ST PAUL GUARDIAN INSURANCE COMPANY v. SERVICES INC (2026)

Plaintiff/Appellant, St. Paul Guardian Insurance Company (“St. Paul”), appeals a judgment in favor of Defendants/Appellees, A.B.S. Services, Inc. (“ABS”) and Anthony J. Bertas (“Bertas”), and against St. Paul, wherein the trial court granted ABS and Bertas's motion for summary judgment and dismissed all claims asserted by St. Paul against them with prejudice. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

In 2004, ABS entered into a subcontract with James Construction Group (“James”) to build mechanically stabilized walls for the Picardy Avenue Interchange Project (“Picardy Project”) on Interstate 10 in East Baton Rouge Parish. St. Paul issued payment and performance bonds in connection with the Picardy Project, naming ABS as principal and James as obligee. Additionally, ABS and Bertas executed two indemnity agreements. The May 19, 2004 indemnity agreement was executed in favor of St. Paul,¹ and the June 7, 2004 indemnity agreement was executed in favor of Travelers Casualty and Surety Company of America (“Travelers”), St. Paul Fire and Marine Insurance Company, any of their present or future direct or indirect parent companies, any of the respective present or future direct or indirect affiliates or subsidiaries of such companies and parent companies, and/or any successors or assigns.

Disputes arose during the course of the Picardy Project, and ABS demobilized by removing personnel, equipment, and materials from the project site in August 2005. James, the general contractor, then placed ABS in default of its obligations under the subcontract and made a claim against the performance bond, alleging ABS breached its contract and caused Janies to suffer delay damages and additional costs. In March 2006, ABS filed suit against James, and in 2015, a jury found that ABS was not in default under the subcontract and that James was in default under the subcontract. The trial court signed a final judgment in that matter on December 1, 2015.

On July 15, 2016, St. Paul filed a petition, naming ABS and Bertas as defendants. St. Paul asserted that it was entitled to a judgment ordering ABS and Bertas to indemnify it for all liability, losses, and expenses incurred or sustained in connection with the bonds, the litigation, and with enforcing St. Paul's rights under the indemnity agreements; recognizing the assignment to St. Paul of all of ABS's and Bertas's accounts, including any judgment or money owed or received in connection with the litigation, to the extent of St. Paul's losses and expenses under the indemnity agreements; and recognizing the security interest in all of ABS's and Bertas's accounts. St. Paul stated that it incurred, as of the date of the petition, $486,194.48 in losses due to the advance made to James and $2,161,986.09 in expenses associated with defendant against the bond claims and enforcing the indemnity agreements.

In response to St. Paul's petition, ABS and Bertas filed an answer and reconventional demand on September 12, 2016. In their reconventional demand, ABS and Bertas contended St. Paul paid James amounts that were not provided for under the terms of any agreement they had with St. Paul; ABS advised St. Paul that it had not breached its subcontract with James and that James was in breach; St. Paul paid claims to James under a reservation of rights and continued to expend funds to pay for attorney fees and experts; St. Paul's actions required ABS to incur unnecessary and additional costs, attorney fees, expert fees, and expenses; St. Paul failed to present evidence at trial that would have increased the penalties and/or damages awarded to ABS; and ABS and Bertas were entitled to recover damages from St. Paul. St. Paul filed an answer to the reconventional demand on September 27, 2016.

On December 20, 2023, ABS and Bertas filed a motion for summary judgment. ABS and Bertas contended that there was no genuine issue of material fact, that St. Paul could not satisfy its burden of proof on its indemnity claims against them, and that they had no obligation to indemnify St. Paul for any amounts St. Paul was seeking. Accordingly, ABS and Bertas asserted that they were entitled to a judgment as a matter of law dismissing St. Paul's claims against them. In support of their motion, ABS and Bertas filed various attachments.

On January 12, 2024, St. Paul filed an opposition to the motion, contending that ABS and Bertas incorrectly conflated the payment and performance bonds previously issued by St. Paul in connection with the Picardy Project and the May 19, 2004 and June 7, 2004 indemnity agreements executed by ABS and Bertas. St. Paul argued that its claims were controlled solely by the terms and conditions of the indemnity agreements. St. Paul contended that ABS and Bertas expressly agreed to indemnify it without qualification for all loss and expense of any kind or nature, including costs of litigation, expenses, attorney fees, and other professional fees incurred by St. Paul in connection with issuing the bonds and enforcing the indemnity agreements. In support of its opposition, St. Paul referenced ² numerous documents that were previously filed in the record, including the affidavit of Mark Marino, the Second Vice President of Construction Services Claim, Bond, and Specialty Insurance for St. Paul.

