The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JOHN THIBODEAUX, ET EL CASE NO. 6:18-CV-501
VERSUS JUDGE SUMMERHAYS
J.M. DRILLING, ET AL MAGISTRATE JUDGE CAROL B.
WHITEHURST
TAXATION OF COSTS
On April 12, 2018, Plaintiffs John Thibodeaux, Amy Thibodeaux, and
Gabrielle Thibodeaux (“Plaintiffs”) filed a Complaint for Declaratory Judgment
against J.M Drilling, LLC, Admiral Insurance Company, Rockhill Insurance
Company (“Rockhill”), and Bellsouth Telecommunications, LLC, seeking a
judgment declaring, in part, that Defendant Rockhill had coverage under an excess
policy of insurance that it issued to J.M. Drilling, LLC. (Rec. Doc. 1). On November
12, 2019 (amended on January 22, 2020, and March 4, 2021), J.M. Drilling, LLC,
filed a Third Party Demand against CRC Insurance Services, Inc. (“CRC”), its
insurance broker, for failing to procure adequate insurance. (Rec. Docs. 112, 155,
& 214). Following several rounds of procedural pleadings amongst related parties,
on January 20, 2020, Plaintiffs filed a Fourth Amended Complaint adding CRC as a
defendant in the initial action. (Rec. Doc. 152). Per the Fourth Amended Complaint,
J.M. Drilling asserted negligence actions against CRC as their insurance broker “in
the event [Rockhill’s policy] is determined not to provide excess insurance coverage
regarding the claims asserted by [Plaintiffs]…” (Id., ¶ II). As a result, Plaintiffs
asserted negligence claims against CRC “for negligently failing to procure full
insurance coverage as requested by [J.M. Drilling]…” (Id., ¶ VI.). In response,
Insight filed a crossclaim against CRC as J.M. Drilling’s insurance broker in the
event the Rockhill policy was found to not provide coverage (Rec. Doc. 160), and,
on March 25, 2020, CRC filed a similar crossclaim against Insight. (Rec. Doc. 177).
Relevant to the present matter, on April 9, 2021, CRC filed a Motion for
Summary Judgment on Issue of Insurance Coverage requesting the Court to find that
the Rockhill policy provides coverage thereby negating the claims filed against it.
(Rec. Doc. 270). Plaintiffs, J.M. Drilling, and Insight filed similar motions. (See
Rec. Docs. 215, 234, & 251). On May 3, 2021, Rockhill filed an opposition to
CRC’s Motion for Summary Judgment on Issue of Insurance Coverage (Rec. Doc.
310), and CRC replied. (Rec. Doc. 340). On July 23, 2021, the Court granted
CRC’s, as well as the other movants’, Motion for Summary Judgment on Insurance
Coverage. (Rec. Doc. 393). On July 29, 2021, the Court rendered Partial Final
Judgment as to Claims Regarding Coverage finding that the Rockhill policy
provided coverage for the remainder of Plaintiffs’ judgment in the underlying state
court suit against J.M. Drilling. (Rec. Doc. 402).
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A Motion/Notice of Application to Have Costs Taxed was filed by CRC on
August 26, 2021, requesting that Rockhill be taxed for costs incurred by CRC. (Doc.
No. 408). In response, Rockhill filed an Opposition (Doc. No. 412), and CRC
replied. (Doc. No. 415).
1. Is CRC entitled to costs from Rockhill?
Prior to analyzing CRC’s requested costs, the Court must determine if CRC
is entitled to costs from Rockhill. CRC maintains that it prevailed against Rockhill
and requests that this Court issue an order taxing costs in the amount of $25,205.15
against Rockhill. (Rec. Doc. 408-1). Pursuant to Fed.R.Civ.P. 54(d), “[u]nless a
federal statute, these rules, or a court order provides otherwise, costs--other than
attorney’s fees--should be allowed to the prevailing party.” (Emphasis added). The
term “prevailing party” is not defined; however, the Supreme Court and Sixth Circuit
have provided guidance finding that “a party is the prevailing party where (1) it
receives ‘at least some relief on the merits of [its] claim,’ and (2) there is a ‘judicially
sanctioned change in the legal relationship of the parties.’” Maker’s Mark Distillery,
Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 425 (6th Cir. 2012)(citing Buckhannon
Board and Care Home v. West Virginia Department of Health and Human
Resources, 532 U.S. 598 (2001)).
