Cozort v. Selco Constr. Servs., Inc.

• Decision Date: 12 June 2014
• Docket Number: CIVIL ACTION NO. 5:12-cv-05927
• Parties: JEFFERY COZORT, Plaintiff, v. SELCO CONSTRUCTION SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

JEFFERY COZORT, Plaintiff, v. SELCO CONSTRUCTION SERVICES, INC., et al., Defendants.

CIVIL ACTION NO. 5:12-cv-05927

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

ENTER: June 12, 2014

MEMORANDUM OPINION AND ORDER

The Court has reviewed Deal Brothers Consulting, LLC's Motion for Partial Summary Judgment on Its Cross-Claim Against the Defendant Cleco Corporation (Document 193), attached exhibits, supporting memorandum (Document 194), Cleco Corporation's Response to Deal Brothers Contracting, LLC's Motion for Partial Summary Judgment on Its Cross-Claim (Document 197), attached exhibits, and Deal Brothers Reply to Cleco Corporation's Response to Deal Brothers Contracting, LLC's Motion for Partial Summary Judgment on Its Cross-Claim (Document 202). The Court has also reviewed the Motion of Cleco Corporation for Partial Summary Judgment on Cross-Claim Against Selco Construction Services, Inc. (Document 198), attached exhibits, supporting memorandum (Document 199), Selco Construction Services, Inc.'s Response to Cleco Corporation's Motion for Partial Summary Judgment on Its Cross-Claim (Document 204), attached exhibits, and Cleco's Reply to Selco Construction Services Inc.'s Response to Cleco Corporation's Motion for Partial Summary Judgment on Cross-Claim(Document 205), and attached exhibits. Finally, the Court has reviewed Vitruvian Exploration, LLC and Penn Virginia Oil and Gas's Motion for Partial Summary Judgment on Its Cross-Claim Against Cleco Corporation (Document 206), supporting memorandum (Document 207), attached exhibits,¹ Defendant Pinpoint Drilling and Directional Services, LLC's Joinder in Vitruvian Exploration, LLC, and Penn Virginia Oil & Gas's Motion for Partial Summary Judgment on Its Cross-Claim Against Cleco Corporation (Document 208), the Response of Cleco Corporation to Motion for Partial Summary Judgment of Vitruvian Exploration, LLC and Penn Virginia Oil and Gas and Pinpoint Drilling and Directional Services, LLC's Joinder in Said Motion (Document 209), attached exhibits, the Reply Brief in Support of Penn Virginia Oil & Gas and Vitruvian Exploration LLC's Motion for Partial Summary Judgment (Document 210), and attached exhibits. For the reasons stated herein, the Court finds that each motion for summary judgment should be granted.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jeffrey Cozort initiated this action with a Complaint (Document 1-2) filed in the Circuit Court of Wyoming County, West Virginia, on July 11, 2012. Mr. Cozort was employed by Selco Construction Services to do work on gas well sites. He alleged that he was instructed to climb to the top of a tank and check the water level. (Compl., ¶ 11.) When he turned on his flashlight, there was an explosion that blew him off the tank and caused serious injuries. (Id., ¶ 13.)

The Court received notification on March 4, 2014 that Mr. Cozort's claims against Selco had settled. (Agreed Order of Partial Dismissal, Document 200.) In its response to the motionsfor partial summary judgment by Deal Brothers, Vitruvian, Penn Virginia, and Pinpoint Drilling, Cleco indicated that it had settled "all plaintiff's claims for the non-employer defendants." (See Jan. 31, 2014 Tabit Email, att'd as Ex. A to Cleco's Resp. to Deal Bros.' Mot., Document 197-1.) The remaining dispute concerns indemnification agreements between the various defendants, all entities that owned, operated, or owned permits for the site, or that contracted or sub-contracted work on the site. The parties all adopted Deal Brothers' description of the party relationships:

Penn-Virginia Oil & Gas Corporation, the permit holders, and CDX Gas, LLC, which later changed its name to Vitruvian Exploration, LLC, the developer, entered into an agreement to produce gas in certain areas of Southern West Virginia. Cleco and Vitruvian entered into a Master Service Contract ("the Contract") with Vitruvian for Cleco to provide services as to those well sites. Cleco sub-contracted with Selco Construction Services, Inc. to perform at least some portion of this work for Vitruvian and Selco employed Plaintiff for that purpose. Vitruvian separately contracted with Deal Brothers to provide an onsite representative for Vitruvian.

