COLLICK v. WEEKS MARINE, INC. et al

Filing 191

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 11/18/2013. (jjc)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH COLLICK,
Plaintiff,
v.
WEEKS MARINE, INC., et al.,
Defendants.

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CIVIL ACTION NO. 08-5120 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Plaintiff, Joseph Collick, brought this action against his
former employer, defendant Weeks Marine, Inc. (“Weeks”), and
defendant Haztek, Inc. (“Haztek”), to recover damages for
personal injuries.

(Dkt. entry no. 24, Am. Compl.)

Weeks filed

cross-claims against Haztek seeking, inter alia, “complete
indemnity for all judgment(s) or settlement(s)” and “all defense
costs.”
16.)

(Dkt. entry no. 25, Weeks Answer and Cross-cl. at 13-

Weeks now moves for summary judgment in its favor and

against Haztek, pursuant to Federal Rule of Civil Procedure
(“Rule”) 56, and requests that the Court enter an order (1)
“requiring Haztek to defend and to indemnify Weeks with regard
to plaintiff’s claims asserted against Weeks in this action,”
and (2) awarding Weeks attorneys’ fees and costs.

(See dkt.

entry no. 167, Notice of Weeks Mot.; dkt entry no. 170, Weeks

Br. at 25.)

Haztek opposes the Motion.

(See dkt. entry no.

175, Haztek Br. in Opp’n to Mot. for Summ. J. (“Opp’n Br.”).)
The Court will resolve the Motion on the papers and without
oral argument pursuant to Local Civil Rule 78.1(b).

The Court,

for the reasons stated herein, will deny the Motion.
I.

Summary Judgment Standard
Motions for summary judgment are governed by Rule 56, which

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.”
Fed.R.Civ.P. 56(a).

The movant has the initial burden of

proving the absence of a genuinely disputed material fact
relative to the claims in question.
477 U.S. 317, 330 (1986).

Celotex Corp. v. Catrett,

Material facts are those “that could

affect the outcome” of the proceeding, and “a dispute about a
material fact is ‘genuine’ if the evidence is sufficient to
permit a reasonable jury to return a verdict for the non-moving
party.”

Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).

The burden on the movant may be discharged by pointing

out to the district court that there is an absence of evidence
supporting the nonmovant’s case.

See Celotex, 477 U.S. at 323.

If the movant demonstrates an absence of genuinely disputed
material facts, then the burden shifts to the nonmovant to
2

demonstrate the existence of at least one genuine issue for
trial.

See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986); Williams v. Bor. of W.
Chester, Pa., 891 F.2d 458, 460–61 (3d Cir. 1989).

“Where the

record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for
trial.”

Matsushita Elec. Indus. Co., 475 U.S. at 587 (internal

quotation marks omitted).

The nonmovant cannot, when

demonstrating the existence of issues for trial, rest upon
argument; the nonmovant must show that such issues exist by
referring to the record.

See Fed.R.Civ.P. 56(c)(1).

When determining whether a genuine issue of material fact
exists, the court must view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences in
that party’s favor.

Scott v. Harris, 550 U.S. 372, 380 (2007);

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

If the

nonmovant fails to demonstrate that at least one genuine issue
exists for trial, then the Court must determine whether the
movant is entitled to judgment as a matter of law.

See McCann

v. Unum Provident, 921 F.Supp.2d 353, 357 (D.N.J. 2013).
“A movant is entitled to judgment as a matter of law if, at
trial, no reasonable jury could find for the non-moving party.”
Id.

3

II.

Application of Local Civil Rule 56.1
Local Civil Rule 56.1(a), a companion to Rule 56,

(1) requires parties to present argument by reference to the
materials in the record, and (2) allows the Court to deem the
movant’s factual assertions undisputed, where a nonmovant fails
to present an argument by reference to the record.

See

Fed.R.Civ.P. 56(c), (e)(2); Carita v. Mon Cheri Bridals,
LLC, No. 10–2517, 2012 WL 3638697, at *1–2 (D.N.J. Aug. 22,
2012).

