Enterprise Marine Services LLC v. Motion Industires Inc. D/B/A Voorhies Supply Company, a Division of Motion Industries Inc.

• Court: Court of Appeals of Texas
• Decided: June 6, 2023
• Docket: 01-22-00072-CV
• Status: Published

Opinion

Opinion issued June 6, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00072-CV ——————————— ENTERPRISE MARINE SERVICES LLC, Appellant V. MOTION INDUSTRIES INC. D/B/A VOORHIES SUPPLY COMPANY, LLC, A DIVISION OF MOTION INDUSTRIES INC., Appellee

On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2019-39423A

MEMORANDUM OPINION

Enterprise Marine Services LLC (Enterprise) and Motion Industries, Inc.

d/b/a Voorhies Supply Company, LLC, a division of Motion Industries, Inc.

(Voorhies) dispute the meaning of a contractual indemnity provision under

Louisiana law. On cross-motions for summary judgment, the trial court ruled against Enterprise, the indemnitee, and for Voorhies, the indemnitor. Because Enterprise

correctly interprets the indemnity obligation, we reverse and remand for further

proceedings.

Background

In 2009, Enterprise’s predecessor, CTCO Shipyard of Louisiana, LLC

(CTCO), sought to consolidate the storerooms at its shipyard in Houma, Louisiana

and outsource the procurement and disbursement of supplies for its vessels by having

a vendor at the shipyard. CTCO agreed to lease Voorhies warehouse space at

CTCO’s shipyard, and Voorhies agreed to use the warehouse exclusively to sell

products to CTCO. By having Voorhies supply the products CTCO needed for its

vessels from this central location, CTCO “eliminate[d] the need for [it] to account

for, procure, or replenish” its product inventory.

CTCO and Voorhies executed a written Supply Agreement that is “governed,

interpreted, construed, and regulated by the laws of Louisiana.” In the Supply

Agreement, Voorhies agreed to: purchase CTCO’s existing product inventory,

“control and account for distributing the[] products for [CTCO’s] use,” and “use best

efforts to minimize obsolescence of the products[.]” Voorhies promised to “provide

CTCO with on-time delivery of the[] products and expertise along with the product

manufacturers in the recommended use and application of the products.” The

non-exclusive list of products included industrial supplies; bearing and PT products;

2 marine and janitorial supplies; fasteners, pipe fittings, weld fittings, and specialty

products; hydraulic pumps, hydraulic motors, controls, and hydraulic hose and

fittings; hand, air, and power tools; and repair of these power tools.

In exchange, CTCO agreed to provide Voorhies a rent-free “Building” or

“Premises” at the shipyard with some conditions. Voorhies was responsible for “all

building services” and “utilities, water, janitorial, and ordinary repair and

maintenance” and had to “keep the Building in good order, repair, and condition[.]”

Voorhies also had to maintain commercial general liability insurance “covering the

Premises” and insure both CTCO and Voorhies “against loss of the contents of the

Premises, including the inventory.”

The parties also executed the disputed indemnity provision in CTCO’s favor:

Voorhies will occupy and use the Building and Premises at its own risk. Without limitation of any other provision herein, CTCO . . . shall not be liable for any injuries to any person or damages to property from any cause whatsoever, whether owing to the Building or any part thereof, or any appurtenance thereof, being in need of repair or owing to the happening of any accident in or about the Building or the Premises or owing to any act of neglect of Voorhies or of any employee of Voorhies or visitor to the Building. Without limitation, this provision shall apply to injuries and damage caused by nature, rain, flood, hurricane or tropical storm, snow, ice, wind, frost, water, steam, gas, or odors in any form or by the bursting or leaking of windows, doors, walls, ceilings, floors, pipes, gutters, other fixtures; and to damage caused by fixtures, furniture, equipment, and the like situated at the Premises, whether owned by Voorhies or others.

Voorhies shall protect, defend, indemnify, and hold harmless CTCO . . . from any and all claims, demands and/or causes of action of any nature or kind, including but not limited to any claims for personal

3 injuries . . . brought by any person or entity which are in any way related to or connected with or arise out of this Agreement and/or Voorhies’[s] use or occupancy of the Premises, whether or not caused in whole or in part by active, passive, sole or concurrent negligence, strict liability or other fault or condition (preexisting or otherwise) attributable to CTCO . . . .

