The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
THOMAS B. FLETCHER, ET AL. CIVIL ACTION NO. 18-1153
VERSUS JUDGE S. MAURICE HICKS, JR.
JULIAN WHITTINGTON, ET AL. JUDGE KAYLA MCCLUSKY
MEMORANDUM RULING
Before the Court are two Motions for Summary Judgment (Record Documents 114
& 118) filed by defendants (1) the Bossier Parish Police Jury and Bossier Parish (a non-
entity) (hereinafter referred to as “the BPPJ”) and (2) Julian C. Whittington, Robert Chavis,
Jeff Smith, De Barnett, Julie Cochran, Cody Callicoatte, Jared Vicento, Matthew Creamer,
Blake Smith, Katie Rachel, Katrina Chandler, and Bossier Sheriff’s Office (hereinafter
referred to as “the BSO Defendants’”). The BPPJ and the BSO Defendants seek
summary judgment that they are entitled to be fully indemnified, defended and held
harmless by third party defendants, the Board of Supervisors of Louisiana Agricultural
and Mechanical College and Louisiana State University Health Science Center
(hereinafter collectively referred to as “LSU”), for any costs and expenses incurred in
connection with this lawsuit, and any losses, damages and/or judgment resulting from this
lawsuit, including all fees, expenses, and charges of attorneys and other professionals.
The BPPJ and the BSO Defendants filed a supplemental memorandum in support of their
motions. See Record Document 135. LSU opposed the motions, arguing prematurity
and other additional grounds summary judgment was inappropriate. See Record
Documents 134 & 135.1 The BPPJ replied. See Record Document 153. For the reasons
set forth below, the Motions for Summary Judgment regarding indemnification are
DENIED AS PREMATURE.
FACTUAL AND PROCEDURAL BACKGROUND
This is a federal civil rights action (and state law survival action and wrongful death
action) brought by Thomas B. Fletcher and Gail A. Osborne-Fletcher (“Plaintiffs”), the
parents of the deceased, Collin James Fletcher (“Fletcher”). See Record Document 217
(Second Amended Complaint). Fletcher was arrested by the Bossier City Police
Department on September 3, 2017. He was thereafter transported to the Bossier
Maximum Security Facility, where he remained until he was found dead in his cell during
the early morning hours of September 8, 2017. Dr. Russell W. Roberts (“Dr. Roberts”),
an employee of LSU, was at the Bossier Maximum Security Facility on September 7,
2017.
Plaintiffs assert numerous claims against multiple defendants seeking damages
as a result of Fletcher’s death while he was an inmate at Bossier Maximum Security
Facility. See id. The BPPJ and the BSO are named as defendants and filed third-party
claims against LSU seeking indemnification and defense from the claims asserted against
them based on a “Contract for Professional Services” entered into between the BPPJ, the
BSO, and LSU, effective March 19, 2006. See Record Documents 65 & 67; see also
Record Document 112-2 (Contract). Under the Contract, LSU agreed to, among other
1 The other grounds asserted by LSU are there exists a genuine dispute of material facts
as to whether the indemnity obligation is triggered and that the agreement does not
indemnify against the BPPJ’s or the BSO Defendants’ own fault. See Record Documents
134 & 135. Since the Court is deciding the instant motions on the basis of prematurity, it
need not reach the other grounds at this time.
things, provide outpatient medical care at the Bossier Correctional Facilities; provide
clinical services at the Bossier Correctional Facilities; evaluate and treat inmates for
medical problems during clinic hours; provide medical services during clinic hours; and
assist in the review and update of policies and procedures for the Health Services Staff.
See Record Document 112-2 at 1-2. The Contract also contained an Indemnification
provision:
The Physician Service Provider shall, to the extent permitted by law, protect,
indemnify, defend, and hold harmless the Parish of Bossier, the Bossier
Parish Police Jury, Bossier Parish Sheriffs employees, all officers,
administrators, agents, servants, employees, and appointees of the Parish
of Bossier and the Bossier Parish Police Jury and Bossier Police Jury
employees and all other persons or legal entitles for whom the Parish of
Bossier and the Bossier Parish Police Jury, Bossier Police Jury employee
is or might be liable from and against any and all claims, demands, suits,
losses, damages, judgments, costs and expenses, whether direct, indirect
or consequential and including but not limited to all fees, expenses and
charges of attorneys and other professionals, as well as court and mediation
costs and expenses, for bodily injury, including death, personal injury and
property damage, arising out of, in connection with or resulting from the
performance of the services under this contract and caused in whole or in
part by any negligent act, error, or omission of the Physician Service
Provider, its officers, agents, servants and employees or any subcontractor
of other person or organization performing directly or indirectly with the
Physician Service Provider and regardless of whether or not caused in part
by any party or person indemnified hereunder.
Id. at 3. This indemnification provision is at issue in the instant motions.
LAW AND ANALYSIS
I. Summary Judgment Standard
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir.2010). “A genuine issue of material fact exists when
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
See id. “Rule 56[(a)] mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th
Cir.2004). If the movant demonstrates the absence of a genuine dispute of material fact,
“the nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141
(5th Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it
could not support a judgment in favor of the nonmovant, then summary judgment should
be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).
II. Prematurity
The BPPJ and the BSO Defendants seek summary judgment that the indemnity
obligation under the Contract has been triggered, regardless of whether they were
negligent. See Record Document 114 at 3-4 & 118. Specifically, they argue they are
entitled to a summary judgment order holding that the BPPJ and the BSP Defendants are
entitled to be fully indemnified, defended and held harmless by LSU for any costs and
expenses incurred in connection with this lawsuit, and any losses, damages and/or
judgment resulting from this lawsuit, including all fees, expenses and charges of attorneys
and professionals. See Record Document 114 at 4. LSU requests that the motions be
denied for the simple reason that they are premature at this stage of the proceeding
because the indemnitee’s liability in the underlying suit has not been determined. See
Record Documents 134 & 135 at 11.
