Guity et al v. Lawson Environmental Services & Response Company et al
Filing
96
ORDER & REASONS: ORDERED that the Motion for Summary Judgment (Rec. Doc. 71) is GRANTED. FURTHER ORDERED that Lawson shall defend and indemnify USES against all claims made by Plaintiffs against USES in this action. FURTHER ORDERED that USES may su bmit a properly supported motion for reasonable attorneys' fees and costs, establishing USES's entitlement to attorneys' fees and costs and itemizing the hourly rates, number of hours worked, and costs incurred, within thirty (30) days. FURTHER ORDERED that the Motion for Extension of Deadlines (Rec. Doc. 95) is hereby DENIED AS MOOT. Signed by Judge Carl Barbier on 5/21/14. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GUITY, ET AL
CIVIL ACTION
VERSUS
NO: 11-2506
LAWSON ENVIRONMENTAL SERVICES
& RESPONSE COMPANY, ET AL
SECTION: J
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by
Defendant United States Environmental Services, L.L.C. ("USES")
(Rec. Doc. 71), as well as an Opposition filed by Defendant Lawson
Environmental Service, L.L.C. ("Lawson") (Rec. Doc. 86) and USES's
Reply (Rec. Doc. 93). Having considered the motion, the parties’
submissions, the record, and the applicable law, the Court finds,
for the reasons expressed below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
USES entered into a Master Service Contract with BP America
Production Company ("BPA"), effective February 20, 2007, whereby
USES agreed to provide various oil spill response services for an
initial period of three (3) years. (Rec. Doc. 73, p. 6). USES later
entered into another Master Service Contract with BP Exploration
and Production, Inc. ("BPE"), effective August 19, 2010, which was
governed by the terms of the original Master Service Agreement and
extended the term of the agreement through December 31, 2010. (Rec.
1
Doc. 91, p. 70).1 Lawson entered into a Master Service Contract
with BPE, effective July 11, 2010,
whereby Lawson agreed to
provide oil spill response services in connection with the Macondo
well incident for an initial period of one (1) year. (Rec. Doc. 731, p. 6).2
The USES agreement originally defined "Company" as referring
to
BPA.
(Rec.
Doc.
73,
p.
4).
The
Lawson
agreement
defines
"Company" as referring to either BPA or BPE, or both, to be
determined according to the language of the preamble.3 (Rec. Doc.
73-1, p. 3-4). The USES agreement was amended effective January 1,
2010. The amendment states: "All references to "Company" in the
Contract shall refer to BP America Production Company [BPA] and/or
BP Exploration & Production, Inc. [BPE]" (Rec. Doc. 91, p. 61).4
1
For purposes of this motion, the Court will refer to both of USES's Master
Service Contracts collectively as "the USES agreement."
2
For the purposes of this motion, the Court will refer Lawson's Master
Service Contract as "the Lawson agreement."
3
The preamble to the Lawson agreement states:
The entity under this Contract acting as Company shall be determined
by the ownership interest in the respective assets which are the
subject of the services under this Contract at any given time;
provided, however, in the event that no services are in progress, or
other issues of Contract arise which do not pertain to one or the
other entity, then both entities of Company shall act as Company.
(Rec. Doc. 73-1, p. 3).
4
The amendment goes on to state:
The entity under the Contract acting as Company shall be determined
by the ownership interest in the respective assets which are the
subject of the services under the Contract at any given time;
provided, however, in the event that no services are in progress, or
other issues of Contract arise which do not pertain to one or the
2
Both agreements include an identical cross indemnity provision,
which provides as follows:
14.04
Cross Indemnity Provision: To the extent
Company's other contractor(s) executes
cross indemnification and insurance and
waiver provisions substantially similar
to those contained in this Section 14.04:
14.04.01
Contractor5 agrees to Indemnify Company's
other
contractors(s)
(and
its
subcontractors or Group6 as referred to
in such other contractor's contract) from
and against all Claims/Losses for the
following
when
Connected
With
this
Contract:
other entity, then both entities of Company shall act as Company.
(Rec. Doc. 91, p. 61).
5
In the USES agreement, "Contractor" refers to USES. (Rec. Doc. 73, p. 3,
4). In the Lawson agreement, "Contractor" refers to Lawson. (Rec. Doc. 73-1, p.
3, 4).
6
Both agreements define "Contractor Group" in the following way:
"Contractor Group" shall mean the following Persons individually and
collectively: Contractor and its Affiliates, its subcontractors and
their Affiliates, and the officers, directors, shareholders,
employees, agents, and representatives of all of those entities. ...
(Rec. Doc. 73, p. 4; Rec. Doc. 73-1, p. 4).
3
(I) all injuries to, deaths, or illnesses
of persons in the Contractor Group, and
(ii)
all
damages
to
or
loses
of
Contractor's Property,
even if caused by the Negligence/Fault of
Company's other contractors(s) (or its
subcontractors or Group, as applicable)
or any other Person.
14.04.02
Contractor agrees that it will support
its mutual indemnity obligations in this
Section 14.04 with insurance or qualified
self-insurance with minimum limits set
forth in Section 14.11 obtained for the
benefit of such other contractor(s) (and
its
subcontractors
applicable)
as
or
Group,
indemnitees,
but
as
such
minimum insurance requirements shall not
limit Contractor's indemnity obligations
except
to
the
extent
applicable law. ...
