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George v. Reliance Insurance Co.6/5/2002
WRIT DENIED.
This is an action for indemnity and attorney's fees resulting from the defense of a personal injury action. The movant filed for summary judgment. This motion was ultimately denied by the trial court. As a result, the movant applied for writs challenging the denial. We called up the case for briefing, arguments, and an opinion. We now deny the writ application, finding no error in the trial court's rulings.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 1986, Thomas K. Regan and Kenneth O. Privat entered into a lease with Family Dollar Stores of Abbeville, Louisiana ("Family Dollar") to lease space in the Wager Shopping Center at 826 North Parkerson Avenue in Crowley, Louisiana. On October 4, 1989, the lease was amended to include additional space for a Family Dollar Store. On April 17, 1998, the lease was extended to December 31, 2000. The lease provided that the landlord shall maintain insurance against public liability for personal injury arising out of the use of common areas. The lease further provided that the tenant shall be named as the additional insured under the policy.
The case before us arises out of an action for personal injuries resulting from an alleged trip and fall accident. The accident occurred outside of the Family Dollar store in Crowley, Louisiana. The plaintiff filed a petition for damages alleging that on or about November 7, 1998, she tripped and fell on the sidewalk outside of the Family Dollar Store because of a three-inch gap in the sidewalk pallets. Family Dollar answered the suit and filed a cross-claim against Regan, Privat, and their insurer, Trinity Universal Insurance Company ("Trinity"), alleging that Privat and Regan breached the lease agreement between the parties by failing to add Family Dollar as an additional insured under the Trinity policy. This cross-claim additionally alleged that Privat and Regan owed indemnity and cost of defense to Family Dollar because of the alleged breach.
Family Dollar then moved for summary judgment on their cross- claim. A hearing was held, on this issue, on May 14, 2001. After the hearing, the trial court rendered judgment in favor of Family Dollar ordering that Regan and Privat provide past and future indemnity and defense. This judgment was signed on June 25, 2001. Alleging that the trial court's ruling was contrary to the law and the evidence, Regan and Privat filed a motion for rehearing requesting that the trial court reverse its prior ruling and deny Family Dollar's motion for summary judgment. Following briefing and argument, the trial court granted Regan and Privat's motion for rehearing, reversed its prior judgment granting Family Dollar's motion for summary judgment, and assessed all costs of both Family Dollar's motion for summary judgment and Regan and Privat's motion for rehearing against Family Dollar.
As a result of the trial court's ruling, Family Dollar now seeks supervisory writ of the trial court's decision. Family Dollar first asserts that the trial court erred in denying Family Dollar's motion for summary judgment against Regan and Privat. Second, Family Dollar asserts that the trial court erred in taxing it with costs of both its own motion for summary judgment and Regan and Privat's motion for rehearing.
LAW AND ANALYSIS
Family Dollar's First Assignment of Error
As its first assignment of error, Family Dollar alleges that the trial court erred in denying their motion for summary judgment. Specifically, Family Dollar alleges that summary judgment is appropriate as no genuine issue of material facts remain and that Family Dollar is entitled to summary judgment as a matter of law. Upon revie
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