United Bulk Terminals Davant, LLC, Underwriters at Lloyd's London, and Atlantic Specialty Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0895
LAFAYETTE STEEL ERECTOR, INC., d/ b/ a LSE CRANE AND
TRANSPORTATION, AND IC RIGGING, LLC
VERSUS
G. KENDRICK, LLC, LOW LAND CONSTRUCTION CO., INC.,
UNITED BULK TERMINALS DAVANT, LLC, UNDERWRITERS
AT LLOYD' S, LONDON, AND ATLANTIC
SPECIALTY INSURANCE COMPANY
AUG 3 0 2023
Judgment rendered:
emwwms
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 660341
The Honorable Wilson E. Fields, Judge Presiding
James Michael Dill Attorneys for Plaintiff/Appellant
G. Austin Love Lafayette Steel Erector, Inc., d/ b/ a
Lafayette, Louisiana LSE Crane and Transportation
Jake P. Skaggs Attorney for Intervenor/Appellant
Houston, Texas Mitsui Sumitomo Insurance Company
of America
Michael William McMahon Attorneys for Defendant/ Appellee
Kirk N. Aurandt United Bulk Terminals Davant, LLC
Paul R. Trapani, III
Covington, Louisiana
Stephen F. Butterfield Attorneys for Defendant/Appellee
Ryan M. Tucker G. Kendrick, LLC
New Orleans, Louisiana
Ross M. Molina Attorneys for Defendant/ Appellee,
Donald G. Cassels, III Certain Underwriters at Lloyd' s, London
New Orleans, Louisiana
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
c6j' o
HOLDRIDGE, J.
Lafayette Steel Erector, Inc., d/ b/ a LSE Crane and Transportation (" LSE"),
and Mitsui Sumitomo Insurance Company of America (" Mitsui") appeal a summary
judgment rendered in favor of United Bulk Terminals Davant, LLC (" United Bulk")
on April 14, 2022, dismissing their claims against it with prejudice. For the
following reasons, we affirm the trial court' s grant of summary judgment.
FACTS AND PROCEDURAL HISTORY
On August 11, 2017, LSE and IC Rigging, LLC (" IC") ( collectively
LSE/ IC"), filed a petition for damages against G. Kendrick, LLC (" Kendrick") and
its insurer, Certain Underwriters at Lloyd' s, London (" Underwriters"); Low Land
Construction Co., Inc. (" Low Land") and its insurer, Atlantic Specialty Insurance
Company (" Atlantic") and United Bulk.' In the petition, LSE/ IC asserted that in
May of 2017, United Bulk hired Kendrick as the general contractor on a demolition
project to remove its Krupp Stacker Reclaimer at the plant it owned in Davant,
Louisiana. Kendrick subcontracted with Low Land to provide services on the
project.
On June 13, 2017, a crane owned by Low Land was being used in the
demolition of the reclaimer when it fell and struck a crane owned by IC and leased
to LSE (hereinafter referred to as " the LSE crane"). The Low Land crane was being
operated by Jason Guidry, an employee of Low Land for approximately fifteen
years. The LSE crane was being operated by Jason Robichaux, an employee of LSE.
The cutter on the project was David Hernandez, the owner and operator of LDH
Recycling, LLC (LDH). The accident caused extensive damage to the LSE crane.
LSE' s original petition apparently improperly named the Underwriters defendant as Underwriters
at Lloyd' s London.
2 Due to its large size, demolishing the reclaimer required the use of two cranes and a cutter to
dismantle portions of the structure. Kendrick did not employ cutters and did not own or operate
any cranes. Therefore, it subcontracted Low Land to provide cranes and LDH to provide the cutter
necessary to complete the demolition project.
2
In its petition, LSE/IC alleged that the accident was caused by the negligence
of Kendrick and Low Land. As to United Bulk specifically, LSE/ IC alleged in the
petition that United Bulk was at fault for the accident and resulting damages " for the
negligent hiring of [Kendrick] for this project."' LSE/ IC later amended the petition
to add LDH and its insurer, Mesa Underwriters Specialty Insurance Co. (" Mesa"),
as defendants.
