Fruge et al v. Ulterra Drilling Technologies L P et al
Filing
197
MEMORANDUM RULING denying 180 Motion to Dismiss All Cross-Claims of Chubb; denying 180 Motion to Enforce Settlement Agreement; granting 180 Motion to Preclude Further Discovery; granting 180 Motion to Submit Pending Motion for Consideration in Accordance with the Fifth Circuit Decision; denying 185 Motion to Stay; denying 185 Motion to Reopen Discovery. Signed by Magistrate Judge Patrick J Hanna on 7/25/12. (crt,Whidden, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MICHAEL J. FRUGE AND
LILIANA FRUGE
CIVIL ACTION NO. 6:07-cv-00789
VERSUS
JUDGE MELANÇON
ULTERRA DRILLING
TECHNOLOGIES, L.P. AND/OR
ULTERRA MWD, L.P.
MAGISTRATE JUDGE HANNA
MEMORANDUM RULING
Currently pending before the Court are two related motions: (1) defendant
Amerisure Mutual Insurance Company’s motion to dismiss defendant Chubb Custom
Insurance Company’s cross-claim, enforce the settlement agreement, preclude further
discovery, and submit pending motions for consideration (Rec. Doc. 180); and (2)
Chubb’s motion to stay proceedings on motion for summary judgment and reopen
discovery (Rec. Doc. 185). For the reasons explained below, Chubb’s motion is
DENIED, and Amerisure’s motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Rockbit Holdings owns Ulterra Drilling Technologies (“Drilling”), which owns
Ulterra MWD (“MWD”). Ronald F. Thomason, the chief financial officer for both
Drilling and MWD, contacted Cameron Jones at William Rigg Company to purchase
insurance for both Drilling and MWD. Rigg obtained policies from Chubb and
Amerisure.
Chubb issued two policies to MWD: a commercial general liability (“CGL”)
policy with $1 million limits and an umbrella policy with $5 million limits, covering
the time period from November 2005 to November 2006.
Amerisure also issued two policies: a CGL policy with $1 million limits and
an umbrella policy with $10 million limits. Both polices cover the time period from
December 31, 2005 to December 31, 2006, and the named insureds on both policies
are Drilling and MWD.
In August 2006, some equipment provided by MWD and installed on a land rig
exploded and injured the plaintiff, Michael Fruge, who was employed by Nabors
Drilling. Fruge sued Drilling, MWD, and others.
Amerisure and Chubb both assumed MWD’s defense in May 2007. A month
later, Drilling was dismissed from the suit.
In September 2007, Amerisure issued two policy change forms that deleted
MWD as a named insured on their policies. Amerisure then terminated its defense
of MWD, effective October 19, 2007. Amerisure claims that the addition of MWD
to Drilling’s policies was a clerical error.
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Chubb continued defending MWD, and in November 2007, Chubb filed a
cross-claim against Amerisure (Rec. Doc. 31), alleging that Amerisure had an
obligation to defend and indemnify MWD and seeking reimbursement of the sums
Chubb had paid for MWD’s defense. At the end of January 2008, Amerisure filed a
motion to dismiss Chubb’s cross-claim for failure to state a claim (Rec. Doc. 37).
Amerisure argued primarily that Chubb had no standing to sue Amerisure because it
was not a party to the insurance contract.
In February 2008, the case was administratively closed because the plaintiff
had not reached maximum medical improvement (“MMI”). All pending motions
were denied as moot. (Rec. Doc. 49).
In April 2008, Chubb filed a motion to reopen the case for the limited purpose
of resolving insurance issues (Rec. Doc. 53) and also filed a motion for summary
judgment (Rec. Doc. 54). The motion to reopen was denied (Rec. Doc. 56). An
unnumbered administrative entry in the suit record indicates that Chubb’s motion for
summary judgment was terminated.
The case was reopened in September 2009 (Rec. Doc. 61), and a plan of work
was approved by the court (Rec. Doc. 62). Motion practice resumed, with Amerisure
seeking leave to file a reply brief in support of its motion to dismiss. (Rec. Doc. 63).
