BKV Barnett, LLC v. Electric Drilling Technologies, LLC

Filing 55

ORDER by Chief Judge Philip A. Brimmer on 9/26/2024, re: 40 Plaintiff BKV Barnett, LLC's Motion for Summary Judgment is DENIED. ORDERED that, on or before October 28, 2024, plaintiff shall show cause why summary judgment should not enter in favor of defendant in this case.(dgumb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-00139-PAB-SBP
BKV BARNETT, LLC,
Plaintiff,
v.
ELECTRIC DRILLING TECHNOLOGIES, LLC,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on Plaintiff BKV Barnett, LLC’s Motion for
Summary Judgment [Docket No. 40]. Defendant Electric Drilling Technologies, LLC
(“EDT”) filed a response. Docket No. 41. Plaintiff BKV Barnett, LLC (“BKV”) filed a
reply. Docket No. 42. The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
I.

BACKGROUND 1
BKV operates an onshore oil and gas lease wellsite in Justin, Texas (the “Site”).

Docket No. 40 at 3, ¶ 4. EDT provided various services and rental equipment to supply
electrical power to the Site, including powerlines, power poles, and other electrical
equipment. Id., ¶ 5. On August 20, 2021, BKV and EDT entered into a Master Service
Contract (“MSC”). Id., ¶ 2; see also Docket No. 40-1 at 8-30. The MSC states that BKV
may, “from time to time,” request that EDT “perform certain work or furnish certain
services to [BKV] as specified in verbal requests or written work orders. . . . All Work

1

The following facts are undisputed unless otherwise indicated.

Orders executed by the Parties pursuant to this Contract are expressly made subject to
the terms of this Contract.” Docket No. 40-1 at 8, ¶ 1.1. 2 The MSC and all causes of
action arising from the contract are governed by the law of Colorado. Id. at 18, ¶ 14.1. 3
The MSC defines BKV as the “Company” and EDT as the “Contractor.” Docket
No. 40 at 3, ¶ 3. The MSC defines the “Company Group” as
(i) Company and its parent, subsidiaries, affiliated, and related companies, its
partners, co-lessees and non-operating working interest owners and the
directors, officers, partners, owners, members, managers, agents,
representatives, employees, and invitees of any one or more of the persons or
entities named or described above, and (ii) the contractors (and their
subcontractors of any tier) of Company and its parent, subsidiaries, affiliated, and
related companies, and the employees, agents, representatives, and invitees of
such contractors and subcontractors; provided, however, that the term “Company
Group” shall not include any member of “Contractor Group.”
Id. at 5, ¶ 13. The MSC defines the “Contractor Group” as
(i) Contractor and its parent, subsidiary, affiliated, and related companies, and
the directors, officers, partners, members, managers, agents, representatives,
employees, consultants and invitees of any one or more of the persons or entities
named or described above, and (ii) the contractors (and their subcontractors of
any tier) of Contractor and its subsidiary, affiliated, and related companies, and
the employees, consultants, officers, managers, agents, representatives, and
invitees of such contractors and subcontractors.
Id.
The MSC contains insurance, defense, and indemnification provisions. Id. at 4-7,
¶¶ 13-14. The MSC contains the following defense and indemnification obligations of
EDT:

This fact is not included in plaintiff’s statement of undisputed facts. However,
the parties do not dispute the authenticity of plaintiff’s exhibit containing the MSC.
Accordingly, the Court deems this fact undisputed.
3 This fact is not included in plaintiff’s statement of undisputed facts. However,
the parties do not dispute the authenticity of plaintiff’s exhibit containing the MSC.
Accordingly, the Court deems this fact undisputed.
2