CTCO later sold its shipyard to Enterprise and, with Voorhies’s consent,

assigned the Supply Agreement to Enterprise (Assignment). Enterprise assumed

CTCO’s obligations under the Supply Agreement, and Voorhies agreed to perform

its contractual obligations for Enterprise’s benefit.

In 2019, Dallas Theriot sued Enterprise in Texas for injuries he sustained

while working as a relief captain on an Enterprise vessel. Theriot alleged that he was

injured when he sat in a newly installed captain’s chair, which gave way “suddenly”

and “without warning,” causing him to fall backward and strike his head and neck.

Voorhies had obtained the chair from H.O. Bostrom Company, the manufacturer,

and supplied it to Enterprise. Enterprise investigated the incident and concluded the

chair disconnected from its stand because the hardware delivered with the chair by

H.O. Bostrom to Voorhies and then by Voorhies to Enterprise was the wrong size.

Under maritime law, an injured seaman has three potential claims against his

employer: (1) a Jones Act negligence claim, (2) a claim that the ship was

unseaworthy, and (3) a claim for maintenance and cure. Theriot asserted all three

claims against Enterprise. He alleged that Enterprise was negligent because, among

other things, it failed to:

4 • maintain, inspect, or repair the vessel’s equipment;

• properly assemble the chair at issue;

• provide and maintain a safe work environment;

• adequately supervise or train its employees;

• follow its own safety rules, policies, and regulations;

• maintain safe mechanisms for work on the vessel; and

• operate the vessel in a safe and proper manner.

Theriot also alleged that Enterprise’s vessel was unseaworthy because he “did not

have adequate equipment to perform his duties because the chair [he] was sitting on

collapsed without warning.” Finally, Theriot alleged that he was entitled to

maintenance and cure because he was injured while working as a seaman.

Theriot also sued H.O. Bostrom and Voorhies, alleging that they had a duty

to provide correct hardware for the chair and that their failure to do so was not only

negligent but also a design, manufacturing, or marketing defect. As to Voorhies,

Theriot further alleged breaches of implied and express warranties.

Enterprise tendered its defense and indemnity to Voorhies under the Supply

Agreement and the Assignment. Enterprise also sought coverage and a defense under

Voorhies’s insurance policies as an additional insured. Voorhies refused the tender,

and Enterprise filed a third-party complaint asserting a breach-of-contract

5 crossclaim against Voorhies.1 Relevant here, Enterprise alleged that the Supply

Agreement obligated Voorhies to indemnify and defend Enterprise against Theriot’s

claims and that Voorhies had “materially breached the Supply Agreement and the

Assignment” by “failing to comply with the scope and terms of the Agreements” and

“providing the defective chair.”

Both parties moved for partial summary judgment on Enterprise’s

breach-of-contract crossclaim, asserting different interpretations of the Supply

Agreement’s indemnity provision. Enterprise argued that it was entitled to judgment

as a matter of law because Voorhies promised to indemnify Enterprise for all claims

related to, connected with, or arising out of the Supply Agreement, which included

Theriot’s lawsuit. Enterprise requested that the trial court grant its

summary-judgment motion and award attorney’s fees for both Theriot’s lawsuit and

the contract crossclaim against Voorhies.

Voorhies argued that its defense and indemnity obligation extended only to

the use of the Premises, not to supplying a captain’s chair. Voorhies asserted that it

simply served as a middleman for Enterprise to obtain supplies for its vessels:

1 Enterprise asserted several other crossclaims that are not before us, including for breach of the contractual insurance obligations. Although Enterprise argued below that it was entitled to coverage and a defense as an additional insured, it has not carried that contention forward on appeal. Enterprise’s appellate arguments rest exclusively on the Supply Agreement’s indemnity provision.

6 [It] leased [Enterprise’s] warehouse building on [Enterprise’s] property[] and had two . . . employees working on site. [Enterprise] directed Voorhies to order supplies and then [Enterprise] retrieved the supplies from its own warehouse. . . . Voorhies does not open the boxes shipped to [it], nor does [Enterprise] expect [Voorhies] to open and inspect [the boxes]. Because of Voorhies’[s] occupancy of the building through its lease, the [Supply Agreement] obligates Voorhies to defend and indemnify [Enterprise] for damage to the building, or claims relating to the building. However, the parties never intended for Voorhies to defend and indemnify [Enterprise] for claims such as [Theriot’s] . . . .