Thereafter, on January 23, 2024, ABS and Bertas filed a reply memorandum, contending that their motion for summary judgment should be granted because St. Paul failed to establish a genuine issue of material fact or that ABS and Bertas were not entitled to judgment as a matter of law.

The trial court heard ABS and Bertas's motion for summary judgment on January 29, 2024. On April 23, 2024, the trial court signed a judgment sustaining ABS and Bertas's objection to the affidavit of Marino and ordering that it would not be considered as supporting evidence for St. Paul's motion for summary judgment or in opposition to ABS and Bertas's motion for summary judgment. The trial court sustained the objection after finding that St. Paul failed to respond to requests for production of documents as ordered by this court and failed to make its sole witness, Marino, available for a deposition after numerous requests by ABS and Bertas. The court further found that St. Paul's failure to comply with discovery deprived ABS and Bertas of their due process rights and unfairly prejudiced them in defense of their claims.

Also on April 23, 2024, the trial court signed a judgment granting ABS and Bertas's motion for summary judgment and dismissing St. Paul's claims against ABS and Bertas with prejudice. Thereafter, St. Paul filed a motion for new trial, which was denied after a hearing. St. Paul appealed the April 23, 2024 judgment granting summary judgment in favor of ABS and Bertas and against St. Paul.³ On appeal, St. Paul contends that the trial court erred in sustaining ABS and Bertas's objection to the affidavit of Marino and in granting ABS and Bertas's motion for summary judgment.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Grady v. Ahles, 2024-0244 (La. App. 1st Cir. 12/20/24), 404 So. 3d 886, 890. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148 (La. App. 1st Cir. 2/28/19), 274 So. 3d 583, 587.

The burden of proof on a motion for summary judgment rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether there is a genuine issue of material fact. Harris v. Tractor Supply Company, 2023-0337 (La. App. 1st Cir. 10/30/23), 377 So. 3d 726, 732, writ denied, 2023-01489 (La. 1/17/24), 377 So. 3d 245. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id. at 733.

In its first assignment of error, St. Paul contends that the trial court erred in sustaining ABS and Bertas's objection to the affidavit of Marino that was referenced by St. Paul in opposition to ABS and Bertas's motion for summary judgment. Louisiana Code of Civil Procedure article 966(D)(2) provides that the court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. La. C.C.P. art. 966(D)(2).

Here, ABS and Bertas did not raise an objection to Marino's affidavit in their reply memorandum. There were two motions for summary judgment before the trial court. First, St. Paul filed a motion for summary judgment on January 29, 2021. ABS and Bertas filed an opposition to St. Paul's motion and objected to Marino's affidavit.⁴ Later, on December 20, 2023, ABS and Bertas filed a motion for summary judgment, which is the subject of this appeal. In opposition to their motion, St. Paul referenced the affidavit of Marino. Thereafter, ABS and Bertas filed a reply memorandum, but they did not object to Marino's affidavit that was referenced in St. Paul's opposition.⁵ Since ABS and Bertas's reply memorandum did not contain an objection to Marino's affidavit referenced in opposition to their motion for summary judgment, the trial court erroneously considered ABS and Bertas's objection and excluded the affidavit. Thus, we find that the trial court erred in sustaining ABS and Bertas's objection to the affidavit and not considering it as supporting evidence in opposition to ABS and Bertas's motion for summary judgment. See Pottinger v. Price, 2019-0183 (La. App. 1st Cir. 10/23/19), 289 So. 3d 1047, 1053. Therefore, we reverse the April 23, 2024 judgment that sustained ABS and Bertas's objection to Marino's affidavit that was referenced in opposition to ABS and Bertas's motion for summary judgment. This assignment of error has merit.