2

4. INDEMNITY
4.1
CONTRACTOR AGREES TO INDEMNIFY, DEFEND, RELEASE,
PROTECT AND SAVE HARMLESS COMPANY GROUP FROM AND AGAINST
ANY AND ALL LOSSES, CAUSES OF ACTION, CLAIMS, DEMANDS,
ALLEGATIONS, JUDGMENTS, DEFENSE COSTS, OR SUITS INCLUDING,
BUT NOT LIMITED TO, CLAIMS, DEMANDS, JUDGMENTS OR SUITS FOR
PROPERTY DAMAGE, BODILY INJURY, ILLNESS, DISEASE, DEATH, LOSS
OF SERVICES OR WAGES, OR FOR LOSS OF CONSORTIUM OR SOCIETY
(ALL OF THE FOREGOING, COLLECTIVELY, “CLAIMS”) MADE OR
ASSERTED BY, OR ARISING IN FAVOR OF, ANY MEMBER OF
CONTRACTOR GROUP (OR THEIR SPOUSES, RELATIVES, DEPENDENTS,
OR ANY LEGAL REPRESENTATIVES), OR BASED ON OR ARISING OUT OF
SUCH CLAIMS, IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISING OUT OF
OR RELATED TO THE PERFORMANCE OF THIS CONTRACT OR THE USE
BY ANY MEMBER OF COMPANY GROUP OR CONTRACTOR GROUP OF,
OR THEIR PRESENCE ON, ANY PREMISES OR FACILITIES OWNED,
OPERATED, CHARTERED, OR CONTROLLED BY COMPANY GROUP OR
CONTRACTOR GROUP OR USED FOR TRANSPORTATION (INCLUDING,
BUT NOT LIMITED TO, ANY STRUCTURE, PLATFORM, AIRCRAFT, VESSEL,
OR OTHER PREMISES) OR FOR INGRESS AND EGRESS BY COMPANY
GROUP OR CONTRACTOR GROUP, EXPRESSLY INCLUDING ANY
CLAIMS ACTUALLY OR ALLEGEDLY CAUSED BY THE
UNSEAWORTHINESS OR UNAIRWORTHINESS OF VESSELS OR CRAFT,
OR THE SOLE, CONCURRENT, OR PARTIAL NEGLIGENCE (OF WHATEVER
NATURE OR CHARACTER), FAULT, OR STRICT LIABILITY OF ANY MEMBER
OF COMPANY GROUP, AND WHETHER OR NOT SUCH NEGLIGENCE,
FAULT, STRICT LIABILITY, UNSEAWORTHINESS, OR UNAIRWORTHINESS
PREDATES THE DATE OF EXECUTION OF THIS CONTRACT; PROVIDED,
HOWEVER, THAT THE FOREGOING OBLIGATIONS OF CONTRACTOR TO
INDEMNIFY, DEFEND, AND SAVE COMPANY GROUP HARMLESS SHALL
NOT APPLY TO THE EXTENT THAT ANY SUCH CLAIMS ARE CAUSED BY,
RESULT FROM, OR ARISE OUT OF OR FROM THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF ANY MEMBER OF COMPANY GROUP.
Id. at 6, ¶ 14. The MSC provides that the
indemnitee shall promptly notify the indemnitor in writing of any claim, event or
fact that may give rise to a claim by the indemnitee against the indemnitor based
on this Contract. The notice shall state the nature and basis of the claim, event
or fact and the amount, to the extent known. The obligations set forth in this
article 4 shall survive even if reasonably prompt notice of any claim is not
3

provided so long as the failure to provide prompt notice does not materially
prejudice the party to whom notice is owed.
Id. at 7, ¶ 14.
The MSC’s insurance provisions provide that the
[p]arties agree to procure and maintain, at their sole expense, with solvent
insurance companies eligible to do business in the state where Services are to
be performed and rated by A.M. Best Company A-VI or higher or with
underwriters at Lloyds of London or the Member Companies of the Institute of
London Underwriters, policies of insurance with not less than the coverages and
amounts outlined in Exhibit B attached hereto and made a part hereof.
Id. at 4-5, ¶ 13. Furthermore, “all insurance policies and coverage acquired by the
Parties shall extend to and protect the other respective Company Group or Contractor
Group to the fullest extent.” Id. at 7, ¶ 14.
In early 2022, a lightning strike damaged certain electrical facilities that provided
electrical power at or near the Site, resulting in the Site losing power. Id. at 3, ¶ 6. EDT
notified BKV of the power outage, and EDT agreed that it would dispatch a crew to
rectify the issue. Id. at 4, ¶ 7. EDT hired Turn Key Utility Construction Inc. (“Turn Key”)
to perform the work on the damaged equipment to restore electrical power to the Site.
Id., ¶ 8. On March 22, 2022, Turn Key sent its crew, including Matthew Lara, to work on
restoring power to the Site. Id., ¶ 9. Mr. Lara alleges that, in the course of his work, an
arc flash occurred, causing him burns and other physical injuries (the “Incident”). Id.,
¶ 10.
On March 24, 2022, EDT billed an invoice to BKV for $31,050 (the “March 2022
Invoice”). Docket No. 40-5. 4 The March 2022 Invoice shows that EDT performed the

