Armijo v. Tetra Technologies, Inc.

936 F. Supp. 2d 675, 2013 WL 1288210, 2013 U.S. Dist. LEXIS 43446
CourtDistrict Court, E.D. Louisiana
DecidedMarch 27, 2013
DocketCivil Action No. 11-2493, 12-2667
StatusPublished

This text of 936 F. Supp. 2d 675 (Armijo v. Tetra Technologies, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armijo v. Tetra Technologies, Inc., 936 F. Supp. 2d 675, 2013 WL 1288210, 2013 U.S. Dist. LEXIS 43446 (E.D. La. 2013).

Opinion

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court are: (1) a Motion for Summary Judgment on Third Party Demand, filed by third-party plaintiffs Tetra Technologies, Inc. and Maritech Resources, Inc. (Rec. Doc. 118); and (2) Continental Insurance Company’s Motion for Summary Judgment, filed by third-party defendant Continental Insurance Company (“Continental”), seeking to dismiss Tetra’s and Maritech’s third-party claims (Rec. Doc. 117). Opposition and reply memoranda are found at Rec. Docs. 122,124,127 and 132.

I. BACKGROUND:

Five plaintiffs, including Abraham Mayorga, filed suit seeking damages for personal injuries they sustained offshore while assisting in a crane operation to remove a dismantled bridge that had connected two sections of an oil production platform located in the Gulf of Mexico off the coast of Louisiana. See Complaint & 2d Am. Complaint (Rec. Docs. 1, 27). It is alleged that defendant Maritech Resources, LLC (“Maritech”) owned the platform and that Maritech and defendant Tetra Technologies, Inc. (“Tetra”) were engaged in decommissioning the platform, including removal of the bridge. Rec. Doc. 27 at ¶¶ 8(a), 9. This work was being performed pursuant to a Salvage Plan. Rec. Doc. 118— 7. The crane was located on the derrick barge D/B Tetra Arapaho, owned and/or operated by Tetra. Rec. Doc. 1 at ¶ 8. Three of the plaintiffs are alleged to be Tetra employees and crew members of the D/B Tetra Arapaho. Id. at ¶ 5. A fourth plaintiff was the employee of a welding subcontractor. Id. at ¶ 6. Abraham Mayorga is alleged to have been an employee of Vertex Services, LLC (“Vertex”). Id. at ¶ 7. He worked as a rigger, Rec. Doc. 118-8, and was assigned to work from the D/B Tetra Arapaho. Rec. Doc. 1 at ¶ 7.

It is alleged that the plaintiffs were directed by their Tetra supervisors to make various cuts to the supporting structures of the bridge. Id. at ¶ 11. After cutting the supporting structures, they were directed to attach four nylon straps to the bridge, which were to be used to lift bridge and place it on an adjacent barge. Id. at ¶ 13. Once the straps were attached, the crane operator applied force to lift the bridge, but although it moved slightly, it did not break free of the platform. Id. at ¶ 14. At the direction of the barge superintendent and the barge foreman, the plaintiffs went out onto the bridge to determine what else needed to be done to free the bridge. Id. at ¶ 16. While the plaintiffs were on it, the north end of the bridge collapsed, and the straps (which allegedly had been allowed to hang slack rather than being held taught) gave way. Id. at ¶ 17. The bridge and everyone on it fell 70 to 80 feet into the Gulf of Mexico. Id.

The plaintiffs filed suit against Tetra and Maritech, alleging that their injuries were caused by the negligence of Tetra and Maritech and/or the unseaworthiness of the D/B Tetra Arapaho. Rec. Docs. 1, [679]*67927, 101. Tetra and Maritech then filed an indemnity action against Vertex and its insurer, Continental Insurance Company (“Continental”). See Civil Action 12-2667 (Rec. Doc. 1). They allege that Vertex is obligated to defend and indemnify them against Mayorga’s claims based upon a Master Service Agreement (the “MSA”) entered into between Vertex and Tetra. Id. at ¶¶7-10. Tetra and Maritech also allege that they are additional insureds under Vertex’s General Liability insurance policy with Continental and that, as such, they are entitled to be defended, indémnified, and held harmless from Mayorga’s claims and to be indemnified for any liability or expenses arising out of the action, including reimbursement of costs and attorney fees. Id. at ¶¶ 11-12.

Now before the Court are cross motions for summary judgment on the indemnity claim. Tetra and Maritech seek declaratory judgment proclaiming that Vertex and Continental are obligated to defend and indemnify them against Mayorga’s claims. Continental seeks dismissal of the indemnity claims on grounds that the indemnity agreement between Tetra and Vertex is void under the Louisiana Oilfield Anti-Indemnity Act (“LOIA”), which applies by virtue of the Outer Continental Shelf Lands Act (“OCSLA”). Alternatively, Continental argues that even if the agreement is not void, insurance coverage is excluded under various provisions of the policy.

II. LAW AND ANALYSIS:

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

The MSA entered into , between Tetra and Vertex provides:

Contractor [Vertex] shall RELEASE, DEFEND, INDEMNIFY and HOLD HARMLESS Company Group [Tetra and its contractors and employees] and Company’s customer [in this case, Maritech] from and against any and all Claims for personal or bodily injury to, sickness, disease or death of any member of Contractor Group [Vertex and its contractors and employees] ... arising out of the performance of this Agreement or any Order, REGARDLESS OF FAULT.

MSA § 12(C)(1) (Rec. Doc. 118-2 at 9 of 14) (bold, all capitals and italics in original; brackets added).1 The MSA also requires that Vertex obtain and maintain various insurance policies, including comprehensive general liability insurance, and that the policies “shall name Company Group [Tetra and its contractors and employees] as an additional insured.... ” See MSA § 12(B)(ii) and (vi) (Reo. Doc. 118-2 at 8 of 14).

The Marine Services Liability Policy issued by Continental to Vertex (the “Policy”) provides that Continental “will pay those sums, in excess of the deductible, that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Rec. Doc. 118-4 at 18 of 68. The term “insured” is defined to mean “any person or organization qualifying as such under the WHO IS AN INSURED (Section II) with respect to this Coverage Form.” Id. Endorsement No. 18 modifies “Who is an Insured” section “to include any person or organization as an Insured under this policy to the extent you [Vertex] are obligated by an ‘insured con[680]*680tract’ to include them as Additional Insureds, but only with respect to ‘your work.’” Rec. Doc. 118-4 at 60 of 63. “Insured contract” is defined to include “[tjhat part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization....” Rec. Doc. 118-4 at 11 of 63. Continental does not dispute that the MSA is an “insured contract.” See Rec. Doc. 117-1 at 2 n. 1.

Thus, the damages owed by Tetra and Maritech to Mayorga are covered under the Policy unless: (1) the LOIA applies (via OCSLA) to render the MSA’s indemnity and additional insured provisions void; or (2) the damages are otherwise excluded under the Policy.

A. Does the OCSLA Provision Adopting Adjacent State Law Apply?

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Bluebook (online)
936 F. Supp. 2d 675, 2013 WL 1288210, 2013 U.S. Dist. LEXIS 43446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armijo-v-tetra-technologies-inc-laed-2013.