JUDE G. GRAVOIS, Judge.
Plaintiffs filed this lawsuit in 2000 against the Parish of Jefferson ("the Parish") and B & K Construction Company, Inc. ("B & K"), alleging that their homes sustained damages in 1998 and 1999 as a result of construction activities that had been conducted on the Gardere Canal on the West Bank of Jefferson Parish.
Plaintiffs also filed a motion for leave to file their fifth amending and supplemental petition. The Parish responded by filing a motion to strike this pleading. In a judgment dated November 7, 2011, the trial court denied plaintiffs' motion for leave and granted the Parish's motion to strike. Plaintiffs also appeal this judgment.
For the reasons that follow, we affirm the trial court's grant of summary judgment in favor of the Parish, affirm the trial court's denial of plaintiffs' motion for leave to file their fifth amending and supplemental petition and its granting of the Parish's motion to strike this pleading, reverse the trial court's grant of summary judgment in favor of B & K, and remand the matter to the trial court for further proceedings consistent with this opinion.
On January 16, 1997, the Parish and the United States Army Corps of Engineers ("the Corps") entered into a Project Cooperation Agreement ("the Agreement") concerning construction of a portion of the Southeast Louisiana Flood Control Project ("the SELA Project") in Jefferson Parish on the Gardere Canal (hereafter "the Gardere Canal Project" or "the Project").
Plaintiffs filed this lawsuit on February 28, 2000 against the Parish and B & K, alleging that the Parish and B & K were liable for damages which occurred to their homes which are located in Harvey, Louisiana near the Gardere Canal. Plaintiffs allege that during 1998 and 1999, the Parish and B & K undertook construction work on the Gardere Canal in close proximity to their homes, and that substantial damage was done to their homes, including a pulling away of walls from the concrete slabs upon which their homes were built, numerous cracks in their homes, and damages to their garages and swimming pools. Plaintiffs specifically alleged that the Parish and B & K were grossly negligent in the following ways:
On January 28, 2010, the Parish filed the motion for summary judgment that is the subject of the instant appeal.
On appeal, plaintiffs argue that the summary judgment in favor of the Parish should be reversed because the Parish failed to prove entitlement of the discretionary immunity defense provided by La. R.S. 9:2798.1.
The Parish responds that the trial court's decision is correct because the Parish's
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Gray v. Am. Nat'l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law.
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action (subject to certain exceptions not pertinent herein). La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id.
Under La. C.C.P. art. 966(C)(2):
The Parish's claim of discretionary immunity is based upon La. R.S. 9:2798.1, which states, in pertinent part:
Recently, the Fourth Circuit explained the application of the statutory doctrine of discretionary immunity under La. R.S. 9:2798.1, to-wit:
Johnson v. Orleans Parish Sch. Bd.
Plaintiffs argue that whereas the decision of the Parish to participate in the Project might have been discretionary, its obligations under the Agreement, once entered, were not discretionary, and thus, it is not entitled to the discretionary immunity defense to escape liability for its alleged negligence. Plaintiffs argue that under the Agreement, the Parish had affirmative duties to the homeowners along the canal, the breaches of which constituted "operational negligence," including: (1) the duty to monitor excessive vibrations from pile-driving on the site; (2) the duty to receive reports on excessive vibrations; (3) the duty to notify the contractor if the Parish became aware of excessive vibrations; (4) the duty to investigate claims of damages by property owners due to the construction; (5) the duty to forward complaints of such property damages to the Corps; and (6) the duty to pay twenty-five per cent of any damages caused by work on the Project. Plaintiffs argue that their homes were damaged during the Project by excessive vibrations from the driving of steel sheet pilings to construct a temporary retaining wall, the dredging of the canal, the erection of a permanent concrete retaining wall, and the removal of the temporary
In its motion for summary judgment, the Parish pointed out that the United States District Court for the Eastern District of Louisiana dismissed the Corps on the basis of discretionary immunity, accepting the Corps' argument that its work on the Gardere Canal Project was discretionary and involved policy considerations.