On October 2, 2017, Kendrick answered the petition for damages; asserted
cross- claims against Low Land, Atlantic, and Underwriters; and asserted third -party
demands against LDH and its insurer, Mesa, its insurance agency, Giambelluca
Insurance Agency, and ABC Insurance Agency.' On October 4, 2017, Low Land
and Atlantic answered the petition for damages, filed a cross- claim against Kendrick,
and filed a third -party demand against David Burner, an independent contractor
allegedly hired by Kendrick.
On November 3, 2017, United Bulk answered the petition for damages;
asserted cross- claims against Kendrick, Low Land, LDH, Underwriters, Atlantic,
and Mesa; and asserted a counterclaim against LSE. United Bulk admitted that it
owned the terminal where the crane was damaged, that it contracted with Kendrick
for the removal of its Krupp Stacker Reclaimer, that Low Land was acting as a
subcontractor to Kendrick and a Low Land employee was operating the Low Land
crane, that Underwriters insured Kendrick, and that the accident was caused by LSE
and Low Land' s negligence. United Bulk alleged that the damages to the crane were
3 We note that LSEIIC did not allege that United Bulk contractually reserved the right to control
the work for which it contracted Kendrick to perform. It also did not allege that United Bulk
breached any assumed duty or exercised operational control over the project or that the project
involved ultrahazardous activity.
Kendrick asserted that it subcontracted with LDH to provide personnel and expertise in
connection with the project. Kendrick asserted that it also subcontracted with Low Land to furnish
a crane for the project. Low Land subcontracted with LSE to furnish an additional crane and
personnel, including an operator.
3
caused by entities or persons for which it was not legally responsible. In its cross-
claims, United Bulk sought to recover damages to its conveyor system which
occurred when the crane fell.
On November 13, 2017, Mitsui, a partially subrogated insurance carrier for
the crane leased by LSE, intervened in the suit. Mitsui alleged that it was entitled to
damages from Low Land, Kendrick, and United. Bulk as a result of the accident. As
to United Bulk, Mitsui alleged it was liable for negligently hiring Kendrick.5 Mitsui
amended its petition in intervention on February 20, 2018, to add LDH as a
defendant. On January 11, 2018, United Bulk answered Mitsui' s petition in
intervention, making the same admissions as it did in its answer to LSE/IC' s petition.
On October 22, 2020, AIG UK Limited and Zurich Insurance PLC, UK
Branch, fled an unopposed motion to intervene in the suit as the subrogated insurers
of United Bulk, which was granted by the trial court on October 23, 2020.
After various pleadings were filed by the parties, on October 25, 2021,
Kendrick filed a motion for summary judgment seeking the dismissal of the claims
of LSE/ IC, Mitsui, Low Land, and Atlantic against it. In its memorandum in support
of its motion, Kendrick asserted that as the general contractor of the demolition
project, it had no duty to oversee or assist the performance of the independent
contractor' s work. On November 5, 2021, Underwriters filed a motion to adopt
Kendrick' s motion for summary judgment.
On November 16, 2021, United Bulk filed a motion for summary judgment
seeking dismissal of LSE/IC' s and Mitsui' s claims against it.6 In its memorandum
5 As was the case with LSEAC' s petition, Mitsui did not allege any other basis for United Bulk' s
liability. See footnote 3.
United Bulk filed the following documents in support of its motion for summary judgment: rule
1442 depositions of United Bulk through Philipp Kroepels and J. Scott Ballbach; excerpts from
the depositions of Glenn S. Kendrick, Donald A. Voiers, Jason Guidry, Jason Robichaux, and
David Mendez Hernandez; the Master Service Contract between United Bulk and Kendrick; and
the Project Manual for the Krupp Stacker Reclaimer Demolition.