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The court reminded Amerisure that all pending motions had been denied as moot in
February 2008. (Rec. Doc. 64).
Chubb then re-urged its motion for summary judgment (Rec. Doc. 65), and
Amerisure filed a motion to dismiss (Rec. Doc. 70) as well as a motion for summary
judgment and/or declaratory judgment (Rec. Doc. 78). Amerisure argued that its
policies included MWD as an insured only because of a clerical error. In other words,
Amerisure argued that the parties to the insurance contract had made a mutual
mistake by including MWD as a named insured on its policies. Chubb argued that
Amerisure’s policies unambiguously provide coverage for MWD and that any
coverage under Chubb’s policies was excess to that of the Amerisure policies.
On July 14, 2010 (in Rec. Doc. 127), the trial court granted Chubb’s motion for
summary judgment (Rec. Doc. 65), and denied Amerisure’s cross-motion for
summary judgment (Rec. Doc. 78). In the same ruling, Amerisure’s motion to
dismiss (Rec. Doc. 70) and Chubb’s motion to strike (Rec. Doc. 71) were denied as
moot. The trial court found that Amerisure’s policies were unambiguous and,
consequently, that extrinsic evidence could not be considered to determine the
parties’ intent at the time the contract was confected. The trial court also found that
Louisiana law prohibits an insurance policy from being retroactively annulled by
agreement after an occurrence for which the insurer might be liable. The trial court
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concluded that the policies should be enforced as written – meaning that MWD was
a named insured. The trial court addressed the ranking of the policies, concluding
that Amerisure’s CGL policy is primary, that Chubb’s CGL policy is excess, and that
coverage under the excess policies should be apportioned according to their limits,
which establishes a 2:1 ratio with Amerisure paying twice as much as Chubb. This
ruling was reduced to judgment. (Rec. Doc. 128).
Amerisure attempted to appeal the ruling (Rec. Doc. 132), but the appeal was
denied for lack of jurisdiction (Rec. Doc. 142).
On November 1, 2010, less than a month before the scheduled trial date of
November 22, 2010, the case was mediated, and the plaintiffs’ claims were settled.
The agreement signed by the parties at the mediation says: “The rights and
obligations of the defendants are governed by the attached documents.” (Rec. Doc.
160-1 at 1). Attached is a typewritten page signed by Chubb’s and Amerisure’s
representatives. (Rec. Doc. 160-1 at 2). It says, in pertinent part: “The parties shall
jointly draft a comprehensive stipulated settlement agreement within twenty (20) days
to reflect the intention of the parties as basically outlined herein.” It also says that
Chubb and Amerisure will pay the settlement in accord with the trial court’s summary
judgment formula “conditioned upon Amerisure and Chubb appealing Judge
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Melancon’s summary judgment, insurance issues[,] and attorney fees issue to the
Fifth Circuit.” It goes on to say:
All actions and causes of action including but not limited
to any cross-claims by and/or between Amerisure and
Chubb, past, present, and/or future, are to be dismissed
with prejudice at the time of entering the stipulated
settlement with the court before the United States District
Judge.
It then says:
All insurance issues and the summary judgment may be
appealed to the Fifth Circuit. . . . The appeal shall consist
of the summary judgment issues, the insurance issues and
the defense cost issues. It is understood that the parties
reserve the right to appeal the coverage issues and any
attorney fee issues presented by the parties in the
comprehensive stipulated settlement agreement to the
court. . . . Amerisure and Chubb shall ultimately pay in
accordance with the Fifth Circuit decision.
The parties moved for final judgment (Rec. Doc. 160), final judgment was
issued (Rec. Doc. 161), Amerisure appealed (Rec. Doc. 162), and Chubb crossappealed (Rec. Doc. 166).
