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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 27 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 12th day of April, 2005 , are as follows:

BY CALOGERO, C.J. :

2004-C- 1459 C/W 2004-C- 1460 2004-C- 1466

DARRELL SUIRE v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, ET AL. (Parish of Lafayette) Having addressed all the parties' assignments of error, our disposition of this case is as follows: We reverse the court of appeal's grant of summary judgment to the plaintiff on the absolute liability claim involving the installation of metal sheeting. We reinstate the trial court's grant of summary judgment for the City and Boh Brothers on this claim. We reverse the court of appeal's judgment that, under the contractual indemnity provision, Boh Brothers owed a duty to defend the City and Dubroc against the absolute liability claim. We hold that Boh Brothers' obligation to indemnify or defend any party under the provisions of the indemnity agreement may not be determined until the conclusion of the lawsuit. We reverse the court of appeal's judgment that National Union owed a duty to defend and/or indemnify Dubroc against the absolute liability claim. We affirm the court of appeal's judgment that National Union owed a duty to defend the City as an additional insured against the absolute liability claim. We remand this claim to the trial court for a determination of the actual cost of defense on the absolute liability claim alone. Having disposed of the absolute liability claim by summary judgment, we find that the City's indemnity claim against National Union is moot. We affirm the court of appeal's grant of summary judgment dismissing all of the plaintiff's claims against Dubroc. We reverse the court of appeal's judgment overturning the trial court's pro-City grant of summary judgment on the plaintiff's breach of contract claim and reinstate the trial court's grant of summary judgment for the City on this claim. We affirm the court of appeal's reversal of summary judgment on the plaintiff's detrimental reliance and expropriation claims. We remand this case to the trial court for proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

04/12/05 SUPREME COURT OF LOUISIANA No. 04-C-1459, consolidated with Nos. 04-C-1460 and 04-C-1466 DARRELL SUIRE VERSUS LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF LAFAYETTE CALOGERO, Chief Justice We granted these writs to consider the court of appeal's rulings on various summary judgment motions in this lawsuit alleging damages to property resulting from a Lafayette construction project. In addressing the court of appeal's judgment, we must consider, among other issues, (1) whether the installation of metal sheeting is "pile driving" under Louisiana Civil Code article 667, for purposes of the plaintiff's absolute liability claim; and (2) whether a general contractor and its insurer owe a duty to indemnify and defend the Lafayette City-Parish Consolidated Government ("the City") and / or the City's engineering firm against the plaintiff's claims pursuant to either (a) a contractual indemnity clause in the contract between the City and the general contractor, or (b) the additional insured provision in the insurance contract between the contractor and its insurer. For the reasons that follow, and with the specificity of the rulings recited, we affirm in part, reverse in part, and remand the case to the trial court. FACTS Darrell Suire, the plaintiff, owns a residence and parcel of land at 114 St. James

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Drive in the city of Lafayette, Louisiana. Through Suire's land passes the Belle Terre Coulee, a large channel that provides drainage for several Lafayette Parish subdivisions. In 1998, the City applied for a permit to undertake the Belle Terre Coulee Drainage Improvement Project, in which the Coulee was to be dredged and lined with concrete. The permit was granted, and the City selected Boh Brothers Construction Co. L.L.C. ("Boh Brothers") as general contractor for the project, and Dubroc Engineering, Inc. ("Dubroc") to supply the plans and specifications. Before construction began, representatives of the City and Boh Brothers went door-to-door to explain the project to affected property owners, including Suire. Suire was informed that a servitude had been established to permit access to his property for purposes of the project. Suire also claims that representatives of the City, Boh Brothers, and Dubroc all assured him that they would be responsible for remedying any damages to his property caused by the construction. In August 1999, the construction reached the area immediately adjacent to Suire's home, and continued through roughly the end of 1999 or early 2000. The initial phase of the project called for construction of a box culvert on Suire's property to stabilize the sides of the channel and protect workers from cave-ins.1 Constructing the box culvert entailed placing steel sheeting into the ground at distances of fifteen to thirty feet from the foundation of Suire's home. The sheeting measured around one-fourth to one-half inch thick, two feet wide, and twelve to fifteen feet long. The installation of the sheeting involved, first, pushing the sheeting into place with a backhoe.2 Once in place, the bucket of the backhoe was used to pound the sheeting

