Herzog Contracting Corp. v. Oliver12/19/2001
As amended February 18, 2002.
HERZOG CONTRACTING CORPORATION PLAINTIFF-APPELLANT
v.
ROBERT V. OLIVER, ET AL DEFENDANTS-APPELLEES
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 429,730 Honorable Frank H. Thaxton, III, Judge
John W. Pesnell, Counsel for Defendant-Appellant, Geotechnical Testing. Downer, Kyle & Wilhite, By: Philip E. Downer, III, Kevin W. Hammond, Counsel for Plaintiff-Appellant, Herzog Contracting Corp. Snellings, Breard Sartor, Inabnett & Trascher, L.L.P., By: Wendy E. W. Giovingo, Counsel for Third Party Defendants-Appellees. Sessions & Fishman, By: Glen E. Mercer, Counsel for Defendants-Appellees, Maryland Casualty Co., Maryland Ins. Co. & National Standard Ins. Roos & Frazier, By: John McGinty Frazier, Kean, Miller, Hawthorne, By: Leonard L. Kilgore, III, Melissa M. Cresson, Counsel for Defendant-Appellee, Riverwood International Corp. Barham & Warner, By: Richard G. Barham. Counsel for Defendant-Appellee, West American.
Before Brown, Gaskins and Caraway, JJ.
The opinion of the court was delivered by: Brown, J.
Plaintiff, Herzog Contracting Corporation ("Herzog"), sued Geotechnical Testing Laboratory, Inc. ("GTL"), alleging a breach of contract arising out of GTL's failure to discover hazardous waste materials on property Herzog purchased in October of 1988. Herzog also named as defendants GTL's insurers, the Maryland Insurance Company, the Maryland Casualty Company, and the National Standard Insurance Company ("Maryland Defendants"). GTL filed a third-party demand against these insurers to recover the costs to defend the suit and any amounts in damages it might be required to pay Herzog. After denying coverage and any obligation to defend the suit, the Maryland Defendants filed a motion for summary judgment seeking dismissal of all of GTL's claims, as well as the claims of Herzog. The trial court granted the motion. Both Herzog and GTL have appealed. We affirm.
Facts and Procedural Background
Herzog filed suit against several parties, including GTL, on February 13, 1998, alleging that certain real property ("the site") located in Shreveport, Louisiana, which it purchased on October 11, 1988, from the Oliver Group was contaminated with hazardous waste materials. Herzog asserted that the Oliver Group warranted that the site would be delivered free of any hazardous waste material and that any required clean-up was to be at the sole expense of the seller.
In 1991, the Louisiana Department of Environmental Quality ("DEQ") discovered hazardous substances or waste materials, including Benzo (a) Anthracene, Benzo (a) Pyrene, Chrysene, and Chromium, at the site during an investigation prompted by a citizen's complaint. The source of the contamination allegedly came from creosote wood treatment operations conducted on the site prior to 1983.
Herzog alleges that, prior to its purchase of the property, it contracted with GTL to perform an environmental evaluation to verify that the site was free from environmental pollutants. According to Herzog, GTL*s failure to discover the contamination was a breach of GTL* s contractual obligations. Herzog sought damages for GTL* s alleged breach, including reimbursement for all sums paid by Herzog for the property and all sums paid by Herzog for remediation of the site, as well as costs and attorney fees.
GTL denied that Herzog had retained it to perform or conduct an environmental survey, investigation, ass
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