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Hernandez v. EMC Divers, Inc.

United States District Court, E.D. Louisiana

October 3, 2018

ANTONIO HERNANDEZ
v.
EMC DIVERS, INC., ET AL.

         SECTION "L" (2)

          ORDER & REASONS

          ELDON E. FALLON, UNITED STATES DISTRICT JUDGE

         Mactech Incorporated d/b/a Mactech Offshore (“Mactech”) moves for summary judgment on its cross-claim and third party complaint, finding that it is entitled to defense, indemnity, and additional insured status from EMC Divers, Inc. (“EMC”) and Great American Insurance Company (“Great American”). R. Doc. 39. EMC and Great American oppose. R. Doc. 42. For the reasons that follow, the motion is DENIED.

         I. BACKGROUND

         Plaintiff Antonio Hernandez sued EMC, Mactech, and Broussard Brothers, Inc. (“Broussard”) after he was struck by a hydraulic diamond wire saw during an underwater dive. Mactech filed a cross-claim against EMC and a third party complaint against EMC's insurer, Great American, asserting that they owe Mactech defense, indemnity, and additional insured status in the underlying action.

         At the time of the accident, Hernandez was performing work that was the subject of a Master Service Agreement (the “Agreement”) between EMC and Broussard. The work required the use of a hydraulic diamond wire saw, which was provided by Mactech. The Agreement requires EMC to defend and indemnify Broussard and its subcontractors against personal injury claims of EMC employees, including Hernandez, and to name them as additional insureds. At issue here is whether Mactech is a subcontractor of Broussard.

         II. PRESENT MOTION

         Mactech moves for summary judgment on its cross-claim and third party complaint, holding that EMC and Great American are required to defend, indemnify, and provide all rights and benefits as an additional insured to Mactech in the underlying personal injury action.

         Under the Agreement, Mactech is entitled to defense and indemnity from EMC if it is a member of Broussard's “Company Group, ” defined as follows:

“Company Group” shall mean, individually or in any combination, [Broussard], its parent, affiliate, subsidiary entities, customer/client, and their joint venturers, joint interest owners, partners, co-owners, co-lessees, contractors, and subcontractors of every tier (other than Contractor and its subcontractors), and the representative directors, officers, agents, representatives, employees, and invitees of all of the forgoing.

         The Agreement also requires EMC to name the members of the “Company Group” as additional insureds on its insurance policies, including the Great American policy.

         Mactech contends that it is a subcontractor of Broussard - and member of the Company Group - because (1) Mactech rented the saw to Broussard, and (2) an attached Master Subcontractor Service Agreement between Broussard and Mactech (the “Mactech-Broussard Contract”) identifies Mactech as a “subcontractor” of Broussard. R. Doc. 39.

         EMC and Great American respond in opposition and argue that there are material issues of fact concerning Mactech's status as a subcontractor. R. Doc. 42. First, they contend that there is nothing in the Mactech-Broussard Contract from which the Court may determine that it was still valid or in effect at the time of Hernandez's accident. Next, they point to the fact that Broussard did not procure the saw directly from Mactech. Documents attached to their opposition show that Mactech initially provided the saw to G&M Rentals, LLC (“G&M”), and Broussard obtained it through a rental agreement with G&M. R. Doc. 42-1. There was no direct communication between Broussard and Mactech regarding the subject saw.

         Mactech argues in reply that the documents provided by EMC and Great American do not establish a question of material fact - they unequivocally link Mactech and Broussard, through G&M. And since “Company Group” includes “subcontractors of every tier, ” they further cement Mactech's status as a subcontractor of Broussard (though perhaps ...


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