Skipper v. A&M Dockside Repair, Inc. et al, No. 2:2018cv06164 - Document 46 (E.D. La. 2019)

Court Description: ORDER AND REASONS: For the foregoing reasons, A&M's 32 motion for summary judgment is DENIED. Signed by Judge Sarah S. Vance on 7/11/2019. (mm)
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Skipper v. A&M Dockside Repair, Inc. et al Doc. 46 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WALTER SKIPPER CIVIL ACTION VERSUS NO. 18-6164 A&M DOCKSIDE REPAIR, INC. ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is defendant and third-party plaintiff A&M Dockside Repair, Inc.’s (A&M) m otion for sum m ary judgm ent against third-party defendant Helix Resources, LLC (Helix). 1 Because the indem nity provision between Helix and A&M contains an exception for A&M’s sole negligence, the Court denies the m otion. I. BACKGROU N D This case arises out of a workplace accident. At the tim e of the accident, plaintiff Walter Skipper was employed by third-party defendant Helix as a painter and blaster. 2 On August 11, 20 17, plaintiff was working on a barge owned and operated by defendant Cashm an Equipm ent Corporation, 1 2 R. Doc. 32. R. Doc. 1 at 2 ¶ 4; R. Doc. 32-3 at 1 ¶ 1; see generally R. Doc. 33-1. Dockets.Justia.com and chartered by defendant Osprey Line, LLC. 3 The barge was in a shipyard that is owned and operated by A&M. 4 In the course of perform ing his duties, plaintiff allegedly fell into an open m anhole cover on the barge and suffered severe injuries. 5 At the tim e of the accident, A&M’s and Helix’s relationship was governed by a service agreement that included two reciprocal indem nity provisions. 6 On J une 22, 20 18, plaintiff filed a com plaint alleging negligence against defendants A&M and Cashm an Equipm ent Corporation. 7 On October 15, 20 18, plaintiff filed an am ended com plaint adding defendant Osprey Line as the owner of the vessel on which he was injured. 8 On November 29, 20 18, the Court granted plaintiff’s m otion to voluntarily dism iss his claims against defendant Cashm an Equipment. 9 On J anuary 17, 20 19, the Court granted A&M’s m otion for leave to file a third-party com plaint against Helix. 10 A&M has now filed a m otion for sum m ary judgm ent on the basis that Helix has indem nified it against the plaintiff’s 3 4 5 6 7 8 9 10 R. Doc. 32-3 at 1 ¶ 2; see generally R. Doc. 33-1. Id. R. Doc. 1 at 2 ¶ 4. R. Doc. 32-3 at 1 ¶ 4; R. Doc. 33-1 at 2 ¶ 4. See R. Doc. 1. R. Doc. 15. R. Doc. 23. R. Doc. 25. 2 claim s under the terms of the two com panies’ service agreement. 11 Helix opposes the m otion. 12 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that 11 12 R. Doc. 32. R. Doc. 33. 3 a reasonable [factfinder] could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of 4 sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION A&M argues that it is entitled to summ ary judgment on its claim for indem nity against Helix on the basis of an indemnity provision in the service agreement that requires Helix to indem nify it against “all suits dem ands claim s, fines, penalties, attorney’s fees and actions of every type and character by whomever brought. . . .”13 The service contract contains two identical indem nity provisions that require Helix to indem nify A&M, and also require A&M to indem nify Helix. 14 Together, the two provisions read as follows: Contractor 15 shall indem nify, hold harm less and defend at its own expense Client, Client’s parent, subsidiary, and affiliated 13 R. Doc. 32-1 at 3-4; R. Doc. 32-2 at 6. R. Doc. 32-2 at 6. Although the duel indem nity provisions require Helix and A&M to indem nify one another, the second paragraph requiring A&M to indem nify Helix has not been triggered because no suit, dem and, claim , fine, penalty, attorney’s fee or action for personal injury, property dam age, or loss has been brought against Helix. Helix has been sued only by A&M for indem nity under the contract. 15 Helix is referred to as the “contractor,” and A&M is referred to as the “client.” 5 14 com panies, Client’s purchasers, and the officers, directors, em ployees, agents, contractors, insurers, and subcontractors of each (hereinafter collectively “Client Group”) from and against all suits dem ands claim s, fines, penalties, attorney’s fees and actions of every type and character by whomever brought, whenever occurring, suffered or incurred by contractor, contractor’s parent subsidiary, and affiliated com panies and the officers, directors, em ployees, agents, contractors, insurers, and subcontractors of each (hereinafter collectively “Contractor Group”) without regard to the cause thereof for any bodily injury death or property dam age or loss arising out of or resulting in any way from any conditions or defect in the work, or from perform ance of the work even if same should arise due to the concurrent negligence, strict liability or other legal fault of Client Group or the unseaworthiness of any Client owned or leased vessel excepting only injury death or property dam age or loss resulting solely from Client’s negligence and without negligence or fault on the part of Contractor Group or any other party