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Keller v. Winn-Dixie Montgomery, LLC

United States District Court, E.D. Louisiana

September 10, 2019

TERRY KELLER
v.
WINN-DIXIE MONTGOMERY, LLC, ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion[1] for summary judgment filed by third-party defendant MSI Inventory Service Corporation (“MSI”) and a motion[2] for partial summary judgment filed by third-party plaintiff Winn-Dixie Montgomery, LLC (“Winn-Dixie”). Winn-Dixie seeks an order from the Court requiring MSI to defend and indemnify Winn-Dixie against the claims brought by plaintiff Terry Keller (“Keller”) and to reimburse Winn-Dixie for all attorneys' fees and court costs incurred to date. MSI argues that it has no duty to indemnify Winn-Dixie and asks that the Court dismiss with prejudice Winn-Dixie's third-party demand against it. No. resolution has yet been reached with respect to any liability for Keller's claims. For the following reasons, both motions are denied.

         I.

         This case arises from Keller's trip and fall over a pallet guard as she was conducting inventory counting of merchandise at a Winn-Dixie store in Gramercy, Louisiana on January 31, 2018. Keller, who was working as an MSI employee at the time of the incident, [3] tripped over a pallet guard at the store and sustained injuries. According to both parties, prior to her fall, Winn-Dixie employee Trevor Kirksey (“Kirksey”) had moved a pallet near the checkout aisle to allow Keller access to an area of the store to count inventory.[4] Kirksey then placed the pallet guard on the floor, which Keller tripped over as she was completing her inventory counting duties.[5]

         Keller filed a complaint seeking damages against Winn-Dixie, alleging that Winn-Dixie had created an unreasonably dangerous condition that caused her damages and that Winn-Dixie failed to exercise reasonable care to keep its aisles in a reasonably safe condition.[6] Subsequently, upon information and belief that Keller was working in the course and scope of her employment with MSI when the accident occurred, Winn-Dixie filed a third-party complaint against MSI.[7] In its complaint, Winn-Dixie alleges that, pursuant to a Services Agreement between Winn-Dixie and MSI, Winn-Dixie is entitled to “full indemnity and reimbursement for the cost of defense incurred to date from MSI, in the amount of any judgment which may be rendered herein in favor of plaintiff Terry Keller and against [Winn-Dixie] or for any payments which may be made by [Winn-Dixie] in settlement of the plaintiff's claim.”[8]

         MSI and Winn-Dixie dispute which party is responsible for the condition that caused Keller's injuries. MSI argues that Winn-Dixie created the condition because a Winn-Dixie employee, Kirksey, placed the pallet guard on the floor in such a way as to create an unreasonable risk of harm to Keller.[9] Consequently, according to MSI, Winn-Dixie breached its duty to Keller under the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6.[10] Winn-Dixie claims, however, that “Terry Keller, or another employee of MSI either created the condition over which Terry Keller tripped or they ordered the movement of inventory, which ultimately created the condition.”[11]

         Winn-Dixie and MSI agree that Kirksey placed the pallet guard on the floor.[12]However, according to Winn-Dixie, Kirksey moved the pallet guard into that area because an MSI employee requested that he do so.[13] MSI refutes this contention and asserts that Kirksey's decision to place the pallet guard “over an empty space of floor, at a height of five inches off the ground, which created a tripping hazard” was “made solely at the discretion of Mr. Kirksey.”[14]

         As previously stated, Winn-Dixie argues that even if Winn-Dixie's negligence caused Keller's injuries, MSI must indemnify Winn-Dixie from Keller's claims pursuant to the Services Agreement between Winn-Dixie and MSI.[15]

         The Services Agreement provides for indemnification under certain circumstances. Section 9.2 states in relevant part:

1. Except to the extent due to the gross negligence or willful misconduct of [Winn-Dixie], [MSI] will defend, indemnify, protect and hold harmless [Winn-Dixie] . . . from all losses including attorneys' fees and court costs incurred by, or claims made against [Winn-Dixie] . . . as a result of [MSI]'s performance under this Agreement or liability, damage, claim, costs, cause of action, suit, demand or expenses (including without limitation reasonable attorneys' and in-house counsel fees and costs) that arises out of or relates to:
a) any alleged defect in the Services, Deliverables or Work Products, or the use of any of the foregoing,
b) any breach or violation of any warranty, representation, term or condition of this Agreement by [MSI],
c) any claim of personal injury, death or damage to property or the environment arising from any act or omission of [MSI], its agents, employees or any subcontractors;
3. The provisions of this Article 9 do not limit any other obligation of [MSI] to indemnify [Winn-Dixie] under terms of this Agreement when so stated, or where [Winn-Dixie] may have a right to indemnification under law . . . [MSI] understands and expressly agrees that, in the event [MSI] or any of its personnel or subcontractors is injured by an accident arising out of and during its performance of Services for [Winn-Dixie], . . . neither [Winn-Dixie] nor its insurance carriers shall be liable for any claims arising therefrom.[16]

         II.

         Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine issue of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party's case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

         Once the party seeking summary judgment carries its burden pursuant to Federal Rule of Evidence 56, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts,' by ‘conclusory allegations,' by ‘unsubstantiated assertions,' or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that ...


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