(Footnotes omitted.) Construing the indemnity provision in the broad manner

asserted by Enterprise would, according to Voorhies, lead to absurd consequences.

The trial court denied Enterprise’s motion, granted Voorhies’s motion, and

dismissed Enterprise’s breach-of-contract crossclaim with prejudice. The trial court

then severed the contract claim from Theriot’s lawsuit, making its

summary-judgment rulings final and appealable.

Standard of Review

Although the Supply Agreement calls for the application of Louisiana law, we

apply Texas procedural law. Nexen, Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d

412, 417 (Tex. App.—Houston [1st Dist.] 2006, no pet.). As a procedural matter,

when, as here, both sides move for summary judgment on the same issue and the

trial court grants one motion and denies the other, we consider both sides’

summary-judgment evidence, determine all questions presented, and render the

judgment the trial court should have rendered. E.g., Gilbert Tex. Constr., L.P. v.

7 Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010). Each party must

carry its own burden to establish its entitlement to summary judgment by proving all

the elements of the claim or defense; neither can prevail just because the other side

failed to meet its burden. See Atl. Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 208

(Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing CU Lloyd’s of Tex.

Feldman, 977 S.W.2d 568, 569 (Tex. 1998)).

Indemnity

Enterprise and Voorhies moved for summary judgment on the same issue,

both seeking a declaration on whether Voorhies had to indemnify and defend

Enterprise. Enterprise contends that the trial court erred in denying its

summary-judgment motion and instead granting Voorhies’s motion.

A. Louisiana rules of contract construction

The interpretation of a contractual indemnity provision is a question of law.

See Boykin v. PPG Indus., Inc., 987 So.2d 838, 842 (La. Ct. App. 2008). Voorhies’s

indemnity obligation must be determined under Louisiana law because of the Supply

Agreement’s choice-of-law provision. Language in an indemnity agreement dictates

the parties’ obligations. La. United Bus. Ass’n Cas. Ins. Co. V. J & J Maint., Inc.,

328 F. Supp. 3d 563, 569 (W.D. La. 2018); see also Becker v. Tidewater, Inc., 586

F.3d 358, 369 (5th Cir. 2009) (applying Louisiana law). Indemnity provisions are

construed according to the general rules of contract interpretation. Berry v. Orleans

8 Par. Sch. Bd., 830 So.2d 283, 295 (La. 2002) (citing LA. CIV. CODE arts. 2045–57).

As in Texas, Louisiana courts seek to give effect to the parties’ intent. See Brock

Servs., L.L.C. v. Rogillio, 936 F.3d 290, 285 (5th Cir. 2019) (citing LA. CIV. CODE

art. 2045).

Courts begin by examining the contract’s words. Clovelly Oil Co., LLC v.

Midstates Petroleum Co., LLC, 112 So.3d 187, 192 (La. 2013). Words and phrases

must be given their plain, ordinary, and generally prevailing meaning, unless they

have been ascribed a technical meaning. See id.; LA. CIV. CODE art. 2047. “Each

provision in a contract must be interpreted in light of the other provisions so that

each is given the meaning suggested by the contract as a whole.” Ortiz v.

MeadWestvaco Corp., 274 So.3d 158, 165 (La. Ct. App. 2019) (citing LA. CIV. CODE

art. 2050). None should be construed separately at the expense of disregarding

others. 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., 338 So.3d 500, 508 (La.

Ct. App. 2022) (citing LA. CIV. CODE art. 2050).

If a contract does not lead to absurd consequences, it will be enforced as

written. Doerr v. Mobil Oil Corp., 774 So.2d 119, 124 (La. 2000) (citing LA. CIV.

CODE art. 2046); see also Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.

2003) (courts may not alter contract’s unambiguous terms under guise of contractual

interpretation). But when the words of a contract lead to absurd consequences, a

9 court may determine the parties’ common intent in other ways. Gottsegen v. Hart

Prop. Mgmt., Inc., 820 So.2d 1138, 1140–41 (La. Ct. App. 2002).