In its second assignment of error, St. Paul contends the trial court erred in granting summary judgment because there are genuine issues of material fact that preclude the granting of ABS and Bertas's motion for summary judgment. St. Paul argues that the plain language of the indemnity agreements does not condition reimbursement on a default by ABS, does not “carve out” fees incurred in defending against James's bad faith claim, and does not require that the fees incurred be necessary and reasonable. Further, St. Paul argues that there is a genuine issue of material fact as to whether Travelers and St. Paul are affiliates within the meaning of the indemnity agreements.

The purpose of an indemnity agreement is to allocate the risk inherent in the activity between the parties to a contract. Naquin v. Louisiana Power & Light Co., 2005-2103 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1156, 1161, writ denied, 2006-2476 (La. 12/15/06), 945 So. 2d 691. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law even in the absence of an indemnity agreement. McCary v. Oceaneering International, Inc., 2017-1163 (La. App. 1st Cir. 2/27/18), 243 So. 3d 613, 616. When the indemnity obligation is expressed in a contract between the parties, the contract forms the law between the parties and must be interpreted according to its own terms and conditions. See id.

The determination of whether a contract is clear or ambiguous is a question of law. TruFund Financial Services, Inc. v. City of Baton Rouge/Parish of East Baton Rouge, 2024-1123 (La. App. 1st Cir. 5/22/25), 413 So. 3d 570, 576, writ denied, 2025-00904 (La. 11/5/25), 420 So. 3d 40. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law, and summary judgment is appropriate. Id.

In their motion for summary judgment, ABS and Bertas contend that there is no genuine issue of material fact and that St. Paul cannot satisfy its burden of proof on its indemnity claims against them, so they have no obligations to indemnify St. Paul for any alleged amounts claimed in its lawsuit.

The May 19, 2004 indemnity agreement provides, in pertinent part:

WHEREAS, [ABS] may from time to time request St. Paul Fire and Marine Insurance Company and/or Seaboard Surety Company and/or St. Paul Guardian Insurance Company and/or St. Paul Mercury Insurance Company and/or United States Fidelity and Guaranty Company and/or Fidelity and Guaranty Insurance Underwriters, Inc. and/or Fidelity and Guaranty Insurance Company and/or any and all affiliates, subsidiaries, divisions, successors, assigns, co-sureties, and/or reinsurers (hereinafter collectively called SURETY) to execute as surety or guarantor, or procure the execution of, certain surety bonds, undertakings, guaranties, stipulations or other obligatory agreements (all such agreements being hereinafter referred to as BOND or BONDS); and

WHEREAS, [ABS] by executing this Agreement represent that they have a material and beneficial interest in the obtaining of such BONDS by each of the CONTRACTORS.

NOW, THEREFORE, in consideration of the execution of any one or more such BONDS, [ABS], for themselves, their respective personal representatives, successors and assigns, jointly and severally, covenant and agree, with respect to all BONDS heretofore or hereafter executed for the CONTRACTOR, that:

* * *

4. [ABS] shall indemnify [St. Paul] and hold it harmless from and against all claims, damages, expenses, losses, costs, professional and consulting fees, disbursements, interests and expenses of every nature (including premiums and fees due for the issuance and continuance of any BOND or BONDS) which [St. Paul] may sustain, incur or become liable for by reason of having executed or procured the execution of any BOND or BONDS, or by making any investigation of any matter concerning any BOND or BONDS, or by prosecuting or defending any action in connection with BOND or BONDS, or by recovering any salvage or enforcing this Agreement. In the event [St. Paul] advances funds for the benefit of any CONTRACTOR in connection with work subject to a BOND or BONDS (hereinafter sometimes referred to as BONDED CONTRACT) and/or for the discharge of obligations incurred in connection with a BONDED CONTRACT, such advances shall be deemed “losses” under the terms of this Agreement whether or not such advances have been so used by the CONTRACTOR.

Additionally, the June 7, 2004 indemnity agreement provides, in pertinent part:

We the undersigned, individually and for and on behalf of all other Indemnitors, enter into this General Agreement of Indemnity (“Agreement”) in favor of Company ․

WHEREAS, in the transaction of business, Bonds have heretofore been and may hereafter be executed by Company, in connection with the execution, delivery and/or assumption of obligations of such Bonds, Company requires complete indemnification.

