Operator Error: Understand Your Insurance Coverage

The plaintiff Bernadette Rubin (the “customer”) was allegedly injured in a slip-and-fall accident at a Super 1 Foods grocery store owned by Brookshire Grocery Company. The store was built by Ridgemont, a general contractor, pursuant to a construction contract between Brookshire and Ridgemont. In the lawsuit initiated by the customer against the store owner, the store owner filed a third party complaint against the general contractor and its liability insurer, Amerisure, alleging: (1) the contractor owed the store owner tort contribution because the contractor was at fault; (2) the contractor contractually agreed to indemnify and procure insurance coverage for the store owner; and (3) the store owner was entitled to insurance coverage under the Amerisure policy issued to the contractor. In response, the contractor and its insurer filed a motion for summary judgment seeking dismissal of the claims filed by the store owner on the following grounds: (1) any contractual indemnification obligation owed by the contractor to the store owner was null and void under Louisiana law; and (2) the store owner was not an insured under the insurance policy issued to the contractor.

 In considering the summary judgment arguments, the court first noted that as the store owner did not argue it was a named insured under the policy, the question becomes whether the owner was an additional insured under the policy. On that issue, the store owner argued that under the relevant provision of the policy—the Contractor’s Blanket Additional Insured Endorsement—it was an additional insured under the policy. The court, however, noted that the building contract only required the general contractor to purchase and maintain “completed operations” coverage, noting that the Endorsement makes clear that the policy expressly limits coverage for an additional insured to “liability arising out of . . . your ongoing operations, unless the written contract or written agreement also requires completed operations coverage (or writing to the same effect), in which case the coverage provided shall extend to your completed operations for that additional insured.” The court further noted that pursuant to the contract, the contractor was only required to include the store owner as an additional insured under the Amerisure policy from the “date of commencement until date of final acceptance.” And, the contractor was only required to purchase insurance to protect the contractor from claims for damages because of bodily injury “which may arise out of or result from the contractor’s operations under the contract.” Although the contract did not define “operations,” the Court interpreted the term to mean actual operations, or work of the contractor while the grocery store was being constructed, and found that the contract did not require insurance for damages arising out of the result of completed operations, particularly as the policy defines the term. Accordingly, the court held that the store owner was not an additional insured under the policy after the construction of the store was completed, which was when the customer was allegedly injured in a slip-and–fall accident on the premises, and thus there was no coverage under the contractor’s insurance policy.

Take-Away: It is of the utmost importance that premise owners fully understand the scope and nature of any insurance coverage they may have, or not have, to ensure they are properly protected against any risk or loss.

This article was co-authored by Edie Cagnolatti, counsel at Irwin Fritchie Urquhart & Moore LLC. 

Homebuilders Association Responsible for Fall During Parade of Homes Tour

In June 2008, Tammy Todd and her husband toured a home that was featured in the annual Bossier City Parade of Homes Tour, a collection of open houses showcasing newly constructed homes that was sponsored and promoted by the Home Builders Association of Northwest Louisiana (“HBA”). After viewing a room over the garage, Mrs. Todd allegedly fell at the bottom of a flight of stairs leading back to the garage and injured herself. She and her husband filed suit against the builder, his company, and his insurer as well as the HBA and its insurer (Louisiana is a direct action state). Plaintiffs alleged that the threshold where Mrs. Todd fell was unfinished and that this condition caused her to catch her foot or lose her balance.   They further alleged that the builder and the HBA were negligent in allowing her access to an unfinished and unsafe area of the house, failing to warn of the unsafe area, and failing to properly supervise the open house.

