Fitch v. Entergy Corporation et al

Filing 44

ORDER AND REASONS: ORDERED that ELL's 41 Motion for Leave to File its first Amended Third Party Demand is hereby GRANTED as unopposed, and Hartford's 34 Motion to Dismiss ELL's original third party demand is DENIED as moot. Signed by Judge Martin L.C. Feldman on 12/5/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PRATHER FITCH

CIVIL ACTION

v.

NO. 17-1548

ENTERGY CORPORATION, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court are two motions: (1) Hartford Fire Insurance
Company’s motion to dismiss third party demand; and (2) Entergy
Louisiana, LLC’s motion for leave to file first amended third party
demand.

For the reasons that follow, Entergy Louisiana, LLC’s

motion for leave to amend is GRANTED, and Hartford Fire Insurance
Company’s motion to dismiss is DENIED as moot.
Background
This is a personal injury case arising out of a one-vehicle
accident.
Around 7:00 p.m. on September 13, 2016, Prather Fitch was
riding as a passenger in a 2001 Chevy Tahoe driven by Larry Malley.
They were traveling northbound along Louisiana Highway 23 in
Plaquemines Parish near the intersection with Wallace Lane when a
stray electrical wire hanging low or laying across the highway
became tangled up in the trailer of the Tahoe, causing it to turn
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around and jackknife on the highway.

To recover for unspecified

injuries he alleges he sustained as a result, Fitch sued Larry
Malley,

Viking

Insurance

Company,

Entergy

Corporation,

and

Telecommunications Management LLC d/b/a New Wave Communications.
In

an

amended

complaint,

Fitch

substituted

Entergy

Louisiana

L.L.C. for Entergy Corporation. Entergy L.L.C. (ELL) filed a cross
claim against New Wave and a third party complaint against Hartford
Fire Insurance Company, which is New Wave’s liability insurer.
Fitch

then

defendant.

added

Hartford

Fire

Insurance

Corporation

as

a

Hartford now moves to dismiss ELL’s third party demand

and, in response to the argument raised in the motion to dismiss,
ELL moves to amend its third party demand.
I.
In its original third party demand against Hartford, ELL
alleges

that

it

was

Hartford’s

insured’s

(New

Wave’s)

cable

communication lines that were installed on Entergy’s poles, that
the lines were installed in violation of the National Electric
Safety Code and other regulations, and that New Wave failed to
install or maintain its lines at the proper height in the area
where the Tahoe was traveling on September 13, 2016.

ELL further

alleges at paragraphs 27 and 28:
[Hartford], as the insurer of Defendant New Wave, had in
effect
a
policy/policies
of
insurance
that
was
applicable to the accident described hereinabove. This
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policy was in full force and effect at the time of this
accident.
In the event ELL is cast in judgment in favor of the
plaintiff on his main demand, then Third-Party Defendant
Hartford must be condemned in judgment in favor of ELL
for complete indemnity for all amounts for which ELL
might be case in judgment on the main demand of
plaintiff, including interest, attorneys’ fees, and for
reimbursement of all costs incurred by ELL, to
investigate the facts surrounding the electrical
contact; for all costs of these proceedings; and for any
penalties found due and owing under law for failing to
provide ELL a defense against the claims of the
plaintiff.
Hartford moves to dismiss ELL’s third party demand on the ground
that a contractual indemnitee such as ELL lacks the procedural
right to assert their contractual defense and indemnification
claims

directly

against

the

alleged

indemnitor’s

liability

insurer; the indemnitee may only assert those claims against the
alleged indemnitor (here, New Wave).

In other words, insofar as

ELL has sued Hartford as the insurer of New Wave, rather than
asserting itself as an insured of Hartford, ELL’s third party
demand must be dismissed.

Notably, ELL does not quarrel with the

legal grounds advanced by Hartford in support of its motion to
dismiss.

Instead, in response to Hartford’s motion to dismiss its

third party demand, ELL moves to amend its third party demand “to
clarify that upon information and belief it is an additional
insured

of

Hartford.”

In

its

proposed

amended

complaint, among other allegations, ELL adds:
3

third

party

Upon
information
and
belief,
at
all
times
pertinent, Crossclaim Defendant New Wave complied with
The Agreement, Article 19, subpart (f), by naming Third
Party Plaintiff ELL as an additional insured in the
insurance policy/policies New Wave maintained through
Third Party Defendant Hartford.
Upon information and belief,...Hartford provided a
policy/policies of insurance that was in full force and
effect on the day the accident at issue in this matter
occurred. And, said policy/policies provided coverage
for the type of loss sued upon herein, and therefore
Third Party Defendant Hartford is liable to Third Party
Plaintiff ELL as an additional insured.
Hartford does not oppose ELL’s motion to amend its third party
demand

insofar

as

ELL

now

alleges

additional insured of Hartford.

that

it

qualifies

as

an

However, Hartford argues that,

insofar as ELL’s amended third party demand can be read to reallege the objectionable contractual indemnity theory of recovery,
any such claim “remain[s] due to be dismissed.”

For its part, ELL

argues that Hartford does not oppose its request to amend its third
party

demand

and

underscores

that

ELL’s

proposed

amendment

“resolve[s] the issues presented in Hartford’s motion to dismiss.” 1
Where, as here, neither side opposes the other’s motion, there
is no dispute for the Court to resolve.

To be sure, once a court

grants leave to amend a pleading, a motion to dismiss directed
toward the original pleading is moot.

Accordingly, IT IS ORDERED:

ELL submits that its “status as an additional insured forms the
basis for this [amended] Third Party Demand.”
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1

that ELL’s motion for leave to file its first amended third party
demand is hereby GRANTED as unopposed, and Hartford’s motion to
dismiss ELL’s original third party demand is DENIED as moot.
New Orleans, Louisiana, December __, 2017
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_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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