Cardoso-Gonzalez v. Anadarko Petroleum Corporation et al

Filing 102

ORDER AND REASONS - IT IS ORDERED that Defendant Anadarko's 75 motion for summary judgment regarding the crossclaim by W-Industries of Louisiana, LLC is GRANTED. Anadarko is entitled to judgment as a matter of law in its favor on W-Industrie s' crossclaim. IT IS FURTHER ORDERED that Defendant Anadarko's 77 motion for summary judgment regarding the crossclaim by Dolphin Services, LLC is GRANTED. Defendant Anadarko is entitled to judgment as a matter of law in its favor on Dolphin's crossclaim. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOEL CARDOSO-GONZALEZ,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-16585

ANADARKO PETROLEUM
CORPORATION, ET AL.,
Defendants

SECTION: “E” (1)

ORDER AND REASONS
Before the Court are two motions for summary judgment filed by Crossclaim
Defendant Anadarko Petroleum Corporation (“Anadarko”). 1 In the first motion,
Anadarko seeks a ruling that the indemnity and insurance provisions in its Master Service
Contract with Crossclaim Plaintiff W-Industries of Louisiana, L.L.C. (“W-Industries”) is
unenforceable under the Louisiana Oilfield Indemnity Act (“LOIA”), and that Anadarko
is entitled to judgment as a matter of law on W-Industries’ crossclaim. 2 W-Industries, LLC
filed an opposition. 3 Anadarko filed a supplemental memorandum in support of its
motion. 4
In the second motion, Anadarko seeks a ruling that the analogous provisions in its
Master Service Contract with Crossclaim Plaintiff Dolphin Services, L.L.C. (“Dolphin”)
are invalid, and that Anadarko is entitled to judgment as a matter of law on Dolphin’s
crossclaim. 5 Dolphin has not filed an opposition. 6
R. Docs. 75, 77.
R. Doc. 75.
3 R. Doc. 89.
4 R. Doc. 75.
5 R. Doc. 77.
6 Accordingly, the Court considers the Defendant’s statement of uncontested facts to be admitted pursuant
to Local Rule 56.2. Although the motion for summary judgment is unopposed, summary judgment is not
automatic, and the Court must determine whether the Defendant has shown an entitlement to judgment as
a matter of law. See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006). FED. R. CIV. P. 56(a).
1

2

1

Because the issues raised in the two motions are identical, the Court will address
them together. For the reasons that follow, Anadarko’s motions are GRANTED.
BACKGROUND
Plaintiff Noel Cardoso-Gonzales alleges that on August 13, 2016, he was working
aboard the LUCIUS spar, an offshore oil and gas production platform, when an unsecured
cable tray fell from overhead, striking him between the shoulder and neck. 7 Plaintiff
alleges the incident resulted in severe and disabling injuries. 8 On November 23, 2016,
Plaintiff filed suit against (1) Anadarko Petroleum Corporation, the owner and/or
operator of the LUCIUS; (2) W-Industries, which provided electrical services on the
LUCIUS; 9 (3) Dolphin, which provided construction services on the LUCIUS; 10 (4)
Safezone Safety Systems, LLC; and (5) Gulf South Services, Inc., the spar’s scaffolding
supplier. 11 Plaintiff asserts negligence claims against all defendants. 12
On November 9, 2017, Dolphin filed a crossclaim against Anadarko, seeking
defense and indemnity from Plaintiff’s claims pursuant to its Master Service Contract
(“MSC”) with Anadarko. 13 W-Industries filed a crossclaim on November 15, 2017 on the
same grounds. 14 The MSCs include indemnity and insurance sections that provide
standard “knock for knock” provisions pursuant to which the parties agree to indemnify
each other for personal injuries sustained by their respective employees and invitees
regardless of fault. 15 Specifically, the W-Industries’ MSC provides:
R. Doc. 6 at 2-4. A cable tray is a metal tray through which various cables run. See R. Doc. 32-2 at 2
(Deposition of Louis De La Sierra).
8 R. Doc. 6 at 3.
9 R. Doc. 32-6 at 2 (Deposition of Sullivan J. Fortner).
10 Id.
11 R. Doc. 32-4 at 3 (Deposition of Brandon Mouton).
12 R. Doc. 6 at 3.
13 R. Doc. 43. Anadarko and Dolphin entered into a MSC on March 21, 2001. R. Doc. 77-4 at 1.
14 R. Doc. 48. Anadarko and W-Industries entered into a MSC on December 7, 2009. R. Doc. 75-4 at 1.
15 R. Doc. 75-2 at ¶ 11. R. Doc. 89-1 at ¶ 11. See R. Doc. 75-4 at 5.
7

