Hanover Insurance Company v. Superior Labor Services, Inc. et al, No. 2:2011cv02375 - Document 321 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting Gray Insurance Company's 174 Motion to Dismiss Third-Party Demand of Masse Contracting, Inc., as stated herein. Signed by Judge Susie Morgan on 3/21/2016. (Reference: 14-1933) (tsf)
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Hanover Insurance Company v. Superior Labor Services, Inc. et al Doc. 321 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A H AN OVER IN SU RAN CE COMPAN Y, Pla in tiff CIVIL ACTION N o . 11-2 3 75 c/ w 14 -19 3 0 , 14 -19 3 3 VERSU S SU PERIOR LABOR SERVICES, IN C., ET AL., D e fe n d an ts SECTION “E” Ap p lie s t o : 14 -19 3 3 ORD ER AN D REAS ON S Before the Court is Third-Party Defendant Gray Insurance Com pany’s m otion to dism iss the am ended third-party claim against it. 1 For the reasons below, the m otion is GRAN TED . BACKGROU N D A. State-Court Lawsuits This is a consolidated action. The case origin ates from two personal-injury actions (“State-Court Lawsuits”) filed in state court against Allied Shipyard, Inc. (“Allied”). The plaintiffs in the State-Court Lawsuits allege Allied negligently perform ed sandblasting activities, causing dangerous silica dust and other hazardous substances to perm eate the plaintiffs’ neighborhood. 2 The plaintiffs seek dam ages for physical pain and suffering, m edical expenses, property dam age, and other dam ages as a result of their exposure to the hazardous substances. 3 1 R. Doc. 130 (Third-Party Com plaint); R. Doc. 169 (Am ended Third Party Com plaint); R. Doc. 174 (Motion to Dism iss). 2 See R. Doc. 174-1 at 2; R. Doc. 1 at ¶¶ 11– 12. 3 See R. Doc. 1 at ¶¶ 11– 12. 1 Dockets.Justia.com In both State-Court Lawsuits, Allied filed third-party dem ands against its contractors who perform ed the sandblasting jobs, including Masse Contracting, Inc. (“Masse”) 4 and Superior Labor Services, In c. (“Superior”). 5 Specifically, Allied alleges that Masse contracted with Allied to perform certain job responsibilities and to indem nify Allied under a m aster work contract, and Allied seeks indem nity from Masse with respect to the claim s in the State-Court Lawsuits. 6 Allied also alleges the right to additional assured status and coverage on all policies of insurance issued to Masse for any liability in the State-Court Lawsuits. 7 Allied also seeks indem nity from Superior and has alleged the right to additional assured status and coverage on all insurance policies issued to Superior for any liability in the State-Court Lawsuits. 8 Masse alleges that, after Allied filed a third-party dem and against Masse in the State-Court Lawsuits, m any of the plaintiffs in the State-Court Lawsuits “have am en ded their Petition to nam e Masse as a direct Defendant.”9 The contractors against which Allied brought third-party dem ands “in turn sought coverage, defense and/ or indem nity from their various insurers for the periods of tim e when these jobs were allegedly perform ed, which prom pted the insurers to file lawsuits in federal courts.”10 4 R. Doc. 174-1 at 2; R. Doc. 130 at ¶ 14. R. Doc. 1 at ¶¶ 14– 17. 6 R. Doc. 169 at ¶¶ 17– 18 . 7 Id. at ¶ 19. 8 No. 14-1930 , R. Doc. 1 at ¶¶ 12– 13. 9 Id. at ¶¶ 14– 18 . 10 R. Doc. 174-1 at 2. 5 2 B. Declaratory Actions in Federal Court There are three federal actions related to the State-Court lawsuits pending in this Court. The Court consolidated the three cases on Novem ber 21, 20 14. 11 1. N o. 11-2375 On Septem ber 21, 20 11, Hanover Insurance Com pany (“Hanover”) filed a com plaint in this Court. 12 Hanover filed an am ended com plaint on Septem ber 27, 20 12. 13 Hanover alleges it has been participating in the defense of Superior against Allied’s thirdparty dem ands in the State-Court Lawsuits. 14 Hanover m aintains the other insurers it nam es in its federal suit “are not participatin g in Superior’s defense” in the State-Court Lawsuits. 