Thibodeaux et al v. J M Drilling L L C et al

Filing 440

TAXATION OF COSTS re 409 MOTION/NOTICE of Application to Tax Cost filed by Insight Risk Management L L C. Pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.5, any party dissatisfied with the Taxation of Costs may se ek review from the Court by filing a Motion to Review Costs. If a review of costs is sought, the Motion to Review Costs must be filed within seven (7) days after the filing of this taxation of costs. Signed by Magistrate Judge Carol B Whitehurst on 12/28/2023. (crt,Bunting, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

JOHN THIBODEAUX, ET EL

CASE NO. 6:18-CV-501

VERSUS

JUDGE SUMMERHAYS

J.M. DRILLING, ET AL

MAGISTRATE JUDGE CAROL B.
WHITEHURST

TAXATION OF COSTS
On April 12, 2018, Plaintiffs John Thibodeaux, Amy Thibodeaux, and
Gabrielle Thibodeaux (“Plaintiffs”) filed a Complaint for Declaratory Judgment
against J.M Drilling, LLC, Admiral Insurance Company, Rockhill Insurance
Company (“Rockhill”), and Bellsouth Telecommunications, LLC, seeking a
judgment declaring, in part, that Defendant Rockhill had coverage under an excess
policy of insurance that it issued to J.M. Drilling, LLC. (Rec. Doc. 1). On November
12, 2019 (amended on January 22, 2020, and March 4, 2021), J.M. Drilling, LLC,
filed a Third Party Demand against Insight, its insurance agent, for failing to procure
adequate insurance. (Rec. Docs. 112, 155, & 214). Following several rounds of
procedural pleadings amongst related parties, on January 20, 2020, Plaintiffs filed a
Fourth Amended Complaint adding Insight as a defendant in the initial action. (Rec.
Doc. 152). Per the Fourth Amended Complaint, J.M. Drilling asserted negligence
actions against Insight as their insurance agent “in the event [Rockhill’s policy] is

determined not to provide excess insurance coverage regarding the claims asserted
by [Plaintiffs]…” (Id., ¶ III). As a result, Plaintiffs asserted negligence claims
against Insight “for negligently failing to procure full insurance coverage as
requested by [J.M. Drilling]…” (Id., ¶ VI). Insight then filed a crossclaim against
CRC as J.M. Drilling’s insurance broker in the event the Rockhill policy was found
to not provide coverage (Rec. Doc. 160), and, on March 25, 2020, CRC filed a
similar crossclaim against Insight. (Rec. Doc. 177).
Relevant to the present matter, on April 1, 2021, Insight filed a Motion for
Summary Judgment on Insurance Coverage requesting the Court to find that the
Rockhill policy provides coverage thereby negating the claims filed against it. (Rec.
Doc. 251). Plaintiffs, J.M. Drilling, and CRC filed similar motions. (See Rec. Docs.
215, 234, & 260). On April 22, 2021, Rockhill filed an opposition to Insight’s
Motion for Summary Judgment on Insurance Coverage (Rec. Doc. 285), and Insight
replied. (Rec. Doc. 315). On July 23, 2021, the Court granted Insight’s, as well as
the other movants’, Motion for Summary Judgment on Insurance Coverage. (Rec.
Doc. 393). On July 29, 2021, the Court rendered Partial Final Judgment as to Claims
Regarding Coverage finding that the Rockhill policy provided coverage for the
remainder of Plaintiffs’ judgment in the underlying state court suit against J.M.
Drilling. (Rec. Doc. 402).
2