The facts in this paragraph are not included in plaintiff’s statement of
undisputed facts. However, plaintiff attaches the March 2022 Invoice in support of its
statement that, “[p]ursuant to the MSC, EDT provided various services and rental
4

4

following work in March 2022: (a) “install[ed]” a “Utility Pole,” “overhead wires,” “[a]bove
ground cable,” and “drive-overs;” (b) “set 2 pad mounted switches;” and (c) “repair[ed]
overhead cable.” Id. EDT also provided a “Crane to Load and Unload standard load
items.” Id.
In late March 2022, BKV received written notice of potential personal injury
claims from Mr. Lara related to the Incident. Docket No. 40 at 7, ¶ 15. On June 3,
2022, BKV sent correspondence to EDT requesting defense, indemnity, and additional
insured coverage in connection with Mr. Lara’s claims. Id., ¶ 16. Mr. Lara subsequently
filed a lawsuit related to the Incident in Dallas County, Texas (the “Lara Lawsuit”), Case
No. CC-22-03168-A, against BKV, EDT, Denton County Electric Cooperative, doing
business as CoServ Electric (“CoServ”), and other entities. Id. at 4, ¶ 11. Mr. Lara
alleges that his injuries were caused by BKV’s and EDT’s negligence and gross
negligence. Id., ¶ 12.
On June 23, 2022, BKV sent written correspondence requesting that EDT
acknowledge its obligations to provide BKV with defense, indemnity, and additional
insurance coverage in the Lara Lawsuit. Id. at 7-8, ¶ 17. On September 27, 2022,
CoServ sent correspondence to BKV demanding it provide defense and indemnity to

equipment (i.e., powerlines, power poles, and other electrical equipment) to supply
electrical power to the Site.” Docket No. 40 at 3, ¶ 5 & n.5. Defendant quotes many of
the details of the March 2022 Invoice in its response to the summary judgment motion.
Docket No. 41 at 11. Despite EDT relying on facts from the March 2022 Invoice in
support of its argument that the parties’ agreement was a “construction agreement”
under Colorado law, see Docket No. 41 at 9-11, BKV does not dispute the accuracy of
such facts in its reply brief. See Docket No. 42 at 8-9. The Court finds that the parties
do not dispute the authenticity or the content of the March 2022 Invoice. Accordingly,
the Court deems the facts in this paragraph undisputed. See Fed. R. Civ. P. 56(c)(3)
(noting that, at the summary judgment stage, the “court need consider only the cited
materials, but it may consider other materials in the record”).
5

CoServ for claims asserted against it in the Lara Lawsuit. Id. at 8, ¶ 18. BKV forwarded
CoServ’s demand to EDT. Id., ¶ 19.
BKV asserts three claims against EDT in the amended complaint. First, BKV
asserts a claim for declaratory judgment under 28 U.S.C. § 2201, requesting that the
Court declare that the MSC contains enforceable defense, indemnity, and insurance
provisions requiring EDT to defend and indemnify BKV from all claims in the Lara
Lawsuit and grant BKV additional insured status for claims in the Lara Lawsuit. Docket
No. 9 at 1, 6-7. Second, BKV asserts a claim for breach of contract, alleging that EDT
breached the MSC by failing to honor its contractual obligations for defense, indemnity,
and additional insurance coverage. Id. at 8. EDT’s third claim “seeks recovery of its
attorneys’ fees and litigation costs and expenses.” Id., ¶ 30. 5
II.

LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when

the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is

EDT’s third claim does not appear to be a separate claim, but rather outlines
some of EDT’s requested relief.
5

6

“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III.

ANALYSIS 6

As a preliminary matter, the Court notes that both parties failed to comply with
this Court’s Practice Standards on summary judgment motions. See Practice
Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.i (providing that the
movant must, in a section of its brief styled “Statement of Undisputed Material Facts,”
set forth “in simple, declarative sentences, separately numbered and paragraphed, each
material fact which the movant believes is not in dispute and which supports movant’s
claim that movant is entitled to judgment as a matter of law”); see id., § III.F.3.b.v.
(providing that the non-movant must, in a section of its brief styled “Statement of
Additional Disputed Facts,” set forth “in simple, declarative sentences, separately
numbered and paragraphed, each additional, material disputed fact which undercuts
movant’s claim that it is entitled to judgment as a matter of law”). Both parties cite
6

