LeBlanc v. Panther Helicopters, Inc. et al

Filing 665

ORDER & REASONS: It is ORDERED that Plaintiffs' Motion for Summary Judgment (No. 18-2296, Rec. Doc. 7; refiled in No. 14-1617, Rec. Doc. 657 ) is GRANTED IN PART and that all claims Signal and Wood Group have or could have asserted for sub rogation or reimbursement of LHWCA benefits paid to Plaintiffs are hereby dismissed insofar as Plaintiffs recover from Panther, either by settlement or judgment. Otherwise, the Motion for Summary Judgment is DENIED. It is FURTHER ORDERED that oral argument on this Motion for Summary Judgment scheduled for June 20, 2018 is CANCELLED. Signed by Judge Carl Barbier. (Reference: 18-2296) (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARVIN PETER LEBLANC, JR.

CIVIL ACTION

VERSUS

NO: 14-1617
C/W 14-1772
14-1791
14-1875
14-2326
18-2296
APPLIES TO: 18-2296

PANTHER HELICOPTERS,
INC. ET AL.

SECTION: “J”(4)
ORDER & REASONS

Before the Court is Nichalos Miller, Harvis Johnson, Jr., and
Marvin Peter Leblanc, Jr.’s (collectively, “Plaintiffs”) motion
for summary judgment (No. 18-2996, Rec. Doc. 7),1

Signal Mutual

Indemnity

Group,

(“Wood

Association,

Group”)

Ltd.

(“Signal”)

(sometimes

and

collectively

Wood

referred

to

PSN’s
as

“Defendants”) opposition (Rec. Doc. 644), and Plaintiffs’ reply
(Rec. Doc. 650).

For the reasons stated below, the Court grants

in part Plaintiffs’ motion and rules that Defendants are precluded
seeking

reimbursement

for

LHWCA

benefits

against

Plaintiffs’

settlements or judgments in the companion litigation insofar as
those settlements or judgments are funded by Panther Helicopters,

Plaintiffs’ motion was filed in No. 18-2296, which was subsequently
consolidated with No. 14-1617.
The motion was refiled into 14-1617 as Rec.
Doc. 657. Opposition and reply briefs were also filed in the docket for No.
14-1617.
Record citations in this Order refer to No. 14-1617 unless noted
otherwise.
1

Inc. (“Panther”).

Plaintiffs’ motion is denied in part and to the

extent

seeks

that

it

reimbursement

for

to

LHWCA

preclude
benefits

Defendants
against

from

that

seeking

portion

of

Plaintiffs’ recoveries funded by parties other than Panther.
The

Court

assumes

the

reader’s

familiarity

with

this

litigation and proceeds directly to the issue presented by the
parties: whether Wood Group contractually waived Signal’s right of
subrogation against Panther.
Signal is Wood Group’s insurer. Wood Group’s insurance policy
with Signal states in pertinent, “[Wood Group] may waive [Signal’s]
rights of subrogation under Rule 11.2 when required to do so by
the terms of a written contract.”
2.)

(No. 18-2296, Rec. Doc. 7-4, at

Plaintiffs assert that the Master Service Agreement between

Energy XXI Services, LLC (“Energy XXI”) and Wood Group (the “Energy
XXI/Wood Group MSA”)—specifically, provision 2 in Exhibit A to
that agreement—required Wood Group to waive Signal’s right of
subrogation against Panther.
Paragraph 3 of the Energy XXI/Wood Group MSA states
pertinent:
[Wood Group] agrees to procure, maintain and amend, at
its sole expense, and require all of [Wood Group’s]
subcontractors of every tier to procure, maintain and
amend at their sole expense, policies of insurance in
the amounts outlined on Exhibit “A”, attached hereto,
. . . which coverage shall fully address the liabilities
assumed hereunder.

2

in

(No. 18-2296, Rec. Doc. 7-2 at 2.) Exhibit A to the Energy XXI/Wood
Group MSA is entitled “Insurance Requirements for all Contractors
and Third Party Services” and states in pertinent:
Every Contractor [i.e., Wood Group] furnishing services
must give ENERGY XXI evidence of the following listed
minimum insurance coverages, limits and amounts:
[Various types and amounts of insurance are listed]
. . .
In addition to the above:
. . .
2. All insurance policies shall contain the provision
that the insurance companies waive the right of
subrogation against ENERGY XXI, its agents, servants,
invitees, employees or co-lessees, affiliated companies,
contractors, subcontractors and their insurers. . . .
(No. 18-2296, Rec. Doc. 7-2 at 10 (emphasis added).)
At all relevant times, a contract existed between Energy XXI
and Panther, wherein Panther agreed to furnish certain services to
Energy XXI as requested by Energy XXI (the “Energy XXI/Panther
MSA”).

(No. 18-2296, Rec. Doc. 7-3).

The Energy XXI/Panther MSA

refers to Panther as “Contractor” and is nearly identical to the
Energy XXI/Wood Group MSA.
Plaintiffs

assert

that

Panther

was

Energy’s

contractor

pursuant to the Energy XXI/Panther MSA, therefore, because the
Energy XXI/Wood Group MSA required Wood Group to waive Signal’s
right of subrogation against Energy XXI’s “contractors,” Wood

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Group contractually waived Signal’s right of subrogation against
Panther.
Defendants do not dispute, at least for purposes of the
instant motion, that the Energy XXI/Wood Group MSA controlled the
work performed by Wood Group.

(Rec. Doc. 644 at 3.)