A Motion/Notice of Application to Have Costs Taxed was filed by Insight on
August 27, 2021, requesting that Rockhill be taxed for costs incurred by Insight.
(Doc. No. 409). In response, Rockhill filed an Opposition (Doc. No. 414), and
Insight replied. (Doc. No. 416).
1. Is Insight entitled to costs from Rockhill?
Prior to analyzing Insight’s requested costs, the Court must determine if
Insight is entitled to costs from Rockhill. Insight maintains that it prevailed against
Rockhill and requests that this Court issue an order taxing costs in the amount of
$20,391.53 against Rockhill. (Rec. Doc. 409-1). Pursuant to Fed.R.Civ.P. 54(d),
“[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney’s fees--should be allowed to the prevailing party.” (Emphasis
added). The term “prevailing party” is not defined; however, the Supreme Court and
Sixth Circuit have provided guidance finding that “a party is the prevailing party
where (1) it receives ‘at least some relief on the merits of [its] claim,’ and (2) there
is a ‘judicially sanctioned change in the legal relationship of the parties.’” Maker’s
Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 425 (6th Cir. 2012)(citing
Buckhannon Board and Care Home v. West Virginia Department of Health and
Human Resources, 532 U.S. 598 (2001)).

3

In the present case, Insight had claims filed against it by Plaintiffs, J.M.
Drilling, and CRC. (See Rec. Docs. 152, 177, & 214). Insight also asserted a claim
against CRC. (See Rec. Doc. 160). Notably, Insight did not have a claim filed
against it by Rockhill, nor did it assert a claim against Rockhill. Rather, Insight’s
defense to the claims filed against it was that the Rockhill policy provided coverage.
As to the claims filed against it, on July 28, 2021, the Court dismissed Plaintiffs’
claim against Insight. (Rec. Doc. 401). On November 3, 2023, Insight, J.M.
Drilling, and CRC filed an Unopposed Joint Motion to Dismiss requesting that all
remaining claims filed against and by them be dismissed. (Rec. Doc. 437). The
Unopposed Joint Motion to Dismiss was granted on December 15, 2023. (Rec. Doc.
438).
Rockhill maintains that it would be improper and inequitable to impose
Insight’s costs on Rockhill because Insight did not prevail on any claims against
Rockhill; indeed, there were no claims between Insight and Rockhill. (Rec. Doc.
414). Insight argues that they would not have been a party to this litigation but for
Rockhill’s erroneous denial of J.M. Drilling’s insurance claim. (Rec. Doc. 416).
Insight maintains that they should be considered the prevailing party as against
Rockhill because they pleaded an affirmative defense that it was not liable to
Plaintiffs, J.M. Drilling, or CRC on the basis that the Rockhill policy provided
4

coverage and judgment was rendered in their favor on their Motion for Summary
Judgment on Insurance Coverage (Id.). The Court disagrees.
To be considered the “prevailing party” against Rockhill, (1) Insight would
need to have received some relief on the merits of a claim against Rockhill, and (2)
there would have been a judicially sanctioned change in the legal relationship
between Insight and Rockhill. See Maker’s Mark Distillery, 679 F.3d at 425. Here,
there were no claims between Insight and Rockhill; rather, Insight received relief on
the merits of claims filed against them by Plaintiffs, J.M. Drilling, and/or CRC.
Insight attempts to equate its affirmative defense that Rockhill’s policy provided
coverage to a claim against Rockhill. (Rec. Doc. 416). An affirmative defense is
not a claim. According to Black’s Law Dictionary, an “affirmative defense” is “a
defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s
or prosecution’s claim, even if all the allegations in the complaint are true.” Black’s
Law Dictionary 482 (9th ed. 2009). Here, Insight asserted facts and arguments
regarding the Rockhill insurance policy that defeated Plaintiffs’, J.M. Drilling’s,
and/or CRC’s claims against it.
Lastly, following the Court’s ruling on Insight’s Motion for Summary
Judgment, there was no change in the legal relationship between Insight and

5

Rockhill. See Maker’s Mark Distillery, 679 F.3d at 425. Rather, Insight and Rockhill
remained co-defendants. As a result, costs are therefore disallowed as submitted.
REVIEW OF COSTS
Pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.5, any
party dissatisfied with the Taxation of Costs may seek review from the Court by
filing a “Motion to Review Costs.” If a review of costs is sought, the Motion to
Review Costs must be filed within seven (7) days after the filing of this taxation of
costs.
Signed at Lafayette, Louisiana, this 28th day of December, 2023.

____________________________________
CAROL B. WHITEHURST
UNITED STATES MAGISTRATE JUDGE

6