NOW, THEREFORE, as an inducement to Company and in consideration of Company's execution and/or delivery of one or more Bonds, refraining from cancelling one or more Bonds, and/or assumption of obligations by Company of one or more Bonds, and for other good and valuable consideration, the Indemnitors jointly and severally agree with Company as follows:

1. Definitions: For purposes of this Agreement, the following definitions apply, which definitions shall be equally applicable to both the singular and plural forms of such terms:

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Company - Travelers Casualty and Surety Company of America, St. Paul Fire and Marine Insurance Company, any of their present or future direct or indirect parent companies, any of the respective present or future direct or indirect affiliates or subsidiaries of such companies and parent companies, and/or any of the aforementioned entities’ successors or assigns.

* * *

Loss - All loss and expense of any kind or nature, including attorneys’ and other professional fees, which Company incurs in connection with any Bond or this Agreement, including but not limited to all loss and expense incurred by reason of Company's: (a) making any investigation in connection with any Bond, (b) prosecuting or defending any action in connection with any Bond, (c) obtaining the release of any Bond, (d) recovering or attempting to recover Property in connection with any Bond or this Agreement, (e) enforcing by litigation or otherwise any of the provisions of this Agreement, and (f) all interest accruing thereon at the maximum legal rate.

Obligee - Any person or entity in whose favor a Bond has been issued, and that person's or entity's successors and assigns.

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3. Indemnification and Hold Harmless: Indemnitors shall exonerate, indemnify and save Company harmless from and against all Loss. An itemized, sworn statement by an employee of Company, or other evidence of payment, shall be prima facie evidence of the propriety, amount and existence of Indemnitors’ liability. Amounts due to Company shall be payable upon demand.

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7. Joint and Several Liability: The obligations of Indemnitors hereunder are joint and several. Company is authorized to settle with any one or more of the Indemnitors individually, and without reference to the others, and any such settlements shall not bar or prejudice actions by Company against or affect the liability of the other Indemnitors hereunder.

ABS and Bertas have the initial burden of proof as the movers on the motion for summary judgment. See La. C.C.P. art. 966(D)(1). However, they would not have the burden of proof at trial because the party seeking to enforce an indemnity agreement bears the burden of proof. See TruFund Financial Services, Inc., 413 So. 3d at 575. Therefore, ABS and Bertas must point out the absence of factual support for one or more elements essential to St. Paul's claim. See La. C.C.P. art. 966(D)(1).

ABS and Bertas contended that St. Paul could not prove that they entered into an indemnity agreement that indemnifies St. Paul for its alleged attorney fees, expert fees, and other litigation costs and expenses if ABS was not in default on the subcontract and James was in default of the subcontract with ABS. ABS and Bertas further contended that St. Paul could not prove that they entered into an indemnity agreement that unambiguously and unequivocally expresses an intent by ABS to indemnify St. Paul for its alleged attorney fees, expert fees, and other litigation costs and expenses allegedly incurred by St. Paul in defense of a third-party claim made against St. Paul by James for St. Paul's own fault and bad faith. Additionally, ABS and Bertas contended that St. Paul could not prove that it sustained alleged losses for which it is entitled to indemnity from ABS.

In support of its motion for summary judgment, ABS and Bertas attached the affidavit of Bertas. Bertas stated that he is the founder, the president, and an employee of ABS. He stated that in 2004, ABS entered into a subcontract with James to build mechanically stabilized earthen walls for the Picardy Project pursuant to James's contract with the Louisiana Department of Transportation and Development. He further stated that as a part of the Picardy Project, ABS purchased payment and performance bonds from St. Paul. Bertas stated that St. Paul issued the payment and performance bonds because ABS paid for the bonds and that the bonds do not contain indemnity agreements. Bertas averred that in 2004 and 2005, James defaulted on its obligations to ABS on the Picardy Project. Bertas further stated that neither he nor ABS agreed to indemnify St. Paul for any amounts related to claims on the bonds unless there was a finding that ABS defaulted on the subcontract. He stated that ABS did not default on its obligations under the subcontract with James and that a final judgment was issued showing that ABS did not default. Bertas stated that he notified St. Paul of the fact that James was in default on its subcontract because it was failing to pay ABS for its work, and thereafter, ABS sued James for James's default under the subcontract. Further, Bertas stated that James made St. Paul a party to the litigation by a third-party demand wherein James alleged that St. Paul acted in bad faith in failing to properly investigate the claims related to St. Paul's performance bond. Bertas stated that during the litigation, St. Paul defended itself from James's claims of fault and bad faith, not claims related to the performance bond. Finally, Bertas averred that in 2015, a jury found in favor of ABS and determined that James defaulted on its subcontract with ABS. Bertas concluded by stating,