The box culvert was only intended as a temporary, protective measure. Once the workers had completed their jobs, the sheeting was removed. So, the sheeting never became part of the permanent structure. This court has previously described a backhoe as a "heavy, tractor-like machine equipped with a mechanical arm or beam and bucket for digging." Lombard v. Sewerage & Water Bd. of New Orleans, 284 So. 2d 905, 906 (La. 1973). 2
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farther into the ground. While the construction was ongoing, Suire began to notice damage to his home. Among other things, Suire observed cracks in the front door, the floor, the foundation, the ceiling, and the walls, crumbling of the mortar in the patio outside, and leaks in the roof. THE COURTS BELOW On April 25, 2001, Suire sued the City, Boh Brothers, and Dubroc, alleging that these defendants were jointly, severally, and solidarily liable for the damage to his property resulting from their negligence and / or strict liability in carrying out the construction project. Suire claimed that the defendants' wrongful acts included selecting deficient plans and specifications, using improper equipment, failing to exercise due care in operating and maintaining equipment, and, generally, "fail[ing] . . . to act with the required degree of care commensurate with the existing situation." In addition to his negligence and strict liability claims, Suire sought recovery under a theory of absolute liability, claiming that the installation of the metal sheeting to construct the box culvert constituted the ultrahazardous activity of "pile driving." Finally, Suire alleged claims of trespass, breach of contract, detrimental reliance, res ipsa loquitur, and expropriation.3 The City and Dubroc filed a cross-claim against Boh Brothers, seeking defense and indemnification under the terms of the contract between the City and Boh Brothers. The City and Dubroc also filed a third party demand against National Union Fire Insurance Company of Pittsburgh and National Union Fire Insurance Company of Louisiana (collectively, "National Union"), Boh Brothers' insurer, seeking defense and indemnification as additional insureds under Boh Brothers'

Some of these latter claims were asserted in Plaintiff's First Supplemental and Amended Petition, filed April 1, 2003. 3

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insurance policy.4 The parties filed numerous motions for summary judgment, on which the trial court ruled as follows: ! Dubroc's motion for summary judgment was granted, and all claims against Dubroc were dismissed with prejudice;5 ! The court denied the plaintiff's motion for partial summary judgment on the absolute liability issue, finding, as a matter of law, that the installation of metal sheeting was not "pile driving" under Civil Code article 667. The City's motion on the absolute liability issue was granted and made effective as to Boh Brothers as well, even though Boh Brothers had not filed its own motion, because the court wished to avoid the illogical result that one defendant (Boh Brothers) would have to litigate the merits of the absolute liability claim while the other defendant (the City) would not. ! The City's and Dubroc's motion seeking defense from Boh Brothers and National Union was granted. The court found that National Union and Boh Brothers owed the City and Dubroc a limited defense against the absolute liability claim. This duty to defend was satisfied on the date of the hearing on the summary judgment motions, after which the court disposed of the absolute liability claim against the City and dismissed Dubroc from the case. Similarly, the court denied National Union's and

The City claimed that Boh Brothers provided it a Certificate of Insurance in February 1999, representing that the City and its representatives were covered as additional insureds under its policy issued by National Union. At the hearing on the motions for summary judgment, Dubroc informed the court that it had agreed to pay the plaintiff an undisclosed sum, "not a whole lot of money but just a small amount of money," in exchange for the plaintiff's agreement not to oppose Dubroc's motion for summary judgment. The plaintiff would only receive Dubroc's payment if Dubroc's motion were granted. 4
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Boh Brothers' motions opposing the City's and Dubroc's claim for defense; ! The court granted in part National Union's and Boh Brothers' motions opposing the City's and Dubroc's claim for indemnity and coverage, finding that dismissal of the absolute liability claim extinguished any duty to indemnify. Consistent with this holding, the court denied the City's and Dubroc's motion seeking indemnity; ! The court granted in part the City's motion for summary judgment seeking dismissal of Suire's claims of res ipsa loquitur, detrimental reliance, breach of contract, and expropriation; but, the court denied in part the City's motion seeking dismissal of the trespass claim, deferring this claim to the merits; and ! The court denied Boh Brothers' motion for summary judgment claiming immunity under La. Rev. Stat. 9:2771, a statute which provides for limited immunity for a contractor who has performed according to plans provided by a third party.6 Thus, following the trial court's rulings on the parties' summary judgment motions, many of the plaintiff's claims were dismissed as a matter of law: absolute liability involving the installation of metal sheeting, detrimental reliance, res ipsa