In pertinent part, Local Civil Rule 56.1(a) provides

that:
On motions for summary judgment, the movant shall
furnish a statement which sets forth material facts as
to which there does not exist a genuine issue . . . .
The opponent of summary judgment shall furnish, with
its opposition papers, a responsive statement of
material facts, addressing each paragraph of the
movant’s statement, indicating agreement or
disagreement and, if not agreed, stating each material
fact in dispute and citing to the affidavits and other
documents submitted in connection with the motion; any
material fact not disputed shall be deemed undisputed
for purposes of the summary judgment motion.
L.Civ.R. 56.1(a) (emphasis added).
A movant’s statement of facts and a nonmovant’s related
response serve a vital purpose, in that they assist the Court in
identifying whether material facts are truly in dispute.

See

Am. Plaza, LLC v. Marbo Cross Shop, LLC, No. 08–5963, 2010 WL
455349, at *2 (D.N.J. Feb. 3, 2010).

Local Civil Rule 56.1(a)

thus puts the onus on the parties, rather than the Court, to
4

find evidence of record supporting their respective arguments.
See Baker v. Hartford Life Ins. Co., No. 08–6382, 2010 WL
2179150, at *2 n.1 (D.N.J. May 28, 2010) (“It is not the Court's
responsibility to comb the record on behalf of Plaintiff’s
counsel.”), aff’d, 440 Fed.Appx. 66 (3d Cir. 2011); N.J. Auto.
Ins. Plan v. Sciarra, 103 F.Supp.2d 388, 408 (D.N.J. 1998)
(“[I]t is the responsibility of each party to support its own
contentions with a proper basis in the record of the case.”).
“Given the vital purpose that such rules serve, litigants ignore
them at their peril.”

McCann, 921 F.Supp.2d at 358 (quoting

Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st
Cir. 2007)).
Weeks, pursuant to Local Civil Rule 56.1(a), filed a
statement of facts in support of the Motion.

(See generally

dkt. entry no. 169, Weeks Statement of Material Undisputed Facts
(“Weeks SOF”).)

Haztek filed a response to the Weeks SOF.

(See

generally dkt. entry no. 174-1, Haztek Resp. to Weeks SOF.)
Haztek also filed a Counter Statement of Material Facts.

(See

generally dkt. entry no. 174-2, Haztek Counter Statement of
Material Facts (“Haztek Counter SOF”).)

The Court will consider

the facts recited by Weeks and Haztek, and any material fact not
disputed will be deemed undisputed for purposes of the Motion.
The Court will incorporate the undisputed facts into the
following findings of fact.
5

III. FINDINGS OF FACT
A.

The Agreement Between Weeks and Haztek

Weeks, a marine contractor, was hired by the United States
Navy to reconstruct a pier at the Earle Naval Weapons Station in
Colts Neck, New Jersey (the “Earle Project”).
1-2.)

(Weeks SOF at ¶¶

The Navy contract for the Earle Project required Weeks to

have a Certified Safety Professional (“CSP”) on site whenever
work was being performed at the pier.

(Id. at ¶ 3.)

Weeks

contracted with Haztek to provide a CSP to serve as Site Safety
Officer at the Earle Project.

(See id. at ¶ 5; Haztek Resp. to

Weeks SOF at ¶ 5.)
On July 12, 2005, Haztek sent a Proposal to Weeks for the
services of a CSP, proposing a rate of $91.00 per hour for the
CSP.

(Haztek Counter SOF at ¶ 2; Opp’n Br. at 20.)

Haztek

began to provide a CSP to work for Weeks at the Earle Project
during the week of July 12, 2005.

(Haztek Counter SOF at ¶ 1.)

Haztek’s Proposal does not contain any terms concerning choiceof-law, insurance requirements, or indemnification.

(Id. at ¶

3; see dkt. entry no. 174-4, Decl. of Timothy J. Jaeger, Ex. B,
Haztek Proposal.)

Haztek’s Proposal requested that Weeks sign

and return a copy of the Proposal and send a purchase order to
confirm Weeks’s acceptance of the Proposal’s terms and
conditions.

(See Haztek Proposal at 2.)

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While Weeks never signed and returned a copy of the
Proposal to Haztek, Haztek was nevertheless already providing
services to Weeks.

(See Opp’n Br. at 20.)

On September 2,

2005, Weeks issued a purchase order to Haztek regarding the CSP
for the Earle Project.

