Louisiana Record

Monday, February 17, 2020

Judge dismisses wrongful death complaint against Clampett Industries


By Angela Underwood | Jun 24, 2018

General court 08

A Louisiana judge has granted two separate motions for summary judgment by defendants for a complaint brought on by a plaintiff and widow who allege they caused her husband’s death.

Judge Jay Zainey has dismissed with prejudice the complaints brought against defendant Clampett Industries LLC d/b/a EMG (EMG) and defendant Velocity Consulting Inc. (Velocity) by plaintiff Michelle Nogess, wife of decedent Tyrone Nogess, in a June 13 order.

After Tyrone Nogess drove his vehicle through Poydras Center parking garage barrier system and died in 2015, Michelle Nogess filed suit against the parking garage, its manager and Travelers Casualty Co., Clampett Industries LLC, and Velocity.

“Plaintiff contends that both EMG and Velocity were negligent in making their assessments and in composing their respective reports, thus causing the alleged defects in the vehicle barrier restraint system to go unnoticed, and ultimately causing Mr. Nogess’s death,” according to the claim.

Beginning the 18-page order, Judge Zainey details under the Legal Standard that based on precedent cases TIG Ins. Co. v. Sedgwick James 2002 and Anderson v. Liberty Lobby Inc. 1986, summary judgment is allowed when there is no frank issue to material facts.  

Moving onto the Law and Analysis aspect of the order, Zainey notes that Louisiana courts' duty-risk analysis must show that alleged defendant’s conduct in fact caused the alleged negligence. Starting with EMG, the judge notes the defendant’s report of the barrier was based on the determination of mortgage note and "EMG argues that the Property Condition Report was significantly limited in scope, thus, preventing any third-parties from potentially relying on the findings of the Report,” according to the order.

Zainey looked to the Barrie factor, which is based on the faulty termite inspection that affected the sale of a residential property, to determine alleged EMG’s liability.

“The same reasoning cannot be applied here," Zainey wrote in the order. "In the instant case, Mr. Nogess was not a foreseeable third-party who was ‘expected to receive and rely upon the contents’ of EMG’s Property Condition Report. The Property Condition Report was composed solely for the benefit of potential investors.”

Moving to Velocity next, Zainey details that “like EMG, Velocity’s Property Condition Report was prepared for purposes of evaluating the Poydras Center property’s general condition in connection with a loan transaction secured by a mortgage on the property,” according to the order.

The judge also applied the Barrie factor requirements to prove his point. “Although separate entities, EMG and Velocity are virtually in the same position,” Zainey wrote in the order. “These companies were not in the business of remedying building deficiencies.”

The order concluded dismissing both defendants from the complaint with prejudice.

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