Arcelormittal Indiana Harbor LLC v. Amex Nooter LLC

Filing 174

OPINION AND ORDER: The Court hereby DENIES Plaintiff's 142 Motion for Summary Judgment. The Court REAFFIRMS the 1/5/2018 final pretrial conference, and the 2/5/2018 jury trial setting. Signed by Magistrate Judge Paul R Cherry on 1/3/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ARCELORMITTAL INDIANA HARBOR )
LLC and ARCELORMITTAL USA LLC, )
Plaintiffs,
)
)
v.
)
)
AMEX NOOTER, LLC,
)
Defendant.
)

CAUSE NO.: 2:15-CV-195-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment [DE 142], filed
by Plaintiffs ArcelorMittal Indiana Harbor LLC and ArcelorMittal USA LLC (collectively
“ArcelorMittal”) on September 28, 2017. Defendant Amex Nooter, Inc. (“Amex Nooter”) filed a
response on October 26, 2017, and ArcelorMittal filed a reply on November 9, 2017.
On April 3, 2013, a fire occurred at Blast Furnace No. 3, a part of ArcelorMittal’s Indiana
Harbor facility, while Amex Nooter employees Korrie Griffith and Robert Swimline were rebuilding
the excess gas bleeder pilot burner cabinets pursuant to a contract between ArcelorMittal and Amex
Nooter. As Griffith and Swimline were working, natural gas was released from the system and
ignited. ArcelorMittal seeks from Amex Nooter approximately $3.2 million in property damage and
excess fuel costs as a result of the fire. ArcelorMittal also seeks reimbursement by Amex Nooter for
the cost of ArcelorMittal’s defense in litigation brought against it by Robert Swimline. In the instant
motion, ArcelorMittal seeks summary judgment in its favor on all three claims in its Second
Amended Complaint. For the reasons set forth below, the Court denies ArcelorMittal’s Motion for
Summary Judgment.

PROCEDURAL BACKGROUND
On May 15, 2015, Plaintiff ArcelorMittal Indiana Harbor LLC (“ArcelorMittal Indiana
Harbor”) filed a Complaint against Defendant Amex Nooter, LLC. On December 15, 2015, an
Amended Complaint was filed by ArcelorMittal Indiana Harbor. On September 23, 2016, a Second
Amended Complaint was filed by ArcelorMittal Indiana Harbor and ArcelorMittal USA LLC
(“ArcelorMittal USA”) (collectively “ArcelorMittal”).
The Second Amended Complaint brings three counts against Amex Nooter. Count I, brought
by ArcelorMittal Indiana Harbor only, alleges a claim of negligence based on a breach of Amex
Nooter’s common law duty to conduct its work in a reasonably safe manner to avoid damage to
ArcelorMittal Indiana Harbor’s property in relation to the April 3, 2013 fire and resulting damage.
Count II, brought by both ArcelorMittal Indiana Harbor and ArcelorMittal USA, alleges a
claim of “Defense” under Sections 22 and 23 of the General Terms and Conditions of the AMUSA102 Master Agreement, alleging that Amex Nooter has refused and/or failed to defend ArcelorMittal
in the lawsuit brought by Robert Swimline against ArcelorMittal.
Count III, brought by ArcelorMittal Indiana Harbor only, alleges a claim of breach of
contract for, among other things,1 (1) refusing to reimburse ArcelorMittal Indiana Harbor for the
property damage and other losses incurred by ArcelorMittal Indiana Harbor in the explosion and fire
in accordance with the agreement and (2) failing to conduct its work in a reasonably safe manner
to avoid damage to ArcelorMittal Indiana Harbor’s property. (ECF 116, ¶¶ 90.b., 90.e.).
Amex Nooter filed an Answer on October 14, 2016.

1
The Second Amended Complaint alleges other bases for Amex Nooter’s alleged breach of contract, but these
two bases are the only ones raised by ArcelorMittal on the instant Motion for Summary Judgment. See (ECF 116, ¶ 90).

2

On December 29, 2017, the Court issued an Opinion and Order ruling on six evidentiary
motions filed by the parties, including Amex Nooter’s Motion to Strike Hearsay Statements and
ArcelorMittal’s motions to exclude the opinion testimony of Amex Nooter’s expert witnesses Ross
Smith and Richard Parry, which are relevant to the instant Motion for Summary Judgment.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure require that a motion for summary judgment be granted
“if 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). Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Summary judgment is appropriate when no material fact is disputed and the
moving parties are entitled to judgment as a matter of law, meaning that no reasonable jury could
find for the other party based on the evidence in the record.” Carman v. Tinkes, 762 F.3d 565, 566
(7th Cir. 2014).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.

3

Civ. P. 56 (a), (c). When the party moving for summary judgment bears the burden of proof at trial,
such as ArcelorMittal in this case, the moving party must identify the elements of the claim, cite
facts supported by evidence that satisfy the elements, and “demonstrate why the record is so onesided as to rule out the prospect of a finding in favor of the non-movant on the claim.” Baskin v. City
of Fort Wayne, No. 1:16-CV-180, 2017 WL 4799898, at *5 (N.D. Ind. Oct. 20, 2017) (citing
Reserve Supply Corp. v. Owens-Corning Fiberglass Corp., 971 F.2d 37, 42 (7th Cir. 1992); Celotex,
447 U.S. at 331)); see Celotex, 447 U.S. at 331 (“If the moving party will bear the burden of
persuasion at trial, that party must support its motion with credible evidence . . . that would entitle
it to a directed verdict if not controverted at trial.”) (Brennan, J. dissenting).
“Once the moving party puts forth evidence showing the absence of a genuine dispute of
material fact, the burden shifts to the non-moving party to provide evidence of specific facts creating
a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(c)(1), (e); Flint v. City of Belvidere, 791 F.3d 764, 769 (7th Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)
(1986)). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the movant is
entitled to it . . . .” Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248-50.

4

In viewing the facts presented on a motion for summary judgment, a court must construe all
facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; McDowell v. Vill. of Lansing, 763 F.3d 762, 764, 765
(7th Cir. 2014); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). A court’s role is not to
evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
MATERIAL FACTS
A. The Contract
ArcelorMittal Indiana Harbor is a limited liability company whose sole member is
ArcelorMittal USA. (ECF 143-1, ¶ 3). Amex Nooter is in the business of industrial piping and
mainly employs pipefitters. (ECF 143-6, pp. 8:8-9:3).
On August 19, 2011, ArcelorMittal USA entered into a “Contractor Work Master Agreement
(AMUSA-102) for ArcelorMittal Companies in the USA (June 2011)” (hereinafter “AMUSA-102
Master Agreement”) with Amex Nooter. (ECF 143-2, Execution Sheet). Pursuant to the “Execution
Sheet” of the AMUSA-102 Master Agreement, Amex Nooter is the “Contractor” and ArcelorMittal
USA is the “Owner Signatory.” Id.
Attached to the AMUSA-102 Master Agreement Execution Sheet is the “AMUSA-102
General Terms and Conditions for Contractor Work for ArcelorMittal Companies in the USA (June
2011)” (hereinafter “AMUSA-102 General Terms and Conditions”). See (ECF 143-2).
The AMUSA-102 General Terms and Conditions defines “Owner Companies” as “Owner
Signatory and any entity that is organized under the laws of a state in the United States and is

5

directly or indirectly controlled by, or under control of ArcelorMittal SA.” (ECF 143-2, General
Terms and Conditions § 1(xi)). “Owner” is defined as the “Owner Company issuing Purchase Order
applicable to this Contractor Work Contract.” Id. at § 1(x). “Owner’s Indemnitees” is defined as
“Owner, all Owner Companies and each of their respective directors, officers, employees, and
agents.” Id. at § 1(xiv).
The AMUSA-102 Master Agreement provides that an “Owner” may issue a Purchase Order
to the Contractor, which is Amex Nooter. (ECF 143-2, Execution Sheet ¶ 2). Purchase Orders Nos.
N489391 and N489392 (“Purchase Orders”) were issued to Amex Nooter by ArcelorMittal Indiana
Harbor on March 12, 2013. (ECF 143-3). The Purchase Orders, one for Blast Furnace No. 3 and one
for Blast Furnace No. 4, contain the nature and scope of the services Amex Nooter was to provide
to ArcelorMittal Indiana Harbor, namely rebuilding the excess gas bleeder pilot burner cabinets at
each of the Blast Furnaces at ArcelorMittal Indiana Harbor’s West facility in East Chicago, Indiana.
Id. The “Description” in each of the Purchase Orders provides: “Amex (no sub) to provide
supervision, labor, and materials to rebuild [H3/H4] excess gas bleeder pilot burner cabinets.
Cabinets to be rebuilt per the drawings submitted to Amex. The demo and installation of the new
piping and valving to be done on the 3rd of April. Job to be t&m.” Id. at pp. 2, 4.
The AMUSA-102 Master Agreement provides that Amex Nooter may accept a Purchase
Order “either by express acceptance thereof or by beginning performance of the Contractor Work
specified therein.” (ECF 143-2, Execution Sheet ¶ 3). The same paragraph also provides:
Each Contractor acceptance of a Purchase Order shall create a separate binding and
enforceable contract (a “Contractor Work Contract”) with respect thereto, with each
Contractor Work Contract consisting of the Safety Handbook, the AMUSA-102
General Terms and Conditions, the Purchase Order (including without limitation the
Contractor Work, Contract Price and Contract Schedule (or equivalent terminology)

6

as defined and specified in the Purchase Order) and any Other Contractual
Documents.
Id. Amex Nooter’s acceptance of the Purchase Orders was an acknowledgment by Amex Nooter that
it read, understood, and accepted all terms, conditions, and provisions in each of those documents
that make up the Contractor Work Contract. Id.
Regarding any inconsistencies or discrepancies that arise, the AMUSA-102 Master
Agreement provides:
In the event any inconsistencies or discrepancies arise among any parts of the
Contractor Work Contract and the precedence is not otherwise specified, (I) the
Safety Handbook shall take precedence over the AMUSA-102 General Terms and
Conditions, (II) the AMUSA-102 General Terms and Conditions shall take
precedence over the Purchase Order; and (III) the Purchase Order shall take
precedence over the Other Contractual Documents.
Id. at ¶ 5.
The AMUSA-102 General Terms and Conditions provides:
This Contractor Work Contract represents the entire agreement of the Parties with
respect to the subject matter hereof; and no agreement or understanding in any way
modifying this Contractor Work Contract (including change orders) shall be binding
upon Owner or Contractor unless made in a writing that both (i) states that it amends
this Contractor Work Contract; and (ii) is signed by authorized representative of each
of Owner and Contractor. . . . Any reference to Owner’s or Contractor’s general
terms and conditions of purchase, sale or performance in any Purchase Order or any
communication or document issued or delivered by Contractor (including, [but] not
limited to acknowledgments or invoices) shall not be operative, binding or effective.
(ECF 143-2, General Terms and Conditions § 2(a)).
Both Purchase Orders include this statement: “AMUSA-100 Terms and Conditions will
apply to this Purchase Order.” (ECF 143-3, pp. 2, 4).