The HBA and its insurer filed a peremptory exception of no cause of action asserting that the plaintiffs failed to state a claim against the HBA under Louisiana Civil Code Article 2317.1 (pdf), which governs the liability of the owner or custodian of a thing for damage caused by ruin, vice, or defect in things. The plaintiffs responded by claiming that they had alleged sufficient facts in a “straightforwardArticle 2315 (pdf) action with a duty-risk analysis.” Civil Code Art. 2315 is Louisiana’s general negligence provision. The trial court sustained the exception and dismissed the claims against the HBA without prejudice but allowed the plaintiffs 15 days to replead their claim. They did so, alleging that the HBA had control over each of the houses included in the tour, that the HBA’s advertising informed invitees that it had inspected each house and found that it met HBA standards, and that the HBA, as a sponsor of the Parade of Homes, had a duty to protect invitees from any unreasonable risk of harm from a defective condition and to inspect the premises where plaintiff was injured.

The HBA and its insurer filed a motion for summary judgment arguing that the premises liability claims against them should be dismissed with prejudice because the HBA neither (1) created the alleged dangerous condition nor (2) owned, leased, possessed, or otherwise maintained custody or control of the premises where Mrs. Todd was injured. They also argued that the negligence claim against them should be dismissed. In its opinion, the Louisiana Second Circuit Court of Appeal agreed there was no lease to which the HBA was a party and that the HBA did not have possession or garde of the house. However, it found that the HBA was a sponsor that organized and advertised an event in which it “enticed invitees to view newly constructed houses for a fee.” Because the HBA was a sponsor soliciting patrons to a potentially defective setting, it had a duty to exercise reasonable care for the safety of its patrons.  That duty arose under Article 2315. The Second Circuit reversed the trial court’s granting of summary judgment in favor of HBA and its insurer, finding that whether the HBA breached its duty is a question of fact.

Take-Away: A party who does not own, lease, or have custody or control over a premises may nevertheless, in limited circumstances, potentially be responsible for injury at the premises under a negligence cause of action.

Inspector Has Fallen, and He Can't Recover (from Building Owner and Contractor)

John Sasser, a building inspector, fell while ascending temporary stairs that had detached from a building he was inspecting. The stairs were constructed by a subcontractor for use while the building was under construction. Sasser and his wife sued the owner of the building, the general contractor, the subcontractor, and the insurers for the contractors.

The building owner had hired the general contractor to manage the construction, and the general contractor had hired the subcontractor who constructed the temporary stairs. Pursuant to the construction contract, the building owner agreed to personally perform some of the construction work, but none of his tasks included erecting temporary stairs.

The court dismissed the plaintiff’s claims against both the building owner and the subcontractor because they could not meet their burden of proof against them under Louisiana law. Specifically, the plaintiffs could not show (1) that the owner exercised operational control over the subcontractor’s construction of the stairs, and (2) that the general contractor controlled or supervised the subcontractor’s construction of the stairs.

In Louisiana, a building owner is only held liable for injuries sustained because of ruin, vice or defect of the building if the plaintiff can show that the owner knew or, in the exercise of reasonable care, should have known of the vice or defect that caused the plaintiff’s injury, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise reasonable care. If, however, that building is under construction, a different set of rules applies. In that instance, the owner will only be held liable if it is shown that he exercises operational control over the methods of operation or if he gives express or implied authorization for unsafe practices.

In this case, the plaintiffs failed to meet their burden of proving that the owner exercised operational control over the subcontractor’s construction of faulty stairs. The owner did not hire the subcontractor, did not supply the subcontractor with tools, and did not instruct or otherwise supervise the subcontractor in his construction of the temporary stairs. Consequently, he did not exercise operational control over the construction of the stairs, and thus, could not be held liable for plaintiff’s injuries.

Concerning plaintiffs’ claim against the contractor, Louisiana law affords only two circumstances in which a general contractor can be held liable for the offenses of a subcontractor in the performance of his contractual duties. They are: (1) if the subcontractor is performing ultra-hazardous work, or (2) if the contractor reserves the right to supervise or control the subcontractor’s work or otherwise gives express or implied authorization for unsafe practices. Here, the erection of temporary stairs is not ultra-hazardous work. Moreover, the subcontractor and his employees were not supervised by the contractor, and the contractor did not provide them supplies. Additionally, the subcontractor maintained his own liability insurance to cover his employees’ work. Thus, the plaintiffs failed to meet their burden of proving that the contractor supervised or controlled the workmanship of the subcontractor.