15 Hanover seeks judgm ent against Superior declaring that it has no duty to defend or indem nify Superior in the State-Court Lawsuits. 16 If Hanover has a duty to defend or in dem nify Superior, Hanover seeks declaratory judgm ent that State National Insurance Com pany (“State National”), Arch Insurance Com pany (“Arch”), and “other unidentified insurance com panies collectively nam ed as ABC Insurance Com pany” are liable “for their share of defense and indem nity to be paid on behalf of Superior” in the State-Court Lawsuits. 17 Hanover also seeks reim bursem ent, contribution, and/ or dam ages from State National, Arch, and other unidentified insurance com panies for defense costs already incurred by Hanover on behalf of Superior in the State-Court Lawsuits that, Hanover argues, should have been paid by those insurance com panies. 18 11 See R. Doc. 10 8. Hanover Ins. Co. v . Superior Labor Servs., Inc., et al., No. 11-2375. 13 R. Doc. 69. 14 Id. at ¶¶ 23– 24. 15 Id. at ¶ 26. 16 Id. at 22– 23. 17 Id. at ¶ 2. 18 Id. at ¶ 3. 12 3 On J anuary 14, 20 15, Hanover filed a second supplem ental and am ending com plaint nam ing Allied as a defendant. 19 Hanover alleges that “Allied has tendered the [State-Court Lawsuits] to Hanover for defen se and indem nity in its capacity as an alleged additional insured” under Superior’s policies, and Hanover has offered to participate in Allied’s defense in the State-Court Lawsuits subject to a full reservation of rights. 20 Hanover alleges that Allied is not an additional assured under Hanover’s policies, and Hanover seeks judgm ent against Allied declaring that it has no duty to defend or indem n ify Allied in the State-Court Lawsuits. 21 In the alternative, if the Court finds Hanover has a duty to defend or indem nify Allied, Hanover seeks judgm ent declaring that Arch, State National, other unidentified insurance com panies are obligated to pay their portions of defense costs and/ or indem nity incurred by Hanover on behalf of Superior and Allied in the State-Court Lawsuits. 22 2. N o. 14-1930 On August 22, 20 14, Arch Insurance Com pany brought an action for declaratory judgm ent against Superior and Allied. Arch seeks a declaration of its rights and responsibilities under “certain insurance policies issued by Arch to Superior,” with respect to Superior’s request for defense and in dem nity in the State-Court Lawsuits. 23 Arch also seeks a declaration of its rights and responsibilities with respect to Allied’s request for additional assured status under the Superior policies and defense and indem n ity of Allied in the State-Court Lawsuits. 24 Arch seeks a declaration against 19 R. Doc. 125. Id. at ¶ 79. 21 Id. at 9. 22 Id. 23 No. 14-1930 , R. Doc. 1 at ¶ 3. 24 Id. at ¶ 4. 20 4 Superior and Allied that Arch has no defense or indem nity obligation to Superior in the State-Court Lawsuits and that Allied is not an additional assured under the Superior policies. 25 Allied also seeks recovery of the portion of defense costs already incurred by Arch on behalf of Superior. 26 3. N o. 14-1933 On August 22, 20 14, Arch also filed an action for declaratory judgm ent again st Masse and Allied. Arch provided insurance coverage to Masse for Novem ber 15, 20 0 5, to Novem ber 15, 20 0 6, under policy num ber PML 0 0 11399. 27 Arch seeks a declaration of the rights an d responsibilities of Arch under “certain insurance policies issued by Arch to Masse,” with respect to Masse’s request for defense and indem nity in the State-Court Lawsuits. 28 Arch also seeks a declaration of its rights and responsibilities with respect to Allied’s request for additional assured status under the Masse policies and defense an d indem n ity of Allied in the State-Court Lawsuits.. 29 Arch seeks a declaration against Masse and Allied that Arch has no defense or indem nity obligation to Masse in the State-Court Lawsuits. 