Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.
A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).
Here, the Trial Court made the decision to grant Aggreko’s initial summary judgment motion before Aggreko was found to have no fault in the generator failure. The Appellate Court decided that this decision was premature and rejected the motion. Because Aggreko was not precluded from submitting a second motion for summary judgment, the Appellate Court looked at whether the Trial Court properly granted the second summary judgment motion. Though there was evidence that showed that Aggreko’s generator failed within a short time after Touro lost power and that Aggreko failed to deliver a fuel tank, the Trial Court found that Aggreko had no fault and granted Aggreko’s summary judgment. As a result, the Appellate Court affirmed that only Touro and SHONO were responsible for Mr. Serou’s death, relieving Aggreko any responsibility of paying Touro and SHONO. The difference between the two motions is with the findings by the Trial Court, rather than the content of the motions themselves. The Appellate Court will not overturn a decision by the Trial Court that includes a finding a fault, even if it previously overturned the same decision without that written finding of fault.
In this case, Aggreko was able to show that there was a difference in the Trial Court’s decision on the second round to the Appellate Court. It is important that a good attorney be contacted early in a case to determine whether or not there is a basis for submitting a second motion when the first one is denied.
Additional Sources: Serou v. Touro Infirmary
Written by Berniard Law Firm Blog Writer: Peter Lee
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