Mays v. C-Dive, L.L.C. et al

Filing 124

ORDER AND REASONS granting 74 Motion for Partial Summary Judgment on Contractual Additional Insured Status. Signed by Judge Jane Triche Milazzo. (Reference: All Cases)(ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JASON MAYS

CIVIL ACTION
NO: 16-13139
C/W: 16-13318, 16-13952,
16-13951, 17-668
RE: all

VERSUS

C-DIVE LLC ET AL.

SECTION “H” (5)

ORDER AND REASONS
Before the Court is Gulf South Pipeline Company, LP’s Motion for
Partial Summary Judgment on Contractual Additional Insured Status (Doc.
74). For the following reasons, the Motion is GRANTED.
BACKGROUND
This is a consolidated action of five cases arising from a pipeline
explosion. Plaintiffs Jason Mays, Brian Beadell, Matthew Boyd, and Adam
Zima (“Plaintiffs”) allege that they worked for C-Dive, LLC (“C-Dive”) aboard
its vessel, the DSV MS KERCI. According to Plaintiffs, the DSV MS KERCI
was servicing a pipeline owned by Gulf South Pipeline Company, LP (“Gulf
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South”) in the Gulf of Mexico. During work on August 26, 2015, there was a
release of gas that caused an explosion and injured Plaintiffs.
The following business relationships involving the pipeline work are
undisputed. The pipeline in question was owned and operated by Gulf South,
a subsidiary of Boardwalk Pipelines, LP (“Boardwalk Pipelines”). In January
2011, Boardwalk Pipelines entered into a Master Services Agreement (“MSA”)
with C-Dive. The MSA was a blanket contract that did not itself authorize any
specific work but that would be followed by work orders between the parties
adopting the terms of the MSA. On August 11, 2015, C-Dive and Gulf South
entered into a work order, the Scope of Work Agreement (“SWA”), whereby CDive was to decommission the pipeline later involved in the explosion.
The SWA between C-Dive and Gulf South contains a provision
incorporating the MSA. The MSA applies to, at least in part, both Boardwalk
Pipelines and its subsidiaries, including Gulf South. The agreement is “by and
between BOARDWALK PIPELINES, LP (hereinafter referred to as
‘Boardwalk’) and C-DIVE, LLC,” and provides that “[r]eference to Boardwalk
shall also include its subsidiaries and direct or indirect affiliates of Boardwalk,
including but not limited to . . . Gulf South Pipeline Company, LP.” 1 The MSA
requires C-Dive to maintain certain insurance and further states that, “All
policies, with the exception of Worker’s Compensation and Professional
Liability, shall be endorsed to include Boardwalk Pipelines, LP as additional
insured and these policies will respond as primary to any other insurance
available to Boardwalk.” 2
In separate consolidated actions, Plaintiffs bring claims for negligence,
Jones Act negligence, and unseaworthiness against C-Dive and Gulf South. In

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2

Doc. 40-2 at 1.
Doc. 40-2 at 3.

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the final consolidated matter, C-Dive seeks a limitation of liability pursuant to
46 U.S.C. § 30505. Gulf South makes cross-claims in each of the consolidated
actions against C-Dive, alleging that C-Dive is required to defend and
indemnify Gulf South under the MSA. Gulf South also makes third-party
claims in each of the consolidated actions against Catlin Insurance Company
(“Catlin”) and New York Marine & General Insurance Company (“New York
Marine”) as an additional insured under policies those companies issued to CDive. Gulf South asserts that the MSA requires C-Dive to make Gulf South an
additional insured on C-Dive’s comprehensive general liability policies issued
by Catlin and New York Marine, triggering coverage for Gulf South via
automatic additional insured clauses in those policies.
C-Dive, Catlin, and New York Marine previously moved for summary
judgment seeking dismissal of Gulf South’s claims for additional insured status
under C-Dive’s policies. This Court denied that Motion. Gulf South now moves
for a partial summary judgment, holding that it is a contractual named
additional insured under the policies of insurance issued by Catlin and New
York Marine.
LEGAL STANDARD
Summary judgment is appropriate if “the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations. . . , admissions, interrogatory answers, or other materials” “shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 3 A genuine issue of fact exists only “if

3

Fed. R. Civ. P. 56.

