Fruge v. Technologies
| Decision Date | 14 July 2010 |
| Docket Number | Civil Action No. 07-789. |
| Citation | 724 F.Supp.2d 631 |
| Parties | Michael FRUGE, et al. v. ULTERRA DRILLING TECHNOLOGIES, L.P., et al. |
| Court | U.S. District Court — Western District of Louisiana |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Bennett Boyd Anderson, Jr., Nicholas A. Blanda, Anderson Law Office, Lafayette, LA, for Plaintiff.
George Andrew Veazey, Bradford H. Felder, Stacy N. Kennedy, Huval Veazey et al., Lafayette, LA, Edward D. Markle, Markle & Assoc., New Orleans, LA, John Powers Wolff, III, Rebecca Hall Klar, Keogh Cox & Wilson, Michael Mann Thompson, Law Office of Keith S. Giardina, Baton Rouge, LA, for Defendants.
MEMORANDUM RULING
Before the Court are defendant, Chubb Custom Insurance Company's (“Chubb”) Motion for Summary Judgment [Rec. Doc. 65], defendant, Amerisure Mutual Insurance Company's (“Amerisure”) Memorandum in Opposition [Rec. Doc. 76], and Chubb's Reply [Rec. Doc. 98]; Amerisure's Cross-Motion for Summary Judgment and/or Declaratory Judgment [Rec. Doc. 78], Chubb's Memorandum in Opposition [Rec. Doc. 88], Amerisure's Reply [Rec. Doc. 98], plaintiffs, Michael J. Fruge (“Fruge”) and Liliana Fruge's (collectively “plaintiffs”), Memorandum in Opposition to Amerisure's Motion for Summary Judgment [Rec. Doc. 89], and Amerisure's Reply [Rec. Doc. 95]. 1 For the reasons that follow, Chubb's Motion for Summary Judgment [Rec. Doc. 65] will be granted and Amerisure's Cross-Motion for Summary Judgment and/or Declaratory Judgment [Rec. Doc. 78] will be denied. For the foregoing reasons, Amerisure's Motion to Dismiss [Rec. Doc. 70] and Chubb's Motion to Strike [Rec. Doc. 71] will be denied as moot.
This case arises out of a claim for personal injuries allegedly sustained by Fruge while employed by Nabors Drilling USA, Inc. (“Nabors”) as a driller, assigned to work on a land based drilling rig operated by Nabors and Ulterra MWD, L.P. (“Ulterra MWD”). Fruge claims that on August 5, 2006, he suffered “career-ending injuries” when an MWD nipple and sensor exploded from the stand pipe manifold and violently struck him. R. 89, p. 2.
Plaintiffs filed their Complaint on May 2, 2007, seeking damages for injuries resulting from the accident. R. 1, ¶ VIII. As defendants, plaintiffs named Ulterra Drilling Technologies, L.P. (“Ulterra Drilling”), and Ulterra MWD alleging that each is liable for the damages incurred as a result of the accident. 2 R. 1, ¶ IX. Plaintiffs filed a Second Supplemental and Amending Complaint 3 on November 21, 2007, adding Chubb, Nautilus Insurance Company 4 and Amerisure.
On November 5, 2005, Chubb issued two insurance policies to Ulterra MWD: (1) # 7954-96-82, providing commercial general liability coverage up to $1,000,000 per occurrence effective from November 2005 to November 2006 (the “Chubb CGL policy”); and (2) # 7954-96-83, providing umbrella coverage to Ulterra MWD up to $5,000,000 per occurrence with a coverage period of November 2005 to November 2006 (the “Chubb umbrella policy”) (collectively the “Chubb policies”). 5 R. 66, Exh. E, F.
On December 30, 2005, Ulterra Drilling obtained two policies of insurance: (1) a policy from Amerisure (# CPP 2034223) which included general commercial liability coverage to Ulterra Drilling from December 31, 2005 to December 31, 2006, with policy limits of $1,000,000 per occurrence (the “Amerisure CGL policy”); and (2) a policy from Amerisure (# CU2026199) which provided umbrella coverage to Ulterra Drilling up to $10,000,000 per occurrence from December 31, 2005 to December 31, 2006 (the “Amerisure umbrella policy”) (collectively, the “Amerisure policies”). See generally R. 66, Exh. A, B; R. 76-5. Each of the Amerisure policies included an endorsement providing coverage to Ulterra MWD as an insured. Id. In Endorsement A, “Named Insured Endorsement,” the declarations page was amended to include Ulterra MWD as a named insured for policy # CPP203423, the Amerisure CGL policy. R. 66, Exh. A; R. 76-5. Similarly, the declaration page for policy # CU2026199, the Amerisure umbrella policy, was amended by a “Named Insured Endorsement” to include Ulterra MWD as a named insured. R. 66, Exh. B.