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La. Rev. Stat. 9:2771 provides: No contractor . . . shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor. 5

loquitur, breach of contract, and expropriation. The plaintiff's claims of negligence and trespass still remained viable. Dubroc was dismissed from the case entirely, leaving Boh Brothers and the City as the primary defendants and National Union as third party defendant. Regarding the City's and Dubroc's claim for defense, the trial court held that National Union and Boh Brothers owed a limited duty to defend the City and Dubroc against the absolute liability claim alone, and that this duty had been satisfied. Because the trial court dismissed the absolute liability claim, the City's and Dubroc's indemnity claim had been extinguished. Suire, Boh Brothers, and National Union all appealed from the trial court's rulings. The plaintiff challenged the trial court's dismissal of his absolute liability, breach of contract, detrimental reliance, res ipsa loquitur, and expropriation claims as a matter of law. Boh Brothers and National Union disputed the trial court's determination that they owed the City and Dubroc a limited defense on the absolute liability claim. Finally, Boh Brothers appealed the dismissal of Dubroc from the case. In an unpublished opinion, the Third Circuit affirmed in part, reversed in part, rendered in part, and remanded. Suire v. Lafayette City-Parish Consol. Gov't, et al., 2003-01150 (La. App. 3 Cir. 4/7/04), 871 So. 2d 1279. The court of appeal initially reversed the trial court's judgment on the absolute liability issue, finding that the installation of metal sheeting qualified as "pile driving" under Civil Code article 667, such that the absolute liability standard applied to the plaintiff's claim. The court considered the language of article 667, which establishes the absolute liability standard and strictly limits its application to situations where damage results from certain ultrahazardous activities: Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
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However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives. (Emphasis added). The court observed that "pile driving" is not defined either in the article or in the jurisprudence, and that the deposition testimony of Boh Brothers' and the plaintiff's witnesses conflicted concerning whether the installation of metal sheeting constituted "pile driving." The Third Circuit summarized this court's opinion in Lombard v. Sewerage & Water Board of New Orleans, 284 So. 2d 905 (La. 1973), which, the Third Circuit stated, "address[ed] the use of sheet metal pilings." In Lombard, the Third Circuit reasoned, this court awarded damages under article 667 where the activities complained of included both the installation of sheet metal and the driving of cylindrical wooden pilings using a steam hammer. This court, the Third Circuit concluded, drew no distinction in Lombard between these two activities in awarding damages under article 667. Further, the Third Circuit reasoned, pile driving is considered an ultrahazardous activity because of the vibration damage it may cause. The extent of damage depends upon factors such as soil and water table conditions, the size of the pilings, and the distance between the structure and the location of the driving. Because the installation of metal sheeting generates "some vibration," the court

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reasoned, there is sufficient similarity between this activity and other activities conceded to be "pile driving" (i.e., driving wooden pilings with a steam hammer) to justify the conclusion that the term encompasses the installation of metal sheeting. Thus, the court concluded, installing metal sheeting qualified, as a matter of law, as an ultrahazardous activity under article 667, and the absolute liability standard therefore applied to the plaintiff's claim.7 The Third Circuit then addressed the trial court's rulings on the motions involving the City's and Dubroc's entitlement to indemnification and defense under the terms of the contract between Boh Brothers and the City. The court first considered the language of the indemnity provision contained in the contract between Boh Brothers and the City: In the contract to be awarded, the contracting agency [Boh Brothers] does and will agree to defend, indemnify, and hold forever harmless the Owner and the Engineer / Consultant . . . from and against any and all claims, demands, causes of action, and / or rights of action arising out of or resulting from the performance of any of the work and / or obligations contemplated under the contract, including, but not limited to, any and all claims for damages, losses, expenses and / or attorney's fees which result from any breach by the contractor of any of the terms, provisions, conditions, and / or limitations of the contract, as well as any and all claims resulting from the sole negligence, liability, strict liability, and / or fault of the Contractor and / or the joint and / or concurrent negligence, liability, strict liability, and / or fault of the Contractor with any other persons or parties whomsoever. The obligation of the Contractor under this paragraph shall not extend to the liability of the Engineer / Consultant, his agents or employees arising out of the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications. The court held that this provision did not require Boh Brothers to indemnify
The court thus reversed the trial court's grant of summary judgment to the City and Boh Brothers on this issue, and granted the plaintiff's motion for partial summary judgment. The court noted that, although the application of the absolute liability standard would lessen the burden of proof at trial, the plaintiff would still be required to establish causation. 8
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the City or Dubroc "for anything not arising out of its contractual performance." The court reasoned that any agreement to the contrary would be prohibited by La. Rev. Stat. 38:2216(G), which limits the extent to which a public body may require a contractor to indemnify it in the terms of a public contract.8 Thus, the Third Circuit concluded, the trial court correctly found that Boh Brothers' obligation to indemnify and defend the City and Dubroc was limited to the absolute liability claim, because any broader obligation would violate the statute. However, the court reasoned, its resolution of the absolute liability issue in the plaintiff's favor had the effect of "bring[ing] back into effect the contractual indemnification provision." In other words, the court determined, revival of the absolute liability claim also revived Boh Brothers' contractual obligation to defend and indemnify. The Third Circuit also considered the effect of the additional insured provision in the insurance contract between National Union and Boh Brothers, and concluded that National Union owed the same duty as Boh Brothers to defend the City and Dubroc against the plaintiff's absolute liability claim. Thus, the Third Circuit affirmed the trial court's resolution of the contractual defense issues. But, the court remanded to the trial court for

