Guidry v. Noble Drilling Services, Inc. et al

Filing 129

ORDER AND REASONS: The 78 , 79 Motions for summary judgment by the plaintiff and the defendants seeking to dismiss the intervenor's claims are DENIED. Signed by Judge Martin L.C. Feldman on 8/28/2018. (clc)

EASTERN DISTRICT OF LOUISIANA

GLEN GUIDRY

CIVIL ACTION

V.

NO. 16-4135

NOBLE DRILLING SERVICES INC,
NOBLE DRILLING EXPLORATION
COMPANY AND NOBLE DRILLING
(U.S. LLC)

SECTION "F"

ORDER AND REASONS
Before the Court are joint motions for summary judgment
against the intervenor. For the following reasons, the motions are
DENIED.
Background
This litigation arises out of a longshoreman’s allegations
that he suffered a disabling hip injury when he slipped on mud
while performing a casing operation on a drill ship.
Glen Guidry was employed as a field service representative by
VAM USA, LLC, a subcontractor of Shell. VAM performed casing
operations aboard the Noble Bully 1, a drill ship located in the
Gulf of Mexico, which was owned by Noble Drilling Services. The
drilling operation involved lowering a casing, a large-diameter
pipe, into the ocean floor. The casing is made up of casing joints,
or long steel pipes, which are attached with threads on each end

1

that join them together. 1 Guidry would walk from his computer to
the drill floor where he would wipe off the threads of the casing
joint and inspect the joint for abnormalities before the crew
assembled it. As the driller operator ran the casing pipe down
into the ocean floor, oily mud would overflow from the casing and
accumulate at the base of the drilling floor.
On the early morning of May 11, 2015, Guidry was inspecting
the joint casing while standing upon the drilling floor, which was
covered in mud. Guidry slipped and allegedly sustained injuries to
his back, ligaments, muscles, and nervous system. On May 4, 2016,
he sued Noble Drilling Services, Inc, Noble Drilling Exploration
Company, and Noble Drilling (U.S.), LLC, claiming that he was
injured as a result of the defendant’s negligence and seeking
relief under general maritime law and the Longshoremen’s and Harbor
Workers’ Compensation Act. It is undisputed that Guidry is not a
Jones Act seaman. Liberty Insurance Corporation was the Longshore
and

Harbor

employer,

Workers’
VAM.

Compensation

Liberty

has

paid

insurer

for

compensation,

the

plaintiff’s

indemnity

and

medical payment to Guidry. Liberty entered the lawsuit as an
intervenor on September 25, 2017, seeking repayment for the roughly
$260,000 paid to Guidry in indemnity benefits and medical payments.

1

Casing Joint, Oilfield Glossary, SCHLUMBERGER, http://www.glossary.
oilfield.slb.com/Terms/c/casing_joint.aspx (last visited April 3,
2018).
2

The defendants moved for summary judgment on March 5, 2018,
which the Court denied in its April 4, 2018 Order and Reasons. On
April 9, 2018, Guidry and the Noble interests both filed motions
for summary judgment against Liberty. On May 3, 2018, Guidry and
the Noble interests sought leave to file an amended answer to
Liberty’s intervention to include an affirmative defense that was
raised in the motions for summary judgment. The Magistrate Judge
granted leave on July 3, 2018.

I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion. See id. In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party. See Donaghey v. Ocean Drilling &
3

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

at

trial

do

not

qualify

as

competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2). "[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence."

Hathaway

v.

Bazany,

507

F.3d

312,

319

(5th

Cir.

2007)(internal quotation marks and citation omitted). Ultimately,
"[i]f

the

evidence

is

merely

colorable

.

.

.

or

is

not

significantly probative," summary judgment is appropriate. Id. at
249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007). Although

the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
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controversy, that is, when both parties have submitted evidence of
contradictory facts." Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).
II.
Guidry and the Noble defendants each move to dismiss Liberty
Insurance, the intervenor. Their nearly identical motions seek
dismissal

on

the

ground

that

Liberty

waived

its

right

to

subrogation. It is undisputed that Liberty issued a workers’
compensation insurance policy to VAM. The insurance policy states,
“We have a right to recover our payments from anyone liable for an
injury covered by this policy. We will not enforce our right
against the person or organization named in the schedule.” Under
the heading entitled “Schedule,” it states, “Where required by
contract or written agreement prior to loss and allowed by law.”
Separately, VAM and Shell executed a contract that provided that
“All CONTRACTOR’s insurances shall be endorsed to provide that
underwriters

waive

any

rights

of

recourse,

including

in

particular, subrogation rights against OTHER CONTRACTOR GROUP to
the extent of the obligations assumed by CONTRACTOR herein.” 2 VAM
is the CONTRACTOR. It is undisputed that read together, Liberty
has

agreed

to

waive

its

subrogation

2

rights

against

“OTHER

The agreement also provides that where a right is conferred on a
third party, the third party can enforce it.
5