4
in support of its motion, United Bulk asserted that it could not be held liable under
a theory of negligent hiring because it had previously contracted with Kendrick with
good results, and there was no evidence that at the time of hiring Kendrick for the
project, United Bulk knew, or had reason to believe, that Kendrick was irresponsible.
United Bulk also argued that as a principal it could not be found liable for the fault
or neglect of an independent contractor because the work performed was not
ultrahazardous and it did not contractually maintain the right to directly supervise
the crane operations, nor did it actually do so.
LSEAC filed a memorandum in opposition to United Bulk' s summary
judgment motion arguing that summary judgment was not appropriate under the
facts of this case because there were genuine issues of material fact as to whether
United Bulk negligently hired Kendrick when it failed to exercise due diligence in
connection with Kendrick' s competence to conduct this project safely; negligently
retained Kendrick when it chose to permit Kendrick to continue the demolition work
after a prior accident; assumed a duty of supervision and oversight over Kendrick
when it imposed comprehensive supervision and oversight procedures after a prior
accident; and reserved operational control over Kendrick when it imposed those
comprehensive supervision and oversight procedures.' LSE/ 1C also contended that
there were genuine issues of fact as to whether United Bulk retained operational
control over its contractors in light of the " complex and exhaustive supervision
procedures" and whether the contractors were engaged in an inherently dangerous
activity.
7 In support of its opposition, LSE/ IC filed excerpts from the rule 1442 deposition of United Bulk
through J. Scott Ballbach; the Project Manual for Krupp Stacker Reclaimer Demolition; United
Bulk' s Rules and Regulations for Contactors; United Bulk' s Contractor Health, Safety, Security
Environmental Manual; the Master Service Contract between United Bulk and Kendrick; and
excerpts from the depositions of Steven M. Robichaux, Donald A. Voiers, Jeremy Joseph
Bergeron, and Jason Guidry.
5
Mitsui also opposed United Bulk' s motion for summary judgment, arguing
that there remained genuine issues of material fact as to United Bulk' s breach of
duty. Specifically, Mitsui argued in its memorandum in opposition to United Bulk' s
motion for summary judgment that there remained genuine issues of material fact as
to whether United Bulk breached its duty by negligently hiring Kendrick to oversee
the crane activities on the project and whether United Bulk assumed certain duties
related to job site safety and whether it breached those duties.
On March 14, 2022, the trial court held a hearing on United Bulk' s and
Kendrick' s motions for summary judgment. After the hearing concluded, the trial
court took the matters under advisement. On March 16, 2022, the trial court issued
its rulings in open court, granting United Bulk' s motion for summary judgment and
dismissing all of the claims asserted against it by LSE/ IC and Mitsui. On April 6,
2022, the trial court signed a judgment in accordance with its oral ruling.' The trial
court also granted Kendrick' s motion for summary judgment and signed a judgment
on April 14, 2022, dismissing the claims of LSE/ 1C, Mitsui, Low Land, and Atlantic
against Kendrick and Underwriters. These judgments were designated as final by
the trial court.
Subsequently, LSE and Mitsui devolutively appealed the trial court' s
judgment dismissing United Bulk from the suit in this appeal. LSE, Low Land, and
Mitsui separately appealed the trial court' s judgment dismissing Kendrick and
Underwriters from the suit. See Lafayette Steel Erector, Inc. d/ b/ a LSE Crane
and Transportation v. G. Kendrick, LLC, 2022- 0892 ( La. App. 1 Cir. 8129123),
So. 3d " Lafayette Steel Erector I"). Pursuant to an unopposed motion by
8 Mitsui filed the following documents attached to its opposition memorandum: deposition
excerpts from Glenn S. Kendrick, Donald A. Voiers, Jeremy Joseph Bergeron, Jason Guidry,
David Mendez Hernandez, and Steven M. Robichaux.
The trial court adopted United Bulk' s memorandum in support of its motion for summary
judgment as its reasons for judgment.
