Menard v. Grand Isle Shipyard, Inc. et al, No. 2:2016cv00498 - Document 93 (E.D. La. 2017)
Court Description: ORDER & REASONS granting 85 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 12/27/2017. (caa)
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Menard v. Grand Isle Shipyard, Inc. et al Doc. 93 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA COREY MENARD CIVIL ACTION VERSUS NO. 16-498 GIBSON APPLIED TECHNOLOGY AND ENGINEERING, INC., ET AL. SECTION “R” (3) ORD ER AN D REASON S Defendant ACE Am erican Insurance Com pany m oves for sum m ary judgm ent. 1 For the following reasons, the m otion is granted. I. BACKGROU N D Plaintiff Corey Menard was a senior field technician em ployed by Gly- Tech Services. 2 In early 20 15, he was assigned to work offshore on the Delta House Floating Production System , a sem i-submersible oil-exploration platform in the Mississippi Canyon operated by Wood Group PSN, Inc. (Wood Group). 3 On J anuary 22, 20 15, plaintiff was allegedly injured during a personnel basket transfer from the M/ V ARABIAN, a support vessel 1 2 3 R. Doc. 65. R. Doc. 1 at 3 ¶ 8. Id.; R. Doc. 26 at 3-4. Dockets.Justia.com adjacent to the Delta House. 4 According to plaintiff, the extremely rough seas caused the personnel basket to abruptly thrust upward and slam plaintiff, severely injuring his lower back. 5 On J anuary 20 , 20 16, plaintiff sued Grand Isle Shipyard, Inc., Gibson Applied Technology and Engineering, Inc., LLOG Exploration Com pany, LLC, LLOG Exploration Offshore, LLC, and LLOG Exploration & Production Com pany, LLC, alleging that their negligence caused his injury. 6 Plaintiff am ended his com plaint on J une 28, 20 16, adding Adriatic Marine, LLC and Wood Group as defendants. 7 Plaintiff again am ended his com plaint on J uly 5, 20 17, adding ACE Am erican Insurance Com pany (Ace Am erican), which insured Wood Group, as a defendant. 8 ACE Am erican now m oves for sum m ary judgment. 9 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to 4 5 6 7 8 9 R. Doc. 1 at 4 ¶ 11. Id. Id. at 5-7 ¶¶ 14-16. R. Doc. 26 at 3-4. R. Doc. 74 at 3. R. Doc. 85. 2 judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a 3 genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION ACE Am erican argues that it is entitled summ ary judgm ent because plaintiff m ay not m aintain a direct action against it as Wood Group’s 4 insurer. 10 Louisiana law gives an injured person the right to proceed directly against the tortfeasor’s insurer. See La. R.S. § 22:1269. But this right of direct action exists only if the policy was “written or delivered in the state of Louisiana,” or “the accident or injury occurred within the state of Louisiana.” Id. § 22:1269(B)(2); see also Grubbs v. Gulf Int’l Marine, Inc., 13 F.3d 168, 170 (5th Cir. 1994). ACE Am erican asserts, and plaintiff does not dispute, that the policy was issued in a state other than Louisiana; that the policy was delivered to Wood Group in Texas; and that the accident occurred on the Outer Continental Shelf in the Gulf of Mexico, outside the state of Louisiana. 11 Louisiana’s direct action statute, therefore, does not give plaintiff a right of action against ACE Am erican. See Signal Oil & Gas Co. v. Barge W -70 1, 654 F.2d 1164, 1175 (5th Cir. Unit A Sept., 1981) (holding that direct action statute did not apply where policy was written and delivered out of state, and “accident occurred in the Gulf of Mexico, well beyond the boundaries of the state”); Joy ner v. Ensco Offshore Co., No. 99-3754, 20 0 1 WL 333114, at *23 (E.D. La. Apr. 5, 20 0 1) (holding that causes of action arising on the Outer 10 11 R. Doc. 85-3 at 4. R. Doc. 85-2; R. Doc. 85-5 at 2. 5 Continental Shelf do not m eet the situs requirement of Louisiana’s direct action statute). Plaintiff argues that, notwithstanding the inapplicability of the direct action statute, the policy itself perm its direct actions. 12 Plaintiff points to endorsement number 94 of the policy, entitled “Louisiana Changes—Legal Action Against Us.”13 The endorsem ent states: “A person or organization m ay bring a ‘suit’ against us including, but not lim ited to, a ‘suit’ to recover on an agreed settlem ent or on a final judgm ent against an insured . . . .”14 This endorsement m odifies the policy’s no-action clause, which perm its a direct action against ACE Am erican only when there is an agreed settlement or final judgm ent against the insured. 