text:
    Sandy ITELD, Wife of/and Bruce J. Iteld, M.D. v. FOUR CORNERS CONSTRUCTION, L.P., Jacks Electric Service, Inc., Atlas Tile Roofing Co., Inc., Mid-Continent Casualty Company, ABC Insurance Company, and DEF Insurance Company.
    No. 2013-CA-0692.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      Morgan J. Wells, Jr., Lee M. Peacock, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for Plaintiff/Appellant, Four Corners Const., L.P.
    Alexander R. Saunders, Pelleteri & Wie-dorn, L.L.C. New Orleans, LA, for Defendant/Appellant, Jacks Electric Service, Inc., and Lafayette Ins. Co.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   PAUL A. BONIN, Judge.

| TFour Corners Construction, L.P., subcontracted with Jack’s Electric Service, Inc., to provide specified work in connection with the operation of a five thousand wine bottle “cellar” as a part of an ongoing renovation of a home in uptown New Orleans. The subcontract provided for Jack’s to indemnify and defend Four Corners under certain circumstances; it also required Jack’s to furnish an insurance policy naming Four Corners as an additional insured. The policy was issued by Lafayette Insurance Company.

The homeowners, alleging numerous deficiencies in the overall renovation project, sued Four Corners. Four Corners then filed incidental demands against Jack’s and Lafayette, seeking to enforce its claims for indemnity and defense. After a considerable number of motions were filed and rulings were made, which we detail in Part I, post, the ultimate judgment which issued from the district judge awarded Four Corners the total amount of $196,281.00 as attorney fees owed for | ¡¡the defense of the homeowners’ action and the amount of $16,438.09 of additional costs of defense. The district judge denied Four Corners the bad faith penalties it sought against the insurer, Lafayette.

Four Corners appeals the denial of the motion for new trial wherein the district judge refused to award it an additional $28,102.71 in costs of defense and in denying it bad faith penalties on the attorney fees awarded. We more fully address Four Corners’ complaints in Part II, post. Because Four Corners does not offer any explanation for why the additional claimed costs could not have been discovered at the time of its initial motion for summary judgment, we find no abuse of discretion in the district judge’s denial of the motion for new trial. Also, because we find that the district judge correctly found that Foot Corners had not submitted a satisfactory proof of loss to Lafayette, we uphold that aspect of the judgment. Thus, we affirm those two aspects or parts of the judgment under review.

Jack’s and Lafayette devolutively appeal the award of attorney fees. We more fully address their complaint in Part III, post. The award was made on summary judgment. Because we find in this case that there are genuine issues of material fact about the fees claimed by Four Corners, we reverse that portion of the summary judgment which awarded such fees and we remand with instructions to the district court with respect to that part of the judgment under review.

Thus, we affirm in part, reverse in part, and remand with instructions. We explain our decision in greater detail in the Parts which follow.

_ki

In this Part we set out the relevant facts and discuss this appeal’s somewhat complicated procedural history.

A

In 2003, the plaintiffs in the principal demand, Sandy and Bruce J. Iteld, commenced the process of renovating their Robert Street home in uptown New Orleans by entering into a contract with Four Corners. The contract anticipated a thirteen month, one-and-a-half million dollar project. Among the design features included in the renovation was the creation of a climate controlled, five thousand bottle wine “cellar.” The contract also specified the installation of a generator to supply electricity to the wine cellar’s air conditioning unit in the event of a power outage.

Jack’s was the subcontractor responsible for all or most of the work associated with the installation of the generator. The subcontract included an indemnity agreement, which provides in pertinent part:

Section 8.1 Indemnity. To the fullest extent permitted by law, the subcontractor expressly agrees to defend (at subcontractor’s expense and with counsel acceptable to the contractor), indemnify and hold harmless owner, contractor ... from and against any and all claims, suits, losses, causes of action, damages, liabilities, fines penalties and expenses of any kind whatsoever, including without limitation, all expenses of litigation and arbitration, court costs, and attorney fees, arising on account of or in connection with injuries to or the death of any person, or any and all damages to property, including loss of use, regardless of possession or ownership. This defense and indemnity provision applies to all injuries, death, or damages arising from, or in any manner connected with, the work performed by or for the subcontractor’s account under this subcontract, or caused in whole |4or in part by reason of the acts or omissions or presence of the person or property of the subcontractor on the job site or any of its employees, agents, representatives, subsubcontractors, or suppliers.

In its contract with Four Corners, Jack’s also agreed to provide insurance identifying Four Corners as an additional insured. The additional insured endorsement contained within Jack’s Lafayette policy provides:

A. Section II — -Who is an Insured is amended to include as an additional insured any person or organization for whom you [ (i.e. Jack’s) ] are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization is an additional insured only with respect to your liability for “bodily injury”, “property damage” or “personal and advertising injury” which may be imputed to that person or organization directly arising out of:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf;
In the performance of your ongoing operations for the additional insured.

By August 2005, as Hurricane Katrina approached New Orleans, the renovations to the Itelds’ home were yet to be completed. Although the Itelds had yet to retake possession of their home, their wine collection was on the premises at the time. Prior to their evacuation for Hurricane Katrina, the Itelds were informed that the generator had been installed, test-run, and was operating perfectly.

The generator failed, however, because of a faulty part several weeks after power to the house was lost. As a result, the Itelds’ entire wine collection was rendered a total loss. At the trial on the Itelds’ principal demand, the wine collection’s worth was valued by an expert at $362,622.00.

|-In 2006, the Itelds instituted this action against Four Corners, Jack’s, and Lafayette, among others. The petition identifies numerous areas of purported negligence and/or breaches of contract which comprise the Itelds’ claims, but only one of these areas concerned the loss of the Itelds’ wine collection. See Iteld v. Four Corners Construction L.P., 12-1504 (La.App. 4 Cir. 6/5/13), — So.3d-, 2013 WL 2443261 (where we considered the myriad issues raised by the parties following the trial of the principal demand and Four Corners’ reconventional demand). During the course of the litigation Four Corners filed a third party demand against Lafayette seeking a defense arid indemnity from Lafayette through Four Corners’ additional insured status in the policy issued to Jack’s. Through its answer, Lafayette declined to provide Four Corners with a defense. Four Corners subsequently filed a motion for summary judgment seeking defense and indemnity from Jack’s and Lafayette. Jack’s filed a cross motion for summary judgment seeking a dismissal from the claims of Four Corners. The district judge denied the motions, and we denied the parties’ consolidated writ applications. See Iteld v. Four Corners Construction L.P., et al., 08-1299 c/w 08-1353, (La.App. 4 Cir. 1/26/09), unpub. Four Corners then filed a second motion for summary judgment seeking defense and indemnity from Lafayette only.

