Cardoso-Gonzalez v. Anadarko Petroleum Corporation et al, No. 2:2016cv16585 - Document 102 (E.D. La. 2018)

Court Description: ORDER AND REASONS - IT IS ORDERED that Defendant Anadarko's 75 motion for summary judgment regarding the crossclaim by W-Industries of Louisiana, LLC is GRANTED. Anadarko is entitled to judgment as a matter of law in its favor on W-Industrie s' crossclaim. IT IS FURTHER ORDERED that Defendant Anadarko's 77 motion for summary judgment regarding the crossclaim by Dolphin Services, LLC is GRANTED. Defendant Anadarko is entitled to judgment as a matter of law in its favor on Dolphin's crossclaim. Signed by Judge Susie Morgan. (bwn)

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Cardoso-Gonzalez v. Anadarko Petroleum Corporation et al Doc. 102 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A N OEL CARD OSO-GON ZALEZ, Plain tiff CIVIL ACTION VERSU S N O. 16 -16 58 5 AN AD ARKO PETROLEU M CORPORATION , ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REASON S Before the Court are two m otions for summ ary judgm ent filed by Crossclaim Defendant Anadarko Petroleum Corporation (“Anadarko”). 1 In the first m otion, Anadarko seeks a ruling that the indem nity and insurance provisions in its Master Service Contract with Crossclaim Plaintiff W-Industries of Louisiana, L.L.C. (“W-Industries”) is unenforceable under the Louisiana Oilfield Indem nity Act (“LOIA”), and that Anadarko is entitled to judgm ent as a m atter of law on W-Industries’ crossclaim . 2 W-Industries, LLC filed an opposition. 3 Anadarko filed a supplem ental m em orandum in support of its m otion. 4 In the second m otion, Anadarko seeks a ruling that the analogous provisions in its Master Service Contract with Crossclaim Plaintiff Dolphin Services, L.L.C. (“Dolphin”) are invalid, and that Anadarko is entitled to judgm ent as a m atter of law on Dolphin’s crossclaim . 5 Dolphin has not filed an opposition. 6 1 R. Docs. 75, 77. R. Doc. 75. 3 R. Doc. 89. 4 R. Doc. 75. 5 R. Doc. 77. 6 Accordingly, the Court con siders the Defendant’s statem ent of uncontested facts to be adm itted pursuant to Local Rule 56.2. Although the m otion for sum m ary judgm ent is unopposed, sum m ary judgm ent is not autom atic, and the Court m ust determ ine whether the Defendant has shown an en titlem ent to judgm ent as a m atter of law. See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 20 0 6). F ED. R. CIV. P. 56(a). 2 1 Dockets.Justia.com Because the issues raised in the two m otions are identical, the Court will address them together. For the reasons that follow, Anadarko’s m otions are GRAN TED . BACKGROU N D Plaintiff Noel Cardoso-Gonzales alleges that on August 13, 20 16, he was working aboard the LUCIUS spar, an offshore oil and gas production platform, when an unsecured cable tray fell from overhead, striking him between the shoulder and neck. 7 Plaintiff alleges the incident resulted in severe and disabling injuries. 8 On Novem ber 23, 20 16, Plaintiff filed suit against (1) Anadarko Petroleum Corporation, the owner and/ or operator of the LUCIUS; (2) W-Industries, which provided electrical services on the LUCIUS; 9 (3) Dolphin, which provided construction services on the LUCIUS; 10 (4) Safezone Safety System s, LLC; and (5) Gulf South Services, Inc., the spar’s scaffolding supplier. 11 Plaintiff asserts negligence claim s against all defendants. 12 On Novem ber 9, 20 17, Dolphin filed a crossclaim against Anadarko, seeking defense and indem nity from Plaintiff’s claim s pursuant to its Master Service Contract (“MSC”) with Anadarko. 13 W-Industries filed a crossclaim on Novem ber 15, 20 17 on the sam e grounds. 14 The MSCs include indem nity and insurance sections that provide standard “knock for knock” provisions pursuant to which the parties agree to indem nify each other for personal injuries sustained by their respective em ployees and invitees regardless of fault. 15 Specifically, the W-Industries’ MSC provides: 7 R. Doc. 6 at 2-4. A cable tray is a m etal tray through which various cables run . See R. Doc. 32-2 at 2 (Deposition of Louis De La Sierra). 8 R. Doc. 6 at 3. 9 R. Doc. 32-6 at 2 (Deposition of Sullivan J . Fortner). 10 Id. 11 R. Doc. 32-4 at 3 (Deposition of Brandon Mouton). 