Holden et al v. U.S. United Ocean Services, LLC et al

Filing 55

ORDER AND REASONS granting 50 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 10/14/11. (mmv, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PAUL HOLDEN AND PENNY HOLDEN

* CIVIL ACTION

VERSUS

* NO. 09-3670

U.S. UNITED OCEAN SERVICES, LLC., ET AL.

* SECTION "B"(2)

ORDER and REASONS

Before the Court is Third-Party Defendant’s, St. Paul Fire &
Marine Insurance Company (“St. Paul”), Motion for Partial Summary
Judgment (Rec. Doc. No. 50).

In response, Defendant U.S. United

Ocean Services, L.L.C. (“UOS”) filed opposition thereto (Rec. Doc.
No. 51).

Accordingly, and for the reasons pronounced below,

IT IS ORDERED that St. Paul’s Motion for Partial Summary
Judgment (Rec. Doc. No. 50) be GRANTED.

Cause of Action and Facts of Case
This lawsuit arises out of the May 29, 2008 accident involving
Plaintiff Paul Holden (“Paul Holden”), an employee of Buck Kriehs.
(Rec. Doc. No. 50-2 at 2).

Paul Holden claims he was injured

while the M/V LISA W and M/V BARBARA VAUGHT were undergoing repairs
at Buck Kreihs’ dock located in New Orleans, Louisiana.

(Id.).

As a result of the incident, Paul Holden and his wife, Penny
Holden, filed this lawsuit on May 28, 2009 alleging personal
injuries and loss of society claims, respectively, against UOS and

other defendants who have since been dismissed.1 (Id.). On February
15, 2011, UOS filed its Third-Party Complaint, Rec. Doc. No. 29,
against St. Paul seeking defense, indemnity and coverage under a
marine general liability insurance policy that St. Paul issued to
Buck Kreihs. (Id.) UOS asserts that it is owed contractual defense
and indemnity against the Holdens’ claims under a General Services
Agreement (“GSA”) between UOS and Buck Kreihs, and that those
purported contractual defense and indemnity obligations are insured
under Buck Kreihs’ St. Paul insurance policy. (Id. at 3).

III.

A.

Law and Analysis

Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.

Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.

1

a

reasonable

A genuine issue exists if the evidence
jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

The other defendants are United Maritime Group, L.L.C.
(“UMG”) and TECO Ocean Shipping, Inc. (“TECO”). TECO was
dismissed by summary judgment by Order, Rec. Doc. No. 22, dated
October 3, 2010. UMG was voluntarily dismissed without prejudice
by Plaintiffs by Order, Rec. Doc. No. 48, dated July 12, 2011.

(1986).

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue.

Id.

Accordingly, conclusory

rebuttals of the pleadings are insufficient to avoid summary
judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d

1203, 1207 (5th Cir. 1993).

B. The LHWCA
Here, Plaintiff Holden was injured on UOS’ vessel, Barge
BARBARA VAULT, while he was working as a ship repairer, and UOS
concedes as much.
3).

(Rec. Doc. No. 50-2 at 8; Rec. Doc. No. 51 at

Per the definitions of Section 902 of the LWHCA, Holden was an

employee, working as a “ship repairman,” 33 § U.S.C. 902(3); Buck
Kreihs was an employer, whose “employees are employed in maritime
employment . . . .” (Id. at 902(4)); Barge BARBARA VAULT was a
“vessel upon which or in connection with which any person entitled
to benefits under this chapter suffers injury . . . .,” (Id. at
902(21)) as Holden was “on a gangway [on Barge BARBARA VAUGHT] and
allegedly a crew member of the Barge BARBARA VAUGHT unhooked the

gangway without providing any warning to Holden, thereby causing
the gangway to fall and hit the dock, allegedly severely injuring
the Plaintiff Paul Holden.”

(Rec. Doc. No. 51 at 3).

Additionally, the pertinent part of Section 905(b) states:
In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the
provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such
damages directly or indirectly and any agreements or
warranties to the contrary shall be void.
(Emphasis added).

Given this, because the act that resulted in Paul Holden’s
injury arose from UOS’s alleged negligent actions, per Section
905(b), it cannot require Buck Kreihs, the employer, to indemnify
it.

Accordingly, St. Paul, as Buck Kreihs’ insurer, cannot be

required to contractually defend or indemnify UOS for this act.
(“Section 905(b) . . . cuts off the right of the vessel owner to
recover

contribution

or

indemnity

from

the

employer

.

.

.

[t]herefore, [UOS] may not recover against [St. Paul], the insurer
of [Paul Holden’s] employer [Buck Kreihs]).”
at 823.

Terry, 601 F. Supp.

This Court has not been asked to determine whether UOS is

an additional assured under the insurance policy St. Paul issued to
Buck Kreihs.
Accordingly, and for the reasons enunciated above,

IT IS ORDERED that St. Paul’s Motion for Partial Summary
Judgment (Rec. Doc. No. 50) be GRANTED.
New Orleans, Louisiana, this 14th day of October, 2011.

______________________________
UNITED STATES DISTRICT JUDGE