7

Under the AMUSA-102 General Terms and Conditions, Amex Nooter owed certain
obligations to the Owner, ArcelorMittal Indiana Harbor, including the following provisions
identified by ArcelorMittal in the Motion for Summary Judgment:
-

Amex Nooter has read and understands ArcelorMittal Indiana Harbor’s “Code of
Business Conduct” and Amex Nooter “shall not take any action inconsistent with or
contrary to Owner’s Code of Business Conduct in the performance of this Contractor
Work Contract.” A violation of the Code of Business Conduct may constitute a
material breach of the Contractor Work Contract. (ECF 143-2, General Terms and
Conditions, “Compliance with Laws, Rules and Policies”, § 4(e)).

-

Amex Nooter was required to comply with the “safety, health and environmental
rules specified by Applicable Laws or the Safety Handbook or other rules of Owner
especially applicable at the Job Site” during the performance of the Contractor Work
Contract. (ECF 143-2, General Terms and Conditions, “Sustainable Development;
Safety”, § 3(a)).

-

“Disregard for . . . the Safety Handbook or any other applicable safety rules shall be
deemed to be a material breach of this Contractor Work Contract.” Id. at § 3(b).

-

Amex Nooter was obligated to “control access to the Job Site and be responsible for
all persons and Work at the Job Site.” Id. at § 3(c).

Section 22 of the AMUSA-102 General Terms and Conditions, titled “Indemnification,
Damages, and Liabilities,” provides:
Contractor shall . . . indemnify, defend and save harmless the Owner’s Indemnitees
from and against any and all Claims made by any person or persons by reason of any
act or omission on the part of Contractor or any of its Subcontractors or any
employee, agent or invitee of Contractor or any of its Subcontractors, including any
breach or alleged breach of any statutory duty that is to be performed by Contractor
under this Contractor Work Contract but is, or may be the duty of, any of the Owner
Indemnitees under Applicable Laws. Notwithstanding the foregoing obligations in
this Section 22(a), Contractor shall not be required to indemnify and save harmless
Owner’s Indemnitees from Claims that are finally determined by a court with
jurisdiction to have been caused solely by the negligence or willful misconduct of
Owner’s Indemnitees; provided, however, that the condition or operation of Owner’s
Indemnitees’ production and manufacturing facilities in the normal course of
Owner’s Indemnitees’ businesses shall be deemed not to be negligence or willful
misconduct.

8

(ECF 143-2, General Terms and Conditions § 22(a)).
The following paragraph of the AMUSA-102 General Terms and Conditions provides:
In the event of any Claim covered under Section 22(a) above, immediately upon
Owner’s demand Contractor shall assume at its expense, on behalf of Owner’s
Indemnitees, the defense of any action at law or in equity that may be brought
against Owner’s Indemnitees . . . . In the event Contractor fails or refuses to
indemnify, defend and save harmless as specified in this Contractor Work Contract,
then, in addition to any other damages allowable by law, Contractor shall be liable
to Owner for the costs (including without limitation reasonable attorney’s fees) of
enforcing Contractor’s agreement to indemnify, defend and save harmless.
Id. at § 22(b). “Claims” is defined as:
Any and all claims, actions, suits, demands, arbitrations, and causes of actions or
other similar activity made, filed, done or attempted or submitted for or on account
of any actual or alleged liabilities, losses, damages, fines, penalties, awards,
judgments, decrees, orders, holdings, determinations, opinions, costs and expenses
of every kind and amount whatsoever (including without limitation reasonable
attorney’s fees), on account of or as a result of any actual or alleged loss of, damage
to or defect in property or any actual or alleged disease, illness or injury, including
death, of one or more persons.
Id. at § 1(iii).
B. Amex Nooter’s Scope of Work on April 3, 2013
Frank Peters, the Senior Maintenance Planner for ArcelorMittal Indiana Harbor, was
responsible for planning major outages, writing contractor scopes of work, bidding out projects, and
handling daily maintenance planning for Blast Furnaces Nos. 3 and 4. (ECF 143-4, pp. 10:19-11:4).
In early March 2013, he wrote the scope of work for Amex Nooter to rebuild the excess gas bleeder
pilot burner cabinets at Blast Furnaces Nos. 3 and 4. Id. at pp. 12:13-13:2. Prior to writing this scope
of work, Frank Peters spoke with Ray Smith, Amex Nooter’s Superintendent, and explained the
nature and scope of the work Amex Nooter was to perform, which was “to replace the existing

9

piping, put new valves in, new gauges, and it was pretty clear-cut what had to be done.” Id. at pp.
14:14-15:11.
C. The April 3, 2013 Fire
Korrie Griffith was an employee of Amex Nooter from approximately March 2012 to
September 2013 as a welder pipefitter. (ECF 143-7, pp. 9:23-10:24, 11:12-16). Erik Olson, an Amex
Nooter foreman, was present at Blast Furnace No. 3 on the date of the fire and was the supervisor
of Korrie Griffith and Robert Swimline. (ECF 143-5, pp. 23:16-21, 30:8-33:4). Prior to Griffith and
Swimline beginning work at the cabinets, Olson gave them instructions on the work they were to
perform: replacing the bottom half of the piping inside the excess gas bleeder pilot burner cabinet
at Blast Furnace No. 3. Id. at pp. 30:8-33:11.
James Stalley, Amex Nooter’s Safety Director, testified that Amex Nooter’s supervisors and
foremen were responsible for ensuring Amex Nooter’s employees performed their work in a safe
manner and that no unsafe conditions existed at their worksite. (ECF 143-6, pp. 98:21-99:8). As an
Amex Nooter supervisor, Erik Olson was also required to continually monitor the safety
performance of all Amex Nooter employees under his charge, including Robert Swimline and Korrie
Griffith. Id. at p. 99:13-22. Amex Nooter employees, including Swimline and Griffith, were
responsible for reporting hazardous conditions on the worksite to Amex Nooter supervisors. Id. at
pp.101:16-102:6.
Erik Olson met with Frank Peters prior to Amex Nooter performing any work on the cabinets
to discuss Amex Nooter’s work for that day. (ECF 143-5, pp. 55:20-56:20). Olson testified that it
was the responsibility of Amex Nooter and ArcelorMittal Indiana Harbor to identify and rectify
hazards. Id. at 57:15-23. Olson agreed that it was Amex Nooter that performed an initial survey of

10

the work site to identify any hazardous conditions. Id. at pp. 57:24-58:5. Olson walked the gas line
with Frank Peters and received instructions on what valves needed to be closed, locked out, and
isolated. Id. at pp. 65:23-66:19; 76:21-78:5.2 Olson communicated all of this information to Korrie
Griffith and Robert Swimline later that day. Id. at pp. 65:22-66:8; 76:21-78:5. Before Griffith and
Swimline arrived at the cabinet on April 3, 2013, the top part of the cabinet was already completed.
Id. at p. 30:3-17.
Olson testified he specifically told Swimline and Griffith to “leave this valve alone,”
referring to the gas valve that came off in the incident. Id. at pp. 31:4-32:1. Griffith testified that
Olson told him to “try not to mess with the valve” and told him that ArcelorMittal Indiana Harbor
had told Olson that ArcelorMittal had not shut off the gas:
Q.
A.
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

So you and Robert were going to replace the piping and valves inside of the
cabinet?
Right, which was already started.
Korrie, did you place your lock on – Strike that.
Before you started to work on the cabinet, did you place your lock on
anything?
Not that lock box, but it was on for a different job.
Did you see any locks on any of the –
They had lock boxes there.
Did you see any locks on any of the piping going into the cabinet?
No.
Was it represented to you that the line going into the cabinet that you and
Robert were going to work on had locks placed on it?
They said it was locked out.
Who is “they,” .. . .
Our supervision, Olson, he said that – you know, there is a lock box but, you
know –
There is a lock –
Once they are going to lock out, there is nothing to lock out, and they didn’t
lock it out.

2

In connection with these facts in its Statement of Undisputed Material Facts, ArcelorMittal represents that
Olson testified that he “raised no issue as to safety” when walking the line with Frank Peters. However, the cited portions
of the deposition do not support this statement. (ECF 143, p. 6).

11

Q.
A.
Q.
A.

What exactly did Olson tell you?
Go up there and finish the job, that’s basically it.
Did he even mention anything about –
He said don’t – try not to mess with the valve, and they knew it was live, and
he said they denied shutting it off. So they knew what the situation was.

