Opinion
MO:22-CV-00115-DC
2023-06-21
CENTURY SURETY COMPANY, as Subrogee of Triangle Engineering, L.P., Plaintiff, v. COLGATE OPERATING, LLC, Defendant.
Summer L. Frederick, Heather N. Blumberg, Robert J. Witmeyer, Cooper & Scully, P.C., Dallas, TX, for Plaintiff. Mark A. Youngjohn, Donato Brown Pool & Moehlmann, Houston, TX, Randy G. Donato, Donato Minx Brown & Pool, P.C., Houston, TX, for Defendant.
Summer L. Frederick, Heather N. Blumberg, Robert J. Witmeyer, Cooper & Scully, P.C., Dallas, TX, for Plaintiff. Mark A. Youngjohn, Donato Brown Pool & Moehlmann, Houston, TX, Randy G. Donato, Donato Minx Brown & Pool, P.C., Houston, TX, for Defendant. ORDER DAVID COUNTS, UNITED STATES DISTRICT JUDGE
BEFORE THE COURT are Plaintiff Century Surety Company's Motion for Summary Judgment—filed as subrogee of Triangle Engineering, L.P. who is no longer party to this matter—and Defendant Colgate Operating, LLC's cross-Motion for Summary Judgment. The parties fully briefed the issues raised in their motions. After due consideration, the Court GRANTS Defendant's Motion and DENIES Plaintiff's Motion.
Doc. 42.
Doc. 36-1.
Docs. 39, 42, 44, 46, 47.
INTRODUCTION
Personal injuries abound in the oilfield. And given that oil well operators seldom 'operate' today's wells without the benefit of specialized contractors, a personal injury claimant may find a number of parties to pursue in court. Until the early 70's, operators (presumably aware of their position in the pecking order of potential defendants to personal injury claims) encouraged their contractors into one-sided indemnification agreements. These agreements shifted an operator's personal injury liability exposure onto the backs of their contractors who often lacked the funds or access to insurance policies to cover such claims. In 1973, the Texas Legislature attacked this liability shifting practice, finding it unfair to contractors. But the Legislature did not forbid the practice entirely. Rather, it saw fit to provide safe harbor for (1) mutual indemnification agreements (2) that were supported by liability insurance.
Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 348 (Tex. 2000) (recounting history and context for enactment of the Texas Oilfield Anti-Indemnity Act).
Id.
Here, following the guideposts of the Texas Oilfield Anti-Indemnity Act, oilwell operator Colgate and its contractor Triangle contracted a Master Service Agreement to obtain a minimum amount of insurance to indemnify one another. Colgate then purchased many times more coverage than the minimum specified by the MSA. After settling a personal injury claim that exhausted both Colgate and Triangle's minimum obligations, Century (one of Triangle's insurers) and Colgate now dispute how much insurance Colgate "agreed to purchase for the benefit of the other party as indemnitee."
Id.
FACTUAL BACKGROUND
The parties stipulated these facts. Colgate and Triangle entered into Colgate's form Master Services/Sales Agreement on April 29, 2017. Colgate hired Triangle to provide a "workover consultant to coordinate the installation of an electronic submersible pump" into a well operated by Colgate in Pecos County, Texas. Triangle provided Brian Bell who coordinated with Colgate's other contractors to install the pump. On February 29, 2020, an employee of one of those other contractors named Jeremy Miller was crushed by a pipe rack that he and Bell were unloading from a tractor-trailer.
Doc. 36-1.
Id.
Doc. 36-1.
Id.
Id.
On April 24, 2020, Miller and his wife sued several Colgate entities, Triangle, Bell, and two other contractors in Texas state court. Thereafter, Triangle and its insurers Hallmark National Insurance Company and Century Surety Company, settled with the Millers for an undisclosed total.
Id.
Id. at 6. The settlement agreement allows for partial disclosure of the settlement amount in disputes like this one but only to the extent the disclosure reveals the amounts paid by the parties in suit.
