Cont'l Cas. Co. v. Entergy Gulf States La., L.L.C.
Docket: NO. 2017 CA 0988; CONSOLIDATED WITH 2017 CA 0989
Court: Louisiana Court of Appeal; February 26, 2018; Louisiana; State Appellate Court
Damage occurred to an office building after Entergy Gulf States Louisiana, L.L.C. (Entergy) unintentionally cut a main water line while performing underground utility work during a road-expansion project in Baton Rouge, Louisiana. Following Entergy's dismissal from the litigation via a granted partial summary judgment, two appeals were filed: one by Baton Rouge Water Works Company (BRWW) and another by Cost Segregation Services, Inc. (CSS) and its insurer, Continental Casualty Company (Continental).
The case involves allegations of negligence stemming from Entergy’s actions on April 27, 2010, when it struck BRWW's water line, leading to significant damage in CSS's office. CSS settled its claim with Continental and subsequently filed a petition for subrogation and damages, initially naming Entergy, the City of Baton Rouge's Department of Public Works/Parish of East Baton Rouge, and CSRS, Inc., the contractor. CSRS was later removed as a defendant, and BRWW was added.
Entergy sought summary judgment, claiming compliance with the Louisiana Underground Utilities and Facilities Damage Prevention Law (LA One-Call Law) and asserting statutory immunity. The trial court granted Entergy’s motion, concluding that there was insufficient evidence of a breach of duty. Continental/CSS and BRWW contested this decision, arguing that Entergy could still be liable due to potential failure to maintain a safe clearance zone around BRWW's water main, raising genuine issues of material fact regarding Entergy's negligence.
Appellate courts review summary judgments de novo, applying the same criteria as trial courts. The trial court's role is to determine if there is a genuine issue of triable fact without weighing evidence or assessing truth, resolving doubts in favor of the non-moving party. A fact is deemed material if it can influence recovery or the outcome of the dispute, and a genuine issue exists if reasonable persons could disagree on it. Parties can file for summary judgment for any part of their claims, and such judgments can resolve specific issues without disposing of the entire case. The burden of proof initially lies with the moving party, but if they will not bear the burden at trial, they must only demonstrate the absence of factual support for the opposing party's claims. The opposing party must then provide sufficient factual support to show a genuine issue exists, or risk summary judgment against them. The court will only consider documents filed in relation to the motion. If the adverse party fails to respond with specific facts, summary judgment may be granted. The materiality of disputed facts is assessed in light of applicable substantive law.
Under the LA One-Call Law, entities engaging in excavation must confirm the location of underground facilities by contacting the LA One-Call notification center 48 to 120 hours before excavation. Utility operators are then notified and must mark underground utilities by a specified date to prevent damage during excavation.
Markings indicating the location of underground utilities are valid for twenty calendar days from the 'mark by' time, as per La. R.S. 40:1749.14(C)(1)(a) and (b)(iii). Excavators are required to take reasonable precautions to protect these markings and must plan excavations to avoid damaging underground utilities, maintaining a safe clearance zone defined as the width of the utility plus eighteen inches on either side (La. R.S. 40:1749.14(D)). Compliance with the LA One-Call Law provides immunity from civil liability for damages caused by negligence, but this immunity does not apply to negligence claims against the excavators themselves (La. R.S. 40:1749.14(E)(2) and La. R.S. 40:1749.21(A)). Entergy's claim to immunity for notifying LA One-Call prior to excavation is deemed unfounded. Evidence suggesting Entergy's negligence leading to damage to Continental/CSS indicates that liability remains a material issue for trial. Louisiana negligence law requires proof of five elements, including the existence of a duty owed by the defendant to the plaintiff and whether the defendant's conduct fell below the standard of care, causing the plaintiff's damages. Entergy's statutory duties include notifying LA One-Call of proposed excavations and taking prudent measures to protect marked utilities within the designated safe clearance zone.
Entergy notified LA One-Call before excavation, prompting BRWW to mark the location of its underground water main line, indicating that Entergy fulfilled its initial duty. However, it remains unclear whether Entergy took all reasonable measures to protect the marked water main line within the safe clearance zone, despite the obligation for excavators to ascertain the location of underground utilities. Deposition testimonies from Entergy employees revealed discrepancies regarding the size of the safe clearance zone, ranging from ten to eighteen inches, and indicated that Entergy broke the water main line during excavation. BRWW's locator, Brian Williams, asserted he marked the water main line accurately based on experience but admitted he did not take measurements and lacked a verification system for the markings. Additionally, BRWW's maintenance foreman, Travis Harrison, stated he used various methods to locate lines, including tracing wires, and emphasized the standard practice of physically digging around the locate marker to confirm the line's location before boring. Donald Kozan, Jr., a BRWW construction supervisor, affirmed that Entergy should have performed a spot dig prior to boring to accurately identify the water line. The review concluded that genuine issues of material fact exist regarding Entergy's compliance with the LA One-Call Law and its duty to use reasonable and prudent measures, such as spot digging, to protect underground utilities during the excavation, thus precluding summary judgment in Entergy's favor.
Genuine issues of material fact exist regarding whether Entergy's alleged breach of duty resulted in damage to Continental/CSS, leading to an error by the trial court in granting partial summary judgment in favor of Entergy and dismissing it from the case. The judgment is reversed, and the matter is remanded for further proceedings, with all costs of the appeals assigned to Entergy Gulf States Louisiana, L.L.C. A related subrogation lawsuit, America First Insurance Company v. City of Baton Rouge, was filed shortly after the Continental and CSS petition and consolidated for trial. While some defendants have been dismissed, those dismissals do not affect the consolidated appeals. The judgment against Entergy is considered a partial final judgment, allowing for immediate appeal without the trial court's certification. Entergy's motion for summary judgment, filed on August 3, 2016, falls under the amended version of La. Code Civ. P. art. 966, effective January 1, 2016. The LA One-Call Law aims to safeguard property and public safety from underground utility damage, imposing penalties regardless of actual damage, and clarifying that it does not intend to replace Louisiana tort principles.
