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Donahue v. Republic National Distributing Company, LLC

United States District Court, E.D. Louisiana

January 8, 2019


         SECTION: “H” (1)



         Before the Court are a Motion for Partial Summary Judgment by Defendant Republic National Distribution Company, LLC (“Republic”) (Doc. 100) and a Cross Motion for Summary Judgment by Third Party Defendant United States Fire Insurance Company (“US Fire”) (Doc. 104). For the following reasons, Republic's Motion is GRANTED, and U.S. Fire's Motion is DENIED.


         This action arises from injuries that Plaintiff Joshua Donahue suffered while working in the beverage distribution facility of Defendant Republic. To replace an outdated conveyor system in its warehouse in Jefferson Parish, Louisiana, Republic contracted with Defendant W&H Systems, Inc. (“W&H”). The Court will refer to this contract between Republic and W&H as the “Project Agreement.” To fulfill its obligations under the Project Agreement, W&H subcontracted with Defendant Darana Hybrid, Inc. (“Darana”), which was hired to perform electrical work on the conveyor system. At the time, Darana had an outstanding contract with Defendant American ManPower Services, Inc. (“AMPS”) whereby AMPS provided labor to Darana. Plaintiff worked for AMPS and under the contract with Darana was assigned to Darana's electrical project for W&H at the Republic facility.

         On July 29, 2015, while descending a scaffold in Republic's facility, Donahue was injured when blades of an unguarded overhead fan struck him in the head. Donahue filed this negligence and premises liability suit seeking damages from the Defendants on June 8, 2016, in Civil District Court for the Parish of Orleans. Defendants removed the action to this Court on August 18, 2016. The case initially was assigned to Chief Judge Kurt D. Engelhardt.

         At the time Donahue suffered his injury, the Project Agreement required W&H to obtain liability insurance coverage for the work it performed for Republic and to name Republic as an additional insured under the insurance policy.[1] W&H obtained the required coverage from U.S. Fire.[2] An endorsement to W&H's policy with U.S. Fire included as “additional insureds” entities whom W&H was required by written contract to add as additional insureds.[3] A subsequent endorsement amended the policy's coverage of additional insureds.[4] The amended policy provides:

Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for “bodily injury, ” “property damage” or “personal and advertising injury” caused, in whole or in part, by:
1. [W&H] acts or omissions; or
2. The acts or omissions of those acting on [W&H's] behalf; in the performance of [W&H's] ongoing operations for the additional insured(s) . . . .[5]

         On March 27, 2017, Republic filed a Third Party Complaint against U.S. Fire seeking defense and indemnity.[6] Republic first alleged that U.S. Fire as W&H's insurer owed Republic “contractual indemnification for the claims made the basis of this suit.”[7] Second, Republic alleged that it was entitled to “coverage and defense” by U.S. Fire as an additional insured under W&H's insurance policy with U.S. Fire.[8]

         On November 11, 2017, U.S. Fire filed a Motion for Summary Judgment to Dismiss the Third Party Complaint.[9] U.S. Fire argued both that the Project Agreement did not require it to indemnify Republic and that its policy with W&H did not require it to cover and defend Republic as an additional insured. A few days later, on November 22, 2017, Republic filed a Cross Motion for Summary Judgment seeking defense and indemnity from U.S. Fire under its Third Party Complaint.[10] The Court will refer collectively to these Cross Motions as the “Initial Cross Motions.”

         At the time the Initial Cross Motions were filed, Judge Engelhardt presided over this action. Before he ruled on the Initial Cross Motions, both parties filed new cross motions (the “Subsequent Cross Motions”) on the same issues.[11] It is the Subsequent Cross Motions that are pending before this Court.

         After the Subsequent Cross Motions were filed but before they came under submission, Judge Engelhardt ruled on the Initial Cross Motions.[12] In his ruling, Judge Engelhardt granted U.S. Fire's Motion for Summary Judgment in part, holding that the agreement between Republic and W&H did not entitle Republic to contractual indemnification from U.S. Fire.[13] The Order and Reasons denied the parties' other requests in the Initial Cross Motions, reasoning that it would be more appropriate for this Court to handle them in analyzing the Subsequent Cross Motions. As such, this Court will now consider the Subsequent Cross Motions.


         Summary judgment is appropriate if “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[14] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[15]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[16] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[17] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[18] “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”[19] The Court does “not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[20] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[21]


         As an initial matter, the Court notes that because Judge Engelhardt's May 18, 2018 Order and Reasons granted U.S. Fire's Motion for Summary Judgment as to Republic's claims for contractual indemnification, to the extent Republic seeks such relief in its Motion for Partial Summary Judgment, this Court has already denied that request. The issue before this Court, then, is whether U.S. ...

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