In re Complaint of Natures Way Marine, LLC
| Decision Date | 25 November 2013 |
| Docket Number | Civil Action No. 12–00390–KD–N. |
| Citation | 984 F.Supp.2d 1231 |
| Parties | In The Matter of the Complaint of NATURES WAY MARINE, LLC, Owner of the Tank Barge NWM 431 or AO 431 (Hull No. D 557753) for Exoneration from or Limitation of Liability. |
| Court | U.S. District Court — Southern District of Alabama |
OPINION TEXT STARTS HERE
John P. Kavanagh, Jr., Marion A. Quina, Jr., Thomas Marriott Wood, Burr Forman LLP, Mobile, AL, for Plaintiff.
C. Britton Bonner, Christina M. Adcock, Adams and Reese, LLP, Matthew Ryan Jackson, Mobile, AL, for Defendant.
This matter is before the Court on Flexicrew Staffing, Inc. (“Flexicrew”)'s Motion for Summary Judgment against Natures Way Marine, LLC (“Natures Way”) and Apex, LLC, d/b/a FCC Oilfield Services (“Apex”) (Docs. 178–180), Natures Way's Response (Doc. 200), Apex's Response (Doc. 201), Flexicrew's Replies (Docs. 205–206) and Apex's Sur–Reply (Doc. 224); and U.S. Environmental Services, LLC (“USES”)'s Motion for Summary Judgment against Natures Way and Apex (Docs. 190–192), Apex's Responses (Doc. 216), Natures Way's Response (Doc. 217), and USES' Reply (Docs. 225, 226).
A personal injury lawsuit filed by temporary laborer Charles Brunson (“Brunson”), regarding his alleged exposure to toxic chemicals while cleaning a barge on the Theodore Industrial Canal in Mobile County, Alabama, spawned a number of claims, cross-claims, and counter-claims among five (5) parties. As a result of this limitation of liability action filed by Natures Way, Apex filed a cross-claim against Flexicrew for indemnity/contribution (contractual and otherwise), alleging negligence within the indemnity claims, asserting it is a third party beneficiary to the August 13, 2010 labor staffing contract (“the contract”) 1 executed between USES 2 and Flexicrew. 3 (Doc. 175). Additionally,Apex filed a separate suit for declaratory judgment against Flexicrew, CV 12–00507–WS–N, regarding its claim for indemnity which was consolidated, for all purposes, into the present case. (Doc. 58 at 2).
The relevant factual background is as follows. On September 6, 2011, barge 4 owner Natures Way Marine, LLC (“Natures Way”) executed a charter agreement with Apex; Natures Way was the owner and Apex was the charterer. (Doc. 179–4). Apex planned to use the barge to transport “rainwater/wastewater” cargo. ( Id.) A condition of the agreement was that Apex would return the barge to Natures Way in a “gas free” and clean condition. ( Id.) After transferring the rainwater/wastewater from its facility to the barge tanks and back out for processing, Apex hired USES to remove the rainwater and clean the barge— i.e., to provide a clean and “gas free” barge. Specifically, pursuant to a previously executed August 13, 2010 contractual agreement for temporary labor between USES and Flexicrew, USES hired Flexicrew in September 2011 to provide two (2) laborers to clean the barge's tanks.
The USES–Flexicrew contract provides, in relevant part, as follows:
This Agreement..... between ..... USES or “contractor”[ ] and Flexicrew ..... “subcontractor” [ ] concerns services and work to be provided by you [Flexicrew] as a subcontractor to us [USES], regarding a project to be performed for our client.
* * *
.... This Agreement describes the work that you [Flexicrew] will do for us [USES], and the terms of our relationship. This Agreement may be used for a single project, or may serve as a master services agreement for a series of projects. You [Flexicrew] agree to work as an independent contractor, and not as an employee of us.
* * *
You [Flexicrew] agree to provide the services described as follows, and referred to as the Work: certified job specific supervisors, foreman and field techs ... Administration Personal [sic] ... job specific necessary transportation equipment ... It is specifically agreed that for purposes of workers compensation, we [USES] are a statutory employer of you [Flexicrew], your [Flexicrew's] employees, subcontractors and suppliers and that you [Flexicrew] will maintain workers compensation insurance ...
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You [Flexicrew] will indemnify us [USES], as provided in Section 8.
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8. Indemnification.
To the full extent permitted by law, subcontractor [Flexicrew] agrees to defend, indemnify and save harmless contractor [USES], owner and any other party which contractor is required to defend, indemnify and save harmless under any project related contract, including but not limited to their officers, agents, servants and employees, from and against any claim, allegation, cost, expense, or liability (including pre-suit and post suit attorneys' fees, interest, investigative or any other expense related in any way to the claim or allegations), attributable to bodily injury, sickness, disease, death, damage to destruction of property (including loss of use thereof), resulting from, occurring in connection with or connected in anyway to the subcontractor's [Flexicrew's] work, its subcontractors, sub-subcontractors,materialmen, or agents of any tier, their officers, directors, agents, or employees, whether or not caused in part, directly, indirectly, by the active or passive negligence or any other fault of a party indemnified hereunder provided, however, subcontractor's [Flexicrew's] duty hereunder shall not arise if such injury, sickness, disease, death, damage, or destruction is caused by the sole negligence of a party indemnified hereunder.
Subcontractor's [Flexicrew's] obligation hereunder shall not be limited by the provisions of any worker's compensation or similar act.
Subcontractor's [Flexicrew's] obligations under this provision continue after final payment and acceptance of the work and are applicable to the operations and completed operations of the subcontractor.
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... This Agreement will be interpreted in accordance with the law of the State of Louisiana....
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Choice of Law/Venue: This Agreement is to be governed by and construed according to the laws of the State of Louisiana....
(Doc. 201–1).
From September 26–29, 2011, USES performed the work of removing rainwater from the barge and cleaning the barge, for Apex, by having workers pressure wash the interior of its tanks and pump out excess rainwater. (Docs. 1, 50). Brunson, hired by Flexicrew on September 4, 2011, was one of the workers assigned to clean the barge's tanks. ( Id.; Doc. 179–2 at 10, 11 (Dep. Brunson at 277, 279)). Brunson cleaned the tanks in the barge, located on the Theodore Industrial Canal, until September 29, 2011 (about 29.5 hours of cleaning over 3 days. (Docs. 1, 50; Doc. 179–2 at 14–20 (Dep. Brunson at 284–287, 295–297)). Thereafter; he reported that he was suffering hair loss, skin irritation, nausea, and vomiting. ( Id.) As alleged, on October 7, 2011, Brunson sought medical treatment and was diagnosed with chemical exposure injuries including permanent injuries. (Docs. 1, 50). Brunson underwent surgery, the insertion of a J-tube, was placed on a liquid diet, and continues to suffer from the effects of the alleged exposure. ( Id.)
In 2011, Brunson filed a compensation claim under the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., against Flexicrew. On December 27, 2011, Flexicrew's insurance carrier denied Brunson's claims. (Doc. 200–4). To date, Flexicrew has not paid any LHWCA benefits to Brunson.
“The 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) (Dec.2010). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed.R.Civ.P. Rule 56(c) (Dec.2010). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the nonmoving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–999 (...
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