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Company agrees to be responsible for and assume all liability for and hereby
agrees to defend, release, indemnify, and hold harmless contractor
indemnitees against claims arising in connection with; (i) bodily injury to
and/or death of company’s personnel and company’s invitees; and/or (ii)
subject to section 5, damage to property of company, company’s personnel,
and its and their invitees; arising in connection with this agreement,
regardless of fault. 16
The MSC between Anadarko and Dolphin provides:
The company agrees to be responsible for and assume all liability for and
hereby agrees to defend, release, indemnify, and hold harmless the
contractor indemnitees against claims arising in connection with: (i) bodily
injury and/or death to company’s employees, company’s subcontractors
and their employees, and company’s invitees; and/or (ii) damage to
property of company’s employees and company’s subcontractors and their
employees, and company’s invitees; arising out of or resulting from the
performance of this agreement, regardless of fault. The indemnity
obligations set forth in this paragraph 14(b) shall include any medical,
compensation, or other benefits paid by contractor or any member of
contractor indemnitees and shall apply even if the employee is determined
to be the borrowed or statutory employee of contractor or any other member
of contractor indemnitees. 17
The MSCs also establish that each party must provide insurance coverage “for the
benefit of the other” to cover the indemnity obligations included in the agreement. 18
Specifically, Exhibit B of W-Industries’ MSC requires each party to obtain “General
Liability Insurance with limits of $1,000,000 combined single limit per occurrence,
including, but not limited to, coverage for public liability including bodily injury and
property damage liability, personal/advertising injury, contractual liability for those
liabilities assumed by the Party herein, cross liability and severability of interest[.]” 19
Similarly, the MSC between Anadarko and Dolphin provides that “The party’s insurers

