# Keller v. Winn-Dixie Montgomery, LLC

> District Court, E.D. Louisiana · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10184838

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TERRY KELLER CIVIL ACTION
VERSUS No. 18-14331
WINN-DIXIE MONTGOMERY, LLC, ET AL. SECTION I

ORDER & REASONS
Before the Court is a motion1 for summary judgment filed by third-party
defendant MSI Inventory Service Corporation (“MSI”) and a motion2 for partial
summary judgment filed by third-party plaintiff Winn-Dixie Montgomery, LLC
(“Winn-Dixie”). Winn-Dixie seeks an order from the Court requiring MSI to defend
and indemnify Winn-Dixie against the claims brought by plaintiff Terry Keller
(“Keller”) and to reimburse Winn-Dixie for all attorneys’ fees and court costs incurred
to date. MSI argues that it has no duty to indemnify Winn-Dixie and asks that the
Court dismiss with prejudice Winn-Dixie’s third-party demand against it. No
resolution has yet been reached with respect to any liability for Keller’s claims. For
the following reasons, both motions are denied.
I.
This case arises from Keller’s trip and fall over a pallet guard as she was
conducting inventory counting of merchandise at a Winn-Dixie store in Gramercy,
Louisiana on January 31, 2018. Keller, who was working as an MSI employee at the

1 R. Doc. No. 33.
2 R. Doc. No. 34.
time of the incident,3 tripped over a pallet guard at the store and sustained injuries.
According to both parties, prior to her fall, Winn-Dixie employee Trevor Kirksey
(“Kirksey”) had moved a pallet near the checkout aisle to allow Keller access to an

area of the store to count inventory.4 Kirksey then placed the pallet guard on the
floor, which Keller tripped over as she was completing her inventory counting duties.5
Keller filed a complaint seeking damages against Winn-Dixie, alleging that
Winn-Dixie had created an unreasonably dangerous condition that caused her
damages and that Winn-Dixie failed to exercise reasonable care to keep its aisles in
a reasonably safe condition.6 Subsequently, upon information and belief that Keller

was working in the course and scope of her employment with MSI when the accident
occurred, Winn-Dixie filed a third-party complaint against MSI.7 In its complaint,
Winn-Dixie alleges that, pursuant to a Services Agreement between Winn-Dixie and
MSI, Winn-Dixie is entitled to “full indemnity and reimbursement for the cost of
defense incurred to date from MSI, in the amount of any judgment which may be

3 Keller filed her complaint against Winn-Dixie as a “patron” of the Winn-Dixie store
in Gramercy. R. Doc. No. 1, at 1 ¶ 4. In the present motions before the Court, Winn-
Dixie and MSI do not dispute that Keller was working as an employee of MSI when
she sustained her injuries. See R. Doc. Nos. 33-1, at 1 & 34-1, at 2. Keller also
acknowledged in her deposition that at the time of her accident, she was working for
MSI and that she was not a customer of Winn-Dixie. See R. Doc. No. 34-5, at 5.
4 See R. Doc. Nos. 33-1, at 8–10; 34-1, at 2–3.
5 See id.
6 R. Doc. No. 1, at 2 ¶¶ 9–10.
7 R. Doc. No. 11, at 1–2.
rendered herein in favor of plaintiff Terry Keller and against [Winn-Dixie] or for any
payments which may be made by [Winn-Dixie] in settlement of the plaintiff’s claim.”8
MSI and Winn-Dixie dispute which party is responsible for the condition that

caused Keller’s injuries. MSI argues that Winn-Dixie created the condition because a
Winn-Dixie employee, Kirksey, placed the pallet guard on the floor in such a way as
to create an unreasonable risk of harm to Keller.9 Consequently, according to MSI,
Winn-Dixie breached its duty to Keller under the Louisiana Merchant Liability
Statute, La. R.S. 9:2800.6.10 Winn-Dixie claims, however, that “Terry Keller, or
another employee of MSI either created the condition over which Terry Keller tripped

or they ordered the movement of inventory, which ultimately created the condition.”11
Winn-Dixie and MSI agree that Kirksey placed the pallet guard on the floor.12
However, according to Winn-Dixie, Kirksey moved the pallet guard into that area

