Louisiana United Businesses Association Casualty Insurance Co v. J & J Maintenance Inc et al

Filing 178

MEMORANDUM RULING re 151 MOTION for Summary Judgment on the Cross Claim of J & J Maintenance Inc filed by Migues Deloach Co L L C, 155 MOTION for Summary Judgment filed by J & J Maintenance Inc. Signed by Chief Judge S Maurice Hicks, Jr on 7/11/2018. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
LOUISIANA UNITED BUSINESS
ASSOCIATION CASUALTY
INSURANCE CO.

CIVIL ACTION NO. 15-1769

VERSUS

JUDGE S. MAURICE HICKS, JR.

J&J MAINTENANCE, INC., ET AL.

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before the Court are two motions: (1) Migues Deloach Company, LLC’s
(“Deloach”) “Motion for Summary Judgment” (Record Document 151) and (2) J&J
Maintenance, Inc.’s (“J&J”) “Motion for Partial Summary Judgment” (Record Document
155), each seeking a determination of whether Deloach is liable to J&J for attorney’s fees
and costs incurred by J&J in defense of the underlying claims against it in this matter, as
well as attorney’s fees and costs incurred in pursuit of reimbursement of those fees
against Deloach. For the reasons contained herein, Deloach’s motion is DENIED and
J&J’s motion is GRANTED IN PART and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of an accident which occurred on January 24, 2012, wherein
Jonathan West (“West”), an employee of Deloach, was electrocuted while transporting
construction materials at a remodeling project at a dental clinic in Fort Polk. See Record
Document 31-4. On the day of the accident, West was working with his supervisor, Mark
Hale (“Hale”), installing metal finish work on the soffit of the clinic. See Record Document
155-4 at 41. Although instructed not to do so, West used a manlift, boomed it away from
the building, and caught the power line. See Record Document 157-3 at 41.

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J&J was the general contractor of the remodeling project, and Deloach, West’s
employer, was operating pursuant to a Subcontract Agreement (the “Subcontract”) under
which Deloach was due to supply the earthwork foundation, steel supports, and other
items for the project. See Record Document 137-1. The Subcontract contained the
following provisions, in pertinent part:
10.(a) To the fullest extent permitted by law, subcontractor (Deloach) shall
unconditionally indemnify, defend (with counsel selected by contractor
(J&J)) and hold harmless owner, contractor, architect and/or engineer and
their subconsultants and all of their affiliates, parents, subsidiaries, officers,
directors, employees, successors and assigns (all of which are hereinafter
collectively referred to as “indemnitites”), from and against all claims,
damages, losses, costs and expenses, including but not limited to attorneys’
fees and expenses of dispute resolution (collectively, “indemnified claims”)
arising out of or resulting from the performance of subcontractor’s work, acts
or omissions of subcontractor, negligence, breach of contract and/or breach
of warranty by subcontractor, even though such damages are caused in
part by the negligence (whether sole, joint or concurrent), strict liability or
other legal fault of the contractor of any other indemnitee …
Nothwithstanding the foregoing, the indemnification obligation shall be
limited to the extent that the subcontractor’s indemnification of the
indemnitee for the indemnitee’s own negligence is specifically prohibited by
applicable laws for a particular type of project.
20.
In the event Contractor (J&J) employs an attorney to enforce any of
the provisions hereof, or to protect its interest in any matter arising under
this Agreement, or to collect damages for breach of this Agreement, or to
prosecute or defend any suit resulting from this Agreement, or to recover
on the surety bond given by Subcontractor under this Agreement,
Subcontractor (Deloach) and his surety, jointly and severally, agree to pay
Contractor all costs, charges, expenses and attorneys’ fees expended or
incurred therein …
Id.
Following the accident, Louisiana United Business Association Casualty Insurance
Company (“LUBACI”) paid workers’ compensation death benefits to West’s heirs.
LUBACI then filed suit to recoup those benefits, asserting it was entitled to reimbursement
because the accident was caused by the negligence of several defendants, including J&J,
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Entergy Louisiana, LLC (“Entergy”), and Volvo Construction Equipment Rents, Inc.
(“Volvo”). See Record Document 31-4.
On December 26, 2012, J&J filed its first Third-Party Demand against Deloach
alleging that J&J and Deloach entered into a subcontract to perform several aspects of
the remodeling project. See Record Document 151-1. J&J alleged under the Subcontract
that Deloach agreed to defend and indemnify J&J against any damages arising out of the
performance of Deloach’s work. See id. Deloach filed an Exception of Prematurity
regarding these defense and indemnity claims, which was sustained by the 30th Judicial
District Court, Vernon Parish, on September 3, 2013. See Record Document 137.
Additionally, J&J was named as a cross-defendant on a related claim in Entergy’s crossclaim filed on March 26, 2013. See Record Document 151-2. Subsequent to this crossclaim, J&J filed a First Supplemental and Amending Third-Party Demand against
Deloach, asserting that Deloach was liable for defense and indemnification against
Entergy’s claims as well. See Record Document 151-3.
After J&J filed an Exception of No Right of Action asserting Louisiana’s workers’
compensation immunity under La. R.S. 23:1032 (“LWCA immunity”), the claims presented
by LUBACI against J&J were dismissed in a Consent Judgment signed on February 24,
2014. See Record Document 155-6. On May 27, 2015, this case was removed to this
Court pursuant to 28 U.S.C. § 1331. See Record Document 1. On May 19, 2017, J&J
filed its Cross-Claim and Renewed Third-Party Demand against Deloach. See Record
Document 137. Entergy’s Cross-Claim against J&J was dismissed via a settlement