ABS and I did not agree and would never agree to indemnify St. Paul for any amounts related to claims on the ․ bonds unless there was a finding that ABS defaulted on its obligations under [the subcontract]. ABS never defaulted on its obligations under the subcontract with [James,] and a final judgment was issued showing that ABS did not default.

ABS and Bertas also attached some of the contracts and agreements ⁶ entered into for the Picardy Project and correspondences from 2005 and 2006, which detail various issues with the Picardy Project. Additionally, they attached the jury verdict form, wherein the jury found that James breached its subcontract with ABS, and a decision from this court, which amended the trial court's December 1, 2015 judgment to award $15,600.00 in attorney fees and affirmed the judgment in all other respects.

Next, ABS and Bertas attached the affidavit of Henry D.H. Olinde, Jr. in support of their motion. Olinde stated that he was lead counsel of record for the Picardy Project litigation between ABS and James. He stated that St. Paul knew from the beginning that ABS was not in default under the subcontract. He further stated that a jury specifically found that ABS was not in default under the subcontract, James was in default under the subcontract, and St. Paul was not in bad faith due to its handling of James's claims on the bond. He testified that St. Paul hired its own counsel primarily to defend itself against James's allegations of St. Paul's own improper actions and bad faith under Louisiana's insurance statutes and St. Paul's counsel did not ask questions in about 75% of the 42 depositions taken. Olinde stated that the bond issued by St. Paul contains language that requires ABS to be put in default by James on its subcontract before St. Paul has any liability under the bond.⁷ He additionally stated that St. Paul's expense ledger provided to ABS contains a bare summary of charges by attorneys, experts, and other costs without any explanation or description. Olinde stated that there is “a significant question as to the necessity and reasonableness of the legal fees, expert fees, and other litigation costs and expenses claimed by St. Paul in this matter as it would relate to any alleged indemnity by Bertas or ABS pursuant to the [indemnity agreement] under the circumstances of this case.” He further stated that when James appealed the December 1, 2015 judgment in favor of ABS, the appellate court amended ABS's attorney fees award to $15,600.00. Additionally, correspondences and the jury verdict form were attached to Olinde's affidavit.

In further support of their motion for summary judgment, ABS and Bertas attached St. Paul's responses to ABS and Bertas's interrogatories and requests for production of documents; an order on a motion to compel filed by ABS and Bertas; a revised first set of interrogatories, requests for production of documents, and requests for admissions; responses to ABS and Bertas's first set of requests for admissions; a notice of judgment and disposition from this court; and a writ action by this court.

In opposition to the motion for summary judgment, St. Paul relied on the June 7, 2004 indemnity agreement. St. Paul contended that the indemnity agreement obligates ABS and Bertas, without qualification, to indemnify St. Paul for all losses and expenses incurred in connection with issuing the bonds and enforcing the indemnity agreements. St. Paul further contended that the agreement does not condition ABS and Bertas's obligation on the outcome of any litigation or any bond claim.

St. Paul referenced the affidavit of Marino. Marino stated that he is the Second Vice President of Construction Services Claim, Bond, and Specialty Insurance for St. Paul. He stated that Bertas executed two indemnity agreements in favor of St. Paul on behalf of ABS and himself. Marino stated that because ABS and Bertas agreed to indemnify St. Paul, St. Paul issued a performance bond conditionally guaranteeing ABS's performance of its subcontract with James and a payment bond conditionally guaranteeing ABS's payment of labor and material costs. Marino stated that St. Paul actively defended the action on the bond with retained counsel and multiple consulting and testifying experts, incurred significant attorney and other professional fees, and other costs and expenses over thirteen years. Additionally, Marino stated that the documentation attached to his affidavit accurately reflected St. Paul's losses sustained and expenses incurred in connection with its issuance of the bonds and enforcing its indemnity rights under the indemnity agreements.⁸ He further stated that the losses and expenses incurred by St. Paul total $2,079,786.10, which include $1,200,000.00 in attorney's fees and over $1,000,000.00 on expert witnesses, technical consultants, and litigation support services, less $222,582.25 in reimbursements from James. He stated that St. Paul has incurred at least $55,010.05 in expenses in connection with enforcing its indemnity rights against ABS and Bertas. Marino further stated that St. Paul agreed to permit James to pay the full amount of the December 1, 2015 judgment to ABS's attorney and permit ABS's attorney to release most of the funds to ABS while reserving $1,500,000.00 in ABS's attorney's trust account until St. Paul consented to or the court ordered its release.