The MSA contains a mutual indemnity provision that requires Colgate and Triangle to indemnify the other against all claims asserted against the other for anything "arising out of, resulting from, or in any way incidental to, directly or indirectly, transactions subject to this agreement." And, as required by the TOAIA, the MSA supports Colgate and Triangle's indemnity provisions with obligations to purchase liability insurance. Each were to purchase indemnity insurance with limits the lesser of (1) "not less than $5 million", or (2) "the maximum amount which may be required by law, if any, without rendering this mutual indemnification obligation void, unenforceable or otherwise inoperative."
Specifically, each entity and their "contractors and subcontractors . . . directors, officers, owners, employees, agents, parent[s], affiliates, and subsidiaries." Doc. 36-1 at 6.
Id.; The parties agree that the Miller claim is contemplated by the MSA. See Docs. 39, 42.
Doc. 36-1.
From Exhibit A to the MSA: "Comprehensive General Liability Insurance, with limits of liability not less than the following: $5,000,000 general aggregate[;] $5,000,000 each occurrence, Bodily Injury and/or Property Damage Combined Single Limit. Such insurance shall include the following: . . . Contractual Liability covering the liabilities assumed under this contract." Doc. 36-1 at 12.
Doc. 36-1 at 12.
Colgate and Triangle then purchased policies to satisfy their indemnification obligations. Colgate bought a $1 million general liability insurance policy and a $75 million excess liability policy from Markel International Insurance. For its part, Triangle bought a $1 million general liability insurance policy from Hallmark, and a $5 million excess liability policy from Century.
Doc. 36-1.
Id.
Though the settlement total remains undisclosed, Hallmark paid $1 million and Century paid $5 million pursuant Triangle's policies, while Markel paid $6 million on behalf of Colgate for Triangle's benefit. Century then sued Colgate for breach of contract for failure to indemnify Triangle and seeks reimbursement of the $5 million it paid toward the Miller settlement. Both parties then moved for summary judgment
Id.
Id.
Id.
Doc. 39 (Colgate's Motion for Summary Judgment); Doc. 42 (Century's Motion for Summary Judgment).
LEGAL STANDARD
Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Courts must examine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." It must also consider the record as a whole, drawing all justifiable inferences in favor of the party opposing the motion. But it may not weigh the evidence or evaluate the credibility of witnesses.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Id. at 251-52, 106 S.Ct. 2505.
See Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
Id.
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. If the moving party establishes a lack of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial exists. The nonmoving party cannot rest on the mere allegations of the pleadings to sustain this burden. "After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted." "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." The admissibility of summary judgment evidence is subject to the same rules of admissibility applicable to a trial. Federal courts sitting in diversity apply state substantive law and federal procedural law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
FED. R. CIV. P. 56(e); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Caboni, 278 F.3d at 451.
Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
See Resol. Tr. Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995) (citing Munoz v. Int'l All. of Theatrical Stage Emps. & Moving Picture Mach. Operators of the US & Can., 563 F.2d 205, 297 n. 1 (5th Cir. 1977)).
See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996).
DISCUSSION
As noted, the parties stipulate to the above facts. Yet with its motion for summary judgment, Colgate submits twin affidavits from Colgate's vice president and general counsel, John Bell, and Triangle's sole member and operator, Brian Davis. Affiants Bell and Davis claim that Colgate and Triangle never agreed that Colgate would purchase more than $5 million in liability coverage, nor did they intend that the MSA would require more. Century objects, contending that the affidavits are subjective, self-serving, and show a change in position on Triangle's part. Century also directs the Court's attention to the MSA's merger clause. This Court understands that Colgate intends to offer its affidavits only as extrinsic evidence for determining Colgate and Triangle's intentions at the time they signed the MSA. Moreover, the Court acknowledges that Century has asked the Court to disregard the Colgate affidavits. Ultimately, the Court is unconvinced that the parties have met their independent burdens such that summary judgment is unwarranted. Moreover, the Texas courts provide a ready mechanism for determining Colgate and Triangle's obligations in disputes like this one.