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agreement procured by Deloach on November 13, 2017. 1 Thus, the only remaining claim
at issue in this matter is J&J’s claims against Deloach for the costs of defense, including
attorneys’ fees incurred in defending against claims brought by LUBACI and Entergy, as
well as attorneys’ fees and costs incurred in prosecuting this claim against Deloach.
On December 19, 2017, Deloach filed its Motion for Summary Judgment on J&J’s
cross-claims. See Record Document 151. J&J filed its opposition on December 29, 2017,
to which Deloach replied on January 5, 2017. See Record Documents 157 and 158. The
Court allowed J&J to file a sur-reply, which it did so on January 17, 2018. See Record
Document 164. In addition to its opposition, J&J filed its own Motion for Partial Summary
Judgment on December 29, 2017. See Record Document 155. Deloach opposed the
motion on January 12, 2018, and J&J replied on January 18, 2018. See Record Document
160 and 161. Deloach also filed a sur-reply on January 22, 2018. See Record Document
169. The issues have been briefed extensively by the parties; therefore, the matter is ripe
for decision.
LAW AND ANALYSIS
I.

Summary Judgment Standard
Rule 56 of the F.R.C.P. governs summary judgment. This rule provides that the

court “shall grant summary judgment 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.” F.R.C.P.
56(a). Also, “a party asserting that a fact cannot be or is genuinely disputed must support
the motion by citing to particular parts of materials in the record, including ... affidavits ...

1

Entergy released its claims in exchange for payment issued by LUBACI, the workers’ compensation
insurer of Deloach. Deloach submits that the terms of the settlement agreement are confidential. See
Record Document 160 at 7.

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or showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
F.R.C.P. 56(c)(1)(A) and (B). “If a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may ... grant summary judgment.” F.R.C.P. 56(e)(3).
In a summary judgment motion, “a party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings ... [and] affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (internal quotations and citations
omitted). If the movant meets this initial burden, then the non-movant has the burden of
going beyond the pleadings and designating specific facts that prove that a genuine issue
of material fact exists. See Celotex, 477 U.S. at 325, 106 S. Ct. at 2554; see Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot
meet the burden of proving that a genuine issue of material fact exists by providing only
“some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075.
Additionally, in deciding a summary judgment motion, courts “resolve factual
controversies in favor of the nonmoving party, but only when there is an actual
controversy, that is when both parties have submitted evidence of contradictory facts.” Id.
Courts “do not, however, in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” Id.

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II.

Analysis
A.

Timeliness

Deloach argues J&J’s motion for partial summary judgment is untimely; therefore,
the Court should dismiss it. See Record Document 160 at 4. Conversely, J&J argues its
motion is a motion for “partial summary judgment” and is beyond the scope of the
dispositive motion deadline as set forth in the Court’s Scheduling Order. See Record
Document 161. J&J’s argument is incorrect. First, a “dispositive motion” includes a motion
that, if granted, would result in the determination of a particular claim on the merits. See
Tripoli Rocketry Ass’n, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 698
F.Supp.2d 168, 173 (D.D.C. 2010). J&J’s labeling of its motion as one for “partial
summary judgment” does not defeat what the motion seeks – a determination of whether
Deloach is liable for the costs of defense, including attorneys’ fees incurred in defending
against claims of LUBACI and Entergy, as well as attorneys’ fees and costs incurred in
J&J’s prosecution of this claim against Deloach. Additionally, courts have traditionally
treated motions for “partial summary judgment” as dispositive motions. See Geiserman
v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990); Arnold v. Nat'l Cas. Co., 2014 WL
50832, *2 (W.D. La. 2014); S. Filter Media, LLC v. Halter, 2014 WL 4278788, *4 (M.D.
La. 2014); Pratt Paper (LA), LLC v. JLM Advanced Tech. Servs., Inc., 2016 WL 5854235,
*2 (W.D. La. 2016); Hinton v. Pike Cty., 2017 WL 2378361, *2 (S.D. Miss. 2017).
Accordingly, J&J’s “motion for partial summary judgment” is considered a dispositive
motion.
Per the Court’s Scheduling Order, all dispositive motions were due ninety (90) days
before trial. See Record Document 136 at 1. With a trial date of March 19, 2018, this

