CROSSTEX ENERGY SERVICES, LP, CROSSTEX LIG, LLC, AND CROSS TEX PROCESSING SERVICES, LLC
TEXAS BRINE COMPANY, LLC, ET AL.
FROM THE 23rd JUDICIAL DISTRICT COURT ASSUMPTION
PARISH, LOUISIANA DOCKET NUMBER 34, 202 HONORABLE JASON
Leopold Z. Sher James M. Garner Peter L. Hilbert, Jr. Neal J.
Kling Jeffrey D. Kessler New Orleans, Louisiana and Robert
Ryland Percy, III Gonzales, Louisiana and Travis J. Turner
Gonzales, Louisiana and Eric J. Mayer Houston, Texas
Attorneys for Defendant/ Third Party-Plaintiff/ Appellant
Texas Brine Company, LLC
E. Mercer Kourtney T. French New Orleans, Louisiana and
Philip Robert King Chicago, Illinois Attorneys for
Third-Party Defendant/ Appellee Zurich American Insurance
Company Pro Hae Vice
WHIPPLE, C.J., MCDONALD, AND CHUTZ, JJ .
appeal, an insured appeals a summary judgment in favor of its
insurer concluding the insurer did not owe the insured a duty
to defend against the plaintiffs' claims in the
underlying litigation and dismissing the insured's third
party demand against the insurer, with prejudice. We affirm.
AND PROCEDURAL HISTORY
suit is one of several arising from the August 2012
appearance of a sinkhole near Bayou Corne in Assumption
Parish, Louisiana. EnLink f/k/a Crosstex, the plaintiffs
in the underlying litigation, own and operate a natural gas
pipeline that traverses the edge of a salt dome. Texas
Brine operates brine production wells, including
the Oxy Geismar #3 well, on property above the salt dome.
EnLink filed suit against Texas Brine and one of its
insurers, Zurich American Insurance Company (Zurich), among
others, alleging the sinkhole was caused, in whole or part,
by the failure of the Oxy Geismar #3 salt cavern and that the
sinkhole engulfed a section of EnLink's pipeline,
rendering the pipeline displaced, damaged, and unusable.
response to EnLink's suit, Texas Brine filed a third
party demand for declaratory judgment seeking defense and
indemnity from insurers Zurich, National Union Fire Insurance
Company of Pittsburgh, Pa. (National Union) and AIG Specialty
f/k/a AISLIC (sometimes, collectively, AIG Insurers),
under certain pre-2012 liability policies issued to Texas United
course, the AIG Insurers filed a motion for summary judgment,
claiming they had no duty to indemnify or defend Texas Brine
in this suit, because EnLink's alleged damages did not
occur during the effective date of any of the relevant
policies, the last of which indisputably expired on March 1,
2009, more than three years before the sinkhole appeared.
Zurich filed a motion for summary judgment, and partially
joined in the motion for summary judgment filed by the AIG
Insurers, claiming it had no duty to indemnify or defend
Texas Brine in this suit, because EnLink's alleged
damages did not occur during the effective dates of any of
its relevant policies, the last of which indisputably expired
on March 1, 2012, five months before the sinkhole
judgment signed February 14, 2017, the district court granted
summary judgment in favor of the AIG insurers, in their
capacities as Texas Brine's pre-2012 insurers, and
dismissed Texas Brine's third party demand against them.
Texas Brine appealed that judgment. In a judgment signed
March 1, 2017, the district court granted Zurich's motion
for summary judgment and Zurich's partial joinder in the
motion for summary judgment filed by the AIG Insurers,
dismissing all claims asserted by Texas Brine against Zurich,
with prejudice. Texas Brine appealed the
the appeal was pending, EnLink apparently settled its claims
against Texas Brine, and those claims were dismissed.
According to Texas Brine, however, this appeal still presents
the issue of whether genuine issues of material fact exist
such that Zurich owed Texas Brine a duty to defend Texas
Brine on the EnLink claims against it until the date those
claims were resolved and dismissed.
Brine contends that the district court erred in granting
summary judgment to Zurich because there are genuine issues
of material fact as to when EnLink's damage began that
preclude summary judgment on Zurich's duty to defend.
Specifically, Texas Brine argues the pre-2012 Zurich policies
do not limit coverage to property damage that manifests
itself during the policy period but should be interpreted to
cover possible hidden property damage to EnLink that may have
resulted from earth movement that may have occurred during
the policy periods. Texas Brine also contends that the
district court erred, because another district court in other
sinkhole-related cases denied summary judgment to insurers on
the duty to defend issue.
motion for summary judgment is a procedural device used to
avoid a full-scale trial when there is no genuine issue of
material fact. Jones v. Anderson, 16-1361 (La.App. 1
Cir. 6/29/17), 224 So.3d 413, 417. After an opportunity for
adequate discovery, a motion for summary judgment shall be
granted if the motion, memorandum, and supporting documents
show there is no genuine issue as to material fact and that
the mover is entitled to judgment as a matter of law.
LSA-C.C.P. art. 966A(3). The only documents that may be filed
in support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written
stipulations, and admissions. LSA-C.C.P. art. 966A(4).
burden of proof rests on the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment,
the mover's burden on the motion does not require him to
negate all essential elements of the adverse party's
claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. LSA-C.C.P. art.
courts review evidence de novo under the same criteria that
govern the trial court's determination of whether summary
judgment is appropriate. Jones, 224 So.3d at 417.
Thus, appellate courts ask the same questions: whether there
is any genuine issue of material fact and whether the mover
is entitled to judgment as a matter of law. Id.
Because it is the applicable substantive law that determines
materiality, whether a particular in dispute is material can
be seen only in light of the substantive law applicable to
the case. Id.