Take-Away: Be mindful that claims against a building owner for alleged injuries occurring while a building is under construction will be governed by different legal standards than the more common claims for injuries allegedly sustained because of the ruin, vice, or defect of an existing building.

This article was co-authored by Lizzi Richard, an associate at Irwin Fritchie Urquhart & Moore LLC.

Objection to Form: Compound Jury Interrogatory Voids Jury Verdicts and Results in Case Being Decided by Appellate Court

In Bourque v. Essex Insurance Company, Patricia Bourque brought a negligence suit against a contractor who remodeled her home, alleging that she was injured by a light fixture that fell from the ceiling onto her head, neck, low back, and shoulder. The contractor, Donald Lack, had installed the fixture approximately four months prior to the accident. Ms. Bourque claimed that Mr. Lack installed the fixture incorrectly and that this incorrect installation caused her accident and resulting injuries. There were two jury trials, and both juries only answered the following interrogatory:

“Do you find, by a preponderance of the evidence, that an accident occurred on or about August 19, 2002, injuring the plaintiff, Patricia Bourque?” 

Both juries selected the answer “no.” 

On appeal, the Louisiana Third Circuit found that this interrogatory asked the jurors two questions at once: whether an accident occurred at all, and if so, whether Ms. Bourque was injured in that accident. The court found that the answer “no” could have indicated the jury’s finding that an accident occurred but did not injure Ms. Bourque, or that no accident occurred at all. This made it impossible for the court to determine whether nine jurors concurred on any finding of fact, and thus whether either jury actually reached a verdict. The court found that this jury instruction was “plain and fundamental error,” and it decided to conduct a de novo review and render judgment on the record instead of remanding the case for a third jury trial.

The court made two preliminary findings of fact: First, that Ms. Bourque had carried her burden to prove that an accident occurred; and second, a finding regarding the way in which Mr. Lack installed the light fixture. Regarding the first finding, the court reasoned that the record showed that Bourque’s testimony was credible and that her witnesses were not interested parties to the litigation. With respect to the second finding of fact, Mr. Lack offered uncorroborated testimony that the spring-loaded toggle bolts he used to install the fixture snapped into place properly upon installation. Despite this testimony, the court reasoned that both the plaintiff’s pictures, and the expert testimony about the type of holes the falling fixture left behind, proved otherwise. For that reason, the court found that the toggle bolts did not snap into place properly when Mr. Lack installed the fixture.

To determine whether to impose liability against Mr. Lack, the Third Circuit analyzed four elements as part of a duty-risk analysis: (1) Whether Mr. Lack’s conduct was a cause-in-fact (a substantial factor) in bringing about the harm to Ms. Bourque; (2) Whether Mr. Lack owed a duty to Ms. Bourque; (3) Whether Mr. Lack breached that duty; and (4) Whether the risk and the harm caused were within the scope of the protection afforded by the duty breached.

With respect to the first element, it was undisputed that the toggle bolts not snapping into place was a cause-in-fact of the fixture falling and of Ms. Bourque’s injuries, if any injuries occurred. Regarding the second element, the court reasoned that pursuant to Article 2769 (pdf) of the Louisiana Civil Code, Mr. Lack, as a contractor, had a duty to Ms. Bourque to properly install the fixture. With respect to the third element, the court found, based on all expert and lay testimony, that Mr. Lack had employed an improper installation method for the toggle bolts and that this constituted a breach of his duty to Ms. Bourque. Regarding the fourth element, the court noted that according to the record, the purpose of toggle bolts is to keep a fixture affixed to the ceiling. Therefore, the court found that Ms. Bourque’s injuries from a falling fixture were within the scope of Mr. Lack’s duty to properly install the fixture.