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made all dispositive motions due on December 19, 2017. See Record Document 135.
J&J filed its Motion for Partial Summary Judgment on December 29, 2017, ten (10) days
after the deadline. See Record Document 155. Therefore, J&J’s motion is considered
untimely. However, under the circumstances in the instant matter, the Court does not
believe dismissal would be proper. J&J’s motion seeks a ruling on the same legal question
posed in Deloach’s motion – whether Deloach is liable for the costs of defense incurred
in defending and prosecuting claims arising from the subcontract – and there are no facts
in dispute between the parties. While J&J’s motion was filed late, the Court finds that
considering the motion will not unduly prejudice Deloach and will allow the Court to render
judgment on a purely legal question without requiring this issue to go to trial. See Pratt
Paper (LA), LLC v. JLM Advanced Tech. Servs., Inc., 2016 WL 5854235, *2 (W.D. La.
2016) (“The decision to permit an untimely motion is ultimately at the judge's discretion.)
(citing S&W Enters., L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 536-37 (5th Cir.
2003)). Therefore, the Court will consider J&J’s Motion for Partial Summary Judgment
despite its untimely filing. 2
B. Interpretation of the Subcontract’s Indemnity Provision
In its motion for summary judgment, Deloach argues that the Subcontract limits
reimbursement of defense costs to situations of negligence or breach committed only by
Deloach. See Record Document 151-6 at 6-7. Conversely, J&J asserts Deloach’s
indemnification obligations are triggered not just by its own negligence, but also by any
claims “arising out of or resulting from the performance of [Deloach’s] work.” Record
Document 157 at 4. In its Reply, Deloach argues that J&J has not shown the “connexity”

2

Counsel for J&J is cautioned that, in the future, they should move for an extension of the dispositive motion
deadline prior to the expiration of the deadline.

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between the accident and the work to trigger the indemnity provision. 3 See Record
Document 158 at 3-6.
Under Louisiana law, the language in an indemnity agreement dictates the
obligations of the parties. See Bollinger Marine Fabricators, LLC v. Marine Travelift, Inc.,
2015 WL 1638115, *4 (E.D. La. 2015), citing Kinsinger v. Taco Tico, Inc., 861 So.2d 669,
671 (La. App. 5 Cir. 2003). “[I]ndemnity provisions are construed in accordance with
general rules governing contract interpretation. When the terms of a contract are
unambiguous and lead to no absurd consequences, [courts] interpret them as a matter of
law.” Id., quoting Liberty Mut. Ins. Co. v. Pine Bluff Sand & Gravel Co., 89 F.3d 243, 246
(5th Cir. 1996) (internal citations omitted). While a contract of indemnity whereby an
indemnitee is indemnified against the consequences of its own negligence is strictly
construed, such contracts are nevertheless enforceable. See Berry v. Orleans Par. Sch.
Bd., 2001-3283 (La. 6/21/02), 830 So. 2d 283, 286.
The pertinent provision provides as follows:
10.(a) To the fullest extent permitted by law, subcontractor (Deloach) shall
unconditionally indemnify, defend (with counsel selected by contractor
(J&J) and hold harmless owner, contractor, architect and/or engineer and
their subconsultants and all of their affiliates, parents, subsidiaries, officers,
directors, employees, successors and assigns (all of which are hereinafter
collectively referred to as “indemnitites”), from and against all claims,
damages, losses, costs and expenses, including but not limited to attorneys’
fees and expenses of dispute resolution (collectively, “indemnified claims”)
arising out of or resulting from the performance of subcontractor’s work, acts
or omissions of subcontractor, negligence, breach of contract and/or breach
of warranty by subcontractor, even though such damages are caused in
part by the negligence (whether sole, joint or concurrent), strict liability or
other legal fault of the contractor of any other indemnitee….
Record Document 137-1 (emphasis added).
3

This same argument is presented in Deloach’s opposition to J&J’s motion for summary judgment. See
Record Document 160 at 8-11.

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Under this provision, Deloach agreed to unconditionally defend and indemnify and
hold J&J harmless from any and all claims “arising out of or resulting from the
performance of (Deloach’s) work” even though “such damages are caused by the
negligence … of (J&J).” Id. The unambiguous language of the contract provides that
Deloach’s indemnification obligation is triggered not just by its own acts of negligence,
but also by any claims “arising out of out or resulting from the performance of (Deloach’s)
work.” 4 Therefore, the indemnity provision will be triggered unless Deloach can show that
the underlying accident did not “arise out of” or “result from” Deloach’s “work.”
The Louisiana Supreme Court has held such “arising out of” language requires “a
connexity similar to that required for determining cause-in-fact: Would the particular injury
have occurred but for the performance of work under the contract?” Perkins v. Rubicon,
Inc., 563 So.2d 258, 259 (La. 1990); see also Berry v. Orleans Par. Sch. Bd., 2001-3283
(La. 6/21/02), 830 So.2d 283, 287. Deloach argues the evidence shows there was no
such connexity; however, it is clear that the underlying accident, West’s electrocution,
arose out of Deloach’s work under the Subcontract.
According to the “Accident Report,” West was “working” with his supervisor, Hale,
installing metal finish work on the soffit of the dental clinic when he was electrocuted while
operating a manlift. See Record Document 155-4 at 41. Although West was instructed to

