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Walters v. A-Way Tank Service12/29/2000
the time of the accident required him to stand on the handrail of a catwalk over 100 feet above the ground. However, these facts are not sufficient to create a material issue of fact.
Specifically, the substantially-certain-to-follow element requires more than a showing of a reasonable probability that an injury will occur. Id. Further, the mere appreciation of a risk does not rise to the level of intent, and reckless or wanton conduct by an employer does not constitute intentional wrongdoing. Id. Indeed, " elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation." Id. at 212.
Rather, the substantially-certain-to-follow element expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only "intended" to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire. Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers' Compensation Law & Practice, ยง 365, p. 208. Id. at 212-13.
In Reeves, the employer directed an employee to manually move a sandblasting pot that weighed 350 to 400 pounds when empty, a procedure which was prohibited by OSHA and which the employee's supervisor feared would eventually lead to injury . However, as in the instant case, the plaintiff in that case as well as other employees had performed the activity at issue on several occasions without injury. In fact, as in the instant case, the plaintiff had already partially performed the activity with no trouble. Therefore, the supreme court held that it could not reasonably be said that it was substantially certain that the plaintiff would be injured by engaging in the activity. In doing so, the supreme court, finding manifest error, reversed a jury finding of an intentional act.
In the instant case, as in Reeves, while there was evidence sufficient to show that A-Way's conduct may have been negligent or even grossly negligent, there was insufficient evidence presented to show that A-Way committed an intentional act. Thus, even assuming the indemnity agreement covered intentional acts, the trial court did not err in dismissing A-Way's cross-claim for indemnity pursuant to its written contract with CESI.
In any event, A-Way contends that the trial court erred in ruling that Lloyds' duty to A-Way arose out of the same obligation as CESI's duty, i.e., the contractual indemnity language previously quoted. Rather, A-Way contends that Lloyds' duty to defend and indemnify it arose out of the Lloyds insurance policy.
However, CESI and Lloyds, not A-Way, filed the motion for summary judgment. The motion itself does not clearly place the Lloyds insurance issue before the court. The memorandum of CESI and Lloyds in support of the motion does address the insurance issue, but only to the extent of alleging prior court statements regarding the lack of coverage under the policy. Moreover, CESI and Lloyds did not file as an exhibit the actual insurance policy for the trial court to interpret but filed a document of the trial court dated March 14, 1997, and entitled OPINION. That document states in part that "the exclusion for employee suits and intentional
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