202 So. 3d 1028
La. Ct. App.2016Background
- Following Hurricane Katrina, Plaquemines Parish Government began debris removal in the Duvic canal with various contractors providing monitoring, project management, and debris removal services.
- Fin & Feather, Fin & Feather Chalets owned property along the canal, and the land allegedly sloughed into the canal causing damage to immovable property.
- Fin & Feather filed suit against Plaquemines Parish Government (PPG) and contractors for negligence, asserting that excavation altered the canal servitude and caused additional damage; third-party demands followed.
- During bankruptcy proceedings, CDP was stayed; Essex sought coverage denial for Fin & Feather under policy, with partial grant and denial of coverage by the trial court.
- The trial court granted summary judgment to Essex, All South, DRC, Cahaba, and PPG on the grounds of statutory immunity under La. R.S. 9:2800.17, and found no genuine issues of material fact as to gross negligence; Fin & Feather appealed all rulings; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the denial of late supplementation an abuse of discretion? | Fin & Feather says supplementation was rightly allowed but denied. | Court acted within discretion to deny after hearing. | No abuse; supplementation properly denied. |
| Does La. R.S. 9:2800.17 immunize all defendants? | Immunity does not extend to all defendants or to gross negligence. | Immunity applies to state/subdivisions and contractors/subcontractors in Katrina/Rita work. | Yes, immunity applied to all defendants. |
| Are there genuine issues of material fact on gross negligence? | Defendants’ actions show gross negligence (reckless disregard). | No evidence of gross negligence; burden shifts to Fin & Feather after immunity shown. | No genuine issues; no gross negligence proven. |
| Are subcontractors entitled to immunity under the statute? | Subcontractors should not be immune. | Subcontractors like Cahaba and Essex are immune per statute. | Subcontractors are immune under La. R.S. 9:2800.17. |
Key Cases Cited
- Williams v. Memorial Medical Ctr., 870 So.2d 1044 (La. App. 4 Cir, 2004) (unverified documents not self-proving in summary judgment)
- Schully v. Hughes, 820 So.2d 1219 (La. App. 4 Cir, 2002) (unverified documents not self-proving in summary judgment)
- Held v. Avondale Indus., Inc., 672 So.2d 1106 (La. App. 4 Cir, 1996) (artful argument cannot create a genuine issue of material fact)
- Rabalais v. Nash, 952 So.2d 653 (La. 2007) (gross negligence defined as reckless disregard/want of care)
- Ambrose v. New Orleans Police Dep’t Ambulance Svc., 639 So.2d 216 (La. 1994) (gross negligence described as extreme departure from ordinary care)
- New Amsterdam Cas. Co. v. Culotta, 230 So.2d 339 (La. App. 4 Cir, 1970) (burden on defendants to prove affirmative defense)
- Bienvenu v. Allstate Ins. Co., 819 So.2d 1077 (La. App. 4 Cir, 2002) (affirmative defense must provide fair notice)
- Allvend, Inc. v. Payphone Commissions Co., Inc., 804 So.2d 27 (La. App. 4 Cir, 2001) (affirmative defenses generally must be pled to avoid ambush)
- Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 958 So.2d 634 (La. 2007) (summary judgment criteria and burden shifting guidance)