In the Matter of Aries Marine Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF CIVIL ACTION

ARIES MARINE

CORPORATION, ET AL. No. 19-10850

c/w 19-13138

REF: ALL CASES

SECTION I

ORDER & REASONS

Before the Court is a motion1 for partial summary judgment filed by Fluid

Crane & Construction, Inc. (“Fluid Crane”). United Fire & Safety, LLC (“United Fire”)

opposes2 the motion. For the reasons below, the Court grants the motion.

I. FACTUAL BACKGROUND

This Court has set forth the factual background giving rise to this matter in

previous orders. As relevant to the instant motion, Fluid Crane and United Fire each

contracted with Fieldwood Energy, LLC (“Fieldwood”) to provide certain services on

a stationary platform owned by Fieldwood. These contracts contained defense and

indemnity provisions pursuant to which Fluid Crane and United Fire agreed to

provide defense and indemnity for claims asserted by their respective employees

against other parties that contracted with Fieldwood. In relevant part, each contract

provided that Fluid Crane and United Fire “agree[d] to release, indemnify, protect,

defend and hold harmless such other Third Party Contractors . . . from and against

1 R. Doc. No. 164.

2 R. Doc. No. 181.

any and all claims for the (1) the injury, illness or death of any [of their own

employees].”3

Seven personal injury claimants (“claimants”) asserted claims in the instant

matter against, inter alia, Aries Marine Corporation (“Aries”) and Fugro USA

Marine, Inc. (“Fugro”). Six of the claimants were employees of Fluid Crane, and one

was an employee of United Fire. Both Aries and Fugro are “Third Party Contractors”

within the meaning of the contracts. Aries and Fugro both asserted entitlement to

defense and indemnification from Fluid Crane and United Fire, based on the

contracts described above.

The Court recently determined that, while the indemnification provisions of

the above-described contracts are unenforceable, the defense provisions may be

enforced by parties ultimately found free of fault.4 In the instant motion, Fluid Crane

requests that this Court order that these defense obligations be shared equally by

Fluid Crane and United Fire, regardless of the fact that only one of the seven personal

injury claimants was an employee of United Fire.

II. STANDARD OF LAW

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always

3 R. Doc. Nos. 164-5, at 8; 164-6, at 8.

4 R. Doc. No. 241.

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 a material fact; it need only point out the absence of evidence

supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190,

1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory allegations should

suffice to require a trial when there is no evidence to support them even if the movant

lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. 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). Rather, 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).

If the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must then articulate specific facts showing a genuine issue and point to

supporting, competent evidence that may be presented in a form admissible at trial.

See Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R.

Civ. P. 56(c)(1)(A), (c)(2). These facts must create more than “some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. “A non-movant will not

avoid summary judgment by presenting “speculation, improbable inferences, or

unsubstantiated assertions.” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d

670, 673 (5th Cir. 2015) (quotation and citation omitted). If the nonmovant fails to

meet their burden of showing a genuine issue for trial that could support a judgment

in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d

at 1075–76.

This matter is set for a bench trial. Therefore, so long as “the evidentiary facts

are not disputed and there are no issues of witness credibility,” Manson Gulf, L.L.C.

v. Modern Am. Recycling Serv., 878 F.3d 130, 134 (5th Cir. 2017), “the district court

has the limited discretion to decide that the same evidence, presented to him or her

as a trier of fact in a plenary trial, could not possibly lead to a different result.” Jones

v. United States, 936 F.3d 318, 321–22 (5th Cir. 2019) (quotation and citation

omitted).

III. ANALYSIS

The parties agree that Louisiana law governs the instant dispute.5 Under

Louisiana law, obligations may be several, joint, or solidary. Berlier v. A.P. Green

Indus., Inc., 815 So.2d 39, 45 (La. 2002). “The classification of an obligation as several

5 The Court determined that Louisiana law applies to the interpretation of the

relevant contracts in its previous order and reasons on the enforceability of the

indemnification provisions. R. Doc. No. 241.

or joint depends upon the parties’ intentions and understanding, as revealed by the

language of their contract and the subject matter to which it refers.” City of

Alexandria v. Brown, 740 F.3d 339, 355 (5th Cir. 2014) (quoting Berlier, 815 So.2d at

47–48) (cleaned up).

