Lake D'Arbonne Properties, L.L.C. v. Digco Utility Construction, Inc.

Citations: 949 So. 2d 590; 2007 La. App. LEXIS 106; 2007 WL 258286Docket: No. 41,671-CA

Court: Louisiana Court of Appeal; January 30, 2007; Louisiana; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Lake D’Arbonne Properties (LDAP) and CenterPoint Energy Arkla are appealing a judgment that determined CenterPoint’s gas pipeline installation led to a roadbed failure in the Eagle Point Subdivision, developed by LDAP in Union Parish. The judgment is amended to increase damages awarded to LDAP by $2,550.00, and is affirmed as amended. 

LDAP hired Nathan Futch to clear the land and construct approximately 6,000 feet of roadway, which included curves and undulations, without consulting an engineer. Futch used local clay for the roadbed, compacting it in six-inch lifts, and planned to apply asphalt as a final surface. LDAP contracted with CenterPoint’s predecessor, Reliant Energy Arkla, to install a gas main pipeline along a road easement for a total cost of $13,530.00. CenterPoint tasked Digco Utility Construction with the pipeline installation.

In September 2002, Digco laid about 6,115 feet of pipeline, digging a trench approximately three feet deep, which was backfilled and compacted according to Digco's procedures. CenterPoint’s inspector, John Wortham, modified the original plan to trench into the road shoulder instead of boring under culverts. This was initially contested by one of LDAP's owners but was eventually approved based on assurances from Wortham.

Following heavy rain shortly after the pipeline installation, Futch observed that the backfilled dirt collapsed, exposing parts of the pipeline. Despite contacting CenterPoint for assistance, no action was taken, prompting Futch to drain and backfill the trench himself multiple times. Lincoln Asphalt Paving, hired by LDAP to lay asphalt, did not guarantee its work, as it was not responsible for the roadbed construction.

Lincoln typically utilized soil cement for roadbed construction. In November 2002, as asphalt was laid on one side, heavy dump trucks traversed the other side, leading to significant failures on that side. Supervisor Michael Bryan observed deep ruts, initially centered around culvert areas, prompting him to notify Futch. Additional observations noted severe drops in the roadbed and ruts from the asphalt trucks. To remedy the situation, Lincoln proposed adding soil cement to stabilize the affected right side of the road, which was accepted by LDAP at a cost of $22,283.53.

LDAP subsequently filed a lawsuit against CenterPoint and Digco, alleging substandard excavation practices near the roadway. Expert witness Cloyce Darnell, testifying for the defense, attributed the roadbed failure to insufficient materials and poor compaction by Futch. The trial court, however, rejected this assessment, ruling against CenterPoint and awarding damages to LDAP, while dismissing claims against Digco. Both parties appealed, with CenterPoint arguing the trial court wrongly assigned fault and failed to recognize LDAP's lack of damage mitigation. LDAP sought additional damages and claimed Digco should be held jointly liable.

In appellate review, courts do not overturn trial court findings unless there is clear error or manifest unfairness, and reasonable credibility evaluations and inferences should remain intact despite differing opinions. Darnell, recognized as an expert in road design, tested soil samples from the culvert area, determining the sandy clay material was marginally suitable but inadequate as base course material.

Darnell criticized the road's lack of a proper base course, claiming it failed to support the weight of heavy dump trucks (70,000 to 80,000 pounds). He observed signs of classic road base failure but noted no longitudinal cracks in the culvert area, indicating no shifting into the pipeline ditch. Darnell also questioned Futch's method of compacting dirt between the culverts, stating that merely using a dirt buggy was insufficient. Futch testified that rocks were placed in the culvert area to stabilize the dirt above. Darnell argued that the trenches did not cause the roadbed failure for several reasons: the trenches were backfilled and compacted before paving, they were far enough from the pavement edge to avoid structural issues, and road shoulders primarily serve for safety rather than lateral support. The court emphasized that the trier of fact has discretion over expert testimony and may reject or substitute its judgment based on the evidence. Darnell visited the site once in 2004 and reviewed photos and videos but only tested samples from the culvert area and did not conduct soil density tests. The trial court accepted Darnell's testimony but disagreed with his conclusions, noting other witnesses asserted the road was functional. Futch, who constructed the roadbed using six-inch lifts and heavy equipment, believed his experience sufficed to determine proper density, despite not performing required density tests or soil analysis, instead using nearby natural clay. He maintained that soil cement was unnecessary for the road's intended purpose.

Futch believed he had the necessary experience to use clay for road repairs and did not consider adding soil cement until after stability issues arose. He attributed the roadbed problems to Digco's inadequate compaction of dirt used in trench filling along the road shoulder. Futch argued that this failure led to the road's inability to support asphalt trucks during construction. CenterPoint was aware of the risks associated with trenching in the road shoulder, as highlighted by Wortham's comments on utility companies' compaction protocols. However, Digco received no specific compaction instructions and relied on standard procedures, which were insufficient to prevent damage. Futch's attempts to refill and compact the trench were ineffective, as the damage had already occurred, particularly in areas where trenching took place. Evidence indicated that roadbed failure was localized around the trench, while other areas remained intact despite heavy truck traffic.

The trial court found CenterPoint solely responsible for the roadbed failure, a conclusion that was not deemed clearly wrong. However, it ruled that LDAP did not sufficiently prove the extent of its damages, a determination considered incorrect. Futch charged $85 per hour for 30-40 hours of backfilling work necessary to address settling and rain-related ditches, leading to an established entitlement of $2,550 in damages for these efforts. 

Regarding mitigation of damages, the injured party has a duty to minimize losses, which LDAP successfully demonstrated through Futch's proactive measures to manage ditch formation and by stopping asphalt work upon identifying roadbed issues. CenterPoint was aware of these problems, as indicated by Wortham's involvement in adding dirt over the pipeline. Digco asserted immunity under La. R.S. 9:2771 in its response.

A contractor is not liable for damage or defects in construction if the work was done according to plans or specifications not created by the contractor, and the issues arose from those plans or specifications' faults. This immunity applies regardless of when the defects are noticed, and contractors cannot waive this protection. A contractor following such plans is shielded from liability to third parties unless they knew the plans contained deficiencies that could create dangerous conditions. In the case referenced, the failure of a road was attributed to improper dirt compaction after pipeline installation, which was done according to standard procedures without specific instructions from CenterPoint, indicating that the fault lay in CenterPoint's inadequate guidance. Consequently, Digco was granted immunity, and all claims against them were dismissed. The judgment was amended to increase the damage award to $24,833.53 and affirmed at CenterPoint's expense. Evidence presented included observations of washout trenches related to other utilities, and testimonies indicated issues with soil stabilization and compliance with specifications for road construction.