R. Doc. 75-4 at 5 ¶ 13(d). R. Doc. 77-4 at 4 ¶ 14(d).
R. Doc. 77-4 at 4.
18 R. Doc. 89-1 at ¶ 12.
19 R. Doc. 75-4 at 9.
16
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name Company Indemnitees or Contractor Indemnitees, which ever is applicable, as
additional insureds (except for Worker’s Compensation and Property Insurance).” 20
Anadarko now moves for summary judgment, asserting the indemnity and
insurance coverage provisions in the MSCs are null and void under Louisiana law. 21 These
are the undisputed facts relevant to these motions. Anadarko owns and operates the
LUCIUS platform, an offshore oil and gas platform located in the Gulf of Mexico off the
coast of Louisiana. 22 Anadarko decided to expand the platform by adding an amine unit,
which would remove CO2 impurities from the natural gas produced from the platform. 23
This project is referred to as the “Amine Project.” 24 Anadarko hired W-Industries to
provide electrical services on the LUCIUS for the Amine Project, which included installing
cable trays and running cable, and Anadarko and W-Industries entered into a MSC dated
December 7, 2009. 25 Anadarko hired Dolphin to provide construction services, including
the installation of the brackets upon which the cable trays are secured, for the Amine
Project. 26 Anadarko and Dolphin entered into a MSC on March 21, 2001. 27
Anadarko argues that, although the MSCs contain a choice of law provision
specifying that Texas law will govern any state claims between the parties, the federal
Outer Continental Shelf Lands Act requires that the laws of the “adjacent state”—in this
case, Louisiana—should apply. 28 Anadarko contends that under Louisiana law, the
indemnity and insurance provisions in the MSCs are null and void pursuant to the LOIA. 29
R. Doc. 77-4 at 3.
R. Doc. 77-1 at 2.
22 R. Doc. 75-2 at ¶ 2. R. Doc. 89-1 at ¶ 2.
23 R. Doc. 75-2 at ¶ 4. R. Doc. 77-2 at ¶ 4. R. Doc. 89-1 at ¶ 4.
24 R. Doc. 75-2 at ¶ 3. R. Doc. 77-2 at ¶ 3. R. Doc. 89-1 at ¶ 3.
25 R. Doc. 75-2 at ¶ 1, 5. R. Doc. 89-1 at ¶ 1, 5.
26 R. Doc. 77-2 at ¶ 7.
27 R. Doc. 77-2 at ¶ 1.
28 R. Doc. 75-1 at 5. See Snyder Oil Corp v. Samedan Oil Corp., 208 F.3d 521, 522-23 (5th Cir. 2000).
29 See LA. REV. STAT. 9:2780.
20
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Anadarko asserts that, as a result, it is entitled to judgment as matter of law on the
crossclaims of W-Industries and Dolphin.
W-Industries filed an opposition to Anadarko’s motion. 30 To date, Dolphin has not
filed an opposition to Anadarko’s motion.
LEGAL STANDARD
Summary judgment is appropriate only “if 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.”31 “An issue is material if its resolution could affect the outcome of the action.” 32
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.” 33 All reasonable inferences are drawn in favor of the nonmoving party. 34
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 35
If the dispositive issue is one on which the moving party will bear the burden of
persuasion 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.’” 36 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving

R. Doc. 89.
FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
32 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
33 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).
34 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
35 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
36 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
30
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party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 37
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim. 38 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law. 39 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.” 40 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 41 If the movant meets this
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
39 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
40 Celotex, 477 U.S. at 332–33.
41 Id.
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burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).” 42 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.” 43
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 44
LAW AND ANALYSIS
I.

Choice of Law
To determine whether the indemnity and insurance provisions in the parties’ MSCs

are enforceable, the Court must first determine which law applies. The MSCs specifically
provide that Texas law governs any state law claims between the parties, “exclusive of any
principles of conflicts of laws which would direct application of the substantive laws of
another jurisdiction.” 45 Anadarko asserts that as the LUCIUS is a floating platform

Celotex, 477 U.S. at 332–33, 333 n.3.
Id.; see also First National Bank of Arizona, 391 U.S. at 289.
44 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
45 R. Doc. 75-4 at ¶ 12. R. Doc. 77-4 at ¶ 13.
42
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attached to the seafloor, OCSLA governs the choice of law analysis in this case. 46 OSCLA
applies to “all installations and other devices permanently or temporarily attached to the
seabed, which may be erected thereon for the purpose of exploring for, developing, or
producing resources therefrom.” 47 OCSLA supersedes the normal choice-of-law rules that
the forum would apply, requiring courts to apply the “civil and criminal laws of [the]
adjacent state.” 48 The LUCIUS is anchored to the seabed off the coast of Louisiana, and as
a result Louisiana is the “adjacent state.” 49
Courts look to the three-part test formulated by the United States Supreme Court
in Rodrigue v. Aetna Cas. & Surety Co. 50 to determine whether OCSLA requires
application of the adjacent state’s law in the present matter. This test requires, “(1) The
controversy must arise on a situs covered by OCSLA (i.e. the subsoil seabed, or artificial
structure permanently or temporarily attached thereto). (2) Federal maritime law must
not apply of its own force. (3) The state law must not be inconsistent with federal law.” 51
When a case involves a contractual indemnity provision, the Fifth Circuit holds:
[A] contractual indemnity claim (or any other contractual dispute) arises on
an OCSLA situs if a majority of the performance called for under the
contract is to be performed on stationary platforms or other OCSLA situses
enumerated in 43 U.S.C. § 1333(a)(2)(A). It is immaterial whether the
underlying incident that triggers the indemnity obligation occurs on
navigable waters or on a platform or other OCSLA situs. 52