After hearing argument on the issue, on February 12, 2010, the district judge issued a judgment wherein it determined that: 1) Four Corners met the definition of an additional insured under the Lafayette policy; 2) the “intended use completed operations” exclusion was inapplicable; and 3) Lafayette’s indemnification obligation would be contingent upon a determination of whether Four Corners was | f,solely negligent. Finally, the court ruled that although Four Corners was an additional insured under the Lafayette policy, the issue of Lafayette’s duty to defend would be determined at trial and be contingent upon the determination of whether Four Corners was solely negligent.

On February 18, 2010, pursuant to La. C.C.P. art.1971, the district judge, on its own motion, ordered a partial new trial for re-argument on the issue of Lafayette’s duty to defend. After hearing argument and (briefing) the district judge reversed its ruling on the issue of Lafayette’s duty to defend and issued the following ruling:

Since Four Corners meets the definition of an Additional Insured under the Lafayette Insurance Company policy in question, Lafayette Insurance Company is obligated to defend Four Corners in this matter and to reimburse the costs and expenses incurred by Four Corners in the defense of this matter since the filing of plaintiffs original Petition. Moreover, Four Corners is entitled to recover all reasonable costs and expenses incurred in the defense of any and all claims asserted against it by plaintiffs, Sandy Iteld, wife of/and Bruce J. Iteld, M.D., in this matter.

Lafayette sought interlocutory review of the ruling. We granted writs, affirmed in part, reversed in part, and held: “Lafayette’s duty to defend and reimburse Four Corners is limited exclusively to claims arising out of damages to the plaintiffs, the Itelds, from anything that Jack’s did improperly or for Jack’s negligence. We amend the 25 February 2010 judgment accordingly. In all other respects, the application for supervisory writs of Lafayette is denied.” Iteld v. Four Corners Construction L.P., 10-0374 (La.App. 4 Cir. 4/22/10), unpub. Our ruling, therefore, became the law of the case concerning Lafayette’s obligation to provide Four Corners with a defense of the Itelds’ claims against Jack’s. See Scott v. American Tobacco Co., Inc., 09-0461, pp. 4-5 (La.App. 4 Cir. 4/23/10), 36 So.3d 1046, 1050.

B

On April 14, 2010, in follow-up to the preceding rulings, counsel for Four Corners made written demand on Lafayette for a defense: “How do you propose we agree on the amount to be reimbursed by Lafayette and how Lafayette will defend Four Corners prospectively?” Counsel for Lafayette responded: “I think things can keep going as they have.” No agreement by the parties was reached with respect to reimbursement and prospective defense costs.

On January 3, 2012, Four Corners filed a Motion to Enforce Judgment against Lafayette, which the district judge granted on March 20, 2012, and ordered the parties to confer on the amount of costs and fees to be reimbursed by Lafayette. The parties, however, failed to reach an agreement.

Trial on the Itelds’ principal demand took place between March 19, 2012, and March 29, 2012. Specifically, the jury concluded that the loss of the Itelds’ wine collection was not due to any breach of the construction contract by Four Corners, or any negligent acts of either Four Corners or Jack’s. In other words, the Jury refused to compensate the Itelds for the loss of their wine collection. The district judge entered a judgment on the jury verdict on April 10, 2012. Four Corners and the Itelds took appeals from the district judge’s post-trial judgments. The Itelds, however, did not raise the jury’s refusal of their wine loss claim as an assignment of error.

|8On May 1, 2012, Four Corners’ counsel made written demand on Lafayette for reimbursement of costs and fees incurred in defense of the Itelds’ claims in the amount of $331,491.42. Four Corners substantiated its claim by attaching a spreadsheet that itemized the costs and fees, as well as copies of all billing entries and invoices. On June 20, 2012, Four Corners amended its claim for costs and fees by providing Lafayette with additional documentation reflecting a total amount of $345,029.80 in incurred fees and costs.

Further, on May 1, 2012, Jack’s and Lafayette filed a Motion to Dismiss Four Corners’ cross claim and third party demand. Specifically, Jack’s and Lafayette asserted that Four Corners claims for indemnity and reimbursement of fees and costs were baseless because the jury neither ascribed liability to, nor found fault with, Jack’s. Jack’s and Lafayette, therefore, asked the district judge to dismiss Four Corners’ incidental claims. In other words, Jack’s and Lafayette argued that Four Corners could not meet its burden of proving entitlement to reimbursement and indemnity.

Four Corners, on the other hand, filed motions for summary judgment against Jack’s and Lafayette on June 26, 2012. Four Corners’ motion against 19Jack’s sought to enforce the contractual defense and indemnity provisions of the subcontract entered into by Four Corners and Jack’s. Four Corners’ motion against Lafayette, likewise, sought to recover its costs and fees incurred in the defense of the Itelds’ claims, but also sought an award of statutory penalties because of Lafayette’s alleged bad faith refusal to defend and reimburse Four Corners in this matter. Significantly, Four Corners took the position that Jack’s and Lafayette are obligated to reimburse it for virtually all of its legal bills and expenses incurred in the defense of the Itelds’ claim. In their opposition memorandum, Jack’s and Lafayette attempted to sort Four Corners’ various charges into four discrete categories, and concluded that a mere 38%, or $56,924.00, of Four Corners’ attorney’s fees were attributable to the defense of the Itelds’ wine loss claim.

C

Following a hearing, the district judge, on December 5, 2012, granted Four Corners’ motions in part and awarded it $145,000.00 in fees and $16,438.09 in costs, but denied its request for statutory penalties. Specifically, after reviewing the subcontract between Four Corners and Jack’s, the district judge found the indemnity language to be clearly unequivocal, and concluded that it placed a duty upon Jack’s to both defend and indemnify Four Corners. The district judge, moreover, clarified this obligation by observing that the subcontract, as interpreted by our 2010 writ disposition, obligated both Jack’s, and by extension its insurer Lafayette, to defend and/or indemnify Four Corners with respect to claims arising out of damages to the Itelds from anything that Jack’s did improperly or for Jack’s |innegligence. The district judge, however, rejected Four Corners’ contention that Jack’s and Lafayette are obligated for the totality of its defense bill on the basis of our 2010 ruling, which limited Lafayette’s obligation to defend and reimburse Four Corners to claims arising out of damages to the Itelds for anything that Jack’s did improperly, or for the negligence of Jack’s.

The district judge also rejected the argument put forward by Jack’s and Lafayette that they owe no reimbursement to Four Corners because the jury refused to find that Jack’s acted improperly or negligently by, again, referring to the clear and unequivocal language of the subcontract and our 2010 interpretation, and concluding that the “argument that the defense of Four Corners is contingent to a verdict is contrary to law and there is no genuine issue of material fact in that the duty to defend was required of Lafayette • Insurance Company immediately upon the Fourth Circuit’s ruling.” The district judge, moreover, observed that Four Corners had handled virtually the entirety of the defense of this action and that Jack’s did not retain any experts, question any witnesses, or offer any evidence at trial to defend the claims asserted by plaintiffs for the loss of their wine collection. The district judge, accordingly, concluded that Four Corners was entitled to a defense against the Itelds’ wine claim, and therefore entitled to reasonable attorney’s fees spent in connection with that defense.