(Deal Bro.s' Mem. at 2) (internal citations omitted.)

Selco, the Plaintiff's employer and Cleco's subcontractor, agreed to indemnify Cleco in accordance with the following contract language:

Regardless of its designation as an "additional insured," or its inclusion as a beneficiary under any performance or payment bonds, the Subcontractor [Selco] agrees to hold the contractor [Cleco] harmless, without limitation, from any and all claim, damage, causes of action, costs, expenses, damage, or other charges which may be incurred through any action of omissions of the Subcontractor, or any of its employees, agents, designees, or others. To the extent that any person, firm or corporation may attempt to make a claim against the Contractor, for any act or omission, whether intentional or otherwise, of the Subcontractor, or attempt to claim through the Subcontractor directly against the Contractor, the Subcontractor shall indemnify and hold the Contractor harmless for any such claims or amounts. The obligations contained herein shall include the obligation to contest or defend such claims on its own behalf, or in furtherance of the obligations created by thisAgreement, as well as to reimburse the Contractor for any attorney's fees, Court costs, or monetary damages it may suffer as a consequence of a breach of this subparagraph, or of any other subparagraph, paragraph or provision contained herein. Notwithstanding any other applicable or modified statute of limitations, this obligation upon the subcontractor shall exist for a period of five (5) years after the final date of acceptance of the project, as a whole, by the Owner.

(Subcontract Agreement, ¶ 11, att'd as Ex. A to Selco's Resp., Document 204-1.)

Cleco, in turn, agreed to indemnify "CDX Group," which by definition included "CDX [now Vitruvian], subcontractors of CDX, and their respective directors, officers, employees, representatives, agents, business invitees and assignees." (Master Service Contract, § 2.3, att'd as Ex. A to Deal Bros.' Mot., Document 193-1.) Penn Virginia, Vitruvian, Pinpoint Drilling, and Deal Brothers are all part of "CDX Group." The indemnification agreement provides:

Contractor [Cleco] hereby agrees to release, defend, indemnify and hold the CDX Group harmless from and against any and all claims, demands, and causes of action of every kind and character (including without limitation, fines, penalties, remedial obligations, court costs and reasonable attorneys' fees, including attorneys' fees incurred in the enforcement of this indemnity) (hereafter collectively referred to as the Indemnifiable Claims") arising out of, without limitation, bodily injury and/or death of any one or more members of the Contractor Group [defined to include Cleco and any affiliates and subcontractors], and/or loss of or damage to property or interests in property of any one or more members of the Contractor Group in any manner incident to, connected with, or arising out of the performance of the Work; provided, however, that such bodily injury, death, loss of or damage to property results in whole or in party, from negligence, strict liability, or other act and/or omission of any one or more members of the Contractor Group.

(Id. at § 10.1.1.) Following the settlement of the Plaintiff's claims, Cleco emailed counsel for Penn Virginia, Vitruvian, Pinpoint, and Deal Brothers, inviting the submission of "invoices for fees and costs" directly to its insurer. (Jan. 31, 2014 Tabit Email.)

II. STANDARD OF REVIEW

The well-established standard in consideration of a motion for summary judgment is that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A "material fact" is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A "genuine issue" concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322-23. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the non-moving party must offer some "concrete evidence from which a reasonable juror could return a verdict inhis favor." Anderson, 477 U.S. at 256. "At the summary judgment stage, the non-moving party must come forward with more than 'mere speculation or the building of one inference upon another' to resist dismissal of the action." Perry v. Kappos, No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter," Anderson, 477 U.S. at 249, nor will it make determinations of credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W. Va. Mar. 31, 2008) (Copenhaver, J.) (...