The Fifth Circuit reversed the trial court’s decision. (Rec. Doc. 177). In its
ruling, the Fifth Circuit stated that Louisiana law permits a party to present extrinsic
evidence to prove a mutual mistake even when the language of the contract is not
ambiguous. However, the ruling also said: “Whether the parties actually made a
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mutual mistake remains an open question.” In its judgment, the Fifth Circuit said:
“It is ordered and adjudged that the judgment of the District Court is reversed, and the
cause is remanded to the District Court for further proceedings in accordance with the
opinion of this Court.” (Rec. Doc. 177 at 1).
After the Fifth Circuit ruled, the parties were ordered to submit a plan of work,
and they did so. (Rec. Doc. 179). Chubb’s interpretation of the Fifth Circuit’s ruling
is that it “opens discovery on all outstanding issues.” (Rec. Doc. 179 at 3).
Amerisure disagrees. That disagreement lies at the crux of the two pending motions.
I.
CHUBB’S RULE 56(d) MOTION TO STAY PROCEEDINGS ON MOTION
SUMMARY JUDGMENT AND REOPEN DISCOVERY (REC. DOC. 185)
FOR
In its motion (Rec. Doc. 185) filed under Rule 56(d) of the Federal Rules of
Civil Procedure, Chubb seeks to prevent this Court from proceeding with a ruling on
remand so that additional discovery can be obtained. Rule 56(d) states:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition [to a motion for summary judgment], the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
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In this case, Chubb seeks to have the court defer again considering Amerisure’s
motion for summary judgment so that Chubb can take additional discovery.
Rule 56(d) was designed to “safeguard non-moving parties from summary
judgment motions that they cannot adequately oppose.”1 For that reason, Rule 56(d)
discovery motions are “broadly favored and should be liberally granted.”2 But the
party that did not seek summary judgment “may not simply rely on vague assertions
that additional discovery will produce needed, but unspecified, facts.”3 Instead, a
request to stay summary judgment under Rule 56(d) must “set forth a plausible basis
for believing that specified facts, susceptible of collection within a reasonable time
frame, probably exist and indicate how the emergent facts, if adduced, will influence
the outcome of the pending summary judgment motion.”4 “If it appears that further
discovery will not provide evidence creating a genuine issue of material fact, the
district court may grant summary judgment.”5 “Thus, to obtain a Rule 56(d)
1
Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).
2
Culwell, 468 F.3d at 871.
3
SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980).
4
C.B. Trucking, Inc. v. Waste Management Inc., 137 F.3d 41, 44 (1st Cir. 1998)
(internal quotation marks and citations omitted).
5
Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010), quoting Access Telecom, Inc.
v. MCI Telecomm. Corp., 197 F.3d 694, 720 (5th Cir. 1999). See also Washington v. Allstate Ins.
Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
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continuance in order to conduct further discovery prior to a ruling on a motion for
summary judgment, the nonmovant must make essentially three showings: (1) a
description of the particular discovery it intends to seek; (2) an explanation showing
how that discovery would preclude the entry of summary judgment; and (3) a
statement justifying why this discovery had not been or could not have been obtained
earlier.”6
As a threshold matter, the undersigned notes that Rule 56(d) expressly requires
the party seeking relief under the rule to show “by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition” to the
relevant motion for summary judgment.7 Chubb did not submit an affidavit or
declaration along with its motion. For that reason, it is not entitled to the relief it
seeks.
Not wishing to decide the motion solely because of a procedural omission,
however, the undersigned has also analyzed the substance of Chubb’s motion. The
undersigned finds that Chubb has presented persuasive arguments in favor of the first
two requirements of the requisite analysis. With regard to the first, Chubb has
6
Courtesy Outdoor Finance, LLC v. Bass Ltd., No. 10-1382, 2011 WL 933957, *4
(W.D. La. Mar. 16, 2011).
7
Emphasis added.