With respect to the amount of fees, however, the district judge rejected Four Corners’ allegation that it was entitled to be reimbursed for $345,029.80 in fees, as In well as Jack’s and Lafayette’s proposal to limit attorney’s fees to $56,924.00. After reviewing the criteria set forth in Rivet v. State, Dept. of Transp. & Dev., 96-0145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161, the district judge concluded that Four Corners’ requested fee was unreasonable in light of the fact that there was only a $17,592.20 difference between the appraised value of the Itelds’ wine collection and Four Corners’ requested legal fees. Moreover, the district judge observed that it could not decipher many of Four Corners’ billing entries, or attribute them to the defense of the wine claim. The district judge further found that many of Four Corners’ billing entries were excessive. Relying upon Filson v. Windsor Court Hotel, 07-0755 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, which held that a trial court has the ultimate discretion to determine the amount of attorney’s fees based on the court’s own knowledge, the district judge awarded Four Corners $145,000.00 in fees.

With respect to costs, the district judge found Four Corners’ records sufficiently detailed and reasonable to support an award of $16,438.09. The district judge, however, refused to award statutory penalties. Although it concluded that Lafayette’s refusal to pay for Four Corner’s defense costs pursuant to our 2010 ruling was in bad faith, the district judge nevertheless refused to award statutory penalties because it concluded that Four Corners could not establish that it provided Lafayette with a satisfactory proof of loss.

The district judge, further, granted Jack’s and Lafayette’s motion to dismiss “as to the parts of Four Corners’ Construction Company’s claims not rendered in | iaits favor, dismissing those remaining claims within its Motion for Summary Judgment with prejudice.”

Four Corners filed a motion for new trial on December 14, 2012, seeking an increased award of fees and costs, as well as reurging its claim against Lafayette for statutory penalties, and asking the district judge to declare that Jack’s and Lafayette had a continuing duty to reimburse Four Corners for future defense fees and costs. Jack’s and Lafayette opposed Four Corners’ motion on all grounds. Jack’s and Lafayette, however, acknowledged the district judge’s act of discretion in awarding $145,000.00, and conceded “the lack of any abuse of said discretion” in the award.

The district judge granted, in part, Four Corners’ motion for new trial on January 28, 2013, and increased the award of attorney’s fees by $51,281.00. Specifically, the district judge observed that the request for additional fees was substantiated by sufficiently detailed exhibits to warrant an increase in fees. On the other hand, the district judge concluded that the request for additional costs was not substantiated sufficiently to warrant an increased award. As regards Four Corners’ reiterated request for statutory penalties, the district judge vacated its original conclusion that Lafayette acted in a vexatious manner lacking in good faith in light of its observation that prior to the rendition of its December 5, 2012 judgment, Lafayette had no ascertainable proof as to Four Corners’ defense fees that would warrant a payment to Four Corners in advance of the district judge’s assessment of costs.

The district judge further amended the judgment to provide that Jack’s was to be added as a defendant to be cast in judgment for the December 5, 2012, judgment, but also ruled that “Jack’s Electric shall not be obligated to pay any portion of the judgment unless Lafayette Insurance Company defaults on its’ obligations to pay within the statutory time allowed by law.” Further, the district judge deferred on Four Corners’ request for a ruling on Jack’s and Lafayette’s obligations for future defense fees and costs.

II

In this Part we explain why we affirm those parts of the judgment under review which denied the motion for new trial insofar as it sought an increase in costs of defense and which denied Four Corners’ claim for bad faith penalties.

A

We first discuss Four Corners’ assertion that the district judge erred when she refused to grant its request for additional costs set out in its motion for new trial. Significantly, we note that Four Corners’ initial motions for summary judgment against both Jack’s and Lafayette requested a total cost award of $16,438.09. The district judge awarded this amount in its December 5, 2012 judgment. No party to this appeal questions this award.

In its motion for new trial, however, Four Corners requested that the district judge award it an additional $28,102.71 in costs. Jack’s and Lafayette objected to this award, arguing that Four Corners failed to introduce its cost invoices for these 114amounts in connection with its pri- or motions for summary judgment, and that Four Corners’ exhibits itemizing these additional costs did not adequately explain how the vast majority of the entries were related to the defense of the Itelds’ claims against Jack’s. Importantly, Four Corners has yet to explain why its initial request for costs did not include the $28,102.71 requested in its motion for new trial.

The district judge denied Four Corners’ request for the additional costs, writing: “Four Corners has failed to specify its bills with exactitude to warrant such an award. Exhibit 2 attached to Four Corners’ Motion for New Trial does nothing to specify how the majority of expenses are related to Jack’s. Therefore this Court finds that its’ original order for fees fairly depicts the amount that would have been expended for this case.”

We, initially, observe that Four Corners’ motion does not ground its request upon any of the peremptory grounds listed in La.Code of Civil Procedure art. 1972, or appeal to the district judge’s discretionary powers to grant new trials pursuant to La.Code of Civil Procedure art. 1973. Four Corners, likewise, does not assert reversal on this issue by reference to either of the two foregoing articles. And our review of the record indicates that the district judge’s ruling on this issue does not constitute an abuse of discretion. See Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 09-1528, p. 6 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152. Simply put, the December 5, 2012 judgment was not clearly contrary to the law or the evidence because Four Corners failed to introduce the documents reflecting the additional costs at the July 12, 2012 hearing on their 11⅞motions for summary judgment against Jack’s and Lafayette. Similarly, given that the documents reflecting the additional costs were, at all times, under the control of Four Corners’ counsel they can hardly be characterized as new evidence that could not, with due diligence, have been obtained before or during the hearing on Four Corners’ motions.

We additionally note that a district judge’s award, vel non, of costs outside of the summary judgment procedure is subject to an abuse of discretion standard, and that absent an abuse of discretion, we will not interfere with an award of costs. See Vela v. Plaquemines Parish Government, 00-2221, p. 29 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, 1282. The district judge properly denied Four Corners’ motion for new trial with respect to additional costs.

B

We now turn to discuss Four Corners’ complaint that the district judge erred by failing to award it statutory penalties for Lafayette’s alleged failure to tender any amount of money in satisfaction of its defense obligations. Four Corners cites to La. R.S. 22:1973 and 22:1892 in support of its request for penalties. The prohibited conduct under these two statutes is virtually identical: “the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause.” Reed v. State Farm Mutual Automobile Ins. Co., 03-0107, p. 12 (La.10/21/03), 857 So.2d 1012, 1020 (emphasis added) (citing Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 7 (La.1/19/00), 753 So.2d 170, 174). The primary difference between these two | ir,statutes is the different time periods allowed for payment-thirty days under La. R.S. 22:1892 and sixty days under La. R.S. 22:1973. Id. Because these two statutes are penal in nature, they are strictly construed. See Reed, 03-0107 at pp. 12-13, 857 So.2d at 1020 (citing Hart v. Allstate Insurance Company, 437 So.2d 823, 827 (La.1983)).

