Moreno v. Entergy Corp. , 9 La.App. 5 Cir. 976 ( 2010 )

MARC E. JOHNSON, Judge.

| aDefendants/Appellants, Entergy Louisiana, LLC, Stewart Interior Contractors, LLC, and Carl E. Woodward, LLC all appeal dismissals of cross-claims resulting from the granting of motions for summary judgments from the 24th Judicial District Court, Parish of Jefferson. For the following reasons, we affirm the trial court’s dismissals of the cross-claims filed by En-tergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC, vacate the portion of the judgments dismissing the cross-claims with prejudice, and amend the judgments to dismiss the cross-claims without prejudice.

FACTS AND PROCEDURAL HISTORY

In the aftermath of Hurricane Katrina, Carl E. Woodward, LLC (hereinafter “Woodward”), general contractor, entered into a construction contract with Eagle Enterprises of Jefferson, Inc., owner of Walgreens Shopping Center located at 7100 Veterans Memorial Boulevard, Me-tairie, Louisiana. Woodward subcontracted with Stewart Interior Contractors, LLC (hereinafter “Stewart”) to install framing and exterior sheetroek. In order to assist with the labor, Stewart ^entered into a “Temporary Labor Contract” subcontracting with Landaverde Construction, LLC (hereinafter “Landaverde”) for personnel to work with Stewart.

On January 5, 2006, while working at the Walgreens job site, Plaintiff, Daniel Moreno (hereinafter “Moreno”), was injured while atop a scaffolding that was too close to the power lines, which was located next to the fagade of the Walgreens store. As Moreno was climbing the scaffolding to warn his co-workers that they were too close to the overhead power lines, one of his co-workers contacted the adjacent overhead power lines with a piece of metal that Moreno was removing from the scaffolding. That contact ultimately resulted in severe injuries to Moreno.

On January 4, 2007, Moreno filed suit on against Entergy Louisiana, LLC (hereinafter “Entergy”), Eagle Enterprises of Jefferson, Inc., Lafayette Insurance Company, Walgreens Louisiana Company, Inc., the Parish of Jefferson, Woodward, and Stewart.¹ In his Petition for Damages, Moreno alleges that he received “a severe, painful and debilitating electrical shock from high voltage distribution/transmission power lines adjacent to the building ...” Moreno further alleges that he “caught on fire, sustained extreme pain, suffering, anguish, physical injury ...” among other injuries.

Stewart filed an answer to Moreno’s petition, a cross-claim against Landaverde, and a third-party demand against Landa-verde’s commercial liability insurer, Western World Insurance Company (hereinafter ‘Western World”). The third-party demand and cross-claim arouse out of a contractual indemnity clause found in the “Temporary Labor Contract” between Stewart and Landaverde.

Landaverde filed a motion for summary judgment seeking to dismiss Stewart’s cross-claim. The trial court granted Landaverde’s motion. Stewart filed |aa motion for new trial, and it too was denied by the trial court. Stewart is appealing the trial court’s final judgment dismissing its cross-claim demand against Landa-verde.

Western World filed a motion for summary judgment seeking to dismiss Stewart’s third-party demand filed against it. The trial court granted the motion. Stewart is also appealing the trial court’s final judgment dismissing its third-party demand against Western World.

Entergy answered Moreno’s petitions and filed third-party demands against Stewart, Landaverde and Woodward. En-tergy’s third-party demand alleged that the third-party defendants were liable to Entergy for indemnity, pursuant to the Louisiana Overhead Power Line Safety Act (“OPLSA”). Entergy also filed a motion for summary judgment alleging that Stewart violated the OPLSA. The trial court denied Entergy’s motion.

Landaverde filed separate a motion for summary judgment seeking to dismiss En-tergy’s cross-claim. At the July 8, 2009 hearing, the trial court granted Landa-verde’s motion for summary judgment and dismissed Entergy’s cross-claim against Landaverde with prejudice. At the same hearing, Stewart and Woodward orally filed motions for summary judgment citing the same reasoning as the one used by Landaverde. On August 27, 2009, Stewart filed a motion for summary judgment seeking to dismiss Entergy’s cross-claim.The trial court granted ■ Stewart’s motion and dismissed Entergy’s cross-claim against Stewart. On September 17, 2009, Woodward filed a motion for summary judgment seeking to dismiss Entergy’s cross-claim. The trial court granted the motion and dismissed Entergy’s cross-claim against Woodward with prejudice. Entergy is appealing the dismissals of the cross-claims against Landaverde, Stewart and Woodward.

|(At the July 8, 2009 hearing, the trial court continued Stewart’s motion for summary judgment, alleging it was Moreno’s statutory employer, against Moreno without date. Subsequently, Stewart re-filed its motion. The trial court granted Stewart’s motion for summary judgment finding that Moreno was a statutory employee of Stewart.

