Offshore Marine Contractors, Inc. v. Palm Energy Offshore, L.L.C. et al
Filing
113
ORDER AND REASONS granting 42 MOTION for Summary Judgment filed by H.C. Resources, L.L.C.. Signed by Chief Judge Sarah S. Vance on 12/11/12.(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OFFSHORE MARINE CONTRACTORS, INC.
CIVIL ACTION
VERSUS
NO: 10-4151
PALM ENERGY OFFSHORE, LLC AND
CHET MORRISON WELL SERVICES, LLC
SECTION: R
ORDER AND REASONS
Before the Court is the motion for summary judgment filed by
third-party defendant H.C. Resources against defendant Chet
Morrison.1 Because no genuine issues of material fact exist as to
Chet Morrison’s claims against H.C. Resources, the Court GRANTS
the motion.
I.
BACKGROUND
This dispute arises out of outstanding charter fees and
damages sustained by a vessel when it became lodged while
plugging a well in the Gulf of Mexico. Plaintiff Offshore Marine
Contractors Inc. owns a fleet of lift boats used in oil well
operations. Plaintiff alleges that on July 15, 2008, one of the
boats, the L/B Nicole Eymard, was chartered for use by defendant
Chet Morrison Well Services, LLC, a contractor working for Palm
1
R. Doc. 42.
Energy Offshore, LLC, also a defendant in this suit. The vessel
departed on July 18, 2008 for wells in the Chandeleur 37 block.
Although plaintiff asserts in its complaint that Palm owned
or was responsible for the Chandeleur 37 wells, they were in fact
owned by H.C. Resources.2 William Gray oversaw the HCR wells
during the period in question, since the United States Bankruptcy
Court for the Southern District of Texas had appointed him as the
manager of HCR to assist in its decommissioning activities.3
Gray, with his partner Jonathan Garrett, owns Palm Energy
Partners, LLC, which owns Palm Energy Offshore, the defendant
here.4 According to Garrett, Gray asked him to assist HCR with
the plugging and abandonment of the Chandeleur 37 wells as an
unpaid consultant.5 Garrett relayed to John Dale Williams of Chet
Morrison the work needed at the two Chandeleur 37 wells.6
Plaintiff alleges that from July 18 to July 27, 2008, Chet
Morrison employees performed decommissioning activities on the
Chandeleur 37 wells, using the L/B Nicole Eymard.7
2
R. Doc. 42-6.
3
Id.
4
R. Doc. 43-4.
5
R. Doc. 51-17 at 6.
6
Id. at 6-7.
7
R. Doc. 51-4 at 8.
2
During this period, Garrett contacted Williams and orally
requested that Chet Morrison perform a small cementing job on one
of Palm’s damaged wells in the West Delta 55 block after Chet
Morrison completed its work on the Chandeleur 37 wells.8
Plaintiff alleges that on July 27, 2008, Chet Morrison employees
moved the L/B Nicole Eymard to Palm’s West Delta 55 well,
arriving on July 28, 2008.9 At West Delta 55, the vessel
attempted to do a bottom survey, but when jacking down to break
bottom, its legs became stuck. The vessel remained lodged in this
position until August 16, 2008, when plaintiff allegedly formed
an agreement with Palm and Chet Morrison to blow the legs off the
vessel to free it. Plaintiff issued invoices first to Chet
Morrison and then Palm for charter hire at a rate of $19,000 per
day from the period beginning July 15, 2008, when the L/B Nicole
Eymard left for the Chandeleur 37 block, until September 15,
2008, when repairs on the damaged vessel concluded.10
On October 29, 2010, plaintiff filed suit against Palm and
Chet Morrison, alleging failure to pay charter fees and breach of
contract concerning repairs to the vessel.11 Plaintiff did not
8
R. Doc. 43-4 at 2. The area in question is occasionally
misidentified in the parties’ briefs as West Delta 54.
