Daniel Bennett v. DECO Energy Services, LLC, Federated Rural Electric Insurance Exchange, Cox Communications, Inc., Cox Communications Louisiana, LLA and Cable Man, Inc. ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DANIEL BENNETT NO. 2023 CW 0581
VERSUS
DEMCO ENERGY SERVICES, LLC, SEPTEMBER 11, 2023
FEDERATED RURAL ELECTRIC
INSURANCE EXCHANGE, COX
COMMUNICATIONS, INC., COX
COMMUNICATIONS LOUISIANA,
LLC, AND CABLE MAN, INC.
In Re: Cable Man, Inc. , applying for supervisory writs, 19th
Judicial District Court, Parish of East Baton Rouge,
No. 724647.
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
WRIT GRANTED. The trial court's June 12, 2023 judgment,
which denied the Exception of Prematurity, which was by cross
claim defendant, Cable Man, Inc., is reversed. Cross claim
plaintiff, Cox Communications Louisiana, LLC (" Cox"), filed a
Cross Claim against Cable Man, asserting it owed indemnity and a
defense to Cox pursuant to the terms of a Master Construction
Agreement. However, it is well-established that claims for
indemnity, as well as claims for defense arising under an
indemnity agreement, are premature prior to a determination that
damages are actually owed and the indemnitee sustains a loss.
See Willis v. Frozen Water, Inc., 2015-0900 ( La. App. 1st Cir.
12/23/15), 2015 WL 9466625, * 3-4 ( unpublished), writ denied,
2016-0146 ( La. 3/14/16), 189 So.3d 1069 ( citing Suire v.
Lafayette City-Parish Consolidated Government, 2004-1459 ( La.
4/12/05), 907 So.2d 37, 51). At this time, the lawsuit is still
pending against both Cox and Cable Man, and no determination of
liability had been made; thus, there is no obligation for
indemnity and defense costs. See Willis, 2015 WL 9466625 at * 4.
Stated differently, indemnity ( or reimbursement) is not
available at this time because Cox has not discharged a
liability which Cable Man should have assumed or otherwise
suffered any loss or damages. See Id. Accordingly, Cox's cause
of action for indemnity and defense is not ripe for
adjudication. See Id. Therefore, the Exception of Prematurity
filed by Cable Man Inc. is granted, dismissing the Cross Claim
of Cox Communications Louisiana, LLC against Cable Man, Inc. for
defense and indemnity, without prejudice.
MRT
AHP
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COURT OF APPEAL, FIRST CIRCUIT
Ol.s""" O
DEPUTY CLE~ COURT
FOR THE COURT