Doc. 36-1.
Doc. 39-2.
Doc. 39-1.
Docs 39-1, 39-2.
Doc. 44 at 3. Regarding a change in position, Century argues that Triangle's counsel previously demanded more than the $5 million minimum specified in the contract and directs the court to a citation to argue that an "attorney's acts and omissions within the scope of his or her authority are regarded as the client's act." Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986).
Doc. 47 at 6 (citing Doc. 36 at 9-10).
See S. Nat. Gas Co. v. Pursue Energy, 781 F.2d 1079, 1081 (5th Cir. 1986) "The interpretation of an unambiguous contract is a matter of law; the interpretation of an ambiguous contract through extrinsic evidence of the parties' intent is a matter of fact."
Doc. 44-6.
A. The Texas Oilfield Anti-Indemnity Act sets the guideposts.
As a rule, the TOAIA voids indemnity provisions in agreements pertaining to oil, gas, or water wells. But the Act creates safe harbor in Section 127.005(b) for operators and contractors that "agree in writing that the indemnity obligation will be supported by liability insurance coverage." Though unilateral indemnification agreements are statutorily limited to $500,000, mutual indemnification obligations are merely "limited to the extent of the coverage and the dollar limits of insurance . . . each party as indemnitor has agreed to obtain for the benefit of the other party as indemnitee."
§ 127.003(a)(1), (2).
The guide case from the Texas Supreme Court, Ken Petroleum, conveys that the TOAIA does not require mutual indemnification agreements to specify the amount of coverage that each party will provide. Instead, the Act "requires a writing to memorialize only that 'each party as indemnitor has agreed to provide' insurance or self-insurance to support the indemnity obligations." When faced with non-specific limits, the Ken Petroleum court held that mutual indemnity obligations would be enforceable only up to the "extent the coverage and dollar limits of insurance or qualified self-insurance each party as indemnitor has agreed to provide in equal amounts to the other party as indemnitee." Meaning, "[w]hen the parties agree to provide differing [or unspecified] amounts of coverage, the mutual indemnity obligations are limited to the lower amount of insurance." This technique for determining mutuality has since come to be known as the "lowest common denominator rule." Yet as the Fifth Circuit recently pointed out, Ken Petroleum's holding was in application of an earlier version of Section 127.005(b), which provided that "a mutual indemnity obligation . . . [was] limited to the extent of the coverage and dollar limits of insurance . . . each party as indemnitor . . . agreed to provide in equal amounts to the other party as indemnitee." The current version, applicable to the MSA, now limits mutual indemnity obligations to the amount of coverage that "each party as indemnitor has agreed to obtain for the benefit of the other party as indemnitee. Wisely, the Fifth Circuit was reluctant to weigh in on whether this change was substantively different, deferring that question to the Texas courts in the first instance.
Ken Petroleum, 24 S.W.3d at 350; The Ken Petroleum court directed its attention to an earlier version of the TOAIA. Whether the current version is different from the 1991 version analyzed in Ken Petroleum is a question for the Texas courts to answer in the first instance.
Id.; § 127.005(b).
Id. at 350.
Id. at 351.
Liberty Mut. Fire Ins. Co. v. Surplus Ins. Co., No. 1:16-CA-00870-SS, 2017 WL 6420920, at *4, 2017 U.S. Dist. LEXIS 206187, at *12 (W.D. Tex. Dec. 14, 2017); St. Paul Fire & Ins. Co. v. CP Well Testing, LLC, 489 F. Supp. 3d 635, 643 (W.D. Tex. 2020), aff'd sub nom. Cimarex Energy Co. v. CP Well Testing, L.L.C., 26 F.4th 683 (5th Cir. 2022).
Cimarex, 26 F.4th at 688-89.
Ken Petroleum, 24 S.W.3d at 349 (emphasis added).
Doc. 39 at 6; Doc. 42 at 15.
