United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA MAGISTRATE JUDGE.
the Court is the Motion for Summary filed on behalf of
Plaintiffs, Norman Hammer, David Loupe, Norris Webb, and
Carol Webb in which they seek to dismiss the Complaint of
Intervention filed by Zurich American Insurance Company.
(Rec. Doc. 133; 157). Zurich opposed the Motion. (Rec. Doc.
152), and Plaintiffs replied (Rec. Doc. 158). Considering the
evidence, the law, and the arguments of the parties, and for
the reasons fully explained below, Plaintiffs' Motion is
filed this suit following a helicopter crash in June 2015. At
the time of the accident, Plaintiffs (with the exception of
Norris Webb's spouse, Carol Webb) were employed by
Kinetica Partners, LLC and were being transported aboard the
helicopter from Stone Energy Platform 165 to Kinetica
Partners in Pecan Island. (Rec. Doc. 152-1, ¶6-8).
Kinetica maintained workers compensation insurance through
Zurich. (Rec. Doc. 149-5; 152-1, ¶4).
filed this suit against the owner of the helicopter, PHI
Inc., the helicopter manufacturer, Bell Helicopter Textron,
Inc., and the pilot, Andrew Ford. (Rec. Doc. 1-3, at 2). Bell
removed to this Court (Rec. Doc. 1). Plaintiffs later amended
the Complaint to name PHI's insurer, Allianz Global Risks
U.S. Insurance Company, as an additional defendant. (Rec.
Doc. 117; 122). Zurich filed a Petition in Intervention in
state court to recover its workers compensation benefits paid
to or on behalf of Plaintiffs employed by Kinetica pursuant
to the Longshore and Harbor Workers Compensation Act (LHWCA),
33 U.S.C. 901 et. seq. (Rec. Doc. 1-3, at
Plaintiffs now move to dismiss Zurich's Intervention on
the grounds that Kinetica, and thus Zurich, contractually
waived its rights of subrogation.
contract at the heart of this dispute is the Agreement for
Flight Service (AFS) between PHI and Kinetica. (Rec. Doc.
133-5). In the AFS, PHI and Kinetica agreed to
modified reciprocal defense, indemnity, and waivers of
subrogation. (Rec. Doc. 133-5, pp. 6-9). Zurich's
worker's compensation policy contains a “Waiver of
Our Right to Recover from Others Endorsement” which
We have the right to recover our payments from anyone liable
for an injury covered by this policy. We will not enforce our
right against the person or organization named in the
Schedule. (This agreement applies only to the extent that you
perform work under a written contract that requires you to
obtain this agreement from us.)
This agreement shall not operate directly or indirectly to
benefit anyone not named in the Schedule.
ALL PERSONS AND/OR ORGANIZATIONS THAT ARE REQUIRED BY WRITTEN
CONTRACT OR AGREEMENT WITH THE INSURED, EXECUTED PRIOR TO THE
ACCIDENT OR LOSS, THAT WAIVER OF SUBROGATION BE PROVIDED
UNDER THIS POLICY FOR WORK PERFORMED BY YOU FOR THAT PERSON
(Rec. Doc. 133-5, p. 31).
the parties have asserted cross-claims against any other
party or otherwise asserted any rights to defense or
indemnity that are contained in the record. Nor has the Court
been apprised of any pending demands for defense or
Legal Standard for Motions for Summary
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when there is no genuine dispute as
to any material fact, and the moving party is entitled to
judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the
lawsuit under the applicable governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Sossamon v. Lone Star State of Tex., 560 F.3d 316,
326 (5th Cir.2009); Hamilton v. Segue
Software, Inc., 232 F.3d 473, 477 (5th
Cir.2000). A genuine issue of material fact exists if a
reasonable jury could render a verdict for the nonmoving
party. Brumfield v. Hollins, 551 F.3d 322, 326
(5th Cir.2008) (citing Anderson, 477 U.S.
at 252); Hamilton, 232 F.3d at 477.
party seeking summary judgment has the initial responsibility
of informing the court of the basis for its motion and
identifying those parts of the record that demonstrate the
absence of genuine issues of material fact. Washburn v.