8 Id. at 2 ¶ 9. The Court notes that Winn-Dixie’s motion for partial summary judgment
does not discuss payment for the settlement of Keller’s claims. Instead, Winn-Dixie
seeks indemnification and reimbursement “for all attorneys’ fees and court costs
incurred to date.” R. Doc. No. 34-1, at 9. At an in-chambers conference held on
September 10, 2019, counsel for Winn-Dixie confirmed to the Court that Winn-Dixie
does not seek payment from MSI for the settlement of claims.
9 R. Doc. No. 33-1, at 7–9.
10 See id.
11 R. Doc. No. 11, at 2 ¶ 8. In its answer to Keller’s complaint, Winn-Dixie asserts the
defense of comparative negligence and contends that Keller’s damages, if any are
awarded, should be proportionately reduced based on comparative fault. See R. Doc.
No. 7, at 3 ¶ 17.
12 See R. Doc. No. 33-1, at 8 (“[T]he evidence establishes that the pallet guard, which
has been confirmed as the cause of [Keller]’s injuries, was placed on the floor in the
location where [Keller] fell by Winn Dixie [sic] employee, Trevor Kirksey.”); R. Doc.
No. 34-1, at 3 (“Winn-Dixie does not dispute that its own employee was the individual
who placed the pallet guard on the floor after moving the pallet to allow plaintiff
access to the inventory.”).
because an MSI employee requested that he do so.13 MSI refutes this contention and
asserts that Kirksey’s decision to place the pallet guard “over an empty space of floor,
at a height of five inches off the ground, which created a tripping hazard” was “made

solely at the discretion of Mr. Kirksey.”14
As previously stated, Winn-Dixie argues that even if Winn-Dixie’s negligence
caused Keller’s injuries, MSI must indemnify Winn-Dixie from Keller’s claims
pursuant to the Services Agreement between Winn-Dixie and MSI.15
The Services Agreement provides for indemnification under certain
circumstances. Section 9.2 states in relevant part:

1. Except to the extent due to the gross negligence or willful misconduct of
[Winn-Dixie], [MSI] will defend, indemnify, protect and hold harmless
[Winn-Dixie] . . . from all losses including attorneys’ fees and court costs
incurred by, or claims made against [Winn-Dixie] . . . as a result of
[MSI]’s performance under this Agreement or liability, damage, claim,
costs, cause of action, suit, demand or expenses (including without
limitation reasonable attorneys’ and in-house counsel fees and costs)
that arises out of or relates to:

a) any alleged defect in the Services, Deliverables or Work Products,
or the use of any of the foregoing,

13 See R. Doc. No. 34-1, at 2.
14 R. Doc. No. 33-1, at 11.
15 Winn-Dixie’s third-party complaint against MSI alleges that Winn-Dixie is entitled
to “tort indemnity and defense in this matter from MSI Inventory Services
Corporation pursuant to a Services Agreement.” R. Doc. No. 11, at 2 ¶ 6. Counsel for
Winn-Dixie clarified to the Court that Winn-Dixie seeks indemnification pursuant to
the Services Agreement alone; Winn-Dixie does not claim that MSI has a duty to
indemnify that may be implied in law, in the absence of an indemnity agreement. See
Humphrey v. Higbee Lancoms, LP, No. 18-6298, 2019 WL 2177366, at *2 (E.D. La.
May 20, 2019) (Morgan, J.) (“The obligation to indemnify may be express, as in a
contractual provision, or may be implied in law, under a tort or quasi-contract theory,
even in the absence of an indemnity agreement.”) (quoting 425 Notre Dame, LLC v.
Kolbe & Kolbe Mill Work Co., 151 F. Supp. 3d 715, 721 (E.D. La. 2015) (Barbier, J.)).
b) any breach or violation of any warranty, representation, term or
condition of this Agreement by [MSI],

c) any claim of personal injury, death or damage to property or the
environment arising from any act or omission of [MSI], its agents,
employees or any subcontractors;
. . .

