IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________

No. 02-60081 _____________________

DAVID L. EVANS, Plaintiff-Appellant,

versus

NATIONAL UNION FIRE INSURANCE COMPANY, Etc.; ET AL,

Defendants. BOH BROTHERS CONSTRUCTION COMPANY,

Defendant-Cross Defendant-Appellee.

MISSISSIPPI DEPARTMENT OF TRANSPORTATION,

Defendant-Cross Claimant-Appellee-Appellant. __________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:00-CV-146-GR _________________________________________________________________ December 13, 2002

Before KING, Chief Judge, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

David Evans (“Evans”) appeals the grant of summary judgment in

favor of defendants on his negligence claims, and the Mississippi

Department of Transportation (“MDOT”) appeals the grant of summary

judgment in favor of Boh Brothers Construction Company (“Boh

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Brothers”) on its cross claim for indemnification. For the

following reasons, we affirm the judgment of the district court.

I.

When portions of the left lane of I-10 in Harrison County,

Mississippi were damaged by a third party’s gas pipeline drilling,

MDOT hired Boh Brothers to do the necessary repair construction

work. During the project, Boh Brothers set up safety devices to

warn passing motorists of the construction. These devices included

concrete barriers, an arrow signboard, several orange

channelization barrels, ten warning signs, reflectors on one of the

concrete barriers and reflective tape.

On July 14, 1999, at approximately 4:30 a.m., plaintiff Evans

struck a concrete barrier at the construction site on I-10.

Accident reports indicate that the illuminated signal arrow board

was not working and two orange channelization barrels were not in

place. His accident was the second of three that occurred at the

same location within a forty-five minute period.

Evans filed a negligence action against Boh Brothers, its

insurer and MDOT. MDOT filed a cross-claim against Boh Brothers

for indemnification.

II.

We review a district court’s grant of summary judgment de

novo, applying the same standards as the district court. Consumers

County Mut. Ins. Co. v. P.W. & Sons Trucking Co.,

, 365

2 (5th Cir. 2002). Summary judgment is appropriate when, viewing the

evidence in the light most favorable to the non-moving party, the

record reflects that no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law.

III.

In this diversity case, we apply the law of Mississippi.

Under Mississippi law, a defendant is not liable for a dangerous

condition unless he has actual or constructive knowledge of that

condition. Jackson v. Locklar,

(Miss. 1983).

Evans does not dispute that neither MDOT nor Boh Brothers had

actual notice of the missing barrels and the malfunctioning arrow.

Instead, he argues that MDOT and Boh Brothers had constructive

knowledge. “Constructive knowledge is established by proof that

the condition existed for such a length of time that, in the

exercise of reasonable care, the proprietor should have known of

it.” Waller v. Dixieland Food Stores, Inc.,

(Miss. 1986). A plaintiff’s inability to negate the possibility

that the dangerous condition arose minutes before the accident is

fatal to his case.

; Aultman v. Delchamps, Inc.,

(Miss. 1967). Evans proffered no evidence as to when the

arrow malfunctioned and when the barrels were knocked over.

Nothing he presents negates the possibility that these conditions

arose minutes before his accident. Viewing the evidence in the

light most favorable to Evans, he cannot prove that the conditions

3 existed long enough for the defendants to have discovered them.

Because Evans cannot establish that either Boh Brothers or MDOT had

actual or constructive notice of the dangerous condition, the

district court correctly granted summary judgment in favor of all

defendants.

IV.

Because we hold that neither Boh Brothers nor MDOT is liable

in this case, the only question remaining is whether MDOT is

entitled to indemnification from Boh Brothers for attorney’s fees

and the costs of this lawsuit.

The contract between MDOT and Boh Brothers for this project

contains a provision that Boh Brothers will indemnify MDOT “from

all suits, actions or claims of any character brought because of

injuries or damages received or sustained by person(s) or property

resulting from his operations....” This provision is the standard

indemnification provision in the Mississippi Standard Specification

for Road and Bridge Construction § 107.14.1. It does not require

that Boh Brothers indemnify MDOT for MDOT’s own negligence, as any

provision doing so would be void under Mississippi law.

(1972). What it does is provide indemnification

from “all suits, actions or claims” that arise from the actions or

negligence of Boh Brothers in performing the contract.

MDOT asserts the indemnification provision described above

includes an obligation to indemnify MDOT from costs and attorney’s

4 fees in this case. MDOT cannot recover costs and fees related to

establishing its right to indemnification. Celotex Corp. v.

Bucknell Construction, Inc.,

(Miss. 1976). The costs

and fees at issue here are not recoverable as part of a damage

award, nor is there any finding that Boh Brothers’ negligence

caused this action.

The costs and fees in issue arose from

defending what turned out to be a groundless suit. Had the

contract between MDOT and Boh Brothers expressly included costs and

fees in the indemnification provision, then indemnification would

extend to costs and fees arising from groundless suits. Blain v.

Sam Finley, Inc.,

(Miss. 1969). However, there

is nothing in the contract between MDOT and Boh Brothers that

requires Boh Brothers to indemnify MDOT for costs and attorney’s

fees. Because the contract between MDOT and Boh Brothers does not

contain the requisite particularity with respect to indemnification

for costs and attorney’s fees, the district court correctly granted

summary judgment in favor of Boh Brothers on MDOT’s indemnification

claim.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

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