Harvey, 504 F.3d 505, 508 (5th Cir.2007)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). If the moving party carries its initial burden, the
burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact. Washburn
v. Harvey, 504 F.3d at 508. All facts and inferences are
construed in the light most favorable to the nonmoving party.
Brumfield v. Hollins, 551 F.3d at 326 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)).
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by pointing out that there is insufficient
proof concerning an essential element of the nonmoving
party's claim. Norwegian Bulk Transport A/S v.
International Marine Terminals Partnership, 520 F.3d
409, 412 (5th Cir.2008) (citing Celotex,
477 U.S. at 325). The motion should be granted if the
nonmoving party cannot produce evidence to support an
essential element of its claim. Condrey v. Suntrust Bank
of Ga., 431 F.3d 191, 197 (5th Cir.2005).
Jurisdiction and Choice of Law
Court has already determined that jurisdiction exists by
virtue of the Outer Continental Shelf Lands Act (OCSLA) (43
U.S.C. §1349(b)). (Rec. Doc. 49; Hammer v. PHI,
Inc., No. CV 6:16-1048, 2016 WL 7029354, at *7 (W.D. La.
Oct. 14, 2016), report and recommendation adopted,
No. CV 6:16-1048, 2016 WL 7031774 (W.D. La. Dec. 1, 2016)).
The Court has not yet addressed the separate inquiry of
choice of law. In the context of a helicopter crash in the
Gulf of Mexico, the Fifth Circuit succinctly explained
whether OCSLA, and thus the law of Louisiana as the adjacent
state's law, or maritime law applies, as follows:
OCSLA extends the laws and jurisdiction of the United States
to the seabed and artificial islands on the outer Continental
Shelf, including offshore platforms. 43 U.S.C. §
1333(a)(1). The laws of the adjacent state also apply, to the
extent they are not inconsistent with federal law.
Id. § 1333(a)(2)(A). The state adjacent to the
W&T platform involved in the helicopter accident is
Louisiana, so Louisiana law would apply if OCSLA governs the
contract…Therefore, the dispositive issue is whether
OCSLA applies, as opposed to maritime law.
a three-part test to determine whether OCSLA applies:
(1) The controversy must arise on a situs covered by OCSLA
(i.e. the subsoil, seabed, or artific[i]al structures
permanently or temporarily attached thereto). (2) Federal
maritime law must not apply of its own force. (3) The state
law must not be inconsistent with Federal law.
Alleman v. Omni Energy Servs. Corp., 580 F.3d 280,
283 (5th Cir.2009) (citations omitted).
the jurisdictional inquiry, the choice of law determination
demands a situs analysis. (See this Court's discussion in
Hammer, at *3, citing In re Deepwater
Horizon, 745 F.3d 157, 164 (5th Cir.2014)). The situs of
the controversy in a tort suit is the place where the tort
occurs; however, the “controversy [in a contractual
dispute] arises under an OCSLA situs if a majority of the
work called for by the contract is on stationary platforms or
other enumerated OCSLA situses.” Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 784,
787 (5th Cir.2009).
disputed issue in this instance is the indemnity and waiver
of subrogation provisions in the AFS between Kinetica and
PHI. The object of the AFS is to “render flight
services to transport personnel and equipment of
[Kinetica]…between landing sites within and without
the territorial limits of the United States and offshore
thereof[.]” (Rec. Doc. 133-5, p. 3). The parties do not
dispute, and the Court finds, that the situs invoked by the
AFS includes landing sites on fixed platforms where the
assets of Tennessee Gas Pipeline, the entity acquired by
Kinetica as set forth in the AFS, would be located. (Rec.
Doc. 133-5, p. 1). This was in fact the case here when the
PHI helicopter picked up Plaintiffs on a platform located on
the OCS to bring them onshore. Thus, the situs requirement of
OCSLA is satisfied. See Alleman, supra,
decided the same year as Grand Isle Shipyard,
addressing the indemnity provisions in an agreement for
helicopter flight services and finding the OCSLA situs test
Court must next determine whether maritime law applies of its
own force. When the issue is contractual, as it is in this
instance, the Court must determine whether the contract is
maritime (in which case maritime law would apply of its own
force) or non-maritime (in which case OCSLA would permit
application of state law). In In re Doiron, the
Fifth Circuit adopted the following test for determining
whether a contract for the ...