3. The provisions of this Article 9 do not limit any other obligation of [MSI]
to indemnify [Winn-Dixie] under terms of this Agreement when so
stated, or where [Winn-Dixie] may have a right to indemnification under
law . . . [MSI] understands and expressly agrees that, in the event [MSI]
or any of its personnel or subcontractors is injured by an accident arising
out of and during its performance of Services for [Winn-Dixie], . . .
neither [Winn-Dixie] nor its insurance carriers shall be liable for any
claims arising therefrom.16

II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine issue of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need
not produce evidence negating the existence of material fact, but need only point out
the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).

16 R. Doc. No. 34-3, at 11–12.
Once the party seeking summary judgment carries its burden pursuant to
Federal Rule of Evidence 56, the nonmoving party must come forward with specific
facts showing that there is a genuine issue of material fact for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine
issue is not satisfied by creating “‘some metaphysical doubt as to the material facts,’
by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of
evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when the “evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for
summary judgment may not rest upon the pleadings, but must identify specific facts
that establish a genuine issue. Id. The nonmoving party’s evidence, however, “is to be
believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]
favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
The Court’s jurisdiction in this case is based on the parties’ diversity of
citizenship and the amount in controversy of the claims, pursuant to 28 U.S.C. §

1332.17 “A federal court sitting in diversity ordinarily must follow the choice-of-law
rules of the State in which it sits.” Atl. Marine Const. Co. v. U.S. Dist. Court for W.
Dist. of Texas, 571 U.S. 49, 65 (2013) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313

17 Winn-Dixie is a foreign limited liability company authorized to do and doing
business in the State of Louisiana. R. Doc. No. 1, at 1 ¶ 1. MSI is a Mississippi
corporation authorized to do and doing business in the State of Louisiana. R. Doc. No.
11, at 1 ¶¶ 1–2. The matter in controversy exceeds $75,000, exclusive of interest and
costs, as required by 28 U.S.C. § 1332. R. Doc. No. 1, at 1 ¶ 2.
U.S. 487, 496–97 (1941)); Weber v. PACT XPP Techs., AG, 811 F.3d 758, 770 (5th Cir.
2016). Under Louisiana law, “contracting parties generally have the freedom to
choose which state’s law will govern disputes arising out of the contract.” Sampson v.

GATX Corp., 547 F. App’x 369, 376 (5th Cir. 2013); see La. Civ. Code Ann. art. 3540.
Where a contract includes a choice-of-law provision, the provision “‘is presumed valid
until it is proved invalid.’” IberiaBank v. Broussard, 907 F.3d 826, 835 (5th Cir. 2018)
(quoting Daniels v. Int’l Paper Co., 51,633 (La. App. 2 Cir. 11/3/17), 245 So. 3d 180,
184).
The choice-of-law provision in the Services Agreement states that the

agreement “shall be governed and construed in accordance with the laws of the State
of Florida.”18 The parties do not dispute that the agreement may be interpreted under
Florida law. Moreover, Florida law governing the interpretation of indemnification
provisions does not “contravene the public policy” of Louisiana. See La. Civ. Code Ann.
art. 3540.19 Therefore, the Court will analyze the issues presented according to
Florida law.
Under Florida law, contractual language and indemnification provisions are to

be interpreted “according to its plain meaning in line with ‘generally accepted rules
of construction’ to give effect to the intent of the contracting parties.” BVS Acquisition
Co., LLC v. Brown, 649 F. App’x 651, 654 (11th Cir. 2016) (citing Intervest Constr. of

18 R. Doc. No. 34-4, at 16 ¶ 14.6.
19 Article 3540 provides that “issues of conventional obligations are governed by the
law expressly chosen or clearly relied upon by the parties, except to the extent that
law contravenes the public policy of the state whose law would otherwise be
applicable . . . .”
Jax, Inc. v. Gen. Fid. Ins. Co., 133 So.3d 494, 497 (Fla. 2014) and Dade Cty. Sch. Bd.
v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999)).
However, indemnity provisions that attempt to indemnify a party against its

own conduct are “viewed with disfavor in Florida.” Charles Poe Masonry, Inc. v.
Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979); Fid. &
Guar. Ins. Co. v. Ford Motor Co., 707 F. Supp. 2d 1300, 1313 (M.D. Fla. 2010) (citing
Univ. Plaza Shopping Ctr. v. Stewart, 272 So. 2d 507, 511 (Fla. 1973)). Such clauses
will only be enforced if they “express an intent to indemnify against the indemnitee’s
own wrongful acts in ‘clear and unequivocal terms.’” Acosta v. United Rentals (N.

