Shaw v. Dawson Geophysical Co.
| Decision Date | 17 August 2009 |
| Docket Number | Civil Action No. 2:08-0246.,Civil Action No. 2:09-0134. |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Robert Lee SHAW and Angela Shaw, Plaintiffs, v. DAWSON GEOPHYSICAL COMPANY, a Texas corporation, and Trans Aero Limited, a Wyoming corporation d/b/a Trans Aero Helicopter Services, d/b/a Trans Aero Helicopters, Defendants, Trans Aero Limited, a Wyoming corporation, Third-Party Plaintiff, v. Heli-Port Drilling, Inc., Third-Party Defendant. and Trans Aero Helicopter Services, a Wyoming corporation, Plaintiff, v. Dawson Geophysical Company, a Texas Corporation, and Heli-Port Drilling, Inc., a Colorado corporation, Defendants. |
Edward B. Havas, Dewsnup King & Olsen, Salt Lake City, UT, Guy R. Bucci, Stacy A. Jacques, Bucci Bailey & Javins, Charleston, WV, for Plaintiffs.
Joseph F. McDonough, Robert D. Finkel, Manion McDonough & Lucas, Pittsburgh, PA, Ted M. Kanner, The Ted Kanner Law Office, Charleston, WV, Joanna I. Tabit, Natalie C. Schaefer, Steptoe & Johnson, Charleston, WV, for Defendants.
Pending are two motions for summary judgment, one filed by Trans Aero Limited ("Trans Aero") on June 19, 2009, and the other filed by Dawson Geophysical Company ("Dawson") and Heli-Port Drilling, Inc. ("Heli-Port") on the same date.
Plaintiffs Robert and Angela Shaw commenced the first of these two civil actions on April 10, 2008 by filing a complaint asserting claims against Dawson and Trans Aero (the "Shaw action"). Trans Aero commenced the second action on February 13, 2009, against Dawson and Heli-Port, seeking indemnity for losses and expenses incurred, or to be incurred, as a result of the Shaw action (the "Trans Aero action"). The Shaw and Trans Aero actions were consolidated by order of the court entered on May 26, 2009.
At some point prior to September 11, 2006, Dawson, a "geophysical exploration company," was retained to record seismic data for the possible drilling of natural gas wells at a remote location in Roane County, West Virginia. ().1 In furtherance of its efforts to record seismic data, Dawson hired Heli-Port to drill "shot holes" for purposes of seismic testing at the site. (). Heli-Port is the employer of plaintiff Robert Shaw. () Because the exploration site was not accessible by road, Heli-Port in turn hired Trans Aero to deliver drilling equipment by helicopter. ().
Dawson and Heli-Port have each entered into separate contracts with Trans Aero. The contracts, which are largely identical, are both titled "Helicopter Service Agreement." . The Helicopter Service Agreement ("HSA") between Dawson and Trans Aero became effective on March 1, 2006. . Approximately five months later, on July 21, 2006, the HSA entered into by Heli-Port and Trans Aero took effect. (Heli-Port HSA, Dawson/Heli-Port Mot. Summ. J., Ex. B). The stipulation of Dawson, Heli-Port and Trans Aero states that by entering into the Dawson HSA, "Dawson hired Trans Aero to provide aircraft services involving transporting Dawson's employees/agents and external cargo." (. The stipulation further provides that by entering into the Heli-Port HSA, Heli-Port "hired Trans Aero to provide aircraft services involving external-load capabilities of Trans Aero's aircraft." (Id. ¶ 2).
Both HSAs require Trans Aero to purchase an aircraft liability insurance policy "in the minimum amount of Ten Million and 00/100 U.S. dollars . . . for each aircraft ordered into service by [either Dawson or Heli-Port]," and to name Dawson and Heli-Port as "additional insured[s]" under the policies. . Most importantly for purposes of the pending motions for summary judgment, the HSAs contain identical indemnification provisions. In pertinent part, each HSA provides:
General Indemnification. CUSTOMER shall indemnify TRANS AERO against, and shall hold TRANS AERO harmless from, any and all losses, damages, injuries, claims, demands, actions, suits and proceedings, including costs and expenses and reasonable attorney's fees, arising out of it in any manner connected with TRANS AERO's services to CUSTOMER or clients of CUSTOMER —where such losses, damages, injuries, claims, demands, actions, suits and proceedings were not caused by, or brought about as a direct result of, an accident of the aircraft or a vehicle operated by TRANS AERO.