7

BKV moves for summary judgment on its declaratory judgment claim and breach
of contract claim. Docket No. 40 at 11-18. 7 “Because declaratory judgment acts are
procedural rules, ‘federal law determines whether a district court may properly enter a
declaratory judgment’ in a diversity case.” TBL Collectibles, Inc. v. Owners Ins. Co.,
285 F. Supp. 3d 1170, 1194 (D. Colo. 2018) (quoting Addison Ins. Co. v. Maynard, 08cv-00054-WDM-BNB, 2008 WL 2079143, at *2 (D. Colo. 2008)). The federal
Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States . . . may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is
or could be sought.” 28 U.S.C. § 2201. “[T]he question of whether this power should be
exercised in a particular case is vested in the sound discretion of the district courts.” St.
Paul Fire & Marine Ins. Co. v. Runyon, 53 F.3d 1167, 1168 (10th Cir. 1995).
To establish a claim for breach of contract under Colorado law, 8 a plaintiff must
prove “(1) the existence of a contract; (2) performance by the plaintiff or some
justification for nonperformance; (3) failure to perform the contract by the defendant;

evidence in their analysis sections that was not included in their statement of fact
sections. See Docket No. 40 at 4 n.10, 13; Docket No. 41 at 11; Docket No. 42 at 7-9.
7 BKV also cursorily states that it is entitled to summary judgment on its third
claim, the attorneys’ fees claim. Docket No. 40 at 18. Although BKV moves for
summary judgment on this claim, BKV states that it “requests the right to establish its
attorneys’ fees, costs, and expenses for defending the underlying Lara lawsuit by
separate motion to the Court after the Court’s ruling on this Motion.” Id. at 19.
Accordingly, the Court declines to evaluate at this stage whether BKV is entitled to
attorneys’ fees.
8 The parties agree that Colorado law applies to this claim. Docket No. 40 at 10,
18; Docket No. 41 at 9. The MSC contains a choice-of-law provision stating that the
MSC and all causes of action arising from the contract are governed by the law of
Colorado. Docket No. 40-1 at 18, ¶ 14.1. Accordingly, the Court will apply Colorado
law to the breach of contract claim.
8

and (4) damages to the plaintiff.” Warming Trends, LLC v. Stone, No. 19-cv-03027PAB-STV, 2023 WL 2716652, at *10 (D. Colo. Mar. 30, 2023); see also W. Distrib. Co.
v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (collecting cases).
BKV argues that it is entitled to summary judgment on the declaratory judgment
claim because the MSC is a valid contract, Section 4.1 provides that EDT must
indemnify and defend BKV against any claims asserted by a member of the “Contractor
Group,” and Mr. Lara is “clearly a member of ‘Contractor Group.’” Docket No. 40 at 1113. 9 Furthermore, BKV asserts that it is entitled to summary judgment on the breach of
contract claim because (1) the MSC is a valid and enforceable contract; (2) BKV
performed its obligations under the MSC by requesting defense, indemnity, and
additional insurance coverage from EDT; (3) EDT breached the MSC by failing to

The Court notes that plaintiff failed to discuss the relevant declaratory judgment
factors in its motion. See Docket No. 40 at 11-17. As the Court explained in the motion
to dismiss order in this case, the Tenth Circuit has identified five factors (“Mhoon
factors”) a district court should consider in determining whether to exercise its discretion
to hear a declaratory judgment action:
9

[1] whether a declaratory action would settle the controversy; [2] whether it would
serve a useful purpose in clarifying the legal relations at issue; [3] whether the
declaratory remedy is being used merely for the purpose of “procedural fencing”
or “to provide an arena for a race to res judicata”; [4] whether use of a
declaratory action would increase friction between our federal and state courts
and improperly encroach upon state jurisdiction; and [5] whether there is an
alternative remedy which is better or more effective.
BKV Barnett, LLC v. Elec. Drilling Techs., LLC, No. 23-cv-00139-PAB-SBP, 2024 WL
809894, at *5 (D. Colo. Feb. 27, 2024) (quoting Runyon, 53 F.3d at 1169) (quoting State
Farm & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir. 1994))). BKV’s failure to
address the Mhoon factors in its motion would provide a sufficient reason alone for the
Court to deny BKV’s request for summary judgment on this claim. See First Mercury
Ins. Co. v. MRCO, Inc., 2013 WL 12170302, at *3 (D.N.M. Mar. 21, 2013) (noting that
“the party invoking declaratory judgment jurisdiction . . . has the burden of showing that
[the] Court should exercise declaratory judgment jurisdiction”).
9