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described the particular discovery it seeks, stating that it proposes to obtain, through
discovery, the underwriting files, coverage position letters, investigation materials
regarding coverage, coverage analysis, and agent files regarding the Amerisure
policies, and to depose representatives of William Rigg, Rockbit Holdings, Drilling,
and MWD regarding the Amerisure policies. (Rec. Doc. 185-2 at 5-6). With regard
to the second requirement, Chubb argues that any facts gathered during the additional
discovery “that contrast with the position of Amerisure regarding mutual error will
preclude summary judgment.” (Rec. Doc. 185-2 at 6.) This assertion, though
minimal, might be interpreted as satisfying the requirement that Chubb explain how
the discovery it seeks would preclude summary judgment in Amerisure’s favor. With
regard to the third requirement, however, the undersigned finds Chubb’s arguments
wholly unpersuasive.
Chubb argues, first, that “[i]t was not until the Fifth Circuit’s reversal and
remand that discovery regarding mutual error became necessary. Chubb Custom was
justified in not pressing for discovery on the issue of error before the hearing on the
cross-motions for summary judgment.” (Rec. Doc. 185-2 at 5.) Chubb argues,
second, that the issue of intent is now important to the mutual error issue, and seeks
permission to depose the persons involved in obtaining the insurance policies
regarding what their intent was at the time the policies were applied for. But the
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mutual mistake issue is not new. Amerisure argued, in support of its motion for
summary judgment (Rec. Doc. 78) that the inclusion of MWD as an insured on its
policies was an error. (Rec. Doc. 78-1 at 9, 11, 12, 13, 16, 18, 19, 20, 21, 25, 31).
Amerisure further argued that its insurance policies should be reformed because of
the alleged mutual mistake. (Rec. Doc. 78-1 at 24.) Thus, the issues of whether a
mutual mistake had been made and, if so, whether parol evidence could be used to
reform the contract to correct the mistake, were placed before this Court in October
2009. (Rec. Doc. 78). If the intent of the persons involved in obtaining insurance
coverage for Drilling and MWD is important now, it was also important when the
motions for summary judgment were decided in 2009. The discovery cut-off date in
place at that time was March 1, 2010. (Rec. Doc. 62). Therefore, Chubb had ample
opportunity to propound whatever written discovery it thought necessary and to take
whatever depositions it thought might be helpful. If additional discovery was
necessary, Chubb should have requested it before the trial court ruled on Amerisure’s
motion for summary judgment. Chubb has posited no valid reason why the discovery
it now requests was not or could not have been requested earlier.
Amerisure argues that the rule to be applied in resolving Chubb’s motion was
articulated in Carner v. Louisiana Health Service & Indemnity Co., while Chubb
argues that the rule articulated in Carner is inapplicable in this case. In Carner, the
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trial court granted summary judgment in favor of the defendant on the basis that the
plaintiff’s claim had prescribed. The appellate court noted that “[i]n order to defeat
summary judgment. . . Carner was required to put forward specific facts
demonstrating that there was a genuine issue of material fact for trial regarding the
prescription of her claims. . . . However, Carner's assertions . . . are merely
conclusory allegations and unsubstantiated assertions.”8 Therefore, the court stated
that “[t]he district court properly concluded that [the defendant] was entitled to
judgment as a matter of law because all of Carner's claims were prescribed.”9 On
appeal, Carner argued that because the parties had agreed to delay discovery until
after the district court's ruling on the defendant's motion for summary judgment, “the
district court should not have determined whether there was a genuine dispute” and
“should have known that she was unable to set forth any facts” regarding the claims
found to be prescribed.10 The Fifth Circuit found, however, that “Carner should have
been aware of her burden in opposing [the defendant's] motion for summary
8
Carner v. Louisiana Health Serv. & Indem. Co., 442 Fed. App'x 957, 960-61 (5th Cir.
9
Carner, 442 Fed. App'x at 960.
10
Carner, 442 Fed. App'x at 961.
2011).
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judgment, and, if she determined that she lacked the ability to produce facts, she
should have made a motion under Rule 56(d) to the district court.”11
Chubb attempts to distinguish this case from Carner on the basis that even
though Chubb did not file a Rule 56(d) motion when Amerisure’s original motion for
summary judgment (Rec. Doc. 78) was pending, it has filed such a motion with regard
to Amerisure’s re-urged motion (Rec. Doc. 18). The undersigned finds this argument
unpersuasive.