9
R. Doc. 51-4 at 8-9.
10
R. Doc. 59-3.
11
R. Doc. 1.
3
file suit against HCR and erroneously indicated in its complaint
that Palm owned and operated the Chandeleur 37 wells.12 Palm and
Chet Morrison filed cross claims based on the Master Service
Agreement that governed their relationship.13 Chet Morrison also
filed a third-party complaint against HCR, alleging negligence
and breach of contract due to HCR’s refusal to indemnify Chet
Morrison for its work on the West Delta 55 well.14 Palm and Chet
Morrison filed for summary judgment on plaintiff’s claims and the
other’s cross claims,15 and HCR sought summary judgment on Chet
Morrison’s third-party claims.16 The parties appeared before the
Court for oral argument on November 28, 2012. At that time, the
Court denied the motions by Palm and Chet Morrison on the ground
that questions of material fact remain as to the entity
responsible for the charter of the L/B Nicole Eymard and the
related costs. The Court, however, granted HCR’s summary judgment
motion for the reasons described below.17
12
This confusion appears to stem from the appointment of
Palm’s William Gray as the manager of HCR as part of its
bankruptcy proceedings and from Gray’s request that Garrett
assist with the plugging and abandonment of HCR’s wells.
13
R. Docs. 26, 27.
14
R. Doc. 30.
15
R. Docs. 43, 44, 51, 52.
16
R. Doc. 42.
17
R. Doc. 100.
4
II.
STANDARD
Summary judgment is appropriate 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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994).
When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
All reasonable
inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985);
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991).
The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
5
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”
Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.
See id. at 324.
The
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.
See,
e.g., id. at 325; Little, 37 F.3d at 1075; Isquith ex rel.
Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir.
1988), cert. denied, 488 U.S. 926 (1988).
III. DISCUSSION
HCR seeks summary judgment on Chet Morrison’s claims of
negligence and breach of contract. In its third-party complaint,
Chet Morrison asserts that the actions taken by the L/B Nicole
Eymard to break bottom on the West Delta 55 well were completed
at the instruction of HCR. Chet Morrison also contends that HCR,
as a member of the “Palm Group,” is required under Palm’s Master
6
Service Agreements with plaintiff and Chet Morrison to indemnify
Chet Morrison against liability for the causes of action brought
by plaintiff.
The Court finds that Chet Morrison has failed to establish
that genuine issues of material fact exist as to HCR’s liability
for any damage to the L/B Nicole Eymard or HCR’s duty to
indemnify Chet Morrison. Chet Morrison’s complaint erroneously
assumes that Jonathan Garrett was HCR’s employee, and thus Chet
Morrison contends that HCR directed the actions of the L/B Nicole
Eymard at the West Delta 55 well and is liable for the resulting
damage when the vessel became stuck. But, Garrett is employed by
Palm, and it is undisputed that Palm owns the West Delta 55 well.
Although Garrett engaged Chet Morrison on HCR’s behalf to work on
the Chandeleur 37 wells, which HCR owned during the period in
question, Garrett testified that he acted as an unpaid consultant
and has never been employed by HCR.18 In his affidavit, William
Gray, who along with Garrett owns Palm, stated that HCR has no
ownership interest in the West Delta 55 well and that HCR is not
an employee, subsidiary, affiliated company or partner of
Palm’s.19 Chet Morrison has not put forth any evidence suggesting
otherwise and has failed to demonstrate that HCR had any
connection to or responsibility for the West Delta well.
18
R. Doc. 51-17 at 4-6.
19
R. Doc. 42-6 at 3.
7
Accordingly, there are no facts in dispute as to HCR’s lack of
involvement in the events that transpired at the West Delta 55
well.