(ECF 143-7, p. 131:8-14). Olson testified that Swimline and Griffith did not have any questions
about Olson’s instructions on how to perform the job or on not touching the gas valve attached to
the live gas line leading into the cabinet. (ECF 143-5, pp. 29:11-34:2). Eric Frahm, an Amex Nooter
foreman, testified that he checked the bleeder to be sure that there was no gas past the valve. (ECF
143-9, p. 73:17-24). When asked if he had done a visual inspection of the valve that Griffith
removed, Frahm testified, “You would hear a hundred pounds screaming. If there was a leak it will
be screaming like nobody’s business.” (ECF 143-9, p. 74:1-17).
1.

Korrie Griffith Removed a Live Gas Valve
Korrie Griffith testified that he and Robert Swimline were the only two individuals who

witnessed the explosion on April 3, 2013. (ECF 143-7, p. 20:12-16). He then gave the following
deposition testimony regarding the gas valve.
Q.

And then one of the other things you told me was that -- now, let me stop
there.
I know the valve came off.
A.
Right.
Q.
Before we get to how it came off, I just want to make sure I understand what
you told me when we were on the phone: You mentioned that you knew that
that valve was leaking gas, right?
A.
Yes.
MR. RITCHIE: Objection, vague.
BY MR. RELIFORD:
Q.
And you knew that valve was leaking gas at the time that you guys attempted
to do your work, correct?
MR. RITCHIE: Objection, leading.
THE WITNESS: Yes.
BY MR. RELIFORD:

12

Q.

The other thing I’m just trying to rack my brain with here, I believe you said
that when the valve -- after the valve came off, you spent about a minute or
two trying to get that valve back on?
A.
I tried -MR. RITCHIE: Objection, form and foundation, go ahead.
THE WITNESS: I did try to get it on, but it wasn’t even that long.
BY MR. RELIFORD:
Q.
Do you remember how long it was, because I can’t remember what you told
me on the phone?
A.
Honestly, everything happened so fast.
Q.
Okay.
A.
And the next thing I knew it was a big bright yellow flash, and I took and
run. And Robert Swimline was looking for me, and I didn’t -- he said he
looked for me, and I was already gone, so I don’t know.
MR. RELIFORD: Okay.
BY MR. RELIFORD:
Q.
So you remember -- and I know there was a big ball of fire, right?
A.
Right.
Q.
But you remember trying to put the valve back on?
A.
Yes.
MR. RITCHIE: Objection, form and foundation.
MR. RELIFORD: I’m sorry, I didn’t get your answer.
THE WITNESS: Yes.
BY MR. RELIFORD:
Q.
And you spent, what, about a minute trying to get that valve back on?
A.
Yes.
Id. at pp. 43:23-45:23.
Q.
A.
Q.

Were you able to get it back on?
No.
And when you were trying to get the valve back on, okay, and I know we
didn’t talk about this during our phone call, but when you were trying to get
that valve back on, were you using your hands or were you using some sort
of pipe wrench or some other pieces of equipment?
A.
My hand.
MR. RITCHIE: Objection, form and foundation.
THE WITNESS: Honestly, I just remember trying to get the screw back on.
BY MR. RELIFORD:
Q.
With your hands?
A.
Yeah.
Q.
Do you recall using any sort of equipment?
A.
To try to get it back on?
Q.
Yes, sir.
13

A.

No, I am a human being, my left hand.

Id. at p. 46:4-21.
Q.

. . . Now, when you started working on the cabinet, the subject valve that
came off, was that loose?
MR. RITCHIE: Objection, form and foundation, go ahead.
MR. RELIFORD: You can answer.
THE WITNESS: It wasn’t on very tight.
BY MR. RELIFORD:
Q.
And you saw that with your own eyes?
A.
Yes.
Q.
So when you saw that that valve was not on very tight, you could also smell
gas leaking, correct?
MR. RITCHIE: Objection to form and foundation, it’s compound, go ahead.
THE WITNESS: Yes.
BY MR. RELIFORD:
Q.
And this is before you started doing any work, correct?
A.
Yes.
Id. at p. 47:7-20; see also id. at p. 61:5-12 (smelling gas).
A.
...
A.

Yes, and the steel mill also refused to turn that gas off and still let us go work
on it.
Without double block and bleeders, nothing to protect us to work on that
stuff.

Id. at p. 48:3-4, 8-9; see also id. at pp. 86:24-87:20 (double block and bleed).
Q.
A.
Q.
A.
Q.
A.

And did you then try to fix the valve so it would stop leaking?
I did.
Tell me what you did?
I was trying to tighten things up and then it came off.
So in the process of you trying to tighten that value off, the valve came off?
Yeah, because I was starting to mess with it, and that’s why I said it wasn’t
on very tight, and it came off when I tried messing with it.

Id. at p. 50:7-17.
Q.
A.
Q.

And then you tried to tighten the valve, correct?
Yes.
And in the process – In the process of you trying to tighten the valve, the
valve came off?
14

A.
Q.
A.
Q.
A.

Right, because it was barely on.
And that’s when the gas started leaking out, correct, yes?
Coming out at 100 some pounds of pressure of live gas, yes.
And that’s when you then tried to put the valve back on, correct?
Correct.

Id. at pp. 51:12-52:1.
A.
Q.
A.
...
A.

They told us the steel mill wouldn’t shut it down.
Who is “they”?
Erik Olson, Ray Smith, they put in a request to shut it down, the steel mill
refused.
And they refused to shut the gas off so they still told us to go up there and
finish it, the mill.

Id. at p. 56:8-16.
Q.
A.
Q.
A.
Q.
A.

. . . I understand that your work assignment that you got directly from Erik
Olson was work associated with the subject valve; is that correct?
Most of the subject was go up there and finish piping that gas cabinet.
Right, but I mean a portion of the work involved was associated with the
valve; is that correct?
Because we had to connect to that valve.
And you got to tighten it, correct?
We had to do all of that stuff.

Id. at p. 60:14-23.
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Here is my question, because I know that you in the process of attempting to
tighten the valve, um, the valve came off, but here is my question: Were you
told to change the particular valve because it wasn’t holding pressure by Erik
Olson?
He said if we can fix it, try to fix it.
And did you understand that to mean?
Try to change it.
Try to change it?
On the run.
“Change it on the run,” tell me that what means?
On the fly.
While gas is still running up to it?
Yeah.
That’s what you understood Erik Olson’s instructions to be?
Yes.
15

Q.

So you get your instructions from Erik Olson, and following those
instructions from Erik Olson you attempted to change the valve while the line
was still live -A.
Yes.
Q.
-- following Erik Olson’s directive; is that correct?
MR. RITCHIE: Objection to form and foundation.
THE WITNESS: Correct.
Q.
Had you ever done that before as a pipefitter?
A.
Yes.
Q.
You understand that that’s not a safe practice?
A.
Yes.
Q.
And you understood that was not a safe practice at the time?
A.
Yes.
Id. at pp. 65:7-66:16.
Q.

A.
Q.
A.

Now since the incident, and any work you’ve done as a pipefitter, okay, have
you ever changed out a valve or attempted to change out a valve where gas
is still running down to the point of the valve?
Not since, no.
Is that because you – it’s dangerous?
Yes.

Id. at p. 99:11-17.
Q.
A.
Q.
A.

So my question to you is: Did you believe that you had done anything wrong
with respect to the work that you were performing?
I didn’t think I did anything wrong until that happened.
Until what?
Until the explosion.

Id. at pp. 73:19-74:1.
Q.
A.

Did you feel you caused the explosion?
Well, I didn’t feel I caused it, all I–you know, I just know I was doing my
thing.

Id. at p. 74:4-6.
Q.
A.
Q.
A.

. . . You mentioned something about the 125 PSI of the force of the gas that
was coming out of that pipe?
Yeah.
Did you know that that was that much pressure before this incident?
No.
16

Q.
A.
Q.
A.
...
Q.

When did you learn that?
Obviously afterwards.
Do you recall when?
After they told me I was laid up in the hospital.
You knew, though, that when you were–when you were in the process of
changing out the valve, you knew that gas would escape into the
environment, you just didn’t know how fast it was going to come out; is that
fair?

...
THE WITNESS: That sounds fair enough, yes.
Id. at pp. 96:20-97:19.
Q.
A.
Q.

You were changing out the valve, correct?
Yeah.
Now did you have another valve to replace the valve that you were
attempting to remove?
A.
Yes.
Q.
Was the valve next to you, the new valve that you were going to put on?
A.
Yes.
Q.
So was it the case that you unscrewed the subject valve, put that one down,
and then put the – tried to put the new one on or tell me what happened
there?
MR. RITCHIE: Objection to form and foundation, it’s compound, go ahead.
A.
It wasn’t like slow and steady.
Q.
I know, because I’m not there, that’s why I asked the question.
A.
It’s called hurry up and try to do it and get it done with.
Q.
And the reason that you were going to try to hurry up and do it is because
you knew that there was gas blowing through that line, correct?
A.
Yes.
Q.
So hurrying up – The effect of trying to hurt up was to be able to, what, to
minimize –
A.
Gas.
Q.
Any gas, okay. So as soon as you took the subject valve off, gas starting
blowing through pretty strong, correct?
MR. RITCHIE: Objection to form and foundation, mischaracterizes the testimony
of the witness, go ahead.
Q.
Yes?
A.
Yes.
Q.
And then – Here is my last question. Did you then try to put back on the
same valve you had just taken off or did you reach for the new valve and
tried to put the new valve –
A.
I already had the new one in hand.
17

Q.
A.
Q.
A.

Okay.
I already had the pipe doped and ready to go, so I would just fucking change
it.
So you were ready to put that new valve on?
I was ready to rock and roll, buddy. And I guess instead of trying to be a
hero, I turned out to be a zero. . . .