We will now address each appeal separately.

Entergy’s Appeal

On appeal, Entergy alleges that the trial court erred by granting the motions for summary judgment by disregarding the language of LSA-R.S. 45:144 of the OPL-SA, which provides that the owner of a high voltage overhead power line is entitled to recover all damages from “persons responsible” who violate the Act, and holding that Entergy was precluded, as a matter of law, from being fully indemnified by the “persons responsible” for violating the Act.

Entergy avers that the purpose of the OPLSA is to make the persons responsible for the violation economically responsible if they fail to provide the required advance notification, thereby depriving Entergy of the opportunity to inspect the proposed work site and institute appropriate safety measures. Entergy further avers that, pursuant LSA-R.S. 45:144 of the OPLSA, it is entitled to indemnity from the persons responsible of violating the Act of all damages incurred from the violation. Entergy contends that the only way to force a company to comply with the Act is to ensure that it is responsible for “all damages,” including the damages owed by the utility company, if the company fails to comply with the Act. As a result, Entergy alleges that the trial court erred in granting the motions for summary judgment and finding that Entergy was barred as a matter of law from seeking indemnity from Landaverde, Stewart and Woodward.

LSA-R.S. 45:144(A) of the OPLSA provides,

|7If a violation of this Chapter results in physical or electrical contact with any high voltage overhead line, the person violating this Chapter shall be liable to the owner or operator of the high voltage overhead line for all damages, costs, or expenses incurred by the owner or operator as a result of the contact.

Entergy’s cross-claims against Landa-verde, Stewart and Woodward are based upon the indemnity provision of LSA-R.S. 45:144(A). The trial court granted the motions for summary judgment by Landa-verde, Stewart and Woodward. The summary judgments dismissed Entergy’s cross-claims against Landaverde, Stewart and Woodward with prejudice on the basis that Entergy did not have indemnity rights pursuant to the OPLSA.

We agree with the dismissal of En-tergy’s cross-claims against Landaverde, Stewart and Woodward; however, we agree for a reason other than the one provided by the trial court. We conclude that the cross-claims of Entergy and the motions for summary judgment by Landa-verde, Stewart and Woodward were premature. No fault has been allocated to any party in the case, and no damages from Moreno’s action have been assessed against Entergy. No cause of action for indemnity has been incurred by Entergy at this phase in the matter. (See Toups v. Koch Gateway Pipeline, Inc., 04-223, p. 4 (La.App. 1 Cir. 4/24/05); 915 So.2d 811, 814, writ denied, 05-1392 (La.12/16/05); 917 So.2d 1109, quoting Kantlehner v. United States, 279 F.Supp. 122, 128 (E.D.N.Y.1967), where the court held, “[A] party’s right to either indemnity or contribution [is] derivative, and remains inchoate until the settlement or resolution of the primary action. The cause of action ... does not accrue until the payment has been made.”) (See also Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987), where the Louisiana Supreme Court held that a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid.)

[ Jn the interest of justice and judicial efficiency, we are upholding the dismissal of Entergy’s cross-claims on account of our own motion of no cause of action on the basis of prematurity.² (See Teche Financial Services, Inc. v. State, Dept. of Public Safety, 06-250, p.5 (La.App. 3 Cir. 9/27/06); 939 So.2d 650, 654, where the court found that appellate courts cannot supply an exception of prematurity on its own motion; however, it can supply the exception of no cause of action based upon prematurity grounds.) Nevertheless, we are vacating the portion of the trial court’s ruling dismissing Entergy’s cross-claims with prejudice. We amend the dismissal of Enter-gy’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Entergy in the event it is allocated fault.

Stewart’s Appeal

On appeal, Stewart alleges that the trial court erroneously granted the motion for summary judgment by Landaverde, which dismissed its cross-claim, because Stewart is entitled to seek indemnity from Landaverde pursuant to the “contract indemnity clause” in the Temporary Labor Contract because Landaverde’s employees were negligent in causing the accident. Additionally, Stewart alleges that the trial court erroneously granted Western World’s motion for summary judgment, which dismissed its third-party demand, because the Temporary Labor Contract between its insured, Landaverde, and Stewart is an “insured contract” under the terms of Western World’s insurance policy.