The claimant seeking to recover under these two statutes has the burden of establishing three things: 1) that the insurer received a satisfactory proof of loss, 2) that the insurer failed to pay the claim within the applicable statutory period, and 3) that the insurer’s failure to pay was arbitrary and capricious. See Sterling v. U.S. Agencies Casualty Co., 01-2360, p. 6 (La.App. 4 Cir. 5/15/02), 818 So.2d 1053, 1057. A satisfactory proof of loss must, among other things, establish the extent of the damages. See McDill v. Utica Mutual Ins. Co., 475 So.2d 1085, 1089 (La.1985). A satisfactory proof of loss is, likewise, a necessary predicate to a showing that the insurer was arbitrary and capricious. Reed, 03-0107 at p. 13, 857 So.2d at 1171021; Boudreaux v. State Farm Mut. Auto. Ins. Co., 04-1339, p. 4 (La.App. 4 Cir. 2/2/05), 896 So.2d 230, 234. Accordingly, no claimant is entitled to statutory penalties under La. R.S. 22:1973 and 22:1892 absent a satisfactory proof of loss. Normally, a district judge’s conclusion as to whether a proof of loss is satisfactory is subject to the manifest error standard of review. See Yount v. Lafayette Ins. Co., 08-380, p. 17 (La.App. 4 Cir. 1/28/09), 4 So.3d 162, 173; Boudreaux, 04-1339, p. 8, 896 So.2d at 236. Because the underlying ruling, however, arises out of the denial of a motion for summary judgment, we review the district judge’s ruling under the less deferential de novo standard. See Cusimano v. Port Esplanade Condominium Assn., Inc., 10-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934.

The district judge denied Four Corners’ request -for statutory penalties after concluding that Four Corners could not establish that it provided Lafayette with a satisfactory proof of loss. As noted, Four Corners initially requested that Lafayette compensate it for nearly all attorney’s fees associated with the defense of the Itelds’ claims. The district judge rejected Four Corners’ request on the grounds that: 1) the total fee was excessive in relation to the estimated value of the Itelds’ wine collection; 2) many of the individual billing entries were excessive; and 3) it was unable to decipher many of Four Corners’ billing entries, or attribute them to the defense of the wine claim. We have reviewed Four Corners’ voluminous billing entries and invoices, which take up more than three volumes of this matter’s record, and conclude that the district judge did not err in ruling that Four Corners’ 11scould not meet its burden of proving that it supplied Lafayette with a satisfactory proof of loss. See La. C.C.P. art. 966 C(2). We, accordingly, affirm the district judge’s denial of Four Corners’ request for statutory penalties pursuant to La. R.S. 22:1973 and 22:1892.

Ill

We now address Jack’s and Lafayette’s argument that the district judge erred in awarding Four Corners attorney’s fees. Jack’s and Lafayette do not argue on appeal that the district judge’s award of $196,281 in attorney’s fees should be reversed because of the presence of genuine issues of material fact, or that the award itself constituted an abuse of discretion. Jack’s and Lafayette assert, instead, that the district judge’s award of attorney’s fees was “inappropriate” because it represents an award for fees incurred by Four Corners’ counsel beyond the mere defense of actions attributable to Jack’s.

Pretermitting the arguments put forward by Jack’s and Lafayette, we conclude that the district judge erred in awarding Four Corners attorney’s fees because of the presence of genuine issues of material fact. We review the granting of a summary judgment under the de novo standard, which means that “we look at the facts and evidence in the record before us, inspecting it without regard or deference to the judgment of the trial court or its reasons for judgment.” Cusimano, 10-0477, p. 4, 55 So.3d at 934.

The reasonableness, vel non, of an attorney’s fee is a factual issue. See Leake & Andersson, LLP v. SIA Insurance Company (Risk Retention Group), LTD, 03-1600, p. 4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969; Nail v. Germania Plantation, Inc., 96-1602, p. 6 (La.App. 1 Cir. 5/9/97), 693 So.2d 1294, 1297. It is hornbook law that summary judgment is not a substitute for a trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that calls for credibility determinations and the weighing of testimony. See Stewart Title of Louisiana v. Chevron, U.S.A., Inc., 12-1369, p. 6 (La.App. 4 Cir. 3/27/13), 112 So.3d 949, 952. Similarly, a motion for summary judgment is rarely appropriate for disposition of issues that require a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case. See Greater Lafourche Port Com’n v. James Const. Group, L.L.C., 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

The record here discloses that both sides to the attorney’s fee dispute submitted proposed amounts to the district judge for consideration as reasonable fee awards. Jack’s and Lafayette, further, asserted that many of Four Corners’ proposed charges were unrelated to the defense of the Itelds’ claims against Jack’s. The district judge rejected both sets of proposed amounts, finding specifically that Four Corners’ proposal, which was based upon its attorneys’ billing records, was | ¡^unreasonable. The district judge further noted that it was unable to decipher many of Four Corners’ billing entries, or attribute them to the defense of the work attributed to Jacks’. Given these findings, the district judge was confronted with genuine issues of material fact that precluded it from awarding fees to Four Corners based upon its own estimation of reasonableness in the context of a summary judgment procedure. We, accordingly, reverse the district judge’s award of $196,281.00 in attorney’s fees to Four Corners and remand this matter with instructions.

REMAND INSTRUCTIONS

We remand to the district judge for summary trial only the issue of the amount of attorney fees to be awarded to Four Corners. We direct that the district judge proceed summarily and contradictorily with the parties in assessing and awarding reasonable attorney fees for Four Corners’ defense of those claims arising out of damages to the Itelds from anything that Jack’s did improperly or for Jack’s negligence. See La. C.C.P. art. 2592(1) (summary proceedings may be used for trial or disposition of the award of and the determination of reasonableness of attorney fees). Any party aggrieved by the amount of the district judge’s award shall be entitled to an appeal of right therefrom.

DECREE

We affirm the ruling which denied Four Corners’ motion for new trial in which it sought additional costs of defense. We also affirm that aspect of the summary judgment which dismissed with prejudice Four Corners’ claims against 1⅞1 Lafayette for penalties under La. R.S. 22:1973 and 22:1892. We reverse the award by summary judgment, as amended, of $196,281.00 in attorney fees. We remand with instructions to the district judge for a contradictory evidentiary hearing on the issue of the amount of reasonable fees due to Four Corners for the defense of those claims arising out of damages to the Itelds from anything that Jack’s did improperly or for Jack’s negligence.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Also made defendants were a roofing company and other insurance providers. These defendants are not parties to the present appeal.

