Blue Racer v. Kelchner Inc et al

Filing 61

Memorandum Opinion and Order The Court DENIES Kelchners motion for leave to designate ProFoam as a responsible third party. (Ordered by Judge Ed Kinkeade on 5/8/2018) (svc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BLUE RACER MIDSTREAM, LLC,
Plaintiff,
v.
KELCHNER, INC.,
Defendant

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Civil Action No. 3:16-CV-3296-K

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Kelchner, Inc.’s Motion for Leave to Designate
Responsible Third Party and Brief in Support Thereof (Doc. No. 56). After carefully
considering the motion, the record, and the applicable law, the Court DENIES
Kelchner, Inc.’s motion because Kelchner’s designation is inapplicable to the
contract-based claims and because Kelchner agreed to indemnify Blue Racer
Midstream, Inc. (“Blue Racer”) for the negligence of retained third parties.
Kelchner, Inc. (“Kelchner”) cannot use Chapter 33 of the Texas Civil Practice
and Remedies Code to avoid liability on Blue Racer’s contract-based claims. Texas
courts have found that Section 33.002, allowing for the designation of responsible
third parties, “applies exclusively to actions based in tort or brought under the DTPA,
so a defendant cannot designate a responsible third party with respect to a contract
claim against him.” Nels Cary, Inc. v. Day, Civ. Action No. 3:07-CV-0832-D, 2008
WL 631242, at *2 (N.D. Tex. Feb. 29, 2008) (Fitzwater, C.J.); see also TEX. CIV.
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PRAC. & REM. CODE § 33.002. Thus, Kelchner cannot designate ProFoam, LLC
(“ProFoam”) as a responsible third party as to the contract-based claims.
Similarly, designating ProFoam as a responsible third party on the negligencebased claims is inappropriate. In the Master Service Agreement (“MSA”) between
Blue Racer and Kelchner, Kelchner agrees to indemnify Blue Racer against any
damages incurred by a third party subcontractor. Because Kelchner retained
ProFoam, Kelchner is responsible to Blue Racer for any damages ProFoam allegedly
caused. Kelchner cannot avoid its contractual obligations by designating ProFoam as
a responsible third party.
Because Kelchner cannot designate ProFoam as a responsible third party on
the contract based claims and because Kelchner agreed to indemnify Blue Racer for
the negligence of retained third parties, the Court DENIES Kelchner’s motion for
leave to designate ProFoam as a responsible third party.
SO ORDERED.
Signed on May 8th, 2018.
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ED KINKEADE
UNITED STATES DISTRICT JUDGE

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