United States District Court, E.D. Louisiana
ORDER AND REASONS
KURT D. ENGELHARDT, District Judge.
Presently before the Court is (1) Plaintiffs' "Motion for Summary Judgment" (Rec. Doc. 45) and Defendant Continental Insurance Company's ("Continental") "Re-urged Motion for Summary Judgment" (Rec. Doc. 59). On the showings made, IT IS ORDERED that Plaintiffs' motion for summary judgment (Rec. Doc. 45) is hereby GRANTED IN PART to the extent that Plaintiffs seek amounts incurred in defending claims asserted by Abraham Mayorga from Continental and Vertex Services, LLC ("Vertex"); however, the motion is DENIED IN PART to the extent that Plaintiffs claim fees and expenses incurred pursuing defense and indemnity against Continental and Vertex. In addition, Defendant's re-urged motion (Rec. Doc. 59) is hereby DENIED as stated herein.
For a full explanation of the background in this case, the Court hereby incorporates by reference Section I of its March 27, 2013 Order. (Rec. Doc. 21). Since that Order, the Court entered final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure in favor of Plaintiffs Tetra Technologies, Inc. and Maritech Resources, Inc. (collectively, "Tetra") against Vertex and Continental. Continental appealed. (Rec. Doc. 28). The Fifth Circuit dismissed the appeal for lack of jurisdiction because the Circuit found that there was no final dispositive judgment. (Rec. Doc. 34). The parties have since stipulated that Exclusion g, contained in the Marine Services Liability Policy issued by Continental to Vertex (the "Policy"), does not apply. (Rec. Doc. 44 at p. 2). The parties also stipulated as to the amount ($784, 202.76) and reasonableness of Tetra's damages relating to the costs of defending and settling Mayorga's claim. (Id. at p. 1-2).
Tetra now moves for summary judgment claiming that Vertex and Continental are liable to reimburse Tetra in the amount of $784, 202.76 as well as an additional $64, 741.42, the amount Tetra spent prosecuting its claim for defense and indemnity against Vertex and Continental. (Rec. Doc. 45-1 at p. 6-7). To the contrary, Continental argues, in its re-urged motion, that it does not owe the original sum of $784, 202.76 under Exclusion d of the Policy. (Rec. Doc. 59-1 at p. 2). Furthermore, Continental asserts that it does not owe additional amount of $64, 741.42 based on Exclusion b of the Policy. (Rec. Doc. 48). The Court notes that at least one of the claims present in Tetra's motion differs from the claim in Continental's motion; however, the law applicable to, and the contract interpretation issues presented in, the motions are identical. Therefore, the Court addresses both motions for summary judgment in the instant Order.
II. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001). When considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare System, L.L.C., 277 F.3d 757, 764 (2001).
III. Application of the Legal Standard
A. Tetra's Motion
1. Costs of Defense and Indemnity (the "Original Indemnity Claim")
Tetra argues that Vertex and Continental are liable to reimburse Tetra for (1) the cost of defending Mayorga's claim (the "original indemnity claim") and (2) fees and expenses incurred in prosecuting its claim for defense and indemnity (the "supplemental indemnity claim"). (Rec. Doc. 45). The Court previously found in favor of Tetra for costs incurred defending the original indemnity claim on the grounds that Tetra was covered under the Master Service Agreement ("MSA") and the Policy because (1) the LOIA did not void Vertex's indemnity agreement and associated additional insured provisions contained in the MSA and (2) Exclusion d did not bar Tetra's coverage. (Rec. Doc. 21). The Court did not grant summary judgment based on the application of Exclusion g. (Id. at p. 23). The parties have since stipulated that Exclusion g does not apply. Supra. Therefore, Tetra proposes that the Court can enter a final judgment in the amount of $784.202.76. For the reasons stated in the Court's previous Order (Rec. Doc. 21) and those contained in the following sections, the Court finds that summary judgment is appropriate and hereby GRANTS judgment in favor of Tetra in that amount against Continental and Vertex.
2. Fees Incurred Pursuing Defense and Indemnification (the "Supplemental Indemnity Claim")
In addition, Tetra claims that the Court should enter judgment that includes an extra $64, 741.42 based on fees and expenses Tetra incurred pursuing its defense and indemnity claim against Vertex and Continental. As stated above, the parties stipulated that the MSA is an "insured contract." The parties dispute, however, whether or not the language in subpart (2) of Exclusion b ("the exception") provides coverage inclusive of Tetra's fees and expenses incurred in pursuing the supplemental indemnity amount. (Rec. Doc. 44). In its motion for summary judgment (Rec. Doc. 45), Tetra argues that the damages alleged are covered as part of the exception. (Id. at p.11). In its opposition to Tetra's motion for summary judgment (Rec. Doc. ...