B. Voorhies’s duty under the contractual indemnity clause

Here, as is often true in contract-interpretation cases, both sides say the

meaning of the Supply Agreement’s indemnity provision is clear, yet they say it

means different things. Enterprise interprets the Supply Agreement’s indemnity

provision broadly and contends the trial court erred by agreeing with Voorhies that

only claims relating to Voorhies’s use of the Premises fall within its scope. In support

of its broader interpretation, Enterprise emphasizes this indemnity language:

Voorhies shall protect, defend, indemnify, and hold harmless [Enterprise] . . . from any and all claims, demands and/or causes of action of any nature or kind, including but not limited to any claims for personal injuries . . . brought by any person or entity which are in any way related to or connected with or arise out of this Agreement and/or Voorhies’[s] use or occupancy of the Premises, whether or not caused in whole or in part by active, passive, sole or concurrent negligence, strict liability or other fault or condition (preexisting or otherwise) attributable to [Enterprise] . . . . (Emphasis added.) According to Enterprise, “and/or” expresses the parties’ intention

for the indemnity provision to be read disjunctively and conjunctively, i.e., to mean

“A, B, or both.” Thus, the indemnity provision requires Voorhies to defend and

indemnify Enterprise for three categories of claims: claims related to, connected

with, or arising out of (1) the Supply Agreement, (2) or Voorhies’s use or occupancy

of the Premises, (3) or both. And Voorhies’s interpretation limiting its indemnity

10 obligation to the second category of claims related to building use effectively reads

“this Agreement and/or” out of the Supply Agreement and so is too narrow.

Voorhies responds that Enterprise’s interpretation improperly isolates the

indemnity provision and disregards the rest of the Supply Agreement. Voorhies

points to the paragraph right before the indemnity provision providing that:

Voorhies will occupy and use the Building and Premises at its own risk. Without limitation of any other provision herein, [Enterprise] . . . shall not be liable for any injuries to any person or damages to property from any cause whatsoever, whether owing to the Building or any part thereof, or any appurtenance thereof, being in need of repair or owing to the happening of any accident in or about the Building or the Premises or owing to any act of neglect of Voorhies or of any employee of Voorhies or visitor to the Building. Without limitation, this provision shall apply to injuries and damage caused by nature, rain, flood, hurricane or tropical storm, snow, ice, wind, frost, water, steam, gas, or odors in any form or by the bursting or leaking of windows, doors, walls, ceilings, floors, pipes, gutters, other fixtures; and to damage caused by fixtures, furniture, equipment, and the like situated at the Premises, whether owned by Voorhies or others. According to Voorhies, this paragraph lists the types of claims that fall within

the indemnity guarantee, including certain personal injuries, acts of nature, and

property damage. The indemnity provision then defines the nature of the obligation

for such claims, specifically referencing “Voorhies’s use or occupancy of the

premises.” Voorhies asserts that reading these two paragraphs together, as intended,

“and/or” relates only to:

• those things listed in the first paragraph—personal injuries and property damage caused by “nature, rain, flood, hurricane or tropical storm, snow, ice, wind, frost, water, steam, gas, or odors in any form or by the bursting

11 or leaking of windows, doors, walls, ceilings, floors, pipes, gutters, other fixtures; and . . . damage caused by fixtures, furniture, equipment, and the like situated at the Premises, whether owned by Voorhies or others”; or

• Voorhies’s use of the Building or Premises.

Voorhies urges that Enterprise’s broader interpretation would have an absurd

consequence—Voorhies, a non-manufacturing distributor of third-party products,

would have to provide a defense and indemnity for all products sold to Enterprise

from 2009 on, without limitation.

While we agree with Voorhies that the indemnity provision cannot be read in

isolation, see LA. CIV. CODE art. 2050, we do not agree that its application is so

narrow when the Supply Agreement is read as a whole. Voorhies correctly asserts

that the first paragraph under the indemnity heading limits Enterprise’s liability by

stating that it shall not be liable for personal injury or property damage “owing to”

three things:

• a condition of the Building or any part or appurtenance of it;

• “any accident in or about the Building or Premises”; or

• “any act of neglect” or Voorhies, Voorhies’s employee, or a visitor to the Building.