4

Deloach’s cited case, Ponder v. SDT Waste & Debris Services, LLC, 2015-1656 (La. App. 1 Cir. 8/16/17)
2017 WL 3498159, is inapplicable to the instant matter. The indemnity provision in Ponder made no
reference to indemnification for an indemnitee’s own negligence, unlike the instant case. See id. at *1. The
court expressly stated, “A contract of indemnity will not be construed to indemnify the indemnitee against
losses resulting from his own negligence unless such an intention is expressed in unequivocal terms.” Id.
at *3, citing Berry v. Orleans Parish School Board, 2001–3283 (La. 6/21/02), 830 So.2d 283, 285; Barnett
v. American Construction Hoist, Inc., 2011–1261 (La. App. 1st Cir. 2/10/12), 91 So.3d 345, 349; Arnold v.
Stupp Corporation, 205 So.2d 797, 799 (La. App. 1st Cir. 1967), writ not considered, 251 La. 936, 207
So.2d 540 (1968). Such an intention was expressed in unequivocal terms in the Subcontract, therefore, the
Court will not analyze Ponder any further.

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go to the ground and remove the plastic covering some trim, his work involved “installing
metal finish work.” See id. When West was electrocuted, he was transporting pieces of
metal trim, via the manlift, to be installed. Therefore, the Court finds the required connexity
between West’s death and Deloach’s work, i.e., installing metal finish work. But for
Deloach’s performance of work under the contract (installing soffit panels), West’s death
would not have occurred. The Court’s conclusion that such connexity exists is
strengthened by the fact that when West was electrocuted on the lift, “several pieces of
metal trim [were] lying across the bucket guard rails.” Id.
Deloach argues that West’s accident had no connexity to Deloach’s work, since
the work “required the workers to carry by hand soffit panels up a scaffold,” and West
“was never instructed to use the lift.” Record Document 158 at 5. However, Deloach’s
argument as to how West was attempting to perform part of Deloach’s work, i.e., the use
of a manlift as opposed to carrying up soffit panels up a ladder, does not change the fact
that he was doing Deloach’s work. Additionally, Deloach fails to cite any legal authority to
support its position. Deloach’s citation to Spencer v. Chevron Corporation, 216-0174 (La.
App. 4 Cir. 9/28/16), 202 So.3d 1055, 1056, is misguided. In that case, employees of a
subcontractor were injured while sleeping near the work site rather than while they were
actually performing the subcontractor’s work. See id. Accordingly, Spencer is inapplicable
to the facts of the instant matter.
The Subcontract expressly provides that Deloach’s indemnification obligations is
triggered not just by its own negligence, but also by any claims “arising out of or resulting
from the performance of [Deloach’s] work.” The Court finds sufficient connexity between
West’s accident and Deloach’s work. Therefore, the indemnity provision is triggered and

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J&J would be entitled to entitled to indemnity from Deloach for J&J’s costs of defense and
expenses if the Court need not adjudicate fault on behalf of J&J, discussed infra.
C. Adjudication of J&J’s Fault
The main issue in this matter is whether a determination of fault on the part of J&J5
is required before the Subcontract’s indemnity provision becomes enforceable. Deloach
argues without such a determination, J&J cannot gain reimbursement. See Record
Document 160 at 4. Pertaining to J&J’s fault regarding LUBACI’s negligence claims, J&J
argues it is not premature for the Court to make such a finding, pointing out the state court
has dismissed, via consent judgment, LUBACI's claims against J&J as barred by LWCA
immunity, and such immunity “extinguishes any factually possible cause of action and,
therefore, forecloses any possible finding of negligence” against J&J. Record Document
155-1 at 15. Thus, J&J argues this Court has not, and will not, reach the issue of its own
negligence and, therefore, J&J's claims for indemnity against Deloach are not invalidated
by La. R.S. 9:2780.1. As for J&J’s fault as it relates to Entergy’s claim, J&J suggests the
Court’s denial of Entergy’s motion for summary judgment “reveals that, as a matter of law,
J&J was not ‘negligent’ or at fault.” Id. Deloach takes the position that because J&J has
not been found to be free from fault or negligence regarding either LUBACI or Entergy’s
claims, as required by La. R.S. 9:2780.1, it would be premature for the Court to enforce
the indemnity provision of the subcontract. See Record Document 160 at 4.
The indemnity provision of the Subcontract, in accord with La. R.S. 9:2780.1, 6
provides:

5 J&J defended two claims in this matter: (1) a negligence claim asserted by LUBACI and (2) a cross-claim
asserted by Entergy for J&J’s alleged violation of the Overhead Powerline Safety Act (“OPLSA”), La. R.S.
45:141, et. seq.
6 The pertinent provision of La. R.S. 9:2780.1 states:

