Cole v. Spectrum Gulf Coast, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ALLISON COLE CIVIL ACTION

v. NO. 20-2248

SEAL ENTERPRISES, INC., ET AL. SECTION "F"

ORDER AND REASONS

Before the Court are three motions for summary judgment: one

by Spectrum Gulf Coast LLC; one by Seal Enterprises, Inc.; and one

by IAT Insurance Group and Humberto Anibal Martinez. For the

reasons that follow, the motions are GRANTED.

Background

A prospective buyer of Allison Cole’s house allegedly

declined to consummate the pending purchase agreement after a

routine home inspection revealed a fracture in the underground

plumbing system. This lawsuit followed against the entities and

the individual technician allegedly responsible for puncturing the

sewer main while installing telecommunications infrastructure in

the Bedico Creek Subdivision in Madisonville, Louisiana.1

1 The summary judgment record is sparse. To summarize the

background, the Court considers some allegations from the

Allison Cole owns residential property at 1097 Cypress

Crossing, Madisonville, Louisiana in the Bedico Creek Subdivision.

In May 2019, Ms. Cole listed this property for sale and a

Residential Agreement for Purchase and Sale for the purchase price

of $346,000 was pending. On May 13, 2019, during routine

inspections of the property pending its sale, the drains in the

interior of the house were backing up, resulting in water back-

filling into the property. The home inspector recommended a video

inspection of the plumbing system. The next day, on May 14, 2019,

a video inspection of the plumbing system showed that the sewer

main serving the house had been punctured, which Ms. Cole

attributes to the installation of telecommunications conduit by

Seal Enterprises, Inc. and Humberto Martinez on behalf of Spectrum

Gulf Coast LLC. As a result of the water damage and potential for

related environmental or health issues, Ms. Cole says that the

prospective buyers cancelled the contract to purchase her house.

There is record evidence concerning the relationship among

the defendants. Humberto Martinez was the technician who buried

cable conduit in the Bedico Creek Subdivision near Ms. Cole’s house

in May 2019; it is Mr. Martinez who allegedly negligently cut into

a sewer line while performing his work.

complaint coupled with undisputed evidence from the summary

judgment record.

Charter Communications, LLC is Spectrum Gulf Coast, LLC’s

predecessor. On January 29, 2018, Charter Communications

Operating, LLC, on behalf of Charter Communications and its other

affiliates, entered into a Master Contractor Agreement with Seal

Enterprises, Inc. Seal agreed to provide labor, services, and

equipment to perform installation and construction of

telecommunications and cable lines on behalf of Spectrum. The

MCA, which was subject to an initial one-year term with automatic

one-year renewal periods, was in effect in May 2019.

The MCA identifies Seal Enterprises as Charter’s “Contractor”

and, indeed, expressly designates Seal Enterprises as an

independent contractor:

5. Independent Contractor Status. It is the intention

of the parties that Contractor [Seal Enterprises]

performs the Work as an independent contractor for

Charter. Contractor, and not Charter, shall be

responsible for the hiring, supervision, discipline and

control of its employees, and in no event shall

Contractor or its employees be considered or act as

employees, agents, joint venturers, or partners of

Charter. Nothing in this Agreement shall be interpreted

or construed as creating or establishing the

relationship of employer and employee between Charter

and either Contractor or any employee or agent of

Contractor. Contractor will be solely responsible at

all times for its acts and omissions or the acts and

omissions of its agents, employees, and subcontractors.

Identification labels on Contractor uniforms, trucks,

cards, placards, or other items used in the performance

of the Work must be approved by Charter in advance.

With Charter’s advance approval, and provided that each

subcontractor agreed to comply with and fulfill the same

obligations set forth in the MCA, the MCA allowed Seal Enterprises

to hire subcontractors to perform Work. Consistent with its

independent contractor designation, Seal Enterprises agreed to be

responsible for any loss or liability due to any of its

subcontractors’ non-compliance with the MCA.

Seal Enterprises hired Humberto Martinez as a 1099

independent contractor to bury cable conduit adjacent to Cole’s

property in the Bedico Creek Subdivision in Madisonville. Mr.

