Summary
In Mastrodonato v. Sea Mar, Inc., No. 99-2547, 2000 WL 1693662, at *1 (E.D. La. Nov. 9, 2000) (Shushan, M.J.), the plaintiff slipped on "wet, grimy and slippery" carpeting.
Summary of this case from Gant v. Southland Energy Servs., LLCOpinion
CIVIL ACTION No.: 99-2547; SECTION: "D"(3).
November 9, 2000.
Before the court are the following motions:
(1) "Motion for Partial Summary Judgment and to Strike Jury Demand" filed by Defendants, Montco, Inc. and Montco Offshore, Inc. (collectively "Montco"), and
(2) Cross-Motion for Partial Summary Judgment filed by Co-Defendant, Sea Mar, Inc. (Sea Mar).
The motions, set for hearing on Wednesday, November 1, 2000, are before the court on briefs, without oral argument. Now, having reviewed the memoranda of counsel and the applicable law, the court finds that Montco's motion should be granted and Sea-Mar's motion should be denied.
I. Background
Plaintiff Nicholas Mastrodonato was a Jones Act seaman, employed by Montco as a captain of a jack-up vessel (the L/B JÚAN) servicing an offshore rig. On or about August 19, 1998, Plaintiff was transported from the jack-up vessel to the shore in Galveston, Texas, by the supply vessel, the M/V CAPE RACE. The owner (or owner pro hac vice) and operator of the M/V CAPE RACE was Sea Mar.
Plaintiff alleges that when he was departing the M/V CAPE RACE, he slipped and fell on the step leading to the aft deck, because the carpeting on this step was "wet, grimy and slippery" and the step (which was metal) was bent. Plaintiff initially sued Sea Mar (in personam) and the M/V CAPE RACE (in rem) asserting negligence claims under the general maritime law. Montco intervened seeking recoupment of maintenance, cure and wages paid to Plaintiff.
Plaintiff subsequently amended his Complaint to additionally name the Montco entities as Defendants, asserting Jones Act negligence and unseaworthiness claims against them, and he also requested Trial by jury. Sea Mar then filed a cross-claim against Montco, seeking contractual indemnity pursuant to the Blanket Time Charter between Montco and Whiting Petroleum, the charterer of both the L/B JUAN and the M/V CAPE RACE. Sea Mar also filed a third party demand against Redland Insurance Company (Redland), the PI carrier for Montco, claiming that Redland was obligated to defend and indemnify Sea Mar.
Montco now moves for summary judgment seeking dismissal of all claims asserted against Montco, except Plaintiff's claim for maintenance and cure. On the other hand, Sea Mar moves for summary judgment seeking defense and indemnity from Montco and coverage under Montco's insurance policy (underwritten by Redland). For reasons set forth below, the court finds that there are no genuine issues of material fact, and Montco (not Sea Mar) is entitled to judgment as matter of law.
The court notes that on page 2 of Montco's supporting memorandum, it is stated "Montco and Redland now move for summary judgment. . ." However, Redland did not file the subject motion for partial summary judgment. Rather, the Montco entities are the only subject movers.
II. Legal Analysis
A. Montco did not breach any duty owed to plaintiff .
Under the Jones Act, Montco owed Plaintiff a duty of ordinary care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997). However, here there is no evidence that Montco was negligent. Further, the duty to provide Plaintiff with a safe place to work does not extend to a vessel (here, the M/V CAPE RACE) over which Montco (who was neither a demise nor time charterer of the M/V CAPE RACE) exercised no control.
See Deposition of Plaintiff, pp. 140-42 (Montco's Ex. 2); Deposition of Darrell Plaisance, operations manager of Sea Mar, pp. 103-05, 107 (Montco's Ex. 3); and Sea Mar's responses to Montco's Request for Admissions (Montco's Ex. 4).
Sea Mar admits in its Statement of Uncontested Facts that "Sea Mar, Inc. had the sole responsibility to operate, navigate, supply, insure and crew the M/V CAPE RACE." (Sea Mar's Statement of Uncontested Material Facts, No. 5).
The court rejects Plaintiff's argument that there is sufficient evidence "to allow the fact finder to infer negligence on the part of Montco for failing to provide a safe workplace." (Plaintiff's Opp. at 4). To the contrary, Plaintiff has failed to create a material fact issue. A Jones Act employer does not breach its duty to provide a safe place to work if the employer does not have notice and the opportunity to correct an unsafe condition. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989). Here, there is no evidence that Montco had notice of, or reason to know of, the alleged slippery mat on the M/V CAPE RACE.
Counsel for Plaintiff failed to paginate his memorandum, and the court instructs him to paginate any further pleadings and memoranda filed in this matter, as required by the Local Rules of the Eastern District.
Thus, Plaintiff's Jones Act claim and unseaworthiness claims against Montco must be dismissed. And because Plaintiff's Jones Act claim must be dismissed, Plaintiff is not entitled to trail by jury on his remaining claims (i.e., his maintenance and cure claims against Montco; and his general maritime negligence claims against Sea Mar).