127.005(b) (emphasis added).
Cimarex, 26 F.4th at 689.
Neither party argues that the MSA violates the TOAIA. Indeed, the parties do not here dispute that Colgate and Triangle agreed to mutual indemnification, that Colgate and Triangle agreed to support their indemnification with insurance, or that Colgate and Triangle purchased insurance to that end. The parties similarly do not dispute that, between their general liability and excess policies, Colgate bought a total $76 million in coverage and Triangle bought a total $6 million. Century argues that the current text of the Act sets the parties' obligation to whatever amount of insurance they each purchased. For its part, Colgate urges this Court to adopt the lowest common denominator rule from Ken Petroleum—despite Section 127.005(b)'s changes noted above. It reasons that the application of the Rule prevents overreach and correctly determines the amount of insurance Colgate and Triangle made "available for their respective indemnity obligations based upon the mutuality of the indemnity obligations." The Court agrees with Colgate.
Doc. 36-1.
See Docs. 39, 41, 44, 46, 47.
Doc. 42 at 1.
Doc. 46 at 6.
Id.
Recently, the Fifth Circuit in Cimarex Energy Company v. CP Well Testing LLC found no error in applying the lowest common denominator rule so long as the court exhausts a search for delimiting language in both the MSA and the relevant supporting insurance policies. In that case, an exhaustive search by the district court—i.e., this Court—uncovered language in the relevant excess liability policy that capped the disputed obligation to the minimum amount agreed to by contract. Meaning "[the party's] excess liability policy effectively set the indemnity coverage 'ceiling' at the same level as the MSA's 'floor.' " Therefore, should this Court find delimiting language in the MSA or the relevant insurance policies, that language will set Colgate and Triangle's insurance obligations and the lowest common denominator rule will not be in play. If on the other hand no delimiting language is to be found, the Court will apply the rule.
See Cimarex, 26 F.4th at 690.
Id.
B. The MSA provides a 'floor' but does not provide a 'ceiling.'
Texas courts give plain effect to unambiguous contract terms "unless the contract itself shows them to be used in a technical or different sense" Such unambiguous terms are construed as a matter of law. A court's task is therefore to "ascertain the true intentions of the parties as expressed in the writing itself." Contract terms are not viewed in isolation. Ambiguity arises when the term's "meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning."
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005); see also Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).
Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 889 (Tex. 2019).
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011).
Northland Indus., Inc. v. Kouba, 620 S.W.3d 411, 415 (Tex. 2020).
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
Review of the MSA shows that Colgate and Triangle agreed to a specific 'floor'—the $5 million in supporting insurance coverage—but did not provide a specific or determinable limit for the 'ceiling.' The operative provisions follow. Paragraphs 13(a)(i) and 13(a)(ii) provide that Colgate and Triangle's mutual indemnification obligations shall each be:
"supported by insurance to be provided . . . with policy limits equal to the lesser of (1) the limits of liability prescribed for Comprehensive General Liability insurance in part (B) of Exhibit (A) . . . or (2) the maximum amount which may be required by law, if any, without rendering this mutual indemnification obligation void, unenforceable or otherwise inoperative."Part (B) of Exhibit (A) states that the limit shall be not less than the following:
$5,000,000 general aggregate[,]Read together in basic terms, Paragraph 13 and Exhibit (A) require that the supporting insurance shall be the lesser of (1) not less than $5 million or (2) the maximum amount required and allowable by law. It is clear to both parties that Colgate and Triangle were each to purchase "not less than $5 million." This Court agrees. It reaches this conclusion quite simply, giving "not less than $5 million" its plain effect. The parties also agree that the "not less than" language suggests a range where $5 million is the minimum obligation—i.e., the 'floor.'
$5,000,000 each occurrence, Bodily Injury and/or Property Damage Combined Single Limit.
Doc. 36-1 at 6.
Doc. 47 at 4; Doc. 39 at 9.
See also St. Paul Fire, 489 F. Supp. 3d at 643.
