In Re Fitzgerald Marine & Repair Inc.

• Decision Date: 11 August 2010
• Docket Number: Nos. 09-1997, 09-2075.,s. 09-1997, 09-2075.
• Citation: 619 F.3d 851
• Parties: In re FITZGERALD MARINE & REPAIR, INC., for exoneration from or limitation of liability, Petitioner Appellant, Mike Jenkins, Plaintiff, v. Fitzgerald Marine & Repair, Inc., Defendant-Appellant, v. Ingram Barge Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

619 F.3d 851

In re FITZGERALD MARINE & REPAIR, INC., for exoneration from or limitation of liability, Petitioner Appellant,

Mike Jenkins, Plaintiff,

v.Fitzgerald Marine & Repair, Inc., Defendant-Appellant,

v.Ingram Barge Company, Defendant-Appellee.

Nos. 09-1997, 09-2075.

United States Court of Appeals,Eighth Circuit.

Submitted: Jan. 13, 2010.

Filed: Aug. 11, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Douglas Gossow, argued, Robert Nienhuis, on the brief, St. Louis, MO, for appellant.

Simon Tonkin, argued, Richard McNelly, on the brief, St. Louis, MO, for appellee.

Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY, ¹ District Judge.

SHEPHERD, Circuit Judge.

This case arises out of the sinking of the M/V Charles B. Holman (“Holman”), a tugboat operated by the appellee, Ingram Barge Company (“Ingram”). Ingram and the appellant, Fitzgerald Marine & Repair, Inc. (“Fitzgerald”), have a longstanding contractual relationship, pursuant to which Fitzgerald performs repair and maintenance of Ingram boats and barges. Fitzgerald employee, Mike Jenkins, was a crewmember aboard Fitzgerald's vessel, the M/V K.W. (“K.W.”), that responded to the Holman's distress call. While aiding the Holman, Jenkins was injured, and he subsequently brought suit against both Fitzgerald and Ingram.

Ingram filed a cross-claim against Fitzgerald for contractual indemnity. Fitzgerald filed a cross-claim against Ingram, asserting common law contribution and indemnity. Ingram and Fitzgerald filed cross-motions for summary judgment. The district court ² granted summary judgment for Ingram and denied Fitzgerald's motion, holding that Fitzgerald was contractually obligated to indemnify Ingram. Jenkins's claims against both Fitzgerald and Ingram were settled. Ingram sought, and was awarded, attorney's fees and costs of $217,162.61, the entire amount of its fees and expenses related to all parts of this litigation. Fitzgerald appeals the grant of summary judgment to Ingram on its cross-claim for contractual indemnity, the denial of summary judgment to Fitzgerald on its common law indemnity and contribution claims, and the award of attorney's fees and costs to Ingram. We affirm.

I.

Fitzgerald's business is repairing barges and boats. Its office is in Charleston, Missouri. Fitzgerald works almost exclusively for Ingram. Ingram operates boats and barges on inland rivers, including on the Mississippi River near Columbus, Kentucky (the “Columbus fleets”). Ingram tugboats, including the Holman, watch over the Columbus fleets and move barges in and out of them. Fitzgerald works almost exclusively on Ingram's Columbus fleets, mainly Ingram's barges. Fitzgerald repair crews work twelve-hour shifts, from 6 a.m. to 6 p.m. At the beginning of each Fitzgerald shift, Ingram dispatches Fitzgerald crews to various repair projects.

The contractual agreement in effect between the parties on July 2, 2006, the date the Holman sank, was the Service Agreement entered into on June 12, 2001 (the “2001 Service Agreement”). The 2001 Service Agreement was set to expire, by its own terms, on June 12, 2006, with an option to renew for another five years. The 2001 Service Agreement was extended, by oral agreement, and was in effect on July 2, 2006. ³ Pursuant to the 2001 Service Agreement, [Fitzgerald] shall provide [Ingram] the following services upon request:

(a) Repair of barges, towboats, and other vessels and any appurtenances, tackle, gear, or appliances of such vessels; and

(b) Such other services as may be agreed upon by the parties.

All of such services shall be performed at the [Ingram] facility in the vicinity of Columbus, Kentucky, including barge fleets operated in conjunction with the [Ingram] operation on both sides of the river. [Ingram] shall give [Fitzgerald] at least 24 hours' advance notice of its service requirements.

(Appellant's Add. 1.) The agreement contained an indemnity provision.

The K.W. crew utilized the K.W., a small boat, and its welding flat, a small barge, primarily to perform welding repairs on barges in Ingram's Columbus fleets. On July 2, 2006, the K.W. had a three-man crew, consisting of Craig Poore, Sr., operator/supervisor; Craig Poore, Jr., laborer; and Jenkins, welder. The K.W.'s crew spent the day performing repairs on two Ingram barges. At about 4:30 p.m., ⁴ the K.W.'s crew had finished their repair work for the day and were heading back to the dock when a distress call was issued by the Holman. ⁵

The K.W. came to the aid of the Holman, arriving at the Holman at about 4:45 p.m. ⁶ The Holman was taking on water and was in danger of sinking. Poore, Sr., described the situation as follows: “The [Holman] was listed to the starboard side.

