191 So. 3d 1090
La.2016Background
- Gordon Serou, Jr. died after hospitalization at SHONO (Touro) following Hurricane Katrina; the suit involved wrongful death and survival claims against Touro, SHONO, and Aggreko, with Aggreko contracted to provide emergency generator services.
- Touro and Aggreko cross-claimed for indemnification under a contract that required Aggreko to indemnify for claims arising from its equipment and services, to the extent caused by Aggreko’s negligence or fault.
- Aggreko moved for summary judgment in 2011; the trial court denied it, finding genuine issues of material fact as to whether the generator failed to serve its purpose.
- The main 2011 trial on the merits allocated 30% fault to Touro and 70% to SHONO, with no fault assigned to Aggreko; Aggreko petitioned higher courts for relief and the matter was remanded on several occasions.
- In 2014–2015 the trial court again granted Aggreko summary judgment on indemnity grounds, finding Aggreko had no liability; the judgment was affirmed on appeal.
- The appellate court framed the key issue as whether Aggreko could be liable to indemnify under the contract given the final fault allocation and the law governing summary judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aggreko is entitled to indemnity against Touro. | Touro argues Aggreko’s fault or indebtness should be part of indemnity. | Aggreko contends it bears no fault and thus owes no indemnity to Touro. | Summary judgment affirmed; Aggreko bears no fault and indemnity not owed. |
| Whether reconsideration of Aggreko’s second motion for summary judgment was proper despite law-of-the-case concerns. | Touro argues law-of-the-case precludes re-urging the motion. | The denial or reversal of prior motions allows re-urging when merits permit. | Trial court could consider the second motion; law-of-the-case did not bar reconsideration. |
Key Cases Cited
- Serou v. Touro Infirmary, 105 So.3d 1068 (La.App. 4 Cir. 2013) (finality of Serou I; apportionment of fault; indemnity considerations)
- Serou v. Touro Infirmary, 115 So.3d 688 (La.App. 4 Cir. 2013) (Serou II; genuine issues of material fact remanded)
- Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303 (La.App. 4 Cir. 2010) (reconsideration of denied summary judgment permissible before trial)
- Hargett v. Progressive Ins. Co., 996 So.2d 1199 (La.App. 4 Cir. 2008) (second motion for summary judgment permissible)
- Magallanes v. Norfolk S. Ry. Co., 23 So.3d 985 (La.App. 4 Cir. 2009) (proper procedure for reconsideration of summary judgment)