And it clarifies that these three things include, “without limitation,” (1) injuries and

damages caused by the enumerated acts of nature or the “bursting or leaking of

windows, doors, walls, ceilings, floors, pipes, gutters, other fixtures,” and

12 (2) damage caused by “fixtures, furniture, equipment, and the like situated at the

Premises, whether owned by Voorhies or others.”

But reading the indemnity provision to include only those things would

effectively read words out of the Supply Agreement. The indemnity provision

expressly covers claims related to, connected with, or arising out “this Agreement

and/or Voorhies’[s] use or occupancy of the Premises.” (Emphasis added.) In the

contract recitals, “Agreement” is defined as a reference to the Supply Agreement

itself. Voorhies’s interpretation ignores that reference and the later hybrid “and/or.”

“And/or” has a generally prevailing meaning: it is commonly understood to mean

the one or the other or both. See State v. Dudley, 106 So. 364, 365 (La. 1925); see

also LA. CIV. CODE art. 2047. Nearly a century ago, the Louisiana Supreme Court

observed:

The expression and/or is quite frequently used in contracts . . . . When used in a contract, the intention is that the one word or the other may be taken accordingly as the one or the other will best effect the purpose of the parties as gathered from the contract taken as a whole. In other words, such an expression in a contract amounts in effect to a direction to those charged with construing the contract to give it such interpretation as will best accord with the equity of the situation, and for that purpose to use either ‘and’ or ‘or’ and be held down to neither.

Dudley, 106 So. at 365; accord “And/or,” MERRIAM-WEBSTER.COM DICTIONARY,

https://www.merriam-webster.com/dictionary/and%2For (defining “and/or” as “a

function word to indicate that two words or expressions are to be taken together or

individually”); ANTONIN SCALIA & BRYAN A. GARNER, Reading Law: The

13 Interpretation of Legal Texts 125 (2012) (“The literal sense of and/or is ‘both or

either,’ so that A and/or B means (1) ‘A,’ (2) ‘B,’ or (3) ‘both A and B.’”).

Giving “and/or” its generally prevailing meaning imposes defense and

indemnity obligations on Voorhies for claims related to, connected with, or arising

out of: (1) the Supply Agreement, (2) Voorhies’s use or occupancy of the Premises,

or (3) both the Supply Agreement and Voorhies’s use or occupancy of the Premises.

That meaning tracks the Supply Agreement as a whole.

Voorhies contends that the Supply Agreement as a whole calls for a narrow

interpretation of the indemnity provision because the use and occupancy of the

Building and Premises is the essence of the Supply Agreement. But, as Enterprise

points out, the Supply Agreement is more than a lease agreement. Its titular purpose

is to facilitate the supply of products from Voorhies to Enterprise. Its scope includes

“eliminat[ing] the need for [Enterprise] to account for, procure, and replenish its

inventory of the subject products.” And to that end, the Supply Agreement identifies

some product categories.2 It also provides for obtaining, replenishing, and tracking

inventory; pricing and minimum sales returns; and warehouse staffing. In addition,

the Supply Agreement includes Voorhies’s warranty for not just “on-time delivery”

but also “expertise along with product manufacturers.” Voorhies’s use and

2 Although a captain’s chair or furniture is not included on the product list, the list is expressly non-exclusive. And there is no dispute that the captain’s chair at issue was procured by Voorhies and sold to Enterprise under the Supply Agreement. 14 occupancy of the Building serves the same purpose. Reading the Supply Agreement

as a whole requires us to consider this purpose and these provisions, not just those

related to the Building and Premises.

That the parties intended the broad indemnity asserted by Enterprise is also

supported by the other words in the indemnity provision. Few words restrict the

indemnity provision’s scope. It expressly applies not just to claims but to “any and

all claims, demands, and/or causes of action of any nature or kind.” And in

describing the connection required for indemnifiable “claims, demands, and/or

causes of action,” the indemnity provision again uses broad language requiring only

that they be in “any way related to or connected with or aris[ing] out of.”