4
mandated
by
The
parties
intend
to
create
a
third
party
beneficiary obligation of Contractor in favor of
such
other
included
of
Company's
reciprocal
cross
contractors
indemnity,
that
have
insurance
support, and waiver provisions in their respective
contracts with Company (and to extend such third
party beneficiary obligation of Contractor to the
subcontractors or Group, as applicable, of such
other contractors).
(Rec. Doc. 73, p. 12-13 (emphasis in original); Rec. Doc. 73-1, p.
13 (emphasis in original)).
Plaintiffs Guity and Quintero were both employees of Lawson
performing oil spill cleanup onboard the M/V BLOOMER II, which was
operated by Lawson. On October 7, 2010, Plaintiffs were allegedly
injured when the M/V BLOOMER II collided with another vessel also
operated
agreement
by
Lawson.
were
in
Both
effect
the
on
USES
that
agreement
date.
On
and
the
October
6,
Lawson
2011,
Plaintiffs filed suit against Lawson, USES, and the vessel owner
for their injuries.7 USES filed an answer on November 15, 2011,
asserting
a
cross-claim
against
Lawson,
seeking
defense
and
indemnity. Lawson has denied its obligation to defend and indemnify
7
USES claims that it "was only named as a defendant in this matter because
the operator of the vessel that collided with Plaintiffs' vessel claims he was
instructed to operate the vessel that day by USES personnel." (Rec. Doc. 71-2,
p. 4, n.11).
5
USES. Both Plaintiffs have settled their claims, and USES has filed
the instant motion, requesting that the Court require Lawson
provide it with defense and indemnity, as well as attorneys' fees
and costs.
PARTIES' ARGUMENTS
USES
maintains
that
it
is
contractually
entitled
to
be
defended and indemnified by Lawson because the language of the
cross
indemnity
provisions
is
unambiguous
and
evidences
the
parties' intent to cover these types of losses. USES also argues
that it is a third party beneficiary under the Lawson agreement
because the language of that agreement shows that it was intended
to benefit USES. Lawson counters that it was a contractor of BPE,
but USES was a contractor of BPA, not BPE. Therefore, according to
Lawson, there remains a genuine issue of material fact as to "[t]he
identity of the true entity" for which USES was working at the time
of the accident (BPA or BPE), and thus, there is a genuine issue of
material fact as to whether Lawson is required to indemnify USES.
LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56©);
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th Cir. 1994).
6
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). The Court will examine the evidence in
the light most favorable to the nonmoving party. Naquin v. Fluor
Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While
all reasonable inferences are drawn in favor of the nonmoving
party, a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little, 37 F.2d at 1075.
A Court ultimately must be satisfied that "a reasonable jury could
not return a verdict for the nonmoving party." Delta, 530 F.3d at
399.
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)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
"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.
7
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.
DISCUSSION
This Court has previously held:
Under maritime law, “an indemnity agreement ... should be
read as a whole and its words given their plain meaning
unless the provision is ambiguous. Disagreement as to the
meaning of a contract does not make it ambiguous, nor
does uncertainty or lack of clarity in the language
chosen by the parties." ... Furthermore, [a] contract of
indemnity
should
be
construed
to
cover
all
losses,
damages, or liabilities which reasonably appear to have
been within the contemplation of the parties, but it
should not be read to impose liability for those losses
8
or liabilities which are neither expressly within its
terms nor of such a character that it can be reasonably
inferred that the parties intended to include them within
the indemnity coverage.
In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of
Mexico, on April 20, 2010, 841 F. Supp. 2d 988, 994 (E.D. La. 2012)
(Barbier, J.) (internal citations omitted).
Here, the language of the identical cross indemnity provisions
is
not
ambiguous,
and
it
clearly
demonstrates
the
parties'
contemplation that Lawson would indemnify USES for any injuries
sustained by Lawson's employees. In fact, the provisions both
explicitly state:
The parties intend to create a third party beneficiary
obligation of Contractor in favor of such other of
Company's contractors that have included reciprocal
cross
indemnity,
insurance
support,
and
waiver
provisions in their respective contracts with Company
(and to extend such third party beneficiary obligation
of Contractor to the subcontractors or Group, as
applicable, of such other contractors).
(Rec. Doc. 73, p. 12-13 (emphasis added); Rec. Doc. 73-1, p. 13
9
(emphasis added)). Given the definitions of "Company" in the Lawson
agreement and in the amended USES agreement, it is clear that at
the time of the accident, Lawson was acting as a contractor for
either BPA or BPE, and USES was also acting as a contractor for
either BPA or BPE. Therefore, USES is entitled to defense and
indemnification by Lawson.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 71) is GRANTED.
IT IS FURTHER ORDERED that Lawson shall defend and indemnify
USES against all claims made by Plaintiffs against USES in the
above-captioned action.
IT
IS
supported
FURTHER
motion
ORDERED
for
that
reasonable
USES
may
attorneys'
submit
fees
a
and
properly
costs,
establishing USES's entitlement to attorneys' fees and costs and
itemizing the hourly rates, number of hours worked, and costs
incurred, within thirty (30) days.
IT IS FURTHER ORDERED
that the
Motion for Extension of
Deadlines (Rec. Doc. 95) is hereby DENIED AS MOOT.
New Orleans, Louisiana this 21st day of May, 2014.
________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
10
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