B. Montco owes Sea Mar no contractual indemnity obligation .
Whiting Petroleum Corporation had a "Blanket Time Charter Agreement" with Montco which set forth the following indemnity obligations Montco owed to Whiting:
The Owner [Montco] shall defend and indemnify the Charterer Group ("Charterer Group" shall mean the Charterer and its subsidiaries, affiliates, co-lessees, employees and insurers) from and against all claims, demands, causes of action, judgments or costs (including but not limited to, attorney's fees and other expenses incurred in the defense of any claim, action or lawsuit or in the enforcement of this indemnity obligation) thereof, for (a) bodily injury, illness, or death of any employee of the Owner . . . resulting from, arising out of, or incident to, the performance of this Agreement regardless of whether such claim, demand, cause of action or judgment results from arises out of or is incident to any actual or alleged negligent act or omission or other fault of any party, including the sole negligent act or omission or concurrent negligent act or omission or strict liability of the Charterer Group, the unseaworthiness of any vessel owned or chartered by or for the benefit of the Charterer Group, or any defect or imperfection of any structure owned by the Charterer Group.
(Montco's Ex. 5. Blanket Time Charter Agreement, § XV(A)(1)) (emphasis added).
Montco misquoted this Paragraph in their supporting memorandum at page 6, in that the language boldfaced by the court was deleted. This deletion is not material to the court's ruling herein.
Pursuant to this indemnity agreement between Whiting and Montco, Montco is required to defend, indemnify and hold Whiting and the "Charterer Group" harmless in event of personal injury to a Montco employee. However, neither Whiting not its contractual liability insurer (Republic Western) has been sued by Plaintiff, and the definition of the "Charterer Group" clearly does not include an independent contractor or Whiting's subcontractor, such as Sea Mar. Sea Mar's contention that it fits within the definition of the "Charterer Group" in nonsensical. Indeed, Sea Mar's corporate representative has admitted that Sea Mar was not an affiliate, parent, subsidiary, co-lessee, or partner of Whiting.
At most, Sea Mar Management, Inc., not Sea Mar, Inc.(the defendant in this case), was a broker in connection with the charter of the L/B JUAN. This does not transform Sea Mar's legal status into that of a "subsidiary or affiliate or co-lessee" of Whiting. (See also Deposition of Darrel Plaisance, pp. 99-100, attached as Montco's Ex. 3).
See Plaisance Dep. at 100-01, attached as Montco's Ex. 3.
The court rejects as meritless Plaintiff's argument that the language in Paragraph XV wherein "Montco agreed to indemnify Whiting for any liability it may have for an injury to a Montco employee (here the plaintiff, Mastrodonato) arising out of the fault of any party" is "certainly broad enough to require Montco to indemnify Whiting for any judgment as a result of Sea Mar's fault." (Plaintiff's Supp. Memo. at 2).
Further, although Whiting has assumed Sea Mar's defense in this matter, there is no requirement in the Blanket Time Charter Agreement between Montco and Whiting for Montco to assume the contractual liabilities owed by Whiting to third parties. Specific language requiring the indemnitor to assume the contractual liabilities of the indemnitee must be included in the indemnity agreement in order for the indemnitor to be held responsible for the contractual liabilities of the indemnitee. Foreman v. Exxon Corp., 770 F.2d 490, 498 (5th Cir. 1985); Corbitt v. Diamod M Drilling Co., 654 F.2d 329, 333 (5th Cir. 1981)
Whiting has assumed Sea Mar's defense pursuant to the "Master Time Charter Agreement" between Sea Mar and Whiting, attached as Sea Mar's Ex. 2.
Similarly, the court rejects Sea Mar's argument that Whiting's contractual liability insurer, Republic Western, is entitled to defense and indemnity from Montco. Republic Western's liability here arises as a result of an insurance contract in conjunction with Whiting's contractual liability to Sea Mar, and not as a result of "bodily injury" to a Montco employee (per § XV(A)(1) of the Blanket Time Charter Agreement between Montco and Whiting). To hold that the indemnity provided in § XV(A)(1) extends to Whiting's contractual liability insurer would again contravene Foreman and Corbitt.
Finally, the court rejects Sea Mar's argument that Whiting has assigned its right to contractual indemnity from Montco to Sea Mar. An indemnitee cannot without acquiescence by the indemnitor, expand the scope of the indemnity through assignment to include a new indemnitee not identified in the original contract. Thus, the court concludes that Montco is not required to indemnify Whiting in connection with its contractual obligations to Sea Mar.