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the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 4
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 5 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 6 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 7 “In response to a
properly supported motion for summary judgment, the nonmovant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial.” 8 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” 9 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
6 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
8 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
9 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
10 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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LAW AND ANALYSIS
In its prior order addressing the Motion filed by C-Dive, Catlin, and New
York Marine, the Court held that the language of the MSA was clear and that
it unambiguously required C-Dive to name Boardwalk Pipelines, LP and its
subsidiaries, including Gulf South, as additional insureds on its insurance
policies. 11 In their Motion, C-Dive, Catlin, and New York Marine argued that
because the MSA’s additional insured provision refers to “Boardwalk Pipelines,
LP,” rather than the shorthand “Boardwalk,” C-Dive was only obligated to add
Boardwalk Pipelines, LP, and not its subsidiaries, as additional insureds. They
argued that the terms “Boardwalk” and “Boardwalk Pipelines, LP” have
different meanings within the MSA and that only the former encompasses
Boardwalk Pipelines’ subsidiaries. The Court held these terms to be
interchangeable and found this interpretation to be supported by the language
of other provisions of the MSA. The Court denied the Motion seeking dismissal
of Gulf South’s claim for additional insured status.
Gulf South now moves for a holding that it is an additional insured under
the policies of insurance issued by Catlin and New York Marine. In opposition
to this Motion, C-Dive, Catlin, and New York Marine (the “Opposing Parties”)
assert substantially the same arguments previously addressed. The reiteration
of these arguments and counsel’s passionate appeal at oral argument have not,
however, changed this Court’s opinion. Indeed, upon reviewing this issue for a
second time, the Court has become further rooted in its interpretation of the
MSA. By way of one example, the MSA reads in part:
Contractor will carry or cause to be carried and maintained in force
throughout the entire term of this Agreement, insurance coverage
described below with insurance companies acceptable to
Boardwalk. . . . All policies with the exception of Workers’
11

Doc. 62.

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Compensation and Professional Liability, shall be endorsed to
include Boardwalk Pipelines, LP as additional insured and these
policies will respond as primary to any other insurance available
to Boardwalk. . . . Contractor agrees, upon request of Boardwalk
to submit the original or a certified copy of its insurance policies
for inspection by Boardwalk.
It would be absurd to read this passage to mean that while Boardwalk
Pipelines, LP and its subsidiaries are entitled to approve of the insurance
companies selected and inspect the policies, only Boardwalk Pipelines, LP is
entitled to coverage therein. When the insurance requirements of the MSA are
read as a whole, it is clear that the terms “Boardwalk” and “Boardwalk
Pipelines, LP” are interchangeable, and any other reading would lead to
absurd results.
Having already found the MSA to be clear and unambiguous, this Court
need not consider the evidence submitted by the Opposing Parties regarding
the negotiation of the MSA. 12 Even considering this information, however, they
do not fare any better. There is ample evidence throughout that the parties
intended to include Boardwalk Pipelines, LP’s subsidiaries as additional
insureds. 13
Because this Court has held that C-Dive was required to add Gulf South
as an additional insured to its policies pursuant to the MSA and SWA, the
Court now turns to the policies. It is undisputed that both the Catlin and the
New York Marine policies contain additional insured endorsements, which
See Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 794 (5th Cir. 2010) (quoting LA.
CIV. CODE art. 2046) (“When the words of a contract are clear and explicit and lead to no
absurd consequences, no further interpretation may be made in search of the parties’
intent.”); Becker v. Tidewater, Inc., 586 F.3d 358, 369 (5th Cir. 2009) (stating that under
maritime law, a contract “should be read as a whole and its words given their plain
meaning unless the provision is ambiguous.”); Gonzalez v. Denning, 394 F.3d 388, 392 (5th
Cir. 2004) (stating that under Texas law, “If a written contract is so worded that it can be
given a definite or certain legal meaning, then it is not ambiguous.”).
13 See Doc. 74-2.
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specifically provide that they will include as additional insureds any person or
organization for which C-Dive is obligated by written contract to include said
party as an additional insured. Accordingly, Gulf South is entitled to coverage
as an additional insured on C-Dive’s policies with Catlin and New York
Marine.
CONCLUSION
For the foregoing reasons, Gulf South’s Motion is GRANTED.

New Orleans, Louisiana this 13th day of March, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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