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Walters v. A-Way Tank Service12/29/2000
otion for summary judgment seeking dismissal of A-Way's remaining cross-claim addressing this issue. In the motion, CESI and Lloyds asserted that (1) they did not unambiguously agree to indemnify A-Way for damages resulting from the intentional acts of A-Way and/or (2) A-Way could not have been held actually liable for Walters' intentional act claim such that A-Way's settlement of the intentional act claim was unreasonable and unnecessary. On January 14, 2000, the trial court granted summary judgment in favor of CESI and Lloyds, dismissing all claims and cross-claims of A-Way against them. In doing so, the trial court concluded that, because A-Way did not give CESI an opportunity to approve the settlement, A-Way was required to prove actual, rather than potential, liability for an intentional act in order to defeat the motion for summary judgment. Further, the trial court found that there was insufficient proof of actual liability for intentional acts.
A-Way appealed the summary judgment, contending that the trial court erred in concluding that (1) CESI did not owe it a duty to indemnify and defend on claims for intentional acts, (2) Lloyds did not have a duty to defend A-Way for the claims for intentional tort, and (3) Lloyds' duty to it arose out of the same obligation as CESI's duty.
OPINION
A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to the judgment as a matter of law. La.Code Civ.P. art. 966(B). The procedure is now favored. La.Code Civ.P. art. 966(A)(2). Initially, the burden of producing evidence at the hearing on the motion for summary judgment is placed on the mover, who ordinarily can meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. La.Code Civ.P. art. 966(C)(2); Babin v. Winn-Dixie La., Inc., 00-0078 (La. 6/30/00); 764 So.2d 37. At that point, the party who bears the burden of proof at trial must come forth with evidence that demonstrates he will be able to meet that burden at the trial on the merits. Id. Once the moving party has properly supported the motion for summary judgment, the failure of the nonmoving party to produce evidence of a material issue of fact requires the granting of the motion. Id.
Pivotal to the issue of indemnity under this agreement is whether A-Way was required to prove actual liability or potential liability to Walters to be successful in its indemnity claim. A-Way contends that potential liability was its burden, while CESI and Lloyds contend that A-Way was required to prove actual liability. Both cite Morris v. Schlumberger, Ltd., 445 So.2d 1242 (La.App. 3 Cir.), writ denied, 449 So.2d 1345 (La.1984), in support of their positions. In Morris, this court stated the following in the context of a maritime contract:
The indemnitee's unilateral act cannot bind the indemnitor without prior notice and an opportunity to defend which are indispensable due process requirements.
Under equitable principles of indemnity, in order for a settling indemnitee to support his indemnity claim he must prove actual liability to the original plaintiff and that the amount paid in settlement was reasonable. To avoid having to prove actual liability, the indemnitee should offer the indemnitor before any settlement is concluded the choice of (1) approving the settlement or (2) taking over the indemnitee's defense. If the indemnitor refuses to take either course, then the indemnitee will only be required to show potential liability to the original plaintiff to suppor
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