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10.(a) … Nothwithstanding the foregoing, the indemnification obligation
shall be limited to the extent that the subcontractor’s indemnification of the
indemnitee for the indemnitee’s own negligence is specifically prohibited by
applicable laws for a particular type of project.
Record Document 137-1. Under the statute, any agreement whereby Deloach provided
defense or indemnity against loss or damage resulting from the negligence of J&J is null,
void, and unenforceable. Although courts have not addressed La. R.S. 9:2780.1 as it
pertains to the requirement of the finding of negligence, courts have analyzed an almost
indistinguishable statute, the Louisiana Oilfield Indemnity Act (“LOIA”), La. R.S. 9:2780.7
The Fifth Circuit has interpreted this provision of the LOIA as follows:
After trial on the merits, if the indemnitee is found free from fault, the Act
does not prohibit the indemnitee from recovering its cost of defense.
Whether the injury is found to have resulted in whole or in part from the fault
of the indemnitor does not affect the indemnitee's right to recover its cost of
defense provided it is free from fault.
Meloy v. Conoco, Inc., 817 F.2d 275, 280 (5th Cir.1987) (emphasis added). Since Meloy,
the Fifth Circuit and two of the five Louisiana appellate courts have taken different
positions on the interpretation of the provision of the LOIA (indistinguishable from La. R.S.

B.
Notwithstanding any provision of law to the contrary and except as otherwise
provided in this Section, any provision, clause, covenant, or agreement contained in,
collateral to, or affecting a motor carrier transportation contract or construction contract
which purports to indemnify, defend, or hold harmless, or has the effect of indemnifying,
defending, or holding harmless, the indemnitee from or against any liability for loss or
damage resulting from the negligence or intentional acts or omissions of the indemnitee,
an agent or employee of the indemnitee, or a third party over which the indemnitor has no
control is contrary to the public policy of this state and is null, void, and unenforceable.
7

The relevant provision of the LOIA states as follows:
B.
Any provision contained in, collateral to, or affecting an agreement pertaining to a
well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or
other state, is void and unenforceable to the extent that it purports to or does provide for
defense or indemnity, or either, to the indemnitee against loss or liability for damages
arising out of or resulting from death or bodily injury to persons, which is caused by or
results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or
an agent, employee, or an independent contractor who is directly responsible to the
indemnitee.

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9:2780.1). J&J urges the Court to follow Fifth Circuit jurisprudence, stating Hefren v.
Murphy Expl. & Prod. Co., USA, 34 F.Supp.3d 651, (W.D. La. 2014), aff'd, 647 F.Appx.
301 (5th Cir. 2016), “is almost entirely on point.” Record Document 155-1 at 13.
Conversely, Deloach argues for the Court to adopt the differing Louisiana appellate
decisions and attempts to distinguish Hefren and other federal cases. See Record
Document 160 at 4-7. After a thorough review of the cited cases and the arguments
presented by each party, the Court agrees with J&J and follows the reasoning of Judge
Doherty in Hefren.
In Hefren, the plaintiff filed suit against Murphy Exploration & Production Company,
USA (“Murphy”) and McDermott, Inc. (“McDermott”) for personal injuries under the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”). See Hefren, 647
Fed.Appx. at 303. McDermott moved for summary judgment, arguing that Hefren's claims
against it were barred by a Louisiana statute of peremption that extinguished claims
regarding deficiencies in the design or construction of immovable property brought five
years after the property was accepted by the owner. See id. at 303-04. The district court
granted McDermott's motion for summary judgment and dismissed Hefren's claims
against McDermott with prejudice. See id. at 304. Subsequently, McDermott moved for
partial summary judgment against Murphy seeking indemnification for the costs,
expenses, and attorney's fees it incurred in defending itself from Hefren's suit. See id.
McDermott argued that, because Hefren's claims had been dismissed with prejudice, the
suit had been decided in its favor and it was entitled to indemnification under the terms of
the contract's indemnification provision. See id.

