United States District Court, W.D. Louisiana, Lafayette Division
Consent of the Parties
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
the Court is a Motion for Summary Judgment filed by Bob
Morrow Construction Company (“BMCC”) [Rec. Doc.
79], an Opposition Memorandum filed by Page Properties &
Construction LLC (“Page”) [Rec. Doc. 100], an
Opposition Memorandum filed by United Fire and Casualty
Company (“United Fire”) [Rec. Doc. 107] and
BMCC's Reply thereto [Rec. Doc. 116]. For the following
reasons, BMCC's motion will be granted.
Beverly J. Carter (“Carter”) alleges she
sustained physical injuries on July 15, 2013, when she
stepped on a rusty nail negligently left on the premises of
the Somerset Apartments by Page Properties and Construction
LLC (“Page”), an Alabama limited liability
company. R. 1-2; R. 11 at ¶ 6. As
this motion was filed by BMCC, the Court will discuss only
those facts pertinent to BMCC.
Somerset Apartments in Youngsville, Louisiana, are owned by
Youngsville, an Alabama limited liability limited
partnership. BMCC, an Alabama corporation, was the general
contractor that contracted with Youngsville for construction,
roofing and renovation work at the Somerset Apartments.
Id., Exh. A. Page was the subcontractor of BMCC,
that performed the work at the Somerset Apartments. Id.,
Exh B; Exh C, R. 65-5, Admission Nos. 3, 4.
Certificates of Substantial Completion for the work at issue
are dated December 22, 2013; January 10, 2014; April 18,
2014; July 22, 2014. R. 65-4, Exh. D.
Subcontracts between Page and BMCC identifies BMCC as
“Contractor, ” Page as “Subcontractor,
” and Youngsville as “Owner” (the
“Subcontracts”). R. 65-4, Exh B, p. 1.
The Subcontracts refer to the “Prime Contract”
between Youngsville and BMCC dated August 28, 2013, and
identify the “Project” as “the Renovations
to Somerset Apartments.” Id. United Fire was
the general liability insurer of Page. Pursuant to the
Subcontracts, Page was required to carry Completed Operations
insurance coverage in the amount of $1 Million per
occurrence, and to maintain said coverage for three (3) years
after completion of the work. Id. § 9.1 at p.
9. In addition, pursuant to Section 9.5 of the
Subcontracts, Page agreed to defend and indemnify the
Contractor, BMCC, from claims arising out of or resulting
from Page's performance under the subcontract, whether
meritorious or not, and also agreed to insure all of the
contractual indemnities contained therein. Id., §
9.5. Page also agreed to defend, indemnify, and hold
BMCC harmless from and against claims, damages, losses and
expenses, including but not limited to attorney's fees,
arising out of or resulting from Page's performance of
the work. 1d., § 11.1. Finally, the
Subcontracts provided that they are governed by the laws of
the state of Alabama. Id., § 5.2 at p.
to the removal of this litigation, Defendants filed a Third
Party Demand against Page in the Fifteenth Judicial District
Court proceeding. The Third Party Demand makes claims of
additional insured status under a general liability policy,
and contractual indemnity pursuant to the Subcontract
agreements between Page and BMCC. R. 65-4.
Subsequent to the removal of this litigation, BMCC filed a
Cross-Claim naming Page and United Fire, making demands for
additional insured status and indemnity demands.
Contentions of the Parties
contends that, as General Contractor for Youngsville, it is
entitled to defense, indemnification pursuant to the terms of
the Subcontracts between BMCC, as General Contractor for
Youngsville, and Page, for work performed on the premises
which is alleged to be the source of the rusty nail that
caused Plaintiff's injury. BMCC contends that Page agreed
to defend and indemnify it from claims such as those asserted
by Plaintiff in the instant case, and that the Subcontracts
are governed by Alabama law which does not prohibit the
provisions for defense, indemnity and insurance coverage
contained therein. BMCC further contends that it is entitled
to insurance coverage from United Fire pursuant to Section
9.1 of the Subcontracts.
argues that Louisiana law applies to the Subcontracts.
Specifically, Page contends that Louisiana's
anti-indemnity statute, La. R.S. 9:2780.1, applies and voids,
as against public policy, the insurance and indemnity
requirements contained in the construction Subcontracts.
BMCC's contractual indemnity contentions, United Fire
states that genuine issues of fact exist as to whether or not
Plaintiff's claim arose out of Page's work. United
Fire also argues that Louisiana law applies to the
Subcontracts, and therefore, La. R.S. 9:2780.1 voids the
additional insured provision of the Policy. Alternatively,
United Fire contends that the allegations against Youngsville
in Plaintiff's petition fail to “impute Page's
fault to Youngsville” as required under the additional
insured provision of the Policy.
Summary Judgment Standard
judgment is appropriate “[i]f the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P.56(c). A genuine issue of fact exists only
“[i]f the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986).
determining whether the movant is entitled to summary
judgment, the Court views facts in the light most favorable
to the nonmovant and draws all reasonable inferences in his
favor. Coleman v. Houston Indep. Sch. Dist., 113
F.3d 528 (5thCir.1997). “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.”
Engstrom v. First Nat'l Bank of Eagle Lake, 47
F.3d 1459, 1462 (5th Cir.1995). Once the burden
shifts to the respondent, he must direct the attention of the
court to evidence in the record and set forth specific facts
sufficient to establish that there is a genuine issue of
material fact requiring a trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). There must be
sufficient evidence favoring the non-moving party to support
a verdict for that party. Wood v. Houston Belt &
Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992). “We
do not ... in the absence of any proof, assume that the
nonmoving party could or would prove the necessary
facts.” Badon v. RJR Nabisco, Inc., 224 F.3d
382, 394 (5th Cir.2000).
Subcontracts at issue in this matter contain an express
choice-of-law provision which states, “This Subcontract
shall be governed by the laws of the State of
Alabama.” R. 65-4, § 5.2, p. 4.
BMCC filed this motion moving the Court to find that Alabama
law should govern the Subcontracts. Page and United Fire
argue that Louisiana law applies to the Subcontracts, and
therefore, the application of Louisiana's Anti-Indemnity
Statute, La. R.S. 9:2780.1, prohibits the defense and
indemnification provisions in the Subcontracts.
Court has previously addressed these same issues in the
Motion For Summary Judgment filed by Youngsville and Morrow
Reality Company, R. 65, and opposed by Page and
United Fire, R. 99, 106. There, the Court held that
because Alabama has the most pertinent contacts in this
action, Alabama law applies to the contracts. As Louisiana
has no interest in the application of its laws to this
contractual dispute, La. R.S. 9:2780.1 is not
Defense, Indemnity and Insurance Coverage
to the Subcontracts, Page was obligated to carry CGL
insurance with the General Contractor, BMCC, to provide
defense and indemnity and insurance coverage.
9.5 of the Subcontracts provides in pertinent part.
9.5. INDEMNIFICATION. The Subcontractor agrees to assume the
entire responsibility and liability for all damages or injury
to all persons, and to all property, arising out of or in any
manner connected with the execution of the Work under this
Subcontract and to the fullest extent permitted by law,
the Subcontractor shall defend and indemnify the
Contractor from all such claims, whether meritorious or
not, allegations of its own independent
negligence or the alleged negligence of others, including