The judgment that was appealed in this case (Rec. Doc. 161) reiterates the
holdings of the Court’s memorandum ruling (Rec. Doc. 127) and prior judgment
(Rec. Doc. 128) concerning Chubb’s and Amerisure’s cross-motions for summary
judgment (Rec. Doc. 65 and 78, respectively), Amerisure’s motion to dismiss (Rec.
Doc. 70), and Chubb’s motion to strike (Rec. Doc. 71). The judgment that was
appealed was reversed in its entirety. (Rec. Doc. 177 at 1, 12). Therefore, this
Court’s task, on remand, is to reexamine the cross-motions for summary judgment,
the motion to dismiss, and the motion to strike that were ruled on in July 2010. This
Court will not be analyzing a new motion for summary judgment; it will simply be
taking a second look at the motions that were already decided. Therefore, if Chubb
needs additional documents or deposition testimony to support its own motion for
11
Carner, 442 Fed. App'x at 961.
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summary judgment or to oppose Amerisure’s, it should have, in accordance with
Carner, filed a Rule 56(d) motion before the trial court ruled on the cross motions for
summary judgment.
Chubb also argues that, when the cross-motions for summary judgment were
being decided in 2010, it made a decision to argue that Louisiana law precluded resort
to parol evidence rather than taking additional discovery to investigate the mutual
error claim asserted in Amerisure’s motion. (Rec. Doc. 195 at 8). Looking back at
that strategic decision, with 20/20 hindsight and in light of an adverse decision from
the Fifth Circuit, Chubb now seeks additional discovery. But Chubb has presented
no authority for the proposition that making an unsuccessful argument before appeal
justifies reopening discovery on remand.
Although Chubb is correct that the Fifth Circuit did not limit the “further
proceedings” to be had after remand to only the evidence adduced before the appeal,
“[w]hether to reopen discovery on remand is a matter within the discretion of the
District Court.”12 In this case, the cross motions for summary judgment were fully
briefed and submitted to the trial court, and the trial court ruled. At that time, Chubb
12
Forest Group, Inc. v. Bon Tool Co., No. H-05-4127, 2010 WL 1708433, *2 (S.D.Tex.
Apr. 27, 2010). citing Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943); United States
v. Bell Petroleum Servs., Inc., 64 F.3d 202, 204 (5th Cir. 1995); Federal Deposit Ins. Corp. v.
Whitlock, 785 F.2d 1334, 1340 n. 9 (5th Cir. 1986). See, also, Federal Deposit Ins. Corp. v.
Whitlock, 785 F.2d 1335, 1340 n. 9 (5th Cir. 1986) (“The district court, of course, may exercise its
discretion to reopen discovery on remand to allow such inspection.”)
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was willing to have the cross-motions for summary judgment decided on the record
as it then existed without any additional discovery. The undersigned finds that it
would be unfair to permit Chubb to now engage in additional discovery. This Court
must now, in accordance with the Fifth Circuit’s decision, decide whether a mutual
mistake was made, but the undersigned finds that it should do so based on the record
in place at the time that the motions were originally decided. For these reasons,
Chubb’s motion is denied.
II.
AMERISURE’S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT,
DISMISS CHUBB’S CROSS-CLAIM, PRECLUDE FURTHER DISCOVERY, AND
SUBMIT THE PENDING MOTIONS FOR CONSIDERATION IN ACCORDANCE
WITH THE FIFTH CIRCUIT’S DECISION (REC. DOC. 180)
Amerisure’s motion (Rec. Doc. 180) seeks four types of relief: enforcement
of the settlement agreement between Amerisure and Chubb, dismissal of Chubb’s
cross-claim, preclusion of further discovery, and submission of the pending motions
for consideration in accordance with the recent decision of the Fifth Circuit Court of
Appeals.
The undersigned already having decided that Chubb’s motion seeking to
reopen discovery will be denied, Amerisure’s motion will be granted to the extent it
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seeks to preclude further discovery by Chubb. Amerisure’s other requests will be
discussed in full, below.