R. Doc. 77-1 at 5.
43 U.S.C. § 13:33(A)(1).
48 43 U.S.C. § 1333(a)(2)(A). See Snyder Oil Corp. v. Samedan Oil Corp., 208 F.3d 521, 522-23 (5th Cir.
2000).
49 R. Doc. 75-2 at ¶ 2. R. Doc. 89-1 at ¶ 2.
50 395 U.S. 352 (1969). See also Union Texas Petroleum Corp. v. PLT Engineering, Inc., 895 F.2d 1043,
1047 (5th Cir. 1990).
51 Rodrigue, 395 U.S. at 359.
52 Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 787 (5th Cir. 2009).
46
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First, the parties do not dispute that the LUCIUS is a production platform
anchored to the subsoil seabed off Louisiana’s Gulf coast. 53 It is also undisputed that the
MSCs between the parties specifically provided for electrical and construction services in
support of the Lucius Amine project aboard the LUCIUS. Accordingly, the Court finds the
controversy arose on an OCSLA situs.
As to the second prong, no party has argued that general maritime law should
govern either the Plaintiff’s tort claims or the parties’ contractual dispute. Indeed, WIndustries’ opposition implicitly concedes that state law applies. 54
Third, the Court must determine whether the state law that would apply by virtue
of OCSLA is inconsistent with federal law. The Fifth Circuit holds that the LOIA does not
conflict with federal law. 55
Accordingly, having found that the three prongs of the Rodrique test have been
met, the Court concludes that OCSLA applies in this case.
Notwithstanding OCSLA, the Court must consider whether the choice-of-law
provision in the contract overrides any other legal basis for determining the applicable
law. 56 Both federal and Louisiana state courts routinely disregard choice-of-law
provisions in master service contracts when OCSLA requires the application of adjacent
law. 57 In Matte v. Zapata Offshore Co., for example, the Fifth Circuit addressed whether
a choice-of-law provision that selected general maritime law trumped the application of

53 R. Doc. 77-1 at 5-6. In analogous cases, the Fifth Circuit found that spars similar to LUCIUS were fixed
platforms, rather than vessels, and thus subject to OCSLA. See Mendez v. Anadarko Petroleum Corp., 466
Fed. App’x 316, 318-19 (5th Cir. 2012); Fields v. Pool Offshore, Inc., 182 F.3d 353, 359 (5th Cir. 1999).
54 R. Doc. 89.
55 See Matte v. Zapata Offshore Co., 784 F.2d 628, 630 (5th Cir.1986).
56 See Duet v. Falgout Offshore, LLC, 757 F. Supp. 2d 598 (E.D. La. 2010).
57 Roberts v. Energy Dev. Corp., 235 F.3d 935, 943 (5th Cir. 2000); Matte v. Zapata Offshore Co., 784 F.2d
628 (5th Cir. 1986); Silverman v. Mike Rogers Drilling Co., Inc., 34 So.3d 1099, 1104 (La. App. 2 Cir.
4/14/10).

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OCSLA. 58 The court held that the choice-of-law provision “violates the public policy of
both Louisiana and the United States,” and voided the provision. 59 In this case, the Court
similarly finds that the choice-of-law provisions in the MSCs are void because they
conflict with the application of OCSLA and the LOIA. Accordingly, the Court shall
disregard the choice-of-law provision in the parties’ MSCs and apply Louisiana law
pursuant to OCSLA.
II.