The Parish also pointed out that under the Agreement, it had no responsibility for the constructions on the Gardere Canal, other than its approval and limited funding, asserting that co-defendant B & K had the responsibility for performing all of the constructions on the Gardere Canal. The Parish denied that the Agreement conferred upon it any operational responsibility to prevent or mitigate damages to plaintiffs' homes. It argued that likewise, the existence of a cost-sharing provision between it and the Corps regarding payment for any damages did not confer a duty upon the Parish to these plaintiffs.
The trial court issued reasons for judgment, finding that the Parish was a public entity as contemplated by La. R.S. 9:2798.1, and that the Parish's decision to enter into the Agreement was a discretionary decision based upon policy considerations. The court also found that the Parish did not commit any operational negligence, as it neither assumed responsibility nor played any role in the construction of the Gardere Canal Project. Its role was limited to approval and funding of the construction. Under the Agreement, the Corps assumed the responsibility for the management and supervision of all work performed on the Project. The court further found that there was no factual or legal basis to support plaintiffs' contention that the Parish had agreed to assume any duty to compensate plaintiffs for their alleged damages. Accordingly, the court found that the Parish had borne its burden of proof that it was entitled to discretionary immunity provided to public entities by La. R.S. 9:2798.1, and granted the Parish's motion for summary judgment.
Upon our de novo review, we find no error in the trial court's findings or conclusions in its grant of summary judgment in favor of the Parish. Plaintiffs
Plaintiffs' reliance on Mitter v. St. John the Baptist Parish, 05-375 (La.App. 5 Cir. 12/27/05), 920 So.2d 263, is misplaced. In that case, the court rejected a discretionary immunity defense asserted by St. John the Baptist Parish because it was shown that not only did the Parish make the discretionary decision to provide drainage, the Parish was also responsible for, and had actually performed, the construction work that gave rise to the plaintiffs' damages. In this case, B & K performed the work (the construction activities) under contract with the Corps; the Parish did not.
Plaintiffs also argue that under the Agreement, upon completion, the Project was to be turned over to the Parish, which would be responsible for operation and maintenance of the canal. Plaintiffs do not allege, however, that the damage to their homes was caused after the Project was turned over to the Parish for operation and maintenance, but rather during the construction phase of the Project prior to that time.
For the foregoing reasons, finding that no genuine issues of material fact exist as to the claims plaintiffs have asserted against the Parish, and that the Parish is entitled to judgment on its discretionary immunity defense as a matter of law, we affirm the trial court's grant of summary judgment in favor of the Parish.
Plaintiffs also argue on appeal that the trial court erred in denying their motion for leave to file their fifth amending and supplemental petition and in granting the Parish's motion to strike this pleading. Plaintiffs argue that this ruling was an abuse of discretion because they acted in good faith in filing this motion, and because no trial date is set, no prejudice would be caused to defendants. Plaintiffs further argue that in denying their motion for leave to amend, the trial court improperly addressed the merits of plaintiffs' amended petition, whether the petition stated a cause of action as third-party beneficiaries under an alleged agreement between the Parish and the Corps.
La. C.C.P. art. 1151 provides that after an answer has been filed, the petition and answer may be amended only by leave of court or by written consent of the adverse party. The decision to disallow an amendment under La. C.C.P. art. 1151 is within the sound discretion of the trial judge and that decision should not be disturbed on appeal unless there has been an abuse of the broad discretion vested in the trial court. Salt Domes, Inc. v. Villere Food Group, Inc., 03-0185 (La.App. 4 Cir.
In their memorandum attached to their motion for leave to amend, filed on June 21, 2011, plaintiffs contended they "recently" discovered that the Parish had "suppressed" a "hidden contract" between it and the Corps, a document entitled "Standard Operating Procedure" ("the SOP document"), which plaintiffs had obtained from the Corps in a Freedom of Information Act request. Plaintiffs claimed that they were third-party beneficiaries under this document because it clearly showed that the Corps and the Parish anticipated that damages would occur to plaintiffs' property, that they had agreed to pay the damages in a 75/25 per cent split, and that the Parish had the duty thereunder to submit the claims of any property/homeowners within thirty (30) days of notice. Plaintiffs argued that the Parish had breached its duties under the SOP document, committed fraud against plaintiffs, and breached its fiduciary duty to plaintiffs.
