United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES UNITED STATES DISTRICT COURT JUDGE.
matter comes before the Court on the Motion for Summary
Judgment (Doc. 16) filed by Third-Party Defendant Otis
Elevator Company (“Otis”). Defendant and
Third-Party Plaintiff Pinnacle Entertainment, Inc.
(“Pinnacle”) opposes the motion. (Doc. 27). Otis
has filed a reply brief in support of its motion. (Doc. 28).
Oral argument is not necessary. After careful consideration
of the parties' arguments, the facts in the record, and
the applicable law, and for the following reasons, Otis's
motion (Doc. 16) is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Inga Myles filed suit on July 21, 2017, against Pinnacle,
alleging that she sustained serious injuries after violently
falling on an escalator at L'Auberge Casino in Baton
Rouge, Louisiana. (Doc. 1-2). The casino is owned and
operated by Pinnacle. (Id. at 3). Myles alleges that
“suddenly and without warning, ” her walking cane
“became caught in the escalator[, ] causing her to fall
backwards violently as her leg and hair were caught in the
escalator.” (Id. at 4). She claims that
Pinnacle “failed to properly maintain, inspect, control
and/or operate the escalator so as to render it dangerously
slippery and unsafe for use, ” and that this dangerous
condition caused her to fall. (Id.). She further
alleges that Pinnacle failed to warn Myles and other casino
guests of the dangerous condition, and failed to inspect the
elevator when it knew or should have known that “said
inspection was necessary to prevent injury.”
(Id.). As a result of the fall, Myles injured her
knee and neck, “causing her severe pain and
suffering.” (Id. at 5).
December 19, 2017, Pinnacle filed a third-party complaint
against Otis, asserting that Otis is liable to Pinnacle
“for full indemnification and all defenses [sic] costs,
including court costs, and attorney fees.” (Doc. 9 at
1). Pinnacle alleges that Otis manufactured and installed the
escalator on which Myles fell. (Id. at 2). Pinnacle
asserts that on June 1, 2016, a partnership owned by
Pinnacle, PNK (Baton Rouge) Partnership, entered into a
service agreement with Otis “to service and maintain
the escalator in question to keep it in a safe and
operational condition.” (Id. at 2-3). It
alleges that the service agreement provides for
“indemnification and defense for any breach of the
contract, or for any liability, including liability to third
parties, for the services provided in the contract.”
(Id. at 3). Because any duty to maintain the
elevator “was contractually assumed by Otis, ”
Pinnacle alleges that Otis is liable for all costs associated
with its defense of this lawsuit, including “attorney
fees and full indemnification.” (Id. at 3-4).
service agreement generally provides that Otis is responsible
for “regularly and systematically” examining,
adjusting, cleaning, and lubricating the components of the
escalator in question. (Doc. 27-1 at 6 & 8). The service
agreement also provides that Pinnacle would “instruct
or warn passengers in the proper use of the” escalator
and was required to “keep the [escalator] under
continued surveillance by competent personnel to detect
irregularities between [escalator] examinations.”
(Id. at 9). Between inspections by Otis, it was
Pinnacle's duty to “report immediately any
condition that may indicate the need for correction”
and “shut down the equipment immediately upon
manifestation of any irregularities in operation or
appearance of the equipment.” (Id. at 9-10).
addendum to the service agreement includes an indemnification
provision, which provides:
Indemnification: Notwithstanding anything in this
Agreement to the contrary, Vendor agrees to indemnify, defend
and hold Customer and its subsidiaries, affiliates, parent
company, and their respective officers, directors,
shareholders, employees, agents, and contractors, harmless
from and against any and all third-party claims, demands,
causes of action, damages, liabilities, fines and expenses,
including reasonable attorneys' fees and costs
(collectively “Claims”), including without
limitation direct and indirect, incidental damages, that are
directly or indirectly related to (i) Vendor's
performance of the Agreement, (ii) Vendor's failure to
comply with any obligations set forth in the Agreement, (iii)
the damage or destruction of real or personal property or
personal injuries (including death) to the extent caused by
Vendor, (iv) the intentional, reckless or negligent acts or
omission of Vendor or its officer, directors, shareholders,
employees, agents, contractors, subsidiaries and affiliates,
(v) Vendor's failure to comply with applicable laws,
regulations or orders, or (vi) excluding the negligence of an
indemnified party, any claim or cause of action by or on
behalf of Vendor's employee(s) against Customer,
including without limitation claims for worker's
compensation or personal injury, employment benefits, or any
federal or state employment law or regulation. The
obligations of this paragraph shall survive the expiration or
termination of this Agreement.
(Doc. 16-3 at 3).
support of its motion, Otis argues that it is not liable to
Pinnacle for indemnification because none of the six
conditions triggering indemnification was satisfied. (Doc.
16-1 at 3-4). Citing to the addendum's indemnification
provision (Doc. 16-3 at 3), Otis asserts that Pinnacle has
not submitted any evidence that the incident at issue was
related to Otis's performance of the service agreement or
arose out of Otis's failure to comply with any of its
contractual obligations. (Id. at 3). Similarly, Otis
urges that there is no evidence that the incident was caused
by an act or omission by Otis, whether intentional, reckless,
or negligent. (Id. at 4). Otis points out that the
final two conditions triggering indemnification are
inapplicable to the facts at hand, and Pinnacle has not
submitted any evidence supporting the existence of either.
Otis argues that Pinnacle will be liable for its own fault
only under Louisiana's comparative-fault scheme. (Doc.
16-1 at 5). Otis asserts that under Louisiana contract law,
indemnity agreements are assumed to apply only to the extent
the indemnitor is at fault, and that a provision specifically
providing for indemnity regardless of fault would be required
to construe the provision in Pinnacle's favor.
(Id. at 6-7). Thus, according to Otis, because no
party has submitted any evidence of fault on its part, the
indemnity provision was not triggered and Otis has no duty to
indemnify Pinnacle for any costs associated with Myles'
suit. (Id. at 8).
response, Pinnacle argues that because Myles alleged that
Pinnacle “failed to inspect and maintain the escalator,
” and inspection and maintenance of the escalator
“falls within the scope of the work to be performed
by” Otis, the indemnification provision was triggered.
(Doc. 27 at 5- 6). Pinnacle asserts that Otis's duty to
indemnify exists even if Pinnacle is not found liable to
Myles. (Id. at 6-7). Finally, Pinnacle takes issue
with the case law cited in Otis's brief and claims ...