The court then sought to determine what injuries Ms. Bourque proved were caused by the falling fixture. Based on the evidence in the record, the court found that Ms. Bourque had established that the accident caused severe and constant headaches, neck pain and one associated surgery, low back pain and two associated surgeries, and shoulder pain and one associated surgery. The court also found that Ms. Bourque was entitled to recover for the cost of her medical bills, her inability to work, her past and future wages and benefits, future medical costs, pain and suffering, and loss of enjoyment of life. While Ms. Bourque suffered from preexisting degenerative disc disease, the court found that she was asymptomatic prior to the accident, and so she could recover for any aggravation of her preexisting condition that the accident caused. The total of these damage awards amounted to $1,202,689.78.

Two dissenting judges found that the court should not have conducted a de novo review because the jury interrogatory was not so confusing as to constitute “plain and fundamental error” that prevented the court from understanding the juries’ intentions. Additionally, the dissenting judges expressed concern that the plaintiff never objected to the interrogatory in either trial and did not include the interrogatory in her assignments of error in her appellant’s brief. In fact, it appeared that the plaintiff may have submitted the interrogatory herself.

Take-Away: Attorneys should ensure that jury interrogatories are clear and unambiguous so that they don’t form the basis of a reversal on appeal and potentially result in an appellate court, not a jury, deciding the case.

This article was co-authored by Mirais Holden, a summer associate at Irwin Fritchie Urquhart & Moore LLC.

Plaintiff Stumbles on Stairs and Summary Judgment Burden

In Fowler v. Harris Builders, LLC, the plaintiff sued Shaw Environmental, Inc. (FEMA’s contractor), Harris Builders, LLC (Shaw’s subcontractor), and Gibbs Construction, LLC (Harris’ subcontractor) for injuries sustained after the plaintiff fell off the fold down steps of a FEMA trailer.   The plaintiff alleged that the defendants were negligent in not erecting wooden steps in place of the metal fold down steps when the FEMA trailer was installed. In the lower court the defendants moved for summary judgment, which the trial court granted. The plaintiff appealed.

The appellate court affirmed the trial court’s decision as plaintiff’s evidence in opposition was insufficient to withstand summary judgment.   The court observed that defendants moved for summary judgment on the basis that they had complied with La. R.S. 9:2771 (pdf). La. R.S. 9:2771 provides that contractors are not liable for damages as a result of any defect in the contractors’ work as long as the work is done in accordance with plans or specifications furnished to them and the defect was due to fault or insufficiency in the plans or specifications.  In support of their motions for summary judgment, defendants cited to FEMA’s travel trailer installation specifications, which had no requirement that wooden steps be installed, and FEMA’s “Ready for Occupancy” checklist, which indicated that fold out or wood stairs were installation options.  

In its reasoning, the appellate court stated that for the plaintiff to prevail she would have to demonstrate that the defendants did not perform the installation according to the specifications provided to them. The court first noted that the plaintiff pointed to specifications for the installation of “manufactured homes,” a type of housing unit which is distinct from the travel trailer, and thus these specifications were inapplicable to the instant matter. Next, the court noted that plaintiff’s presentation of photographs of various neighbors’ travel trailers with wooden steps, without citing to an actual local code or ordinance, was insufficient evidence that the installation of wooden steps was a specification furnished to defendants.   Therefore, the appellate court determined that the plaintiff would not be able to establish an essential element of her claim—that defendants failed to follow the plans and specifications provided to them in the installation.

On appeal, the plaintiff also urged that the trial court’s entering of summary judgment on the matter was error, as discovery was not complete and an issue remained over which entity actually placed the trailer on-site. The appellate court noted that, while under La. C.C.P. art. 966 (pdf), summary judgment is only appropriate when “adequate discovery” has been performed, the trial court does not abuse its discretion when it grants summary judgment before discovery is complete. Thus, because the plaintiff had not requested that the trial court reset her motion to compel and because almost two years had been allowed for discovery, the trial court did not abuse its discretion when it granted defendants’ motions for summary judgment before discovery was complete. Furthermore, the appellate court found that the issue of which entity placed the trailer on-site was immaterial to the dispute as there was no question that both Shaw and Harris were responsible for the installation, and the court had already determined that plaintiff could not demonstrate the trailer was improperly installed.

