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De Prado v. City of new Orleans

United States District Court, E.D. Louisiana

May 13, 2019

CONCHA GIAMMATTEI DE PRADO, ET AL
v.
CITY OF NEW ORLEANS, ET AL

         SECTION: "S" (3)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment filed by the New Orleans Aviation Board ("NOAB") and Metro Service Group, Inc. ("Metro" (Rec. Doc. 85) is DENIED.

         IT IS FURTHER ORDERED that Metro's Motion to Disqualify Counsel (Rec. Doc. 86) is DENIED.

         FACTUAL BACKGROUND

         This matter stems from a slip and fall that occurred on a jet bridge at the New Orleans airport on March 31, 2017. Plaintiffs have alleged negligence against defendants including American Airlines, Inc., the City of New Orleans by and through the New Orleans Aviation Board ("NOAB"), Metro Service Group, Inc. ("Metro"), and Hubb's Properties, LLC ("Hubb's). All defendants deny liability.

         NOAB contracted with Metro to provide janitorial services at the airport. Metro subcontracted with Hubb for the janitorial services. The NOAB contract with Metro includes the following provision:

[Metro] shall fully indemnify, save harmless and defend the City of New Orleans, the NOAB, the Director of Aviation or his/her designee and all their respective officers, agents, employees, representatives and attorneys (herein referred to as "Indemnitees") from and/or against all suits, actions, claims, damages, losses and expenses, direct, indirect or consequential (including but not limited to fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) of any character, name, and description brought for or on account of any injuries or damages (including but not restricted to death) received or sustained by any persons or property on account of, arising out of, or in connection with: 1. The operations of [Metro], its subcontractors, and lower-tier contractors; or 2. any negligent act or intentional omission, misconduct, or fault of [Metro], its subcontractors, and lower-tier contractors or their agents or employees in the execution of the Contract or performance of the Work; or 3. the failure of [Metro], its subcontractors, and lower tier contractors to provide necessary barricades, warning lights, or signs; …

Metro-NOAB Contract, ¶ 41.01.1-.3.

         Likewise, the Metro contract with Hubb provides:

Indemnification: To the fullest extent permitted by law, each party hereto shall indemnify, defend and hold harmless the other party, its agents and employees (collectively, the Indemnified Parties) from and against any and all claims, demands, suits, and judgments of sums of money accruing against the Indemnified Parties for loss of life or injury or damage to person or property arising from or relating to any act or omission or the operation of the indemnifying party, its agents or employees while engaged in or in connection with the discharge or performance of any obligations under this Subcontract; and for any and all claims and/or liens for labor or services furnished in connection with the performance of the indemnifying party under this Subcontract.

Metro-Hubb Contract, ¶ 6.

         Following the suit for the injury on the jet bridge, pursuant to the terms of their agreement, Metro tendered its defense to Hubb's. Hubb's responded by providing a defense to Metro. NOAB tendered the claim against it to Metro and its insurer, State National Insurance Company ("State National") seeking defense and indemnity, but neither Metro nor its insurer replied. Characterizing this as a constructive denial of the tender, on July 6, 2018, NOAB filed a crossclaim against Metro and a third-party claim against its insurer, State National, alleging negligence on the part of Metro and that Metro and State National had breached their obligations to provide indemnity and defense for plaintiffs' claims, as required by the NOAB contract with Metro.

         On January 9, 2019, upon motion by NOAB representing that the parties had reached an agreement, the court dismissed NOAB's claims against Metro and State National with prejudice. Metro and NOAB now seek summary judgment finding that Hubb's's contract with Metro requires it to indemnify NOAB as well as Metro. Metro also seeks reimbursement for certain defense costs.[1] Put another way, Metro seeks to be indemnified by Hubb's for Metro's indemnity obligation to NOAB. Metro also seeks to disqualify ...


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