As with Entergy’s cross-claims, we also find that Stewart’s cross-claims against Landaverde and Western World were properly dismissed because they were premature. Additionally, we find that the granting of the motions for summary judgment filed by Landaverde and Western World were also premature. No fault has been allocated to any party in the case, and no damages from |3Moreno’s action have been assessed against Stewart. No cause of action for indemnity has been incurred by Stewart at this phase in the matter. See Toups v. Koch Gateway Pipeline, Inc. and Meloy v. Conoco, Inc., supra.

In the interest of justice and judicial efficiency, we are upholding the dismissal of Stewart’s cross-claim against Landa-verde and Western World on account of our own motion of no cause of action on the basis of prematurity.³ See Teche Financial Services, Inc. v. State Dept. of Public Saftey, supra. However, we are vacating the portion trial court’s ruling dismissing Stewart’s cross-claims with prejudice. We amend the dismissal of Stewart’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Stewart against Landa-verde and/or Western World, in the event it is allocated fault.

Woodward’s Appeal

Woodward argues that the trial court erroneously granted Landaverde’s motion for summary judgment, which dismissed Woodward’s cross-claim against Landaverde, because there are genuine issues of material fact remaining with respect to the question(s) pertaining to Landaverde’s obligation to indemnify Woodward. In its cross-claim against Landaverde, Woodward is seeking indemnification from Landaverde, pursuant to the Temporary Labor Contract executed between Stewart and Landaverde. As a result of the contractual provision in the Temporary Labor Contract, Woodward maintains that Landaverde owes it indemnification for those damages “arising or out of act(s), action(s), behavior and/or negligence, either solely, in concert or in part of LCI⁴ or its employees ...” Woodward notes in its brief that it is bringing this instant appeal out of an abundance of caution and in the event that this Court decides that indemnification |10is owed by Woodward to Entergy. Woodward also argues that the trial court erroneously granted Western World’s motion for summary judgment vis-a-vis the cross-claim by Woodward against Landeverde, and thus, the trial court erred in finding that no coverage is provided by Western World for any of the claims brought by Woodward against Landaverde.

As with Entergy’s cross-claims, we also find that Woodward’s cross-claims against Landaverde and Western World were properly dismissed because they were premature. Additionally, we find that the granting of the motions for summary judgment filed by Landaverde and Western World were also premature. No fault has been allocated to any party in the case, and no damages from Moreno’s action have been assessed against Woodward. No cause of action for indemnity has been incurred by Woodward at this phase in the matter. See Toups v. Koch Gateway Pipeline, Inc. and Meloy v. Conoco, Inc., supra.

In the interest of justice and judicial efficiency, we are upholding the dismissal of Woodward’s cross-claim against Landa-verde and Western World on account of our own motion of no cause of action on the basis of prematurity.⁵ See Teche Financial Services, Inc. v. State Dept. of Public Saftey, supra. However, we are vacating the portion trial court’s ruling dismissing Woodward’s cross-claims with prejudice. We amend the dismissal of Woodward’s cross-claims to be without prejudice, in order to allow an indemnity claim to be raised by Woodward against Landaverde and/or Western World, in the event it is allocated fault.

DECREE

For the foregoing reasons, the trial court’s dismissals of the cross-claims filed by Entergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC are affirmed. The portions of the judgments dismissing the ^cross-claims with prejudice are vacated, and the judgments are amended to dismiss the cross-claims without prejudice. Entergy Louisiana, Inc., Carl E. Woodward and Stewart Interior Contractors, LLC are to equally bear the costs of this appeal.

DISMISSALS AFFIRMED IN PART; AMENDED IN PART.

1 . Eagle Enterprises of Jefferson, Inc., Lafayette Insurance Company, Walgreens Louisiana Co., Inc., and the Parish of Jefferson were dismissed from the suit.

2 . Because we upholding the dismissal of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.

3 . Because we upholding the dismissals of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.

4 . LCI is the acronym for Landaverde Construction, Inc.

5 . Because we upholding the dismissals of the cross-claims on account of prematurity, the merits of the motions for summary judgment need not be addressed because they are pre-termitted.