30 C. Masse’s Third-Party Claim s Masse filed a third-party com plaint in No. 14-1933 on J anuary 14, 20 15, against several of its insurers from 1995 through 20 0 8 , including Gray Insurance Com pany (“Gray”). 31 Masse filed an am ended and supplem ental third-party com plaint on April 8 , 25 Id. at ¶¶ 21, 47. Id. at ¶ 47. 27 R. Doc. 137 at 2. 28 No. 14-1933, R. Doc. 1 at ¶ 3. 29 Id. at ¶ 4. 30 Id. at ¶ 46. 31 R. Doc. 130 at ¶¶ 5– 11. 26 5 20 15, to nam e additional insurers. 32 The am ended third-party com plaint alleges that Gray provided insurance to Masse from 20 0 2 until 20 0 5 and thus has a duty to defend and/ or indem n ify Masse in the State-Court Lawsuits. 33 Masse seeks declaratory relief and a judgm ent against Gray and the other third-party defendant insurers “declaring that these Third Party Defendants have a duty to defend and an obligation to indem nify Masse in the [State-Court Lawsuits] and awarding all costs of these proceedings . . . .”34 D. Gray’s Motion to Dism iss Gray filed the instant m otion to dism iss on May 13, 20 15, under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. 35 Gray argues Masse’s third-party dem an d is im proper under Rule 14 36 and that the Court lacks independent an d supplem ental jurisdiction over Masse’s claim against Gray. 37 The Court will treat the m otion as a m otion to strike pursuant to Rule 14(a)(4) 38 and need not address the other grounds of Gray’s m otion to dism iss. 39 Masse filed a m em orandum in opposition on J uly 7, 20 15. 40 Gray filed a reply in support of its m otion on J uly 15, 20 15. 41 32 R. Doc. 169. Id. at ¶ 12. 34 Id.at 7. 35 R. Doc. 174. 36 R. Doc. 174-1 at 6– 9. 37 Id. at 9– 13. 38 Rule 14(a)(4) states, “An y party m ay m ove to strike the third-party claim , to sever it, or to try it separately.” F ED. R. CIV. P. 14(a)(4). See Morris ex rel. Estate of Morris v. Trust Co. of Va., No. 12-10 20 , 20 14 WL 48 26829, at *4 n .11 (M.D. Ala. Sept. 26, 20 14). 39 The Court notes that Gray is a Louisiana corporation, as is Masse. No independen t basis for jurisdiction exists. The Court lacks supplem ental jurisdiction over Masse’s third-party claim s, as Arch’s claim against Masse and Masse’s third-party claim against Gray are not “so related . . . [such] that they form part of the sam e case or controversy.” 28 U.S.C. § 1367(a). See also Martin v. Fid. N at. Title Ins. Co., No. 0 9-4195, 20 11 WL 4478 432, at *3 (E.D. La. Sept. 26, 20 11). 40 R. Doc. 214. 41 R. Doc. 219. 33 6 STAN D ARD OF LAW A m otion to strike, sever, or try separately a third-party claim requires a determ ination of whether the third-party claim is proper under Rule 14. 42 Rule 14 provides, “A defending party m ay, as third-party plaintiff, serve a sum m ons and com plaint on a nonparty who is or m ay be liable to it for all or part of the claim against it.”43 A defen ding party m ay, but is not required to, file a third-party claim . 44 “Liability of the third party m ust be ‘depen dent’ or ‘in som e way derivative’ of the outcom e of the m ain claim .”45 Thus, “the third party m ust necessarily be liable over to the defendant for all or part of the plaintiff’s recovery or . . . the defendant m ust attem pt to pass on to the third party all or part of the liability asserted against the defendant.”46 D ISCU SSION Gray argues that Rule 14 does not authorize Masse’s third-party claim against it because Gray’s potential liability to Masse is not dependent on the outcom e of Arch’s claim against Masse and Gray cannot be liable to Masse for any part of Arch’s claim . 47 Rule 14 aim s to prom ote efficiency and reduce litigation “by having one lawsuit do the work of two.”48 The Fifth Circuit has explained, however, that “[a]n entirely separate and independent claim cannot be m aintained against a third party under Rule 42 F ED . R. CIV. P. 14(a)(4). See United States v. Joe Grasso & Son, Inc., 380 F.2d 749 (5th Cir. 1967); U.S. ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 265 F.R.D. 266, 272– 73 (E.D. La. 20 10 ). 