UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 01-40656
(Summary Calendar) _________________
EDWARD ALLEN BOLES, Individually and as Representative of the Estate of Deborah Leigh Boles; JUANITA RUTH WALKER BOLES, Individually and as Representative of the Estate of Deborah Leigh Boles
Plaintiffs - Cross Defendants - Appellees,
versus
BOMBARDIER INC; ET AL
Defendants
ASHLIE M LEWIS
Cross Claimant - Appellant.
Appeal from the United States District Court For the Eastern District of Texas USDC No. 2:00-CV-10-TJW
January 21, 2002 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Appellant Ashlie M. Lewis (“Lewis”) appeals the district court’s order granting Appellees
Edward Allen Boles and Juanita Ruth Boles’ (“Boles”) motion for summary judgment. The district
court held that Lewis was not entitled to recover from the Boles based on the indemnity provision
in the settlement agreement signed by the parties. On appeal, we must determine whether the district
court’s order was a final judgment as defined in 28 U.S.C. § 1291, whether the district court correctly
held that Lewis was not entitled to indemnity, and whether the court correctly dismissed Lewis’
additional breach of contract claim.
We review a motion for summary judgment de novo, applying the same standard as the
district court. Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir.
2001). A motion for summary judgment is properly granted only if there is no genuine issue as to any
material fact. Id.
This appeal arises out of a product liability suit filed by Boles against Bombardier, a
manufacturer of personal watercrafts. The Boles’ daughter Deborah was fatally injured in 1998 when
a personal watercraft manufactured by Bombardier (and driven by Lewis) crashed into the watercraft
driven by Deborah Boles. The Boles brought a previous action against Lewis, which settled with the
execution of an agreement under which the Boles agreed to indemnify Lewis against all future claims
or actions arising out of the accident asserted “by, through, and/or under” the Boles.
About a year after the settlement with Lewis was executed, the Boles brought suit against
Bombardier. Alleging that Lewis was the proximate cause of the Boles’ damages, Bombardier filed
a third-party claim against Lewis. Lewis answered Bombardier’s third-party claim by denying
culpability, and asserting a cross-claim against the Boles for reimbursement of defense costs pursuant
to the indemnity provision in the settlement agreement. The Boles subsequently settled their claims
-2- against Bombardier, and the action was dismissed with a “take-nothing” judgment in favor of
Bombardier. Bombardier’s third-party claim against Lewis was also dismissed, and the only claim
remaining was Lewis’ cross-claim against the Boles.
The Boles then moved for summary judgment, arguing that the indemnity clause did not cover
Lewis’ claim. While this motion was pending, Lewis requested leave of the court to amend her
pleadings to include a breach of contract claim. The District Court entered an order granting Boles’
motion for summary judgment and Lewis’ motion for leave to amend her counter-claim, and denying
all other pending motions.
I
We have jurisdiction over appeals from final decisions of the district court. For a decision to
be final, it must “end[] the litigation on the merits and leave[] nothing for the court to do but execute
the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). In multiparty litigation,
the claims and liabilities of all the parties must be finally adjudicated, or the court must expressly
determine there is no just reason for delay and direct an entry of judgment. Riley v. Wooten, 999 F.2d
802, 804 (5th Cir. 1993).
Because the district court properly considered and dismissed all of the outstanding claims in
this action, this court has appellate jurisdiction under 28 U.S.C. § 1291. The claim between Boles
and Bombardier terminated when the district court entered a take nothing judgment in favor of
Bombardier, leaving only the claim by Lewis against Boles. Later, the district judge granted Lewis’
motion to amend the counter-claim, granted the Boles’ motion for summary judgment, and denied
all remaining motions. Because all of the parties’ claims were finally adjudicated by this order, the
judgment was properly appealed to this court.
-3- II
The District Court, applying Texas law in this diversity action, concluded that the cross-action
between Bombardier and Lewis was not an action covered by the scope of the indemnity agreement
signed by the parties. We agree. The settlement agreement between Boles and Lewis contained the
following language regarding indemnification:
. . .Plaintiffs [Boles], . . . HAVE AGREED TO AND DO HEREBY INDEMNIFY AND HOLD HARMLESS the Defendants [Lewis] from any and all claims, demands, actions and causes of action of whatsoever nature or character, INCLUDING CLAIMS BASED UPON THE FAULT OR NEGLIGENCE OF THE DEFENDANTS, which have been o r which may hereafter be asserted by any person, firm, or corporation claiming by, through, and/or under the Plaintiffs arising out the incident made the basis of the Lawsuit. (emphasis added).
In a case with remarkably similar facts, a Texas court interpreted such “by, through and/or
under” language to prohibit recovery under an indemnity clause. In Manhattan Construction Co. v.
