United States District Court, N.D. Texas, Dallas Division
OLD REPUBLIC GENERAL INSURANCE CORP., as Subrogee of Prairie Link Contractors, LLC
MARTIN MARIETTA MATERIALS, INC.
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE
Order addresses Defendant Martin Marietta Materials,
Inc.'s ("Martin Marietta") motion for summary
judgment  and Plaintiff Old Republic General Insurance
Corp.'s ("Old Republic") partial motion for
summary judgment . For the reasons that follow, the Court
denies the cross-motions for summary judgment.
THE INDEMNIFICATION DISPUTE
indemnity action arises out of a personal injury lawsuit
filed by Robin, Esther, and Antonello Ghio against Prairie
Link Constructors, Inc. ("Prairie Link"), Martin
Marietta, and others. The underlying suit was based on an
automobile accident in which the Ghios' car collided with
the rear of a truck stopped on the freeway in a construction
zone. The Ghios alleged that Prairie Link, which is insured
by Old Republic, negligently failed to properly manage its
road construction project. Martin Marietta was brought into
the lawsuit because Prairie Link contracted with that entity
to supply and transport loads of aggregate material. The
truck involved in the collision was hauling aggregate
material pursuant to the contract between Prairie Link and
Link and Martin Marietta entered into a Purchase Order
pursuant to which Martin Marietta would supply aggregate
materials to Prairie Link for use in the construction of a
10-mile portion of State Highway 161. Martin Marietta's
scope of work included supplying transportation services to
haul the aggregate materials from its quarry to the jobsite.
The Purchase Order provided that the supplier of the
transportation services was to be a certified DBE trucking
company employed by Martin Marietta.
Purchase Order's Terms and Conditions contain an
indemnity agreement, which includes a concurrent-negligence
provision. Pursuant to that provision, Prairie Link demanded
that Martin Marietta defend and indemnify it in the
underlying suit. Martin Marietta refused on the basis that
the indemnity agreement was unenforceable because it was not
conspicuous. Old Republic, as Prairie Link's insurance
carrier, defended Prairie Link in the underlying suit and
ultimately paid to obtain a release of the Ghios' claims
against Prairie Link. Old Republic then brought the instant
lawsuit alleging that Martin Marietta breached the indemnity
provision and seeking to recover attorney's fees and
settlement monies it paid in the underlying suit.
THE COURT DENIES SUMMARY JUDGMENT
Summary Judgment Standard
"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); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). In making this
determination, courts must view all evidence and draw all
reasonable inferences in the light most favorable to the
party opposing the motion. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962). The moving party bears
the initial burden of informing the court of the basis for
its belief that there is no genuine issue for trial.
Celotex Corp. v. Catretf, 477 U.S. 317, 323 (1986).
party bears the burden of proof on an issue, that party
"must establish beyond peradventure all of the
essential elements of the claim or defense to warrant
judgment in his favor." Fontenot v. Upjohn Co.,
780 F.2d 1190, 1194 (5th Cir. 1986). When the nonmovant bears
the burden of proof, the movant may demonstrate entitlement
to summary judgment either by (1) submitting evidence that
negates the existence of an essential element of the
nonmovant's claim or affirmative defense, or (2) arguing
that there is no evidence to support an essential element of
the nonmovant's claim or affirmative defense.
Celotex, 477 U.S. at 322-25. Once the movant has
made this showing, the burden shifts to the nonmovant to
establish that there is a genuine issue of material fact so
that a reasonable jury might return a verdict in its favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Moreover, "[c]onclusory
allegations, speculation, and unsubstantiated
assertions" will not suffice to satisfy the
nonmovant's burden. Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Factual controversies are resolved in favor of the nonmoving
party "'only when an actual controversy exists, that
is, when both parties have submitted evidence of
contradictory facts.'" Olabisiomotosho v. City
of Hous., 185 F.3d 521, 525 (5th Cir. 1999) (quoting
McCallum Highlands, Ltd. v. Washington Capital Bus,
Inc., 66 F.3d 89, 92 (5th Cir. 1995)).
The Court Denies Old Republic's Partial
Motion for Summary Judgment
Republic asks the Court to find as a matter of law that
Martin Marietta had actual notice or knowledge of the
indemnity agreement, it will have the burden of establishing
actual knowledge at trial because actual knowledge is an
affirmative defense. See Safeway, Inc. v. PDX, Inc.,
676 Fed.Appx. 229, 237-38 (5th Cir. Jan. 19, 2017) (per
curiam) (citing Reyes v. Storage & Processors,
Inc., 86 S.W.3d 344, 350-51 (Tex. App.-Texarkana 2002),
aff'd, 134 S.W.3d 190 (Tex. 2004)). Because Old
Republic has not established "beyond peradventure"
that Martin Marietta had actual knowledge of the extent of
the indemnity provision, the Court denies its partial motion
for summary judgment. Fontenot, 780 F.2d at
i 194; see also Safeway, 676
Fed.Appx. at 238 (reiterating the requirement that
"those on the hook for another party's negligence
[must be] fully aware of the extent of that
obligation; an understanding merely that there is
some obligation is not a valid alternative"
The Court Denies Martin Marietta's Motion for Summary
Marietta moved for summary judgment on three grounds: 1) the
indemnity provision does not satisfy the fair notice
requirements of Texas law; 2) the provision does not require
Martin Marietta to indemnify Prairie ...