Martinez is not and never has been an employee of Seal Enterprises.

Mr. Martinez performed services for Seal Enterprises at an agreed

upon price and payments were made by Seal Enterprises directly to

Martinez. Any contract work assigned to Mr. Martinez by Seal

Enterprises in 2019 would have been assigned by either Keith Seal,

Cody Seal, or Michael Carmichael. A Seal Enterprises

representative would have contacted Mr. Martinez or one of his

employees about a work assignment. Seal Enterprises assigned to

Mr. Martinez work near 1097 Cypress Crossing in the Bedico Creek

Subdivision around May 12 and 13, 2019. Once Mr. Martinez

completed the work, he submitted an invoice to Seal Enterprises

for payment; he did so in April and May 2019 for completion of

burying the cable conduit in Bedico Creek Subdivision. No Charter

or Spectrum or Seal Enterprises employee was present during the

work performed by Mr. Martinez.

Once the home inspector discovered the sewer line puncture

and water damage, Ms. Cole apparently notified Martinez. Martinez

says he and his crew returned to the site and repaired the damage

at his own expense; repairs which Ms. Cole alleges in her complaint

were “inadequate.” Weeks later, he says, he was notified of minor

damage within Cole’s house allegedly from the service line issue.

To address this, contractors of Cole’s own choosing were retained

to make the necessary repairs and Martinez paid for the work.

Nevertheless, Ms. Cole sued Charter Communications, Inc. of

Louisiana, in state court, alleging negligence and seeking to

recover for: cancellation of the purchase agreement for $346,000;

undetermined repairs to the residence; unanticipated mortgage,

interest, property tax, insurance, homeowner’s association,

utility and other maintenance payments occasioned by the loss of

the sale of the property; damages for loss of use during repairs;

emotional upset and upheaval caused by the damage and loss of use

during repairs. When she amended her petition to add as defendants

those she believed were responsible for installing the

infrastructure that punctured the sewer main, Seal Enterprises,

Inc., Humberto Anibal Martinez, and IAT Insurance Group

(incorrectly identified as IAT Specialty Group Insurance Company),

Mr. Martinez removed the case to this Court, invoking the Court’s

diversity jurisdiction.2 Ms. Cole later amended her complaint,

substituting Spectrum Gulf Coast, LLC for Charter Communications,

Inc. of Louisiana. Now each of the defendants seek summary relief.

I.

A.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

2 There is complete diversity of citizenship. Ms. Cole is a

Louisiana citizen. Mr. Martinez is a Texas citizen. Seal

Enterprises, Inc. is a Mississippi citizen. Charter Communications

is a citizen of both Delaware and Missouri; Spectrum Gulf Coast,

LLC is a citizen of Delaware and Missouri. IAT Insurance Group is

a citizen of North Carolina. Given the plaintiff’s allegations,

the notice of removal alleges that it is facially apparent that

the plaintiff’s alleged damages exceed the $75,000 amount in

controversy requirement for diversity jurisdiction.

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017) (citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003). Ultimately, to avoid summary

judgment, the non-movant “must go beyond the pleadings and come

forward with specific facts indicating a genuine issue for trial.”

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th

Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

B.

This Court’s Local Rule 56.1 provides that “[e]very motion

for summary judgment must be accompanied by a separate and concise

statement of the material facts which the moving party contends

present no genuine issue.” Local Rule 56.2 provides:

Any opposition to a motion for summary judgment must

include a separate and concise statement of the material

facts which the opponent contends present a genuine

issue. All material facts in the moving party’s

statement will be deemed admitted, for purposes of the

motion, unless controverted in the opponent’s statement.

(emphasis added).

Here, each of the defendants submitted separate statements of

uncontested facts along with their motions for summary judgment.

Spectrum’s statement of uncontested facts contains 20 facts and

cites to exhibits in the summary judgment record in support of

each. Seal Enterprises’ statement of uncontested facts contains

11 facts with citations to the summary judgment record in support

of each. And, IAT’s and Martinez’s statement of uncontested facts

contains six facts citing to the plaintiff’s petition and otherwise

suggesting an absence of factual evidence in the record.