In further support of its opposition to ABS and Bertas's motion for summary judgment, St. Paul referenced various documents attached to Marino's affidavit, including the May 19, 2004 and the June 7, 2004 indemnity agreements, the December 1, 2015 judgment, an expense compilation, and ABS's motion to fix attorney fees and costs with various attachments, including but not limited to deposition excerpts, ledgers, and invoices; ABS and Bertas's motion to release funds and memorandum in support; the jury verdict form and a second copy of the December 1, 2015 judgment; correspondences; a writ denial by the Louisiana Supreme Court; St. Paul's memorandum in opposition to the motion to release funds with attachments; and the February 10, 2020 judgment denying ABS and Bertas's motion to release funds.

After a thorough de novo review, we find that genuine issues of material fact remain. The May 19, 2004 indemnity agreement was executed by ABS and Bertas in favor of St. Paul. The indemnity agreement states that ABS and Bertas agree to indemnify St. Paul and hold it harmless from and against all claims, damages, expenses, losses, costs, professional and consulting fees, disbursements, interests, and expenses of every nature that St. Paul may sustain, incur, or become liable for by reason of having executed or procured the execution of any bond(s), or by making any investigation of any matter concerning any bond(s), or by prosecuting or defending any action in connection with any bond(s), or by recovering any salvage or enforcing the agreement. However, the agreement does not expressly and unequivocally address or establish an obligation derived from St. Paul's own negligence or fault. Specifically, the agreement does not suggest that ABS and Bertas were obligated to assume responsibility for damages caused solely by the negligent acts of St. Paul.⁹ See Barnett v. American Const. Hoist, Inc., 2011-1261 (La. App. 1st Cir. 2/10/12), 91 So. 3d 345, 350.

There is a dispute as to whether St. Paul incurred expenses as a result of a condition that would fall under the indemnity agreement or whether it incurred expenses as a result of its own negligence or fault within that obligation. ABS and Bertas's evidence calls into question whether St. Paul defended the claims on the performance bond or defended itself from its own alleged bad faith, fault, and negligence. On the other hand, St. Paul's evidence establishes that St. Paul defended the action on the bond with retained counsel and multiple consulting and testifying experts, incurred significant attorney and other professional fees, and other costs and expenses over thirteen years. St. Paul's evidence further establishes that it incurred expenses in connection with having issued the bonds and enforcing its indemnity rights under the agreements. Since there is a dispute as to whether St. Paul is seeking to be indemnified against losses resulting from actively defending the action on the bond or from its own negligence, we find a genuine issue of material fact exists. After a thorough de novo review, we find that the trial court erred in granting ABS and Bertas's motion for summary judgment.

CONCLUSION

For the above and foregoing reasons, the April 23, 2024 judgment granting summary judgment in favor of A.B.S. Services, Inc. and Anthony J. Bertas and against St. Paul Guardian Insurance Company is reversed. All costs of this appeal are assessed one-half against St. Paul Guardian Insurance Company and one-half against A.B.S. Services, Inc. and Anthony J. Bertas.

REVERSED.

FOOTNOTES

1.   Specifically, the indemnity agreement was executed in favor of St. Paul Fire and Marine Insurance Company and/or Seaboard Surety Company and/or St. Paul Guardian Insurance Company and/or St. Paul Mercury Insurance Company and/or United States Fidelity and Guaranty Company and/or Fidelity and Guaranty Insurance Underwriters, Inc. and/or Fidelity and Guaranty Insurance Company and/or any and all affiliates, subsidiaries, divisions, successors, assigns, co-sureties, and/or reinsurers.