C. Montco does not provide coverage to Sea Mar through its PI policy (underwritten by Redland Insurance Company) .
Under the "Blanket Time Charter Agreement" between Montco and Whiting, Montco was required to
procure and maintain in full force and effect, at its sole cost and expense, during the term of the charter of any vessel, the insurance coverage of the types, in the amounts and with the provisions described in Exhibit "B" attached hereto. [Montco] agrees that such insurance policies will be endorsed to name [Whiting] (its parent, subsidiaries and affiliated companies, their officers, directors, employees, and those whom [Whiting] may be associated as co-lessees), as additional assureds with respect to liability assumed by Owner under this Agreement. . . . [Montco] furthermore agrees that the aforementioned policies shall, with respect to all liability assumed by [Montco] under this agreement, contain a Waiver of Subrogation in favor of [Whiting]. . . .
(Montco's Ex. 5, Blanket Time Charter Agreement, § XII(A)).
Montco notes that "Exhibit B, which contained the insurance requirements, was never attached by the parties to the actual contract that was signed. However, for purposes of [its] motion, Montco agrees that it was intended that Whiting would be named as an additional insured in Montco's PI policy." (Montco's Supporting Memo., pp. 7-8, n. 10.
While nothing in this Agreement obligated Montco to name Sea Mar, Inc. or any other subcontractor of Whiting as an additional insured, Montco's PI policy (issued by third-party defendant, Redland Insurance Company) does name Sea Mar Management, Inc. as an additional insured with a waiver of subrogation. However, Sea Mar Management, Inc. is a separate and distinct company from Sea Mar, Inc. And since Sea Mar, Inc. was not named in the policy, Redland clearly does not provide coverage to it.
See Policy attached as Montco's Exhibit 8, Section "D" containing the PI coverage.
See Endorsement attached as Montco's Exhibit 10. Notably, this endorsement does not delete the "as owner" provision of the PI policy, and there was no requirement in the Blanket Time Charter Agreement between Montco and Whiting that the "as owner" provision be deleted. The "as owner" provision is quoted in footnote 10, infra. Moreover, Sea Mar's corporate representative testified that he knew of no discussion or agreement that required Montco to delete the "as owner" provision in the PI policy. (See Plaisance Dep. at 97).
Sea Mar Management, Inc. acted as a broker in the chartering of the L/B JUAN. (See Montco Exhibit 7, invoice dated August 31, 1998). On the other hand, Sea Mar, Inc. was the actual owner and operator of the M/V CAPE RACE. (Plaisance Dep. at 88-89). See also Management Agreement between Sea Mar Management, Inc. and Sea Mar, Inc. attached as Montco's Exhibit 11.
Further, even if Sea Mar, Inc. was an additional insured under the Redland policy, it would not be entitled to coverage since its fault was not "as owner" of a Montco vessel scheduled in the policy. "The insurance policy covers liability from the accident only to the extent the accident is caused by the covered vessel." Wedlock v. Gulf Mississippi Marine Corp., 554 F.2d 240, 242 (5th Cir. 1977). Here, Sea Mar was owner of the M/V CAPE RACE, which is not insured in the PI policy, and there is no "causal operational relation" between the L/B JUAN (which is insured by the PI policy) and the subject accident. Lanasse v. Travelers Ins. Co., 450 F.2d 580, 584 (5th Cir. 1971).
The "as owner" provision of the PI policy states that:
The Assurer does hereby undertake to make good to the Assured or the Assured's executors, administrators and/or successors, all such loss and/or damage and/or expense as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of the liabilities, risks, events and/or happenings herein set forth:(See Form SP-23, included in Montco's Exhibit 9).
See Schedule of Vessels, included in Montco's Exhibit 9.
D. The contractual liability coverage in the Montco insurance policy (underwritten by St. Paul Insurance Company) does not extend to Whiting's contractual obligation to Sea Mar .
Sea Mar "argues that the source of coverage under the Redland Insurance Company policy is the Contractual Liabilities coverages, found in Section "E" of the policy." (Sea Mar's Supporting Memo. at 17). However, Section "E" of the policy (issued by Continental Underwriters to Montco and which concerns comprehensive general liability coverage) was underwritten by St. Paul Insurance Company . St. Paul is not a party in this action. However, even if it was, Sea Mar's argument that Section "E" provides contractual liability coverage for Whiting is without merit. Section "E" defines incidental contract to include "any oral or written contract or agreement related to the conduct of the named insured's business." There is no support for the argument that Section "E" provides contractual liability coverage for additional insureds. Whiting is not a named insured, but an additional insured. Thus, St. Paul did not provide contractual coverage for the contractual liabilities of its additional insureds (such as Whiting), but only for the contractual liabilities of its named insured, Montco.
Section "D" of the policy issued by Continental Underwriters to Montco concerns the PI coverage underwritten by Redland. Redland is the only insurance company named in this matter.
III. Conclusion
For reasons set forth above,
IT IS ORDERED that Montco's "Motion for Partial Summary Judgment" be and are hereby GRANTED, dismissing all claims against Montco, except for Plaintiff's claim against Montco for maintenance and cure;
IT IS FURTHER ORDERED that Plaintiff's Motion to Strike Jury Demand be and is hereby GRANTED, and
IT IS FURTHER ORDERED that Sea Mar's "Cross-Motion for Partial Summary Judgment" be and is hereby DENIED.