United States District Court, W.D. Louisiana, Lake Charles Division
LOUISIANA UNITED BUSINESS ASSOCIATION CASUALTY INSURANCE CO.
J&J MAINTENANCE, INC., ET AL.
MAURICE HICKS, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court are two motions: (1) Migues Deloach Company,
LLC's (“Deloach”) “Motion for Summary
Judgment” (Record Document 151) and (2) J&J
Maintenance, Inc.'s (“J&J”) “Motion
for Partial Summary Judgment” (Record Document 155),
each seeking a determination of whether Deloach is liable to
J&J for attorney's fees and costs incurred by J&J
in defense of the underlying claims against it in this
matter, as well as attorney's fees and costs incurred in
pursuit of reimbursement of those fees against Deloach. For
the reasons contained herein, Deloach's motion is
DENIED and J&J's motion is
GRANTED IN PART and DENIED IN
AND PROCEDURAL BACKGROUND
matter arises out of an accident which occurred on January
24, 2012, wherein Jonathan West (“West”), an
employee of Deloach, was electrocuted while transporting
construction materials at a remodeling project at a dental
clinic in Fort Polk. See Record Document 31-4. On
the day of the accident, West was working with his
supervisor, Mark Hale (“Hale”), installing metal
finish work on the soffit of the clinic. See Record
Document 155-4 at 41. Although instructed not to do so, West
used a manlift, boomed it away from the building, and caught
the power line. See Record Document 157-3 at 41.
was the general contractor of the remodeling project, and
Deloach, West's employer, was operating pursuant to a
Subcontract Agreement (the “Subcontract”) under
which Deloach was due to supply the earthwork foundation,
steel supports, and other items for the project. See
Record Document 137-1. The Subcontract contained the
following provisions, in pertinent part:
10. (a) To the fullest extent permitted by law, subcontractor
(Deloach) shall unconditionally indemnify, defend (with
counsel selected by contractor (J&J)) and hold harmless
owner, contractor, architect and/or engineer and their
subconsultants and all of their affiliates, parents,
subsidiaries, officers, directors, employees, successors and
assigns (all of which are hereinafter collectively referred
to as “indemnitites”), from and against all
claims, damages, losses, costs and expenses, including but
not limited to attorneys' fees and expenses of dispute
resolution (collectively, “indemnified claims”)
arising out of or resulting from the performance of
subcontractor's work, acts or omissions of subcontractor,
negligence, breach of contract and/or breach of warranty by
subcontractor, even though such damages are caused in part by
the negligence (whether sole, joint or concurrent), strict
liability or other legal fault of the contractor of any other
indemnitee … Nothwithstanding the foregoing, the
indemnification obligation shall be limited to the extent
that the subcontractor's indemnification of the
indemnitee for the indemnitee's own negligence is
specifically prohibited by applicable laws for a particular
type of project.
20. In the event Contractor (J&J) employs an attorney to
enforce any of the provisions hereof, or to protect its
interest in any matter arising under this Agreement, or to
collect damages for breach of this Agreement, or to prosecute
or defend any suit resulting from this Agreement, or to
recover on the surety bond given by Subcontractor under this
Agreement, Subcontractor (Deloach) and his surety, jointly
and severally, agree to pay Contractor all costs, charges,
expenses and attorneys' fees expended or incurred therein
the accident, Louisiana United Business Association Casualty
Insurance Company (“LUBACI”) paid workers'
compensation death benefits to West's heirs. LUBACI then
filed suit to recoup those benefits, asserting it was
entitled to reimbursement because the accident was caused by
the negligence of several defendants, including J&J,
Entergy Louisiana, LLC (“Entergy”), and Volvo
Construction Equipment Rents, Inc. (“Volvo”).
See Record Document 31-4.
December 26, 2012, J&J filed its first Third-Party Demand
against Deloach alleging that J&J and Deloach entered
into a subcontract to perform several aspects of the
remodeling project. See Record Document 151-1.