0
Kendrick, these appeals were consolidated in this court for purpose of argument and
submission only, and the other appeal was addressed in a separate opinion previously
rendered by this court. Id.
On appeal, LSE contends that the trial court erred in granting summary
judgment in favor of United Bulk when LSE furnished competent evidence that
United Bulk failed to conduct " the most basic due diligence" in retaining Kendrick
as a general contractor; that United Bulk assumed and breached its duties in
connection with Kendrick' s demolition work; and that United Bulk asserted
operational control over Kendrick and the " demolition operations" were
ultrahazardous, thereby rendering United Bulk vicariously liable for any acts or
omissions of Kendrick. Mitsui contends that the trial court erred in granting United
Bulk' s summary judgment motion because it erred in finding that there was no
genuine issue of material fact that United Bulk breached its duty to retain a
competent general contractor to manage the demolition project and that United Bulk
breached the duty it assumed to supervise and oversee the safety of crane operations
during the demolition work.
STANDARD OF REVIEW
Appellate courts review the granting of a summary judgment de novo using
the same criteria governing the trial court' s consideration of whether summary
judgment is appropriate, i.e., whether there is any genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. See La. C. C.P. art.
966( A)( 3); Lucas v. Maison Insurance Co., 2421- 1401 ( La. App. 1 Cir. 12/ 22/ 22),
358 So. 3d 76, 83- 84.
The summary judgment procedure is expressly favored in the law and is
designed to secure the just, speedy, and inexpensive determination of non-domestic
civil actions. See La. C. C. P. art. 966( A)(2). The purpose of a motion for summary
judgment is to pierce the pleadings and to assess the proof in order to see whether
II
there is a genuine need for trial. Hines v. Garrett, 2004- 0806 ( La. 6125104), 876
So. 2d 764, 769 (per curiam). After an opportunity for adequate discovery, summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law. La. C. C.P. art. 966( A)(3). The only documents that
may be filed in support of or in opposition to the motion are pleadings, memoranda,
affidavits, depositions, answers to interrogatories, certified medical records, written
1°
stipulations, and admissions. La. C. C. P. art. 966( A)(4).
On a motion for summary judgment, the initial burden of proof rests with the
mover. See La. C. C. P. art. 966( D)( 1); Lucas, 358 So. 3d at 84. If, however, the
mover will not bear the burden of proof at trial on the matter that is before the court
on the motion, the mover' s burden on the motion does not require that all essential
elements of the adverse party' s claim, action, or defense be negated. Instead, after
meeting its initial burden of showing that there are no genuine issues of material
fact, the mover may point out to the court that there is an absence of factual support
for one or more elements essential to the adverse party' s claim, action, or defense.
Thereafter, summary judgment shall be granted unless the adverse party can produce
factual evidence 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. See La. C. C. P.
art. 966( D)( 1).
The court may consider only those documents filed in support of or in
opposition to the motion for summary judgment and shall consider any documents
to which no objection is made. Any objection to a document shall be raised in a
timely filed opposition or reply memorandum. The court shall consider all
10 The motion for summary judgment at issue on this appeal was filed and decided under La. C. C. P.
art. 966 prior to its amendment by 2023 La. Acts No. 317, § 1, and 2023 La. Acts No. 368, § 1,
which became effective on August 1, 2023.
8
objections prior to rendering judgment. The court shall specifically state on the
record or in writing which documents, if any, it held to be inadmissible or declined
to consider. See La. C. C.P. art. 966( D)( 2).
In ruling on a motion for summary judgment, the court' s role is not to evaluate
the weight of the evidence or to make a credibility determination, but instead to
determine whether there is a genuine issue of material fact. Collins v. Franciscan
Missionaries of Our Lady Health System, Inc., 2019- 0577 ( La. App. 1 Cir.