      . The supporting documentation comprises over three volumes of the record in Iteld v. Four Corners Construction L.P., 12-1504 (La.App. 4 Cir. 6/5/13),-So.3d-, 2013 WL 2443261. The record in Docket # 12-1504 has, by our order, been incorporated into the record of the present appeal.

      . We conclude that we are authorized to exercise our appellate jurisdiction over this matter in light of our decision to treat Jack’s and Lafayette's Motion to Dismiss as a motion for summary judgment. See La. C.C.P. art 865 ("Every pleading shall be so construed as to do substantial justice.”) In Coxe Property Management and Leasing v. Woods, 09-1729, p. 2 (La.App. 4 Cir. 8/11/10), 46 So.3d 258, 259-260, we stated in construing Article 865: "[Cjourts look beyond mere heading and terminology used on or in pleadings to determine the circumstances and the true nature thereof.” Citing Griffith v. Metry Cab Service, Inc., 266 So.2d 739, 741 (La.App. 4 Cir.1972). We, likewise, noted in Coxe that "[ajppellate courts, too, construe pleadings liberally to do substantial justice.” Coxe, 09-1729, p. 2, 46 So.3d at 260.

      . The District Court, on this point, ruefully observed: "If Jack’s Electric was providing a defense to Four Corners, this Court did not see it.”

      . The parties have since advised us that the issue of future defense fees and costs is moot.

      . Section 1892(B)(1) provides: Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. La. R.S. 22:1892(B)(1).
      Section 22:1973(B) provides: Anyone of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A;
      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious or without probable cause. La. R.S. 22:1973(B)(5).


source: Caselaw Access Project

author: KING, Justice, for the Court: KITCHENS, Justice,

license: Public Domain

text:
    Carl PATTERSON, Jr. v. T. L. WALLACE CONSTRUCTION, INC. and Turtle Creek Development, Inc.
    No. 2010-CT-01812-SCT.
    Supreme Court of Mississippi.
    May 2, 2013.

      Audry Regnal Blackledge, Hattiesburg, Peter Andrew Lampros, Matthew A. Cath-ey, attorneys for appellant.
    Walter William Dukes, Guliport, Adam B. Harris, Andy Lowry, Ridgeland, Roger C. Riddick, Bradley Smith Kelly, Ridge-land, attorneys for appellees.
   ON WRIT OF CERTIORARI

KING, Justice, for the Court:

¶ 1. Carl Patterson Jr. sustained serious injuries in a single-vehicle motorcycle accident. He sued T. L. Wallace Construction, Inc. (T. L. Wallace) and Turtle Creek Development, Inc. (Turtle Creek) for damages. T. L. Wallace and Turtle Creek both filed motions for summary judgment. The Circuit Court of Marion County granted each motion for summary judgment. The Court of Appeals, finding the circuit court erred by granting summary judgment, reversed and remanded for a trial. Both defendants filed writs of certiorari, which we granted. After considering the parties’ arguments and applicable law, we reverse the Court of Appeals’ judgment and reinstate and affirm the Marion County Circuit Court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the afternoon of November 18, 2006, Patterson and Matt Sorrels, a friend, were riding their motorcycles on Cross Creek Parkway (the Parkway) in Hatties-burg, Mississippi. The Parkway is a public road adjacent to Turtle Creek Mall. Sorrels rode ahead of Patterson, with Patterson following approximately twenty feet behind Sorrels. While riding, Patterson struck debris in the road, crashed, and suffered severe injuries. Sorrels managed to navigate through the debris without incident.

¶ 3. On July 8, 2008, Patterson sued T. L. Wallace and Turtle Creek, alleging negligence. Patterson alleged that Turtle Creek owned parcels of land located on each side of the Parkway where construction was underway. Turtle Creek hired T. L. Wallace to complete the projects. To facilitate its work, T. L. Wallace repaired a dirt haul road, which ran east and west of the Parkway. To repair the haul road, T. L. Wallace used a bulldozer to roll over portions of wet dirt on the west side of the Parkway, lay it in wind rows, and allow it to dry. Patterson alleged that T. L. Wallace and Turtle Creek negligently caused the debris to accumulate on the Parkway, failed to clean the debris, and failed to warn motorists of the danger.

¶ 4. In his deposition testimony, Patterson could not answer whether T. L. Wallace was performing construction near the site of the accident, whether T. L. Wallace had caused the debris to be on the Parkway, and how long the debris had been on the road prior to his accident. Sorrels also had no idea how the debris got on the Parkway, who put it there, or how long the debris had been on the Parkway. Sorrels did state that he had seen construction equipment in the area, but he was unsure whether the construction equipment was in the area the day of Patterson’s accident.

¶ 5. T. L. Wallace employees gave deposition testimony as well. Through that testimony, T. L. Wallace presented proof that its work stopped 200 feet, or more, away from the Parkway and that grass existed between its work area and the Parkway. T. L. Wallace also stated that it had worked on Turtle Creek’s property on November 9, 10, and 13, 2006. Evidence shows T. L. Wallace also moved construction equipment to the property on November 13 and 17, 2006. T. L. Wallace did not work on Turtle Creek’s property again until November 20, 2006, two days after Patterson’s accident.

¶ 6. Based on the deposition testimony, both T. L. Wallace and Turtle Creek moved for summary judgment. T. L. Wallace argued that Patterson had failed to show it had created the dangerous condition, failed to show it was working in the area the day of the accident, failed to show T. L. Wallace had actual or constructive notice of the debris, and failed to show an agency relationship existed between it and Turtle Creek. Turtle Creek argued that it had retained T. L. Wallace as an independent contractor, it did not cause the debris on the Parkway, and it was not responsible for debris on a public road.

¶ 7. On Turtle Creek’s motion for summary judgment, the circuit court found that T. L. Wallace was an independent contractor, thus Turtle Creek was not liable for any alleged negligence of T. L. Wallace. The circuit court found that neither exception to the doctrine of responde-at superior applied in this case. Further, the circuit court determined that Turtle Creek had no duty to maintain the Parkway, a public road owned by the City of Hattiesburg. The circuit court also found no evidence suggesting that Turtle Creek had created the hazardous condition itself. Accordingly, the circuit court granted Turtle Creek’s motion for summary judgment.

¶ 8. With regard to T. L. Wallace, the circuit court determined that Patterson had failed to present sufficient evidence regarding how the debris was deposited onto the Parkway and how long the debris had been there at the time of the accident. The circuit court determined Patterson’s allegations against T. L. Wallace were based on mere speculation, and T. L. Wallace did not owe Patterson a duty simply because it had worked in the area. The circuit court also noted that the Parkway is a public road owned by the City of Hattiesburg, stating: “it is likely that other contractors, members of the general public, or employees of the City of Hatties-burg created the hazardous condition that caused this accident.” Finding Patterson had failed to prove the first element of negligence (duty), the circuit court granted T. L. Wallace’s motion for summary judgment.