Am.), Inc., No. 8:12-CV-01530, 2013 WL 869520, at *4 (M.D. Fla. Mar. 7, 2013)
(quoting Cox Cable Corp. v. Gulf Power Co., 591 So.2d 627, 629 (Fla.1992)); see
Charles Poe Masonry, 374 So. 2d at 489. “General terms” providing for indemnity are
insufficient and “do not disclose an intention to indemnify for consequences arising
from the wrongful acts of the indemnitee.” Charles Poe Masonry, 374 So.2d at 489;
see BVS Acquisition Co., 649 F. App’x at 655 (“[B]road but general language is
insufficient to qualify as an express statement to that effect.”).

The requirement of a “clear and unequivocal” statement of intent applies to
indemnification clauses that seek to indemnify for sole negligence by the indemnitee
as well as clauses that purport to indemnify for joint negligence by the indemnitee
and another party. Cox Cable Corp. 591 So.2d at 629–30; Sanislo v. Give Kids the
World, 157 So. 3d 256, 263–64 (Fla. 2015).
When indemnification depends on the underlying claim, any declaration by the
court as to a party’s duty to indemnify is premature unless there has been a resolution
of the claim on the merits. Evanston Ins. Co. v. Europa Bldg. Assocs., Inc., No. 18-CV-

80174, 2019 WL 656216, at *3 (S.D. Fla. Jan. 15, 2019). “The only exception to this
general principle is if the court can determine that the allegations in the complaint
could under no circumstances lead to a result which would trigger the duty to
indemnify.” Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 (M.D. Fla.
2001) (citations omitted); see Welch v. Complete Care Corp., 818 So. 2d 645, 651 (Fla.
Dist. Ct. App. 2002).

III.
At this point in the litigation, no resolution has been reached with respect to
the merits of Keller’s complaint against Winn-Dixie. Specifically, no determination
has been made regarding an allocation of fault among Keller, Winn-Dixie, and MSI.
Consequently, this Court cannot conclude, at this time, that Keller’s allegations
would not, under any circumstances, trigger MSI’s duty to indemnify pursuant to the
Services Agreement.20

20 Based on the provisions of the Services Agreement, MSI would be required to
indemnify Winn-Dixie if there is a finding that Keller’s injuries arose from “any act,
action or omission” of MSI or its employees, and that Winn-Dixie was not, in any way,
at fault with respect to her injuries. See R. Doc. No. 34-4, at 11–12. As discussed
herein, the indemnification provision is unenforceable for claims arising from Winn-
Dixie’s sole or joint negligence.

Pursuant to discussions at the September 10, 2019 in-chambers conference, the
parties have agreed that, should the case proceed to trial and conclude in a finding
by the jury that Keller’s injuries were not caused by Winn-Dixie’s sole or joint
With respect to whether MSI has a duty to indemnify Winn-Dixie from Winn-
Dixie’s sole or joint negligence, the Court finds that the language of Section 9.2(1)
fails to meet the “clear and unequivocal” standard established under Florida law.

Section 9.2(1) of the Services Agreement provides for Winn-Dixie’s indemnification
by MSI from losses incurred by or claims made against Winn-Dixie “as a result of
[MSI]’s performance under this Agreement,” or liability or causes of action that “arise
out of or relate to . . . any claim of personal injury . . . arising from any act, action or
omission of [MSI], its agents, employees or any subcontractors . . . ”21 However, the
Services Agreement does not clearly and unequivocally provide for indemnification

by MSI for liability occasioned by Winn-Dixie’s own wrongful conduct or joint
negligence; Section 9.2(1) only specifies an exception from indemnification for claims
that arise “due to the gross negligence or willful misconduct of [Winn-Dixie].”22
Winn-Dixie argues that Section 9.2(1), read as a whole, expresses the requisite
intent to “indemnify all fault except gross negligence or willful misconduct,” which
would, allegedly, include ordinary negligence.23 However, as the Florida Supreme
Court has repeatedly emphasized, indemnification clauses that purport to protect an

