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Wilson v. Florida Marine Transporters, LLC

United States District Court, E.D. Louisiana

December 2, 2019

RICHIE WILSON
v.
FLORIDA MARINE TRANSPORTERS, LLC AND WARREN PAVING, INC.

         SECTION M (3)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion by defendant-in-crossclaim Warren Paving, Inc. (“Warren Paving”) for summary judgment dismissing the claims for contribution and tort indemnity brought against it by plaintiffs-in-crossclaim Florida Marine Transporters, LLC, FMT Industries, LLC, and PBC Management, LLC (collectively, the “FMT entities”).[1] The FMT entities respond in opposition, [2] and Warren Paving replies in further support of its motion.[3] Having considered the parties' memoranda, the record, and the applicable law, the Court finds that the FMT entities' contribution and tort indemnity claims against Warren Paving are ripe for dismissal with prejudice.

         I. BACKGROUND

         This matter concerns a maritime personal injury, and the motion before the Court relates to a subrogation provision contained in a fully-found charter agreement. On July 1, 2018, Warren Paving and Florida Marine, LLC (“Florida Marine”) entered into a fully-found charter agreement with a one-year term under which Warren Paving, the “Charterer, ” would hire vessels from Florida Marine, the “Owner, ” on a fully-found basis according to the terms and conditions set forth in the contract.[4] Under the charter party, Florida Marine was required to carry numerous insurance policies, including hull and machinery, protection and indemnity, full statutory pollution, commercial general liability, and workers' compensation.[5] With respect to such insurance policies, except for workers' compensation and pollution, Florida Marine was contractually required to name Warren Paving and its affiliated companies or entities “as additional assureds with a full waiver of subrogation against said parties.”[6] The contract further provided that:

Such naming and waiving shall not affect any rights of recovery Charterer would otherwise be entitled to in the absence of such provisions. Such additional insurance coverage shall be limited to the extent of the risks assumed by Owner herein and Owner's insurance coverage shall be considered primary to Charterer's insurance coverage with Charterer's insurance coverage being non-contributory to the extent of the risks and obligations assumed by Owner pursuant to the terms and conditions of this Agreement.[7]
The charter party also includes the following indemnity provision:
INDEMNITY: Owner agrees to indemnify, defend (including the payment of all reasonable attorneys' fees, expert witness fees and litigation expenses regardless of type) and hold harmless … Charterer … from any and all losses, liens, claims, damages, expense, injury, liability, demands, fines, penalties or causes of action … asserted against [Charterer] by any person, … including, but not limited to, Owner's employees for personal injury or death … arising from or relating to the condition or operation of the Vessel, regardless of whether covered by the insurance Owner is required to maintain under this Agreement.[8]

         “Vessel” is defined as the M/V Judith Ellen, M/V Samuel J, and M/V Capt WD Nunley, together with all of their appurtenances, equipment, and accessories.[9] The contract's choice-of-law clause specified that the “[a]greement shall be governed by the general maritime laws of the United States and, to the extent not inconsistent therewith, the laws of the State of Louisiana, as applicable.”[10]

         Florida Marine fulfilled its insurance obligation by obtaining coverage from Continental Underwriters, Ltd. LLC (“Continental”).[11] Under the Continental policies, the named assureds included Florida Marine and the FMT entities, and Warren Paving qualified as an additional assured with a waiver of subrogation for “liability arising out of operations performed by the Named Assured for the Additional Assured.”[12]

         On November 14, 2018, Richie Wilson, a deckhand employed by PBC Management, was assigned to the crew of the Samuel J, which was working pursuant to the charter party at Warren Paving's Slats Lucas Quarry loading dock on the Cumberland River near Salem, Kentucky.[13]The quarry's loading dock uses horizontal wire cables to move barges up and down the river in front of the facility.[14] A Warren Paving employee operates the cable system.[15] At the time of the accident, the Samuel J was positioned astern of a rock hopper barge. Wilson was instructed to go onto the barge to help a Warren Paving employee free one of the barge positioning cables.[16]