In response to Spectrum’s motion, the plaintiff purported to

present two factual disputes: (1) whether Spectrum had the right

to control Seal, and by extension, Martinez’s operations and

performance of the project at issue, thus creating a master-servant

relationship between Spectrum, Seal, and Martinez; and (2) whether

the MCA effectively releases Spectrum from any liability or

responsibility for any claims Cole may have against Spectrum for

the negligent installation of the conduit. In fact, these two

items listed by the plaintiff in her statement of contested facts

are issues of law. The plaintiff offers no citation to any record

evidence in support of any assertion of fact. Nor does she attempt

to controvert any fact submitted by Spectrum. Consistent with

Local Rule 56.2, the 20 facts listed by Spectrum are deemed

admitted.

In response to Seal Enterprises’ motion, the plaintiff

submits these “contested material facts”: (1) whether Humberto

Martinez, though hired as a 1099 independent contractor, was truly

allowed to act as an independent contractor for the task of burying

cable conduit, including the cable conduit located adjacent to

plaintiff’s property in the Bedico Creek Subdivision in

Madisonville, Louisiana (statement no. 2); (2) whether Humberto

Martinez was free to use his own methods to render the specific

performance for Seal Enterprises as he saw fit (statement no. 8);

(3) whether Seal Enterprises exercised direction, supervision, or

operational control or the right of direction, supervision, or

operational control over the services to be performed by Humberto

Martinez (statement no. 10); and (4) whether Seal Enterprises gave

explicit or implicit authorization to Humberto Martinez to conduct

any actions that resulted in the broken pipe near plaintiff’s

property (statement no. 11). Although the plaintiff comes closer

to attempting to controvert four facts listed by Seal Enterprises,

in reality, she suggests factual issues that might exist, had she

offered up controverted facts of her own. Failing to present any

evidence or identify any evidence in the record in support of her

operational control theory, she fails to identify any record

evidence in support of any attempt to controvert the facts listed

by Seal Enterprises. Accordingly, the 11 facts listed by Seal

Enterprises are deemed admitted under Local Rule 56.2.

Finally, and similarly, in response to IAT’s and Martinez’s

motion, the plaintiff submits that two “facts” are contested: (1)

whether plaintiff has evidence showing additional physical damages

resulting from the incident which occurred on May 12, 2019 which

were not repaired by defendants IAT and Martinez; and (2) plaintiff

has sustained economic and personal damages as a result of the

cancellation of the purchase agreement on her property and the

loss of use and enjoyment of her home. Whether the plaintiff has

evidence of damages is indeed the issue presented by IAT’s and

Martinez’s motion. Yet in response the plaintiff, who bears the

burden of proving negligence, offers none. For the reasons

explained below, this dooms her negligence claims.

II.

This litigation arises from alleged property damage due to

allegedly negligently installed telecommunications infrastructure

in a residential neighborhood. The plaintiff alleges that, in

building trenches or installing cable conduit near her house, the

technician performing the work punctured a sewerage pipe near her

house, which caused water backup, property damage, and emotional

damage, as well as causing a potential buyer to back out of a

purchase agreement. Each defendant (Spectrum, Seal Enterprises,

and IAT and Humberto Martinez) seeks summary judgment in their

favor on the ground that there is no evidence in the summary

judgment record supporting the plaintiff’s vicarious liability or

damages theories. To be sure, there is little evidence in the

summary judgment record. Where, as here, the plaintiff rests on

allegations alone, she cannot prove an essential element of her

claim; summary judgment in the defendants’ favor is warranted.

A.

Subject matter jurisdiction is based on diversity, so the

Court applies the substantive law of the forum, Louisiana. See

Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014)

(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).3

Civil Code Article 2315, Louisiana’s source of negligence

liability, instructs that “[e]very act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

it.” La. Civ. Code art. 2315. "Every person is responsible for

the damage he occasions not merely by his act, but by his

negligence, his imprudence, or his want of skill." La. Civ.

Code art. 2316. Taking into account the conduct of each party

and the circumstances of each case, courts employ a duty-risk

analysis to determine whether to impose negligence

liability. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7

(La. 3/10/06); 923 So. 2d 627, 632.

