115 So. 3d 688
La. Ct. App.2013Background
- This is for rehearing of two related judgments: (1) the district court's money judgment against Touro Infirmary on the principal demand, and (2) the district court's dismissal with prejudice of Touro's cross-claim against Aggreko, Inc. on summary judgment.
- The original three-judge panel affirmed the money judgment on the principal demand but reversed the summary judgment on Aggreko's cross-claim; after further rehearing, the principal-demand judgment was left final while rehearing on Aggreko's cross-claim was granted.
- The case was reargued before a five-judge panel due to the dissent, and de novo review was conducted on Aggreko’s motion for summary judgment.
- Touro's cross-claim seeks indemnification under the Hurricane Contingency Plan Agreement (HCPA) for damages to plaintiffs arising from Gordon Serou, Sr.'s death at SHONO, connected to Hurricane Katrina.
- The HCPA required Aggreko to provide a pre-selected generator package and fuel; payment terms allegedly allowed Aggreko to refuse performance if payment was late, yet Aggreko delivered the generator.
- Evidence showed the generator was inoperable shortly after activation, Aggreko delivered an underfilled external fuel tank, and contaminated fuel later shut down backup power to SHONO, contributing to damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did genuine issues of material fact preclude summary judgment on indemnity for damages? | Touro argues Aggreko's breach caused plaintiffs' injuries and indemnity should follow. | Aggreko contends no causal link or defense defeats indemnity. | No summary judgment; genuine issues of material fact remain. |
| Was Aggreko's alleged failure to provide proper fuel and a functioning generator causally related to the plaintiffs' injuries? | Touro asserts Aggreko's failures proximately caused harm via loss of power and unsafe conditions. | Aggreko argues lacks proof of causation. | Issues of causation exist; not dispositive at summary judgment. |
| Can Aggreko avoid indemnity by arguing Touro's nonpayment excused performance under the HCPA? | Touro's payment breach does not excuse Aggreko's performance in a way that defeats indemnity. | Aggreko contends nonpayment excuses performance under the contract. | Contractual relief for nonpayment does not foreclose indemnity; genuine issues remain. |
| Does the indemnity clause require showing Aggreko's negligence or fault as the basis for liability? | Indemnity covers damages resulting from Aggreko's negligence or fault. | Mitigation or limitation provisions apply; causation is contested. | Remand to resolve causation and fault questions; summary judgment inappropriate. |
Key Cases Cited
- Hare v. Paleo Data, Inc., 89 So.3d 380 (La. App. 4 Cir. 2012) (summary judgment standard and burden-shifting)
- Serou v. Touro Infirmary, 110 So.3d 588 (La. App. 4 Cir. 2013) (rehearing and remand context for cross-claims)