43 F ED . R. CIV. P. 14(a)(1). 44 Id. (“A defending party m ay, as third-party plaintiff, serve a sum m ons and com plaint on a nonparty who is or m ay be liable to it for all or part of the claim against it.”). See also Branch Consultants, 265 F.R.D. at 272. 45 Id. See also Joe Grasso, 380 F.2d at 750 – 52 (“The question whether a defendant’s dem and presents an appropriate occasion for the use of im pleader or else constitutes a separate claim has been resolved consistently by perm itting im pleader only in cases where the third party’s liability was in som e way derivative of the outcom e of the m ain claim . . . . [I]t is clear that im pleader under Rule 14 requires that the liability of the third party be dependent upon the outcom e of the m ain claim .”); Se. Mortgage Co. v. Mullins, 514 F.2d 747, 749 (5th Cir. 1975). 46 Joe Grasso, 380 F.2d at 751 (citations om itted). 47 R. Doc. 174-1 at 6– 9. 48 Mullins, 514 F.2d at 749 (citations om itted) (internal quotation m arks om itted). 7 14, even though it does rise out of the sam e gen eral set of facts as the m ain claim .”49 “[T]he procedural device of im pleader m ay only be used when the third party defen dant’s potential liability is dependent upon the outcom e of the m ain claim .”50 Im pleader cannot be used “as a vehicle for the trying together of separate and distinct causes of action, or for the introduction, into the m ain action, of several parallel, but independent, actions, or separate an d independent claim s.”51 Thus, to be perm issible under Rule 14, Masse’s thirdparty claim against Gray m ust be depen dent on or derivative of the claim Plaintiff Arch brings against Masse. 52 The third-party com plaint alleges, “Gray provided insurance to Masse from Novem ber 15, 20 0 2 to Novem ber 15, 20 0 5 under policy num ber GL0 72824. Gray has a duty to defend and/ or indem nify Masse in the Underlying Lawsuit[s].”53 The “Underlying Lawsuit[s]” Masse identifies in its com plain t are the State-Court Lawsuits discussed above and not the federal lawsuit brought by Arch against Masse. 54 Masse contends that its third-party dem and against Gray should be allowed to proceed because Gray m ay be liable for all or part of Arch’s claim s against Masse. Masse explain s as follows: If Arch is successful in its declaratory action against Masse, and the Court determ ines that Allied is not an additional assured under Masse’s insurance policy through Arch, then Allied will seek indem nity and defense directly from Masse based upon alleged contractual indem nity. The purported Master Work Contract between Masse and Allied is unenforceable and again st public policy. Therefore, Allied’s sole source for recovery of defense and in dem nity costs is its insurer Gray Insurance Com pany. Since Gray m ay be liable for all or part of Allied’s claim for 49 Id. (citing Joe Grasso, 38 0 F.2d at 751). Am . Express Travel Related Servs. Co. v . Beaum ont, No. 0 1-1869, 20 0 2 WL 31298 867, at *2 (N.D. Tex. Oct. 9, 20 0 2) (quoting Mullins, 514 F.2d at 749) (em phasis added). 51 Majors v. Am . N at. Bank of Huntsville, 426 F.2d 566, 568 (5th Cir. 1970 ) (in ternal quotation m arks om itted). 52 W hen a Third-Party Action Is Proper, 6 F ED . P RAC. & P ROC. CIV. § 1446 (3d ed. 20 10 ). 53 R. Doc. 169 at ¶ 12. 54 See id. at ¶¶ 14– 20 . 50 8 defense and indem nity, which is the subject of Arch’s claim s against Masse, Gray Insurance Com pany is a proper third party defendant in this m atter. 55 In response, Gray notes that, if Arch is successful in its claim against Masse, Arch will have no duty to defen d or indem nify Masse in the State-Court Lawsuits. 