Indemnity
The LOIA was enacted after an express legislative finding “that an inequity is

foisted upon certain contractors and their employees by the defense or indemnity
provisos . . . contained in some agreements pertaining to wells for oil, gas or water.” 60 As
a result, the LOIA “declare[s] null and void and against public policy . . . any provision in
any agreement which requires defense and/or indemnification, for death or bodily injury
to persons, where there is negligence or fault (strict liability) on the part of the indemnitee
. . . .” 61 To determine if the provisions of the LOIA apply to a given contract, the Fifth
Circuit has fashioned a two-part inquiry:
First, there must be an agreement that “pertains to” an oil, gas or water well.
If the contract does not pertain to a well, the inquiry ends. Only if we
determine that the contract has the required nexus to a well may we proceed
to the second step of the process, examination of the contract's involvement
with “operations related to the exploration, development, production, or
transportation of oil, gas, or water” . . . Therefore, if (but only if) the
agreement (1) pertains to a well and (2) is related to exploration,
development, production, or transportation of oil, gas, or water, will the Act
invalidate any indemnity provision contained in or collateral to that
agreement. 62

784 F.2d 628 (5th Cir. 1986).
Id. at 631-32.
60 LA. REV. STAT. 9:2780.
61 LA. REV. STAT. § 9:2780(A).
62 Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 991 (5th Cir. 1992); Fontenot v. Chevron
U.S.A. Inc., 95-1425 (La. 7/02/96); 676 So. 2d 557, 564.
58
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Whether the LOIA applies should be considered in relation to the nature of the contract,
rather than the task or activity that led to the incident. 63 As a result, the activities giving
rise to the claim need not have been rendered at the offshore site or in connection with
the drilling or operation of a particular site in order to fall within the bounds of the LOIA. 64
At the first step of the inquiry, W-Industries’ MSC provides W-Industries will
supply “onshore and Offshore Amine Upgrade Support” for the Lucius Amine project.65
As a result, the agreement clearly “pertains to” an oil, gas, or water well. Second, as noted
above, the Amine Project involved the installation of equipment related to the production
of natural gas from the wells connected to the LUCIUS. Therefore, the Court finds that
the MSC “is related to” the exploration, development and production of oil and gas.
Similarly, Dolphin’s MSC establishes that Dolphin Services was hired to provide
the “supply of materials, labor, equipment, and third party services for onshore and
offshore fabrication, installation, and maintenance of new and existing company
facilities.” 66 As the work performed aboard the LUCIUS was related to the installation of
equipment connected to the production of natural gas of nearby wells, the MSC “pertains
to a well” and is “related to exploration, development, production, or transportation” of
natural gas.
For these reasons, the Court concludes the LOIA applies to the MSCs in this case,
and the indemnity provisions contained therein are invalid.

63 Grand Isle Shipyard v. Gray Insurance Co., 589 F.3d 778 (5th Cir. 2009); Hodgen v. Forest Oil Corp.,
115 F.3d 358 (5th Cir. 1997).
64 See Grand Isle Shipyard at 787 (5th Cir. 2009).
65 R. Doc. 75-5 at 1 (Master Service Contract Exhibit “A,” Work Order).
66 R. Doc. 77-4 at 1 ¶1.

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III.

Insurance
As discussed above, W-Industries’ and Dolphin’s MSCs provide that “each Party

shall carry and maintain for the benefit of the other Party, the following minimum
insurance coverage with policy territory sufficient to cover the Work hereunder. 67
Anadarko contends that these provisions are invalid under the LOIA, and that, as a result,
it is entitled to summary judgment on the Crossclaim Plaintiffs’ demands for insurance. 68
The LOIA prohibits contracting parties from using insurance agreements to
circumvent the law’s anti-indemnity provisions:
G. Any provision in any agreement arising out of the operations, services, or
activities listed in Subsection C of this Section of the Louisiana Revises
Statutes of 1950 which requires waivers of subrogation, additional named
insured endorsements, or any other form of insurance protection which
would frustrate or circumvent the prohibitions of this Section, shall be null
and void and of no force and effect. 69
Consistent with the express language of Subsection G, courts generally hold that
contractual provisions requiring the contractor to extend its insurance coverage to cover
the principal’s acts of negligence or fault are void under the LOIA because these insurance
arrangements frustrate the purpose of the Act. 70 “Subsection G expressly invalidates
agreements requiring ‘additional named insured endorsements or any other form of
insurance protection which would frustrate or circumvent the prohibitions of this
section.’” 71
Considering Anadarko’s arguments, the case law, and the summary judgment
record, the Court concludes that the additional insured provisions in the MSCs are null