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Before reaching her conclusion, Judge Doherty analyzed the two legal frameworks
instituted by the Fifth Circuit to address the instant issue. See Hefren, 34 F.Supp.3d at
657-60. First, Judge Doherty analyzed the Fifth Circuit decision in Melancon v. Amoco
Prod. Co., 834 F.2d 1238 (5th Cir. 1988), in which the court held that where the
determination of the indemnitee’s negligence was barred by LHWCA immunity, the
indemnitee was entitled to indemnification for the costs of defense without an affirmative
finding of the indemnitee’s freedom of fault. See Hefren, 34 F.Supp.3d at 657. The Fifth
Circuit in Melancon reasoned:
In the case at bar, the Melancons alleged that the negligence and/or legal
fault of the indemnitee, Amoco, caused Mr. Melancon's injuries. However,
the Louisiana Supreme Court has held after certification from this Court that
under the Louisiana Oilfield Indemnity Act “[t]he allegations of the plaintiff's
suit against the indemnitee are irrelevant to the indemnitor's obligation to
pay. Rather it is the terms of the indemnity agreement which govern the
obligations of the parties.” Meloy v. Conoco, Inc., 817 F.2d 275, 280 (5th
Cir.1987). Here there exists no holding that Amoco was negligent or at fault
for Mr. Melancon's injuries. The case never reached the issue of Amoco's
negligence because of the LHWCA's bar. For that reason Amoco is entitled
to indemnity from Beraud for the costs of its defense. Provision 10 of the
Amoco–Beraud contract so provides, and the Louisiana Oilfield Indemnity
Act does not apply absent a finding of negligence or fault against Amoco.
834 F.2d at 1248 (emphasis added).
Next, Judge Doherty addressed the second line of cases, beginning with Tanksley
v. Gulf Oil Corp., 848 F.2d 515 (5th Cir.1988). See Hefren, 34 F.Supp.3d at 657-58. In
Tanksley, the Fifth Circuit held an oil company that settled with the plaintiff was barred by
the LOIA from pursuing the contractor for indemnity because the oil company, by
choosing to settle with the plaintiff, voluntarily foreclosed determination of its negligence
or fault. In so ruling, the Fifth Circuit explained:
The essential difference between the factual scenario in Melancon and that
here presented relates to the legal availability of a determination of the
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negligence or fault of the indemnitee. Once the court decided that Melancon
was an Amoco borrowed employee, the Longshore and Harbor Workers'
Act proscribed any judicial inquiry into Amoco's fault or negligence. Thus,
as a matter of law, there could never be a “trial on the merits” to determine
whether Amoco was “free from fault and thus outside the scope of the
[Louisiana Oilfield Indemnity] Act.” Meloy, 504 So.2d at 839. In that setting,
we concluded that the Oilfield Indemnity Act did not annul the indemnity
provision and that Amoco was entitled to recover its costs of defense of the
tort suit brought by Melancon, and the costs it incurred in pressing its
indemnification demands. 834 F.2d at 1248.
In the case at bar, a trial on the merits to determine Chevron's fault or
negligence was not only legally possible, it was imminent and was
foreclosed only by the compromise settlement with Tanksley. The parties
undoubtedly reached this settlement after a careful weighing of all relevant
factors and risks. For reasons it deemed sufficient, Chevron opted to forego
a trial at which it would either have been found liable or exonerated. The
appeal of the certainty of settlement overrode the contending appeal of the
uncertainty of trial. As a consequence, because of Chevron's choice, there
will be no trial on the merits of Tanksley's claims to determine whether
Chevron was “free from fault and thus outside the scope of the Act.” Absent
such a finding, or a legal bar preventing the finding, as in Melancon, we
must conclude that the Oilfield Indemnity Act nullifies, in this instance, the
indemnity agreement between Chevron and SEE.
Tanksley, 848 F.2d at 517-18 (emphasis added).
Judge Doherty noted the rejection of Tanksley by two of the five Louisiana
appellate courts in Ridings v. Danos & Curole Marine Contractors, Inc., 723 So.2d 979
(La. App. 4 Cir. 1998) and Phillips Petroleum Co. v. Liberty Serv., Inc., 657 So.2d 405
(La. App. 3 Cir. 1995). See Hefren, 34 F.Supp.3d at 658. In Ridings, the Louisiana Fourth
Circuit Court of Appeals challenged Tanksley, stating “[w]hether the indemnitee was
negligent or at fault (strict liability) in causing injury to the original plaintiff can be
determined at trial between the indemnitee and the indemnitor even after the indemnitee
has settled with the original plaintiff.” 723 So.2d at 983 n. 2. Similarly, in Phillips, the
Louisiana Third Circuit Court of Appeals held the LOIA does not prevent “one seeking
indemnification from proving freedom from ‘negligence or fault (strict liability)’ in an action
Page 15 of 22

separate from the original litigation raising that issue.” 657 So.2d at 409. Thus, there is a
distinction between the Fifth Circuit and two Louisiana appellate courts on an issue of
Louisiana law. The Louisiana Supreme Court has yet to address the Tanksley decision,
but in dicta has stated that it finds logic in both the Tanksley conclusion, as well as that in
Ridings and Phillips. See Fontenot v. Chevron USA, Inc., 676 So.2d 557, 563 n. 7 (La.
1996).
Judge Doherty concluded that peremption, like LHWCA immunity, was a legal bar
to reaching the issue of negligence in the claims asserted by plaintiff and granted
McDermott’s motion for partial summary judgment on the issue of attorneys’ fees. See
Hefren, 34 F.Supp.3d at 659-60. The court found that peremption was more akin to the
legal bar in Melancon (LHWCA immunity), and distinguished Ridings and Phillips since
those cases dealt with a settlement of a claim. See id. at 660. Accordingly, the court
granted McDermott’s motion for partial summary judgment on the issue of attorneys’ fees.
On appeal, the Fifth Circuit affirmed. See Hefren, 647 F.Appx. at 306.
Deloach urges the Court to adopt the reasoning of the Louisiana appellate courts,
arguing its duty to defend must be deferred until liability is determined. See Record
Document 160 at 5-6. However, Deloach does not address Judge Doherty’s analysis, nor
that of the Fifth Circuit in its opinion affirming her decision. In fact, Judge Doherty
specifically distinguished Ridings and Phillips – cases that involved settlement of claims
– from cases involving legal bars, as is the case here. See Hefren, 647 F.Supp.3d at 661.
Deloach next argues that Melancon and Hefren are inapposite because this matter
involves the application of LWCA immunity and Louisiana law. See Record Document
160 at 6. However, the immunities provided by the LHWCA and LWCA are virtually the