Id. at pp. 102:17-104:18. Korrie testified that he had previously changed out live valves for other
employers. Id. at pp. 104:19-105:13.
Amex Nooter’s counsel then asked:
Q.

Just so I understand, Korrie, is it your testimony that the valve came off
while you were attempting, first, to secure it to prevent the leaking gas or do
you – what were you trying to do at the time of the accident?
MR. RELIFORD: Objection, asked and answered, he already said he was trying to
-MR. RITCHIE: I haven’t asked it.
MR. RELIFORD: -- take it off.
MR. RITCHIE: I haven’t asked it.
MR. RELIFORD: I asked it.
MR. RITCHIE: It doesn’t make any difference, Art.
MR. RELIFORD: He already said he was trying to take it off.
THE WITNESS: I answered it.
MR. RITCHIE: The objection is -- was when I’ve asked it before, not if someone
else. I’m entitled to conduct a cross-examination.
MR. RELIFORD: I’m entitled to an objection, asked and answered.
A.
The honest truth is, yes –. . . we were trying to – we were trying to fix it, and
I -- you know, in an attempt to try to fix it, Erik said, go ahead, if you can fix
it, try to fix it. So we unscrewed it, and put it back on. But it also wasn’t just
“go ahead,” I asked my supervisor first.
Id. at pp. 105:24-107:2.
Q.
A.
Q.
A.
Q.
A.
Q.

Do you know if your request for the installation of a double block and bleed
had been communicated to the mill?
Yes.
It had been communicated to the -It had been brought up before, they said they would do it at a later date and
time.
Okay, so the mill decided -That’s what I was told.
Yeah, who told you that?
18

MR. RELIFORD: Objection, hearsay.
THE WITNESS: Erik Olson, and Ray Smith, and all of them.
MR. RITCHIE: Okay.
THE WITNESS: Supervision.
BY MR. RITCHIE:
Q.
So it was your understanding that your request for a double block and bleed
before you worked on the cabinet that’s involved in the accident had been
communicated to ArcelorMittal, and that ArcelorMittal said: “Don’t do it, we
will do it later”?
A.
Correct, that’s -- I don’t know if Arcelor -- but that’s what I was told that
they would do it on the next shutdown.
Id. at pp. 109:21-110:15.
As soon as Griffith removed the valve, gas quickly started blowing through the valve “pretty
strong” and ignited into a “big ball of fire.” Id. at pp. 45:11-13,103:23-104:5.
Griffith testified that, on the day of the incident, he did not have any interaction with anyone
from ArcelorMittal Indiana Harbor and that no one from ArcelorMittal Indiana Harbor told him
where to go, what to do, or how to do it. Id. at pp. 136:4-10. He also testified that ArcelorMittal
Indiana Harbor did not give him any specific training on how to do pipefitter work and never trained
him to change out a valve while gas was still running to the point of the valve. Id. at p. 155:8-22.
When shown a photograph of the salamander heater that was present at the worksite but
hidden behind a wall, Griffith testified that he did not recognize the salamander heater. Id. at p.
112:5-24. He testified that he did not know that there was a heater behind the corrugated steel wall
at the cabinet work site or that the heater was on. Id. at p. 114:3-12. When shown a picture of a valve

19

and pipe marked as Bates Arcelor 00318, Griffith testified that he did not think that the valve in the
picture was the valve involved in the incident. Id. at pp. 121:20-122:23.
2.

Testimony That Korrie Griffith’s Actions Were Dangerous
Robert Swimline and Eric Frahm testified that changing a gas valve out under pressure was

a dangerous action.
Robert Swimline testified:
Q.

So Korrie told us that he removed that valve that the gas was still live to
intentionally. Did you know that?
A.
No.
MR. RITCHIE: Objection to form and foundation.
Q.
So if he did that, per his testimony, that would be, in your words, committing
suicide, true?
MR. RITCHIE: Objection to form, foundation.
A.
True.
Q.
That’s a very dangerous thing to do, correct?
A.
True.
Q.
And you know that something like that, changing out a valve under pressure
is extremely dangerous, correct?
A.
Correct.
Q.
Not only does he put himself in danger, but he puts you in danger by doing
an act like that, correct?
A.
True.
(ECF 143-8, pp. 76:10-77:4).
Eric Frahm testified:
Q.
A.
Q.
A.

And unscrewing a valve that was attached to a line that was still live with gas
was an extremely unsafe thing to do?
Yes. I can’t understand – I’ve changed valves out on the fly before live.
Water valves.
Water valves.
Water valves. Maybe an air valve. You do not change something that is
flammable out, especially natural gas. You would never do that. No fitter
with any common sense, any ability at all or any knowledge would ever do
that.

(ECF 143-9, pp. 32:22-33:8).
20

3.

Korrie Griffith’s Post-Incident Admissions
Amex Nooter’s Safety Director Jim Stalley testified that he interviewed Korrie Griffith after

the incident:
Q.

A.
Q.
A.
Q.
A.
...
Q.

But you understood that – at least based on what Korrie told you that
between – that Korrie experienced a flash with the valve that he came into
contact with; is that correct? And I’m directing your attention to the bottom
of page 1242 where it says initial contact with valve until flash -Yes. Yes. Correct, right.
-- was about a minute, correct?
Yes
So was it your understanding based on what Korrie told you that the valve he
removed resulted in a flash of some sort, correct?
From what he told me, yes.

But you did talk to Korrie Griffith later that month about a valve that he
removed that caused a flash when he removed it, correct?
MR. RITCHIE: Object to the form of the question, mischaracterizes the testimony
of the witness. Go ahead.
A.
That’s what Korrie told me.
Q.
And Korrie didn’t tell you when he talked about the valve that he removed
that he had witnessed a flash before he removed the valve; is that correct?
A.
Could you say that again, please?
Q.
Korrie never said that he experienced a flash with respect to the valve before
he removed the valve, correct?
MR. RITCHIE: Object to –
Q.
He never said that, correct?
MR. RITCHIE: Object to form, foundation. Go ahead.
A.
Not that I – no, not that I recall.
...
Q.
But you did have a conversation with one of the two witnesses who were
involved in the occurrence, correct?
A.
Yes.
Q.
And you had that conversation with Mr. Griffith, who is one of the two
witnesses in late April 2013, correct?
A.
Yes.
Q.
And he talked about a valve that he took off, and when he took off a valve,
there was a spark, correct – it was a flash, I’m sorry, correct?
A.
That’s what he says, yes.
(ECF 143-6, pp. 175:17-176:6; 193:4-194:3; 212:14-213:2).

21

Following the explosion, Amex Nooter foreman Eric Frahm testified that he heard Korrie
Griffith state the following:
Q.
A.
Q.
A.

Q.
A.
Q.
A.
...
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Did you hear Korrie Griffith say anything when you [saw] him?
Oh, yeah.
What did he say?
Well, first when he comes down, I get back down stopping it, Ray’s got him
because he’s trying to take off. He goes I can’t pass the piss test, I can’t pass
the piss test, this is my fault. I did this, I did this. I just killed a guy. I just
killed a guy.
You heard -Korrie say this, yeah.
-- Korrie say I can’t pass the piss test?
Yeah, I heard him. The two ambulance drivers heard him and Ray heard him.
So do you have any evidence as we sit here today, I’m just asking, do you
have any direct knowledge that Korrie actually changed the valve out on the
fly or is that –
Besides him telling me he did it?
So he told you that?
Yeah.
What did he say exactly?
He said I fucked up. I thought I could do it on the fly.
That’s what he told you?
Yeah.
And that’s what you observed – that’s what you heard immediately after the
accident?
Yeah, because he’s freaking out and he can’t pass the drug test. He goes, I
killed a guy. Oh, my God, I killed a guy. He goes, I tried to do it on the fly.
I fucked up, I fucked up, I fucked up.

(ECF 143-9, pp. 18:3-17, 42:16-43:10).

22

D. Amex Nooter’s Expert Witness Opinions
Amex Nooter offers two expert witness opinions in response to the Motion for Summary
Judgment.
1.

Ross V. Smith
Health and industrial safety professional Ross V. Smith opines on the customs and practices

of the steel industry and ArcelorMittal’s failure to provide “complete and correct information
regarding the cabinet gas system prior to work being performed.” (ECF 159-2, p. 6, ¶ 1). Smith
notes, for example, that information regarding the amount of pressure of the line on which Griffith
was working on April 3, 2013 was not marked. Id. Smith opines on several of ArcelorMittal’s other
failures to provide a safe work environment:
-

ArcelorMittal failed to have a written procedure to isolate the energy to the West
Cabinet once it was discovered the gas valves at the Cabinet could not be closed, and
the gas valves that were attempted to be used as isolation points were inoperable, id.
at p. 7, ¶ 2;

-

ArcelorMittal did not provide Amex Nooter with an effective Energy Control
Procedure for the Cabinet, id. at p. 7, ¶ 3;

-

ArcelorMittal failed to demonstrate the “Shared Vigilance” required to allocate the
necessary occupational safety and health resources to allow the parties the ability to
evaluate the inoperable valve issues and proceed with the work, id. at p. 7, ¶ 4;

-

ArcelorMittal failed to monitor the work of Amex Nooter, contrary to
ArcelorMittal’s own handbook on Contractor Safety, Health and Environment, id.
at p. 7, ¶ 5;

-

Through the failure of monitoring Amex Nooter’s work on the Cabinet,
ArcelorMittal failed to allocate effective safety and health support to Amex Nooter
during the scheduled maintenance, id. at p. 7-8, ¶ 6;

-

ArcelorMittal created a hazardous situation for Amex Nooter by failing to operate
the Excess Gas Bleeder Pilot Ignitor System in the West Cabinet in accordance with
its own Operating/Instruction Manual, id. at p. 8, ¶ 7;

23

-

-

2.