R. Doc. 75-4 at 9 ¶ a. R. Doc. 774 at 2 ¶ 12.
R. Doc. 75-1 at 9-10. R. Doc. 77 at 9-11.
69 LA. REV. STAT. 9:2780(G).
70 See, e.g., Rogers v. Samedan Oil Corp., 308 F.3d 477, 480 (5th Cir. 2002); Roberts v. Energy Dev. Corp,
235 F.3d 935 (5th Cir. 2000).
71 Babineaux v. McBroom Rig Bldg., 806 F.2d 1282, 1284 (5th Cir. 1987).
67

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and void. Anadarko is entitled to summary judgment on W-Industries’ and Dolphin’s
crossclaim for insurance.
IV.

Meloy Exception Does Not Apply
As a final matter, the Court will address W-Industries’ assertion that summary

judgment on this issue is premature. In its opposition to Anadarko’s motion, 72 WIndustries does not argue the merits of the motion, but instead contends that granting the
motion for summary judgment would be premature based on the Louisiana Supreme
Court’s ruling in Meloy v. Conoco. 73 In that case, the Louisiana Supreme Court established
an exception to the LOIA anti-indemnity rule that allows for the payment of defense costs
when a potentially indemnified party is free from fault and the agreement provides for
such an award. 74 W-Industries argues that, as a it may be entitled to recover attorneys’
fees and costs from Anadarko if the plaintiff fails to prove fault by W-Industries, the
motion for summary judgment is premature. 75
In a supplemental memorandum in support of its motion for summary judgment,
Anadarko argues that W-Industries misconstrues Meloy.76 While the Supreme Court in
Meloy did in fact recognize an exception for the payment of defense costs by parties who
were not at fault, Anadarko notes the Supreme Court further held “a cause of action for
indemnification for cost of defense does not arise until the lawsuit is concluded and
defense costs are paid.” 77 Anadarko contends Meloy actually supports the merits of
Anadarko’s motion, as the Supreme Court concluded in that case, “La. R.S. 9:2780

R. Doc. 89.
Meloy v. Conoco, 86-1466 (La. 4/16/1987), 504 So. 2d 833.
74 Id. at 839.
75 R. Doc. 89 at 1-2.
76 R. Doc. 87.
77 Meloy, 504 So. at 839.
72
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nullifies completely any provision in any agreement that requires defense and/or
indemnification where there is any negligence or fault on the part of the indemnitee.” 78
In this case, the Court agrees with Anadarko that “the potential existence of a
Meloy claim does not prohibit the granting of this motion for summary judgment as WIndustries cannot assert a claim that it does not [yet] have.” 79 As other courts in this circuit
have noted, the Meloy exception only entitles an indemnitee to recover its costs after a
trial on the merits. 80 As no trial on the merits has occurred, W-Industries Meloy claim is
premature, and presents no obstacle to granting the present motion for summary
judgment. In the event that W-Industries is ultimately found free from fault, its Meloy
claim may be reurged.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Defendant Anadarko’s motion for summary judgment
regarding the crossclaim by W-Industries of Louisiana, LLC 81 is GRANTED. Anadarko
is entitled to judgment as a matter of law in its favor on W-Industries’ crossclaim.
IT IS FURTHER ORDERED that Defendant Anadarko’s motion for summary
judgment regarding the crossclaim by Dolphin Services, LLC 82 is GRANTED. Defendant
Anadarko is entitled to judgment as a matter of law in its favor on Dolphin’s crossclaim.
New Orleans, Louisiana, this 20th day of June, 2018.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Meloy, 504 So. at 838.
R. Doc. 87 at 3.
80 See, e.g., Gautreaux v. Tetra Applied Technologies, LLC, 2010 WL 1930925 (E.D. La. May 10, 2010).
81 R. Doc. 75.
82 R. Doc. 77.
78
79

14