¶ 9. Patterson appealed. In a five-to-three decision, the Court of Appeals reversed and remanded for a trial. The majority stated that the circuit court’s order “fails to take into consideration the evidence that [T. L. Wallace] employees were in the area on November 8, 9,13, and 17; that T. L. Wallace had other equipment in the area; and that there was no evidence that anyone else could be responsible for the debris in the roadway.” The majority also noted evidence that T. L. Wallace had failed to clean the roadway, as was its practice, and that T. L. Wallace knew or should have known of the dangerous condition. Thus, based on circumstantial evidence, the majority determined summary judgment was inappropriate, and the case should have gone to a jury. The majority opinion failed to address Patterson’s claims against Turtle Creek. The defendants timely filed petitions for certio-rari, which we granted.

ANALYSIS

¶ 10. We review the circuit court’s grant or denial of a motion for summary judgment de novo. Ladnier v. Hester, 98 So.3d 1025, 1027-28 (¶ 9) (Miss.2012). The moving party bears the burden to show no genuine issue of material fact exists. Id. at 1028 (¶ 110). Thus, we review the evidence in the light most favorable to the nonmoving party. Id. However, to survive summary judgment, the opposing party may not rely on mere allegations but must set forth specific facts to show genuine issues for trial. Whiting v. Univ. of S. Miss., 62 So.3d 907, 914 (¶ 9) (Miss.2011). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

I. Turtle Creek

A. Vicarious Liability

¶ 11. As previously mentioned, the Court of Appeals’ majority opinion failed to discuss the issue of vicarious liability. Patterson argues that Turtle Creek paid T. L. Wallace by the hour, making T. L. Wallace an agent of Turtle Creek. Thus, Patterson states that Turtle Creek is responsible for the acts and omissions of T. L. Wallace. Both T. L. Wallace and Turtle Creek maintain that no agency relationship existed between them. Because T. L. Wallace is an independent contractor, its acts and omissions cannot be used to impute liability onto Turtle Creek.

¶ 12. Who constitutes an independent contractor is well defined:

An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.

Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 141 (¶ 7) (Miss.2006) (quoting Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 148 (Miss.1994)). Generally, the principal cannot be held vicariously liable for torts committed by the independent contractor. Id.

¶ 13. Turtle Creek proved no genuine issue of material fact exists regarding T. L. Wallace’s status as an independent contractor. Patterson claims T. L. Wallace was Turtle Creek’s agent, not an independent contractor, because Turtle Creek paid it by the hour. However, Patterson fails to cite any authority in support of his position. Also, the record belies Patterson’s claim. Deposition testimony of T. L. Wallace employees shows that Turtle Creek paid T. L. Wallace a fixed price to remove dirt from its land. The prep work, which was performed prior to Patterson’s accident, was included in that price. Based on the record, no evidence suggests that Turtle Creek controlled T. L. Wallace or its performance of the work. Thus, Turtle Creek cannot be held liable for the acts or omissions of T. L. Wallace. Turtle Creek was entitled to summary judgment on this issue, thus the circuit court did not commit error.

B. Negligence

¶ 14. To show negligence, Patterson had to present evidence of duty, breach of duty, causation, and damages. Huynh v. Phillips, 95 So.3d 1259, 1262 (¶ 9) (Miss.2012). Patterson claimed Turtle Creek failed to follow land-permit requirements and conduct safety inspections. Turtle Creek argues that Patterson failed to state authority in support of its position, and Patterson failed to show a genuine issue of material fact. It is Patterson’s duty to provide support for his argument. He failed to do so. Thus, we decline to consider the argument. See Grenada Living Ctr., LLC v. Coleman, 961 So.2d 33, 37 (¶ 14) (Miss.2007).

¶ 15. We agree with the circuit court’s findings regarding Turtle Creek’s alleged negligence. The record is void of any evidence that Turtle Creek deposited any debris onto the Parkway itself. Furthermore, although Turtle Creek owned property adjacent to the Parkway, it cannot be held liable for maintaining the public road. The Court has stated that:

A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care (a) to maintain the highway or way in safe condition for their use, or (b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.

Martin v. Flanagan, 818 So.2d 1124, 1128 (¶ 17) (Miss.2002). Thus, the existence of debris on the Parkway near Turtle Creek’s property is not sufficient to impose a duty on Turtle Creek to clean the debris or warn others of the condition. No evidence suggests that Turtle Creek performed some “unreasonable affirmative act” which would make it liable for any condition on the Parkway. See id. at 1128 (¶ 18). The retention-pond project, which stopped hundreds of feet away from the Parkway, is not an unreasonable act. Patterson failed to show, by a preponderance of the evidence, that Turtle Creek owed him a duty or breached any duty. Thus, Patterson’s claims against Turtle Creek cannot survive summary judgment. We find the circuit court properly granted Turtle Creek’s motion for summary judgment.

II. T.L. Wallace

¶ 16. T. L. Wallace argues that it owed no duty to Patterson and that Patterson failed to show that T. L. Wallace had created the hazardous condition. Conversely, Patterson argues that T. L. Wallace’s negligence may be inferred through circumstantial evidence, that the evidence shows T. L. Wallace created the hazardous condition, and that T. L. Wallace breached its duty to clean the debris and warn motorists of the condition,

¶ 17. The Court of Appeals’ majority admitted that neither Patterson nor Sorrels could testify regarding the source of the debris. Then, it stated “there was no evidence that anyone else could be responsible for the debris in the roadway,” and “[njeither of the Appellees could testify as to an alternate source of the accumulation in the roadway that led to Patterson’s wreck and injuries.” Patterson v. T. L. Wallace Constr., Inc., 133 So.3d 352 (Miss. Ct.App.2012). The majority improperly shifted the burden to T. L. Wallace to prove someone else had created the hazardous condition.

¶ 18. In order to prevail on a negligence claim, the plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, • proximate cause, and damages. Huynh, 95 So.3d at 1262 (¶ 9). Duty and breach of duty are essential elements of negligence and should be demonstrated first. Id. at 1262-63 (¶ 10). Patterson had to provide sufficient proof that T. L. Wallace was responsible for the debris on the Parkway, failed to clean it, and failed to warn motorists of the hazardous condition. He did not do so. • < •

¶ 19. Patterson stated that, because T. L. Wallace had performed construction in the area, T. L. Wallace must be responsible for the debris on the Parkway and must be liable for his injuries. Patterson’s argument is similar to the doctrine of res ipsa loquitur. But, in pertinent part, this doctrine requires “the instrumentality causing the damage must be under the exclusive control of the defendant.” Brown v. Baptist Mem’l Hosp. DeSoto, Inc., 806 So.2d 1131, 1135 (¶17) (Miss.2002). The doctrine does not apply here, because the Parkway is a public road owned by the City of Hattiesburg; it is not under T. L. Wallace’s exclusive control.