15 According to plaintiff, this Louisiana-specific endorsement expands the right of action described in Louisiana’s direct action statute, which states that “[n]othing contained in this Section shall be construed to affect the provisions of the policy or contract if such provisions are not in violation of the laws of this state.” La. R.S. § 22:1269(B)(2). Plaintiff further argues that if this endorsement is am biguous, it should be construed against the drafter—ACE Am erican. 16 12 13 14 15 16 R. Doc. 88 at 6. R. Doc. 88-2 at 10 . Id. Id. at 9. R. Doc. 88 at 7. 6 As an initial m atter, both parties assum e that Louisiana law applies to the endorsem ent. This choice of law accords with the Restatem ent approach, which suggests that state-specific endorsem ents in m ultiple risk policies be construed under the law of that state. Restatement (Second) of Conflict of Laws § 193 cm t. f (Am . Law. Inst. 1971). ACE Am erican argues that under Louisiana law, the endorsem ent does not suffice to m ake plaintiff a third party beneficiary of the policy. ACE Am erican cites the Louisiana Supreme Court’s decision in Esteve v. Allstate Insurance Co., 351 So. 2d 117 (La. 1977). In Esteve, as in this case, the plaintiff asserted a right of direct action against the tortfeasor’s insurer based on both Louisiana’s direct action statute and a stipulation pour autrui in the insurance policy. Id. at 120 -21. The court first held that the statute did not apply to plaintiff’s claim s. Id. at 120 . The court then noted that Louisiana law perm its a contracting party to stipulate a benefit for a third party, see La. Civ. Code art. 1978, but held that the specific provisions of the direct action statute prevail over the generic third party beneficiary statute. Esteve, 351 So. 2d at 121. Under Louisiana law, therefore, Esteve is directly on point and forecloses plaintiff’s contractual argum ent. Even under general principles of contract interpretation, plaintiff’s argument fails. Third parties have enforceable rights under a contract only 7 in lim ited circum stances. See Restatem ent (Second) of Contracts §§ 30 2, 30 4 (Am. Law Inst. 1981). As relevant here, the parties to the contract— Wood Group and ACE Am erican—m ust intend to give a benefit to third parties in plaintiff’s position. See id. § 30 2. “In determ ining whether a third party can enforce a contract,” according to the Texas Supreme Court, “the intention of the contracting parties is controlling.” MCI Telecom m s. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). Moreover, “[t]he intention to contract or confer a direct benefit to a third party m ust be clearly and fully spelled out.” Id. Here, the endorsement does not evidence an intent to give a benefit to individuals who are injured by the insured outside the state of Louisiana. The endorsem ent purports to be a Louisiana-specific change, and seems intended to incorporate Louisiana’s direct action statute. See Tom ars v. United Fin. Cas. Co., No. 12-2162, 20 15 WL 37720 24, at *3 (D. Minn. J une 17, 20 15) (noting that com m ercial general liability policy covering a fleet of vehicles across the country m ay “include a series of state-specific endorsements conform ing its coverages to the requirem ents im posed by the insurance laws of the states in which particular vehicles are located”). Indeed, the endorsem ent is a form endorsem ent drafted by the Insurance Services Office, or ISO. The form name and num ber, Louisiana Changes— 8 Legal Action Against Us and CG 0 1 18 12 0 4, indicate that the endorsement m ust be attached to all com m ercial general liability policies covering risk in Louisiana. See 3 J effrey E. Thom as, N ew Applem an on Insurance Law Library Edition § 21.0 2(5)(c) (20 17) (noting that endorsements featuring “0 1” as the first set of num bers in the form number “m ust be attached to all CGL policies that cover any risk in the state”). Thus, the Court construes the endorsement as m erely em bodying Louisiana’s direct action statute, rather than expanding its scope to the benefit of individuals like Menard who are injured outside the state. Because plaintiff has neither a statutory nor a contractual right of direct action against ACE Am erican, ACE Am erican is entitled sum m ary judgm ent. IV. CON CLU SION For the foregoing reasons, ACE Am erican’s m otion for sum m ary judgm ent is GRANTED. 27th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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