12 R. Doc. 6 at 3. 13 R. Doc. 43. Anadarko and Dolphin entered into a MSC on March 21, 20 0 1. R. Doc. 77-4 at 1. 14 R. Doc. 48. Anadarko and W-Industries entered into a MSC on Decem ber 7, 20 0 9. R. Doc. 75-4 at 1. 15 R. Doc. 75-2 at ¶ 11. R. Doc. 89-1 at ¶ 11. See R. Doc. 75-4 at 5. 2 Com pany agrees to be responsible for and assum e all liability for and hereby agrees to defend, release, indem nify, and hold harm less contractor indem nitees again st claim s arising in connection with; (i) bodily in jury to and/ or death of com pany’s personnel and com pany’s invitees; an d/ or (ii) subject to section 5, dam age to property of com pany, com pany’s personnel, and its an d their invitees; arising in connection with this agreem ent, regardless of fault. 16 The MSC between Anadarko and Dolphin provides: The com pany agrees to be responsible for and assum e all liability for and hereby agrees to defend, release, indem nify, and hold harm less the contractor indem nitees again st claim s arising in connection with: (i) bodily injury and/ or death to com pany’s em ployees, com pany’s subcontractors and their em ployees, and com pany’s invitees; and/ or (ii) dam age to property of com pany’s em ployees and com pany’s subcontractors an d their em ployees, and com pany’s invitees; arising out of or resulting from the perform ance of this agreem ent, regardless of fault. The indem nity obligations set forth in this paragraph 14(b) shall include any m edical, com pensation, or other benefits paid by contractor or any m em ber of contractor indem nitees and shall apply even if the em ployee is determ ined to be the borrowed or statutory em ployee of contractor or any other m em ber of contractor indem nitees. 17 The MSCs also establish that each party m ust provide insurance coverage “for the benefit of the other” to cover the indem nity obligations included in the agreem ent. 18 Specifically, Exhibit B of W-Industries’ MSC requires each party to obtain “General Liability Insurance with lim its of $ 1,0 0 0 ,0 0 0 com bined single lim it per occurrence, including, but not lim ited to, coverage for public liability includin g bodily injury and property dam age liability, personal/ advertising injury, contractual liability for those liabilities assum ed by the Party herein, cross liability and severability of interest[.]”19 Sim ilarly, the MSC between Anadarko and Dolphin provides that “The party’s insurers 16 R. Doc. 75-4 at 5 ¶ 13(d). R. Doc. 77-4 at 4 ¶ 14(d). R. Doc. 77-4 at 4. 18 R. Doc. 89-1 at ¶ 12. 19 R. Doc. 75-4 at 9. 17 3 nam e Com pany Indem nitees or Contractor Indem nitees, which ever is applicable, as additional insureds (except for Worker’s Com pensation and Property Insurance).”20 Anadarko now m oves for sum m ary judgment, asserting the indem nity an d insurance coverage provisions in the MSCs are null and void under Louisiana law. 21 These are the undisputed facts relevant to these m otions. Anadarko owns and operates the LUCIUS platform , an offshore oil and gas platform located in the Gulf of Mexico off the coast of Louisiana. 22 Anadarko decided to expand the platform by adding an am ine unit, which would rem ove CO2 im purities from the natural gas produced from the platform . 23 This project is referred to as the “Am ine Project.”24 Anadarko hired W-Industries to provide electrical services on the LUCIUS for the Am ine Project, which included installing cable trays and running cable, and Anadarko and W-Industries entered into a MSC dated Decem ber 7, 20 0 9. 25 Anadarko hired Dolphin to provide construction services, in cluding the installation of the brackets upon which the cable trays are secured, for the Am ine Project. 26 Anadarko an d Dolphin entered into a MSC on March 21, 20 0 1. 27 Anadarko argues that, although the MSCs contain a choice of law provision specifying that Texas law will govern any state claim s between the parties, the federal Outer Continental Shelf Lands Act requires that the laws of the “adjacent state”—in this case, Louisiana—should apply. 28 Anadarko contends that under Louisiana law, the indem n ity and insurance provisions in the MSCs are null and void pursuant to the LOIA. 29 20 R. Doc. 77-4 at 3. Doc. 77-1 at 2. 