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Myles v. Pinnacle Entertainment, Inc.

United States District Court, M.D. Louisiana

June 10, 2019




         This 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.


         A. Background

         Plaintiff 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).

         On 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).

         The 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).

         An addendum to the service agreement includes an indemnification provision, which provides:

Indemnification. Vendor 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).

         B. Parties' Arguments

         In 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. (Id.).

         Next, 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).

         In 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 ...

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