Ralphs v. National Union Fire Insurance Company of Pittsburgh, PA et al

Filing 124

ORDER denying 53 Motion for Summary Judgment. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GABRIEL RALPHS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 13-408

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, ET AL.,
Defendants

SECTION: “E” (5)

ORDER
Before the Court is a Motion for Summary Judgment filed by Third Party
Defendant Flexicrew Staffing, L.L.C. (“Flexicrew”).1 Flexicrew seeks summary judgment
in its favor finding there is no genuine dispute of material fact and the cross-claim filed
by Energy Response Group, L.L.C. (“ERG”) against it has no basis as a matter of law. For
the reasons that follow, Flexicrew’s Motion for Summary Judgment is denied.
BACKGROUND
Plaintiff Gabriel Ralphs was employed by Flexicrew and worked as a deckhand on
vessels participating in the BP oil spill clean-up response.2 On or about June 20, 2010,
Ralphs claims to have sustained severe personal injuries while working in service of a
vessel as a crew member.3 Ralphs filed an amended complaint adding ERG as a
defendant, claiming Ralphs worked as a borrowed employee and/or at the direction and
under the control of ERG.4 In its answer, ERG filed a cross-claim against Flexicrew
claiming ERG is entitled to defense and indemnity from Flexicrew with respect to
Ralph’s claims against ERG.5

R. Doc. 53.
R. Doc. 1, p. 2.
3 Id.
4 R. Doc. 6, p. 3.
5 R. Doc. 22, pp. 10–13.
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STANDARD OF LAW
Rule 56 of the Federal Rules of Civil Procedure mandates the Court “grant
summary judgment if the movant shows there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”6 When assessing
whether a material factual dispute exists, the Court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”7
All reasonable inferences must be drawn in favor of the non-moving party,8 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.”9 The Court ultimately must be satisfied that “a reasonable jury could not
return a verdict for the nonmoving party.”10
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.”11 The non-moving
party can then defeat the motion by either countering with sufficient evidence of its

Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A fact is “material”
if it may affect the outcome of the action, and a dispute is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
7 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
8 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
9 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotation marks and
citation omitted).
10 Delta, 530 F.3d at 399.
11 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (internal quotation marks
and citation omitted).
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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.”12
If the dispositive issue is one on which the non-moving 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.13 The burden then shifts to the non-moving party, who must, by
submitting or referring to evidence, set out specific facts showing that a genuine issue
exists.14 The nonmovant may not rest upon the pleadings but must identify specific facts
that establish a genuine issue for trial.15
ANALYSIS
On October 14, 2014, Flexicrew filed the instant motion for summary judgment
arguing ERG’s cross-claim against it is without support and should be dismissed as a
matter of law.16 Flexicrew’s motion for summary judgment is premised on its argument
that the only basis of ERG’s cross claim is the “Final Waiver and Release, Affidavit of
Bills Paid and Indemnification” agreement (“Final Waiver”).17 This is incorrect.
Paragraphs five, six, and seven of the cross-claim reference the subcontract between
Flexicrew and ERG,18 and paragraph ten of the cross-claim clearly states a claim based
on the subcontract: “Additionally, pursuant to said subcontract, ERG is entitled to

Id. at 1265.
See Celotex, 477 U.S. at 325.
14 See id. at 324.
15 See, e.g., id. at 325; Little, 37 F.3d at 1075.
16 R. Doc. 53.
17 The motion states: “ERG asserts [in its cross-claim] that Flexicrew is required to provide it with defense
and indemnity pursuant to a lien waiver, ‘Final Waiver and Release, Affidavit of Bills Paid and
Indemnification’ agreement, executed in Alabama two years and four months after the subject incident
occurred.” R. Doc. 53-1, p. 2 (citing R. Doc. 22, p. 10).
18 The subcontract is the Master Subcontractor Agreement (“MSA”), which ERG and Flexicrew entered
into in 2010. See R. Doc. 57-2, p. 2.
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defense and indemnity from Flexicrew with respect to the Plaintiff’s claims against ERG
herein.”19
Flexicrew’s Motion for Summary Judgment fails to address whether there are
material facts in dispute with respect to the subcontract or whether it is entitled to
judgment as a matter of law with respect to claims for defense and indemnity under the
subcontract. Accordingly, Flexicrew has failed to establish that there is no genuine
dispute of material fact with respect to the claims made under the cross-claim or that it
is entitled to judgment as a matter of law on all claims made in ERG’s cross-claim.
CONCLUSION
IT IS ORDERED that Flexicrew’s Motion for Summary Judgment is
DENIED.20
New Orleans, Louisiana, this 5th day of August, 2015.

_____________________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 22, p. 12.
R. Doc. 53. Flexicrew may file another motion for summary judgment addressing all claims asserted in
ERG’s cross-claim, provided it does so by the deadline for dispositive motions set forth in the Court’s
Scheduling Order. The Court notes the deadline set forth in the Scheduling Order for amendments to
cross-claims has not yet passed. R. Doc. 123. Accordingly, the Court grants ERG leave to amend its cross
claim by August 13, 2015 if it wishes to clarify the theory or theories of indemnification on which it is
relying and the factual allegations supporting its claims.

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