Hood Lanco, an indemnity provision was executed in favor of a settling party (Manhattan), covering
any claims that occurred by, through, or under the original plaintiff (Hood Lanco). 762 S.W.2d 617,
618-19 (Tex. App. – Houston 1988, writ denied). When another defendant (Westlake) sued by the
plaintiff filed a claim against Manhattan seeking indemnity, Manhattan filed suit against Hood Lanco
(the original indemnitor) arguing that the indemnity provision in the settlement agreement required
Hood Lanco to indemnify it against Westlake’s claim. Id. at 619. The court, applying the plain
meaning of the clause, held that Manhattan could not recover because Westlake’s subsequent claim
did not arise “by, through and under” Hood Lanco’s (the original plaintiff’s) original claim for
damages. Id. Likewise, in this case, Bombardier brought the action against Lewis under the
authority of a Texas statute permitting joinder of responsible tort-feasors. TEX. CIV. PRAC.& REM.
-4- CODE ANN. § 33.004 (Vernon 1997) (governing joinder of responsible third parties). This is an
independent statutory ground, not related to the original claim filed by the Boles.
Therefore, we agree with the district court’s determination, and hold that Bombardier’s claim
against Lewis is not covered by the scope of the indemnity clause.
III
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 01-40656
(Summary Calendar) _________________
EDWARD ALLEN BOLES, Individually and as Representative of the Estate of Deborah Leigh Boles; JUANITA RUTH WALKER BOLES, Individually and as Representative of the Estate of Deborah Leigh Boles
Plaintiffs - Cross Defendants - Appellees,
versus
BOMBARDIER INC; ET AL
Defendants
ASHLIE M LEWIS
Cross Claimant - Appellant.
Appeal from the United States District Court For the Eastern District of Texas USDC No. 2:00-CV-10-TJW
January 21, 2002 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Appellant Ashlie M. Lewis (“Lewis”) appeals the district court’s order granting Appellees
Edward Allen Boles and Juanita Ruth Boles’ (“Boles”) motion for summary judgment. The district
court held that Lewis was not entitled to recover from the Boles based on the indemnity provision
in the settlement agreement signed by the parties. On appeal, we must determine whether the district
court’s order was a final judgment as defined in 28 U.S.C. § 1291, whether the district court correctly
held that Lewis was not entitled to indemnity, and whether the court correctly dismissed Lewis’
additional breach of contract claim.
We review a motion for summary judgment de novo, applying the same standard as the
district court. Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir.
2001). A motion for summary judgment is properly granted only if there is no genuine issue as to any
material fact. Id.
This appeal arises out of a product liability suit filed by Boles against Bombardier, a
manufacturer of personal watercrafts. The Boles’ daughter Deborah was fatally injured in 1998 when
a personal watercraft manufactured by Bombardier (and driven by Lewis) crashed into the watercraft
driven by Deborah Boles. The Boles brought a previous action against Lewis, which settled with the
execution of an agreement under which the Boles agreed to indemnify Lewis against all future claims
or actions arising out of the accident asserted “by, through, and/or under” the Boles.
About a year after the settlement with Lewis was executed, the Boles brought suit against
Bombardier. Alleging that Lewis was the proximate cause of the Boles’ damages, Bombardier filed
a third-party claim against Lewis. Lewis answered Bombardier’s third-party claim by denying
culpability, and asserting a cross-claim against the Boles for reimbursement of defense costs pursuant
to the indemnity provision in the settlement agreement. The Boles subsequently settled their claims
-2- against Bombardier, and the action was dismissed with a “take-nothing” judgment in favor of
Bombardier. Bombardier’s third-party claim against Lewis was also dismissed, and the only claim
remaining was Lewis’ cross-claim against the Boles.
The Boles then moved for summary judgment, arguing that the indemnity clause did not cover
Lewis’ claim. While this motion was pending, Lewis requested leave of the court to amend her
pleadings to include a breach of contract claim. The District Court entered an order granting Boles’
motion for summary judgment and Lewis’ motion for leave to amend her counter-claim, and denying
all other pending motions.
I
We have jurisdiction over appeals from final decisions of the district court. For a decision to
be final, it must “end[] the litigation on the merits and leave[] nothing for the court to do but execute
the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). In multiparty litigation,
the claims and liabilities of all the parties must be finally adjudicated, or the court must expressly
determine there is no just reason for delay and direct an entry of judgment. Riley v. Wooten, 999 F.2d
802, 804 (5th Cir. 1993).
Because the district court properly considered and dismissed all of the outstanding claims in
this action, this court has appellate jurisdiction under 28 U.S.C. § 1291. The claim between Boles
and Bombardier terminated when the district court entered a take nothing judgment in favor of
Bombardier, leaving only the claim by Lewis against Boles. Later, the district judge granted Lewis’
motion to amend the counter-claim, granted the Boles’ motion for summary judgment, and denied
all remaining motions. Because all of the parties’ claims were finally adjudicated by this order, the
judgment was properly appealed to this court.