(See Opp’n Br. at 20; Haztek Counter SOF

at ¶ 5; see generally dkt. entry no. 174-5, Decl. of Timothy J.
Jaeger, Exs. C-D, Weeks Purchase Order (the “Purchase Order”).)
The Purchase Order indicated a labor rate of $91.00 per hour for
the CSP.

(See Opp’n Br. at 21; Purchase Order.)

The front of

the Purchase Order does not contain any terms regarding choiceof-law, or requirements for insurance or indemnification.
Haztek Counter SOF at ¶ 8; Purchase Order.)

(See

The front of the

Purchase Order does not make any reference to the “Purchase
Order Terms and Conditions” listed on the rear side of the
Purchase Order.
Order.)

(See Haztek Counter SOF at ¶¶ 9-10; Purchase

The Purchase Order Terms and Conditions do not contain

any terms requiring Haztek to obtain insurance for Weeks, but do
contain indemnification and choice-of-law language.
Counter SOF at ¶¶ 11-13; Purchase Order.)

(See Haztek

The rear side of the

Purchase Order provides, in relevant part:
11. PROPERTY AND PERSONAL LIABILITY: Vendor
[(Haztek)] shall save harmless and indemnify us
[(Weeks)] from and against all claims, suits
(including counsel fees and other expenses of suits,
whether groundless or not), judgments and awards on
account of any damage to property or injury (including
death) to person (including any damage or injury to
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the property or the person of any employee of yours or
ours) which may be caused or alleged to have been
caused in whole or in part by, or which may occur or
be alleged to have occurred in connection with the
execution of this order on your part or the use of the
items furnished hereunder, excepting our sole
negligence.
. . . .
15. CHOICE OF LAW: The parties thereto agree that
this contract shall be interpreted in accordance with
the laws of the State of New Jersey.
(Purchase Order.)

No one from Haztek signed the Purchase Order.

(See Haztek Counter SOF at ¶ 14; Purchase Order.)
On November 10, 2005, Weeks and Haztek executed a
Contractor Indemnification Agreement (“CIA”) that was drafted by
Weeks.

(See Weeks SOF at ¶19; Haztek Resp. to Weeks SOF at ¶19;

see generally dkt. entry no. 174-7, Decl. of Timothy J. Jaeger,
Ex. E, CIA.)1

The CIA provides, in relevant part:

1

Much of the disagreement between Weeks and Haztek revolves
around the CIA. Weeks argues that the CIA applies to the Earle
Project, and that the plaintiff’s claims against Weeks trigger
Haztek’s duty to indemnify under the CIA. (See Weeks Br. at 5,
14.) Haztek argues that the CIA “does not specify that it
pertains to the Earle Project,” the terms of the CIA “are
inconsistent with the terms on the rear of the Purchase Order,”
and Steven Jones, the managing partner of Haztek, “testified
that he did not know if the [CIA] pertained to the Earle
Project.” (See Haztek Resp. to Weeks SOF at ¶ 19.) Haztek
therefore argues that “Weeks has failed to demonstrate that the
terms of the [CIA] are part of the agreement between the
parties.” (See Opp’n Br. at 18.)
8