A.
ENFORCEMENT OF THE SETTLEMENT AGREEMENT
Amerisure seeks enforcement of the settlement agreement reached at
mediation, which states that “[a]ll actions and causes of actions including but not
limited to any cross-claims by and/or between Amerisure and Chubb. . . are to be
dismissed with prejudice at the time of entering the stipulated settlement with the
court. . . .” In the same document, however, the parties’ right to appeal all insurance
issues was reserved. The parties apparently contemplated the Fifth Circuit making
a definitive ruling on the insurance issues, and they did not contemplate that the Fifth
Circuit might remand those issues to the trial court for further proceedings.
Nevertheless, the cross-appeal by Amerisure and Chubb of the insurance issues raised
in Chubb’s cross-claim against Amerisure precludes enforcement of the settlement
agreement’s provision requiring dismissal of the cross-claim. So long as any part of
the cross-claim remains unresolved, the cross-claim remains extant. It is also
significant that both Chubb and Amerisure appealed the trial court’s ruling on the
cross motions for summary judgment concerning Chubb’s cross-claim. This is not
a situation in which one party is attempting to circumvent the settlement agreement;
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instead, both parties appealed the trial court’s ruling. Clearly, neither party was
content to leave the trial court’s ruling in place. The undersigned finds, therefore,
that the part of the settlement agreement that is inconsistent with the reservation of
the parties’ right to appeal cannot be enforced as written. If it were enforced,
Chubb’s cross-claim would be dismissed, the cross motions for summary judgment
would be dismissed as moot, and the parties would be left with the trial court’s ruling.
Essentially, both parties would be denied the right to finish the appeal process by
having the trial court rule in accordance with the Fifth Circuit’s remand order.
The Fifth Circuit determined that Louisiana law applies to the dispute
presented here. (Rec. Doc. 177 at 6-7). Under Louisiana law, interpreting a contract
is nothing more than attempting to find the parties’ common intent. Louisiana Civil
Code Article 2045 says so clearly: “Interpretation of a contract is the determination
of the common intent of the parties.”13 In this case, the settlement agreement
preserves both parties’ right to appeal, and both parties did in fact appeal.
Accordingly, the undersigned finds that the common intent of the parties was to
maintain the existence of Chubb’s cross-claim until the relevant issues could be
13
See also Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954 (5th
Cir. 2009); Sher v. Lafayette Ins. Co., 2007-2441 (La. 4/8/08), 988 So. 2d 186, 192; Louisiana Ins.
Guar. Ass'n v. Interstate Fire & Cas. Co., 630 So. 2d 759, 763 (La. 1994); Garcia v. St. Bernard
Parish School Bd., 576 So.2d 975, 976 (La. 1991).
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appealed. Enforcing the settlement agreement to dismiss the cross-claim at this time
would not foster that intent. Therefore, to the extent that Amerisure’s motion seeks
enforcement of the provision of the settlement agreement stating that Chubb’s crossclaim was dismissed when the trial court issued its ruling, the motion is denied.
B.
DISMISSAL OF CHUBB’S CROSS-CLAIM
In its motion, Amerisure seeks dismissal of Chubb’s cross-claim against it. The
undersigned finds that this argument lacks a sound logical foundation. Chubb’s
cross-claim against Amerisure (Rec. Doc. 31) seeks to have Amerisure provide the
primary defense and indemnity to MWD in connection with the claims asserted by the
plaintiffs in this lawsuit. Chubb and Amerisure both filed motions for summary
judgment with regard to Chubb’s cross-claim. (Rec. Docs. 65 and 70, respectively).
The trial court ruled on those motions. (Rec. Doc. 127). It is that ruling that was
appealed. (Rec. Docs. 162, 166). If the cross-claim were dismissed, then the motions
for summary judgment would have to be dismissed as moot, and there would be
nothing further for this Court to resolve. But the Fifth Circuit’s mandate requires this
Court to once again rule on the cross motions for summary judgment. Until that is
done, Chubb’s cross-claim against Amerisure remains extant without resolution.