ArcelorMittal failed to make Amex Nooter aware of the hazardous conditions
associated with the rebuild of the Cabinet, id. at p. 8, ¶ 8; and
ArcelorMittal, as the host employer, had a specific Energy Control Procedure to lock
out the involved excess gas bleeder cabinet which, therefore, took precedence over
any lock out/tag out program of Amex Nooter, id. at p. 8, ¶ 9.

Richard W. Parry
Mechanical engineer and process management expert Richard W. Parry opines on the root

cause of the April 3, 2013 fire and places the blame on ArcelorMittal’s conduct, acts, and omissions.
(ECF 159-1). Parry concludes that the “root cause of the accident was the failure of ArcelorMittal
to install and maintain a safe/functional gas supply system.” (ECF 159-1, p. 5, ¶ 1). Specifically,
Parry opines:
-

“The norm when tapping a main gas branch header to supply a feed line to
equipment such as the excess gas bleeder pilot burner cabinets is to install a shutoff
valve at the point of the tap. There was no header shutoff valve in the feed line to the
H3/H4 ignitor cabinet.” Id. at pp. 5-6, ¶ 1.A.

-

“ArcelorMittal failed to maintain . . . the mechanical integrity of its high pressure
natural gas supply system in that, on April 3, 2016 [sic] several of the system’s
critical shutoff valves could not be closed and/or when closed did not effectively
block the flow of the high pressure gas. Even though ArcelorMittal has an ongoing
preventative maintenance program and a “reliability maintenance group,” these
shutoff valves were not included/scheduled for inspection or for functional testing.”
Id. at p. 6, ¶ 1.B.

-

“ArcelorMittal failed to check or test these shutoff valves prior to the April 2013
scheduled outage.” Id. at p. 6, ¶ 1.C.

-

“When dealing with high pressure gas, the ‘accepted good engineering practice’ is
to use a ‘double block and bleed’ isolation methodology. Because of the conditions
discussed above, Amex Nooter had to rely on a single shutoff valve which proved
unreliable.” Id. at p. 6, ¶ 1.D.

Parry opines that, in the pre-planning phase, the salamander heater “was missed by
ArcelorMittal. It should have been shut-off and moved to storage a month before the scheduled

24

outage.” Id. at p. 7, ¶ 2. Parry opines that the failure to label and convey the magnitude of the high
pressure gas line within the cabinets was a contributing factor to the incident and that it was
ArcelorMittal’s responsibility to “convey the magnitude of the energy source to the tradesman.” Id.
at p. 8, ¶ 3. Finally, Parry opines that the defective shutoff valves delayed fire suppression. Id. at p.
8, ¶ 4.
E. Demand and Defense Letters and the Robert Swimline Litigation
On December 10, 2013, ArcelorMittal USA tendered its defense generally to Amex Nooter
for the April 3, 2013 fire: “Pursuant to the contract, specifically Sections 22 (Indemnification,
Damages and Liabilities) and 23 (Risk of Loss; Insurance), ArcelorMittal tenders the defense and
indemnity of this matter to Amex Nooter.” (ECF 143-14, p. 2). The letter references the contract
between Amex Nooter and ArcelorMittal USA. There is no reference in this letter to litigation by
Robert Swimline or any other litigation brought against ArcelorMittal. There is no reference in the
letter to ArcelorMittal Indiana Harbor.
On January 9, 2014, ArcelorMittal USA issued a demand letter to Amex Nooter seeking full
reimbursement of the expenses it incurred as a result of the damage to the Indiana Harbor facility
from the April 3, 2013 fire. (ECF 143-13). The letter references Section 22 of the AMUSA-102
Master Agreement. Id. at p. 3. There is no reference in this letter to litigation by Robert Swimline
or any other litigation brought against ArcelorMittal. There is no reference in the letter to
ArcelorMittal Indiana Harbor.

25

On August 1, 2014, Robert Swimline filed a complaint against ArcelorMittal Indiana Harbor,
only, in the Lake County, Indiana, Circuit Court, for his injuries arising out of the April 3, 2013 fire.
(ECF 159-11).3
On August 28, 2014, “ArcelorMittal” “renewed” its December 10, 2013 tender of defense.
(ECF 143-16, p. 2) (claims administrator acceptance of defense referencing the August 28, 2014
renewed tender of defense). ArcelorMittal has not provided a copy of the August 28, 2014 renewed
tender of defense.
The Court takes judicial notice that ArcelorMittal Indiana Harbor removed Swimline’s
complaint to this Court on September 19, 2014, that on April 2, 2015, the Court granted Swimline
leave to file an Amended Complaint to add as defendants ArcelorMittal USA, Frank Peters, and
Amex Nooter, and that, on April 2, 2015, this Court remanded the case to state court based on the
joinder of Frank Peters, whose addition as a party defendant destroyed complete diversity of
citizenship juridiction. See Cause No. 2:14-CV-343-RL-PRC.
On April 20, 2015, Amex Nooter and its insurer accepted ArcelorMittal USA’s tender of
defense with respect to the claim by Robert Swimline arising out of the April 3, 2013 loss. (ECF
143-16).
On January 22, 2016, counsel for ArcelorMittal wrote a two-sentence email letter: “We still
haven’t received payment for defense costs incurred from date of tender to acceptance. Can you
please check on the status of payment and advise as to when we can expect payment.” (ECF 14317).

3
Although ArcelorMittal did not attach a copy of the August 1, 2014 state court complaint as an exhibit to this
motion, Amex Nooter attached a copy as an exhibit to its response. See (ECF 159-11).

26

ANALYSIS
Plaintiffs ArcelorMittal Indiana Harbor and ArcelorMittal USA seek summary judgment in
their favor on the claims in Counts I, II, and III of the Second Amended Complaint. The Court
considers each count in turn.
A. Count I–Negligence
Count I for negligence is brought by ArcelorMittal Indiana Harbor only. In the instant
motion, ArcelorMittal Indiana Harbor seeks summary judgment in its favor on its negligence claim,
arguing that it is undisputed that Amex Nooter caused the April 3, 2013 fire and ArcelorMittal
Indiana Harbor’s damages and that Korrie Griffith’s actions were an unforeseeable intervening,
superseding cause.
Despite having the burden of proof at trial, ArcelorMittal Indiana Harbor does not set out
the elements of a negligence claim in its motion or its brief. To prevail on a claim of negligence
under Indiana law, ArcelorMittal Indiana Harbor must prove: “(1) a duty owed by the defendant to
the plaintiff, (2) a breach of that duty; and (3) an injury to the plaintiff proximately caused by the
breach.” Walters v. JS Aviation, Inc., 81 N.E.3d 1160, 1163 (Ind. Ct. App. 2017) (citing Brown v.
Buchmeier, 994 N.E.2d 291, 294 (Ind. Ct. App. 2013)). “Summary judgment is generally
inappropriate in negligence cases because issues of contributory negligence, causation, and
reasonable care are fact sensitive and more appropriately left for the trier of fact.” Id. (citing
Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 527 (Ind. Ct. App. 2004)).
First, ArcelorMittal Indiana Harbor does not acknowledge in either its motion or brief that
duty is an element of its negligence claim, does not cite any law regarding duty, and does not
identify the duty Amex Nooter owed to ArcelorMittal Indiana Harbor. Because ArcelorMittal

27

Indiana Harbor has not met its burden on an element of its claim, the Court denies ArcelorMittal
Indiana Harbor’s Motion for Summary Judgment on its negligence claim in Count I. Whether a
defendant owes a plaintiff a duty is a question of law to be decided by the Court, see Webb v. Jarvis,
575 N.E.2d 992, 995 (Ind. 1991); but ArcelorMittal Indiana Harbor has not offered any argument
regarding duty for the Court’s consideration.
Even if ArcelorMittal Indiana Harbor had identified the duty owed by Amex Nooter and
assuming that Griffith’s actions in removing the valve constituted a breach of that duty4 and were
a proximate cause of the fire and resulting damage, summary judgment would be denied because
Amex Nooter has asserted an affirmative defense of contributory fault and has alleged sufficient
facts in support to create a genuine issue of material fact as to causation. See (ECF 117, p. 28)
(“Third Affirmative Defense, Comparative Fault – ArcelorMittal Indiana Harbor LLC”). The
Indiana Comparative Fault Act provides that “any contributory fault chargeable to the claimant
diminishes proportionately the amount awarded as compensatory damages for an injury attributable
to the claimant’s contributory fault, but does not bar recovery . . . .” Ind. Code § 34-51-2-5. The Act
also provides that the “legal requirements of causal relation apply to: (1) fault as the basis for
liability; and (2) contributory fault.” Ind. Code § 34-51-2-3.
Under the Act, “a broad range of potentially causative conduct initially may be considered
by the fact-finder.” Green v. Ford Motor Co., 942 N.E.2d 791, 795 (Ind. 2011). “‘[T]he jury is first
required to decide whether an actor’s negligence was a proximate cause of the plaintiff’s injury,”

4

As Korrie Griffith’s employer, Amex Nooter would be liable for Griffith’s actions because it is undisputed
that Griffith was acting within the scope of his employment at the time he removed the valve on April 3, 2013. Barnett
v. Clark, 889 N.E.2d 281, 283 (Ind. 2008). However, based on Griffith’s testimony, there are genuine issues of material
fact regarding Korrie Griffith’s actions in removing the valve that day, including his knowledge of the line pressure,
whether the valve was already loose, whether the valve was already leaking, his purpose in attempting to tighten the
valve, and his lack of knowledge of the salamander heater.