acknowledge its defense, indemnity, and insurance obligations; and (4) BKV has
suffered damages, including legal fees and costs in the Lara Lawsuit. Id. at 18. In
response to plaintiff’s motion, EDT argues that Section 4.1 of the MSC is void under
Colo. Rev. Stat. § 13-21-111.5(6) and therefore plaintiff’s motion should be denied.
Docket No. 41 at 9-12. The Court will first address the issue of whether the defense,
indemnification, and insurance provisions of the MSC are void under Colo. Rev. Stat.
§ 13-21-111.5(6).
A. Colo. Rev. Stat. § 13-21-111.5(6)
Colorado’s Anti-Indemnification Statute provides that
any provision in a construction agreement that requires a person to indemnify,
insure, or defend in litigation another person against liability for damage arising
out of death or bodily injury to persons or damage to property caused by the
negligence or fault of the indemnitee or any third party under the control or
supervision of the indemnitee is void as against public policy and unenforceable.
Colo. Rev. Stat. § 13-21-111.5(6)(b). 10 In adopting this statute, the Colorado General
Assembly found that “[c]onstruction businesses in recent years have begun to use
contract provisions to shift the financial responsibility for their negligence to others,
thereby circumventing the intent of tort law.” Colo. Rev. Stat. § 13-21-111.5(6)(a)(III);
see also Higby Crane Servs., LLC v. Nat’l Helium, LLC, 703 F. App’x 687, 691 (10th Cir.
2017) (unpublished). The purpose of the Anti-Indemnification Statute is to “create an
economic climate that will promote safety in construction, foster the availability and

The parties agree that Colorado law applies to the MSC. Docket No. 40 at 10;
Docket No. 41 at 9-11. The MSC contains a choice-of-law provision stating that the
MSC and all causes of action arising from the contract are governed by the law of
Colorado. Docket No. 40-1 at 18, ¶ 14.1. Accordingly, the Court finds that it is proper
to evaluate whether the MSC’s indemnification, defense, and insurance provisions are
void under Colo. Rev. Stat. § 13-21-111.5(6)(b).
10

10

affordability of insurance, and ensure fairness among businesses.” Colo. Rev. Stat.
§ 13-21-111.5(6)(a)(VI). The statute defines a “construction agreement” as
a contract, subcontract, or agreement for materials or labor for the construction,
alteration, renovation, repair, maintenance, design, planning, supervision,
inspection, testing, or observation of any building, building site, structure,
highway, street, roadway bridge, viaduct, water or sewer system, gas or other
distribution system, or other work dealing with construction or for any moving,
demolition, or excavation connected with such construction.
Colo. Rev. Stat. § 13-21-111.5(6)(e)(I). 11
EDT argues that the MSC’s indemnification provision is void because the “work
performed under the MSC that gives rise to the allegations of the Lara Lawsuit involved
the repair of a structure which is expressly defined as a construction contract under
C.R.S. § 13-21-111.5(6).” Docket No. 41 at 2. EDT states that BKV alleges that it
contracted with EDT to repair damage to electrical facilities that were struck by lightning.
Id. at 9. EDT argues that the exhibits attached to BKV’s summary judgment motion,
including the March 2022 Invoice, demonstrate that EDT performed the following work:
“Installation and Rig up services for utility power;” “Utility Pole installation;” “Delivery of
cable trailers, drive-overs, and switches;” “Delivery of a crane to perform the work;”
“Crew and machines to disconnect and roll up MV cable;” and “Transport of power
supply from location to storage.” Id. at 11 (citing Docket Nos. 40-5; 40-6). EDT cites
Higby in support of its argument that the MSC is a construction agreement under Colo.
Rev. Stat. § 13-21-111.5(6). Id. at 10-11 (citing Higby Crane Servs., 703 F. App’x at
691-93).