56 Gray argues, “If there is no [insurance] coverage, then Arch owes no obligations or duties to Masse; likewise, Masse would owe no obligations or duties to Arch. If that is the case, then Gray cannot be liable to Masse because Masse will not be seeking to pass on to Gray any liability it owes to Arch.”57 Gray also argues that, even assum ing “Allied’s sole source of recovery of defense and indem nity costs is its insurer Gray Insurance Com pany,” as Masse argues, 58 Masse still has not satisfied Rule 14 and shown that Gray would be liable to Masse for all or part of Arch’s claim against it. 59 The Court finds that Masse’s third-party claim against Gray is not derivative of or depen dent on Arch’s claim against Masse. Arch’s policy and Gray’s policy are independent and distinct policies. 60 In its third-party dem and, Masse seeks declaratory relief and judgm ent declaring that Gray and the other third-party defendants “have a duty to defend and an obligation to indem nify Masse in the Underlying Lawsuits (the State-Court Lawsuits) and awarding all costs of these proceedings . . . .”61 Arch, however, seeks declaratory relief and judgm ent against Masse declaring that Arch has no duty to defend or indem nify Masse in the State-Court Lawsuits. 62 Arch’s claim against Masse is based on 55 R. Doc. 214 at 8. R. Doc. 219 at 4. 57 Id. 58 R. Doc. 214 at 8. 59 R. Doc. 219 at 4– 5. 60 The policies don’t even cover the sam e tim e period. Com pare R. Doc. 169 at ¶ 12 w ith R. Doc. 253 at 6– 7 and R. Doc. 137 at 2. 61 R. Doc. 169 at 7. 62 No. 14-1933, R. Doc. 1 at 13– 19. 56 9 the policy of liability insurance Arch issued to Masse, 63 whereas Masse’s claim against Gray is based the policy Gray issued to Masse. 64 If Arch succeeds in its claim against Masse, Masse will not owe Arch anything; rather, Arch will be awarded declaratory judgm ent acknowledging that Arch owes no duty to defend or indem nify Masse in the State-Court Lawsuits. 65 Masse will have no liability to pass on to Gray; Gray thus cannot be secondarily liable to Masse for Arch’s claim against Masse under that scenario. 66 If Arch does not succeed in its claim against Masse and the Court determ ines Arch has a duty to defend or indem nify Masse in the StateCourt Lawsuits, Gray still will not be secondarily liable to Masse for Arch’s claim s. Clearly, the outcom e of Arch’s claim against Masse has no bearing on whether Gray has a duty to indem n ify or defend Masse in the State-Court Lawsuits. It is true that both Arch’s claim against Masse and Masse’s third-party claim against Gray arise from som e of the sam e underlying facts, nam ely, the State-Court Lawsuits, but Masse’s third-party claim against Gray does not depend on or derive from Arch’s claim against Masse in any way. “It is not enough that the suit between [the defendant/ third-party plaintiff] and the third-party defendants would som ehow be related to the suit between [the plaintiff] and [the defendant/ third-party plaintiff].”67 Because “an entirely separate and independent claim cannot be m aintained against a third party under Rule 14, even though it does arise out 63 See id. at ¶¶ 3, 15 R. Doc. 169 at 5– 7. 65 See id. 66 Evert v. Finn , No. 98-3293, 1999 WL 39740 1, at *2 (E.D. La. J une 15, 1999) (“The crucial characteristic of a Rule 14 claim is that defendant is attem pting to transfer to the third-party defendant the liability asserted against defendant by the original plaintiff.”); W hen a Third-Party Action is Proper, 6 F ED. P RAC. & P ROC. CIV. § 1446 (sam e). 67 Branch Consultants, 265 F.R.D. at 273. 64 10 of the sam e general set of facts as the m ain claim ,”68 Masse’s third-party claim is im proper under Rule 14. Masse argues Gray “com pletely fails to address” the factors courts have applied when deciding whether to allow im pleader. 69 Several courts have enum erated factors to consider when determ ining whether to allow a third-party com plaint: (1) the prejudice placed on the other parties; (2) undue delay caused by adding the third-party plaintiff; (3) lack of substance to the third-party claim ; and (4) whether the third-party claim advances the purposes of Rule 14, such as avoiding duplicative suits on closely related issues. 