2/ 21120), 298 So. 3d 191, 194, writ denied, 2020- 00480 ( La. 6122120), 297 So. 3d
773. A fact is material if it potentially ensures or precludes recovery, affects a
litigant' s ultimate success, or determines the outcome of the legal dispute. Wolfe v.
Quad -Area Community Action Agency, Inc., 2022- 0203 ( La. App. 1 Cir.
9116122), 352 So. 3d 992, 994. A genuine issue is one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, summary
judgment is appropriate. Collins, 298 So. 3d at 194- 95. Any doubt as to a dispute
regarding a material issue of fact must be resolved against granting the motion and
in favor of a trial on the merits. Id. at 195.
Summary judgment is seldom appropriate for determinations based on the
subjective facts of intent, motive, malice, good faith, or knowledge. See Jones v.
Estate of Santiago, 2003- 1424 ( La. 4114104), 870 So. 2d 1002, 1006. These
subjective facts call for credibility evaluations and the weighing of testimony.
Berthelot v. Indovina, 2021- 1546 ( La. App. 1 Cir. 613122), 343 So. 3d 209, 215. A
trial court cannot make credibility decisions on a motion for summary judgment.
Monterrey Center, LLC v. Education Partners, Inc., 2008- 0734 ( La. App. 1 Cir.
12123108), 5 So. 3d 225, 232. Furthermore, the circumstantial evidence usually
necessary for proof of motive or intent requires the trier -of f-act to choose from
competing inferences, a task not appropriate for a summary judgment ruling. Irving
v. Katie Santo, Inc., 2018- 1619 ( La. App. 1 Cir. 6/ 13119), 2019 WL 2609035, * 5
E
unpublished); Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42, 072
La. App. 2 Cir. 4/ 4! 07), 954 So. 2d 883, 891, writ denied, 2007- 1146 ( La. 9114107),
963 So. 2d 1001.
APPLICABLE LAW
LSEAC and Mitsui asserted claims of negligent hiring against United Bulk in
their petitions. Louisiana courts have adopted a duty -risk analysis in determining
whether liability for negligence exists under the facts of a particular case. Van
Cleave v. Temple, 2018- 1353 ( La. App. I Cir. 5131119), 278 So. 3d 1005, 1011. For
liability to attach under a duty -risk analysis, a plaintiff must prove five separate
elements: ( 1) the defendant had a duty to conform his conduct to a specific standard
the duty element); ( 2) the defendant' s conduct failed to conform to the appropriate
standard ( the breach element); ( 3) the defendant' s substandard conduct was a cause -
in -fact of the plaintiffs injuries ( the cause -in -fact element); ( 4) the defendant' s
substandard conduct was a legal cause of the plaintiffs injuries ( the scope of duty
element); and ( 5) proof of actual damages ( damages element). See Farrell v. Circle
K Stores, Inc., 2022- 00849 ( La. 3117123), 359 So. 3d 467, 473. A negative answer
to any of the inquiries of the duty -risk analysis results in a determination of no
liability. Landers v. USIC Locating Servs., Inc., 2020- 0890 ( La. App. 1 Cir.
4126121), 324 So. 3d 1070, 1073- 74.
As for LSE/ IC' s specific allegations of negligent hiring, the jurisprudence has
recognized that one who hires an irresponsible independent contractor may be
independently negligent. Evans v. Allstate Insurance Co., 194 So.2d 762, 767 ( La.
App. 1 Cir. 1967); Hemphill v. State Farm Ins. Co., 472 So. 2d 320, 324 ( La. App.
3 Cir. 1985). To determine whether a principal is negligent for hiring an
irresponsible independent contractor, the court must consider the principal' s
knowledge at the time of the hiring. Certified Cleaning & Restoration, Inc. v.