“When each of different obligors owes a separate performance to one obligee,

the obligation is several for the obligors.” La. Civ. Code art. 1787. “When different

obligors owe together just one performance to the obligee, but neither is bound for the

whole, the obligation is joint for the obligors.” Id. art. 1788. “An obligation is solidary

for the obligors when each obligor is liable for the whole performance [and] [a]

performance rendered by one of the solidary obligors relieves the others of liability

toward the obligee.” Id. art. 1794.

“When a joint obligation is divisible, each joint obligor is bound to perform, and

each joint obligee is entitled to receive, only his portion.” Id. art 1789. “When a joint

obligation is indivisible, joint obligors or obligees are subject to the rules governing

solidary obligors or solidary obligees.” Id. “An obligation is divisible when the object

of the performance is susceptible of division.” Id. 1815. On the other hand, “an

obligation is indivisible when the object of the performance, because of its nature or

because of the intent of the parties, is not susceptible of division.” Id. “An indivisible

obligation with more than one obligor or oblige is subject to the rules governing

solidary obligations.” Id. 1818.

“Among solidary obligors, each is liable for his virile portion. If the obligation

arises from a contract . . . virile portions are equal in the absence of agreement or

judgment to the contrary.” Id. art. 1804.

As stated, both Fluid Crane and United Fire agreed, via separate contracts, to

“release, indemnify, protect, defend and hold harmless” Aries and Fugro from and

against claims asserted by Fluid Crane’s and United Fire’s respective employees. The

language of the contracts sheds little light on the parties’ intent as to whether the

defense obligations are joint, so the Court focuses on the subject matter of the contract

in order to determine the nature of the obligations. Brown, 740 F.3d at 355.

Fluid Crane argues that the defense obligations owed by itself and United Fire

are joint, indivisible obligations.6 This is so, Fluid Crane argues, because “[a]n

obligation to defend the [i]ndemnitees at a hearing, deposition, or to respond to

discovery is, by its nature, an indivisible obligation. The [i]ndemnitees[’] interests”

are “either represented or [they are] not.”7

United Fire concedes “that there are some defense expenses that are not

specific” to claims made by either United Fire’s or Fluid Crane’s employees because

“the defense of each party’s liability is not specific to each claimant.”8 Still, United

6 United Fire appears to confuse the issue, arguing that “United Fire and Fluid Crane

cannot be solidary obligors.” R. Doc. No. 181, at 5. However, Fluid Crane argues that

the parties’ obligations are joint and indivisible such that principles of solidary

liability apply pursuant to Louisiana Civil Code Article 1789, not that the parties are

solidary obligors pursuant to Article 1794. See R. Doc. 227, at 5 (“Assuming that [the

defense] obligation is owed, then it is an indivisible obligation such that the principles

of solidary liability apply.”).

7 R. Doc. No. 164-1, at 7.

8 R. Doc. No. 181, at 8–9.

Fire appears to argue that the defense obligations are divisible because Fluid Crane

“has six obligations to defend and indemnify Aries and Fugro” while United Fire has

only one, based on the fact that only a single United Fire employee has asserted

claims.9

The Court concludes that the defense obligations are joint. Even United Fire

admits that its obligation to defend Aries and Fugro from liability “overlaps” with

Fluid Crane’s obligation to do the same. Therefore, at least as to liability defense, the

parties appear to agree that they “owe together just one performance to” Aries and

Fugro. La. Civ. Code art. 1788. The Court recognizes that defense obligations related

to each employee’s individual claims might differ. However, Louisiana law recognizes

that an obligation may be joint even though “neither [party] is bound for the whole”

of the performance. Id.