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same. The LHWCA is a federal workers' compensation scheme designed to provide
exclusive remedies for longshoremen and harbor workers that are injured in the course
of employment. See 33 U.S.C. § 902(2)-(3). The compensation is designed to be paid
regardless of fault, and employers are liable exclusively for compensation under Section
904 of the LHWCA and all other liability for injury is precluded. See 33 U.S.C. §§ 904(a)
and 905(a). The LWCA provides the exclusive remedy for an employee injured by the
negligent acts of his or her co-employees or employer when those injuries arise out of
and in the course of employment. See La. R.S. §§ 23:1031 and 23:1032. Deloach’s
argument is unavailing.
Lastly, Deloach argues J&J’s fault must be determined pursuant to La. Civ. Code
art. 2323. 8 See Record Document 160 at 6. This argument is also unavailing. Deloach’s
position would be more persuasive if LUBACI’s (the original plaintiff) negligence claims
against the other defendants (Entergy and Volvo) were still pending. However, all of
LUBACI’s claims have been dismissed without an adjudication of fault. See Record
Documents 15-4 (J&J); 43 (Volvo); 93 (Entergy). Given the facts of this matter and
following Fifth Circuit jurisprudence, the Court does not find it appropriate to determine
J&J’s fault after the only claims of negligence alleged against it were dismissed because
of a legal bar – LWCA immunity. See Hefren, 34 F. Supp. 3d at 660, n.7 (finding the
dismissal of the only party asserting negligence claims prevented “any possible finding of

8

La. Civ. Code art. 2323 provides, in pertinent part:
A. In any action for damages where a person suffers injury, death, or loss, the degree or
percentage of fault of all persons causing or contributing to the injury, death, or loss shall
be determined, regardless of whether the person is a party to the action or a nonparty, and
regardless of the person's insolvency, ability to pay, immunity by statute, including but not
limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or
reasonably ascertainable.

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negligence against McDermott”). Accordingly, The Court will follow Hefren in its analysis
of J&J’s fault regarding both LUBACI’s negligence claim and Entergy’s cross-claim.
i.

LUBACI’s Negligence Claims Against J&J

Here, LUBACI’s claims never reached the issue of J&J’s negligence because
LUBACI’s claims against J&J were dismissed pursuant to LWCA immunity. Thus, as a
matter of law, there could never be a “trial on the merits” to determine whether J&J was
“free from fault” and thus outside the scope of La. R.S. 9:2780.1. The LWCA’s legal bar
is nearly identical to the LHWCA’s bar in Melancon, discussed supra. Therefore, as with
the legal bar of the LHWCA in Melancon and the legal bar of peremption in Hefren, the
Court could not have reached the issue of negligence here. Accordingly, the Court’s
failure to find J&J free from fault does not bar J&J’s right to indemnity as it pertains to
J&J’s claims against Deloach for the costs of defense, including attorneys’ fees, incurred
in defending against claims of LUBACI.
ii.

Entergy’s Cross-Claims Against J&J

J&J’s claims against Deloach for the costs of defense incurred in defending against
claims of Entergy do not enjoy a smiliar fate. Entergy’s claims were not dismissed
pursuant to a legal bar, but rather a settlement agreement. Accordingly, the Court finds
Tanksley applicable in this instance. 9 Therefore, because J&J settled Entergy’s claims

9

Since Entergy’s claims were dismissed by a settlement agreement, the Court acknowledges the state
appellate decisions of Ridings and Phillips could be applicable. However, this is a federal court; therefore,
we are bound by jurisprudence set forth by the Fifth Circuit. Accordingly, the Court must apply Tanksley in
its analysis. As the Fifth Circuit stated in American Home Assur. Co. v. Chevron, USA, Inc., 400 F.3d 265,
n. 15 (5th Cir. 2005), “[W]e should not disregard our own prior precedent on the basis of subsequent
intermediate state appellate court precedent unless such precedent comprises unanimous or nearunanimous holdings from several-preferably a majority-of the intermediate appellate courts of the state in
question.” Only two of the five Louisiana appellate courts have disagreed with Tanksley and the Louisiana
Supreme Court, while noting the separation, has not taken a position. Accordingly, the Court will not apply
Ridings and Phillips in its analysis.