The Court holds that the BPPJ and the BSO Defendants’ Motion for Summary
Judgment is premature and, thus, summary judgment must be denied at this stage. It is
well-settled in Louisiana that the issue of indemnity is not ripe until the indemnitee’s
liability in the underlying suit is determined. See Suire v. Lafayette City-Par. Consol.
Gov’t, 2004-1459 (La. 4/12/05), 907 So. 2d 37, 51. In Suire, the Louisiana Supreme Court
stated:
We find that the City’s and Dubroc’s claim for defense under the indemnity
agreement is premature under settled law, as these parties have not yet
sustained any compensable loss. This court has observed that an
indemnity agreement is a “specialized form of contract which is
distinguishable from a liability insurance policy.” Meloy v. Conoco, Inc., 504
So.2d 833, 839 (La.1987).2 An indemnitor is not liable under an indemnity
agreement until the indemnitee “actually makes payment or sustains loss.”
Id. Thus, this court has held that “a cause of action for indemnification for
cost of defense does not arise until the lawsuit is concluded and defense
costs are paid.” Id.; Morella v. Bd. of Comm'rs of Port of New Orleans,
2004–0312 (La.App. 4 Cir. 10/27/04), 888 So.2d 321, 325. As this lawsuit
2 In Meloy, the Louisiana Supreme Court explained:
An indemnity agreement is a specialized form of contract which is
distinguishable from a liability insurance policy. A cause of action under a
liability insurance policy accrues when the liability attaches. Appleman,
Insurance Law and Practice (Buckley ed.) § 4261. However, an insurer’s
duty to defend arises whenever the pleadings against the insured disclose
a possibility of liability under the policy. American Home Assurance Co. v.
Czarniecki, supra; Appleman, Insurance Law and Practice (Berdal ed.) §
4683.01. On the other hand, an indemnity agreement does not render
the indemnitor liable until the indemnitee actually makes payment or
sustains loss. BLACK’S LAW DICTIONARY 692-93 (5th ed. 1979);
Appleman, Insurance Law and Practice (Buckley ed.) §§ 4261, 6668.
Therefore, a cause of action for indemnification for cost of defense
does not arise until the lawsuit is concluded and defense costs are
paid. The allegations of the complaint against the indemnitee are
irrelevant to the indemnitor's obligation to pay. Rather, it is the terms of
the indemnity agreement which govern the obligations of the parties.
Meloy, 504 So. 2d at 839 (emphasis added). As to the duty to defend in this case, the
key distinction is that the Court is examining an indemnity agreement, not a liability
insurance policy.
is still pending, and no determination of liability has been made, the court of
appeal erred in finding that Boh Brothers owed a duty to defend, or pay for
defense costs, under the terms of the contractual indemnity provision. We
therefore reverse the court of appeal's holding that Boh Brothers owed a
duty as a matter of law to defend the City and Dubroc, and defer this claim
until the lawsuit is concluded and liability is determined.
Suire, 907 So. 2d at 51. This Court notes that the reasoning set forth in Suire decision,
which is applicable to indemnity agreements and not liability insurance policies, is
inclusive of the cost of defense in this case. The Fifth Circuit has similarly held that “the
duty-to-indemnify issue [is] not ripe when the underlying ... lawsuit has not yet been
completed.” Coregis Ins. Co. v. Sch. Bd. of Allen Parish, No. 07–30844, 2008 WL
2325632, at *2 (5th Cir. June 6, 2008) (applying Louisiana law); see also New England
Ins. Co. v. Barnett, No. 11–30348, 2012 WL 715261, at *5 (5th Cir. Mar. 6,
2011)(“Louisiana law generally provides that until the underlying issue of liability is
resolved and the defendant is cast in judgment, the issue of indemnity is premature ....”).
Louisiana federal district courts have also followed this rationale. See Travelers Cas. &
Sur. Co. of Am. v. Univ. Facilities, Inc., No. CIV.A. 10-1682, 2012 WL 1198611, at *11
(E.D. La. Apr. 10, 2012); Gabarick v. Laurin Maritime (Am.), Inc., No. 08–4007, 08–4156,
2009 WL 43096, at *8 (E.D.La. Jan. 7, 2009); Babcock & Wilcox Co. v. McGriff, Seibels
& Williams, Inc., No. 05–4202, 2006 WL 2850178, at *4 (E.D.La. Oct. 2, 2006); Seaboard
Marine Ltd. v. St. Paul Fire & Marine Ins. Co., No. A. 96–2446, 1996 WL 696354, at *3
(E.D.La. Nov. 25, 1996).
Here, there has been no determination that the BPPJ, the BSO Defendants, Dr.
Roberts, or any other defendant is liable to Plaintiffs. Thus, because liability in the
underlying case has not yet been determined, this Court must deny as premature the
BPPJ and the BSO Defendants’ Motions for Summary Judgment on the issue of
indemnification.
CONCLUSION
For the reasons set forth above, the Court holds the BPPJ and the BSO
Defendants’ Motions for Summary Judgment on the issue of indemnification to be
premature. Accordingly, such motions are DENIED AS PREMATURE and may be
reurged at a later time.
IT 1S SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 10th day of August,
2022.
on [pele /
S. MAURICE HICKS, JR., CHIEF JUD
UNITED STATES DISTRICT COURT