To recover under the duty-risk approach, the plaintiff must

prove five elements: (1) the defendants had a duty to conform their

conduct to a specific standard; (2) the defendants' conduct failed

to conform to the appropriate standard; (3) the defendants'

substandard conduct was cause in fact of the plaintiffs’ injuries;

(4) the defendants' substandard conduct was a legal cause of the

plaintiff’s injuries; and (5) actual damages. Audler v. CBC

Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008)(citation omitted).

3 The Court observes that the Spectrum-Seal Enterprises MCA selects

Missouri law to govern.

The duty element presents a question of law; the other elements

present questions of fact. Fowler v. Roberts, 556 So. 2d 1, 4-5

(La. 1989). If the plaintiff fails to prove one of these elements,

then the defendants are not liable.

Civil Code Article 2320, Louisiana’s source of vicarious

liability, instructs that “[m]asters and employers are answerable

for the damage occasioned by their servants and overseers, in the

exercise of the functions in which they are employed.” La. Civ.

Code art. 2320. “Responsibility only attaches, when the masters

or employers ... might have prevented the act which caused the

damage, and have not done it.” Id.4 “Vicarious liability rests

in a deeply rooted sentiment that a business enterprise cannot

justly disclaim responsibility for accidents which may fairly be

said to be characteristic of its activities.” Richard v. Hall,

847 So. 2d 131, 137-38 (La. 2004) (citations omitted) (“When

considering which risks the employer must bear under vicarious

liability, the proper test bears resemblance to that which limits

liability for workers’ compensation, because the employer should

be held to anticipate and allow for risks to the public that ‘arise

out of and in the course of’ his employment of labor.”).

4 For example, “an employer is liable for a tort committed by his

employee if, at the time, the employee was acting within the course

and scope of his employment.” Baumeister v. Plunkett, 95-2270, p.

2 (La. 5/21/96); 673 So. 2d 994, 996.

To determine whether an individual is a servant or an

independent contractor, the key consideration is the right to

control. See Hillman v. Comm-Care, Inc., 805 So. 2d 1157, 1162

(La. 2002)(the “essence of the employer-employee relationship is

the right to control”). As Louisiana defines it, a “servant”

includes “anyone who performs continuous service for another and

whose physical movements are subject to the control or right to

control of the other as to the manner of performing the service.”

Ermert v. Hartford Ins. Co., 559 So. 2d 467, 476-77 (La. 1990);

see also Restatement (Second) of Agency § 236 (“Conduct may be

within the scope of employment, although done in part to serve the

purposes of the servant[.]”). “The single, most important factor

to consider in deciding whether the employer-employee relationship

exists . . . is the right of the employer to control the work of

the employee.” Roberts v. La. Health and Human Resources Admin.,

404 So.2d 1221, 1225 (La. 1981). Other factors encompassed by the

right of control include “supervision, selection and engagement,

payment of wages or salary, and the power to dismiss.” Doe v.

Parauka, 97-2434 (La. 7/8/98); 714 So.2d 701, 704.

To be sure, it is settled that “the term independent

contractor connotes a freedom of action with respect to the

undertaking in question and a legal responsibility on the part of

the contractor in case the agreement is not fulfilled in accordance

with its covenants.” Hickman v. Southern Pacific Transport Co.,

262 La. 102, 117, 262 So. 2d 385, 390 (La. 1972). Unlike vicarious

liability which fairly attends an employer-employee relationship,

a principal is generally not liable for offenses committed by an

independent contractor while performing its contractual duties. To

determine whether a principal-independent contractor relationship

exists to relieve an employer from vicarious liability for its

employee’s tortious acts, the case literature consults the Hickman

factors:

(1) is there a valid contract between the parties?

(2) is the work being done of an independent nature such

that the contractor may employ non-exclusive means in

accomplishing it?

(3) does the contract call for specific piecework as a

unit to be done according to the independent

contractor’s own methods, without being subject to the

control and direction of the principal, except as to the

result of the services to be rendered?

(4) is there a specific price for the overall undertaking

agreed upon?