22 R. Doc. 75-2 at ¶ 2. R. Doc. 89-1 at ¶ 2. 23 R. Doc. 75-2 at ¶ 4. R. Doc. 77-2 at ¶ 4. R. Doc. 8 9-1 at ¶ 4. 24 R. Doc. 75-2 at ¶ 3. R. Doc. 77-2 at ¶ 3. R. Doc. 89-1 at ¶ 3. 25 R. Doc. 75-2 at ¶ 1, 5. R. Doc. 89-1 at ¶ 1, 5. 26 R. Doc. 77-2 at ¶ 7. 27 R. Doc. 77-2 at ¶ 1. 28 R. Doc. 75-1 at 5. See Sny der Oil Corp v . Sam edan Oil Corp., 20 8 F.3d 521, 522-23 (5th Cir. 20 0 0 ). 29 See LA. R EV. STAT. 9:2780 . 21 R. 4 Anadarko asserts that, as a result, it is entitled to judgm ent as m atter of law on the crossclaim s of W-Industries an d Dolphin. W-Industries filed an opposition to Anadarko’s m otion. 30 To date, Dolphin has not filed an opposition to Anadarko’s m otion. LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”31 “An issue is m aterial if its resolution could affect the outcom e of the action.”32 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”33 All reasonable inferen ces are drawn in favor of the nonm oving party. 34 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 35 If the dispositive issue is one on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”36 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving 30 R. Doc. 89. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (198 6). 32 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 33 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 34 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 35 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 36 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948 , 951 (D. Colo. 1991)). 31 F ED . 5 party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 37 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonm ovant’s claim . 38 When proceeding under the first option, if the nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 39 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”40 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 41 If the m ovant m eets this 37 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Brennan , J ., dissentin g); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citin g J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 39 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 40 Celotex, 477 U.S. at 332– 33. 41 Id. 38 6 burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”42 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuin e issue of m aterial fact for trial.”43 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific eviden ce in the record an d to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”44 LAW AN D AN ALYSIS I. Ch o ice o f Law To determ ine whether the in dem nity and insurance provisions in the parties’ MSCs are enforceable, the Court m ust first determ ine which law applies. The MSCs specifically provide that Texas law governs any state law claim s between the parties, “exclusive of any principles of conflicts of laws which would direct application of the substantive laws of another jurisdiction.”45 Anadarko asserts that as the LUCIUS is a floating platform 42 Celotex, 477 U.S. at 332– 33, 333 n.3. Id.; see also First N ational Bank of Arizona, 391 U.S. at 289. 44 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 45 R. Doc. 75-4 at ¶ 12. R. Doc. 77-4 at ¶ 13. 43 7 attached to the seafloor, OCSLA governs the choice of law analysis in this case. 46 OSCLA applies to “all installations and other devices perm anently or tem porarily attached to the seabed, which m ay be erected thereon for the purpose of exploring for, developing, or producing resources therefrom .”47 OCSLA supersedes the norm al choice-of-law rules that the forum would apply, requiring courts to apply the “civil and crim inal laws of [the] adjacent state.”48 The LUCIUS is anchored to the seabed off the coast of Louisiana, and as a result Louisiana is the “adjacent state.”49 Courts look to the three-part test form ulated by the United States Suprem e Court in Rodrigue v. Aetna Cas. & Surety Co. 50 to determ ine whether OCSLA requires application of the adjacent state’s law in the present m atter. This test requires, “(1) The controversy m ust arise on a situs covered by OCSLA (i.e. the subsoil seabed, or artificial structure perm anently or tem porarily attached thereto). (2) Federal m aritim e law m ust not apply of its own force. (3) The state law m ust not be inconsistent with federal law.”51 When a case involves a contractual indem nity provision, the Fifth Circuit holds: [A] contractual indem nity claim (or any other contractual dispute) arises on an OCSLA situs if a m ajority of the perform ance called for under the contract is to be perform ed on stationary platform s or other OCSLA situses enum erated in 43 U.S.C. § 1333(a)(2)(A). It is im m aterial whether the underlying incident that triggers the indem nity obligation occurs on navigable waters or on a platform or other OCSLA situs. 