28

and “[w]hether or not proximate cause exists is primarily a question of foreseeability.” Estate of
Pfafman v. Lancaster, 67 N.E.3d 1150, 1162 (Ind. Ct. App. 2017) (quoting Green, 942 N.E.2d at
795 (quoting Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind. 2002))). “The factfinder must evaluate whether the injury ‘is a natural and probable consequence, which in the light
of the circumstances, should have been foreseen or anticipated.’” Id. (quoting Green, 942 N.E.2d
at 795 (citations omitted)). However, “[t]he fact-finder may allocate as comparative fault only such
fault that it finds to have been a proximate cause of the claimed injuries.” Id. (quoting Green, 942
N.E.2d at 795). “Under comparative fault, the trier of fact can allocate fault to multiple contributing
factors based on their relative factual causation, relative culpability, or some combination of both.”
Id. (quoting City of Gary ex. rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1244 (Ind.
2003)).
In its response to the instant motion, Amex Nooter offers facts regarding ArcelorMittal
Indiana Harbor’s own alleged negligent acts, omissions, and failures prior to Korrie Griffith’s work
on April 3, 2013, sufficient to create a genuine issue of material fact on causation for trial. Two of
Amex Nooter’s expert witnesses, Ross V. Smith and Richard W. Parry, have offered expert opinions
that ArcelorMittal failed to provide a safe work environment and that ArcelorMittal’s failures are
the “root cause” of the fire. See Blasius v. Angel Auto., Inc., 839 F.3d 639 (7th Cir. 2016) (noting
that expert witness testimony on causation may be used on a motion for summary judgment to help
the party “get to the fact finder”). Smith opines, in part, that ArcelorMittal Indiana Harbor failed to
provide complete and correct information regarding the cabinet gas system prior to the work being
performed, did not provide Amex Nooter with an effective Energy Control Procedure for the
Cabinet, failed to operate the Excess Gas Bleeder Pilot Ignitor System in the West Cabinet in

29

accordance with its own Operating/Instruction Manual, and failed to make Amex Nooter aware of
hazardous conditions associated with the rebuild of the Cabinet. Smith also opines that ArcelorMittal
Indiana Harbor’s Energy Control Procedure to lock out the involved excess gas bleeder cabinet took
precedence over any lock out/tag out program of Amex Nooter. Parry opines that ArcelorMittal
Indiana Harbor is at fault for the April 3, 2013 fire. Parry opines that ArcelorMittal Indiana Harbor
should have installed a header shutoff valve in the feed line to the H3/H4 ignitor cabinet, failed to
maintain its high pressure natural gas system such that several parts of the system’s critical shutoff
valves could not be closed or when closed did not effectively block the flow of the high pressure gas,
and failed to follow the accepted good engineering practice of using a “double block and bleed”
isolation methodology, which resulted in the failure of the single shutoff valve that was utilized.
And, Parry opines that the salamander heater should have been shut-off and moved to storage by
ArcelorMittal Indiana Harbor a month before the scheduled outage.
Viewing the facts in the light most favorable to Amex Nooter, a reasonable jury could find,
based on Korrie Griffith’s testimony and the opinions of Amex Nooter’s expert witnesses, that
Griffith only removed the valve because it had come loose during the repairs inside the cabinet and
was leaking and that he was trying to repair it and, thus, was not negligent, that ArcelorMittal
Indiana Harbor was negligent by failing to lock out the pipe upstream from the valve, that
ArcelorMittal Indiana Harbor was negligent by failing to remove the salamander heater from the
worksite, and that a foreseeable consequence of a failure to properly isolate a gas line under repair
is a fire. Alternatively, a reasonable jury could find that each party was negligent but that Griffith’s
action of removing the valve would not have resulted in the fire if ArcelorMittal Indiana Harbor had
not been negligent in relation to the lock out of the pipe upstream from the valve and/or in failing

30

to remove the functioning salamander heater. A reasonable jury could find it foreseeable to
ArcelorMittal Indiana Harbor that natural gas could leak from a valve during a repair to a natural
gas line for any number of reasons, ranging from inadvertent damage as a result of other work on
the same pipe (such as Griffith’s work inside the Cabinet) to pipefitter error, and cause a fire.
In anticipation that Amex Nooter would assert its affirmative defense of comparative fault,
ArcelorMittal Indiana Harbor argues in its Motion for Summary Judgment that “[a]ny alleged
action/inaction on the part of AM Indiana Harbor as a cause of the fire is . . . cut off by the
intervening, superseding cause doctrine” because of Korrie Griffith’s unforeseeable conduct of
removing a valve from a live gas line. (ECF 143, pp. 15, 16). In support, ArcelorMittal Indiana
Harbor cites four cases addressing intervening cause; however, none of the cases addresses
contributory negligence. (ECF 143, pp. 16-17) (citing Arnold v. F.J. Hab., Inc., 745 N.E.2d 912, 917
(Ind. Ct. App. 2001); Straley v. Kimberly, 687 N.E.2d 360 (Ind. Ct. App. 1997); Walker v. Jones,
511 N.E.2d 507, 508 (Ind. Ct. App. 1987); Crull v. Platt, 471 N.E.2d 1211, 1213 (Ind. Ct. App.
1984)). Rather, in all four cases, the alleged tortfeasor defendant invokes the theory of intervening
cause to cut off the defendant’s liability based on a third party actor’s negligence. ArcelorMittal
Indiana Harbor does not cite any case in which intervening cause is used by a plaintiff to counter
a defendant’s assertion of the affirmative defense of the plaintiff’s contributory fault.
In 2002, in Control Techniques, Inc. v. Johnson, the Indiana Supreme Court recognized that
the doctrine of superseding or intervening causation “has long been a part of Indiana common law”
that provides that “when a negligent act or omission is followed by a subsequent negligent act or
omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved
of liability.” 762 N.E.2d at 107 (citing Vernon v. Kroger Co., 712 N.E.2d 976, 981 (Ind. 1999)). The

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court defined a “subsequent act” as “‘superseding’ when the harm resulting from the original
negligent act ‘could not have reasonably been foreseen by the original negligent actor.’” Id. The
Indiana Supreme Court noted that, since the enactment of Indiana’s Comparative Fault Act, the
doctrine of superseding cause “has been viewed by some as subsumed in the Act, and by others as
retaining continued viability.” Id. at 108 (citing cases); see also Estate of Pfafman, 67 N.E.3d at
1157 (discussing this reasoning in Control Techniques, Inc., 762 N.E.2d at 108). The Indiana
Supreme Court then concluded that
the doctrines of causation and foreseeability impose the same limitations on liability
as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to
foreseeable consequences. A superseding cause is, by definition, one that is not
reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the
requirement of foreseeability that is not already inherent in the requirement of
causation.
Control Techniques, Inc., 762 N.E.2d at 108.
The jury will have to evaluate whether the fire and resulting damage “is a natural and
probable consequence, which in light of the circumstances, should have been foreseen or
anticipated” by both ArcelorMittal Indiana Harbor and Amex Nooter. Estate of Pfafman, 67 N.E.3d
at 1157. This is not a case in which the apportionment of fault becomes a question of law for the
court, which occurs only when “there is no dispute in the evidence and the factfinder is able to come
to only one logical conclusion.” Robbins v. McCarthy, 581 N.E.2d 929, 934 (Ind. Ct. App. 1991),
reh’g denied, trans. denied. Based on the foregoing, the Court denies ArcelorMittal Indiana
Harbor’s Motion for Summary Judgment on the claim for negligence in Count I.

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B. Count III–Breach of Contract for Damages
Setting aside Count II to address last, the Court next considers Count III, which is brought
only by ArcelorMittal Indiana Harbor for damages for Amex Nooter’s breach of the Contractor
Work Contract and specifically the breach of certain provisions of the AMUSA-102 General Terms
and Conditions.
“The essential elements of a breach of contract claim are the existence of a contract, the
defendant’s breach thereof, and damages.” Breeding v. Kye’s Inc., 831 N.E.2d 188, 190-91 (Ind. Ct.
App. 2005) (citing Fairfield Dev., Inc. v. Georgetown Woods Sr. Apartments Ltd. P’ship, 768
N.E.2d 463 (Ind. Ct. App. 2002), trans. denied).
1.

Controlling Contract Terms and Conditions
As an initial matter, Amex Nooter argues that there is a genuine issue of material fact as to

which “Terms and Conditions” apply to certain aspects of this lawsuit. Both parties appear to agree
that the Contractor Work Contract is the operative contract. However, ArcelorMittal contends that
the AMUSA-102 General Terms and Conditions govern, whereas Amex Nooter argues that the
AMUSA-102 Master Contract was materially changed, modified, and/or superseded by Purchase
Orders Nos. N489391 and N489392 (“Purchase Orders”), which provide that the AMUSA-100
Terms and Conditions govern.
When the language of a contract is unambiguous, its language is “conclusive upon the parties
and upon the courts.” Boonville Convalescent Ctr., Inc. v. Cloverleaf Healthcare Servs., 834 N.E.2d
1116, 1121 (Ind. Ct. App. 2005). In this case, the Contractor Work Contract is unambiguous; the
AMUSA-102 General Terms and Conditions apply, not the AMUSA-100 Terms and Conditions.