The Work performed hereunder shall consist of:
contracted services as detailed in purchase orders or
as otherwise agreed to by the parties hereto.
In addition to the terms and conditions set forth in
any purchase orders, written or oral agreements or
other contractual obligation, with respect to the
referenced Work and in consideration therefore, the
Contractor agrees to the following:
Contractor shall indemnify and hold WMI harmless from
all liability, loss, cost or damage, including
attorney fees, from claims for injuries or death from
any cause, of Contractor’s employees or the employees
of its subcontractors or agents, or by reason of
claims of any person or persons, including WMI, for
injuries to person or property, from any cause
occasioned in whole or in part by any act or omission
of Contractor, its agents, employees, subcontractors
or suppliers, whether or not it is contended WMI
contributed thereto in whole or in part, or was
responsible therefor by reason of non-delegable duty.
If, however, this indemnification is subject to
limitation by applicable law, then the indemnification
shall be similarly limited to conform with such law,
it being the intention that this indemnification shall
be as broad as permitted by applicable law. WMI may
retain any money due or to become due for the Work
performed, sufficient to indemnify it against such
injuries, claims, suits, actions, costs or damages
should any such claim arise. Contractor shall, at
WMI’s sole option, assume the defense in WMI’s behalf
of any action or proceeding commenced against WMI,
whether or not Contractor is named as a party, as part
of Contractor’s aforementioned obligation to indemnify
and hold WMI harmless.
Except as otherwise provided herein, the obligation of
the Contractor to indemnify and hold WMI harmless is
absolute and is not dependent upon any question of
negligence on its part or on the part of its agents,
officers or employees. The approval of WMI of the
methods of doing the Work or the failure of the WMI to
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call attention to improper or inadequate methods or to
require a change in methods or direct the Contractor
to take any particular precautions or to refrain from
doing any particular thing shall not excuse the
Contractor in case of any such injury to person or
damage to property.
Prior to commencement of any operations by or on
behalf of Contractor relating to the Work, Contractor
shall, at his sole expense, procure and maintain and
provide WMI Certificates of Insurance and, at WMI’s
request, certified copies of policies, evidencing
issuance of the forms of insurance in companies and
amounts and deductibles, if any, acceptable to WMI as
stated in Schedule A – Insurance Requirements
attached.
. . . .
This agreement shall be subject to and governed by the
general maritime law of the United States. To the
extent that the foregoing general maritime law may be
deemed inapplicable, the laws of the State of New
Jersey shall govern and apply.
In the event that the Contractor fails to honor its
obligation hereunder and WMI must employ an attorney
to enforce the provisions herein, Contractor agrees to
reimburse WMI for costs and attorney fees WMI is
obligated to expend in enforcing the terms of this
agreement or defending itself from any claims covered
by this agreement.
(CIA (“WMI” referring to Weeks).)
B.

The Plaintiff’s Injury

The plaintiff, who at the time was a Weeks employee, was
performing construction work at the Earle Project on November
17, 2006, when he was injured.
Br. at 2.)

(See Weeks SOF at ¶ 26; Opp’n

The CSP did not witness the accident, as he was with
10

Weeks’s Corporate Safety Director inspecting the location of
another accident on the construction site.

(See Weeks SOF at ¶¶

28-29; Haztek Resp. to Weeks SOF at ¶¶ 28-29.)
The plaintiff brought this action against Weeks and Haztek.
(See Weeks SOF at ¶¶ 32-34; Haztek Resp. to Weeks SOF at ¶¶ 3234; Am. Compl.)

Weeks subsequently filed a cross-claim against

Haztek for the purported breach of Haztek’s contractual
obligations to defend and indemnify Weeks and to procure and
maintain insurance for Weeks.

(See Weeks SOF at ¶¶ 39-40;

Haztek Resp. to Weeks SOF at ¶¶ 39-40; Weeks Answer and Crosscl. at 13-16.)

Haztek denies that it breached any contractual

obligations to defend and indemnify Weeks and to procure and
maintain insurance coverage for Weeks.

(See Weeks SOF at ¶¶ 42-

43; Haztek Resp. to Weeks SOF at ¶¶ 42-43.)
IV.

ANALYSIS
Weeks argues that it is entitled to summary judgment

because it “entered into a valid and binding indemnification
agreement [with Haztek] in connection with Haztek’s provision of
safety personnel at Weeks’[s] worksite at the [Earle Project].”
(See Weeks Br. at 1.)

Weeks argues that the CIA is applicable

to the Earle Project because “[t]he terms of the CIA clearly
referred to purchase orders already in existence.”

(See Weeks

Reply Br. at 2 (referring to CIA provision that states: “In
addition to the terms and conditions set forth in any purchase
11

orders . . . the Contractor agrees to the following”).)

Weeks

maintains that “[the CIA] clearly set forth that it is governed
by maritime law” and that it “unambiguously states that Haztek
shall indemnify Weeks against claims arising from Haztek’s work,
even if Weeks is found to be at fault in whole or in part.”
(See Weeks Br. at 1.)
Haztek counters that the Motion “must be denied because
Weeks has failed to prove the specific terms of the agreement
between Week[s] and Haztek with respect to the Earle Project,
and has failed to demonstrate that the indemnification language
applies to the Earle Project.”

(See Opp’n Br. at 18.)

Haztek

argues that “[t]he CIA is significant to the extent that it is
devoid of any reference to the Earle Project,” and that “[t]here
is absolutely no indication what exactly the CIA is and to what
it applies.”