Take-Away:  Under Louisiana’s Contractor Liability Statute, La. R.S. 9:2771, summary judgment will be granted to a contractor when the plaintiff is unable to establish that the contractor failed to follow the plans and specifications provided to him. 

This article was co-authored by Erin Bambrick, a summer associate at Irwin Fritchie Urquhart & Moore LLC

"Pop" Goes The Sprinkler Head - And The Plaintiff's Case

 

Over two years after Hibernia National Bank opened a branch in New Orleans East in 1996, Esther Lingoni tripped over a landscape sprinkler head located at the intersection of two sidewalks and was injured. Ms. Ligoni sued Hibernia and its insurer, St. Paul Fire and Marine Insurance Company, its architect for the project, Sizeler Architects, Inc. (Sizeler), the project landscape architect, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), the general contractor, Shamrock Construction Co., Inc. (Shamrock), and the landscape contractor, Paradise Gardens Landscaping, Inc. (Paradise). Ms. Ligoni argued that the defendants were liable to her because the sprinkler head was located too close to the sidewalk and posed an unreasonable risk of harm. Ms. Ligoni settled with Hibernia and its insurer. The other defendants moved for summary judgment under Louisiana Code of Civil Procedure article 966 (pdf)

The design professionals, Sizeler and Daly-Sublette, argued that Ms. Ligoni did not have an expert who would testify regarding the professional standards of architects or landscape architects. Therefore, she did not have any evidence that they breached a duty owed to Ms. Ligoni. Additionally, they argued that her only expert was a safety expert whose only document was that her trip and fall was probably caused by a defective sprinkler “pop-up head” that was in the up position when the accident occurred. 

For their part, the contractors, Shamrock and Paradise, argued they were immune from liability under Louisiana Revised Statute 9§2771 (pdf) because they followed plans and specifications provided to them by a third-party. Under that statute, a contractor cannot be liable for damage or destruction caused by following plans and specifications provided to it by a third-party. A contractor, however, may not be shielded from liability if the plans and specifications are obviously defective and a reasonable contractor would know that following the plans and specifications would result in an unsafe or substandard condition. The trial court granted the motions and dismissed Ms. Ligoni’s claims.

On appeal, Ms. Ligoni argued that the trial court erred in granting summary judgment because a genuine issue of material fact existed regarding whether the plans and specifications were properly prepared and whether the installation of the sprinkler system was in compliance with the plans and specifications. Additionally, Ms. Ligoni argued that expert testimony was not required in a case where common sense would dictate whether the sprinkler head was too close to the sidewalk and presented a tripping hazard. 

In affirming the dismissal, the appellate court noted that both of the contractors presented evidence that neither of them played any part in the preparation of the plans and specifications for the project and that they each had complied with the plans and specifications provided to them.  Moreover, there was no evidence that the plans and specifications were defective or that compliance with them created a dangerous condition. In addition, because the accident occurred two years after installation, after project approval, after the expiration of project warranties, and while another company was maintaining the premises, there was no evidence that the condition that allegedly caused the accident was the same that existed when the project was completed. Therefore, the district court did not err in finding that the contractor defendants met their burden or persuasion and that the plaintiff did not present evidence to rebut the strong showing made by them. 

As to the design professionals, Sizeler and Daley-Sublette, the appellate court also affirmed the summary judgment as to them, because Ms. Ligoni had no evidence that either of them had breached a professional duty or that their services fell below the local standard of care for similar professionals. Critically, the appellate court agreed with the district court that she failed to present credible evidence in support of her case. In fact, her own expert was of the opinion that her accident was, more likely than not, caused by a defective or broken sprinkler head that was in the up position. Her expert, although not a design professional, did not suggest that the location of the sprinkler was improper or that the location was the cause the accident. Accordingly, the appellate court found no error in the district court’s ruling.

Take-Away: Contractors may be shielded from liability for slip and fall claims when they follow plans and specifications provided to them by a third party and the plans and specifications themselves are not obviously defective or a contractor should know that strict adherence would create an unreasonably dangerous condition.