REBECCA F. DOHERTY, District Judge.
Pending before the Court are two motions: (1) "Motion for Partial Summary Judgment" filed by McDermott, Inc. [Doc. 57]; and (2) "Motion to Certify as Final Judgment Under FRCP 54(b) filed by plaintiff James Hefren" [Doc. 59]. In its motion, McDermott seeks an order "recognizing that McDermott is entitled to indemnity from Murphy for McDermott's costs of defense, attorneys' fees and expenses incurred in defense of Hefren's claims." Cross-defendant Murphy Exploration & Production Co., USA ("Murphy") opposes McDermott's motion [Doc. 61].
In his motion, the plaintiff moves the Court to certify its April 9, 2014 Ruling and Order [Docs. 53, 54] as a final judgment, pursuant to Rule 54(b). The Ruling and Order for which plaintiff seeks certification granted McDermott's, Inc.'s ["McDermott"] Motion for Summary Judgment, concluding the FRONT RUNNER Spar is an immovable and holding all claims asserted by the plaintiff against McDermott were perempted under La. Rev.Stat. § 9:2772. Plaintiff's motion is opposed by McDermott [Doc. 62].
For the following reasons, McDermott's "Motion for Partial Summary Judgment" [Doc. 57] is GRANTED, and plaintiff's "Motion to Certify as Final Judgment Under FRCP 54(b) filed by plaintiff James Hefren" [Doc. 59] is DENIED.
At the outset, the Court notes the parties in this matter have elected to proceed with this case in a piecemeal fashion, by filing several motions for partial summary judgment, each limited to a single issue — some addressed to the magistrate judge, some addressed to this Court — that do not discuss the overall, comprehensive picture of the litigation. Because each motion that has been filed has included only a truncated statement of material facts that addressed solely those facts that were relevant to the issue being challenged in that particular motion, and because the responses to the motions responded in kind, the result of this fragmented approach has provided this Court with a rather disjointed picture of the relevant facts and events surrounding the central events giving rise to the litigation. The facts that appear to be relevant and material to the instant motion are as follows:
A party claiming relief, or a party against whom relief is sought, may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Fed. R. Civ. Proc. 56(a) and (b). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c)(1), (2).
Fed. R. Civ. Proc. 56(e). As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):
The Supreme Court has instructed:
Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The Court later states:
Id. at 888-89, 110 S.Ct. 3177 (1990)(internal quotations and citations omitted). The Fifth Circuit has further elaborated:
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).
Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).
The dispute in the present motion is between McDermott and Murphy and centers around whether Murphy must indemnify McDermott for its costs of defense, attorney's fees, and expenses incurred in defending against Hefren's claim
Murphy takes the position that because McDermott has not been found to be free from fault or negligence in the alleged accident of Hefren, as required by the LOIA, this Court cannot determine whether indemnity is owed. The parties rely on competing cases in support of their arguments, and this Court is forced to interpret two very different results in two different jurisdictions to make its determination.
First, an examination of the LOIA is in order. The relevant provision of the LOIA states as follows:
Thus, under the statute, any agreement whereby McDermott is provided defense or indemnity against loss or liability for damages arising from death or bodily injury arising from the sole or concurrent negligence or fault of McDermott is void and unenforceable. The Fifth Circuit has interpreted this provision of the LOIA as follows:
Meloy v. Conoco, Inc., 817 F.2d 275, 280 (5th Cir.1987) (emphasis added). A number of decisions since Meloy have expounded upon the rationale of Meloy and further refined the rationale of the statute.
