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Quiroz v. C & G Welding, Inc.

United States District Court, E.D. Louisiana

November 14, 2018


         SECTION A(5)



         Before the Court is the Motion for Partial Summary Judgment on OSF Underwriters' Cross-Claim Against C & G Welding Inc. (Rec. Doc. 107) filed by Atlantic Specialty Insurance Company, Markel American Insurance Company, State National Insurance Company, Navigators Insurance Company, United States Fire Insurance Company, Mitsui Sumitomo Insurance Company of America, Lloyd's Underwriters, and Swiss Re International SE (hereinafter collectively referred to as “OSF Underwriters”), insurers for Offshore Specialty Fabricators, LLC (“OSF”). C & G Welding, Inc. (“C & G”) oppose the Motion (Rec. Doc. 114). The Motion, set for submission on October 17, 2018, is before the Court on the briefs without oral argument. This matter is set to be tried to a jury beginning on January 22, 2019. Having considered the motion and memoranda of counsel, the opposition, the reply, the record, and the applicable law, the Court finds that the Motion for Partial Summary Judgment (Rec. Doc. 107) is GRANTED for the reasons set forth below.

         I. Background

         On March 7, 2012, C & G entered into a blanket Master Services Contract (“MSC”) with Montco Inc. (“Montco”). (Rec. Doc. 107, Exhibit 1 p. 1). The MSC included an indemnity provision in favor of Montco and its contractors. (Id., p. 5). On February 6, 2016, Black Elk Energy Operations LLC (“Black Elk”) entered into a Turnkey Service Agreement with Montco which obligated Montco to decommission various platforms including the W. Cameron Blk. 551 “A” Structure (“WC 551A”). (Rec. Doc. 107, p. 4). Pursuant to the agreement with Black Elk, Montco entered into a Master Time Charter Agreement with OSF dated June 2, 2016, and procured the D/B SWING THOMPSON. (Rec. Doc. 107, Exhibit 2 p. 1). Attached to the Master Time Charter Agreement is an oral Work Order specifying the nature of the decommission projects and the necessary work for derrick barges, including the D/B SWING THOMPSON. (Id. p. 9).

         Plaintiff Robert Quiroz (“Quiroz”) was working on the D/B SWING THOMPSON and the WC 511A platform as a rigger employed by C & G (as payroll employer) and OSF (as borrowing employer). On August 8, 2016, Quiroz sustained injuries when he fell through a deck plate in the engine room of the platform. (Rec. Doc. 114, p. 2). Pursuant to general maritime law and the Jones Act, 46 U.S.C. § 30104, Quiroz filed this lawsuit to recover for his personal injuries alleging the negligence of C & G, OSF, Montco, and Phoenix Safety and Logistics Personnel, Inc. (Id. ¶ IX-XII).

         After Quiroz filed the lawsuit, OSF requested that C & G defend and indemnify OSF against Quiroz's claims. (Rec. Doc. 107, p. 2). OSF Underwriters asserted that the MSC requires C & G to defend and indemnify Montco and its “contractors and subcontractors of every tier” (such as OSF) and their “insurers and underwriters” (such as OSF Underwriters) for any claims brought against them by employees of C & G (such as Quiroz). Subsequently, OSF Underwriters filed a cross-claim against C & G because C & G denied the defense and indemnity obligations. (Id.). OSF now moves for partial summary judgment under the assertion that the defense and indemnity provisions of the MSC are valid and enforceable under general maritime law because the contract is a maritime contract. (Id.).

         II. Legal Standard

         Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” when viewed in the light most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party's cause, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993)).

         III. Law and Analysis

         OSF Underwriters argue that general maritime law applies to govern the contract between OSF and C & G, under which the indemnification and defense provisions therein are enforceable. C & G counters that the contract is not subject to general maritime law because Plaintiff's accident occurred on a fixed platform located off the Louisiana Coast; thus, the Louisiana Oilfield Anti-Indemnity Act bars OSF Underwriters' cross-claim. In order to determine which law applies, the Court must determine whether the MSC is a maritime or non-maritime contract.

         Earlier this year, the Fifth Circuit abandoned the traditional six-factor test established by Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990) because “most of the prongs of the Davis & Sons test are unnecessary and unduly complicate the determination of whether a contract is maritime.” In Re Doiron, Incorporated, 879 F.3d 568, 572 (5th Cir. 2018). The Fifth Circuit in Doiron used the principles established in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 (2004) to require courts to apply a two-prong test in determining whether a contract is maritime:

First, is the contract one to provide services to facilitate the drilling or production of oil and gas on navigable waters?...Second, if the answer to the above question is “yes, ” does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract?

Id. at 576. The Fifth Circuit emphasized that the focus of this test is on the contract and the expectations of ...

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