-3- II
The District Court, applying Texas law in this diversity action, concluded that the cross-action
between Bombardier and Lewis was not an action covered by the scope of the indemnity agreement
signed by the parties. We agree. The settlement agreement between Boles and Lewis contained the
following language regarding indemnification:
. . .Plaintiffs [Boles], . . . HAVE AGREED TO AND DO HEREBY INDEMNIFY AND HOLD HARMLESS the Defendants [Lewis] from any and all claims, demands, actions and causes of action of whatsoever nature or character, INCLUDING CLAIMS BASED UPON THE FAULT OR NEGLIGENCE OF THE DEFENDANTS, which have been o r which may hereafter be asserted by any person, firm, or corporation claiming by, through, and/or under the Plaintiffs arising out the incident made the basis of the Lawsuit. (emphasis added).
In a case with remarkably similar facts, a Texas court interpreted such “by, through and/or
under” language to prohibit recovery under an indemnity clause. In Manhattan Construction Co. v.
Hood Lanco, an indemnity provision was executed in favor of a settling party (Manhattan), covering
any claims that occurred by, through, or under the original plaintiff (Hood Lanco). 762 S.W.2d 617,
618-19 (Tex. App. – Houston 1988, writ denied). When another defendant (Westlake) sued by the
plaintiff filed a claim against Manhattan seeking indemnity, Manhattan filed suit against Hood Lanco
(the original indemnitor) arguing that the indemnity provision in the settlement agreement required
Hood Lanco to indemnify it against Westlake’s claim. Id. at 619. The court, applying the plain
meaning of the clause, held that Manhattan could not recover because Westlake’s subsequent claim
did not arise “by, through and under” Hood Lanco’s (the original plaintiff’s) original claim for
damages. Id. Likewise, in this case, Bombardier brought the action against Lewis under the
authority of a Texas statute permitting joinder of responsible tort-feasors. TEX. CIV. PRAC.& REM.
-4- CODE ANN. § 33.004 (Vernon 1997) (governing joinder of responsible third parties). This is an
independent statutory ground, not related to the original claim filed by the Boles.
Therefore, we agree with the district court’s determination, and hold that Bombardier’s claim
against Lewis is not covered by the scope of the indemnity clause.
III
Lewis claims on appeal that the district court improperly granted summary judgment when
it failed to consider the breach of contract claim raised in her amended pleadings. We reject this
argument, because it is clear from the court’s order that the court granted Lewis’ motion requesting
leave to amend her pleadings and considered her breach of contract claim.1 Regardless of whether
the amended claim is addressed by the moving party in its motion for summary judgment, when leave
is granted to amend the pleadings, the motion for summary judgment is considered to apply to the
pleadings as amended. See 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE §2722 (3d ed. 1998); Index Fund, Inc. v. Hagopian, 609 F. Supp. 499, 503 (S.D.N.Y.
1985) (stating that when motion for summary judgment and motion to amend the pleadings are
presented together, the motion for summary judgment is considered in light of the amended
pleadings); cf. Shawnee Int.’l v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984) (considering
motion for 12(b)(6) dismissal and amended pleadings, and dismissing complaint as amended under
12(b)(6)). Therefore, the court properly considered the breach of contract claim.
1 The court’s order specifically refers to the amended claim adding breach of contract, stating: “The court grants and has considered Lewis’ Amended Cross Claim. Cross Plaintiffs amended the complaint to include additional allegations of breach of contract. The construction of the indemnity clause will address all claims and motions submitted by the parties.” Boles v. Bombardier, No. 2:00- CV-10 (E.D. Tex. May 16, 2001) (order granting summary judgment and motion to amend counter- claim, and denying all remaining motions).
-5- The district court did not error by dismissing Lewis’ breach of contract claim. This claim is
based solely on the settlement agreement, under which the Boles contractually agreed to indemnify
Lewis. See Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 719 (5th Cir. 1995) (evaluating indemnity
claim as “straight-forward breach of contract claim”). Because we have already determined the
contractual provision at issue does not entitle Lewis to recovery, Lewis’ breach of contract claim also
fails on the merits.2
For the foregoing reasons, the district court’s order is AFFIRMED.
2 Lewis argues in her brief that the Boles violated the settlement agreement with Lewis by “filing the suit [against Bombardier] and creating the procedural mechanism that gave rise to the suit against Ashlie Lewis.” We are not persuaded by this argument. First, the settlement agreement prevented only future suits against Lewis, not any other party. Second, Lewis’ sole claim is for recovery of defense costs, a claim arising only under the indemnity provision of the settlement agreement.
-6-