(5) is the duration of the work for a specific time or

subject to termination or discontinuance at the will of

either side without corresponding liability for its

breach?

See Progressive Paloverde Ins. Co. v. Estate of Jenkins, No. 19-

12840, 2021 WL 707750, at *2-3 (E.D. La. Feb. 23, 2021)(citing

Hickman, 262 So. 2d at 389-91). Aptly named the “control test,”

the focus is on whether the right to control the manner of

performing the service exists, considering the nature of the

relationship. See id. Classifying a worker as an employee or

independent contractor is generally a factual question determined

on a case by case basis, and the party alleging the existence of

the employment relationship generally bears the burden of

establishing the employer-employee relationship. Id. (citations

omitted). When there is no genuine dispute regarding the facts

underlying whether a party was an employee or an independent

contractor, the Court may determine the employment status as a

matter of law. Id. (citations omitted).

Absent evidence in the record indicating that Martinez’s work

was subject to Spectrum’s or Seal Enterprises’ control or their

right to control, neither Spectrum nor Seal Enterprises can be

held liable under the plaintiff’s vicarious liability theory. And

as the duty-risk test demands, absent proof of damages, a

plaintiff’s negligence claim must be dismissed.

B.

Two issues are presented by three motions for summary

judgment: whether the plaintiff has submitted any proof of damages

and whether the independent contractor doctrine precludes a

finding of vicarious liability. The rules governing summary

judgment procedure are dispositive of both.

It is undisputed that Martinez performed the work of digging

the trenches or burying the cable conduit in Ms. Cole’s residential

subdivision. The plaintiff seeks to recover from Martinez (and

his insurer) for his direct negligence. As for Spectrum and Seal

Enterprises, the plaintiff’s negligence theory is premised upon

vicarious liability. That there is no evidence in the summary

judgment record supporting a finding that the plaintiff suffered

damages is dispositive of any negligence claim against any

defendant. Nevertheless, the Court discharges its duty to consider

the plaintiff’s vicarious liability theory in addition to her

damages theory. Theories and speculation are insufficient to

withstand summary judgment in the defendants’ favor.

1. Absent any evidence supporting the plaintiff’s damages,

theory, summary judgment is warranted.

The Court first takes up IAT’s and Mr. Martinez’s motion for

summary relief. As set forth above, for a negligence claim to

withstand summary judgment, the plaintiff must present evidence

supporting each of the elements of Louisiana’s duty-risk test for

tort claims. The plaintiff has offered no evidence that she

suffered (unrepaired) damages caused by Mr. Martinez’s negligence

in digging trenches or laying cable conduit. All she presents is

her unsupported theory and allegation that she and her property

were damaged, and that Martinez’s repairs were unsatisfactory.

IAT and Martinez submit that Mr. Martinez and a crew of

workers were installing subterranean telecommunications conduit in

Ms. Cole’s subdivision on May 12, 2019, that the plaintiff alleges

that her property was damaged, but that the plaintiff has no

evidence showing any actual damages that have not already been

repaired at Martinez’s own cost, and the plaintiff has no evidence

showing actual compensable damages resulting from the alleged

cancellation of the purchase agreement or any evidence showing

actual mental anguish. In other words, IAT and Martinez submit

that there is an absence of evidence on an element of the

plaintiff’s claim on which she bears the burden of proof. In

response, the plaintiff lists as contested issues “whether

Plaintiff has evidence showing additional physical damages ...

which was not repaired by defendants” and “whether Plaintiff has

sustained economic and personal damages [due to] the cancellation

of the purchase agreement ... and loss of use and enjoyment of her

home.” Foremost, commonsense dictates that evidence concerning

the plaintiff’s damages is accessible to and knowable by the

plaintiff; whether the plaintiff has evidence concerning damages

is not a triable issue. Where there is a void in the record

concerning an essential element of plaintiff’s claim, summary

judgment must be granted in the defendants’ favor. By failing to

identify specific material facts that establish a genuine issue

for trial, Ms. Cole’s bare, hypothetical assertions do not

withstand summary judgment.