J&J alleged under the Subcontract that Deloach agreed to
defend and indemnify J&J against any damages arising out
of the performance of Deloach's work. See id.
Deloach filed an Exception of Prematurity regarding these
defense and indemnity claims, which was sustained by the 30th
Judicial District Court, Vernon Parish, on September 3, 2013.
See Record Document 137. Additionally, J&J was
named as a cross-defendant on a related claim in
Entergy's cross-claim filed on March 26, 2013.
See Record Document 151-2. Subsequent to this
cross-claim, J&J filed a First Supplemental and Amending
Third-Party Demand against Deloach, asserting that Deloach
was liable for defense and indemnification against
Entergy's claims as well. See Record Document
J&J filed an Exception of No Right of Action asserting
Louisiana's workers' compensation immunity under La.
R.S. 23:1032 (“LWCA immunity”), the claims
presented by LUBACI against J&J were dismissed in a
Consent Judgment signed on February 24, 2014. See
Record Document 155-6. On May 27, 2015, this case was removed
to this Court pursuant to 28 U.S.C. § 1331. See
Record Document 1. On May 19, 2017, J&J filed its
Cross-Claim and Renewed Third-Party Demand against Deloach.
See Record Document 137. Entergy's Cross-Claim
against J&J was dismissed via a settlement agreement
procured by Deloach on November 13, 2017. Thus, the only
remaining claim at issue in this matter is J&J's
claims against Deloach for the costs of defense, including
attorneys' fees incurred in defending against claims
brought by LUBACI and Entergy, as well as attorneys' fees
and costs incurred in prosecuting this claim against Deloach.
December 19, 2017, Deloach filed its Motion for Summary
Judgment on J&J's cross-claims. See Record
Document 151. J&J filed its opposition on December 29,
2017, to which Deloach replied on January 5, 2017.
See Record Documents 157 and 158. The Court allowed
J&J to file a sur-reply, which it did so on January 17,
2018. See Record Document 164. In addition to its
opposition, J&J filed its own Motion for Partial Summary
Judgment on December 29, 2017. See Record Document
155. Deloach opposed the motion on January 12, 2018, and
J&J replied on January 18, 2018. See Record
Document 160 and 161. Deloach also filed a sur-reply on
January 22, 2018. See Record Document 169. The
issues have been briefed extensively by the parties;
therefore, the matter is ripe for decision.
Summary Judgment Standard
of the F.R.C.P. governs summary judgment. This rule provides
that the court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” F.R.C.P. 56(a). Also, “a party
asserting that a fact cannot be or is genuinely disputed must
support the motion by citing to particular parts of materials
in the record, including ... affidavits ... or showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” F.R.C.P.
56(c)(1)(A) and (B). “If a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact as required by Rule
56(c), the court may ... grant summary judgment.”
summary judgment motion, “a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings ... [and]
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553
(1986) (internal quotations and citations omitted). If the
movant meets this initial burden, then the non-movant has the
burden of going beyond the pleadings and designating specific
facts that prove that a genuine issue of material fact
exists. See Celotex, 477 U.S. at 325, 106 S.Ct. at
2554; see Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). A non-movant, however, cannot meet the
burden of proving that a genuine issue of material fact
exists by providing only “some metaphysical doubt as to
the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence.” Little, 37 F.3d at 1075.
in deciding a summary judgment motion, courts “resolve
factual controversies in favor of the nonmoving party, but
only when there is an actual controversy, that is when both
parties have submitted evidence of contradictory
facts.” Id. Courts “do not, however, in
the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts.” Id.
argues J&J's motion for partial summary judgment is
untimely; therefore, the Court should dismiss it.
