United States District Court, E.D. Louisiana
BOLLINGER MARINE FABRICATORS, LLC AND BOLLINGER SHIPYARDS LOCKPORT LLC
MARINE TRAVELIFT, INC., Section: R(2)
ORDER AND REASONS
SARAH S. VANCE, District Judge.
This dispute concerns a contractual indemnity claim made by plaintiffs Bollinger Marine Fabricators, L.L.C. and Bollinger Shipyards Lockport, LLC (collectively, "Bollinger") against defendant Marine Travelift, Inc. Bollinger seeks indemnification for costs, expenses, and attorneys' fees in connection with defending against the underlying suit. Marine Travelift contends that Bollinger is not entitled to indemnity. The parties have filed cross motions for summary judgment. Because no genuine issues of material fact exist as to Bollinger's claim against Marine Travelift and Bollinger is entitled to judgment as a matter of law, the Court grants Bollinger's motion and denies Marine Travelift's motion.
This contractual indemnity dispute arises out of a personal injury lawsuit brought by Inosencio Paz in the United States District Court for the Southern District of Texas.
A. The Indemnity Provision
In 2005, Bollinger agreed to build a barge, the "MONTVILLE, " for Moran Towing Company. The specifications for the barge required a hatch cover crane. Under Purchase Order BMF 224357, Bollinger purchased a HTC600D hatch crane from Marine Travelift to install on the barge. Purchase Order BMF 224357 states that it is "governed by the Purchaser Order Terms and Conditions, rev. 7/10/01, (available at www.bollingershipyards.com or upon written request directed to Material Control, P.O. Box 250, Lockport, LA 70374)...."
The Purchaser Order Terms and Conditions states that " Any purchase order issued by any Bollinger company shall include and be subject to the following conditions :"
12.INDEMNIFICATION - Seller shall indemnify and hold Buyer harmless against all liabilities, losses, damages and expenses, including reasonable attorney's fees, for personal injuries, death or property damage incident to, arising out of, [ sic ] resulting from the activities of Seller, its employees and agents, or its subcontractors and their agents and employees, or in connection with the work to be performed, services to be rendered, or materials to be furnished, under any Purchase Order, except in those instances where such liability, losses, damages or expenses are caused solely and directly by Buyer's negligence. Seller shall Indemnify and hold Buyer harmless from and against any claim, demand, action, proceeding, or expenses, including reasonable attorney's fees, brought or instituted against Buyer by a third party in connection with any alleged loss or damage resulting from, arising out of or in connection with any alleged loss or damage resulting from, arising out of or in connection with any alleged patent infringement, copyright infringement, trade secret violation, or other asserted right to or in any goods purchased by Buyer from Seller under this P/O.
After Bollinger's purchase and receipt of the crane, Moran Towing, at the recommendation of Bollinger, chose to upgrade the standard audible alarm horn and warning lights installed on the crane. Marine Travelift sold the upgraded components directly to Moran Towing and billed Moran Towing for the equipment directly. The parties dispute whether the alarm horn and warning lights were subject to the Purchase Order Terms and Conditions.
B. The Underlying Suit
In February 2013, Inosencio Paz, an employee of Moran Towing, was injured by the crane while working as a member of the United States Maritime Service cleaning crew aboard the MONTVILLE. Paz was injured when an employee of Moran, who was operating the hatch cover crane, caused the crane to move forward and strike Paz as he stood on the crane's dedicated track. Paz sued the barge owner, Moran Towing, claiming the accident resulted solely from a Moran Towing employee's negligent operation of the crane, particularly the failure to use a required signalmen or spotter to ensure the safe movement of the crane, which caused Paz to be struck by the crane. At the time, Paz made no claim against either Marine Travelift, the crane manufacturer, or Bollinger, the barge manufacturer.
Moran Towing filed a third-party complaint against Bollinger and Marine Travelift claiming a right of contribution for any amounts it may be required to pay in connection with Paz's claims "as a result of any allegations related to the crane, warning lights and/or audible alarm." Moran later filed an amended third party complaint where it reiterated this allegation. Paz then filed a first amended complaint against Moran Towing, Bollinger, and Marine Travelift, asserting the same allegations as did Moran Towing against Bollinger and Marine Travelift related to the crane, warning lights, and/or audible alarm. Specifically, Paz alleged negligence by Bollinger and Marine Travelift "in the manufacturing, design, marketing and subsequent handling, inspection and/or servicing of the of the [ sic ] crane and its warning light and audible alarm;" "breach of contract including breach of implied warranties for the crane, warning light and audible alarm;" "breach of the warranty of workmanlike performance for the crane, warning light and audible alarm;" and strict liability "for placing the crane, warning light and audible alarm... into the stream of commerce." Paz also alleged negligence based on the absence of a "placard with general operating instructions" affixed to the crane. Paz re-alleged these claims in his second amended complaint.
On February 21, 2014, Bollinger filed a counterclaim against Moran Towing seeking indemnity based upon the Vessel Construction Agreement that existed between Moran and Bollinger. In a letter dated May 7, 2014, Bollinger sought defense and indemnity from Marine Travelift on the basis of the Purchase Order Terms and Conditions. Marine Travelift never provided defense nor indemnity based on this request. On June 16, 2014, while the Paz litigation was still pending, Bollinger filed this indemnity action against Marine Travelift in the 17th Judicial District Court for the Parish of Lafourche, State of Louisiana. Marine Travelift timely removed the matter to this Court on July 31, 2014.
On October 20, 2014, the United States District Court for the Southern District of Texas granted a Joint Motion to Dismiss filed by Moran Towing and Bollinger requesting that all claims asserted by or against such parties be dismissed with prejudice. On the same day, the district court entered a Final Judgment dismissing with prejudice all claims by Paz against Bollinger, Moran Towing, and Marine Travelift. The Final Judgment indicated that the parties settled all claims. As a result, there was no trial on ...