Lafayette Ins. Co., 10- 948 ( La. App. 5 Cir. 6114111), 67 So. 3d 1277, 1282- 83, writ
10
granted in part and remanded on other ground, 2011- 2174 ( La. 11118/ 11), 75 So. 3d
466; Perkins v. Gregory Mfg. Co., 95- 1396 ( La. App. 3 Cir. 3120196), 671 So. 2d
1036, 1040, writ denied, 96- 971 ( La. 5/ 31/ 96), 673 So. 2d 1039. A claim for
negligent hiring is cognizable only if the claimant can show that the principal had
knowledge when it hired the independent contractor that the independent contractor
was irresponsible, and negligent conduct that occurs after the hiring is not
determinative of the claim. See Guillory v. Conoco, Inc., Continental Oil Co.,
521 So.2d 1220, 1224- 25 ( La. App. 3 Cir.), writ denied, 526 So. 2d 801 ( La. 1988).
Where the principal has previously hired the contactor with good results, and there
is no evidence in the record to demonstrate the principal' s prior negligent hiring
practices, a claim for negligent hiring fails. McCarroll v. Prime Cut Lawn Care
Tractor Work, L.L.C., 2010- 1638 ( La. App. 1 Cir. 3/ 25/ 11), 2011 WL 1104132,
6 ( unpublished opinion).
In its motion for summary judgment, United Bulk alleged there were no
genuine issues of material fact as to its liability for the work of an independent
contractor.
Generally, a principal is not liable for the offenses committed by an
independent contractor while performing its contractual duties. See Thompson v.
Winn-Dixie Montgomery, Inc., 2015- 0477 ( La. 10/ 14/ 15), 181 So. 3d 656, 665.
However, there are two exceptions to the general rule of non -liability: ( 1) where the
work performed by the contractor is ultrahazardous; or (2) if the principal reserves
the right to supervise or control the work of the independent contractor. Id.Whether an activity qualifies as ultrahazardous in Louisiana is a question of
law. Pontchartrain Natural Gas System v. Texas Brine Co., LLC, 2018- 1249
La. App. 1 Cir, 12/ 30120), 317 So. 3d 715, 751- 52. Three factors have evolved in
order to determine whether an activity is ultrahazardous: ( 1) the activity must relate
to land or some other immovable; ( 2) the activity itself must cause the injury, and
the defendant must be engaged directly in the injury -producing activity; and ( 3) the
1
activity must not require substandard conduct to cause injury. Id. An activity is
ultrahazardous if all three factors are present. See Sandbom v. BASF Wyandotte,
Corp., 95- 0335 ( La. App. 1 Cir. 4/ 30/ 96), 674 So. 2d 349, 354. As to the first factor,
that the activity must relate to land or some other immovable, the summary judgment
evidence shows that the crane workers' demolition project did not relate to land or
an immovable. Also, as to the third factor, the activity in question would require
substandard conduct to cause injury. Therefore, we find that the activity in question
was not ultrahazardous. The second exception for a general contractor' s non -
liability for an independent contractor is when the principal reserves the right to
supervise or control the work of the independent contractor. Triplette v. Exxon
Corp., 554 So. 2d 1361, 1363 ( La. App. 1 Cir. 1989). It is not the supervision and
control that is actually exercised that is significant, but it is the right to exercise it
that is of primary concern in determining whether a principal may be held liable for
the torts of an independent contractor. Id.DISCUSSION
In this case, United Bulk as the mover on the motion for summary judgment
would not bear the burden of establishing negligence at trial; therefore, its burden
on summary judgment was to establish that there were no genuine issues of material
fact and that it was entitled to judgment as a matter of law. See La. C. C. P. art.
966( D)( 1). We must determine whether United Bulk met its burden on the motion
for summary judgment and whether LSE/IC and Mitsui showed there were genuine
issues of fact that preclude the granting of summary judgment.