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without a determination of fault, it is precluded by La. R.S. 9:2780.1 from seeking
indemnity from its indemnitor, Deloach.
J&J argues that a determination of its freedom of fault was determined by the Court
when it denied Entergy’s motion for summary judgment. See Record Document 155-1 at
15. J&J concedes that the Court’s ruling was merely a denial of a motion for summary
judgment by Entergy and not an affirmative grant of summary judgment; however, it
suggests a “cursory review” of the Court’s ruling “reveals that, as a matter of law, J&J was
not negligent or at fault with respect to the OPLSA. 10 Id. In its ruling, the Court stated,
“Entergy fails to show how J&J fell short of its OPLSA obligation ….” Record Document
146 at 4-5. However, this argument is unavailing because the recognition that Entergy
had failed to establish J&J’s fault for purposes of Entergy’s motion is not tantamount to
the Court finding that J&J had no responsibility for the accident in question. When the
Court denied Entergy’s motion for summary judgment, it simply found that Entergy failed
to carry its burden to show it was entitled to a judgment as a matter of law. As the Court
stated in its ruling, “As Entergy fails to demonstrate an OPLSA violation by J&J, it has not
shown that it is entitled to summary judgment on its claim for indemnity.” Id. at 5. The
Court did not address any allocation of fault. See id.
Because J&J, through Deloach, settled Entergy’s cross-claims without a
determination of fault (as opposed to a legal bar -- LWCA immunity in this case -preventing such a determination), J&J is precluded from seeking indemnity for its costs

10

J&J argues the Court’s “finding” of its no fault was the likely reason Deloach was able to obtain a dismissal
of this claim. See id. However, Entergy released its claims via a settlement agreement in which Entergy
received a payment. See Record Document 160 at 7. The terms of the settlement agreement are
confidential; however, Deloach states in its opposition that “Entergy released its claims in exchange for
payment issued by LUBA[CI], the workers’ compensation insurer of Deloach.” Id.

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incurred in defending against Entergy’s cross-claims. See BJ Servs. Co., USA v.
Thompson, 2010 WL 2024725, *9 (W.D. La. 2010) (Judge Trimble citing Tanksley with
approval in holding that because an indemnitee settled its underlying claims without a
determination of fault, it was precluded by the LOIA from seeking indemnity from its
indemnitor).
D. J&J is Entitled to Recover Attorneys’ Fees and Costs in Pursuing
Indemnification
J&J also asserts it is entitled to recover the amount of attorneys’ fees and expenses
incurred in pursuing its defense and indemnification from Deloach under the Subcontract.
See Record Documet 155-1 at 16. Deloach does not address this issue in any of its briefs.
Paragraph 20 of the Subcontract provides:
20.
In the event Contractor (J&J) employs an attorney to enforce any of
the provisions hereof, or to protect its interest in any matter arising under
this Agreement, or to collect damages for breach of this Agreement, or to
prosecute or defend any suit resulting from this Agreement, or to recover
on the surety bond given by Subcontractor under this Agreement,
Subcontractor (Deloach) and his surety, jointly and severally, agree to pay
Contractor all costs, charges, expenses and attorneys’ fees expended or
incurred therein …
Record Document 137-1.
Attorneys’ fees are generally not allowed except where authorized by statute or
contract; however, Louisiana law is well settled that clauses like this are enforceable. See
Naquin v. Louisiana Power & Light Co., 2005-2104 (La. App. 1 Cir. 11/17/06), 951 So. 2d
228, 232, writ denied, 2006-2979 (La. 3/9/07), 949 So. 2d 441, citing Richey v. Moore,
36,785 (La. App. 2 Cir. 3/7/03), 840 So.2d 1265, 1268, writ denied, 03-0987 (La.5/30/03),
845 So.2d 1054; Burns v. McDermott, Inc., 95–0195 (La. App. 1 Cir. 11/9/95), 665 So.2d
76, 79; Wuertz v. Tobias, 512 So.2d 1209, 1212 (La. App. 5 Cir.1987). Here, J&J did

Page 20 of 22

employ an attorney, both to defend and prosecute suits arising out of the Subcontract.
Accordingly, J&J is entitled to recover not just the costs of defense under Paragraph 10,
but the attorneys’ fees expended in recovering these sums from Deloach, including fees
and costs incurred in J&J’s instant motion.
As Deloach asserts, and J&J does not dispute, J&J is entitled to recover
reasonable defense costs and attorneys’ fees. See Record Document 160 at 11, citing
Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183, 184. However, J&J
merely sought partial summary judgment decreeing that Deloach is liable for such costs
and attorneys’ fees, rather than seeking a determination that said attorneys’ fees and
costs are reasonable. See Record Document 161 at 6. The issue of the reasonableness
of attorneys’ fees and costs is not before the Court in the context of J&J’s motion.
CONCLUSION
Based on the foregoing, Deloach’s “Motion for Summary Judgment” is DENIED
and J&J’s “Motion for Partial Summary Judgment” is GRANTED IN PART and DENIED
IN PART. Regarding LUBACI’s negligence claim, the case never reached the issue of
J&J’s negligence because of a legal bar – LWCA immunity. For this reason, J&J is entitled
to recover its costs of defense, attorneys’ fees, and expenses incurred in defending
against LUBACI’s claim. J&J is also entitled to its costs and attorneys’ fees in pursuing
indemnification against Deloach, including fees and costs incurred in this Motion.
Conversely, because J&J settled Entergy’s claim without a determination of fault, J&J is
precluded from seeking indemnity from Deloach for its costs of defense, attorneys’ fees,
and expenses incurred in defending against Entergy’s claim.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 11th day of July, 2018.

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