Voorhies’s narrower interpretation would require us not only to ignore the

broad language in the indemnity provision but also to impermissibly read out of the

clause the phrase “this Agreement and/or” or construe it to mean only “this

Agreement and Voorhies’[s] use or occupancy of the Premises.” This would give

effect to only part of the indemnity provision and respect only part of the Supply

Agreement’s purpose. We decline to do so. “While indemnity may only be found

where it is clearly intended, that rule does not require us to adopt a stilted reading of

the contract to avoid finding indemnity.” Rodrigue v. LeGros, 563 So.2d 248, 257

(La. 1990).

15 We disagree that the Supply Agreement’s insurance requirements mandate a

different interpretation. It is no surprise that Voorhies would have to insure the

Building and its contents from loss given the other requirements for its use and

occupancy of the Building and Premises. But the insurance requirement does not

undercut a broader interpretation of the indemnity provision. Insurance and

indemnity obligations are distinct. See Morella v. Bd. of Comm’rs of Port of New

Orleans, 888 So.2d 321, 325 (La. Ct. App. 2004).

We also disagree that a broad interpretation of the indemnity provision leads

to absurd consequences, particularly given other provisions of the Supply

Agreement that lend predictability to Voorhies’s costs. The Supply Agreement

provides for Voorhies’s free use of the Building and Premises. It also ensures

Voorhies will achieve a minimum standard net return each month:

For the [supply branch] to be viable, a minimum standard net return has to be achieved each month. This net return is based on a minimum sales dollar amount per month with a gross profit margin of 15%. (See attachment 1, branch expenses). If the sales dollars are not reached, a bill back representing Voorhies’[s] expenses not covered by the minimum standard net return will be made which [Enterprise] agrees to split with Voorhies on a 50/50 equal basis.

Sales Dollars Necessary per month based on Attachment 1 $175,000.00 Sales Dollars Annually $2,100,000.00

Agreeing to defend and indemnify Enterprise for claims related to, connected with,

or arising out of the products it sells under the Supply Agreement may prove to be

16 an unwise business decision; but considering these other provisions, it is not

objectively absurd. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Circle, Inc., 915

F.2d 986, 991 (5th Cir. 1990) (applying Louisiana law and concluding that “although

a business decision may be unwise, imprudent, risky, or speculative, it is not

necessarily ‘absurd’”). Parties may not “escape the unfortunate and unexpected,

though not objectively ‘absurd,’ consequences of a contract by subsequently

characterizing their consequences as ‘absurd.’” Id.

We conclude the Supply Agreement’s indemnity provision does not limit

Voorhies’s defense and indemnity obligations to claims related to, connected with,

or arising from Voorhies’s use or occupancy of the Premises. Instead, the plain,

ordinary, and generally prevailing meaning of the words used in the Supply

Agreement, considered as a whole, express the parties’ intention for Voorhies to

defend and indemnify Enterprise for:

• claims in any way related to, connected with, or arising out of the Supply Agreement;

• claims in any way related to, connected with, or arising out of Voorhies’ use or occupancy of the Premises; and

• claims in any way related to, connected with, or arising out of both the Supply Agreement and Voorhies’s use or occupancy of the Premises.

We therefore hold the trial court erred by granting Voorhies’s

summary-judgment motion based on a narrower interpretation of the Supply

Agreement’s indemnity provision. Whether the trial court also erred by denying

17 Enterprise’s summary-judgment motion depends on whether, as Enterprise

contends, the summary-judgment record establishes that Theriot’s claims against

Enterprise are claims in any way related to, connected with, or arising out of the

Supply Agreement. Accordingly, we turn to that question.

C. Theriot’s underlying suit

The indemnity provision provides indemnity for costs, including attorney’s

fees, from personal injuries “in any way related to,” “connected with,” or “aris[ing]

out of” the Supply Agreement or Voorhies’s use or occupancy of the Premises or

both, “whether or not caused in whole or in part by active, passive, sole or concurrent

negligence, strict liability or other fault or condition (preexisting or

otherwise) attributable to [Enterprise].” Louisiana courts have applied a “but for”

causation test to indemnity provisions containing “arising out of” language. See Kan.

City S. R. Co. v. Pilgrim’s Pride Corp., Civ. Action No. 06-0003, 2010 WL 1293340,

at *6 (W.D. La. Mar. 29, 2010); Perkins v. Rubicon, Inc., 563 So.2d 258, 259–60

(La. 1990) (“arising out of” language in an indemnity provision requires “a

connexity similar to that required for determining cause-in-fact: Would the particular

injury have occurred but for the performance of work under the contract?”).