In 1988, the Fifth Circuit decided Melancon v. Amoco Production Co., Inc., 834 F.2d 1238 (5th Cir.1988). In Melancon, Amoco successfully defended against Melancon's tort claims on grounds Melancon was its "borrowed employee" and Amoco was immune from suit under Section 905(a) of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 905(a). Amoco pursued Beraud, Melancon's true employer, for contractual indemnity. Beraud (like Murphy in the instant case) asserted Amoco's contractual indemnity was barred by the LOIA. The Fifth Circuit held Amoco was entitled to indemnification by Beraud notwithstanding the fact that the issue of Amoco's negligence was never reached, noting:
834 F.2d at 1248 (emphasis added).
That same year, another panel of the Fifth Circuit distinguished the holding of Melancon in Tanksley v. Gulf Oil Corp., 848 F.2d 515 (5th Cir.1988). In Tanksley, the Fifth Circuit held an oil company that settled with the plaintiff was barred by the LOIA from pursuing the contractor for indemnity because the oil company, by choosing to settle with the plaintiff, voluntarily foreclosed determination of its negligence or fault. In so ruling, the Fifth Circuit explained:
Tanksley, 848 F.2d at 517-18 (emphasis added). In B.J. Services Co., USA v. Thompson, 2010 WL 2024725 (W.D.La. May 14, 2010), Judge Trimble cited Tanksley with approval in holding that because an indemnitee settled its underlying claims without a determination of fault, it was precluded by the LOIA from seeking indemnity from its indemnitor. B.J. Services, 2010 WL 2024725 at *8.
In 2005, the Fifth Circuit recognized Tanksley as "further[ing] the aims of the [LOIA] by protecting contractors from having to litigate an oil company's fault when the oil company had an opportunity to adjudicate the matter in the previous underlying action." 400 F.3d at 270, citing Tanksley, 848 F.2d 515. However, in dicta, the Court noted the rejection of Tanksley by two of the five Louisiana appellate courts. See American Home Assurance v. Chevron, USA, Inc., 400 F.3d 265, 270, n. 15 (5th Cir.2005). Indeed, in both Ridings v. Danos & Curole Marine Contractors, Inc., 723 So.2d 979 (La.App. 4th Cir.1998) and Phillips Petroleum Co. v. Liberty Serv., Inc., 657 So.2d 405 (La.App. 3rd Cir.1995), the Louisiana appellate courts rejected the Fifth Circuit's holding in Tanksley. In Ridings, the Louisiana Fourth Circuit Court of Appeals challenged Tanksley, stating "[w]hether the indemnitee was negligent or at fault (strict liability) in causing injury to the original plaintiff can be determined at trial between the indemnitee and the indemnitor even after the indemnitee has settled with the original plaintiff." 723 So.2d at 983 n. 2. Similarly, in Phillips, the Louisiana Third Circuit Court of Appeals held the LOIA does not prevent "one seeking indemnification from proving freedom from `negligence or fault (strict liability)' in an action separate from the original litigation raising that issue." 657 So.2d at 409.
The Louisiana Supreme Court has yet to address the Tanksley decision, but addressed the conflict between the Tanksley decision and state court decisions in cases such as Ridings and Phillips. In dicta
676 So.2d at 563 n. 7 (emphasis added).
Thus, the foregoing legal framework can be summarized as follows: The Fifth Circuit has distinguished "legal bars" to lawsuits — such as immunity from suit under Section 905(a) of the LHWCA (which foreclose the possibility of determining the negligence of the party seeking indemnification) — from other "impediments" to lawsuits against the party seeking indemnification, such as settlements, concluding settlements are not true "legal bars" to litigation to determine negligence, and has concluded in the case of "legal bars" to lawsuits, the LOIA does not apply, and indemnification is possible.
After consideration of the facts of this case and the existing legal framework, this Court concludes the factual scenario as presented herein — i.e., the plaintiff's claims against McDermott have been dismissed because of the legal bar of peremption — this Court concludes the facts of the instant
Naghi v. Brener, 17 So.3d 919, 923 (La. 2009) (emphasis added), citing Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899, 901 (La.1900). Thus, peremption extinguishes the claim, and legally bars it. Thus, this Court concludes peremption is more akin to the legal bar at issue in Melancon than it is to mere settlement of a claim, which was at issue in Ridings and Phillips.
Indeed, whether a formal claim had been made against McDermott at a time when a cause of action legally existed is not before the Court. Murphy took possession of the FRONT RUNNER Spar on August 4, 2004, and Hefren was injured on June 6, 2011, well after the five year peremptive period had run. Hefren did not bring suit against any party until June 4, 2012, nearly eight years after Murphy took possession of the facility. Hefren did not correctly name McDermott as a party until February 22, 2013, approximately eight and one-half years after Murphy took possession of the facility. Under these facts, it is clear the only evidence presented establishes that demand was made against McDermott well after the five year peremptive period had run and, therefore, no cause of action existed against McDermott at the time and under Louisiana law, McDermott could not, therefore, as a matter of law, be found at fault.
