JOHN C. DANIELS, ET AL. Plaintiffs-Appellees
INTERNATIONAL PAPER COMPANY Defendant-Appellant
from the Forty-Second Judicial District Courtfor the Parish
of DeSoto, Louisiana Trial Court No. 75485 Honorable Charles
Blaylock Adams, Judge.
MILLER LLP By: Scott L. Zimmer, William H. Priestley, Jr.
Counsel for Appellant International Paper Company.
BARRASSO, USDIN, KUPPERMAN, FREEMAN & SARVER, L.L.P.By:
H. Minor Pipes, III Susan M. Rogge, Counsel for Appellee
Security National Insurance Company.
THOMAS, SOILEAU, JACKSON, BAKER & COLE, L.L.P., By:
Steven E. Soileau, Counsel for Third Party Appellee L&R
Timber Co., Inc.
CHARLES S. NORRIS, JR. JOSEPH PAYNE WILLIAMS, CHRISTOPHER
JOEL NORRIS, Counsel for Appellees John C. Daniels and
DREW, STONE, and COX, JJ.
matter involving a third-party demand for indemnification,
defense, and insurance coverage, International Paper Company
("IP") appeals a summary judgment dismissing its
claims against L&R Timber Co., Inc.
reverse the judgment in part, affirm in part, and remand.
April of 2011, IP and L&R executed a "Master Wood
Purchase and Service Agreement" ("Agreement")
under which L&R agreed to sell, deliver, cut, convert,
and/or transport forest products to IP's facilities or
other designated destinations for acceptance and/or purchase
Agreement required L&R to make IP an additional insured
on its Commercial General Liability and Automobile Liability
policies. The contract also contained an indemnification
clause, which provided:
13. Indemnity: (a) Seller agrees to defend,
indemnify, and hold Buyer harmless from and against any and
all claims, losses, demands, liens, causes of action or
suits, judgments, fines, assessments, liabilities, damages
and injuries (including death) of whatever kind or nature,
including to all persons or property, arising out of, on
account of, or as a result of, directly or indirectly,
Seller's or its subcontractors' operations,
performance or nonperformance under this Agreement, whether
or not caused or alleged to have been caused, in whole or in
part, by the negligence of Buyer. Without limiting the
generality of the foregoing, Seller specifically agrees to
defend Buyer in any suit against Buyer (regardless of whether
Seller is also a party to the suit) arising out of, on
account of, or resulting directly or indirectly from
Seller's or its subcontractors' operations,
performance or nonperformance under this Agreement. Seller
hereby waives, as against Buyer, any immunity from suit
afforded by applicable workers compensation laws.
(b) At Buyer's request, Seller shall provide to Buyer at
Seller's expense, a complete defense of any such claim,
demand, cause of action, or suit, and Seller shall bear all
attorneys' fees; costs of defense; court costs; expert,
discovery and investigative fees; and costs of appeal, all to
the end that Buyer shall incur no costs or expense of any
kind associated with the full and complete defense of any
such claim, demand, cause of action or suit, or of enforcing
Seller's compliance with this paragraph 13. Seller agrees
that Buyer has the right to be represented by separate
counsel of its own selection, at Seller's sole expense.
Buyer's exercise of its right to select its own separate
counsel will in no way diminish or release Seller's
obligation to indemnify and hold Buyer harmless.
(c) Except in jurisdictions where prohibited by law, Seller
agrees that its duty to defend, indemnify, and hold Buyer
harmless is not dependent upon Seller's fault or
negligence. Seller's duty to defend, indemnify and hold
Buyer harmless exists for each and every claim or suit that
arises out of, or in any way relates to, Seller or its
subcontractor's operations, performance, or
nonperformance under this Agreement. Similarly, except in
jurisdictions where prohibited by law, Seller agrees to
defend, indemnify and hold Buyer harmless from and against
any claim of liability to Seller's employees, and Seller
hereby waives any immunity under workers compensation laws to
the extent necessary to give effect to this provision.
(d) Seller agrees that its duties and obligations under this
paragraph 13 are distinct from, are independent of, and are
not intended to be coextensive with, its duty to procure the
insurance coverage required by the terms of this Agreement.
November 20, 2012, L&R and John Daniels entered into a
"Logging and Fiber Supply Hauling Contract" under
which Daniels agreed to transport forest products and related
commodities. Daniels also agreed to assume sole
responsibility for unloading his trailers at all destination
15, 2013, Daniels drove a truck delivering a load of wood
chips for L&R to IP's mill in Mansfield, Louisiana.
He asserted that on the instructions of IP's employees,
he drove his truck onto a scale, exited his truck, and then
went to the scale house to pick up his scale ticket. As he
attempted to reenter his truck, the catwalk on which he was
required to walk collapsed, causing him to land on his knees
and sustain injuries to his knees and lower back.
filed suit against IP on April 9, 2014. He argued that the
catwalk was in the care, custody, and control of IP, that IP
knew or should have known of the defective condition of the
catwalk, and that IP failed to exercise reasonable care by
failing to inspect and repair it. He asserted that IP was
liable for his damages in accordance with La. C.C. arts.
2315, 2317, and 2317.1.
April 6, 2015, IP filed a third-party demand against L&R
in which it asserted that under the terms of the Agreement:
(i) IP was to be an additional insured on the Commercial
General Liability and Automobile Liability policies
maintained by L&R; (ii) L&R was to indemnify IP
against Daniels' claims; and (iii) L&R agreed to
provide IP with a complete defense against Daniels'
filed an exception of prematurity against the third-party
demand. It also filed an incidental demand against Daniels,
asserting that the contract between Daniels and L&R
contained a provision that Daniels agreed to indemnify and
hold L&R harmless from any and all claims resulting from
Daniels' operations. The exception of prematurity was
6, 2016, IP amended its third-party demand to allege that
L&R had breached its obligations under the Agreement to
provide a defense to IP against Daniels' claims and to
name IP as an additional insured on its policies. IP
contended that even though L&R obtained an endorsement to
its CGL policy listing IP as an additional insured, L&R
did not obtain the specific coverage required by the
filed a third-party demand against Security National
Insurance Company ("Security"), L&R's
liability insurer. IP alleged that under the CGL policy,
Security had a duty to defend and indemnify IP, as an
additional insured, for the alleged damages in Daniels'
filed an answer and affirmative defenses in response to
IP's third-party demand. Security denied that IP was
named an additional insured under the policy. Among
Security's defenses was that it did not owe IP a defense
or indemnity under the policy because IP was not a named
insured or named additional insured, or otherwise qualified
as an additional insured following a change endorsement
effective December 9, 2012.
filed a motion for summary judgment against IP's
third-party demand. L&R contended that because most of
the wood harvested was from Texas, Texas law should be used
to interpret the Agreement. L&R argued that the
indemnification provisions did not meet the fair notice
requirements under Texas law. L&R also argued that if
Louisiana law applied, the Agreement should be deemed
unenforceable as a matter of law as a contract of adhesion
because it was created without L&R's input, contained
very small print, and put L&R in the disadvantageous
position of being required to sign the contract without a
meeting of the minds or lose the business opportunity.
Finally, L&R contended that it did not intend to
indemnify IP against liability arising from premises defects
on IP's property over which L&R had no care, custody,
filed an opposition to the motion for summary judgment as
well as its own cross-motion for summary judgment. L&R
filed an opposition to ...