CONTRACTOR GROUP.” However, the unavoidable dispute is whether
Guidry and the Noble defendants fall under the definition of “OTHER
CONTRACTOR GROUP” and therefore, if Liberty has agreed to waive
its subrogation rights against them. Also, Liberty points out that
the contract states that the waiver against the OTHER CONTRACTOR
GROUP is only “to the extent of the obligations assumed by [VAM]
herein.” Guidry and the Noble defendants do not contest that this
language is a part of the contract, but do not address its meaning
or implication. Liberty contends that its waiver is subject to the
obligations assumed by VAM. It further contends that VAM did not
assume any obligations under the terms of the contract, and the
movants have not pointed to any other evidence that VAM assumed
any obligations. The Court will consider Guidry’s and the Noble
defendants’ claims that Liberty waived its right to subrogation
separately.
A.
Guidry’s

basis

for

claiming

that

Liberty

waived

its

subrogation rights is that he is an “OTHER CONTRACTOR GROUP.” To
the extent Liberty waives subrogation to ““OTHER CONTRACTOR GROUP”
under the governing contracts, the plaintiff is not included in
that waiver because he does not fit within the definition of “OTHER
CONTRACTOR.”
The contract defines “OTHER CONTRACTOR GROUP” in Article 1,
Section

IIA

as

“OTHER

CONTRACTOR
6

and

its

AFFILIATES,

its

subcontractors (of any tier) and their AFFILIATES, its and their
respective directors, officers and employees (including agency
personnel), but shall not include any member of COMPANY GROUP or
CONTRACTOR GROUP.” (Emphasis added.) The contract defines “OTHER
CONTRACTOR” as “any PERSON having entered into any contract or
agreement with COMPANY to perform any work or services as to
WORKSITE but shall not include any member of COMPANY GROUP or
CONTRACTOR GROUP.” (Emphasis added). COMPANY refers to Shell.
Contractor Group is defined as “CONTRACTOR and its AFFILIATES, its
SUBCONTRACTORS and their AFFILIATES, its and their respective
directors, officers, and employees . . . .” (Emphasis added). In
other words, CONTRACTOR GROUP includes VAM and its affiliates and
subcontractors’ directors, officers, and employees. Because Guidry
is an employee of VAM, he is included in the definition of
CONTRACTOR GROUP. The definitions of OTHER CONTRACTOR GROUP and
OTHER CONTRACTOR explicitly state that any member of CONTRACTOR
GROUP, which includes Guidry, is not considered a member of the
OTHER

CONTRACTOR

GROUP.

Therefore,

Guidry

is

not

an

OTHER

CONTRACTOR GROUP. The provision Guidry relies on in seeking waiver
of Liberty’s claims for subrogation does not apply to him.
B.
Unlike Guidry, the Noble defendants are OTHER CONTRACTORS
because they have entered into a contract or agreement with Shell
to perform work or services, and are not members of either Shell
7

or VAM. However, the contract provides that Liberty will wave
subrogation rights against other contractors, such as the Noble
interests, “to the extent of the obligations assumed by [VAM]
herein.” The Noble defendants have failed to show that VAM assumed
any obligation in regards to subrogation rights towards other
contractors.
In Section 22.1 of Article 22 of the contract, Shell and VAM
agree to “save, indemnify, defend and hold harmless” each other
“from against all claims, losses, damages, costs (including legal
costs), expenses and liabilities” in regards to loss or damage to
property and personal injury of any employee of either VAM or
Shell. The contract does not state that VAM indemnifies, holds
harmless, or cover any costs for other contractors. Noble does not
provide any provision in which VAM agreed to assume obligations
towards other contractors or otherwise address this provision,
even

though

Liberty

raised

and

briefed

this

issue

in

their

opposition. 3 Further, the Noble defendants do not provide any
alternative meaning of the clause conditioning Liberty’s waiver on
VAM assuming obligations that would permit the Court to find that
the wavier is effective despite no contractual provisions assuming
obligations. Without any evidence to the contrary, the Court must
assume that the clause restricting the wavier to the extent that

3

Guidry also fails to address this issue, and offers no explanation
as to whether VAM assumed any obligations towards him.
8

VAM assumed obligations has meaning, and cannot simply be ignored.
Because Noble has failed to address the issue and provide evidence
to show that all of the explicit terms of the contract have been
satisfied, it is not entitled to summary judgment.
Accordingly,

the

motions

for

summary

judgment

by

the

plaintiff and the defendants seeking to dismiss the intervenor’s
claims are DENIED.

New Orleans, Louisiana, August 28, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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