52 46 R. Doc. 77-1 at 5. 43 U.S.C. § 13:33(A)(1). 48 43 U.S.C. § 1333(a)(2)(A). See Sny der Oil Corp. v. Sam edan Oil Corp., 20 8 F.3d 521, 522-23 (5th Cir. 20 0 0 ). 49 R. Doc. 75-2 at ¶ 2. R. Doc. 89-1 at ¶ 2. 50 395 U.S. 352 (1969). See also Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 10 43, 10 47 (5th Cir. 1990 ). 51 Rodrigue, 395 U.S. at 359. 52 Grand Isle Shipy ard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir. 20 0 9). 47 8 First, the parties do not dispute that the LUCIUS is a production platform anchored to the subsoil seabed off Louisiana’s Gulf coast. 53 It is also undisputed that the MSCs between the parties specifically provided for electrical and construction services in support of the Lucius Am ine project aboard the LUCIUS. Accordingly, the Court finds the controversy arose on an OCSLA situs. As to the second prong, no party has argued that general m aritim e law should govern either the Plaintiff’s tort claim s or the parties’ contractual dispute. Indeed, WIndustries’ opposition im plicitly concedes that state law applies. 54 Third, the Court m ust determ ine whether the state law that would apply by virtue of OCSLA is in consistent with federal law. The Fifth Circuit holds that the LOIA does not conflict with federal law. 55 Accordingly, having found that the three prongs of the Rodrique test have been m et, the Court concludes that OCSLA applies in this case. Notwithstanding OCSLA, the Court m ust consider whether the choice-of-law provision in the contract overrides any other legal basis for determ ining the applicable law. 56 Both federal and Louisiana state courts routinely disregard choice-of-law provisions in m aster service contracts when OCSLA requires the application of adjacent law. 57 In Matte v. Zapata Offshore Co., for exam ple, the Fifth Circuit addressed whether a choice-of-law provision that selected general m aritim e law trum ped the application of 53 R. Doc. 77-1 at 5-6. In analogous cases, the Fifth Circuit found that spars sim ilar to LUCIUS were fixed platform s, rather than vessels, and thus subject to OCSLA. See Mendez v. Anadarko Petroleum Corp., 466 Fed. App’x 316, 318-19 (5th Cir. 20 12); Fields v. Pool Offshore, Inc., 18 2 F.3d 353, 359 (5th Cir. 1999). 54 R. Doc. 89. 55 See Matte v. Zapata Offshore Co., 78 4 F.2d 628, 630 (5th Cir.1986). 56 See Duet v . Falgout Offshore, LLC, 757 F. Supp. 2d 598 (E.D. La. 20 10 ). 57 Roberts v. Energy Dev. Corp., 235 F.3d 935, 943 (5th Cir. 20 0 0 ); Matte v. Zapata Offshore Co., 78 4 F.2d 628 (5th Cir. 1986); Silverm an v. Mike Rogers Drilling Co., Inc., 34 So.3d 10 99, 110 4 (La. App. 2 Cir. 4/ 14/ 10 ). 9 OCSLA. 58 The court held that the choice-of-law provision “violates the public policy of both Louisiana and the United States,” and voided the provision. 59 In this case, the Court sim ilarly finds that the choice-of-law provisions in the MSCs are void because they conflict with the application of OCSLA and the LOIA. Accordingly, the Court shall disregard the choice-of-law provision in the parties’ MSCs and apply Louisiana law pursuant to OCSLA. II. In d e m n ity The LOIA was enacted after an express legislative finding “that an inequity is foisted upon certain contractors and their em ployees by the defense or indem nity provisos . . . contained in som e agreem ents pertaining to wells for oil, gas or water.”60 As a result, the LOIA “declare[s] null and void and against public policy . . . any provision in any agreem ent which requires defen se and/ or indem nification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indem nitee . . . .”61 To determ ine if the provisions of