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The AMUSA-102 Master Agreement provides that the Contractor Work Contract consists
of the Safety Handbook, the AMUSA-102 General Terms and Conditions, and the Purchase Orders.
(ECF 143-2, Execution Sheet ¶ 3). Amex Nooter is correct that each of the Purchase Orders
indicates that the “AMUSA-100 Terms and Conditions will apply to this Purchase Order.” (ECF
143-3, pp. 2,4). However, the AMUSA-102 General Terms and Conditions provides that “[a]ny
reference to Owner’s or Contractor’s general terms and conditions of purchase, sale or performance
in any Purchase Order or any communication or document issued or delivered by Contractor
(including, not limited to acknowledgments or invoices) shall not be operative, binding or effective.”
(ECF 143-2, General Terms and Conditions § 2(a)) (emphasis added). Thus, the reference to the
AMUSA-100 Terms and Conditions in the Purchase Orders is not operative, binding, or effective.
Moreover, to the extent that this could be perceived as a discrepancy between the AMUSA102 General Terms and Conditions and the Purchase Orders, both of which are parts of the
Contractor Work Contract, the AMUSA-102 Master Agreement provides that, in the event of any
inconsistencies or discrepancies among any parts of the Contractor Work Contract, the Safety
Handbook takes precedence over the AMUSA-102 General Terms and Conditions, the AMUSA-102
General Terms and Conditions takes precedence over the Purchase Order, and the Purchase Order
takes precedence over the Other Contractual Documents. (ECF 143-2, Execution Sheet ¶ 5)
(emphasis added).
Also, the AMUSA-102 General Terms and Conditions provides that the Contractor Work
Contract represents the entire agreement of the parties and is binding unless a modification is made
in writing that both states that it amends the Contractor Work Contract and is signed by an
authorized representative of both the Owner and the Contractor. (ECF 143-2, General Terms and

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Conditions § 2(a)). There is no such written document in this case. Therefore the AMUSA-100
Terms and Conditions are not in effect, and the AMUSA-102 General Terms and Conditions are
controlling.
2.

Breach of Contract–Unsafe Work
First, ArcelorMittal Indiana Harbor argues in its Motion for Summary Judgment that Amex

Nooter breached the Contractor Work Contract, which required Amex Nooter to perform its work
safely, when Korrie Griffith intentionally removed the valve from a live gas line, causing the fire.
“A party breaches a contract when it fails to perform all of the obligations that it has agreed to
undertake.” Breeding, 831 N.E.2d at 191 (Ind. Ct. App. 2005) (citing Worrell v. WLT Corp., 653
N.E.2d 1054, 1057 (Ind. Ct. App. 1995), trans. denied). The contract provision regarding safety that
ArcelorMittal Indiana Harbor references in support of this argument is AMUSA-102 General Terms
and Conditions Section 3, which ArcelorMittal only references generally in a parenthetical citation.
However, Section 3 contains eight subsections lettered (a) through (h), (ECF 143-2, General Terms
and Conditions, § 3(a)-(h)); in its analysis, ArcelorMittal Indiana Harbor does not identify which
provisions it is attempting to prove Amex Nooter breached. (ECF 143, pp. 19-22). In its Statement
of Undisputed Material Facts, ArcelorMittal Indiana Harbor cites Sections 3(a), 3(b), and 3(c).
Therefore, the Court considers those sections to be the basis of this breach of contract claim.
Section 3(a) of the AMUSA-102 General Terms and Conditions requires Amex Nooter to
comply with the “safety, health and environmental rules specified by Applicable Laws or the Safety
Handbook or other rules of Owner especially applicable at the Job Site” during the performance of
the Contractor Work Contract. (ECF 143-2, § 3(b)). Section 3(b) provides that “[d]isregard for, or
multiple or continued violations of, the Safety Handbook or any other applicable safety rules shall

35

be deemed to be a material breach of this Contractor Work Contract.” Id. at § 3(b). Section 3(c)
requires Amex Nooter to “control access to the Job Site and be responsible for all persons and Work
at the Job Site.” Id. at § 3(c). Nowhere does ArcelorMittal Indiana Harbor explain how Griffith’s
action of removing the valve constituted disregard for the Safety Handbook or “applicable safety
rules.” ArcelorMittal Indiana Harbor does not reference either the Safety Handbook or “applicable
safety rules” in its analysis. Therefore, ArcelorMittal Indiana Harbor has not met its burden of
demonstrating that Amex Nooter breached Sections 3(a), 3(b), and 3(c) of the AMUSA-102 General
Terms and Conditions. ArcelorMittal Indiana Harbor has not offered any other basis for its breach
of contract claim based on Amex Nooter’s performance of the work on April 3, 2013. The Court
denies the Motion for Summary Judgment on the claim in Count III for breach of contract based on
Section 3 of AMUSA-102 General Terms and Conditions. As a result, the Court does not reach
ArcelorMittal Indiana Harbor’s argument regarding causation. See (ECF 143, p. 20).
3.

Breach of Contract–Failure to Reimburse
ArcelorMittal Indiana Harbor also argues in the Motion for Summary Judgment that Amex

Nooter breached the Contractor Work Contract when it refused to reimburse ArcelorMittal Indiana
Harbor for the $3,244,292.83 in property damage and costs ArcelorMittal Indiana Harbor sustained
due to Amex Nooter’s negligence, citing Section 22(a) of the AMUSA-102 General Terms and
Conditions.
Section 22(a) of the AMUSA-102 provides
Contractor shall . . . indemnify, defend and save harmless the Owner’s Indemnitees
from and against any and all Claims made by any person or persons by reason of any
act or omission on the part of Contractor or any of its Subcontractors or any
employee, agent or invitee of Contractor or any of its Subcontractors, including any
breach or alleged breach of any statutory duty that is to be performed by Contractor
under this Contractor Work Contract but is, or may be the duty of, any of the Owner
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Indemnitees under Applicable Laws. Notwithstanding the foregoing obligations in
this Section 22(a), Contractor shall not be required to indemnify and save harmless
Owner’s Indemnitees from Claims that are finally determined by a court with
jurisdiction to have been caused solely by the negligence or willful misconduct of
Owner’s Indemnitees; provided, however, that the condition or operation of Owner’s
Indemnitees’ production and manufacturing facilities in the normal course of
Owner’s Indemnitees’ businesses shall be deemed not to be negligence or willful
misconduct.
(ECF 143-2, General Terms and Conditions § 22(a)) (emphasis added). As explained above, Amex
Nooter is the “Contractor,” and ArcelorMittal Indiana Harbor is the “Owner Indemnitees.”
The AMUSA-102 further defines “Claims” as:
Any and all claims, actions, suits, demands, arbitrations, and causes of actions or
other similar activity made, filed, done or attempted or submitted for or on account
of any actual or alleged liabilities, losses, damages, fines, penalties, awards,
judgments, decrees, orders, holdings, determinations, opinions, costs and expenses
of every kind and amount whatsoever (including without limitation reasonable
attorney’s fees), on account of or as a result of any actual or alleged loss of, damage
to or defect in property or any actual or alleged disease, illness or injury, including
death, of one or more persons.
Id. at § 1(iii).
ArcelorMittal Indiana Harbor argues in its brief that, under these provisions, its January 9,
2014 demand to Amex Nooter for reimbursement constitutes a claim under Section 22(a) of the
AMUSA-102. (ECF 143, p. 21); (ECF 143-13) (January 9, 2014 demand letter). And, ArcelorMittal
Indiana Harbor argues that, upon receipt of that letter, Amex Nooter was required to reimburse
ArcelorMittal Indiana Harbor for the $3,244.292.83 in property damages and costs it sustained due
to Amex Nooter’s negligence.
Based on the plain language of these contract provisions, Amex Nooter is required to
indemnify, defend, and save harmless ArcelorMittal Indiana Harbor from claims made by others
against ArcelorMittal Indiana Harbor. For example, as discussed below in the context of Count II,