Considering that there is no evidence regarding the

plaintiff’s damages, summary judgment procedure mandates dismissal

of Ms. Cole’s negligence claim. Where the dispositive issue is

one on which the nonmoving party will bear the burden of proof at

trial, the moving party may satisfy its burden merely by pointing

out that the evidence in the record is insufficient with respect

to an essential element of the nonmoving party’s claim. See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden

then shifts to the plaintiff, who must submit or refer to evidence

to set out specific facts showing that a genuine issue exists for

trial. See id. at 324. The plaintiff may not rest upon her

pleadings; rather, she must identify specific facts that establish

a genuine issue for trial. See id. at 325; see also Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Ms. Cole

offers no evidence (no declaration, no expert report, nothing) in

support of her damages theory.5 Speculation and abstractions do

5 Rather than indicating in the record what documents she would

show or what testimony will be offered to the jury at trial to

support her damages theory, Ms. Cole suggests that it is

“unmistakable” and “undeniable” that she was damaged by Martinez’s

alleged negligence and that there is only a question as to quantum

of damages. But suggesting in argument by her counsel that she

“has and can show at trial that her home suffered water intrusion

causing physical damage to her property[, etc.]” is not a

substitute for record evidence.

not suffice where summary judgment procedure demands concrete

evidence.

There being no evidence in the record supporting the

plaintiff’s damages theory, summary judgment in all defendants’

favor is patently required. However, because Spectrum and Seal

Enterprises did not join IAT’s and Martinez’s motion and, instead,

move separately for summary relief solely on the ground that there

are no facts to support a finding of vicarious liability, the Court

turns to consider this separate issue, which is independently

dispositive of the plaintiff’s claims against them. The plaintiff

offers no evidence in support of any of her allegations, rendering

them mere hypothetical theories that fail to withstand summary

judgment motions.

2. Absent any evidence supporting the plaintiff’s vicarious

liability theory, summary judgment is warranted.

Both Spectrum and Seal Enterprises (separately) seek summary

judgment that neither are vicariously liable for Mr. Martinez’s

allegedly negligent conduct because Martinez was not a “servant”

under Civil Code Article 2320, but, rather, was an independent

contractor. The Court agrees.

Looking to the Spectrum-Seal Enterprises contract, the MCA

specifically provides that Seal Enterprises will act as Spectrum’s

independent contractor, responsible for installing Spectrum’s

cable and conduit and responsible for acts or omissions of any of

its subcontractors. Absent any evidence that Spectrum retained

control or the parties acted in contravention of the MCA’s

provisions (no such evidence is provided), or that Spectrum owed

a duty to the plaintiff independent of its status as principal of

the MCA between it and Seal Enterprises (let alone breached any

duty), the MCA is dispositive of the plaintiff’s claim against

Spectrum: Spectrum as principal cannot be held liable for acts of

its independent contractor, Seal Enterprises, or its

subcontractors. The plaintiff submits no evidence and appears to

challenge only whether Spectrum may have had some contractual right

to control Seal Enterprises and, by extension, Martinez. No

genuine triable issue is presented by plaintiff’s counsel’s

arguments.

The same evidentiary void plaguing the plaintiff’s responses

to the other defendants’ motion dooms her vicarious liability

theory as to Spectrum and Seal Enterprises. The MCA, which was in

effect in May 2019, identifies Seal Enterprises as Spectrum’s

independent contractor and Seal Enterprises and Martinez submit

that Martinez was hired as Seal Enterprises’ independent

subcontractor. By affidavit, Spectrum submits that it engaged

Seal Enterprises as an independent contractor to perform digging

of trenches, laying of cable conduit, and other construction work.

Spectrum did not instruct, nor did it supervise any of the work

performed by Seal Enterprises or Humberto Martinez during the work

at the Bedico Creek Subdivision. This evidence is uncontroverted.

The plaintiff identifies no factual controversy to defeat summary

judgment in Spectrum’s or Seal Enterprises’ favor.