indemnitee from liability caused by the indemnitee’s own or joint negligence must

negligence, the parties will resolve the issue of payment for attorneys’ fees and costs
post-trial and without a jury.
21 R. Doc. No. 34-4, at 11–12.
22 Id. at 11. Neither Keller, Winn-Dixie, nor MSI has alleged that Keller’s injuries
were caused by “gross negligence or willful misconduct” by Winn-Dixie. Rather,
Keller’s complaint claims that Winn-Dixie “failed to exercise reasonable care to keep
its aisle in a reasonably safe condition.” R. Doc. No. 1, at 2 ¶ 2.
23 R. Doc. No. 34-1, at 7.
contain a specific provision to that effect. See Sanislo, 374 So.2d at 489; Charles Poe
Masonry, 374 So.2d at 489. Although the exclusion from indemnification for “gross
negligence or willful misconduct” by Winn-Dixie may arguably be interpreted to

imply indemnification for ordinary negligence, this type of inference by omission falls
short of the “clear and unequivocal” standard set forth under Florida law. Moreover,
the provision does not specifically address indemnification of claims relating to joint
negligence by Winn-Dixie and another party. See Acosta, 2013 WL 869520, at *5
(holding that the indemnification provision did not “validly require” indemnification
for joint negligence because it “d[id] not speak to joint negligence” between the

parties).
In the alternative, Winn-Dixie argues that under Section 9.2(3), Winn-Dixie is
indemnified from claims arising from injuries sustained by MSI employees in the
course and scope of their employment.24 According to Winn-Dixie, Section 9.2(3)
expresses the intent to “shift financial responsibility for payment” of such claims from
Winn-Dixie to MSI.25 Winn-Dixie contends that this provision, when read in
conjunction with Section 9.2(1), “evidences Winn-Dixie and MSI’s understanding”

that Winn-Dixie would not be financially responsible for claims such as those alleged
by Keller, absent evidence of Winn-Dixie’s gross negligence or willful misconduct.26
However, an indemnification clause that requires reference to other contractual
provisions to determine the parties’ intent does not satisfy the “clear and

24 See R. Doc. No. 34-1, at 8.
25 Id.
26 Id. at 8–9.
unequivocal” requirement for indemnification from an indemnitee’s own or joint
conduct. See H & H Painting & Waterproofing Co. v. Mech. Masters, Inc., 923 So. 2d
1227, 1229 (Fla. Dist. Ct. App. 2006). Furthermore, Section 9.2(3) is notably silent

on its applicable scope with respect to the cause of an MSI employee’s
claimsspecifically, accidents caused by Winn-Dixie’s negligence or by joint
negligence by Winn-Dixie and another party. This type of broad indemnification is
unenforceable for injuries resulting from Winn-Dixie’s own wrongful conduct. See On
Target, Inc. v. Allstate Floridian Ins. Co., 23 So. 3d 180, 185 (Fla. Dist. Ct. App. 2009)
(distinguishing valid indemnification clause from “the extremely broad

indemnification against loss of property or life regardless of cause” clauses held to be
invalid in prior cases) (citing University Plaza, 272 So.2d at 511 and Charles Poe
Masonry, 374 So.2d at 489).
Because no determination has yet been made with respect to the liability of
Keller, Winn-Dixie, or MSI for Keller’s injuries, summary judgment as to
indemnification is premature at this stage. Although Sections 9.2(1) and 9.2(3) of the
Services Agreement do not clearly and unequivocally indemnify Winn-Dixie against

its own or joint negligence, MSI’s duty to indemnify may still be triggered.
IV.
Accordingly,
IT IS ORDERED that MSI’s motion for summary judgment is DENIED.
IT IS FURTHER ORDERED that Winn-Dixie’s motion for partial summary
judgment is DENIED.
New Orleans, Louisiana, September 10, 2019.

ANC . AFRICK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184838. Public record. Not legal advice.