¶ 20. So, to survive summary judgment, Patterson had to show by a preponderance of the evidence that T. L. Wallace owed it a duty of care. A defendant who creates a hazardous condition has a duty to make safe or warn of that condition; ownership is immaterial. See Spann v. Shuqualak Lumber Co., 990 So.2d 186 (Miss.2008) (holding the defendant had a duty to refrain from creating an unreasonably dangerous condition— smoke — which could impede a motorist’s vision). But the plaintiff must present sufficient evidence that the defendant created the hazardous condition.

¶ 21. The parties do not dispute that T. L. Wallace was retained by Turtle Creek to perform work on a retention pond located west of the Parkway. To facilitate its work, T. L. Wallace had repaired a haul road which stopped 200 feet away from the Parkway. T. L. Wallace’s work entailed smoothing out wet dirt, and it moved equipment onto the property to complete the work. When deposed, neither Patterson nor Sorrels could provide answers regarding who was responsible for the debris and how long the debris was on the Parkway. Patterson showed that T. L. Wallace had worked near the site of his accident several days prior to his accident and a few days after his accident. But evidence that T. L. Wallace had worked in the area several days prior to Patterson’s accident is insufficient to show that it created the hazardous condition. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.1994) (citing Sears Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)) (holding mere proof of occurrence of an accident is insufficient to establish negligence).

¶ 22. Based on circumstantial evidence, the Court of Appeals’ majority found the case should have survived summary judgment. In some cases, circumstantial evidence can be used to survive summary judgment. But the Court has stated that:

In order to establish an allegation of negligence based upon circumstances, inferences and acts of a defendant in the nature of admissions, the proof of circumstances must be such that they will take the case out of the realm of conjecture and place it within the field of a legitimate inference of liability.

Huynh, 95 So.3d at 1263.

¶ 23. Patterson relies on mere allegations and speculation to support his claims against T. L. Wallace. As previously mentioned, neither Patterson nor Sorrels knew who had deposited the debris on the Parkway or how long it had been there. As stated by the circuit court:

[Patterson] insists that “the debris was in the road either as a result of Defendant’s work at the project or because it fell off of Defendant’s equipment.” This insistence is mere speculation, and it is likely that other contractors, members of the general public, or employees of the City of Hattiesburg created the hazardous condition that caused this accident.

We agree.

¶ 24. “[A] plaintiff may not rely solely upon the unsworn allegations in the pleadings or ‘arguments and assertions in briefs or legal memoranda.’ ” Whiting, 62 So.3d at 914 (¶ 9). At most, Patterson showed that T. L. Wallace performed construction in the area several days prior to his accident. No circumstantial evidence suggests T. L. Wallace caused the debris to accumulate on the Parkway. Without such evidence, Patterson’s claims are insufficient to survive summary judgment. T. L. Wallace proved that the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, showed no genuine issue as to any material fact, and it was entitled to summary judgment. Accordingly, we find the circuit court did not err by granting T. L. Wallace’s motion for summary judgment.

CONCLUSION

¶ 25. The circuit court properly granted T. L. Wallace’s and Turtle Creek’s motions for summary judgment. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Marion County Circuit Court.

¶ 26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 27. I agree with the majority that summary judgment was appropriate in favor of Turtle Creek Development, Inc., as it owed no duty to Patterson nor was it T. L. Wallace Construction’s (T. L.Wallace) employer for the purpose of respondeat superior. However, I do not agree that summary judgment was appropriate in favor of T. L. Wallace. The majority says that Patterson’s claims that T. L. Wallace created the dangerous condition, knew of the dangerous condition, and failed to warn of the dangerous condition, are nothing but mere speculation. With respect, I disagree. I find that Patterson has shown sufficient circumstantial evidence to create a genuine issue of material fact as to whether T. L. Wallace caused the debris to accumulate on the roadway. Accordingly, I conclude that summary judgment was inappropriate with respect to Patterson’s claims against T. L. Wallace, and I respectfully dissent in part.

¶ 28. In order to survive summary judgment on a negligence claim, the plaintiff must make a prima facie showing on every element of the claim (i.e. duty, breach, causation, and damages). Huynh v. Phillips, 95 So.3d 1259, 1262 (Miss.2012). Summary judgment is appropriate if “there is no genuine issue as to any material fact.” M.R.C.P. 56(c). Accordingly, if a plaintiff can show that there is a genuine issue of material fact regarding each element of his negligence claim, summary judgment is inappropriate. Clearly, gravel and debris in the paved road caused Patterson to crash. The crash resulted in severe injuries to Patterson. The real questions at the summary judgment stage were whether T. L. Wallace owed Patterson a duty to keep the roadway clear of debris that it was alleged to have deposited and whether T. L. Wallace breached that duty by failing to keep the roadway clear.

¶ 29. The majority correctly states that a party responsible for creating a hazardous condition owes a duty to remedy or warn of the condition, regardless of ownership. See Spann v. Shuqualak Lumber Co., 990 So.2d 186 (Miss.2008). Therefore, at trial, in order to show that T. L. Wallace had a duty to warn of the debris on the road, Patterson had to be able to show by a preponderance of the evidence that T. L. Wallace created the hazard by depositing the debris on the road. The majority states that, at summary judgment, Patterson had to have shown, by a preponderance of the evidence, that T. L. Wallace actually caused the debris to accumulate on the road and therefore owed Patterson a duty of care. I disagree that Patterson had to show this by a preponderance of the evidence. Summary judgment is inappropriate if there is a genuine issue of material fact. See M.R.C.P. 56(c). Therefore, I find that Patterson merely had to show that there was a disputed issue of material fact regarding whether T. L. Wallace had caused the debris to accumulate on the road. The record demonstrates that he did.

¶ 30. The accident occurred on November 18, 2006. Patterson presented evidence that T. L. Wallace employees were working in the area in which the accident occurred on four out of the nine days immediately prior to the accident. On November 9, 2006, T. L. Wallace had rolled dirt onto the unpaved haul road on the construction site and set it in wind rows. It worked in the same area for ten hours on November 10, 2006, and ten more hours on November 13, 2006. Also on November 13, T. L. Wallace moved a tractor onto the east side of the roadway for the Kohl’s project. On November 17, the day before the accident, T. L. Wallace delivered a track hoe to the unpaved construction site and in doing so had to traverse the public roadway on which the accident occurred.

