AFC, Inc. et al v. Mathes Brierre Architects

Filing 30

ORDER AND REASONS re 13 Motion for Summary Judgment - IT IS ORDERED that the motion for summary judgment is GRANTED IN PART. Plaintiffs' contribution claim is DISMISSED WITH PREJUDICE. The remainder of the summary judgment motion is DENIED. Signed by Judge Lance M Africk on 4/27/2017. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AFC, INC. ET AL.

CIVIL ACTION

VERSUS

No. 16-16560

MATHES BRIERRE ARCHITECTS

SECTION I

ORDER AND REASONS
Defendant Mathes Brierre Architects moves 1 for summary judgment on the
ground that plaintiffs, AFC, Inc., Ernest Ladner, and Vonnie Ladner, have neither a
contribution nor an indemnity claim against Mathes Brierre.

For the following

reasons, the motion is granted in part and denied in part.
I.
Defendant Mathes Brierre was the architect for the Boomtown Casino in
Harvey; plaintiff AFC was a subcontractor. (Plaintiffs Ernest and Vonnie Ladner are
the principals of AFC).

Alleged construction defects resulted in an arbitration

proceeding between the contractor of the Boomtown project and the plaintiffs here.
The arbitration ended after the plaintiffs paid the Boomtown contractor to settle the
arbitration.
Plaintiffs, alleging that the construction defects were solely due to the fault of
Mathes Brierre, then filed the present lawsuit seeking contribution and/or indemnity
from Mathes Brierre. Mathes Brierre now moves for summary judgment.

1

R. Doc. No. 13.

II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment
need not produce evidence negating the existence of material fact, but need only point
out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn
Co., 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied
by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a

2

genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
III.
AFC’s complaint raises both a contribution claim and a legal indemnity claim.
R. Doc. No. 2, at 10 ¶ 33. 2
The contribution claim fails.

“[C]ontribution applies only when joint

tortfeasors are solidarily liable.” Solstice Oil & Gas I LLC v. OBES Inc., No. 12-2417,
2014 WL 5500685, at *4 (E.D. La. 2014). Since 1996, solidary liability only exists in
Louisiana for intentional tort claims. Id. Plaintiffs do not raise intentional tort
claims. Thus, summary judgment is proper on the contribution claim. Id.
That leaves the Louisiana law legal indemnity claim. (There is no contractual
indemnity claim). “A claim for legal indemnity arises only where the liability of the
person seeking indemnification is solely constructive or derivative and only against
one who, because of his act, has caused such constructive liability to be imposed.”
Martco Ltd. P’ship v. Bruks Inc., 430 F. App’x 332, 335 (5th Cir. 2011). “Accordingly,
a party who is actually negligent or actually at fault cannot recover legal indemnity.”
Id. (internal quotation marks and alterations omitted).

The Court does not read plaintiffs’ complaint to assert an independent negligence
claim. Rather, plaintiffs’ discussion of negligence occurs in the context of the
indemnity claim. Therefore, the Court does not address the arguments regarding the
propriety of an independent negligence claim.
2

3

Because plaintiffs timely filed their indemnity claim within one year of the
settlement 3 with the contractor, see Reggio v. E.T.I., 15 So. 951, 957-58 (La. 2008),
the viability of the indemnity claim turns on whether Mathes Brierre was solely at
fault for the construction defects.

Plaintiffs have submitted testimony that, if

credited, indicates as much. See, e.g., R. Doc. No. 15-1, at 1-8. 4 Therefore, summary
judgment on the indemnity claim is inappropriate.
IV.
Accordingly,
IT IS ORDERED that the motion for summary judgment is GRANTED IN
PART. Plaintiffs’ contribution claim is DISMISSED WITH PREJUDICE. The
remainder of the summary judgment motion is DENIED.
New Orleans, Louisiana, April 27, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
Mathes Brierre argues that a settling party cannot bring an indemnity claim. Such
an argument, however, is inconsistent with Louisiana law. In Reggio, the Louisiana
Supreme Court held that the prescriptive period on an indemnity claim “does not
commence . . . until a party has sustained a loss, either through payment, settlement,
or an enforceable judgment.” 15 So. at 957-58 (emphasis added). That holding
necessarily presupposes that a settling party may bring an indemnity claim.
4 Defendant argues that the Court should not consider any of the affidavits attached
to plaintiffs’ opposition because the affidavits contain inadmissible hearsay. But the
defendant does not actually specify the hearsay statements to which it is objecting.
Therefore, the Court deems the argument waived due to a failure to sufficiently brief
the issue. Nonetheless, even when the Court discounts the statements from the
affidavits that might potentially be hearsay, the Court remains convinced that the
affidavits—if credited by the finder of fact—provide a basis for a determination that
there was no negligence by the plaintiffs.
3

4