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George v. Reliance Insurance Co.6/5/2002
w, we find no merit to this assertion and affirm.
We review summary judgments de novo using the same criteria that governed the trial court's determination of whether summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767 (La. 3/30/95); 653 So.2d 1152. "After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted." La.Code Civ.P art. 966(C)(1). Thus, the threshold question for a reviewing court is whether a genuine issue of material fact exists. Hardge v. Dubosq, 00-1721 (La.App. 3 Cir. 4/4/01); 797 So.2d 84.
Citing Myers v. Burger King Corp., 618 So.2d 1123 (La.App. 4 Cir. 1993), writs denied, 629 So.2d 348 (La.1993), and Lopez v. Hartford Accident & Indem. Co., 495 So.2d 375 (La.App. 3 Cir. 1986), writs denied, 498 So.2d 757 (La.1986), Family Dollar asserts that, as a matter of law, it is entitled to indemnity from Privat and Regan. Family Dollar argues that these cases stand for the rule of law that when a contract requires procuring liability insurance on behalf of the other party, the party failing to procure the insurance indemnifies that party for whom the insurance should have been procured.
While we agree with this jurisprudence, our review of the record indicates the existence of genuine issues of material fact. Under Section 11(c) of the lease, it is clear that Regan and Privat agreed to provide liability insurance and name Family Dollar as an insured. The record shows that Regan and Privat breached this provision. Thus, although Family Dollar is entitled to damages as a matter of law, the amount and type of damages that may be recoverable remains in dispute.
This presents unresolved issues of fact, including whether Regan and Privat were in good faith or took reasonable efforts to mitigate damages and the specific amount of damages depending on these factors. Accordingly, we agree with the trial court's finding that summary judgment would be improper at this time.
Family Dollar's Second Assignment of Error
Family Dollar asserts that the trial court erred in taxing it with costs of both its own motion for summary judgment and Privat and Regan's motion for rehearing. Finding no error, we affirm.
As this court has already indicated, " trial court is given great discretion in taxing court costs in any manner it deems equitable." Adams v. Canal Indem. Co., 99-1190, p. 12 (La.App. 3 Cir. 5/10/00); 760 So.2d 1197, 1205, writ denied, 00-1636 (La. 9/22/00); 769 So.2d 1212, 00-1637 (La. 9/22/00); 769 So.2d 1213; (citing) La.Code Civ.P. art. 1920. As a general rule, a party cast in judgment is taxed with costs of the proceedings. Id. "However, the trial court may assess costs in any equitable manner and its assessment will not be reversed on appeal in the absence of an abuse of discretion." Id.
In light of the fact that Family Dollar's motion for summary judgment was ultimately denied by the trial court and the great discretion allowed the trial court in taxing court costs, we cannot say that the trial court abused this great discretion in taxing all costs to Family Dollar. As such, the decision of the trial court to tax Family Dollar with all costs is affirmed.
DECREE
The findings of the trial court are affirmed in all respects. All costs associated with this appeal are assigned to Family Dollar.
WRIT DENIED.
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