2.   Louisiana Code of Civil Procedure article 966 was amended and reenacted by La. Acts 2023, No. 317, § 1 and No. 368, § 1, effective August 1, 2023, to provide a procedure for reference to documents previously filed into the record. See Taylor-Haynes v. Tropicana Entertainment LLC, 2023-0558 (La. App. 1st Cir. 11/15/23), 379 So. 3d 688, 694 n.3. Pursuant to La. C.C.P. art. 966(A)(4)(a), the only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions. Additionally, La. C.C.P. art. 966(A)(4)(b) provides that any document listed in subparagraph (a) previously filed into the record of the cause may be specifically referenced and considered in support of or in opposition to a motion for summary judgment by listing with the motion or opposition the document by title and date of filing. The party shall concurrently with the filing of the motion or opposition furnish to the court and the opposing party a copy of the entire document with the pertinent part designated and the filing information. La. C.C.P. art. 966(A)(4)(b).

3.   We note that the trial court rendered a third judgment on April 23, 2024, which was not appealed. That judgment denied St. Paul's motion for summary judgment.

4.   As noted in the preceding footnote, the trial court signed a judgment on April 23, 2024, denying St. Paul's motion for summary judgment. That judgment was not appealed.

5.   We note that ABS and Bertas's reply memorandum states, “ABS and Bertas adopt and incorporate by reference the evidence and arguments made in [their] Supporting Memorandum on their Motion for Summary Judgment and those provided in opposing St. Paul's motion for summary judgment.” However, a party may not adopt and incorporate by reference the evidence and arguments made in other memoranda in this manner. See La. C.C.P. art. 966; see also Bonano v. Docar Sales, Inc., 2024-0195 (La. App. 1st Cir. 10/22/24), 405 So. 3d 886, 898, writ denied, 2025-00011 (La. 4/1/25), 404 So. 3d 653. Although La. C.C.P. art. 966 permits a party to reference documents in support of or in opposition to a motion for summary judgment, it does not authorize a party to reference documents via a reply memorandum. See La. C.C.P. art. 966(A)(4)(a)-(b) and (D)(2).

6.   The contracts and agreements included a “Subcontract Performance Bond,” a “Power of Attorney,” a “Subcontract Labor and Material Payment Bond,” the May 19, 2004 indemnity agreement, and the June 7, 2004 indemnity agreement.

7.   The Subcontract Performance Bond states, in pertinent part:Whenever [ABS] shall be, and declared by [James] to be in default under the subcontract, [James] having performed [James's] obligations thereunder:(1) [St. Paul] may promptly remedy the default, subject to the provisions of paragraph 3 herein, or;(2) [James] after reasonable notice to [St. Paul] may, or [St. Paul] upon demand of [James] may arrange for the performance of [ABS's] obligation under the subcontract subject to the provisions of paragraph 3 herein;(3) The balance of the subcontract price, as defined below, shall be credited against the reasonable cost of completing performance of the subcontract. If completed by [James], and the reasonable cost exceeds the balance of the subcontract price, [St. Paul] shall pay to [James] such excess, but in no event shall the aggregate liability of [St. Paul] exceed the amount of this bond. If [St. Paul] arranges completion or remedies the default, that portion of the balance of the subcontract price as may be required to complete the subcontract or remedy the default and to reimburse [St. Paul] for its outlays shall be paid to [St. Paul] at the times and in the manner as said sums would have been payable to [ABS] had there been no default under the subcontract. The term “balance of the subcontract price,” as used in this paragraph, shall mean the total amount payable by [James] to [ABS] under the subcontract and any amendments thereto, less the amounts heretofore properly paid by [James] under the subcontract.

8.   We note that Marino refers to St. Paul as “Travelers” throughout his affidavit.

9.   A contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligence unless such an intention is expressed in unequivocal terms. First American Title Insurance Company v. Howell, 2016-1293 (La. App. 1st Cir. 8/30/17), 2017 WL 3763997, *3 (unpublished), writ not considered, 2017-1669 (La. 11/28/17), 229 So. 3d 936.

MILLER, J.

Edwards, J. concurs without reasons.