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Accordingly, to the extent that Amerisure’s motion seeks dismissal of Chubb’s crossclaim against Amerisure, the motion is denied.
C.
SUBMISSION OF THE PENDING MOTIONS FOR RESOLUTION
ACCORDANCE WITH THE FIFTH CIRCUIT’S RULING
IN
Finally, Amerisure seeks to have this Court rule on “the pending motions.” In
July 2010, the trial court granted Chubb’s motion for summary judgment, denied
Amerisure’s cross-motion for summary judgment, and denied as moot Amerisure’s
motion to dismiss and Chubb’s motion to strike. (Rec. Docs. 127, 128, 161). Chubb
and Amerisure appealed. (Rec. Docs. 162, 166). The Fifth Circuit reversed and
remanded the cause to the trial court for further proceedings. (Rec. Doc. 177).
The Fifth Circuit has explained that “[t]he mandate rule requires a district court
on remand to effect our mandate and to do nothing else.”14 On remand, a district
court “must implement both the letter and the spirit of the appellate court's mandate
and may not disregard the explicit directives of that court.”15 “In implementing the
mandate, the district court must ‘take into account the appellate court's opinion and
14
United States v. Castillo, 179 F.3d 321, 329 (5th Cir. 1999), citing United States v.
Becerra, 155 F.3d 740, 753 (5th Cir. 1998).
15
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002), quoting Becerra, 155
F.3d at 753.
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the circumstances it embraces.’”16 Because the mandate rule is a corollary of the law
of the case doctrine, it “compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or impliedly decided by the
appellate court.”17
With these principles in mind, the undersigned finds that “the pending
motions” referred to in Amerisure’s motion are the four motions referenced in the
judgment that was appealed and further finds that all four motions must be revisited.
Accordingly, to the extent that Amerisure seeks to have “the pending motions”
submitted for resolution by the trial court in accordance with the Fifth Circuit’s
mandate, the motion is granted.
CONCLUSION
The real issue to be decided in resolving these two motions is what procedure
should be used at the district court level on remand. Synthesizing the various
arguments presented in the motions, the undersigned finds (1) that Chubb’s crossclaim still exists; (2) that no additional discovery should be conducted; (3) that the
16
United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004), quoting Sobley v. Southern
Natural Gas Co., 302 F.3d 325, 333 (5th Cir. 2002).
17
Castillo, 179 F.3d at 329 (citation omitted). See, also, General Universal Systems,
Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007).
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trial court must again analyze and decide Chubb’s motion for summary judgment
(Rec. Doc. 65), Amerisure’s cross-motion for summary judgment (Rec. Doc. 78),
Amerisure’s motion to dismiss (Rec. Doc. 70), and Chubb’s motion to strike (Rec.
Doc. 71). In deciding those motions, the trial court must keep in mind the Fifth
Circuit’s holdings that Amerisure waived its argument that Texas law applies, that a
party may present extrinsic evidence to prove mutual mistake even when the language
of the contract is not ambiguous, and that La. R.S. 22:1262 does not preclude
reformation of the contract in this case because the operative issue is mutual mistake
not rescinding or annulling a contract by agreement.
Accordingly,
IT IS ORDERED that Chubb’s Rule 56(d) motion (Rec. Doc. 185) is DENIED;
and
IT IS FURTHER ORDERED that Amerisure’s motion (Rec. Doc. 180) is
GRANTED IN PART and DENIED IN PART. More particular, the motion is denied
to the extent that it seeks enforcement of the provision in the settlement agreement
between Chubb and Amerisure dismissing Chubb’s cross-claim against Amerisure;
denied to the extent that Amerisure seeks dismissal of Chubb’s cross-claim; granted
to the extent that it seeks to preclude further discovery by Chubb; and granted to the
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extent that a decision will be rendered by this Court in accordance with the Fifth
Circuit’s recent ruling.
Signed at Lafayette, Louisiana, this 25th day of July 2012.
____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
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