the LOIA apply to a given contract, the Fifth Circuit has fashioned a two-part inquiry: First, there m ust be an agreem ent that “pertains to” an oil, gas or water well. If the contract does n ot pertain to a well, the inquiry ends. Only if we determ ine that the contract has the required n exus to a well m ay we proceed to the second step of the process, exam in ation of the contract's involvem ent with “operations related to the exploration, developm ent, production, or transportation of oil, gas, or water” . . . Therefore, if (but only if) the agreem ent (1) pertains to a well and (2) is related to exploration, developm ent, production, or transportation of oil, gas, or water, will the Act invalidate any indem nity provision contained in or collateral to that agreem ent. 62 58 784 F.2d 628 (5th Cir. 198 6). Id. at 631-32. 60 LA. R EV. STAT. 9:2780 . 61 LA. R EV. STAT. § 9:2780 (A). 62 Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 991 (5th Cir. 1992); Fontenot v. Chevron U.S.A. Inc., 95-1425 (La. 7/ 0 2/ 96); 676 So. 2d 557, 564. 59 10 Whether the LOIA applies should be considered in relation to the nature of the contract, rather than the task or activity that led to the incident. 63 As a result, the activities giving rise to the claim need not have been rendered at the offshore site or in connection with the drilling or operation of a particular site in order to fall within the bounds of the LOIA. 64 At the first step of the inquiry, W-Industries’ MSC provides W-Industries will supply “onshore and Offshore Am ine Upgrade Support” for the Lucius Am in e project. 65 As a result, the agreem ent clearly “pertains to” an oil, gas, or water well. Second, as noted above, the Am ine Project involved the installation of equipm ent related to the production of natural gas from the wells connected to the LUCIUS. Therefore, the Court finds that the MSC “is related to” the exploration, developm ent and production of oil and gas. Sim ilarly, Dolphin’s MSC establishes that Dolphin Services was hired to provide the “supply of m aterials, labor, equipm ent, and third party services for onshore and offshore fabrication, installation, and m aintenance of n ew an d existing com pany facilities.”66 As the work perform ed aboard the LUCIUS was related to the installation of equipm ent connected to the production of natural gas of nearby wells, the MSC “pertains to a well” and is “related to exploration, developm ent, production, or transportation” of natural gas. For these reasons, the Court concludes the LOIA applies to the MSCs in this case, and the indem nity provisions contained therein are invalid. 63 Grand Isle Shipy ard v. Gray Insurance Co., 589 F.3d 778 (5th Cir. 20 0 9); Hodgen v. Forest Oil Corp., 115 F.3d 358 (5th Cir. 1997). 64 See Grand Isle Shipy ard at 787 (5th Cir. 20 0 9). 65 R. Doc. 75-5 at 1 (Master Service Contract Exhibit “A,” Work Order). 66 R. Doc. 77-4 at 1 ¶1. 11 III. In s u ran ce As discussed above, W-Industries’ and Dolphin’s MSCs provide that “each Party shall carry and m aintain for the benefit of the other Party, the following m inim um insurance coverage with policy territory sufficient to cover the Work hereunder. 67 Anadarko contends that these provisions are invalid under the LOIA, and that, as a result, it is entitled to sum m ary judgm ent on the Crossclaim Plaintiffs’ dem ands for insurance. 68 The LOIA prohibits contracting parties from using insurance agreem ents to circum vent the law’s anti-indem nity provisions: G. Any provision in any agreem ent arising out of the operations, services, or activities listed in Subsection C of this Section of the Louisiana Revises Statutes of 1950 which requires waivers of subrogation, additional nam ed insured endorsem ents, or any other form of insurance protection which would frustrate or circum vent the prohibitions of this Section, shall be null and void and of no force and effect. 