Seal Enterprises submits that it subcontracted with Humberto

Martinez to perform the burying of cable conduit in Ms. Cole’s

subdivision, that Martinez was contacted about the specific work

assignment and, once he completed the specific work, he submitted

an invoice to Seal Enterprises for payment. When Martinez

completed his tasks in the Bedico Creek Subdivision in May 2019,

there is no indication that any person from Spectrum or from Seal

Enterprises managed or controlled the work he performed in burying

the cable conduit. The plaintiff appears to take issue with Seal

Enterprises’ reliance on responses to requests for admissions as

part of its factual support for its independent contractor

argument. Yet she offers nor points to any other evidence in the

record that conflict with any of the “documents” (properly

submitted on a Rule 56 motion, see Fed. R. Civ. P. 56(c)) offered

by Seal Enterprises. Although the plaintiff hints that there might

be facts or characteristics of the Seal Enterprises-Martinez

relationship that indicate Seal Enterprises may have had some right

to control, she offers none, nor indicates where any might be in

the record. To the contrary, she suggests that Seal Enterprises

and Martinez may have intended that Martinez be an independent

contractor, but she urges the Court to look to the substance of

their arrangement. Without offering any evidence supporting the

plaintiff’s theory that Martinez was a de facto employee of Seal

Enterprises.

The plaintiff correctly acknowledges that an independent

contractor’s freedom from control generally relieves a principal

from vicarious liability. It is the plaintiff’s failure to offer

or point to any evidence in the record to support her control

theory that dooms her vicarious liability argument; she argues

that Martinez would have been subject to various conditions

littered throughout the Spectrum-Seal Enterprises MCA. Again, it

is the plaintiff’s singular focus on conclusions and abstractions

to the exclusion of facts in the record that doom her arguments

and theories. On summary judgment, what matters is record

evidence.

Here, the undisputed portions of the record indicate the

following. According to Mr. Seal’s affidavit, Seal Enterprises

hired Humberto Martinez as a 1099 contractor for the specific task

of burying cable conduit located adjacent to the plaintiff’s

property. Mr. Martinez’s work in the Bedico Creek Subdivision was

accomplished for and during the specific occasion of April and May

2019 and for the limited duration of the time necessary for his

performance. Mr. Martinez submitted invoices to Seal Enterprises

after completing each job; he did so after he completed burying

the cable conduit in the Bedico Creek Subdivision. Mr. Martinez

was free to use his own methods to render his performance as he

saw fit. Seal Enterprises did not provide Mr. Martinez with any

tools or equipment to perform the services. Seal Enterprises

exercised no direction, supervision, or operational control or the

right of direction, supervision, or operational control over the

services performed by Martinez. Seal Enterprises gave no explicit

or implicit authorization to Martinez to conduct any actions that

resulted in the broken pipe near Ms. Cole’s house. For his part,

Martinez admitted that he is a contractor who receives assignments

from Seal Enterprises and that he is not and never has been an

employee of Seal Enterprises.

Application of the Hickman factors to these facts -- the only

evidence in the summary judgment record -- reinforces the finding

that Martinez was an independent contractor. It is undisputed

that Martinez was not employed by Seal Enterprises; rather,

Martinez and Seal Enterprises agreed that Martinez would bury cable

conduit in the Bedico Creek Subdivision in exchange for payment of

an invoice upon completion. Along with this contractual agreement,

burying cable conduit appears to be work which Mr. Martinez could

and did perform with his own equipment using his own non-exclusive

means to accomplish with little if any interaction with (let alone

direction or supervision by) Seal Enterprises. Martinez merely

completed the work and submitted an invoice to Seal Enterprise for

payment. Marinez maintained his own commercial general liability

insurance coverage, which was provided by co-defendant, IAT

Insurance Group; additional indicia that the work Martinez

performed was independent in nature. Martinez’s invoices likewise

suggest that he engaged in only the specific work necessary to

bury cable conduit such as trenching, laying cable, and pulling

cable. And he performed these tasks without direction from Seal

Enterprises and without any equipment or tools from Seal

Enterprises. There is no evidence indicating that Seal

Enterprises’ agreement with Martinez was terminable at will.

Finally, Martinez was paid a specific price for burying the cable

conduit, and the payments were made by Seal Enterprises directly

to Martinez. Seal Enterprises never issued a payroll check because

Martinez was a 1099 independent contractor.