A “construction agreement” does not include any rental agreement between a
landlord and tenant or any agreement that concerns property owned or operated by a
railroad, sanitation district, or water district. Colo. Rev. Stat. §§ 13-21-111.5(6)(e)(II)(A)(B).
11

11

In its reply, BKV argues that the MSC is not a construction agreement under
Colorado law. Docket No. 42 at 8. BKV argues that the parties “contracted for EDT to
provide electrical power to the site and [BKV’s] drilling operations which was
accomplished through EDT renting certain electrical equipment to BKV.” Id. at 8-9.
With no citation to the record, BKV contends that “[a]ny work, including installing or
repairing damaged electrical equipment, was incidental to EDT’s contractual obligations
to provide electrical power to the site and its drilling operations. As such, the sole
purpose of BKV and EDT’s contract was for EDT to provide electrical power to BKV’s
site and its drilling operations.” Id. at 9. BKV argues that a court in Pennsylvania has
found that Colorado’s Anti-Indemnification Statute is “inapplicable to work performed at
an oil/gas well site.” Id. (citing Williams v. Inflection Energy, LLC, 2016 WL 4429998
(M.D. Pa. Aug. 22, 2016)). 12
It is undisputed that Section 4.1 of the MSC provides that EDT “AGREES TO
INDEMNIFY, DEFEND, RELEASE, PROTECT AND SAVE HARMLESS COMPANY
GROUP FROM AND AGAINST ANY AND ALL LOSSES, CAUSES OF ACTION,
CLAIMS . . . MADE OR ASSERTED BY, OR ARISING IN FAVOR OF, ANY MEMBER
OF CONTRACTOR GROUP.” Docket No. 40 at 6, ¶ 14. The MSC provides that the
parties must procure insurance policies that “extend to and protect the other respective
Company Group or Contractor Group to the fullest extent.” Id. at 4-5, 7, ¶¶ 13-14. The
MSC states that BKV may, “from time to time,” request that EDT “perform certain work

The Williams decision is not binding precedent on this Court. See Camreta v.
Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court judge is not
binding precedent in either a different judicial district, the same judicial district, or even
upon the same judge in a different case.”) (citation omitted).
12

12

or furnish certain services to [BKV] as specified in verbal requests or written work
orders. . . . All Work Orders executed by the Parties pursuant to this Contract are
expressly made subject to the terms of this Contract.” Docket No. 40-1 at 8, ¶ 1.1.
Thus, EDT did not agree to perform any specific work for BKV in the MSC. See id.
It is undisputed that, in early 2022, a lightning strike damaged certain electrical
facilities that provided electrical power at or near the Site. Docket No. 40 at 3, ¶ 6. EDT
notified BKV of the power outage, and EDT agreed that it would dispatch a crew to
rectify the issue. Id. at 4, ¶ 7. Neither party explains whether the agreement to repair
the electrical facilities was a written work order or a verbal request under the MSC.
However, it is undisputed that the March 2022 Invoice shows that EDT performed the
following work in March 2022: (a) “install[ed]” a “Utility Pole,” “overhead wires,” “[a]bove
ground cable,” and “drive-overs;” (b) “set 2 pad mounted switches;” and (c) “repair[ed]
overhead cable.” Docket No. 40-5. EDT also provided a “Crane to Load and Unload
standard load items.” Id.
When the Court considered EDT’s motion to dismiss, Docket No. 17, in an earlier
order, the Court noted that it was not clear from the pleadings whether the agreement
for EDT to perform work at the Site fell within the definition of a “construction
agreement” under the Anti-Indemnification Statute. BKV Barnett, 2024 WL 809894, at
*5. However, the parties have now submitted undisputed evidence that answers this
question. The Court finds that the parties’ agreement for EDT to perform work in March
2022 is a “construction agreement” under the Anti-Indemnification Statute because the
agreement involved “materials or labor for the construction, alteration, renovation, [or]
repair . . . of any . . . structure.” See Colo. Rev. Stat. § 13-21-111.5(6)(e)(I). EDT

13

installed a “Utility Pole” at the Site. Docket No. 40-5. A utility pole constitutes
“materials” and when installed constitutes a “structure.” EDT also repaired “overhead
cable,” see id., which constitutes the “repair” of a “structure.” Because EDT’s work
involved the construction and repair of a structure, the Court finds that the parties’
agreement is a “construction agreement” under Colo. Rev. Stat. § 13-21-111.5(6)(e)(I).
See Higby Crane Servs., 703 F. App’x at 693 (finding, at the summary judgment stage,
that a work order issued pursuant to a master services contract constituted a
“construction agreement” under Colo. Rev. Stat. § 13-21-111.5(6)(e)(I) because it was
undisputed that the work order showed that appellant “[p]ulled off end caps to plug
tubes on heat exchangers” at “a gas processing plant”); Cont’l Ins. Co. v. Cintas Corp.
No. 2, No. 18-cv-00254-RBJ, 2019 WL 4643711, at *5-6 (D. Colo. July 12, 2019)
(holding that a contract was a “construction agreement” under section 13-21111.5(6)(e)(I) because the defendant repaired a “dry pipe system” in a building, and
thus, the indemnification provision in the contract was void). 13
As a result, the Court finds that the defense, indemnification, and insurance
provisions of the MSC are void under the Anti-Indemnification Statute. See Colo. Rev.

