Goldman v. Western Geophysical Co.

904 So. 2d 796, 2005 La. App. LEXIS 1458, 2005 WL 1277944
CourtLouisiana Court of Appeal
DecidedMay 31, 2005
DocketNo. 04-CA-1374
StatusPublished

This text of 904 So. 2d 796 (Goldman v. Western Geophysical Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldman v. Western Geophysical Co., 904 So. 2d 796, 2005 La. App. LEXIS 1458, 2005 WL 1277944 (La. Ct. App. 2005).

Opinion

CLARENCE E. McMANUS, Judge.

The Insurance Company for the State of Pennsylvnia appeals the grant of a motion for summary judgment in favor of the Insurance Company of North America, Inc. on its cross-claim. For the reasons which follow, we affirm the judgment of the trial court.

Ronald Slattery (“Slattery”) was employed by Offshore Navigation, Inc. (“ONI”) as a navigator. On December 14, 1990, ONI and Western Geophysical Company, Inc. (“Western”) executed a contract which stated that ONI would provide Western with employees to send to work in Argentina. Pursuant to that contract, Slattery was to go to Argentina to work aboard a vessel, the M/V Western Atlantic. Western made Slattery’s travel arrangements and paid his way to Argentina and transported him to the vessel. He was to return to the United States on December 10, 1991, however, Western instructed him to remain in Argentina to perform additional work. On December 14,1991, Western told Slattery the work was complete and he could return to the U.S. Western’s local agent, Argencia Maritme Internationale, made the travel arrangements. On the morning of December 15, 1991, a car and driver picked Slattery up to transport him to the airport. The driver lost control and the car flipped, ejecting Slattery and injuring him.

IsSlattery and his wife, Michele Goldman (“Goldman”), filed suit against Western, ONI, and ONI’s insurer, the Insurance Company of North America (“INA”). On October 19, 1994, the trial court found that ONI provided Western with insurance coverage as an “additional insured” under its policy with INA. Thereafter, INA settled its claims with Slattery for $350,000.00 on behalf of ONI and Western. INA then filed a cross-claim and third party demand against Western’s insurers, including the Insurance Company for the State of Pennsylvania(“ICSOP”) and Quayside Insur-[798]*798anee Management (“Quayside”) seeking recovery of the amounts paid to Slattery.

On July 13, 2000, the trial court issued a judgment finding that INA was legally subrogated to the rights of Western against ICSOP. On August 22, 2001, the trial court issued a judgment finding that Slattery was a Jones Act seaman and finding that he was a borrowed employee of Western at the time of the accident. INA then filed a motion for summary judgment seeking the $350,000.00 settlement amount it had paid to the plaintiffs from ICSOP. ICSOP also filed a motion for summary judgment. The trial court granted the motion for summary judgment in favor of INA and denied the motion by ICSOP in open court on August 9, 2001 and by written judgment on August 22, 2001.

The trial court also issued written reasons for judgment on September 4, 2001. In its reasons, the trial court states that “it would be inappropriate for this Court to consider the conclusory and self-serving affidavits submitted by ICSOP which contend that its policy does not provide Jones Act coverage.” The trial court further found that the language in the policy endorsement is clear and unambiguous regarding its intent to provide coverage for injuries to Western employees who are determined to be a Jones Act seaman by a court. The trial court had previously found that Slattery was a Jones Act seaman and a borrowed [¿employee of Western. Therefore, the trial court found that the ICSOP endorsement provided Jones Act coverage for the Slattery’s claims.

The trial court also addressed the issue .of which insurer would be liable for the $350,000.00 settlement paymfent. The trial court recognized that there are multiple policies, each with an “other insurance” clause. The trial court found that the “other insurance” clause in the INA policy clearly limits the policy to excess coverage when the insured has other valid and collectible insurance. The trial court noted that it must next determine whether the ICSOP policy provides primary or excess coverage in order to give effect to all of the “other insurance” clauses. The trial court found that the endorsement to the ICSOP policy contains an escape clause, however, a subsection of the insurance policy restores coverage to Western employees determined to be a Jones Act seaman at the time of the accident. Ultimately, the trial court held that since it found coverage to be available under both the ICSOP and the INA policies, Quayside was relieved of liability by its escape clause. The trial court held that the IC-SOP policy provides primary coverage for the plaintiffs’ claims and the INA policy is limited to excess coverage “over any other valid and collectible insurance available to the insured.”

Finally, the trial court addressed INA’s argument that ICSOP does not provide valid and collectible insurance with respect to the first $250,000.00 of the settlement payment because ICSOP’s policy is a “retrospective rating” policy. The affidavit of Nancy Trent provided that any claim payment made within the policies $250,000.00 “stop loss” must be paid by Western and Western had not paid any portion of this amount. Therefore, Western would have to pay the first $250,000.00 .if the trial court found that ICSOP is liable for the $350,000.00 settlement payment. The trial court found that the affidavit of Nancy Trent “merely provides additional conclu-sory statements alleging that Western will have |Bto pay $250,000.” Therefore, the trial court found that ICSOP failed to satisfy its burden of proof on that issue.

The judgment of the trial court was in favor of INA and against the cross-claim defendant, ICSOP, for $350,000.00, plus judicial interest from the date of demand. The judgment also declared that INA shall [799]*799indemnify Western for any portion of this judgment that it must pay to ICSOP pursuant to the Retrospective Premium Adjustment Agreement. ICSOP filed a motion for new trial, which was denied by the trial court.

ICSOP now appeals the judgment granting summary judgment in favor of INA alleging three assignments of error: 1) questions of material fact exists, therefore, summary judgment is improper, 2) the trial court erred in completely disregarding the statutorily compliant affidavit of Nancy Trent and in granting summary judgment in favor of INA, and 3) the trial court erred in granting INA’s motion for summary judgment declaring that the plaintiff was a borrowed employee of Western when the terms and conditions within the “four corners” of the contract govern this issue. For the following reasons, we affirm the trial court’s judgment granting summary judgment in favor of INA.

DISCUSSION

First, we agree with the trial court and find that no genuine issues of material fact exists. The trial court fully evaluated the insurance policies of all three insurance companies, INA, ICSOP, and Quayside, as well as the contract between ONI and Western. We agree with the trial court’s finding, based on its evaluations, that INA is not precluded from seeking indemnity from ICSOP. The contract between ONI and Western stated that Western “agrees to protect, indemnify, and save ONI harmless from and against all claims, demands, and causes of action of every kind and character resulting therefrom.” The contract further states that ONI | (¡will indemnify Western only as to injuries resulting from the willful or negligent acts or omissions of ONI, its agents, or representatives. The trial court noted that neither INA nor ICSOP had presented any facts to show that the accident occurred because of ONI’s willful or negligent acts. The facts show that Western hired the ear that was involved in the accident.

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904 So. 2d 796, 2005 La. App. LEXIS 1458, 2005 WL 1277944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldman-v-western-geophysical-co-lactapp-2005.