On this record, Martinez was an independent contractor such

that neither Seal Enterprises nor Spectrum can be held vicariously

liable for Martinez’s alleged negligence. There is no evidence

that Spectrum or Seal Enterprises retained or exercised

operational control over Mr. Martinez, or that either expressly or

impliedly authorized the method Mr. Martinez chose to dig the

trenches or lay the cable conduit which allegedly caused Ms. Cole’s

property damage. The plaintiff does not even suggest that either

Seal Enterprises or Spectrum owed an independent duty to her.6

Absent from the summary judgment record are any facts indicating

that Martinez “perform[ed] continuous service” for Seal

Enterprises (let alone Spectrum) or was “subject to” Seal

Enterprises’ or Spectrum’s “control.” Ermert, 559 So. 2d 476. So,

Martinez was neither Seal Enterprises’ nor Spectrum’s “servant.”

See La. Civ. Code art. 2320. Because Martinez was not Seal

Enterprises’ or Spectrum’s “servant,” -- indeed, the only evidence

6 “It is well established that a principal is not liable for the

activities of an independent contractor committed in the course of

performing its duties under the contract.” Davis v. Dynamic

Offshore Resources, 865 F.3d 235, 236 (5th Cir. 2017)(quoting

Bartholomew v. CNG Producing Co., 832 F.2d 326, 329 (5th Cir.

1987)). There are two exceptions to this general rule. A

principal is not shielded from liability if (1) the activities

which it contracts out to an independent contractor are

ultrahazardous; or (2) the principal “exercises operational

control over those acts or expressly or impliedly authorizes an

unsafe practice.” Bartholomew, 832 F.2d at 329 (holding that there

was some evidence to support the jury’s finding that the principal

was 30% at fault, given that the principal’s company man expressly

authorized an unsafe work practice, that is, failing to wash down

the rig floor which eventually caused Bartholomew to slip and twist

his back on the muddy rig floor).

It is undisputed that neither of the exceptions to the general

rule of no-liability apply here: (1) trenching or laying cable

conduit is not an ultrahazardous activity; and (2) there is no

evidence indicating that that the principal (whether Spectrum or

Seal Enterprises) exercised operational control over Martinez’s

performance.

of record indicates he acted as an independent contractor --

neither company may be vicariously liable for his alleged torts.

Summary judgment in Spectrum’s and Seal Enterprises’ favor is thus

patently appropriate on this independent ground.

***

Spectrum submits that it is entitled to judgment as a matter

of law dismissing the plaintiff’s claims against it because it is

not at fault and has no responsibility (through tort or contract)

to Ms. Cole because Humberto Martinez, who allegedly cut into a

sewer line causing the plaintiff’s alleged damages, was not a

Spectrum employee. Similarly, Seal Enterprises submits that it

bears no responsibility for any negligence by Martinez because

Martinez was an independent contractor, not its employee.

Consistent with these submissions, Martinez and his insurer

separately submit that, even assuming the plaintiff submitted

evidence to show that Martinez’s negligent trenching or conduit

work pierced the sewer main, he repaired the damage and the

plaintiff’s failure to come forth with any evidence of unrepaired

damage dooms her negligence claim against him. Plaintiff’s

counsel’s generic, unsubstantiated statements demonstrate a

misapprehension of summary judgment procedure. The Court

underscores that "the nonmoving party cannot defeat summary

judgment with conclusory allegations, unsubstantiated assertions,

or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007). Ms. Cole offers no concrete evidence

in support of her abstract propositions and unsubstantiated

assertions. No reasonable jury could return a verdict for Cole

based on her speculation or theories.

On this record -- there being no facts of record supporting

the plaintiff’s arguments by her counsel -- the Court agrees with

the defendants that summary judgment dismissing her claims is

warranted. Accordingly, IT IS ORDERED: that all three motions for

summary judgment are GRANTED, and the plaintiff’s claims are

dismissed with prejudice.

New Orleans, Louisiana, June 9, 2021

ai Cc. ua

UNITED STATES DISTRICT JUDGE

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