The Court rejects BKV’s argument that the agreement is not a construction
agreement because EDT’s work in March 2022 was “incidental to EDT’s contractual
obligations to provide electrical power to the site.” See Docket No. 42 at 9. The statute
does not state that “incidental” construction work is excluded from the definition of a
construction agreement, see Colo. Rev. Stat. § 13-21-111.5(6)(e)(II), and BKV cites no
cases in support of an implicit exclusion. Moreover, the MSC states that BKV may,
“from time to time,” request that EDT “perform certain work or furnish certain services to
[BKV] as specified in verbal requests or written work orders. . . . All Work Orders
executed by the Parties pursuant to this Contract are expressly made subject to the
terms of this Contract.” Docket No. 40-1 at 8, ¶ 1.1. In Higby, the Tenth Circuit found
that a work order issued pursuant to a master services contract can constitute a
“construction agreement” under Colo. Rev. Stat. § 13-21-111.5(6)(e)(I). See Higby
Crane Servs., 703 F. App’x at 693.
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Stat. § 13-21-111.5(6)(b) (“any provision in a construction agreement that requires a
person to indemnify, insure, or defend in litigation another person against liability for
damage arising out of death or bodily injury to persons . . . caused by the negligence or
fault of the indemnitee . . . is void as against public policy and unenforceable”)
(emphasis added).
In its motion, BKV requests that the Court enter summary judgment in its favor on
the declaratory judgment claim and declare that
the MSC contains (a) valid, enforceable defense provisions requiring EDT to
defend BKV and all members of Company Group from all claims asserted by
Lara in the Lara lawsuit; (b) valid, enforceable indemnity provisions requiring
EDT to indemnify BKV and all members of Company Group from all claims
asserted by Lara in the Lara lawsuit; and (c) valid, enforceable insurance
provisions requiring EDT’s insurer(s) to grant BKV and all members of Company
Group additional insured status on a primary basis relating to the claims asserted
by Lara in the Lara lawsuit.
Docket No. 40 at 15. Regarding the breach of contract claim, BKV contends that it is
entitled to summary judgment on this claim because EDT breached the MSC by failing
to acknowledge its defense, indemnity, and insurance obligations. Id. at 18. Because
the defense, indemnification, and insurance provisions of the MSC are void under Colo.
Rev. Stat. § 13-21-111.5(6)(b), the Court denies BKV’s request for summary judgment
on the declaratory judgment and breach of contract claims.
B. Fed. R. Civ. P. 56(f)
EDT has not filed a motion for summary judgment. However, Federal Rule of
Civil Procedure 56(f)(1) provides that the Court may “grant summary judgment for a
nonmovant” after “giving notice and a reasonable time to respond.” Fed. R. Civ. P.
56(f)(1); see also Arlin Geophysical v. United States, 696 F. App’x 362, 368 (10th Cir.
2017) (unpublished). “Rule 56(f) exists largely for efficiency reasons, to save courts
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from proceeding with trials that are plainly unnecessary.” Doe v. Intermountain
Healthcare, Inc., 2023 WL 5395526, at *30 (D. Utah Aug. 22, 2023). Given the Court’s
ruling that the defense, indemnification, and insurance provisions in the MSC are void
under Colo. Rev. Stat. § 13-21-111.5(6)(b), it is ordered that plaintiff shall show cause,
on or before October 28, 2024, why summary judgment should not enter in favor of
defendant on plaintiff’s claims. Failure to file a response by the deadline will result in
the Court granting summary judgment to defendant and closing this case without further
notice to the parties.
IV.

CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff BKV Barnett, LLC’s Motion for Summary Judgment

[Docket No. 40] is DENIED. It is further
ORDERED that, on or before October 28, 2024, plaintiff shall show cause why
summary judgment should not enter in favor of defendant in this case.
DATED September 26, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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