Half of the stern was underwater. The deckhands and the pilot was [sic] standing on [an adjacent] barge.” (Appellant's App. 670.) Jenkins described the situation as an “emergency” and stated that “none of [the K.W.'s crewmembers] had ever handled a situation like [it] before.” ( Id. at 676.) Jenkins testified that it was an emergency because “the whole stern of the [Holman] was underwater and there was approximately five and a half to six feet of water in the engine room, and it was pretty inevitable that the boat was going to turn.” ( Id.) Jenkins stated that he had witnessed a tugboat sinking “probably three” times “over the years” and that it is an “unusual” occurrence. ( Id.)

Ingram did not provide the K.W. crew with any specific instructions. Poore, Sr., testified to the following:

Q. But you are a repair crew, right?

A. Yes, sir, I am.

Q. And that's why you were sent over there?

A. No. I was sent over there to set up pumps.

( Id. at 670.) Poore, Sr., later stated, “The only thing I was asked by Tommy McBride, the captain [of the Holman], [was] ‘Craig, can you save it?’ ” And Poore, Sr., replied, “I don't know. I'll try.” ( Id. at 671.)

The K.W. crew boarded the Holman, taking along with it one of the K.W.'s pumps for the purpose of removing water from the Holman. The K.W. crew was able to start the pump. Poore, Sr., remained on the Holman, and Poore, Jr., and Jenkins went back to the K.W. to get more pumps. According to Jenkins, he injured his back throwing a pump from the K.W. to the Holman. Before the K.W. crew was able to start the second pump, Poore, Sr., ordered his crew off the Holman because he determined that the Holman was going to sink. Poore, Sr., explained, “I looked in the engine room and there was about 6 foot of water, and the door from the galley area, whatever it was, water was just pouring in. It scared me. It was time to get off. I was ready to get off that boat.” ( Id. at 673.) According to Jenkins, he aggravated his injury by cutting a wire securing the Holman to a loaded tank barge, after it became apparent that the Holman could not be saved. The Holman sank within about 25 minutes of the K.W.'s arrival on the scene. Ingram determined the Holman sank because an Ingram employee had not closed a manhole cover on the Holman's starboard stern buoyancy compartment, causing the boat to swamp itself.

Fitzgerald billed Ingram for a 12-hour shift for the K.W. on July 2, 2006. There is no record reflecting that Fitzgerald specifically billed Ingram for its time spent aiding the Holman. The incident occurred during the time period that is allotted to Fitzgerald vessels to return to the dock and still bill Ingram for a complete 12 hours of work.

Jenkins sued both Fitzgerald and Ingram for the injuries he sustained in the Holman incident, alleging five counts. In Count I, Jenkins alleged that Fitzgerald had violated the Jones Act, 46 U.S.C.App. § 688 et seq. ⁷ Counts II and IV alleged claims against both Fitzgerald and Ingram for unseaworthiness. ⁸ In Count III, Jenkins alleged a claim for maintenance and cure against Fitzgerald. ⁹ Count V alleged a common law negligence claim against Ingram.

Ingram filed a cross-claim against Fitzgerald, alleging that Fitzgerald was contractually obligated to indemnify Ingram for Jenkins's claims. Fitzgerald filed a cross-claim against Ingram, alleging that, in the event Jenkins obtained a judgment against Fitzgerald, Fitzgerald was entitled to contribution and indemnification from Ingram under common law. Both parties sought summary judgment on their cross-claims.

On October 27, 2008, the district court granted summary judgment to Ingram on both its cross-claim and Fitzgerald's cross-claim, concluding that “under the contract between the two companies, Fitzgerald agreed to indemnify Ingram for injuries to its employees such as that alleged by Jenkins here,” Jenkins v. Fitzgerald Marine & Repair, No. 1:07CV 123 CDP, 2008 WL 4790343, at *1 (E.D.Mo. Oct. 27, 2008) (unpublished). Following the district court's summary judgment ruling, the parties settled Jenkins's claims which were then dismissed by stipulation on February 3, 2009.

Ingram then filed a request for attorney's fees, the only expense it incurred in defending Jenkins's claims, and prejudgment interest. Ingram sought a judgment in the amount of $217,162.61, consisting of attorney's fees and expenses of $212,613.61 and prejudgment interest of $4,549. This request covered all fees and expenses that Ingram had incurred in all parts of the litigation. Ingram segregated the amount of attorney's fees and expenses, representing that it expended $142,219.69 in defending against Jenkins's claims and $70,393.92 ¹⁰ in defending against Fitzgerald's cross-claim and prosecuting its own cross-claim for contractual indemnity. The court determined that the first category of attorney's fees and expenses were recoverable as “expenses” covered by the indemnification clause of the parties' contractual agreement. The court further concluded that Ingram was entitled to recover all of the fees and expenses in the second category because the time and effort spent defending against Fitzgerald's cross-claim (recoverable for the same reason as the first category of fees and...