See Record Document 160 at 4. Conversely, J&J
argues its motion is a motion for “partial summary
judgment” and is beyond the scope of the dispositive
motion deadline as set forth in the Court's Scheduling
Order. See Record Document 161. J&J's
argument is incorrect. First, a “dispositive
motion” includes a motion that, if granted, would
result in the determination of a particular claim on the
merits. See Tripoli Rocketry Ass'n, Inc. v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 698
F.Supp.2d 168, 173 (D.D.C. 2010). J&J's labeling of
its motion as one for “partial summary judgment”
does not defeat what the motion seeks - a determination of
whether Deloach is liable for the costs of defense, including
attorneys' fees incurred in defending against claims of
LUBACI and Entergy, as well as attorneys' fees and costs
incurred in J&J's prosecution of this claim against
Deloach. Additionally, courts have traditionally treated
motions for “partial summary judgment” as
dispositive motions. See Geiserman v. MacDonald, 893
F.2d 787, 790 (5th Cir. 1990); Arnold v. Nat'l Cas.
Co., 2014 WL 50832, *2 (W.D. La. 2014); S. Filter
Media, LLC v. Halter, 2014 WL 4278788, *4 (M.D. La.
2014); Pratt Paper (LA), LLC v. JLM Advanced Tech.
Servs., Inc., 2016 WL 5854235, *2 (W.D. La. 2016);
Hinton v. Pike Cty., 2017 WL 2378361, *2 (S.D.Miss.
2017). Accordingly, J&J's “motion for partial
summary judgment” is considered a dispositive motion.
Court's Scheduling Order, all dispositive motions were
due ninety (90) days before trial. See Record
Document 136 at 1. With a trial date of March 19, 2018, this
made all dispositive motions due on December 19, 2017.
See Record Document 135. J&J filed its Motion
for Partial Summary Judgment on December 29, 2017, ten (10)
days after the deadline. See Record Document 155.
Therefore, J&J's motion is considered untimely.
However, under the circumstances in the instant matter, the
Court does not believe dismissal would be proper.
J&J's motion seeks a ruling on the same legal
question posed in Deloach's motion - whether Deloach is
liable for the costs of defense incurred in defending and
prosecuting claims arising from the subcontract - and there
are no facts in dispute between the parties. While
J&J's motion was filed late, the Court finds that
considering the motion will not unduly prejudice Deloach and
will allow the Court to render judgment on a purely legal
question without requiring this issue to go to trial. See
Pratt Paper (LA), LLC v. JLM Advanced Tech. Servs.,
Inc., 2016 WL 5854235, *2 (W.D. La. 2016) (“The
decision to permit an untimely motion is ultimately at the
judge's discretion.) (citing S&W Enters., L.L.C.
v. Southtrust Bank of Ala., 315 F.3d 533, 536-37 (5th
Cir. 2003)). Therefore, the Court will consider J&J's
Motion for Partial Summary Judgment despite its untimely
Interpretation of the Subcontract's Indemnity
motion for summary judgment, Deloach argues that the
Subcontract limits reimbursement of defense costs to
situations of negligence or breach committed only by Deloach.
See Record Document 151-6 at 6-7. Conversely,
J&J asserts Deloach's indemnification obligations are
triggered not just by its own negligence, but also by any
claims “arising out of or resulting from the
performance of [Deloach's] work.” Record Document
157 at 4. In its Reply, Deloach argues that J&J has not
shown the “connexity” between the accident and
the work to trigger the indemnity provision. See
Record Document 158 at 3-6.
Louisiana law, the language in an indemnity agreement
dictates the obligations of the parties. See Bollinger
Marine Fabricators, LLC v. Marine Travelift, Inc., 2015
WL 1638115, *4 (E.D. La. 2015), citing Kinsinger v. Taco
Tico, Inc., 861 So.2d 669, 671 (La.App. 5 Cir. 2003).
“[I]ndemnity provisions are construed in accordance
with general rules governing contract interpretation. When
the terms of a contract are unambiguous and lead to no absurd
consequences, [courts] interpret them as a matter of
law.” Id., quoting Liberty Mut. Ins. Co.
v. Pine Bluff Sand & Gravel Co., 89 F.3d 243, 246
(5th Cir. 1996) (internal citations omitted). While a
contract of indemnity whereby an indemnitee is indemnified