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Walters v. A-Way Tank Service12/29/2000
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
This case involves an indemnity and defense claim in the context of a suit for personal injury damages. The indemnitee now appeals an adverse summary judgment in favor of the indemnitor and its insurer, dismissing its cross-claim for indemnity.
DISCUSSION OF THE RECORD
A-Way Tank Service, Inc. (A-Way) was in the business of servicing water tanks/towers, which services included sandblasting and painting. On February 14, 1990, A-Way and Consolidated Employment Systems, Inc. (CESI) entered into a service agreement whereby CESI agreed to provide A-Way with personnel and to place all personnel on the CESI payroll. In return, CESI was to invoice A-Way a percentage of the hourly wages. The service agreement also provided that CESI would be bound by terms and conditions outlined in a Hold Harmless and Indemnity Agreement attached to the service agreement and that CESI would maintain insurance coverage.
Michael Todd Walters was hired by Archie Wayne Wilkins, the owner of A-Way, as a groundsman. Although hired by Wilkins, Walters completed a CESI employment application and received paychecks from CESI. In September of 1990, A-Way contracted with the Greater Lake Charles Water Company to sandblast and paint a water tower. In order to prevent the blasting and painting materials from escaping into the atmosphere, A-Way shrouded the tower with a tarpaulin. Workers were required to secure the tarpaulin by tying its straps to a cable located above a catwalk. In order to tie the straps to the cable, a worker had to stand on the handrail of the catwalk located in excess of 100 feet above the ground. Employees of A-Way/CESI successfully performed this task.
On September 26, 1990, Mitchell Mayeaux, a foreman for A-Way, instructed Walters to tie off the tarpaulin. However, Walters, who had performed this duty on other occasions without incident, informed Mayeaux that he did not "feel like going up top" that day because he had a cold. Mayeaux gave Walters the ultimatum of climbing or going home. Walters chose to perform his duties. He had successfully tied off a portion of the tarpaulin and was proceeding on to other duties when he spotted two straps on the tarpaulin that were untied. While in the process of tying off these two straps, Walters fell to the ground and sustained severe injuries.
Walters initially filed a tort suit against A-Way, Wilkins, and Mayeaux wherein he raised claims under both negligence and intentional tort theories. Through supplemental and amending petitions, he added as defendants CESI; Certain Underwriters at Lloyds London (Lloyds), the general liability insurer of CESI; and Employers Insurance of Wausau (Wausau), the workers' compensation insurer of CESI. All of these defendants filed answers to the suit. In their individual answers, Wilkins, A-Way, CESI, Lloyds, and Wausau each asserted that they were individually immune from suit in tort, arguing that Walters' sole remedy against each of them was under the Louisiana Workers' Compensation Law.
After issue had been joined, on February 16, 1993, A-Way, Wilkins, and Mayeaux filed a cross-claim against CESI and Lloyds, seeking indemnity and a defense pursuant to CESI's contractual agreement with A-Way. The language in the agreement relied upon by the cross-claimants provided in part as follows:
CESI agrees to protect, defend, indemnify and hold harmless [A-Way], its Stockholders, Officers, Directors, Agents and/or Employees from and against any and all claims, demands, losses, damages, suits and expenses, including attorney's fees, for damages and/or injury to persons and/or property (including, but not li
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