Doc. 39 at 1, 9; Doc. 42 at 18.
As to a 'ceiling,' the Court is unconvinced that the MSA provides one on its face. The catchall referring to a "maximum amount" required by law is uninstructive when read against the Act given the TOAIA does not provide hard dollar limits to mutual indemnity obligations like it does for unilateral obligations. The closest either party comes to pointing to a ceiling in the MSA arrives late in their briefing. In its Reply, Century directs the Court to the sole other relevant term in the MSA describing the parties' indemnity insurance obligations. The clause, which concludes Paragraphs 13(a)(i) and 13(a)(ii), follows:
See § 127.005.
Doc. 47 at 6.
The insurance provided in support of these indemnity obligations shall, however, in no way limit [Operator's/Contractor's, respectively] indemnity obligations hereunder save and except to the extent necessary, if any, to prevent said indemnification obligations from being declared void, unenforceable or otherwise inoperable.But of course, this provision means very little because the Act pins Colgate and Triangle's indemnity obligations to the amount of insurance coverage "each party as indemnitor has agreed to obtain for the benefit of the other party as indemnitee." Removing that limit would tow the parties' indemnity obligations out of the Act's safe harbor.
Id.
§ 127.005(b).
See id.
Finding no language in the MSA to support a 'ceiling', this Court now turns to the terms of the insurance policies in search of a cognizable limit.
See Cimarex, 26 F.4th at 690.
C. Colgate's insurance policies likewise do not provide a ceiling.
When applying Texas law, "courts in this circuit routinely consider the terms of insurance policies to determine whether a party is entitled to coverage." Courts interpret policies with the same rules of interpretation and construction as contracts. In doing so, courts give policy terms their plain, ordinary, and generally accepted meanings unless the document declares or demonstrates otherwise.
Id. at 689 (collecting cases).
Richards v. State Farm Lloyds, 597 S.W.3d 492, 497 (Tex. 2020).
Valence Operating, 164 S.W.3d at 662.
Colgate's general liability policy specifies that liability insurance bought for "[a]ny person or organization whom [Colgate agrees] in a written contract . . . to provide liability insurance for . . . . will not exceed the lesser of: (1) The coverage, terms, and/or limits of this policy; or (2) The coverage, terms and/or limits required by said written contract or written agreement." Colgate's excess policy adopts the terms and conditions of the general liability policy and enumerates exceptions and exclusions not relevant here.
Doc. 36-1 at 42.
Doc. 36-1 at 86; "The terms and conditions of the "underlying insurance" are made a part of this policy, except with respect to: (1) Any contrary provision contained in this policy; or (2) Any provision in this policy for which a similar provision is not contained in the "underlying insurance." Id. Note that "underlying insurance" is defined by the policy to mean "the policy or policies of insurance listed in the Schedule of Underlying Insurance forming a part of this policy." Doc 36-1 at 103. The Schedule of Underlying Insurance points to the limits described by Colgate's general liability policy. Doc. 36 at 22, 84.
Given plain effect, Colgate's policies do no better to establish a ceiling than the MSA. Unlike the policies analyzed in Cimarex, which explicitly capped the maximum to "the minimum Limits of Insurance [the party] agreed to procure in such written Insured Contract," Colgate's policies contain circuitous delimiting language. Part (1) refers ostensibly to the combined relevant general liability and excess policy amounts—a whopping $76 million, and Part (2) unhelpfully refers the Court back to the MSA's indefinite range. Finding no 'ceiling' in Colgate's insurance policies, the Court may now seek the lowest common denominator of insurance bought between them to determine how much the parties purchased for the benefit of one another under the Act.
Cimarex, 26 F.4th at 690 (emphasis in original).
See Doc. 36-1 at 6, 84.