For the trial court to find that United Bulk was negligent in hiring Kendrick,
it had to find that Kendrick was negligent. The parties did not argue that the
independent contractors were not competent or qualified to perform the work for the
demolition project. In the companion appeal, this court addressed the issue of
Kendrick' s negligence on its motion for summary judgment seeking dismissal from
12
this suit. Lafayette Steel Erector I, So. 3d at . This court affirmed the
court' s dismissal of Kendrick from the suit because LSE, Low Land, and Mitsui
could not establish that there were genuine issues of fact concerning the duty or the
cause -in -fact element of their negligence claim against Kendrick. Id. Kendrick as
the general contractor for the demolition project could not be held liable for the
alleged acts or omissions of the independent contractors, LSE, Low Land, and LDH,
and its employees, Jason Guidry, Jason Robichaux, and David Hernandez. Id. This
court determined that the evidence submitted in support of the summary judgment
motion established that neither exception to the general rule that principals are not
liable for the acts of independent contractors applied because the evidence
established that the demolition project was not ultrahazardous and that Kendrick did
not exercise any type of control over the independent contractors. Id. More
specifically, this court reviewed the summary judgment evidence, stating:
The testimonies of the two crane operators and cutter, who were
not employees of Kendrick, reveal that the crane workers solely
determined how to cut and rig for the demolition project and that they
did not need or want any directives from Kendrick. Specifically, on the
day of the accident, the record establishes that the two crane operators
and cutter unilaterally decided to change the plan on how to proceed
with the demolition project, without Kendrick' s knowledge, thereby
causing the accident.
Id.Because this court has upheld the trial court' s finding that Kendrick was not
negligent and therefore was not negligent in causing the accident in Lafayette Steel
Erector I, United Bulk cannot be found to have negligently hired Kendrick as
Kendrick was not an " irresponsible independent contractor." 11 Without any fault on
11 In this case, since this court upheld the trial court' s finding that Kendrick was not negligent in
Lafayette Steel Erector I, this court need not consider any knowledge United Bulk had regarding
Kendrick when it hired Kendrick. Unlike this case, in the cases discussed earlier where the courts
considered negligent hiring claims and the knowledge the general contractor had when hiring the
independent contractor, there were no prior determinations that the contractor was not negligent.
Certified Cleaning & Restoration, Inc., 67 So. 3d at 1282; Perkins, 671 So.2d at 1040; Gnillory,
521 So. 2d at 1224- 25; Hemphill, 472 So. 2d at 324- 25; Evans, 194 So. 2d at 767. If the
independent contractor is found to have no negligence or fault, and therefore, is not an
irresponsible independent contractor, there can be no valid negligent hiring claim against the
principal.
13
the part of Kendrick, there can be no cause -in -fact or legal cause as the basis of any
claim against United Bulk. Additionally, for the reasons given in this court' s
companion appeal, the exceptions to the general rule that principals are not liable for
the acts of independent contractors do not apply to LSE/ IC' s and Mitsui' s claims
against United Bulk. More specifically, as set forth in Lafayette Steel Erector I,
Kendrick did not exercise any control over the independent contractors it hired on
the date of the accident as to how to cut and rig the demolition project. Likewise,
United Bulk as the owner did not exercise any control over Kendrick or the
subcontractors on the demolition project, nor did it assume any duty of supervision
and oversight. The summary judgment evidence discussed above shows that the
crane operators and cutter controlled the work, not United Bulk, particularly on the
date of the incident. Accordingly, on our de novo review, we find that the trial court
did not err in granting summary judgment in favor of United Bulk and dismissing
the claims of LSE and Mitsui with prejudice.
CONCLUSION
For the foregoing reasons, the April 6, 2022 trial court judgment granting the
motion for summary judgment filed by United Bulk Terminals Davant, LLC and
dismissing with prejudice the claims of Lafayette Steel Erector, Inc., d/ b/ a LSE
Crane and Transportation, IC Rigging, LLC, and Mitsui Sumitomo Insurance
Company of America against United Bulk Terminals Davant, LLC, is affirmed. All
costs of this appeal are assessed to Lafayette Steel Erector, Inc., d/ b/ a LSE Crane
and Transportation and Mitsui Sumitomo Insurance Company of America.
AFFIRMED.
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