Considering the foregoing, this Court concludes the legal bar to the plaintiff's claim against McDermott — peremption under La.Rev.Stat. § 9:2772 — extinguishes any factually possible cause of action and, therefore, forecloses any possible finding of negligence against McDermott.
The Court finds the plaintiff's motion for entry of final judgment should be DENIED for the reasons that follow.
Fed.R.Civ.P. 54(b). The pending action presents more than one claim for relief, as well as multiple parties, as has been described throughout this ruling.
For certification to be proper, "[a] district court must first determine that it is dealing with a `final judgment.'" Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). To satisfy this requirement, the ruling at issue must be "a decision upon a cognizable claim for relief, and it must be `final' in the sense that it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460, quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). Next, the court must "determine whether there is any just reason for delay." Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460. In making this determination, the court must "take into account judicial administrative interests as well as the equities involved." Id. This analysis properly includes consideration of whether the claim or claims under review are "separable from the others remaining to be adjudicated," and whether the nature of the claims already determined is "such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Id. Even if one of these factors is present, certification under Rule 54(b) may still be proper if there is "a sufficiently important reason for nonetheless granting certification." Id. at 8, n. 2, 100 S.Ct. 1460. However, "A district court should grant certification only when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal; it should not be entered routinely as a courtesy to counsel." PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 81 F.3d 1412, 1421 (5th Cir.1996).
The Court finds the requirement of finality is met in this matter with respect to the April 9, 2014 Ruling and Order. The referenced Ruling concluded the FRONT RUNNER Spar is an immovable, and all claims asserted by the plaintiff against McDermott were perempted under La.Rev.Stat. § 9:2772. Accordingly, this Court's Ruling as to plaintiff's claim against McDermott is "final," because there are no issues left to be determined with respect to that claim. See e.g. St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 337-38 (5th Cir.1997); Jackson v. O'Shields, 101 F.3d 1083, 1084-85 & n. 2 (5th Cir.1996).
Nevertheless, the Court finds in this matter there is just reason for delay, albeit a short delay. First, this Court notes the Court has now, with this Ruling, ruled on what it believes to be all outstanding claims in this case. Nevertheless, even if there remain select outstanding claims to be adjudicated, this Court cannot conclude "no appellate court would have to decide the same issues more than once ... if there were subsequent appeals." Curtiss-Wright, at 8, 100 S.Ct. 1460. The Court notes the plaintiff has identified no "hardship" in his motion to certify that he will endure should this Court deny his motion for certification. As such, the plaintiff's motion is insufficient to overcome the policy against piecemeal appeals. See e.g.
In light of the foregoing, the plaintiff's motion for entry of final judgment [Doc. 59] is DENIED.
For the reasons stated herein,
IT IS ORDERED that McDermott's "Motion for Partial Summary Judgment" [Doc. 57] is GRANTED. IT IS FURTHER ORDERED that the matter of amount of the costs of defense, attorneys' fees and expenses incurred by McDermott in defense of Hefren's claims is hereby REFERRED to the magistrate judge for consideration and recommendation. Pursuant to Rule 54(d)(2)(D), the magistrate judge shall prepare a Report recommending the amount to be awarded to McDermott, in consideration of the appropriate standards and evidence to be submitted by the parties.
IT IS FURTHER ORDERED that plaintiff's "Motion to Certify as Final Judgment Under FRCP 54(b)" [Doc. 59] is DENIED.
It appears this Ruling adjudicates all remaining claims in this matter. The parties shall confirm via a joint letter to the Court within the next ten (10) days of this Ruling, whether the foregoing is accurate and whether there remain any issues for trial, currently scheduled on September 8, 2014.
See EPCI Contract, pp. 34 & 35, art. 19.2, attached as Exhibit "D" to Murphy's motion for summary judgment, Doc. 35.