¶ 31. The majority concludes that “[tjhere is no circumstantial evidence which suggests T. L. Wallace caused the debris to accumulate on the” roadway. I cannot agree with that statement. Overall, Patterson presented evidence that T. L. Wallace had been working extensively in the area in the days prior to his accident, that it was performing work that involved moving large amounts of dirt and gravel, and that it had delivered heavy-equipment to the site on at least two occasions, one of which was the day before Patterson suffered his accident. The large trucks that hauled the heavy equipment onto the muddy job site had to depart the same way they had come in: across the roadway that Patterson’s vehicle had attempted to traverse at the time of the accident. Essentially, T. L. Wallace was moving a lot of dirt and dirt-moving machinery in the area. If there was dirt in the road, a jury could very well find from a preponderance of the evidence that T. L. Wallace had caused it to be there. In my view, there is sufficient circumstantial evidence to support an inference that T. L. Wallace caused the hazard and failed in its duty to warn of the hazard, which T. L. Wallace denied. Thus, there was a genuine issue of material fact that should have defeated summary judgment in T. L. Wallace’s favor.

¶ 32. It is a longstanding rule of Mississippi jurisprudence that, when circumstantial evidence supports an inference that a tortfeasor caused a dangerous condition, the question of the origin of the dangerous condition is one for the jury. See Kurn v. Fondren, 189 Miss. 789, 198 So. 727, 730 (1940) (“[W]hen the circumstantial evidence justified the jury in finding that the inference that the fire was set by a railroad locomotive is stronger and more probable than that it was set out from another cause, the question of the fire’s origin was for the jury.”). See also Gulf, M. & N.R. Co. v. Sumrall, 142 Miss. 56, 107 So. 281 (1926), Illinois Cent. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773 (1915). “It is also well settled that negligence may be proven by circumstantial evidence and when the case turns on circumstantial evidence it should rarely be taken from the jury.” Davis v. Flippen, 260 So.2d 847, 848 (Miss.1972) (citing Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195 (1956). The Court of Appeals aptly cited the railroad cases in its opinion because they presented a factual scenario strikingly analogous to the one before us. In Kum, the plaintiffs’ land and farm were damaged in a fire. Kurn, 198 So. at 728. Although no one saw what caused the fire, the plaintiffs knew that a train owned by the defendants passed through the area shortly before the fire began. Id. The Court found that “there is no evidence which excludes the reasonable probability of a fire having been set by sparks from a passing [steam-driven] locomotive; but, on the contrary, that the evidence more strongly tends to show such a probability.” Id. at 730.

¶ 33. The facts before us are very similar. No known person witnessed T. L. Wallace deposit the debris on the ground, just as no one saw the train actually start the fire in Kum. However, evidence was presented showing that T. L. Wallace was working extensively with dirt and dirt-moving equipment in the area near the crash before the crash occurred, just as there was evidence that the train in Kum had passed through the area of the fire shortly before the fire was started. In Kum, the Court found it important to note that there was no evidence indicating that the train did not start the fire, but rather that all of the evidence presented indicated that it was probable that the train started the fire. Here, there is no evidence indicating that T. L. Wallace did not deposit the debris on the road. On the contrary, the evidence presented (i.e., T. L. Wallace was working with dirt and dirt-moving equipment on several different days before the accident occurred) tends to show that it was probable that T. L. Wallace deposited the debris. Of course, at trial, a jury might fail to find such by a preponderance of the evidence. But for summary judgment purposes, the circumstantial evidence is sufficient to support a genuine issue of material fact.

¶ 34. The majority states that the Court of Appeals “improperly shifted the burden to T. L. Wallace to prove someone else had created the hazardous condition.” Again, I respectfully disagree. In moving for summary judgment, the burden is on the moving party to show that there is no genuine issue of material fact. Ladnier v. Hester, 98 So.3d 1025, 1028 (Miss.2012). Also, “the nonmoving party should be given the benefit of every reasonable doubt.” Id. As has been said, Patterson presented circumstantial evidence indicating that T. L. Wallace likely deposited the debris on the roadway. “[Njegligence may be proven by circumstantial evidence.... ” Davis, 260 So.2d at 848. In looking at the circumstantial evidence presented by Patterson in the light most favorable to Patterson, there is compelling evidence that T. L. Wallace created the hazard on the roadway. In order to succeed on its motion for summary judgment, T. L. Wallace had to show that it was equally probable that anyone else created the hazard. T. L. Wallace failed to meet that burden.

¶ 35. I find that Patterson presented sufficient circumstantial evidence to withstand a motion for summary judgment against his negligence claim, and that T. L. Wallace failed to meet its burden to show there was no disputed issue of material fact on its motion for summary judgment. The circumstantial evidence presented by Patterson, viewed in the light most favorable to Patterson, creates a clear inference that T. L. Wallace created the hazard on the roadway and therefore owed Patterson a duty to warn of the unremediated danger. Circumstantial evidence is sufficient to support a negligence claim, and it is the province of the jury to weigh its credibility. Accordingly, I believe summary judgment was inappropriate, and I respectfully concur in part and dissent in part.

      . Sorrels described the debris as a mixture of gravel and dirt.

      . Due to his severe injuries, Patterson’s right leg was amputated.

      . Patterson sued other defendants who later were dismissed from the lawsuit.

      . More specifically, Patterson could recall neither what the debris consisted of, its thickness, its length, its width, nor how long it had been on the Parkway. Patterson had no idea if the defendants were aware of the debris. He did not recall seeing any gravel trucks in the area the day of his accident. He had no information regarding whether T. L. Wallace was performing construction near the accident site. When asked what evidence he had to suggest the debris was deposited on the Parkway by either defendant, Patterson stated he did not have that information. Patterson also had no information regarding whether T. L. Wallace was the company actually responsible for the debris on the Parkway. Last, Patterson stated that he had no way to determine whether Turtle Creek or T. L. Wallace had anything to do with the debris on the Parkway.

      . On November 13, a John Deere tractor and box blade were delivered to the job site from a project nearby. On November 17, a track-hoe was delivered to the job site from Tupelo, Mississippi. T. L. Wallace did not move any equipment off the job site during that time.

      . Patterson v. T. L. Wallace Constr., Inc., 133 So.3d 352, (Miss.Ct.App.2012).

      . Id. at 355 (¶ 11).

      . Patterson claims the requirements are contained in the Mississippi Air and Water Pollution Control Law. See Miss.Code Ann. § 49-17-29 (Rev.2012). The statute aims to protect state air and water resources from pollution. We have reviewed the statute, and we do not see how this imputes legal liability upon Turtle Creek for Patterson’s injuries.

      . Patterson argued that Turtle Creek was required to minimize offsite vehicle tracking of sediment, install erosion controls, and inspect the erosion controls once a week. Patterson claimed that Turde Creek did not install erosion controls as required.

      .Patterson argues his case is distinguishable from Martin because that case involved land in its natural state and, in his case, Turtle Creek had "graded, scraped, and improved” its land. The record suggests this activity took place in 2004, two years before Patterson’s accident, and was performed by another contractor. The activity also was performed prior to the Parkway opening for public use in 2005.