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

Filing 132

ORDER AND REASONS - IT IS ORDERED that C-Dive, LLC, Catlin Insurance Co., and New York Marine & General Insurance Co.'s Motion for Partial Summary Judgment (Rec. Doc. 81 ) is DENIED. IT IS FURTHER ORDERED that Gulf South Pipeline Company, LP's Motion for Partial Summary Judgment (Rec. Doc. 76 ) is GRANTED, as set forth in document. Signed by Judge Jane Triche Milazzo on 8/1/2018. (Reference: All Cases)(sa)

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 are Cross-Motions for Partial Summary Judgment by
C-Dive, LLC, Catlin Insurance Co., and New York Marine & General
Insurance Co. (Doc. 81) and Gulf South Pipeline Company, LP (Doc. 76). For
the following reasons, C-Dive, LLC, Catlin Insurance Co., and New York
Marine & General Insurance Co.’s Motion for Partial Summary Judgment is
DENIED, and Gulf South Pipeline Company, LP’s Motion for Partial Summary
Judgment is GRANTED.
BACKGROUND
This is a consolidated action arising from a pipeline explosion. The
remaining plaintiff, Adam Zima, 1 alleges that he worked for C-Dive, LLC (“CDive”) aboard its vessel, the DSV MS KERCI. The DSV MS KERCI was

1

Plaintiffs Jason Mays, Brian Beadell, and Matthew Boyd have settled their claims in this
matter.

1

servicing a pipeline owned by Gulf South Pipeline Company, LP (“Gulf South”)
in the Gulf of Mexico. During work on August 26, 2015, there was a release of
gas that caused an explosion and injured Plaintiff.
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 plug and abandon (“P&A”) the pipeline later involved in the
explosion. The SWA between C-Dive and Gulf South contains a provision
incorporating the MSA.
Plaintiff bring claims for negligence, Jones Act negligence, and
unseaworthiness against C-Dive and Gulf South. In a consolidated matter, CDive seeks a limitation of liability pursuant to 46 U.S.C. § 30505. Gulf South
brings a cross-claim against C-Dive, alleging that C-Dive is required to defend
and indemnify Gulf South under the MSA. Gulf South also makes a third-party
claim 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 C-Dive. This Court has held 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.

2

C-Dive, Catlin, and New York Marine (collectively the “C-Dive Parties”)
now seek dismissal of Gulf South’s claim for defense, indemnity, and additional
insured status pursuant to the Louisiana Oilfield Anti-Indemnity Act. Gulf
South seeks a partial summary judgment finding that no state law antiindemnity act applies to prevent its claims because the MSA and the SWA
(collectively, the “P&A Contract”) are maritime contracts.
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.” 2 A genuine issue of fact exists only “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 3
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. 4 “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.” 5 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.” 6 “In response to a

2
3
4
5
6

Fed. R. Civ. P. 56.
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).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

3

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.” 7 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” 8 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 9
LAW AND ANALYSIS
The C-Dive Parties argue that pursuant to the Outer Continental Shelf
Lands Act, Louisiana law applies to govern the P&A Contract and the
Louisiana Oilfield Anti-Indemnity Act therefore renders the defense,
indemnity,

and

additional

insured

requirements

therein

void

and

unenforceable. Gulf South, on the other hand, argues that general maritime
law applies to govern the contract, under which the indemnity and defense
provisions therein are enforceable. In order to determine which law applies to
this dispute, the Court must determine whether the P&A Contract is a
maritime or non-maritime contract.
The Fifth Circuit has recently espoused a new test for the resolution of
this issue, expressly abandoning the six-factor test previously required under
Davis & Sons, Inc. v. Gulf Oil Corp. 10 The Doiron test requires the court to
consider just two questions in determining whether a contract is maritime: (1)

Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
8 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)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
10 Davis & Sons, Inc. v Gulf Oil Corp, 919 F.2d 313, 316 (5th Cir. 1990).
7

4

“is the contract one to provide services to facilitate the drilling or production of
oil and gas on navigable waters?” and (2) “does the contract provide or do the
parties expect that a vessel will play a substantial role in the completion of the
contract?” 11 This Court will consider these questions in turn.
A. Is the contract one to provide services to facilitate the drilling
or production of oil and gas on navigable waters?
The principal obligation of the P&A Contract is to plug and abandon an
underwater pipeline used for the transportation of natural gas. In the only
Fifth Circuit opinion to have applied the Doiron test so far, In re Crescent
Energy Services, the Fifth Circuit expressly held that a contract for P&A work
involves the drilling and production of oil and gas. 12 The court also expressly
rejected the argument, made by the C-Dive Parties here, that it should
consider the historical treatment of these sorts of contracts in answering the
first prong of Doiron. 13 In addition, the C-Dive Parties do not dispute that this
service was performed on navigable waters. Accordingly, the answer to the
first question in the Doiron test is yes.
B. Does the contract provide or do the parties expect that a
vessel will play a substantial role in the completion of the
contract?
The SWA expressly provided for the use of a vessel to complete the plug
and abandon work at issue. It expressly provided that C-Dive shall mobilize a
diver support vessel for use in the project. 14 The SWA also provided that the
vessel, the MS KERCI, would be relocated at different points throughout the

In re Larry Doiron, Inc., 879 F.3d 568, 576 (5th Cir.).
In re Crescent Energy Servs., L.L.C. for Exoneration from or Limitation of Liab., No. 1631214, 2018 WL 3420665, at *5 (5th Cir. July 13, 2018).
13 Id.
14 Doc. 81-3 at p. 8.
11
12

5

project in order to facilitate the work being done. 15 The pipeline that C-Dive
was tasked with abandoning was attached to the sub-sea floor in more than 20
feet of water. The MS KERCI supplied air hoses and diver lines to the divers
working on the sub-sea floor, and its radio room was used to communicate with
the divers as they worked. In addition, the MS KERCI housed a crane that was
used to lower equipment to the divers. This Court finds that it is clear from the
record that the parties anticipated that a vessel would play a substantial role
in the project. Indeed, the job could not have been completed without the aid
of a vessel.
The C-Dive Parties argue that this Court should limit its consideration
to whether substantial work was performed aboard the vessel, suggesting that
the vessel’s role in assisting the divers on the subsea floor should not be
considered. In making this argument, the C-Dive Parties misconstrue a portion
of Doiron indicating that the seamen status of the crew asked to perform the
work could be a relevant consideration in determining the anticipated role of a
vessel. This Court can see no reason for such a narrow construction of the
Doiron test. Indeed, the Fifth Circuit has explained that even a vessel’s role as
a work platform can be sufficient to establish this prong of the test. 16
Accordingly, the answer to the second question of Doiron is also yes, and the
P&A Contract is a maritime contract.
Having found that the P&A Contract is a maritime contract, general
maritime law applies by its own force and state law does not apply to invalidate
the indemnity, defense, and additional insured provisions.

15
16

Doc. 81-3, ¶¶ 1, 6, and 47.
In re Crescent Energy Servs., L.L.C., 2018 WL 3420665, at *5.

6

CONCLUSION
For the foregoing reasons, Gulf South’s Motion is GRANTED, and the CDive Parties’ Motion is DENIED.

New Orleans, Louisiana this 1st day of August, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

7