70 The Court need not address these factors, however, because the Court finds Masse’s third-party claim s are procedurally im proper under Rule 14(a). “The court’s discretion m ay be exercised only when the proposed third-party claim is within the scope of im pleader established by Rule 14(a).”71 Masse argues that “m any courts have perm itted third-party claim s to proceed in declaratory judgm ent actions despite a lack of derivative liability.”72 Masse cites several cases in which, Masse argues, the court applies a “declaratory judgm ent exception” to 68 Joe Grasso, 380 F.2d at 751. See also Martin v. Lafon N ursing Facility of the Holy Fam ily , Inc., No. 0 6510 8, 20 0 7 WL 4163678 , at *2 (E.D. La. Nov. 20 , 20 0 7) (“Im pleader is . . . only perm itted in those cases in which a third party is derivatively or secondarily liable to the defendant, i.e., ‘the third party’s liability [is] in som e way derivative of the outcom e of the m ain claim .’” (quoting Joe Grasso, 380 F.2d at 751)); W hen a Third-Party Action Is Proper, 6 F ED. P RAC. & P ROC. CIV. § 1446 (“The m ere fact that the alleged third-party claim arises from the sam e transaction or set of facts as the original claim is not enough.”); Vin m ar Overseas, Ltd. v . OceanCon nect, LLC, No. 11-4311, 20 12 WL 598 920 6, at *4 (S.D. Tex. Nov. 29, 20 12) (“The secondary or derivative liability notion is central to im pleader. . . . Im pleader is proper only when the thirdparty defendant’s potential liability is dependent upon the outcom e of the m ain claim .” (citations om itted) (internal quotation m arks om itted)); Martco Ltd. P’ship v. Bruks Inc., 430 F. App’x 332, 334– 35 (5th Cir. 20 11) (per curiam ). 69 R. Doc. 214 at 6. 70 Cedar Ridge, LLC v. Landm ark Am . Ins. Co., No. 13-672, 20 14 WL 68792, at *2 (E.D. La. J an. 8, 20 14); Vinm ar, 20 12 WL 598920 6, at *3; Briones v. Sm ith Dairy Queens, Ltd., No. 0 8-48 , 20 0 8 WL 420 0 931, at *2 (S.D. Tex. Sept. 9, 20 0 8). 71 Vinm ar, 20 12 WL 598920 6, at *3 (em phasis added). See also McCain v. Clearview Dodge Sales, Inc., 574 F.2d 848 , 849– 50 (5th Cir. 1978) (per curiam ) (“[A] third-party com plaint is n ot proper under Rule 14 if the defendant cannot show a basis for the third-party defendant’s liability to the defendant.”). 72 R. Doc. 214 at 6. 11 Rule 14. 73 The Court does not agree that a declaratory-judgm ent exception to Rule 14 exists and, in any event, finds the cases cited by Masse to be distinguishable from the m atter before it. 74 Masse cites Old Republic Insurance Com pany v. Concast, Inc., a case in which the Southern District of New York relied in part on the Fifth Circuit’s decision in Am erican Fidelity and Casualty Com pany v. Grey hound Corporation. 75 In Am erican Fidelity , the Fifth Circuit concluded that the district court did not abuse its discretion in allowing a third-party com plaint in a declaratory judgm ent action. 76 The Fifth Circuit explain ed that while there were distinctly separate questions involved in the m ain claim and the third-party claim , the underlying issues in both “turn[ed] on substantially the sam e facts” and “were so closely intertwined that consistent results probably depended upon their being decided at one tim e.”77 The Fifth Circuit did not adopt a “declaratory judgm ent exception” as Masse im plies in its opposition. 78 Instead, the Fifth Circuit affirm ed the district court’s determ ination that the third-party dem and fit within the scope of Rule 14 given the sim ilarity between the facts and issues underlying the m ain claim and the third-party claim . In the case now before this Court, the m ain claim and the third-party claim s do not turn on “substantially the sam e facts,” and consistent results will not depend on their being decided sim ultaneously. Assessing both claim s will require independent review of Arch’s insurance policy and Gray’s insurance policy—two separate 73 Id. at 6– 7. For exam ple, in the first case Masse cites to support its contention that courts apply a “declaratory judgm ent action exception,” the court refused to allow im pleader because the court determ ined that the third-party plaintiff sought to im plead a separate insurance com pany that issued a different type of policy as that involved in the m ain claim . N at’l Fire Ins. Co. of Hartford v. N at’l Cable Television Coop., Inc., No. 10 -2532, 20 11 WL 1430 331, at *2 (D. Kan . Apr. 14, 20 11). 