(italics original).
According to the complaint in the Shaw action, Mr. Shaw was working for Heli-Port at the exploration site in Roane County, West Virginia on or about September 11, 2006. (Shaw Compl. ¶ 6). While Mr. Shaw worked, a helicopter "directed, owned, operated and/or controlled" by Trans Aero was in the process of delivering a drill suspended beneath it by a one-hundred and thirty foot line. (Id. ¶ 7). The Shaws assert that in the course of delivering the drill, "the helicopter pilot failed to keep a proper lookout and operated the aircraft too close to nearby trees." (Id. ¶ 8). As a result, "[w]ind from the helicopter's rotor blade or the blade itself caused a limb, approximately nine to ten inches in circumference and about ten feet long, to fall from one of the tree tops." (Id. ¶ 9). While he was talking by radio to the helicopter pilot, and waiting to assist in landing the drill, the limb struck Mr. Shaw, causing severe and permanent injuries. (Id. ¶¶ 7, 9). The Shaws' three-count complaint asserts the following claims: Count I, Negligence by Dawson; Count II, Negligence by Trans Aero; Count III, Loss of Consortium.
In one letter dated October 30, 2008, and two letters dated January 8, 2009, "Trans Aero demanded indemnification for the Shaw litigation from Dawson and Heli-Port under the `Helicopter Service Agreements.'" (. Dawson and Heli-Port refused, however, to acquiesce in Trans Aero's demands. (. Given the refusal of Dawson and Heli-Port, Trans Aero commenced the Trans Aero action. Trans Aero's four-count complaint asserts the following claims: Count I, Breach of Contract against Dawson; Count II, Declaratory Judgment against Dawson; Count III, Breach of Contract against Heli-Port; Count IV, Declaratory Judgment against Heli-Port.
On February 18, 2009, five days after the Trans Aero action was commenced, Dawson amended its answer to the Shaw complaint to include a cross claim against Trans Aero. Asserting that it does not owe a duty under the Dawson HSA to indemnify Trans Aero, and seeking contribution or indemnity from Trans Aero in the event it is found liable to the Shaws, Dawson's two-count cross claim asserts the following claims: Count I, Declaratory Relief; Count II, Contribution/Indemnification.
In its March 3, 2009 answer to Dawson's cross claim, Trans Aero asserted a cross claim of its own against Dawson, and included a third-party complaint asserting claims against Heli-Port. The claims asserted in Trans Aero's two-count cross claim and two-count third-party complaint are the same as the claims asserted against Dawson and Heli-Port in the Trans Aero action.2 Given that the claims asserted in the Trans Aero action are the same as those asserted by Trans Aero against Dawson and Heli-Port in the Shaw action, the Shaw and Trans Aero actions were consolidated on May 26, 2009.
On June 8, 2009, Dawson and Heli-Port filed a joint answer to the complaint in the Trans Aero action which includes counter claims by both companies. In its one-count counter claim, Heli-Port seeks a declaration that it does not owe a duty to defend or indemnify Trans Aero. Dawson's two-count counter claim asserts claims for declaratory relief and indemnification/contribution, the same claims asserted in the company's cross claim in the Shaw action.
The plaintiffs, Mr. and Mrs. Shaw, are citizens and residents of Sevier County, Utah. (Shaw Compl. ¶ 2). Trans Aero is a Wyoming corporation with a principal place of business in Cheyenne, Wyoming. (Trans Aero Comp. ¶ 3). Dawson is a Texas corporation with a principal place of business in Midland, Texas. (Shaw Compl. ¶ 3; Trans Aero Compl. ¶ 4). Heli-Port is a Colorado corporation, and it appears that its principal place of business is in Grand Junction, Colorado. (Trans Aero Compl. ¶ 9; Shaw Compl. ¶ 5). Because the parties in both the Shaw and Trans Aero actions are diverse, and because the amount in controversy in each action exceeds $75,000, (Shaw Compl. ¶ 1; Trans Aero Compl. ¶ 10), the court is possessed of diversity jurisdiction. See 28 U.S.C. § 1332. The parties do not contest jurisdiction.
A party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements...
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