Mays v. C-Dive, LLC

         SECTION “H” (5)

          ORDER AND REASONS

          JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion for Summary Judgment to Dismiss Additional Assured Claim Asserted by Gulf South Pipeline, LP filed by Defendant-in-Cross-Claim C-Dive, LLC, and Third-Party Defendants Catlin Insurance Company and New York Marine and General Insurance Company (Doc. 40). For the following reasons, the Motion is DENIED.

         BACKGROUND

         This is a consolidated action of five cases arising from a pipeline explosion. Plaintiffs Jason Mays, Brian Beadell, Matthew Boyd, and Adam Zima (“Plaintiffs”) allege that they worked for C-Dive, LLC (“C-Dive”) aboard its vessel, the DSV MS KERCI. According to Plaintiffs, the DSV MS KERCI was servicing a pipeline owned by Gulf South Pipeline Company, LP (“Gulf South”) in the Gulf of Mexico. During work on August 26, 2015, there was a release of gas that caused an explosion and injured Plaintiffs.

         The following business relationships involving the pipeline work are undisputed.^[1] The pipeline in question was owned and operated by Gulf South, which is a subsidiary of Boardwalk Pipelines, LP (“Boardwalk Pipelines”).^[2] In January 2011, Boardwalk Pipelines entered into a Master Services Agreement (“MSA”) with C-Dive.^[3] According to C-Dive, the MSA was a blanket contract that did not itself authorize any specific work, but that would be followed by work orders between the parties adopting the terms of the MSA. On August 11, 2015, C-Dive and Gulf South entered into one such work order, the Scope of Work Agreement (“SWA”), whereby C-Dive was to decommission the pipeline later involved in the explosion.^[4]

         The SWA between C-Dive and Gulf South contains a provision incorporating the MSA. It states,

Gulf South and Contractor hereby agree that Contractor shall perform the Project described herein pursuant to the terms and conditions contained in the following documents and any exhibits and/or parts thereto: (i) this Scope of Work and (ii) the Master Services Agreement (MSA No. 0800180B-MA) by and between Boardwalk Pipeline Partners, LP and Contractor dated December 8, 2008 (“MSA”).^[5]

         The MSA applies to, at least in part, both Boardwalk Pipelines and its subsidiaries, including Gulf South. The agreement is “by and between BOARDWALK PIPELINES, LP (hereinafter referred to as ‘Boardwalk') and C-DIVE, LLC, ” and provides that “[r]eference to Boardwalk shall also include its subsidiaries and direct or indirect affiliates of Boardwalk, including but not limited to . . . Gulf South Pipeline Company, LP.”^[6] The MSA requires C-Dive to maintain certain insurance and further states that, “All policies, with the exception of Worker's Compensation and Professional Liability, shall be endorsed to include Boardwalk Pipelines, LP as additional insured and these policies will respond as primary to any other insurance available to Boardwalk.”^[7]

         In separate consolidated actions, Plaintiffs bring claims for negligence, Jones Act negligence, and unseaworthiness against C-Dive and Gulf South. In the final consolidated matter, C-Dive seeks a limitation of liability pursuant to 46 U.S.C. § 30505. Gulf South makes cross-claims in each of the consolidated actions against C-Dive, alleging that C-Dive is required to defend and indemnify Gulf South under the MSA. Gulf South also makes third-party claims in each of the consolidated actions against Catlin Insurance Company (“Catlin”) and New York Marine & General Insurance Company (“New York Marine”) as an additional insured under policies those companies issued to C-Dive. Gulf South asserts that the MSA requires C-Dive to make Gulf South an additional insured on C-Dive's comprehensive general liability policies issued by Catlin and New York Marine, triggering coverage for Gulf South via automatic additional insured clauses in those policies.

         C-Dive, Catlin, and New York Marine (collectively, the “Moving Parties”) now move for summary judgment dismissing Gulf South's claims seeking additional insured status under C-Dive's policies. They argue that the MSA obligated C-Dive to name only Boardwalk Pipelines as an additional insured, not also its subsidiaries.

         LEGAL STANDARD

         Summary judgment is appropriate if “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”^[8] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”^[9]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.^[10] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”^[11] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”^[12] “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”^[13] The Court does ...