75 Old Republic Ins. Co. v . Concast, Inc., 99 F.R.D. 566, 568– 69 (S.D.N.Y. 1983). 76 Am . Fid. & Cas. Co. v. Grey hound Corp., 232 F.2d 89, 92 (5th Cir. 1956). 77 Id. 78 See R. Doc. 214 at 7– 8. 74 12 policies issued by two different insurers covering two different tim e periods. The eviden ce required to prove Arch’s claim against Masse and the eviden ce required to prove Masse’s third-party claim against Gray are distinct. The result in one analysis will not affect the result in the other. 79 CON CLU SION In light of the Court’s analysis above, the Court strikes Masse’s third-party dem an d against Gray from the am ended third-party com plaint, 80 as Masse’s claim against Gray is not derivative of or depen dent on Arch’s claim against Masse. Accordingly; IT IS ORD ERED that Gray’s m otion to strike is GRAN TED . That portion of Masse’s am ended third-party dem and asserting a claim against Gray is STRICKEN and the third-party dem and against Gray is D ISMISSED W ITH OU T PREJU D ICE. IT IS FU RTH ER ORD ERED that Masse has until Th u rs d ay, March 2 4 , 2 0 16 , at 5:0 0 p .m . to file a m em orandum stating why the additional third-party 79 In Joe Grasso, the Fifth Circuit affirm ed the district court’s dism issal of the defendant’s third-party com plaint. The court also suggested in dicta that there is a circum stance that m ight fit within the scope of Rule 14 but is different from the “usual situation where im pleader is used, i.e., where the third im pleader is secondarily liable for the judgm ent against the origin al defendant.” Joe Grasso, 380 F.2d at 752. In Joe Grasso, the plaintiffs were boat owners who brought suit against the United States for a refund of em ploym ent taxes they paid on a group of crewm em bers. Id. at 750 . The United States brought a thirdparty com plaint against the boat captains who could be alternatively liable for the taxes on the sam e group of crewm em bers. Id. The Fifth Circuit affirm ed dism issal but noted that, “in order for the governm ent to be able to im plead the captains as third party defendants in this tax refund suit, it m ust appear that the liability of the two taxpayers is an either/ or proposition as a result of the law or the facts.” Id. at 752. The Fifth Circuit found that the United States failed to show that the tax liability “necessarily will fall upon either [the boatowners] or the captain s.” Id. The court concluded that, although “allowin g im pleader of the captains would expedite adm in istratively the entire controversy,” the third-party com plaint against the captains was “a separate claim for taxes, and as such m ust be den ied.” Id. The instant case is not like the situation discussed in dicta by the Fifth Circuit in Joe Grasso. The determ ination of whether one in surer or another owes Masse a duty to indem nify or defend it in the State-Court Lawsuits is not “an either/ or proposition” between Plaintiff Arch and Third-Party Defendant Gray. Id. Like the third-party claim in Joe Grasso, Masse’s third-party claim s are separate and distinct from Arch’s claim against Masse. The third-party claim against Gray m ay not be brought under Rule 14. 80 R. Doc. 169. 13 dem an ds m ade against the rem aining third-party defendants 81 should not be stricken and dism issed without prejudice for failure to com ply with Rule 14. N e w Orle an s , Lo u is ian a, th is 2 1s t d ay o f March , 2 0 16 . ____________ ________ _______ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 81 See R. Doc. 169. 14
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