BRAD D. McCARY
OCEANEERING INTERNATIONAL, INC.
Appeal from the 17th Judicial District Court In and for the
Parish of Lafourche State of Louisiana Trial Court No. 111,
360 Honorable John E. LeBlanc, Judge Presiding.
Patrick Skiles Morgan City, LA Willard P. Schieffler
Thibodaux, LA, Attorneys for Plaintiff-Appellee, Brad D.
Michael A. McGlone Brett Fenasci New Orleans, LA, Attorneys
for Defendant-Appellee, Oceaneering International, Inc.
S. Johnson Christopher L. Williams New Orleans, LA, Attorneys
for Intervenors-Appellants, International Marine Services,
LLC and Signal Mutual Indemnity Association, LTD.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
Mr. Brad McCary, was injured on a vessel owned by defendant,
Oceaneering International, Inc., during the course and scope
of his employment with International Marine Systems, LLC
(IMS). He received benefits under the Longshore and Harbor
Workers' Compensation Act (LHWCA) from IMS and its
insurer, Signal Mutual Indemnity Association, LTD (Signal).
IMS and Signal (Intervenors) intervened in plaintiffs suit
against the alleged third-party tortfeasor, Oceaneering,
seeking subrogation for expenses and benefits paid on his
behalf. In response, Mr. McCary and Oceaneering filed
separate motions for summary judgment seeking dismissal of
Intervenors' claims based on a Mutual Indemnity and
Waiver Agreement entered into by Oceaneering and IMS. Both of
their motions were granted, and Intervenors appealed.
March 2008, Mr. McCary was employed by IMS as an electronics
technician. At that time, IMS was providing electrical
services directly for Oceaneering. On March 3, 2008, in the
course and scope of his employment with IMS, Mr. McCary was
working on a job aboard a vessel owned and operated by
Oceaneering and docked in Port Fourchon, Louisiana, when he
fell while on the stairs of the vessel. After his fall,
IMS's compensation insurer, Signal, paid compensation and
medical benefits to Mr. McCary on behalf of IMS under the
March 3, 2009, Mr. McCary filed suit against Oceaneering,
alleging negligence on the part of Oceaneering and seeking
damages for injuries he sustained as a result of the fall. On
October 4, 2011, Intervenors filed a petition for
intervention in Mr. McCary's suit seeking to recover the
compensation and medical benefits that Intervenors paid to
Mr. McCary, if there should be any recovery of damages by Mr.
McCary from Oceaneering.
numerous motions, discovery requests, and a change of
counsel, on January 18, 2017, Mr. McCary filed a motion for
summary judgment seeking dismissal of Interveners' claims
based on a "Mutual Indemnity and Waiver Agreement"
between IMS and Oceaneering executed on September 27, 2006,
in which Mr. McCary contends that IMS contractually agreed to
waive all claims of subrogation and/or reimbursement (the
agreement). On February 3, 2017, Oceaneering also filed a
motion for summary judgment seeking dismissal of
Intervenors' claims for the reasons laid out in Mr.
McCary's motion. Intervenors opposed both motions
contending that the agreement did not apply to this case.
Specifically, Intervenors argued that under paragraph (a),
the agreement only applies in situations when both IMS and
Oceaneering are working for some common third party but not,
as in this case, when IMS was doing work directly for
matter came before the trial court for hearing on May 3,
2017, at which time, the trial court found that under the
clear language of the contract, "IMS and Oceaneering
intended to modify their relationship and enter into this ...
agreement to avoid disputes as to their respective property
and employees." Thereafter, on May 23, 2017, the trial
court signed a judgment granting both Mr. McCary and
Oceaneering's motions for summary judgment and dismissing
the claims of Intervenors. It is from this judgment that
Intervenors appeal, contending that the trial court erred in
its interpretation of the scope of the agreement.
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law. La. Code Civ. P. art. 966(A)(3). The
summary judgment procedure is favored and is designed to