whom soever. Client shall indemnify, hold harm less, and defend at its own expense contractor, contractor’s parent, subsidiary, and affiliated com panies and the officers, directors, em ployees, agents, contractors, insurers, and subcontractors of each (hereinafter collectively “Contractor Group”) from and against all suits, demands, claim s, fines, penalties, attorney’s fees and actions of every type and character by whomever brought, whenever occurring, suffered or incurred by Client, Client’s parent, subsidiary, and affiliated com panies, and the officers, directors, em ployees, agents, contractors, insurers, and subcontractors of each (hereinafter collectively “Client Group”) without regard to the cause thereof for any bodily injury, death, or property dam age or loss, arising out of or resulting in any way from any conditions or defect in the work or from perform ance of the work even if sam e should arise due to the concurrent negligence, strict liability or other legal fault of Contractor Group or the unseaworthiness of any contractor owned or leased vessel, excepting only injury death or property damage or loss resulting solely from contractor’s negligence and without negligence or 6 fault on the part of Client Group or any other party whom soever. 16 A&M argues that these parallel indem nity provisions constitute a “knock for knock” indem nity obligation in which each party is required to indem nify the other for claim s brought by its own em ployees. 17 See 1 Adm iralty & Mar. Law § 5:16 (6th ed. 20 18) (explaining that knock for knock indem nity provisions “require[e] each party to indem nify the other for property dam age claim s or personal injury claim s brought by their respective em ployees”). Because plaintiff was undisputedly Helix’s employee at the time of the accident, A&M argues that the service agreem ent requires Helix to indemnify A&M against plaintiff’s claim s. 18 As an initial m atter, the Court m ust determ ine which law governs interpretation of the service agreement. The parties assume in their briefings that m aritim e law governs. 19 But the agreement provides, “[i]t is expressly agreed that this Agreem ent and all term s and conditions hereof, whether express or im plied, shall be governed by and construed in accordance with the laws of the State of Louisiana.”20 In m aritim e cases, the Court applies 16 17 18 19 20 Id. R. Doc. 36 at 1-2. Id. at 2. R. Doc. 32-1 at 3. R. Doc. 32-2 at 6. 7 federal m aritim e choice of law rules. Great Lakes Reinsurance (UK) PLC v. Durham Auctions, Inc., 585 F.3d 236, 241 (5th Cir. 20 0 9). Under these rules, “contractual choice of law provisions are generally recognized as valid and enforceable.” Id. at 242; 1 Adm iralty & Mar. Law § 5:19 (6th ed. 20 18) (“Choice of law . . . clauses in contracts m ay be set aside only on very narrow grounds: if they are shown to be unreasonable under the circum stances.”). The Court therefore finds that Louisiana law governs interpretation of the service agreement. Under Louisiana law, courts apply general rules of contract interpretation to construe indem nity provisions. Liberty Mut. Ins. Co. v. Pine Bluff Sand & Gravel Co., 89 F.3d 243, 246 (5th Cir. 1996). “Interpretation of a contract is the determ ination of the intent of the parties.” La. Civ. Code art. 20 45. When the term s of a contract are clear and unam biguous and do not lead to absurd results, the Court interprets them as a m atter of law. Pine Bluff, 89 F.3d at 246; see also La Civ. Code art. 20 46 (“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation m ay be m ade in search of the parties’ intent.”). But “am biguity in the terms of a contract gives rise to a fact question concerning the intent of the parties.” Pine Bluff, 89 F.3d at 246. 8 Here, the clear and unam biguous terms of the indemnity provision do not require Helix to indem nify A&M in instances of “injury death or property dam age or loss resulting solely from [A&M’s] negligence and without negligence or fault on the part of [Helix] or any other party whom soever.”21 No determ ination of negligence has been m ade, nor can the Court apportion negligence in deciding a m otion for sum m ary judgment. See Tullos v. Res. Drilling, Inc., 750 F.2d 380 , 385 (5th Cir. 1985) (“Questions of negligence in adm iralty cases are fact questions.”) (citing Cheek v. W illiam s-McW illiam s Co., 697 F.2d 649, 652 (5th Cir. 1983)). If A&M is found to be solely negligent in causing the plaintiff’s injuries, Helix has no obligation to indem nify A&M. Thus, the Court cannot find that the indem nity provision applies as a m atter of law, and it m ust deny A&M’s m otion. See Em p’rs Ins. Co. of W ausau v. Jennie V’S Seafood, LLC, 970 F. Supp. 2d 50 9, 515 (E.D. La. 20 13) (denying sum m ary judgment when indem nity provision contained an exception for claim s caused by negligence of the indem nitee when no negligence determ ination had been m ade). 21 Id. 9 IV. CON CLU SION For the foregoing reasons, A&M’s m otion for summ ary judgm ent is DENIED. New Orleans, Louisiana, this _ _11th _ _ _ day of J uly, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10