The Parish filed a motion to strike, arguing that plaintiffs' claim that their fifth petition was based upon "recently" discovered information was false. The Parish pointed out that plaintiffs received the SOP document on November 24, 2010, and subsequently attached it to their supplemental opposition brief to the Parish's motion for summary judgment filed on January 31, 2011 (the Parish's motion for summary judgment that is the subject of this appeal). The Parish argued that this "information" was specifically brought to the trial court's attention, which addressed it in a judgment dated April 12, 2011. In that judgment, which granted plaintiffs' motion to continue the hearing on the Parish's motion for summary judgment in order for plaintiffs to take depositions of certain former Parish officials, the court limited the focus of the depositions to the merits of the case and the issue of discretionary immunity raised by the Parish's motion for summary judgment, specifically stating that "any alleged agreement between [the Parish] and [the Corps] regarding the payment of any alleged damages is not relevant to the above-referenced matter." The Parish further argued that plaintiffs had misrepresented the contents of the document, stating that it was not a contract between the Parish and the Corps, but rather was a policy statement by the Corps regarding the proper credit to be provided to the Parish for the cure of any particular damages caused during the Project.
In denying the motion for leave to amend, the trial court squarely addressed, and disagreed with, plaintiffs' contentions made in support of their motion for leave to amend that the "newly" discovered SOP document was a contract between the Corps and the Parish made for the third-party benefit of plaintiffs. In its reasons for judgment, the trial court found that "the document in question is a policy or guideline set forth by the Corps providing the method for the Parish to apply for credit in connection with monies paid for damages resulting from construction." Given that plaintiffs squarely placed the substance of the SOP document before the court in the motion for leave to amend, we find no abuse of the trial court's discretion in addressing the merits of plaintiffs' characterization of this document when making its ruling to deny plaintiffs' motion for leave. Neither do we, upon review, find any abuse of discretion
For the foregoing reasons, we find that the trial court did not abuse its broad discretion in denying plaintiffs' motion for leave to file their fifth amending and supplemental petition and in granting the Parish's motion to strike this pleading.
On February 9, 2012, the trial court granted B & K's motion for summary judgment. In its motion, B & K argued that it was immune from suit under the contractor immunity provisions of La. R.S. 9:2771 (statutory contractor immunity), and also under its claim of immunity as a government contractor pursuant to Boyle v. United Techs. Corp., 487 U.S. 500, 507, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (government contractor immunity). In this appeal, plaintiffs argue that the trial court erred in granting B & K's motion for summary judgment.
Plaintiffs first argue that summary judgment was inappropriate herein because B & K failed to prove its affirmative defense of statutory contractor immunity under La. R.S. 9:2771, in particular because: (1) plaintiffs' damages were caused by B & K's fault or negligence; (2) B & K's work was not performed according to the plans or specifications provided to B & K; and (3) the damages were caused by B & K's failure to follow the plans and specifications, rather than any fault or insufficiency of the plans and specifications.
The contractor immunity statute, La. R.S. 9:2771, provides:
A contractor's immunity to third parties for defects in the work constructed, under the article governing non-liability of a contractor for destruction or deterioration of work, results from proof of compliance to plans and specifications alone. Cormier v. Honiron Corp., 00-446 (La. App. 3 Cir. 9/27/00), 771 So.2d 193. In general, a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations; however, a contractor is not the guarantor of the sufficiency of plans and specifications drawn by another, and if it complies with those plans and specifications, it is entitled to statutory immunity. Morgan v. Lafourche Recreation Dist. No. 5, 01-1191 (La.App. 1 Cir. 6/21/02), 822 So.2d 716, writ denied, 2002-1980 (La.10/25/02), 827 So.2d 1156. Under the contractor immunity statute, a contractor cannot rely blindly on plans and specifications, but rather, to avoid liability, the contractor must prove either that the condition created was not hazardous or that it had no justifiable reason to believe that its adherence to the plans and specifications created a hazardous condition. Id.
B & K also filed an affidavit of W. Blake Andrews, vice president of B & K, who attested that "[B & K] performed all work on this project in accordance with the plans and specifications provided by the Government," and that "[B & K] was not aware, at any time, of any reasons that would have made the implementation of the plans and specification for this project unsafe or unreasonable."