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La. Rev. Stat. 38:2216(G) provides: (G) It is hereby declared that any provision contained in a public contract, other than a contract of insurance, providing for a hold harmless or indemnity agreement, or both, (1) From the contractor to the public body for damages arising out of injuries or property damage to third parties caused by the negligence of the public body, its employees, or agents, or, (2) From the contractor to any architect, landscape architect, engineer, or land surveyor engaged by the public body for such damages caused by the negligence of such architect, landscape architect, engineer, or land surveyor is contrary to the public policy of the state, and any and all such provisions in any and all contracts are null and void. 9

determination of the actual defense cost for the absolute liability issue alone.9 The Third Circuit then affirmed the trial court's grant of Dubroc's summary judgment motion and dismissal of Dubroc from the case. As discussed supra, at note five, Dubroc and the plaintiff announced that they had reached an agreement by which Dubroc would pay the plaintiff a small amount of money in exchange for the plaintiff's promise not to oppose Dubroc's motion for summary judgment. The court found that the announcement of the agreement between Dubroc and the plaintiff did not render the trial court's ruling on Dubroc's summary judgment motion an advisory opinion on a moot issue. The court reasoned that the arrangement between Dubroc and the plaintiff was not a settlement, but simply an agreement by the plaintiff not to oppose Dubroc's summary judgment motion. The trial court properly considered all the evidence in the record and, based on its finding that there were no remaining factual issues concerning Dubroc's fault, granted summary judgment for Dubroc, the Third Circuit stated. Finally, the Third Circuit reversed the trial court's grant of summary judgment on the plaintiff's breach of contract, detrimental reliance, and expropriation claims. The court found that genuine issues of material fact remained that precluded summary judgment on these claims. However, the Third Circuit agreed with the lower court that the plaintiff's res ipsa loquitur claim was without merit, and affirmed the lower court's pro-defense grant of summary judgment on this claim. Boh Brothers, the City, and National Union all applied for writs in this court. We granted all three applications to consider the court of appeal's rulings on the parties' summary judgment motions, specifically: (1) the holding that the installation

The Third Circuit reasoned that the trial court erred in casting Boh Brothers and National Union with the entire cost of defense through March 24, 2003, rather than calculating the cost of defense for solely the absolute liability issue. 10

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of metal sheeting constitutes "pile driving" under La. Civ. Code art. 667, such that the plaintiff's claim is subject to the absolute liability standard; (2) the determination that National Union and Boh Brothers owed defense and indemnity to the City and Dubroc on the plaintiff's absolute liability claim; (3) the dismissal of Dubroc from the case; and (4) the Third Circuit's determination that the plaintiff's breach of contract, detrimental reliance, and expropriation claims should be deferred to the merits. Suire v. Lafayette City-Parish Consol. Gov't, et al., 2004-1459 (La. 10/15/04), 883 So. 2d 1061.10 DISCUSSION We apply a de novo standard of review in considering the Third Circuit's rulings on the parties' summary judgment motions. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So. 2d 730, 750 (citing Schroeder v. Bd. of Supervisors of La. State Univ., 591 So. 2d 342, 345 (La. 1994)). Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. Code Civ. P. art. 966(B). A genuine issue exists where reasonable persons, after considering the evidence, could disagree. Smith, 639 So. 2d at 751. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Id. A fact is "material" if it is one that would matter at trial on the merits. Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Id. Bearing in mind the standard governing our review
In its brief to this court, Boh Brothers also argues that it is entitled to statutory immunity under La. Rev. Stat. 9:2771, discussed supra, at note six. The trial court denied Boh Brothers' motion for summary judgment on this claim, and Boh Brothers failed to appeal this determination. Neither did Boh Brothers raise this issue in its writ application. Thus, we decline to consider this argument. 11
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of the court of appeal's rulings, we will consider in turn each of the issues the parties have raised. A. Absolute Liability

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