69 Consistent with the express language of Subsection G, courts generally hold that contractual provisions requiring the contractor to extend its insurance coverage to cover the principal’s acts of negligence or fault are void under the LOIA because these insuran ce arrangem ents frustrate the purpose of the Act. 70 “Subsection G expressly invalidates agreem ents requiring ‘additional nam ed insured endorsem ents or any other form of insurance protection which would frustrate or circum vent the prohibitions of this section.’”71 Considering Anadarko’s argum ents, the case law, and the sum m ary judgm ent record, the Court concludes that the additional insured provisions in the MSCs are null 67 R. Doc. 75-4 at 9 ¶ a. R. Doc. 774 at 2 ¶ 12. R. Doc. 75-1 at 9-10 . R. Doc. 77 at 9-11. 69 LA. R EV. STAT. 9:2780 (G). 70 See, e.g., Rogers v. Sam edan Oil Corp., 30 8 F.3d 477, 480 (5th Cir. 20 0 2); Roberts v. Energy Dev. Corp , 235 F.3d 935 (5th Cir. 20 0 0 ). 71 Babineaux v. McBroom Rig Bldg., 80 6 F.2d 128 2, 128 4 (5th Cir. 1987). 68 12 and void. Anadarko is entitled to sum m ary judgm ent on W-Industries’ and Dolphin’s crossclaim for insurance. IV. M e lo y Exce p tio n D o e s N o t Ap p ly As a final m atter, the Court will address W-Industries’ assertion that sum m ary judgm ent on this issue is prem ature. In its opposition to Anadarko’s m otion, 72 WIndustries does not argue the m erits of the m otion, but instead contends that granting the m otion for sum m ary judgm ent would be prem ature based on the Louisiana Suprem e Court’s ruling in Meloy v. Conoco. 73 In that case, the Louisiana Suprem e Court established an exception to the LOIA anti-indem nity rule that allows for the paym ent of defense costs when a potentially indem nified party is free from fault and the agreem ent provides for such an award. 74 W-Industries argues that, as a it m ay be entitled to recover attorneys’ fees and costs from Anadarko if the plaintiff fails to prove fault by W-Industries, the m otion for sum m ary judgm ent is prem ature. 75 In a supplem ental m em orandum in support of its m otion for sum mary judgm ent, Anadarko argues that W-Industries m isconstrues Meloy . 76 While the Suprem e Court in Meloy did in fact recognize an exception for the paym ent of defense costs by parties who were not at fault, Anadarko notes the Suprem e Court further held “a cause of action for indem n ification for cost of defense does not arise until the lawsuit is concluded an d defense costs are paid.”77 Anadarko contends Meloy actually supports the m erits of Anadarko’s m otion, as the Suprem e Court concluded in that case, “La. R.S. 9:2780 72 R. Doc. 89. Meloy v. Conoco, 8 6-1466 (La. 4/ 16/ 1987), 50 4 So. 2d 833. 74 Id. at 839. 75 R. Doc. 89 at 1-2. 76 R. Doc. 87. 77 Meloy , 50 4 So. at 839. 73 13 nullifies com pletely any provision in any agreem ent that requires defen se and/ or indem n ification where there is any negligen ce or fault on the part of the indem nitee.”78 In this case, the Court agrees with Anadarko that “the potential existence of a Meloy claim does not prohibit the granting of this m otion for sum m ary judgm ent as WIndustries cannot assert a claim that it does not [yet] have.”79 As other courts in this circuit have noted, the Meloy exception only entitles an in dem nitee to recover its costs after a trial on the m erits. 80 As no trial on the m erits has occurred, W-Industries Meloy claim is prem ature, and presents no obstacle to granting the present m otion for sum m ary judgm ent. In the event that W-Industries is ultim ately found free from fault, its Meloy claim m ay be reurged. CON CLU SION For the foregoing reasons; IT IS ORD ERED that Defendant Anadarko’s m otion for sum m ary judgm ent regarding the crossclaim by W-Industries of Louisiana, LLC81 is GRAN TED . Anadarko is entitled to judgm ent as a m atter of law in its favor on W-Industries’ crossclaim . IT IS FU RTH ER ORD ERED that Defen dant Anadarko’s m otion for sum m ary judgm ent regarding the crossclaim by Dolphin Services, LLC82 is GRAN TED . Defendant Anadarko is entitled to judgm ent as a m atter of law in its favor on Dolphin’s crossclaim . N e w Orle a n s , Lo u is ian a, th is 2 0 th d ay o f Ju n e , 2 0 18 . ______________________ _________ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 78 Meloy , 50 4 So. at 838 . R. Doc. 87 at 3. 80 See, e.g., Gautreaux v. Tetra Applied Technologies, LLC, 20 10 WL 1930 925 (E.D. La. May 10 , 20 10 ). 81 R. Doc. 75. 82 R. Doc. 77. 79 14

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