D. The Lowest Common Denominator Rule applies; Colgate purchased $6 million for the benefit of Triangle as indemnitee.
Because neither the MSA nor Colgate's policy provide a 'ceiling,' the "TOAIA applies to limit the parties' indemnity obligations to the 'lowest common denominator of insurance coverage between the parties.' " As stated above, the Act limits mutual indemnity obligations to "the extent of the coverage and dollar limits of insurance or qualified self-insurance each party as indemnitor has agreed to obtain for the benefit of the other party as indemnitee." Courts in this circuit agree that "a party providing the lower amount of insurance may not enforce its right to indemnity beyond its own coverage." This rationale hearkens back to the public policy stated in Ken Petroleum, the Act "prevent[s] overreaching by one party vis a vis another," and allows "parties to oil-field contracts to mutually indemnify one another to the extent that there is in fact mutuality of obligation." Moreover, the rule acknowledges the reality that operators and contractors may choose "to purchase blanket insurance policies and umbrella policies that will provide coverage for a multitude of contracts."
St. Paul Fire, 489 F. Supp. 3d at 643 (quoting Liberty Mut. Fire Ins. Co. v. Surplus Ins. Co., No. 1:16-CA-00870-SS, 2017 WL 6420920, at *4, 2017 U.S. Dist. LEXIS 206187, at *12 (W.D. Tex. Dec. 14, 2017); see also TEX. CIV. PRAC. & REM. CODE ANN. § 127.005(b).
See Liberty Mut., 2017 WL 6420920 at *4, 2017 U.S. Dist. LEXIS 206187 at *12; EXL Petroleum, L.P. v. Cudd Pressure Control, Inc., MO-14-CA-74, 2015 U.S. Dist. LEXIS 182729, 2015 WL 12591364, at *1 (W.D. Tex. July 31, 2015); St. Paul Fire, 489 F. Supp. 3d at 643.
Liberty Mut., 2017 WL 6420920 at *4, 2017 U.S. Dist. LEXIS 206187 at *12 (citing Ken Petroleum, 24 S.W.3d at 350).
Ken Petroleum, 24 S.W.3d at 350.
Here, the Act limits Colgate's indemnity obligation to $6 million. It is undisputed that, between its general liability policy and its excess policy, Triangle purchased $6 million in coverage to satisfy its indemnity obligations under the MSA. Colgate purchased far more total coverage than Triangle; between its general liability policy and its excess policy, Colgate purchased $76 million in coverage. Colgate's indemnity obligations are therefore capped at the lowest common denominator of insurance coverage between the parties—$6 million. Without any other delimiting language, this amount represents the insurance coverage that "each party as indemnitor has agreed to obtain for the benefit of the other as indemnitee." Ultimately, this Court remains unconvinced that the Ken Petroluem holding no longer applies to mutual indemnification.
Doc. 36-1.
Id.
See Ken Petroleum, 24 S.W.3d at 350; See also Liberty Mut., 2017 WL 6420920 at *4, 2017 U.S. Dist. LEXIS 206187 at *12.
See § 127.005(b).
E. Waiver of Subrogation and Anti-Subrogation Rule
Colgate raises a second argument in its Motion for Summary Judgment. It argues that the MSA required Triangle to obtain insurance with a waiver of subrogation which would prohibit Century from seeking reimbursement for the $5 million it paid toward the Miller settlement. Century objects, claiming the waiver and anti-subrogation rule are inapplicable here. Because the Court finds that Century's claims fail and that Colgate is not required to reimburse Century for its monetary contributions to settle the Miller suit, the Court need not determine whether the waiver or anti-subrogation rule applies to breach of contract disputes such as this one.
Doc. 39.
Id. at 5.
Doc. 44.
See Doc. 42; Century's claim for recovery of attorney fees under Chapter 38 of the Texas Civil Practice & Remedies code is similarly moot.
CONCLUSION
For the foregoing reasons, the Court GRANTS Colgate's Motion for Summary Judgment and DENIES Century's Motion for Summary Judgment. Accordingly, Century's claims against Colgate are dismissed.
Doc. 39.
Doc. 42.
It is so ORDERED.