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Moore v. Home Depot USA, Inc.

United States District Court, M.D. Louisiana

October 15, 2018

STEVEN MOORE, ET AL.
v.
HOME DEPOT USA, INC., ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON JUDGE

         Before 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.

         I. BACKGROUND

         This 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.).

         At 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.

         In 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).

         The MSA also contains a provision that requires Commercial Coolants to obtain insurance naming Home Depot as an additional insured:

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).

         In 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.[1] (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. 1-2, 50).

         Plaintiffs 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).

         Home 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).

         In the 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).

         Depositors 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).

         Recall 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 additional-insured endorsement:

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 ...

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