         Wilson claims that he was injured when the barge positioning system's wire cable violently struck him on the left shoulder causing him to fall twelve feet down onto the inside bottom of the barge.[17] Wilson filed this suit against Warren Paving and the FMT entities seeking damages for his injuries.[18] With respect to Warren Paving, Wilson alleged that Warren Paving's employee was negligent in his operation of the barge positioning cables, which was a proximate cause of the accident.[19] Wilson also alleged that his injuries were caused by the negligence of the FMT entities and the unseaworthiness of the Samuel J.[20] Warren Paving filed a third-party complaint against Florida Marine seeking defense and indemnity under the terms of the charter party.[21] The FMT entities filed a cross-claim against Warren Paving seeking contribution for PBC Management's maintenance and cure obligation to Wilson, and “tort indemnity and/or contribution for all or part of such damages as may be assessed against Warren Paving.”[22]

         Florida Marine filed a motion for summary judgment seeking dismissal of Warren Paving's defense-and-indemnity claim arguing that the indemnity clause was not triggered because Wilson alleged that Warren Paving's employee was negligent in his operation of the barge positioning system, which Florida Marine argued did not stem from the operation or condition of the Samuel J, and Florida Marine did not agree to defend and indemnify Warren Paving for its own negligence.[23] This Court denied Florida Marine's motion finding that an indemnitee generally does not have a cause of action against the indemnitor for indemnity until there is a determination of liability, which had not yet occurred in this case.[24] On the pleadings alone, the Court could not determine whether Wilson's accident and injuries arose from the operation or condition of the Samuel J, or if, and to what extent, any negligence on Warren Paving's part contributed to the accident; and, consequently, the Court was not in a position to adjudicate whether Florida Marine will or will not owe Warren Paving defense and indemnity under the indemnity clause for Wilson's claims.[25]

         Thereafter, Warren Paving filed a motion for summary judgment seeking dismissal of Wilson's claims against it.[26] Wilson, in response, indicated that he was abandoning his claims against Warren Paving.[27] As such, the Court granted Warren Paving's motion and dismissed with prejudice Wilson's claims against it.[28]

         II. PENDING MOTION

         Warren Paving now seeks dismissal with prejudice of the FMT entities' tort indemnity and contribution claims.[29] Relying on Marathon Oil Company v. Mid-Continent Underwriters, 786 F.2d 1301 (5th Cir. 1986), Warren Paving argues that the FMT entities, who are named assureds, cannot seek indemnity and contribution from Warren Paving, an additional assured, because the waiver of subrogation prevents their insurer, Continental, from doing so directly.[30]In other words, the FMT entities cannot act as Continental's “cat's paw” to accomplish an end that would otherwise be forbidden to it.[31]

         The FMT entities argue that it is premature to determine whether Warren Paving is an additional assured for Wilson's claims, and thus entitled to a waiver of subrogation.[32] The FMT entities contend that, under the charter party, Florida Marine is required to defend and indemnify Warren Paving for claims “arising from or relating to the operation or condition of the vessel” and was obligated to name Warren Paving as an additional assured only to that extent.[33] Thus, the FMT entities reason, if Florida Marine does not owe to Warren Paving defense and indemnity because Wilson's injuries did not arise out of the operation or condition of the vessel, Warren Paving is not entitled to additional assured status under the terms of the charter party, thereby making the waiver of subrogation inapplicable, and allowing the FMT entities to pursue contribution claims against Warren Paving.[34]

         III. LAW & ANALYSIS

         A. Summary Judgment Standard

         Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.

         A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive law identifies which facts are material. Id. Material facts are not genuinely disputed when a rational trier of fact could not find for the nonmoving party upon a review of the record taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Equal Emp't Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). “[U]nsubstantiated assertions, ” “conclusory allegations, ” and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the evidence, review the facts, and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. ...


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