Having concluded that the defense obligations are joint, the Court turns to

whether they are divisible. As stated, “an obligation is indivisible when the object of

the performance, because of its nature or because of the intent of the parties, is not

susceptible of division.” Id. 1815. The Court determines that, because of the nature

of the defense obligations, they are indivisible.

9 Id. at 9. Throughout its motion, United Fire refers to both the indemnification and

defense provisions; however, Fluid Crane’s argument focuses on whether the defense

obligations (not the indemnification obligations) are divisible, and indeed concedes

that the indemnity obligations are divisible. See R. Doc. No. 164-1, at 9 (“Obviously,

United Fire would not owe indemnity to the Indemnitees for those claims brought by

Fluid Crane’s employees.”).

There is little case law directly applicable to this dispute. However, Fluid

Crane has pointed to a case suggesting that defense obligations, such as those at issue

here, are indivisible.10 In Vaughn v. Franklin, two insurers each had an independent

duty to defend the same party, but one insurer’s policy had an applicable policy limit

of $100,000 and the other’s had an applicable policy limit of $300,000. 785 So. 2d 79,

89 (La. Ct. App. 2001). “The parties agree[d] that for purposes of contributing to a

settlement under the indemnity provisions of the policy, the ratio would [have been]

75/25,” with the insurer with the lower policy limit paying the lower amount. Id. The

insurer with the higher limit, however, argued that the defense costs should be

divided 50/50. The court agreed, finding that the insurers “each had an equal duty to

defend in this case” and were “thus equally liable for the defense costs.” Id.

United Fire argues that Vaughn is distinguishable because “the duty to defend

and indemnify for [a Fluid Crane employee’s] claim is separate and independent from

the duty to defend and indemnify for [a United Fire employee’s] claim.”11 But United

Fire does not explain how the defense costs, which it admits “overlap[ ] to the extent

10 Fluid Crane also cites cases in which courts applying Louisiana law held that

certain obligations should be divided on a per-head basis, even where the parties had

differing interests in the underlying concern. Sweet Lake Land & Oil Co. LLC v.

Exxon Mobil Corp., No. 09-1100, 2011 WL 5326992, at *4 (W.D. La. Nov. 3, 2011)

(holding that two parties that held differing fractional interests in a property were

equally liable for the restoration of the property because an “obligation to restore the

leased premises is, by its nature, an indivisible obligation”); Hibernia Nat’l Bank v.

Carner, 997 F.2d 94, 99–100 (5th Cir. 1993) (determining that partners were equally

liable for partnership debts regardless of their differing interests in the partnership).

These cases do not discuss the applicability of these principles to defense obligations.

11 R. Doc. No. 181, at 7.

that the defense .. . is not directly or indirectly related to the specific claims asserted

by each of [the claimants]” can be divided.”

Because the defense obligation is incapable of division, the obligation is

indivisible, and principles of solidary liability apply. La. Civ. Code art. 1818. “Among

solidary obligors, each is liable for his virile portion.” Jd. art. 1804. And, because “the

obligation arises from a contract... virile portions are equal in the absence of

agreement or judgment to the contrary.” Jd. There is no such agreement or judgment

here. 13

In sum, the Court concludes that Fluid Crane’s and United Fire’s obligation to

defend Aries and Fugro is a joint and indivisible obligation. Because that obligation

arises from contract, and there is no agreement or judgment to the contrary, that

obligation will be divided in equal portions between Fluid Crane and United Fire.

Accordingly,

IT IS ORDERED that Fluid Crane’s motion for partial summary judgment is

GRANTED.

New Orleans, Louisiana, February 9, 2023.

LANCE : AFRICK

UNITED STATES DISTRICT JUDGE

12 Td. at 7.

13 United Fire argues that “Fluid Crane has six virile shares because it has six

separate obligations to indemnify” the indemnitees. Jd. at 9. United Fire cites no

authority for this proposition, nor does it explain how “six separate independent

obligations to indemnify” translates to six separate independent obligations to

defend, which is the relevant question here.