Richard v. Island Operating Co Inc

Filing 109

RULING ON MOTION TO CERTIFY: For the foregoing reasons, 103 Motion for Certificate of Appealability is DENIED. Signed by Magistrate Judge C Michael Hill on 2/26/2015. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
BYRON RICHARD

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CIVIL ACTION NO. 6:11-0419

VS.

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MAGISTRATE JUDGE HILL

ISLAND OPERATING CO., INC.

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BY CONSENT OF THE PARTIES

CONSOLIDATED WITH
JOSEPH FONTENOT

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CIVIL ACTION NO. 11-2084

VERSUS

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MAGISTRATE JUDGE HILL

APACHE CORP.

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BY CONSENT OF THE PARTIES

RULING ON MOTION TO CERTIFY
Pending before the Court is the Motion to Certify for Appeal Pursuant to 28 U.S.C.
§ 1292(b) and to Stay Pending Interlocutory Appeal filed by third-party defendant, Fluid Crane
& Construction Inc. (“Fluid Crane”), filed on February 6, 2015 [rec. doc. 103]. Defendant,
Island Operating Co., Inc. (“Island Operating”), opposed the motion.1
BACKGROUND
Fluid Crane filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) in both of these
consolidated cases, arguing that the relevant Master Service Contract ("MSC") in effect in each
of these cases does not obligate Fluid Crane to provide "Marcel coverage"2 to Island Operating
in either case and, further, that any such requirement would be null and void under the
1

Counsel for IOC orally opposed the motion at the telephone status conference held on
February 19, 2015. [rec. doc. 108].
2

Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994)

Louisiana Oilfield Anti-Indemnity Act ("LOAIA")3. On January 27, 2015, I issued a Ruling on
Motions to Dismiss, denying the motions. Richard v. Island Operating Co., Inc., 2015 WL
403155 (W.D. La. Jan. 27, 2015); [rec. doc. 100].
In the Motions to Dismiss, Fluid Crane argued that a literal reading of paragraph 14 of
the MSC does not obligate Fluid Crane to provide additional insured coverage (Marcel
coverage) for the subcontractors of XTO Energy, Inc. (“XTO”), Hunt Petroleum Corp.,
(“HPC”) or Apache Corporation, such as Island Operating. Furthermore, XTO, HPC and
Apache paid premiums to First Specialty Insurance Corporation ("First Specialty") to provide
for additional insured coverage only for coverage for XTO, HPC and Apache but neither paid a
premium for First Specialty to name Island Operating (or any other member of the XTO, HPC
or Apache Groups) as additional insureds.
Island Operating argued that there was a missing link in the factual chain which
precluded granting the motions to dismiss. Island Operating argued that there was an
unquestioned obligation on the part of Fluid Crane to arrange for Marcel coverage in favor of
the XTO, HPC and Apache Groups. Island Operating argued that the pleadings and
attachments thereto did not answer the question of whether or not Fluid Crane, in fact, satisfied
its contractual obligation, by which it warranted and represented, "that it has communicated
with its insurer(s) regarding this provision of the Master Service Contract".
Citing Marcel, I found that Island Operating was correct, stating as follows:
At this stage of the proceedings it is not known whether Fluid Crane fulfilled its
obligation to make known to First Specialty the relevant provisions of the MSCs.
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La. R.S. 9:2780.
2

If so, and if it was the choice of XTO, HPC and/or Apache to pay premiums
solely for coverage for themselves and not for the entire Group then it would
appear that Fluid Crane may well have fulfilled its obligation under the MSCs. If
First Specialty was not so notified by Fluid Crane, then Fluid Crane may well
have breached its obligation under the MSCs. The answer to that question is
beyond the pleadings and appears to be clearly an issue of fact to be determined
through discovery.
In the instant Motion, Fluid Crane seeks to certify the Court’s ruling “which recognizes
a potential cause of action against a Louisiana subcontractor for its purported failure to procure
or secure additional insured coverage (that is, Marcel coverage) in favor of another oilfield
contractor, which Fluid Crane submits is contrary to the prohibitions codified by the Louisiana
Legislature in La. R.S. 9:2780(g) of the Louisiana Oilfield Indemnity Act.” [rec. doc. 103, p.
1].
LAW AND ANALYSIS
An interlocutory appeal from a non-final order in a civil case is permissible when (1)
the order involves “a controlling question of law,” (2) there is “substantial ground for
difference of opinion” on the question presented, and (3) an immediate appeal would
“materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); David v.
Signal Intern., LLC, – F.Supp.3d –, 2014 WL 5208353, at *1 (E.D. La. Oct. 14, 2014). The
district court cannot certify an order for interlocutory appeal unless all three criteria are
present. David, at *1 (citing Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n. 2 (5th Cir.1981)).
In determining whether certification is appropriate, the Court is mindful that interlocutory
appeal is “exceptional” and “does not lie simply to determine the correctness of a judgment.”

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Id. (citing Clark-Dietz & Associates-Engineers, Inc. v. Basic Constr. Co., 702 F.2d 67, 68-69
(5th Cir.1983)).
As explained in the Ruling, the “question is beyond the pleadings and appears to be
clearly an issue of fact to be determined through discovery.” (emphasis added). Thus, the
Order does not involve “a controlling question of law.” Fact-review questions are
inappropriate for § 1292(b) review. Clark-Dietz, 702 F.2d at 69.
For the foregoing reasons, the motion [rec. doc. 103] is DENIED.
Signed this 26th day of February, 2015, at Lafayette, Louisiana.

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