The record reflects that Chubb and Amerisure originally agreed to share in the defense of Ulterra MWD as the alleged insurers and entered into a cost-sharing agreement on or about May 23, 2007, specifying that they would share the costs of defense of Ulterra MWD as co-insurers. R. 88, Exh. 1, ¶ 5 Affidavit of Richard Rogers. 6 Subsequently, by letter dated October 19, 2007, Amerisure informed Chubb's Senior Litigation Examiner that it was withdrawing its agreement to defend Ulterra MWD in the underlying lawsuit, as the policies listing Ulterra MWD as a named insured did not provide commercial general liability or umbrella coverage to Ulterra MWD. R. 66, Exh. D. Thereafter, on November 21, 2007, Chubb filed an Answer to the Second Supplemental and Amending Complaint and a cross-claim against Amerisure. R. 31. In its cross-claim, Chubb seeks a declaration that Amerisure owes coverage and defense to Ulterra MWD under the relevant policies, recognition of Amerisure's obligation to defend and indemnify Ulterra MWD, and reimbursement of monies expended by Chubb in defense of the insured. Id.
Chubb and Amerisure have filed Cross-Motions for Summary Judgment arguing that they are not the primary insurers for this accident. R. 65, 78. Chubb seeks a summary judgment declaring that Amerisure must provide a defense for Ulterra MWD in the underlying litigation, contending that Amerisure has a duty to defend because Ulterra MWD is named as an insured on each of the Amerisure policies. R. 65. Further, Chubb asserts that any coverage owed to Ulterra MWD is in excess of that provided by the Amerisure polices. Id. Amerisure opposes Chubb's motion and moves for a declaration that Chubb is the primary and singular insurer of Ulterra MWD, alleging that there is no coverage owed under the Amerisure policies as the inclusion of Ulterra MWD is the result of a clerical error on the part of Amerisure's insurance broker, William Rigg Company. 7 R. 78. In support, Amerisure has submitted the affidavits of Ronald F. Thomason (“Thomason”), chief financial officer of Ulterra MWD and Ulterra Drilling, Cameron Jones (“Jones”), insurance broker and Vice President of William Rigg Company, and Terry Steadman (“Steadman”), Senior Marketing Underwriter for Amerisure, in support of its contention that Ulterra MWD was only mistakenly included on the policies. R. 76, Exh. 1, 2, 3. Additionally, Amerisure directs the Court to the Amendments made to the policies “effective December 31, 2005” deleting Ulterra MWD as an insured, subsequent to uncovering the alleged error. Id.
A motion for summary judgment shall be granted if the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994) (en banc). Initially, the party moving for summary judgment must demonstrate the absence of any genuine issues of material fact. When a party seeking summary judgment bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim. Id. If the moving party fails to carry this burden, his motion must be denied. If he succeeds, however, the burden shifts to the non-moving party to show that there is a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. 8 Once the burden shifts to the respondent, he must direct the attention of the court to evidence in the record and set forth specific facts sufficient to establish that there is a genuine issue of material fact requiring a trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Fed. R. Civ. Pro. 56(e). The responding party may not rest on mere allegations or denials of the adverse party's pleadings as a means of establishing a genuine issue worthy of trial, but must demonstrate by affidavit or other admissible evidence that there are genuine issues of material fact or law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Little, 37 F.3d at 1075. There must be sufficient evidence favoring the non-moving party to support a verdict for that party. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Wood v. Houston Belt & Terminal Ry., 958 F.2d 95, 97 (5th Cir.1992). There is no genuine issue of material fact if, viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If no issue of fact is presented and if the mover is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Before it can find that there are no genuine issues of material fact, however, the court must be satisfied that no reasonable trier of fact could have found for the non-moving party. Id.
A. Chubb and Amerisure's Cross-motions for Summary Judgment
Chubb seeks a summary judgment declaring that Amerisure must provide a defense for Ulterra MWD in the underlying lawsuit. Chubb contends that Amerisure issued a CGL and umbrella insurance policy, covering Ulterra MWD as an insured, providing full and complete coverage to Ulterra...
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Fruge v. Ulterra Drilling Techs., L.P.
...coverage for MWD and that any coverage under Chubb's policies was excess to that of the Amerisure policies. On July 14, 2010 724 F.Supp.2d 631 (W.D.La.2010) (in Rec. Doc. 127), the trial court granted Chubb's motion for summary judgment (Rec. Doc. 65), and denied Amerisure's cross-motion fo......