United States District Court, M.D. Louisiana
STEVEN MOORE, ET AL.
HOME DEPOT USA, INC., ET AL.
RULING AND ORDER
A. JACKSON JUDGE
the Court are Cross-Motions for Summary Judgment
(Docs. 153, 221, 232) filed by Depositors Insurance
Company ("Depositors") and Home Depot USA, Inc.
("Home Depot"). For the reasons that follow,
Depositors' Motions for Summary Judgment (Docs.
153, 221) are DENIED and Home
Depot's Motion for Summary Judgment (Doc.
232) is GRANTED.
dispute arises from a project to install rooftop
air-conditioning units at a Home Depot store. (Docs. 1-2,
50). Steven Moore was electrocuted by a power line owned by
Entergy Louisiana, LLC ("Entergy") as he unloaded
air-conditioning supplies for Commercial Coolants, Inc.
("Commercial Coolants") to install. (Id.)
Moore and his wife sued Home Depot, Entergy, Commercial
Coolants and others involved in the project. (Id.).
issue on summary judgment are duties of defense and indemnity
Home Depot contends that Commercial Coolants'
insurer-Depositors-owes Home Depot as an additional
insured under a blanket additional-insured
endorsement in a commercial general liability policy that
Depositors issued to Commercial Coolants. (Docs. 153, 221,
232). The undisputed facts follow.
2010, Home Depot and Commercial Coolants entered into a
Maintenance Services Agreement ("MSA"). (Docs.
221-7, ¶ 3; 232-2, ¶ 4). The MSA requires
Commercial Coolants to "provide materials, equipment,
tools, and labor to perform" services described in
future work orders. (Docs. 221-1, p. 1; 233-6, p. 1). It
contains an indemnification provision:
7.0 Indemnification. Contractor
("Indemnitor") shall indemnify, defend, and hold
harmless Home Depot, its parent, affiliates, subsidiaries,
officers, employees, and agents ("Indemnitees")
from and against any and all claims, lawsuits, judgments,
losses, product recalls, and civil penalties for actions,
liabilities, damages, costs, and expenses, including
attorney's fees and court costs, arising out of or
related to (a) the death of or injury to any person
(including any employee or agent of Contractor) or property
damage which resulted or is alleged to have resulted from any
acts or omissions of Contractor, its employees and agents,
subcontractors and/or any other persons for whose conduct it
may be or is alleged to be legally responsible[.]
(Docs. 221-1, p. 3; 233-6, p. 3).
also contains a provision that requires Commercial Coolants
to obtain insurance naming Home Depot as an additional
8.1 Required Coverage. During the
term of this agreement, including any applicable warranty
period, Contractor agrees to maintain, at Contractor's
sole cost and expense, the following insurance coverage: . .
. (c) Commercial General Liability Insurance, on an
occurrence basis, naming Home Depot as an additional insured,
with a combined single limit of liability for bodily injury
(including, without limitation, death) and property damage of
not less than $2, 000, 000 per each occurrence, and in the
aggregate not less than $5, 000, 000[.]
(Docs. 221-1, p. 3; 233-6, p. 3).
2015, Home Depot accepted Commercial Coolants' bid to
complete an "HVAC replacement project" at the Home
Depot store located at 18139 Highland Road, Baton Rouge,
Louisiana 70810. (Doc. 221-4). The project called for
Commercial Coolants to remove and replace 17 rooftop
air-conditioning units. (Doc. 233-8). As part of the project,
on November 2, 2015, Steven Moore delivered air-conditioning
supplies to the Home Depot store. (Docs. 232-2, p. 1; 266-1,
p. 1). As Moore unloaded the supplies, he touched an overhead
power line. (Id.). This litigation followed. (Docs.
originally sued in the 19th Judicial District Court for the
Parish of East Baton Rouge, and Plaintiffs originally named
only Home Depot and Entergy as Defendants. (Id.).
Plaintiffs' Original Complaint alleges that Steven Moore
arrived at the Home Depot store before it opened, when a Home
Depot employee told Moore to park near a low-hanging power
line. (Doc. 1-2, ¶ 4). The Original Complaint alleges
that Moore complied and was electrocuted by Entergy's
power line. (Id. at ¶ 7). And the Original
Complaint concludes that Home Depot's and Entergy's
negligent failure to maintain the power line and to warn
Steven Moore of its unsafe condition caused Moore's
electrocution. (Doc. 1-2, ¶¶ 10-11).
Depot removed the suit based on diversity jurisdiction. (Doc.
1). Entergy then filed a Crossclaim (Doc. 9) against Home
Depot and a Third-Party Demand (Doc. 37) against Commercial
Coolants, alleging that Home Depot and Commercial Coolants
violated the Louisiana Overhead Power Line Safety Act.
See LA. REV. Stat. §§ 45:141-146.
Plaintiffs, in turn, amended their Complaint to add
Commercial Coolants as a Defendant. (Doc. 50, ¶ 1).
Amended Complaint, Plaintiffs allege that Commercial Coolants
negligently failed to "(a) provide Plaintiff a safe
place to prepare and unload the HVAC system on the trailer;
(b) ensure that the location to park the Moore vehicle was a
safe and secure area; and (c) properly supervise the safe
delivery and unloading of the HVAC system." (Doc. 50,
¶ 11-4). Plaintiffs also allege a direct-action claim
against Depositors under La. Rev. STAT. § 22:1269.
(Id. at ¶ 11-5).
answered the Amended Complaint and crossclaimed against Home
Depot. (Doc. 68). Depositors' Crossclaim invokes
Louisiana's anti-indemnity statute for construction
contracts, La. Rev. Stat. § 9:2780.1, and asks the Court
to declare that Depositors need not defend or indemnify Home
Depot as an additional insured under the commercial general
liability policy Depositors issued to Commercial Coolants.
(Id. at p. 16). In response, Home Depot
counterclaimed against Depositors for penalties, damages,
attorneys' fees, and a declaration that Depositors owes
it defense and indemnity. (Doc. 104, p. 12).
that § 8.1 of the MSA required Commercial Coolants to
obtain commercial general liability insurance naming Home
Depot as an additional insured. (Docs. 221-1, p. 3; 233-6, p.
3). Commercial Coolants did not do so - at least not with
respect to the policy in effect at the time Steven Moore
alleges he was injured. (Doc. 232-2, ¶ 9; 266-1, ¶
9). Commercial Coolants did, however, obtain a Depositors
commercial general liability policy containing this blanket
A. Section II - Who Is An Insured is amended to include as an
insured any person or organization whom you are required to
add as an additional insured on this policy under a written
contract or written agreement. The written contract or
written agreement must be:
1. Valid and legally enforceable;
2. Currently in effect or becoming effective during the term
of this policy; and
3. Executed prior to an "occurrence" resulting in
"bodily injury," "property damage," or
"personal and advertising injury."
* * *
B. The insurance provided to the additional insured is
farther limited as follows:
1. That person or organization is an additional insured, but
only with respect to liability for "bodily injury"
or "property damage" caused, in whole or in part,
by "your work" for the additional insured which is
the subject of the ...