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In the present case, CRC had claims filed against it by Plaintiffs, J.M. Drilling,
and Insight. (See Rec. Docs. 152, 160, & 214). CRC also asserted a claim against
Insight. (See Rec. Doc. 177). Notably, CRC did not have a claim filed against it by
Rockhill, nor did it assert a claim against Rockhill. Rather, CRC’s defense to the
claims filed against it was that the Rockhill policy provided coverage. As to the
claims filed against it, on July 30, 2021, the Court dismissed Plaintiffs’ claim against
CRC. (Rec. Doc. 403). On November 3, 2023, Insight, J.M. Drilling, and CRC filed
an Unopposed Joint Motion to Dismiss requesting that all remaining claims filed
against and by them be dismissed. (Rec. Doc. 437). The Unopposed Joint Motion
to Dismiss was granted on December 15, 2023. (Rec. Doc. 438).
Rockhill maintains that it would be improper and inequitable to impose CRC’s
costs on Rockhill because CRC did not prevail on any claims against Rockhill;
indeed, there were no claims between CRC and Rockhill. (Rec. Doc. 412). CRC
argues that they would not have been a party to this litigation but for Rockhill’s
erroneous denial of J.M. Drilling’s insurance claim. (Rec. Doc. 415). CRC
maintains that they should be considered the prevailing party as against Rockhill
because they pleaded an affirmative defense that it was not liable to Plaintiffs, J.M.
Drilling, or Insight on the basis that the Rockhill policy provided coverage and
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judgment was rendered in their favor on their Motion for Summary Judgment on
Issue of Insurance Coverage (Id.). The Court disagrees.
To be considered the “prevailing party” against Rockhill, (1) CRC would need
to have received some relief on the merits of a claim against Rockhill, and (2) there
would have been a judicially sanctioned change in the legal relationship between
CRC and Rockhill. See Maker’s Mark Distillery, 679 F.3d at 425. Here, there were
no claims between CRC and Rockhill; rather, CRC received relief on the merits of
claims filed against them by Plaintiffs, J.M. Drilling, and/or Insight. CRC attempts
to equate its affirmative defense that Rockhill’s policy provided coverage to a claim
against Rockhill. (Rec. Doc. 415). An affirmative defense is not a claim. According
to Black’s Law Dictionary, an “affirmative defense” is “a defendant’s assertion of
facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim,
even if all the allegations in the complaint are true.” Black’s Law Dictionary 482 (9th
ed. 2009). Here, CRC asserted facts and arguments regarding the Rockhill insurance
policy that defeated Plaintiffs’, J.M. Drilling’s, and/or Insight’s claims against it.
Lastly, following the Court’s ruling on CRC’s Motion for Summary
Judgment, there was no change in the legal relationship between CRC and Rockhill.
See Maker’s Mark Distillery, 679 F.3d at 425. Rather, CRC and Rockhill remained
co-defendants. As a result, costs are therefore disallowed as submitted.
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REVIEW OF COSTS
Pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.5, any
party dissatisfied with the Taxation of Costs may seek review from the Court by
filing a “Motion to Review Costs.” If a review of costs 1s sought, the Motion to
Review Costs must be filed within seven (7) days after the filing of this taxation of
costs.
Signed at Lafayette, Louisiana, this 28" day of December, 2023.
(whic &
CAROL B.WHITEHURST □□□
UNITED STATES MAGISTRATE JUDGE