Evans v. Boh Bros Const Co

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-60081
_____________________
DAVID L. EVANS,
Plaintiff-Appellant,
versus
NATIONAL UNION FIRE INSURANCE COMPANY, Etc.; ET AL,
Defendants.
BOH BROTHERS CONSTRUCTION COMPANY,
Defendant-Cross Defendant-Appellee.
MISSISSIPPI DEPARTMENT OF TRANSPORTATION,
Defendant-Cross Claimant-Appellee-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CV-146-GR
_________________________________________________________________
December 13, 2002
Before KING, Chief Judge, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
David Evans (“Evans”) appeals the grant of summary judgment in
favor of defendants on his negligence claims, and the Mississippi
Department of Transportation (“MDOT”) appeals the grant of summary
judgment in favor of Boh Brothers Construction Company (“Boh
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Brothers”) on its cross claim for indemnification. For the
following reasons, we affirm the judgment of the district court.
I.
When portions of the left lane of I-10 in Harrison County,
Mississippi were damaged by a third party’s gas pipeline drilling,
MDOT hired Boh Brothers to do the necessary repair construction
work. During the project, Boh Brothers set up safety devices to
warn passing motorists of the construction. These devices included
concrete barriers, an arrow signboard, several orange
channelization barrels, ten warning signs, reflectors on one of the
concrete barriers and reflective tape.
On July 14, 1999, at approximately 4:30 a.m., plaintiff Evans
struck a concrete barrier at the construction site on I-10.
Accident reports indicate that the illuminated signal arrow board
was not working and two orange channelization barrels were not in
place. His accident was the second of three that occurred at the
same location within a forty-five minute period.
Evans filed a negligence action against Boh Brothers, its
insurer and MDOT. MDOT filed a cross-claim against Boh Brothers
for indemnification.
II.
We review a district court’s grant of summary judgment de
novo, applying the same standards as the district court. Consumers
County Mut. Ins. Co. v. P.W. & Sons Trucking Co., 307 F.3d 362, 365
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(5th Cir. 2002). Summary judgment is appropriate when, viewing the
evidence in the light most favorable to the non-moving party, the
record reflects that no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Id.III.
In this diversity case, we apply the law of Mississippi.
Under Mississippi law, a defendant is not liable for a dangerous
condition unless he has actual or constructive knowledge of that
condition. Jackson v. Locklar, 431 So.2d 475, 479-80 (Miss. 1983).
Evans does not dispute that neither MDOT nor Boh Brothers had
actual notice of the missing barrels and the malfunctioning arrow.
Instead, he argues that MDOT and Boh Brothers had constructive
knowledge. “Constructive knowledge is established by proof that
the condition existed for such a length of time that, in the
exercise of reasonable care, the proprietor should have known of
it.” Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285
(Miss. 1986). A plaintiff’s inability to negate the possibility
that the dangerous condition arose minutes before the accident is
fatal to his case. Id. at 286; Aultman v. Delchamps, Inc., 202 So.
2d 922 (Miss. 1967). Evans proffered no evidence as to when the
arrow malfunctioned and when the barrels were knocked over.
Nothing he presents negates the possibility that these conditions
arose minutes before his accident. Viewing the evidence in the
light most favorable to Evans, he cannot prove that the conditions
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existed long enough for the defendants to have discovered them.
Because Evans cannot establish that either Boh Brothers or MDOT had
actual or constructive notice of the dangerous condition, the
district court correctly granted summary judgment in favor of all
defendants.
IV.
Because we hold that neither Boh Brothers nor MDOT is liable
in this case, the only question remaining is whether MDOT is
entitled to indemnification from Boh Brothers for attorney’s fees
and the costs of this lawsuit.
The contract between MDOT and Boh Brothers for this project
contains a provision that Boh Brothers will indemnify MDOT “from
all suits, actions or claims of any character brought because of
injuries or damages received or sustained by person(s) or property
resulting from his operations....” This provision is the standard
indemnification provision in the Mississippi Standard Specification
for Road and Bridge Construction § 107.14.1. It does not require
that Boh Brothers indemnify MDOT for MDOT’s own negligence, as any
provision doing so would be void under Mississippi law. Miss. Code
Ann. § 31-5-41 (1972). What it does is provide indemnification
from “all suits, actions or claims” that arise from the actions or
negligence of Boh Brothers in performing the contract.
MDOT asserts the indemnification provision described above
includes an obligation to indemnify MDOT from costs and attorney’s
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fees in this case. MDOT cannot recover costs and fees related to
establishing its right to indemnification. Celotex Corp. v.
Bucknell Construction, Inc., 325 So.2d 566 (Miss. 1976). The costs
and fees at issue here are not recoverable as part of a damage
award, nor is there any finding that Boh Brothers’ negligence
caused this action. Id. The costs and fees in issue arose from
defending what turned out to be a groundless suit. Had the
contract between MDOT and Boh Brothers expressly included costs and
fees in the indemnification provision, then indemnification would
extend to costs and fees arising from groundless suits. Blain v.
Sam Finley, Inc., 226 So.2d 742, 745 (Miss. 1969). However, there
is nothing in the contract between MDOT and Boh Brothers that
requires Boh Brothers to indemnify MDOT for costs and attorney’s
fees. Because the contract between MDOT and Boh Brothers does not
contain the requisite particularity with respect to indemnification
for costs and attorney’s fees, the district court correctly granted
summary judgment in favor of Boh Brothers on MDOT’s indemnification
claim.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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