However,

Defendants oppose Plaintiffs’ motion on two grounds.

First,

Defendants

merely

argue

that

the

Energy

XXI/Wood

Group

MSA

references the types and amounts of insurance listed in Exhibit A,
but the MSA does not incorporate the provisions, endorsements, or
riders contained in Exhibit A.

Thus, Wood Group argues that

provision 2 in Exhibit A is not part of the parties’ agreement
and, consequently, Wood Group did not waive subrogation against
Energy XXI’s contractors.
The Court will not entertain this argument.

In a prior case

before this Court that involved another Energy XXI MSA with
language identical to that in the Energy XXI/Wood Group MSA, Wood
Group argued that Exhibit A’s provision requiring a subrogation
waiver

subrogation

in

favor

of

Energy

XXI’s

contractors

was

incorporated into the MSA—the exact opposite of Wood Group’s
position here.

See Thurman v. Wood Group Prod. Servs., No. 09-

4142, 2010 WL 4812916 (E.D. La. Nov. 18, 2010).

Moreover, this

Court accepted Wood Group’s argument in Thurman and ruled in Wood
Group’s favor. Id. The Court finds that Defendants are judicially
estopped from arguing a contradictory position here.
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See, e.g.,

Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir. 2008).
Alternatively, even if the Court were not to apply judicial
estoppel, it would conclude for essentially the reasons in Thurman
that Exhibit A is fully incorporated into the Energy XII/Wood Group
MSA.2
Defendants’ second argument is that Panther was not one of
“Energy XXI’s contractors” for purposes of the Energy XXI/Wood
Group MSA. Defendants point out that Wood Group and Panther had
entered into a contract wherein Panther, as “contractor,” agreed
to provide helicopter flight services as requested from time to
time by Wood Group (Wood Group/Panther Contract).
2.)

Thus,

Panther

is

a

party

to

two

(Rec. Doc. 644-

contracts:

the

Wood

Group/Panther Contract and the Energy XXI/Panther MSA mentioned
above.

Notably, the Wood Group/Panther Contract does not require

Wood Group to waive Signal’s subrogation rights against Panther.
It is undisputed that on October 9, 2013, Panther was transporting
Plaintiffs

from

Group/Panther

Energy

Contract,

XXI’s
not

platform
the

pursuant

Energy

to

the

XXI/Panther

Wood
MSA.

Defendants contend, then, that even if the Energy XXI/Wood Group

Defendants point out that Energy XXI provided a “Certificate of Insurance” to
Wood Group that asks, “Do all policies contain waiver of subrogation in favor
[of] Energy XXI, its subsidiaries and affiliates?”, and contend that this
reflects the parties’ intent to not incorporate the broader subrogation waiver
in Exhibit A into the MSA. However, the Certificate of Insurance also asks
“Are all policies endorsed to primary coverage to the Additional Insured in
relation to any policies carried by Energy XXI itself?” and “Do policies provide
adequate territorial and navigation limits?”, requirements found only in Exhibit
A and not the main body of the MSA.
2

5

MSA required Defendants to waive subrogation against Energy XXI’s
contractors, Panther was not Energy XXI’s contractor.
The parties agree that Louisiana law applies to the Energy
XXI/Wood Group MSA.

Louisiana law generally upholds waivers of

subrogation and interprets them under the same rules applied to
other contracts.

See, e.g., Fontenot v. Chevron U.S.A. Inc., 676

So.2d 557, 565 (La. 1996); Beslin v. Anadarko Petroleum Corp., 175
So. 3d 1134, 1136-40 (La. 3d Cir. 2015).

When the language of a

contract is clear and unambiguous, a reasonable interpretation
consistent with the obvious meaning and intent of the contract
must be given.

Beslin, 175 So. 3d at 1136.3

The Energy XXI/Wood Group MSA is clear and unambiguous: “All
[of Wood Group’s] insurance policies shall contain the provision
that the insurance companies waive the right of subrogation against
ENERGY XXI [and] its . . . contractors . . . .”
Rec. Doc. 7-2 at 10.)

(No. 14-1617,

By virtue of the Energy XXI/Panther MSA,

Panther was one of Energy XXI’s contractors, even though at the
time in question Panther was performing work as Wood Group’s
contractor.

Therefore, the Energy XXI/Wood Group MSA waived any

rights Signal may have had to proceed in subrogation against
Panther.

Wood Group suggests in its brief that Louisiana courts strictly construe
waivers of subrogation. However, the cases Wood Group cites concern
contractual indemnification clauses, not a waiver of an insurer’s right of
subrogation. See, e.g., Poloza v. Garlock, 343 So. 2d 1000, 1003 (La. 1977).
3

6

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).

For reasons set forth above, Plaintiffs have met this burden with
respect

to

their

contention

that

subrogation rights against Panther.

Wood

Group

waived

Signal’s

However, Plaintiffs have not

shown that Wood Group waived Signal’s right of subrogation against
any party other than Panther.

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment
(No. 18-2296, Rec. Doc. 7; refiled in No. 14-1617, Rec. Doc. 657)
is GRANTED IN PART and that all claims Signal and Wood Group have
or could have asserted for subrogation or reimbursement of LHWCA
benefits

paid

to

Plaintiffs

are

hereby

dismissed

insofar

as

Plaintiffs recover from Panther, either by settlement or judgment.
Otherwise, the Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that oral argument on this Motion for
Summary Judgment scheduled for June 20, 2018 is CANCELLED.
New Orleans, Louisiana, this 8th day of June, 2018.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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