In its opposition to HCR’s motion for summary judgment, Chet
Morrison appears to recognize that HCR had no connection to the
West Delta 55 and instead discusses the events that took place at
the Chandeleur 37 wells. Chet Morrison contends that the legs of
the L/B Nicole Eymard became stuck at the Chandeleur 37 wells and
that it took eleven hours to break bottom there. Chet Morrison
asserts that the impact of this difficulty on the later events at
the West Delta well is unclear but suggests that HCR is at fault.
The Court finds that Chet Morrison’s attempt to connect the
damage sustained by the L/B Nicole Eymard at the West Delta well
to the work that the vessel did for HCR at the Chandeleur 37
wells is wholly unsubstantiated. Chet Morrison presents no
evidence in support of its vague claim that the L/B Nicole Eymard
was damaged at the HCR well and that HCR is therefore liable for
the damage to the vessel that occurred at the West Delta well.20
Moreover, Chet Morrison did not raise any issues involving the
Chandeleur wells in its complaint. “A claim which is not raised
20
Chet Morrison asks that summary judgment be denied,
since HCR has twice postponed its 30(b)(6) deposition, and thus
Chet Morrison has been unable to pose questions to William Gray.
Because Chet Morrison seeks evidence on issues that are not
properly before the Court, the Court finds that a denial of
summary judgment due to the postponed deposition is not
warranted.
8
in the complaint but, rather, is raised only in response to a
motion for summary judgment is not properly before the court.”
Cutrera v. Bd. of Sup'rs of Louisiana State Univ., 429 F.3d 108,
113 (5th Cir. 2005). Thus, any arguments made by Chet Morrison
concerning the work done at the Chandeleur wells, including Chet
Morrison’s claim for charter fees owed, are not properly before
the Court.
The Court also finds to be without merit Chet Morrison’s
contention that it is owed indemnity by HCR for the West Delta 55
incident under Master Service Agreements that Palm executed with
plaintiff and Chet Morrison.21 Chet Morrison has failed to put
forth any evidence that HCR is bound by either Agreement. Palm
signed the agreements,22 not HCR, and as previously discussed,
Palm and HCR are separate entities. Chet Morrison points to the
Agreements’ use of the term “Palm Group,” which is defined to
include, among other entities, Palm’s subsidiaries, affiliated
companies, and partners, and argues that HCR is a member of the
Palm Group.23
Yet, Chet Morrison has not presented evidence that
Palm and HCR are in any way affiliated. Moreover, the term “Palm
Group” identifies only the entities that the contractor in each
21
In fact, Chet Morrison does not defend these claims in
its opposition to the motion for summary judgment.
22
R. Docs. 44-4 at 11; 43-5 at 9.
23
R. Docs. 44-4 at 15; 43-5 at 13.
9
Agreement must hold harmless and the entities for which the
contractors will be held harmless by Palm for any damage.24 Even
if HCR were to fall within the Palm Group, HCR would have no duty
to indemnify Chet Morrison. Indeed, the Agreements concern only
Palm’s duty and the duty of the contractor with which Palm sought
to establish a relationship, plaintiff in one agreement and Chet
Morrison in the other. Thus, Chet Morrison has put forth no
evidence that HCR owes Chet Morrison indemnity for the damage to
the L/B Nicole Eymard.
The Court notes that many questions of fact remain as to the
relationships among the parties in the suit and the events that
transpired at the West Delta well. But, because Chet Morrison has
failed to demonstrate that there are any genuine issues of
material fact as to HCR’s involvement with the West Delta well,
on which Chet Morrison based its claims, the Court grants HCR’s
motion for summary judgment.
24
The language at issue in the Agreement between Palm and
Chet Morrison states that “Palm shall release, defend, protect,
indemnify, and hold harmless Contractor . . . from and against
all suits, actions, claims, liabilities, damages, and demands
based upon personal injury or death or property damage or loss .
. . suffered by any of the Palm Group.” Id.
10
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS HCR’s motion for
summary judgment and dismisses HCR from the suit.
New Orleans, Louisiana, this 11th day of December, 2012.
___
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
11
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