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Walters v. A-Way Tank Service12/29/2000
(or a substantially similar protection) prior to the conclusion of the settlement. It is not the indemnitee who has the choice of which offer to make to the indemnitor in order to avoid having to prove actual liability. In the instant case, A-Way refers in its appellate brief to the alleged participation of CESI and Lloyds in mediation and discussions between its attorney and counsel for CESI and Lloyds regarding the duty to defend and indemnify. However, these alleged facts are not in evidence on the motion for summary judgment, and we may not consider them. See Willis v. Letulle, 597 So.2d 456 (La.App. 1 Cir. 1992) (holding that the briefs of the parties are not part of the record on appeal). A-Way did properly submit the October 19, 1995 letter as set forth above. However, the letter merely urges the participation in settlement negotiations; it does set forth the terms of a settlement. Furthermore, the actual judgment of dismissal based on the settlement was not signed until April 2, 1996, over five months after the letter, rendering the timing of the letter too attenuated to satisfy the fairness concerns of Morris regarding the opportunity to approve the settlement. Additionally, there is no evidence properly before us that CESI and Lloyds were continuously kept informed of the progress of the settlement negotiations or that they were otherwise afforded sufficient opportunity to approve the contemplated settlement. Thus, we find that the trial court did not err in holding that A-Way was required to prove actual, rather than potential, liability.
Concerning actual liability for intentional acts in this context, our supreme court has held that the meaning of intent is that the actor either (1) consciously desired the physical result of his act, whatever the likelihood of that result occurring from his conduct, or (2) knew that the result was substantially certain to follow from his conduct, whatever his desire might have been as to that result. See Reeves v. Structural Preservation Sys., 98-1795 (La. 3/12/99); 731 So.2d 208. Our supreme court has continued to narrowly construe the intentional act exception. See id.
In the instant case, CESI and Lloyds submitted evidence indicating that A-Way could not meet its burden of proving at a trial on the merits that it was at fault for intentional acts. Specifically, it submitted the deposition testimony of Walters, who had tied off the tarpaulin on other occasions prior to the accident at issue. When asked whether he believed that anyone at A-Way wanted him to be injured, Walters responded that he believed there was negligence. He testified that he had no reason to think that anyone at A-Way wanted him to get hurt. Additionally, A-Way's owner, Wilkins, stated in affidavit that he did not consciously desire that Walters or any other person fall or be injured in any way while tying off the tarpaulin and that he did not know or suspect that it was substantially certain that Walters or any other person would fall while tying off the tarpaulin. Further, A-Way's foreman, Mayeaux, stated in affidavit that he did not feel it was inevitable or virtually sure that Walters would fall on the date at issue and that he did not believe Walters would fall while performing the activity. He further attested that he did not consciously desire that Walters fall or be injured in any way when he asked him to climb the tank to tie off the tarpaulin and that he did not know or suspect that it was substantially certain Walters would fall while tying off the tarpaulin.
On the other hand, it is undisputed that Walters did not have any safety equipment at the time of the accident, that he reported to Mayeaux that he had a cold, and that the activity he was performing at
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