United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court is T.D. Farrell Construction, Inc.'s
Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc.
10) and The Charter Oak Fire Insurance
Company's Motion to Dismiss Pursuant to Rule 12(b)(6)
(Doc. 11). Third-party Defendants, T.D. Farrell
Construction, Inc. ("T.D. Farrell") and The Charter
Oak Fire Insurance Company ("Charter Oak") seek to
dismiss the claims brought by third-party Plaintiff Best Buy
Company, Inc. ("Best Buy") under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. Best
Buy filed an Opposition to the Motions to Dismiss. (Doc. 23).
Charter Oak then filed a Reply in Support of the Motion to
Dismiss. (Doc. 33). T.D. Farrell also filed a Reply in
Support of the Motion to Dismiss. (Doc. 34). In response,
Best Buy filed Sur-Replies in Opposition to the Motions to
Dismiss. (Docs. 35, 36). Lastly, Charter Oak filed a
Sur-Reply in Support of the Motion to Dismiss. (Doc. 37). The
Court has jurisdiction under 28 U.S.C. § 1332. Oral
argument is not necessary. For the following reasons, the
Motions to Dismiss (Docs. 10, 11) are
Thomas McCann ("McCann") filed suit against Best
Buy and Thomas Grace Construction, Inc. ("Thomas
Grace") on June 29, 2015, which was removed to federal
court on February 24, 2017. (Doc. 1). On May 25, 2017, McCann
filed an amended complaint in which T.D. Farrell was added as
an additional Defendant. (Doc. 38). McCann seeks to recover
from Best Buy, T.D. Farrell, and Thomas Grace for injuries
sustained on July 2, 2014, while remodeling a Best Buy store
located in Baton Rouge, Louisiana. (Id. at
¶¶ 5-8). McCann alleges that he worked under the
direction and supervision of Best Buy, T.D. Farrell, and
Thomas Grace. (Id.). During the construction work,
Best Buy and Thomas Grace allegedly directed McCann to remove
and relocate a large interior wall with inadequate assistance
in an area covered with construction debris. (Id. at
¶ 6). As he was performing this work, certain Best Buy
employees purportedly caused the "large interior"
wall to topple over onto McCann, causing his injuries.
(Id. at ¶¶ 7, 10-11).
January 4, 2017, Best Buy was granted leave in the 19th
Judicial District Court, State of Louisiana, to file a Third
Party Demand against T.D. Farrell and Charter Oak. (Doc.
1-4). According to Best Buy, McCann was employed by Thomas
Grace, which is the subcontractor on the Best Buy store
remodeling project. (Id. at p. 3). Best Buy alleges
that it entered into a "Lump Sum (LS) Remodel
Construction Contract" ("the Construction
Contract") with T.D. Farrell to act as general
contractor on the Best Buy store remodeling project.
(Id. at ¶ 3; Doc. 10-2). Best Buy further
alleges that the Construction Contract between it and T.D.
Farrell required T.D.
"to fully defend, indemnify, and hold harmless Best Buy
against any and all liability, claims, suits, actions, losses
and expenses, including costs and attorney fees, relating to
or arising out of any claim or demand ... by any employees or
subcontractors performing work on the site who are injured
during or arising out of the Best Buy store remodeling
project. (Id. at ¶ 4). Moreover, Best Buy
alleges that the Construction Contract required T.D. Farrell
to name Best Buy as an additional insured on T.D.
Farrell's general insurance policies to provide coverage
to Best Buy for bodily injuries and damages such as the
injuries allegedly sustained by McCann. (Id. at
¶ 5). Best Buy further alleges that it is entitled to
defense and indemnity from the general liability insurance
policy, "Commercial General Liability Policy"
("the Charter Oak Policy"), obtained by T.D.
Farrell issued through Charter Oak. (Doc. 10-5). According to
Best Buy, it is entitled to defense and indemnity from
Charter Oak both as an additional insured under the Charter
Oak Policy and the policy's purported obligation to
provide contractual coverage to Best Buy for the indemnity
provision contained in the Construction Contract. (Doc. 1-4
at ¶ 8). Best Buy seeks indemnity from T.D. Farrell and
Charter Oak for any damages Best Buy must pay to McCann, as
well as any expenses incurred defending against McCann's
claims. (Id. at ¶ 10). Finally, Best Buy
asserts that T.D. Farrell and Charter Oak are acting in bad
faith by failing to defend it in this action. (Id.
at ¶ 11).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint against the legal standard set forth in Rule
8, which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Ashcroft, 556 U.S. at 679.
plausibility" exists "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out
"detailed factual allegations, " but something
"more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action" is
required. Twombly, 550 U.S. at 555. When conducting
its inquiry, the Court "accepts all well-pleaded facts
as true and views those facts in the light most favorable to
the plaintiff." Bustos v. Martini Club Inc.,
599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted).
in considering a Rule 12(b)(6) Motion to Dismiss, "the
court may review the documents attached to the motion to
dismiss, e.g., the contracts [at] issue here, where
the complaint refers to the documents and they are central to
the claim." Kane Enters, u. MacGregor (USA)
Inc., 322 F.3d 371, 374 (5th Cir. 2003); see also
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498-99 (5th Cir. 2000).
support of their motions to dismiss, T.D. Farrell and Charter
Oak attached the Construction Contract and the Charter Oak
Policy at issue. (Docs. 10-2, 10-5).
to Section 8.15 of the Construction Contract ("the
indemnity provision") between Best Buy and T.D. Farrell:
The Contractor shall indemnify and hold harmless the Owner
[and the Owner's] . . . agents and employees from and
against all claims, damages, losses, and expenses including
attorney's fees arising on account of loss, claims,
damages and expenses . . . because of bodily injury . . .
sustained by any person . . . arising out of, resulting by or
for Contractor in the course of fulfillment of
Contractor's obligations ...