But “aris[ing] out of” is only one of three triggering terms in the indemnity

provision. The other terms are susceptible to broader meanings. For instance,

Louisiana courts have given a broad construction to “in connection with” language,

18 noting it means “being related to or associated with, but not the primary or only

purpose of.” Poole v. Ocean Drilling Expl. Co., 439 So.2d 510, 512 (La. Ct. App.

1983); see also Kan. City S. R. Co., 2010 WL 1293340, at *6.

In the underlying suit, Theriot sought recovery against Enterprise for

negligence, unseaworthiness, and maintenance and cure under the Jones Act. The

unseaworthiness claim and the maintenance-and-cure claim arise under general

maritime law, while the negligence claim is statutory. See Chandris, Inc. v. Latsis,

515 U.S. 347, 354 (1995). “Historically, conceptually, and functionally, the

unseaworthiness and Jones Act tort actions are [conjoined].” David W. Robertson,

Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70 LA. L.

REV. 463, 464 (2010). Both compensate a seaman for injuries. Applying the

indemnity provision’s “connected with” language as “being related to or associated

with,” as broadly interpreted by the Louisiana courts, we conclude that these two

claims fall within the scope of the indemnity provision. They rest on Theriot’s

allegation that, among other things, Enterprise provided unsafe equipment on its

vessel. And Enterprise presented unrebutted evidence that Voorhies supplied the

captain’s chair at issue to Enterprise under the Supply Agreement. Voorhies’s

corporate representative testified:

Q. And I believe it was your testimony that delivering the chair at issue in this [L]awsuit constituted work under this [Supply] [A]greement, correct?

19 A. Yes.

Q. That Voorhies was performing its duties under this [Supply] [A]greement when it delivered the chair to [Enterprise], right?

A. Correct.

But a different conclusion is required for the maintenance-and-cure claim.

“The much older maintenance and cure action does not derive from tort principles

and is something like a first cousin to the other two.” Robertson, supra. It does not

compensate for injuries but serves a curative function. See, e.g., Johnston v.

Tidewater Marine Serv., No. 96–30595, 1997 WL 256881, at *2 (5th Cir. Apr. 23,

1997) (per curiam) (“A claim for unseaworthiness is compensatory in

nature . . . while a claim for maintenance and cure is curative in nature.”). A

maintenance-and-cure claim “concerns the vessel owner’s obligation to provide

food, lodging, and medical services to a seaman injured while serving the ship.”

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). A shipowner is

required “not only to pay for the seaman’s maintenance and cure but to take all

reasonable steps to make sure that the seaman, when he is injured or becomes sick,

receives proper care and treatment.” GRANT GILMORE & CHARLES L. BLACK, JR.,

THE LAW OF ADMIRALTY § 6–13, at 310 (2d ed. 1975). A claim for maintenance and

cure arises from the relationship between seaman and employer. Stermer v.

Archer-Daniels-Midland Co., 140 So.3d 879, 885 (La. Ct. App. 2014). In other

words, the maintenance-and-cure claim is not one for “personal injuries, death, or

20 property damage” and thus falls outside the scope of the Supply Agreement’s

indemnity provision.

Although Enterprise requested rendition of judgment, including an award of

attorney’s fees, in its favor on its breach-of-contract cause of action in both the trial

court and this court, that remedy is not ripe. We have before us only the matter of

the indemnity provision’s interpretation. Our record includes no determination of

Enterprise’s costs in the underlying Theriot lawsuit for the covered or non-covered

claims, nor is there evidence of Enterprise’s attorney’s fees. Accordingly, the

summary-judgment record does not establish Enterprise’s entitlement to judgment

as a matter of law, see TEX. R. CIV. P. 166a(c). We therefore cannot hold that the

trial court erred by denying Enterprise’s summary-judgment motion.

Conclusion

For these reasons, we reverse that part of the trial court’s order granting

Voorhies’s motion for summary judgment on Enterprise’s cause of action for breach

of contract, but we affirm the denial of Enterprise’s summary-judgment motion. We

remand for further proceedings consistent with this opinion.

Sarah Beth Landau Justice

Panel consists of Justices Landau, Countiss, and Guerra. 21