(See id. at 22.)

Haztek also notes that “Steve

Jones of Haztek did sign the CIA, but he did not know what the
agreement meant and did not know whether it applied to the Earle
Project or some other project.”

(See id.)

Haztek further

argues that New Jersey Law, and not maritime law, governs the
agreement between Haztek and Weeks (1) because the agreement is
non-maritime in nature, and (2) because of the inconsistency and
ambiguity of the Purchase Order and CIA.

(See id. at 24-25.)

The law applicable to the agreement between Weeks and
Haztek is contingent upon discerning the parties’ contractual
12

intent.

This is because the Purchase Order contains a choice-

of-law provision stating that it is to be interpreted in
accordance with New Jersey law, and the CIA contains a choiceof-law provision stating it is to be governed by maritime law.
(See Purchase Order; CIA.)

Because, as discussed infra, the

Court finds that the disagreement between Weeks and Haztek as to
what terms govern their agreement gives rise to a genuine issue
of material fact, the Court is unable to determine which choiceof-law provision to apply at this time.

The Court will

therefore discuss both New Jersey law and maritime law at this
stage.
Under New Jersey law, “[a] contract arises from offer and
acceptance, and must be sufficiently definite that the
performance to be rendered by each party can be ascertained with
reasonable certainty.”

Weichert Co. Realtors v. Ryan, 608 A.2d

280, 284 (N.J. 1992) (internal quotation marks omitted).

An

enforceable contract is created where the parties agree on
essential terms and manifest an intention to be bound by those
terms.

See id.

“If the terms of the contract are susceptible

to at least two reasonable alternative interpretations, an
ambiguity exists.”

Chubb Custom Ins. Co. v. Prudential Ins. Co.

of Am., 948 A.2d 1285, 1289 (N.J. 2008).

“If the contract is

ambiguous, so that parole [sic] evidence is necessary to resolve
the issue of intent, the meaning of the contract should be left
13

for a fact finder . . . .”

Nadel v. Starkman, A-4204-08T1, 2010

WL 4103626, at *9 (N.J. App. Div. Oct. 20, 2010); see also Fitts
v. Chase Manhattan Mortg. Corp., A-0814-05T5, 2006 WL 3432296,
at *2 (N.J. App. Div. Nov. 30, 2006) (explaining that where
facts needed to interpret contract are in dispute, genuine
issues of fact can exist).
Similarly, under maritime law, “[t]he primary purpose and
function of a court in the interpretation of a maritime contract
is to ascertain the intention of the parties.”

F.W.F., Inc. v.

Detroit Diesel Corp., 494 F.Supp.2d 1342, 1357 (S.D. Fla. 2007),
aff’d, 308 Fed.Appx. 389 (11th Cir. 2009).

The language of a

contract “will be deemed ambiguous where it is reasonably
susceptible to more than one interpretation.”
58.

See id. at 1357-

“When a [maritime] contract is ambiguous, it is for the

jury to determine the meaning of its terms, subject to proper
instructions and based upon evidence of the surrounding
circumstances and the practical construction of the parties.”
Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.,
525 F.3d 409, 422 (6th Cir. 2008).
In support of the Motion, Weeks contends that the following
facts are undisputed: (1) the CIA was executed with respect to
the Earle Project; (2) under the CIA, Haztek was contractually
obligated to defend and indemnify Weeks for personal injury
claims, including plaintiff’s claims; (3) the CIA obligated
14

Haztek to procure and maintain insurance coverage for Weeks that
would correspond to plaintiff’s claims; (4) under the CIA,
Haztek is obligated to pay Weeks’s attorneys’ fees; and (5)
maritime law applies to the subject indemnification agreement.
(See Weeks SOF at ¶¶ 19, 21, 22, 24; Weeks Br. at 12.)

If these

facts were truly uncontested, as Weeks asserts, then the
contractual obligations in this case would be clear and
unambiguous and Weeks would most likely be entitled to summary
judgment.
These facts, however, are contested by Haztek, and Haztek
disagrees with Weeks as to how the parties’ agreement should be
interpreted.