Plaintiffs filed an opposition to B & K's motion for summary judgment. Among the exhibits plaintiffs attached to their opposition memorandum were the Parish's supplemental responses to plaintiffs' interrogatories and requests for production of documents, which included the following documents: 1) a purported copy of a letter from Mr. Hinkamp of the Corps to B & K dated March 16, 1999, wherein he memorialized his telephone conversations of February 25, 1999 and March 1, 1999 with B & K in which he had advised B & K that several of the vibration reports on the subject Project in February of 1999 showed vibrations in excess of that allowed under the contract, reminded B & K of their contractual responsibility to take immediate actions to reduce vibrations, and told B & K that it would be held responsible for any damage which resulted from its failure to comply with these contractual requirements (plaintiffs' Exhibit "A"); and 2) numerous vibration monitoring reports that were collected under the requirements of the B & K's construction contract with the Corps, which showed over forty instances of vibrations that exceeded the contract specification level of 0.25 inch per second (plaintiffs' Exhibit "B"). Plaintiffs also attached as an exhibit to their opposition a copy of an extracted portion of B & K's construction contract with the Corps containing the contract specifications relative to vibrations (Section 7.3), which included the provision that "[v]ibrations shall be monitored by others and limited to 0.25 inch per second at all structures including buildings and pools. Exceeding 0.5 of an inch may induce structural damages. The Contractor shall be informed when the vibrations from his operations have exceeded the above limit and the Contractor shall take immediate action to reduce the vibrations to the acceptable limits." (plaintiffs' Exhibit "C").
B & K also filed a supplemental memorandum in support of its motion for summary judgment, attaching thereto the entire depositions of Mr. Andrews, and of Virgil M. Stuart, Jr., who testified as a representative of the Parish, both taken in conjunction with this litigation.
In brief, B & K first argues that the documentary exhibits attached to plaintiffs' opposition to the motion for summary judgment cannot properly be considered by this Court because such exhibits were not verified or introduced into evidence.
When ruling on a motion for summary judgment, the trial court may consider "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[,]" presented by the parties in support of or in opposition to the motion; those specifically enumerated documents need not be formally introduced into evidence at the hearing on the motion if they are already "on file" or physically placed into the record prior to
Under the particular facts and circumstances of this case, we find that the exhibits objected to by B & K are properly before us in our de novo review of the summary judgment rendered herein in favor of B & K. First, we note that Mr. Hinkamp's letter dated March 16, 1999 (plaintiffs' Exhibit "A") and the vibration monitoring reports (plaintiffs' Exhibit "B") were produced to plaintiffs by the Parish in response to interrogatories and requests for production of documents filed by plaintiffs in this litigation. Further, these documents, along with the extract from B & K's construction contract with the Corps (plaintiffs' Exhibit "C") were significantly mentioned and discussed by Mr. Andrews during the course of his lengthy sworn deposition which was submitted by B & K. As such, these documents submitted by plaintiffs, along with the affidavits and depositions submitted by B & K, are properly before us in our review of the summary judgment in favor of B & K on appeal.
Upon our de novo review of the entire record before us, we first find that the affidavits of Mr. Hinkamp and Mr. Andrews submitted by B & K do not properly and adequately support its motion for summary judgment, such affidavits being conclusory in nature and falling short of bearing B & K's burden of showing entitlement to summary judgment. Plaintiffs' petition against B & K charges that their homes were damaged during the Project by excessive vibrations from the driving of steel sheet piling to construct a temporary retaining wall, the dredging of the canal, the erection of a permanent concrete retaining wall, and the removal of the temporary retaining wall. Mr. Hinkamp of the Corps merely attested, that "[t]o the best of my knowledge, at this time, I am not aware of any incident where it has been shown that property in the vicinity of the subject project has been damaged due to the failure of [B & K] to comply with project plans and specifications." (Emphasis added.) We find that this attestation, by a Corps official who was not present on a day-to-day basis and whose duties consisted of periodically reviewing the Project, is conclusory in nature and not sufficient to bear B & K's burden of proof on summary judgment that there is no genuine issue of material fact regarding whether B & K performed the contract within the plans and specifications.
