The Brock Group, Inc. v. AIG Specialty Insurance Company et al

Filing 34

OPINION Dismissing Zachry. Because Brock did not plausibly plead its claim against Zachry, Zachry will be dismissed. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
United States District Court
Southern District of Texas

The Brock Group, Inc.,
Plaintiff,
versus
AIG Specialty Insurance Company,

et

aI.,

Defendants.

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ENTERED
February 13, 2017
David J. Bradley, Clerk

Civil Action H,r6'366s

Opinion Dismissing Zachry
I.

Introduction.

After a scaffold had structural damage at a company's plant, the company
settled with the contractor that built the scaffold. The contractor's insurer
denied coverage. The contractor sued the insurance company and two other
firms that it claimed were partly responsible. The contractor did not sufficiently
plead its claim against one of those firms. It will be dismissed.

2..

Facts.
Dow Chemical Company engaged three contractors. No contractor had

an agreement with another. The work was done at Dow's petrochemical plant
in Hahnville, Louisiana. Dow hired Zachry Industrial, Inc., to do mechanical
work on an ethylene column. Dow hired Petrin Corporation to sandblast. Dow
hired the Brock Group to design and build a 2.48,foot scaffold to allow the others
to work on the ethylene column. AIG Specialty Insurance Company insures
Brock for its professional liability.
On March 2.6, 2.015, inspectors discovered that the scaffold's structure
was failing. Repairing it delayed work on the column. InJuly, Dow sent a letter
to Brock claiming that it had lost $ I 6 million from the scaffold delay. Dow said
that Brock had defectively designed the scaffold. Brock wrote AIG in November
to tell it about Dow's claim. In February of 2.016, AIG denied coverage. On

March 28, 20r6, Dow and Brock settled for $8 million. In the agreement, Brock
did not claim to settle anyone else's liability.
Brock's analysis of the cause says that it did not build it to the design. Its
load ratings were not accurate, and it did not identify missing pieces during
inspections. It notes that sand accumulated on the scaffold as a result of Petrin' s
blasting but does not say whether the accumulated sand caused the damage. In
the additional observations section, Brock mentions that others might have
removed handrails without authorization. In an email, Brock told AIG that an
"authorized" modification caused the scaffold failure.
Brock did not support a prima facie case against Zachry. Brock now says
I

that Zachry removed a handrail on the scaffold without authorization. As proof,
Brock offered two pictures - one of a section of the scaffold with a bent leg and
without a handrail and one of a tag with Zachry's name on it attached to a
nearby pipe. The tag has neither date nor explanation.
Brock says that Louisiana law applies.

3.

N egligcnce.
Brock has not plausibly pleaded negligence. No evidence shows that the

absence of this handrail caused the structure to fail. No evidence shows that the
handrail was ever attached to the scaffold. No evidence shows that Zachry
removed it. No evidence shows that if Zachry removed it, it did so without
authorization.
The picture shows only a section of the scaffold without a handrail. The
tag with Zachry's name does not say what Zachry did, when it did it, why it
attached the tag, or whether what it did was authorized.

lSee Ashcroft v. Iqbal, 556 U.S. 662 (200g); Bell Atlantic Corporation v. TwomblY, 550 U.S.
544 ( 200 7).

4.

Contribution.
Brock is liable only for its own fault, and contribution among tortfeasors

has been eliminated in Louisiana.' Even if Zachry were also at fault, it could not
be made to contribute to Brock.
5.

lndemniry.
Brock and Zachry do not have a contract. Without a contract, a party

that has paid a claim but is not at fault may be indemnified by the actual party at
fault,3 Brock admits fault. Zachry does not have to indemnify it.

6.

Subrogation.
Brock cannot to be step into Dow's shoes to be compensated by Zachry.

Brock has not shown that Zachry is responsible at all. Zachry and Brock did not
contract with each other. In the Brock - Dow settlement, Brock did not purport
to settle anyone else's liability.

7.

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Conclusion.
Because Brock did not plausibly plead its claim against Zachry, Zachry

will be dismissed.
Signed on February ~,

2017,

at Houston, Texas.

Lynn N. Hughes
United States DistrictJudge

2See Dumas 'V. State ex rd. Dept. of Culture, Recreation & Tourism, 02.-563 (La.
82.8 So. 2.d 530.

3Nassif'V· Sunrise Homes, Inc., 98-3193 (La. 6/29/99); 739 So. 2.d 18 3.
+See La. Civ. Code Ann. art. 182.9(3).

lOIr 5/02.);