Haztek states that “[t]here are three documents

that arguably comprise the dealings between Haztek and Weeks
with respect to the Earle Project – Haztek’s Proposal, Weeks’[s]
Purchase Order and Weeks’[s] Contractor Indemnification
Agreement.”

(Opp’n Br at 20.)

While Haztek acknowledges that

“there was some agreement in effect between Weeks and Haztek
with regard to the Earle Project,” Haztek stresses that the
parties’ intentions cannot be ascertained from these documents
themselves, as Weeks did not sign Haztek’s Proposal, Haztek did
not sign Weeks’s Purchase Order, and Weeks has not demonstrated
that the CIA was executed with respect to the Earle Project.
(See id. at 18.)

15

The parties’ conflicting positions at this stage in the
litigation are based on their disparate positions regarding what
constitutes the agreement of the parties.

Much of their

disagreement arises from the ambiguous language of the CIA –i.e., “[i]n addition to the terms and conditions set forth in
any purchase orders . . . the Contractor agrees to the
following” -- and whether they intended this language to cause
the CIA to apply retrospectively to the Earle Project.

While

this language could be reasonably interpreted to cause the CIA
to apply to the Earle Project, it is susceptible to another
interpretation.

A subsequent provision in the CIA states:

“Prior to commencement of any operations by or on behalf of
Contractor relating to the Work, Contractor shall, at his sole
expense, procure and maintain and provide WMI Certificates of
Insurance.”

(CIA.)

In light of this provision, which

conceivably creates a condition precedent to the “commencement
of any operations” under the CIA, a reasonable juror could
determine that the parties did not intend for the CIA to apply
retrospectively to the Earle Project, as operations commenced on
the Earle Project several months before the CIA was executed.
The Court acknowledges Weeks’s argument that Steven Jones
“admitted that the CIA applies to Haztek’s work at the Earle
[Project].”

(See Weeks Reply Br. at 3.)

In so arguing, Weeks

refers to Steven Jones’s deposition testimony:
16

A.

So I
CIA]
know
have

don’t know what prompted us signing [the
all of a sudden on November 10th. I don’t
why we would have done that or why we would
been asked to do that, but . . .

Q.

But nonetheless it was asked of you to look at it
and to sign it?

A.

Correct.

. . . .
Q.

And that was part of the agreement for the work
that you undertook for Weeks, pursuant to their
purchase orders including the Earle Project,
correct?
Mr. Jaeger: Objection to the form of the
question.

A.

Correct.

(Dkt. entry no. 174-15, Decl. of Timothy J. Jaeger, Ex. M, Jones
Dep. 108:23-109:7, 109:16-23, Oct. 16, 2012.)

This language

must, however, be read in conjunction with Steven Jones’s
subsequent deposition testimony:
Q.

Any document, any thing, any communication
whatsoever, what is there, if anything, that
would help you refresh your recollection as to
whether the contractor indemnification agreement
marked as Jones Exhibit 3 was signed by you in
connection with the Earle Project, some other
project or all the projects that you were
performing for Weeks?

A.

There is nothing.

Q.

So then your answer is you don’t know whether you
signed Jones Exhibit 3 as part of the Earle
project or some other project?
17

A.

I can’t say for sure one way or the other, no.

(Jones Dep. 185:14-186:6.)

The Court finds that Steven Jones’s

testimony across these two deposition passages is equivocal.
The Court will not, at this time, conclude that he intended the
CIA to apply retrospectively to the Earle Project.
Because the dispute over which document or documents
governed the parties’ agreement is a question of the parties’
intent, and because the resolution of that dispute necessarily
impacts both the indemnification and choice-of-law issues, there
is a genuine issue of material fact.

The dispute over the

contract terms cannot be resolved by the purported contract
documents, by the pleadings, or by the evidence submitted in
support of the Motion.

A genuine issue of material fact

therefore exists, precluding summary judgment.

See Fed.R.Civ.P.

56(e).
V.

CONCLUSION
The parties disagree as to what document or documents

governed their agreement, and a solution is not apparent in the
purported contract documents, in the pleadings, or in the other
evidence submitted in support of the Motion.

Because this

disagreement gives rise to a genuine issue of material fact with
respect to the terms that governed the parties’ agreement,

18

Weeks’s motion for summary judgment is denied.

The Court will

issue an appropriate order.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: November 18, 2013

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