37

Section 22(a) applies to ArcelorMittal USA’s claim against Amex Nooter for defense in the lawsuit
filed by Robert Swimline against ArcelorMittal USA. Section 22(a) does not apply to ArcelorMittal
Indiana Harbor’s own negligence claim brought directly against Amex Nooter. Thus, the Court
denies ArcelorMittal’s Motion for Summary Judgment on the claim in Count III for breach of
contract based on Section 22 of the AMUSA-102 General Terms and Conditions.
C. Count II–Breach of Contract for Defense
Count II for breach of contract is brought by both ArcelorMittal Indiana Harbor and
ArcelorMittal USA under Section 22(a) of the AMUSA-102 General Terms and Conditions, alleging
that Amex Nooter failed to defend “ArcelorMittal” in the Robert Swimline litigation against
“ArcelorMittal” that seeks compensation for injuries Swimline sustained on April 3, 2013.
As set out in the Material Facts and in the previous section, Section 22(a) of the AMUSA102 General Terms and Conditions provides:
Contractor shall . . . indemnify, defend and save harmless the Owner’s Indemnitees
from and against any and all Claims made by any person or persons by reason of any
act or omission on the part of Contractor or any of its Subcontractors or any
employee, agent or invitee of Contractor or any of its Subcontractors, including any
breach or alleged breach of any statutory duty that is to be performed by Contractor
under this Contractor Work Contract but is, or may be the duty of, any of the Owner
Indemnitees under Applicable Laws. Notwithstanding the foregoing obligations in
this Section 22(a), Contractor shall not be required to indemnify and save harmless
Owner’s Indemnitees from Claims that are finally determined by a court with
jurisdiction to have been caused solely by the negligence or willful misconduct of
Owner’s Indemnitees; provided, however, that the condition or operation of Owner’s
Indemnitees’ production and manufacturing facilities in the normal course of
Owner’s Indemnitees’ businesses shall be deemed not to be negligence or willful
misconduct.
(ECF 143-2, General Terms and Conditions § 22(a)) (emphasis added). In the event of such a claim,
the Contractor is required to immediately, upon demand, assume the defense of any action at law
brought against the Owner’s Indemnitees. Id. at § 22(b).
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The AMUSA-102 further defines “Claims” as:
Any and all claims, actions, suits, demands, arbitrations, and causes of actions or
other similar activity made, filed, done or attempted or submitted for or on account
of any actual or alleged liabilities, losses, damages, fines, penalties, awards,
judgments, decrees, orders, holdings, determinations, opinions, costs and expenses
of every kind and amount whatsoever (including without limitation reasonable
attorney’s fees), on account of or as a result of any actual or alleged loss of, damage
to or defect in property or any actual or alleged disease, illness or injury, including
death, of one or more persons.
Id. at § 1(iii).
The “Contractor” is Amex Nooter. See (ECF 143-2, General Terms and Conditions § 1(viii);
Execution Sheet). The “Owner’s Indemnitees” is both ArcelorMittal Indiana Harbor and
ArcelorMittal USA because (1) “Owner’s Indemnitees” means “Owner” and “all Owner
Companies,” id. at § 1(xiv); (2) “‘Owner’ means the Owner Company issuing the Purchase Order
applicable to this Contractor Work Contract,” id. at § 1(x), and ArcelorMittal Indiana Harbor issued
the Purchase Orders, (ECF 143-3); and (3) “Owner Companies” includes the “Owner Signatory,”
(ECF 143-2, General Terms and Conditions § 1(xi)), and ArcelorMittal USA is the “Owner
Signatory,” (ECF 143-2, Execution Sheet).
Therefore, Amex Nooter is required to “immediately, upon demand, assume the defense of
any action at law brought against ArcelorMittal Indiana Harbor or ArcelorMittal USA.” Indiana law
provides that an “‘insurer’s duty to defend is broader than its duty to indemnify.’” Barnard, 25
N.E.3d at 760 (quoting Liberty Mut. Ins. Co. v. OSI Indus., Inc., 831 N.E.2d 192, 198 (Ind. Ct. App.
2005)). A court “will ‘determine the insurer’s duty to defend from the allegations contained within
the complaint and from those facts known or ascertainable by the insurer after reasonable
investigation.’” Id. (same); see also Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283, 1385 (Ind.
1991) (“The duty to defend is determined solely by the nature of the complaint.”).
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On December 10, 2013, ArcelorMittal USA tendered a general defense, without reference
to any specific claim, action, suit, demand, arbitration, or cause of action. (ECF 143-14) (tender
letter); see also (ECF 143-2, §§ 1(iii), 22(a)) (definition of “claim” and duty to defend provision).
Both the Second Amended Complaint in this case, as well as the instant Motion for Summary
Judgment, refer to ArcelorMittal Indiana Harbor and ArcelorMittal USA jointly as “ArcelorMittal”
(just as this Court does). And, both documents represent that “ArcelorMittal” (meaning both
ArcelorMittal Indiana Harbor and ArcelorMittal USA) tendered a defense on December 10, 2013.
(ECF 116, pp. 1, 11 (¶ 59 )); (ECF 143, pp. 1, 23). However, the December 10, 2013 tender of
defense letter is written on behalf of ArcelorMittal USA only.
On August 1, 2014, Robert Swimline filed a complaint against ArcelorMittal Indiana Harbor,
only, in the Lake County, Indiana, Circuit Court, for his injuries arising out of the April 3, 2013 fire.
The Second Amended Complaint in the instant case incorrectly represents that Swimline’s August
1, 2014 state court complaint was brought against both ArcelorMittal Indiana Harbor and
ArcelorMittal USA.
In the Second Amended Complaint in this case, there is a reference to a “renewed” tender
of defense on August 28, 2014, by “ArcelorMittal.” (ECF 116, ¶ 59). And, the April 20, 2015 letter
from Amex Nooter’s insurance company accepting the defense references the August 28, 2014
“renewed” tender of defense. (ECF 143-16). Although the August 28, 2014 renewed tender of
defense itself is not attached as an exhibit to the instant motion, viewed in the light most favorable
to Amex Nooter, the reasonable inference is that it was ArcelorMittal USA that “renewed” its
December 10, 2013 tender of defense.

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On September 19, 2014, ArcelorMittal Indiana Harbor removed Robert Swimline’s state
court complaint to this Court. On April 2, 2015, this Court granted Swimline’s motion to amend the
complaint to add defendants ArcelorMittal USA, Frank Peters, and Amex Nooter. Because the
addition of Frank Peters destroyed diversity jurisdiction, the Court remanded the case to state court.
On April 20, 2015, Amex Nooter and its insurer accepted “ArcelorMittal’s” tender demand
in relation to the Swimline litigation, referencing the December 10, 2013 tender of defense and the
August 28, 2014 renewed tender of defense. The heading of the letter identifies “Your Client” as
“ArcelorMittal USA, LLC.” (ECF 153-16).
On January 22, 2016, counsel for ArcelorMittal wrote a two-sentence email letter: “We still
haven’t received payment for defense costs incurred from date of tender to acceptance. Can you
please check on the status of payment and advise as to when we can expect payment.” (ECF 14317).
In the instant Motion for Summary Judgment, “ArcelorMittal” seeks reimbursement of
defense costs beginning on December 10, 2013, the original date of the general tender of defense
by ArcelorMittal USA, through April 20, 2015, the date of acceptance of the tender of defense by
Amex Nooter and its insurance company. First, ArcelorMittal Indiana Harbor has not demonstrated
that it tendered a defense to Amex Nooter; the only evidence of record is that ArcelorMittal USA
tendered its defense on December 10, 2013, and renewed the tender of defense on August 28, 2014.
Therefore, the Court considers this claim only as to ArcelorMittal USA.
ArcelorMittal USA argues that, under Indiana law, it is entitled to reimbursement of defense
costs beginning on the date of tender of the defense, citing Barnard v. Menard, Inc., 25 N.E.3d 750,
761 (Ind. Ct. App. 2015). See (ECF 143, p. 23). In Barnard, the court found that the insurance

41

company had a duty to defend based on the language of the policy and the allegations of the injured
party’s complaint, affirming the grant of summary judgment in favor of the insureds and against the
insurance company. 25 N.E.3d at 760. In the conclusion of the opinion, the court ordered that the
insureds “are entitled to reimbursement for the defense costs they have incurred since the date they
tendered defense to Capitol,” id. at 761 (emphasis added), which is the language quoted by
ArcelorMittal USA in the instant motion. However, in Barnard, the injured plaintiff brought a
lawsuit against the insureds, and only then did the insureds tender their defense by bringing a thirdparty complaint against the insurer to invoke the insurer’s duty to defend. Id. at 752. Thus, Barnard
does not address ArcelorMittal USA’s assertion that it is entitled to the costs of defense prior to the
lawsuit by Swimline being filed against ArcelorMittal USA on April 2, 2015.
In the context of an insured failing to comply with the insurance policy’s notice requirement,
the Indiana Supreme Court found that “an insurer cannot defend a claim of which it has no
knowledge.” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1273 (Ind. 2009). In that
case, the insurance company did not have a duty to defend until the insured complied with the
policy’s notice requirement. Id. In the instant case, no “claim” was brought against ArcelorMittal
USA, the entity that made a defense demand on December 10, 2013, until the Amended Complaint
was filed in the Swimline litigation on April 2, 2015, adding ArcelorMittal USA as a defendant.
Thus, Amex Nooter and its insurance company could not have determined whether there was a duty
to defend ArcelorMittal USA until the filing of Swimline’s Amended Complaint.
In its reply brief, ArcelorMittal USA cites Trisler v. Indiana Insurance Co. for its statement
that the determination of an insurer’s duty to defend is not limited solely to what is alleged in a
plaintiff’s complaint but also considers “those facts known to or ascertainable by the insurer after

42

reasonable investigation.” (ECF 168, p. 14 (citing Trisler v. Ind. Ins. Co., 575 N.E.2d 1021, 1022
(Ind. Ct. App. 1991)). While this is a correct statement of the law, Trisler does not address the
question of whether the costs of defense incurred prior to the filing of litigation must be reimbursed.
In Trisler, the question of whether the insurance company owed a duty of defense arose after claims
were filed against the insured. Trisler, 575 N.E.2d at 1022.
The Court notes that there is no factual showing of what alleged defense costs Amex Nooter
has not reimbursed ArcelorMittal USA, what defense costs ArcelorMittal USA incurred prior to
Swimline bringing suit against it on April 2, 2015, or what Amex Nooter has reimbursed
ArcelorMittal USA in relation to the claims brought against ArcelorMittal USA on April 2, 2015.
There is no allegation that Amex Nooter has not paid ArcelorMittal USA’s defense costs from the
date of acceptance—April 20, 2015—forward.
In its reply brief, ArcelorMittal USA changes the basis of this claim. In addition to arguing
for defense costs beginning on December 10, 2013, through April 20, 2015, ArcelorMittal USA also
argues, for the first time, for defense costs beginning August 1, 2014, based on the date Robert
Swimline filed his state court complaint. First, because ArcelorMittal USA did not make this
argument in its opening motion, it is waived for purposes of this motion. Second, ArcelorMittal USA
has failed to address the fact that Swimline’s August 1, 2014 state court complaint was filed against
ArcelorMittal Indiana Harbor only and that Swimline did not bring a claim against ArcelorMittal
USA until his Amended Complaint on April 2, 2015.
Based on the foregoing, neither ArcelorMittal Indiana Harbor nor ArcelorMittal USA has
met its burden of proving this claim, and the Court denies the Motion for Summary Judgment on
Count II.

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CONCLUSION
Based on the foregoing, the Court hereby DENIES Plaintiffs’ Motion for Summary
Judgment [DE 142]. The Court REAFFIRMS the January 5, 2018 final pretrial conference, and the
February 5, 2018 jury trial setting.
SO ORDERED this 3rd day of January, 2018.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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