Likewise, the affidavit of Mr. Andrews is also not sufficient to bear B & K's burden of proof. Mr. Andrews first attestation, that B & K "performed all work on this project in accordance with the plans and specifications provided by the Government," is also conclusory in nature and is in the nature of an opinion without any supporting facts. His second attestation, that B & K "was not aware, at any time, of any reasons that would have made the implementation of the plans and specification for this project unsafe or unreasonable," does not bear on the specific issue presented by plaintiffs. Plaintiffs do not assert that the plans and specifications themselves, if correctly followed by B & K, created a hazardous situation that B & K should have realized; rather, plaintiffs'
B & K's conclusory affidavits fail to show that no genuine issues of material fact remain and that it is entitled to judgment as a matter of law.
Further, based on our review of the entirety of Mr. Andrews' deposition submitted by B & K, we find that genuine issues of material fact remain as to whether B & K performed all of its work in accordance with the plans and specifications of the Project. For example, in his deposition, Mr. Andrews admitted that under paragraph 9.7 of B & K's construction contract with the Corps, the threshold for vibrations was .25 inches per second and that the Corps provided those specifications to B & K. However, when asked whether vibrations in excess of .25 inches per second were measured on forty-eight different occasions during the job, Mr. Andrews responded: "I'm not aware how many occasions but the contract says if we do exceed it we're supposed to take immediate action to reduce it. That's what we did." We find that Mr. Andrews' answer establishes that a genuine issue of material fact remains as to whether B & K had in fact exceeded the vibration limitations called for in its construction contract with the Corps. Further, when asked whether B & K was informed of the excessive vibrations when they happened, Mr. Andrews indicated that B & K should have been informed, but he could not find any records of being informed of excessive vibrations and did not recall receiving any such reports from the Parish or the Corps. However, Mr. Andrews' inability to find any records of this nature or to recall receiving any reports of this nature does not exclude the possibility that B & K did in fact receive such records and reports, and thus a genuine issue of material fact remains as to whether B & K did in fact receive such records and reports.
Accordingly, for the foregoing reasons, we find that genuine issues of material fact remain as to whether B & K performed all of its work in accordance with the plans and specifications of the Project. As such, B & K has failed to show as a matter of law that it is entitled to statutory contractor immunity pursuant to La. R.S. 9:2771.
Plaintiffs also argue that summary judgment was also inappropriate because B & K failed to prove its affirmative defense of government contractor immunity, in particular because: (1) there were no "reasonably precise specifications" concerning the methods of pile-driving and use of equipment on the site; (2) even where there were reasonably precise specifications, i.e., concerning the maximum allowable vibration levels on the Project, B & K's work did not conform to those specifications; and (3) B & K did not warn the United States about the dangers in the pile-driving operation which were known to the contractor but not to the United States.
The government contractor immunity defense provides that contractors hired by the government cannot be held liable for performing their contracts in conformity with specifications established by the government. Hercules, Inc. v. United States, 516 U.S. 417, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996), and Boyle v. United Tech. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In order for a contractor to assert the government contractor defense, three prongs must be met: (1) the government must have approved reasonably precise specifications; (2) the work must have conformed to the specifications; and (3) the contractor must have warned of any dangers that were known to the contractor, but not the government. The contractor is not required to warn of dangers which it should have known, only dangers about which it had actual knowledge. Kerstetter v. Pacific Scientific Company, 210 F.3d 431 (5th Cir.2000).
Again, considering the conclusory attestations contained in the affidavits B & K filed in support of its motion for summary judgment, as noted above, along with the exhibits submitted by plaintiffs, and Mr. Andrews' deposition submitted by B & K, we find that B & K has failed in its burden of showing that no genuine issues of material fact remain regarding whether the work it performed conformed to the plans and specifications of the contract. The second prong of this defense has not been met.
For the foregoing reasons, we find that genuine issues of material fact remain as to the claims plaintiffs have asserted against B & K, and as such, B & K is not entitled to judgment as a matter of law. Accordingly, we reverse the trial court's grant of summary judgment in favor of B & K.
For the foregoing reasons, the trial court's grant of summary judgment in favor of the Parish of Jefferson is hereby affirmed. Further, the trial court's denial of plaintiffs' motion for leave to file their fifth amending and supplemental petition and its granting of the Parish's motion to strike this pleading are also hereby affirmed. However, the trial court's grant of summary judgment in favor of B & K Construction Company, Inc. is hereby reversed. Finally, this matter is remanded to the trial court for further proceedings consistent with this opinion.
