United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
before the court are plaintiff Wildhorse Resources Management
Company, LLC's (“Wildhorse”) partial motion
for summary judgment (Dkt. 19), defendant G&C
Construction International, LLC's (“G&C”)
response in opposition (Dkt. 26), Wildhorse's reply (Dkt.
31), G&C's motion for leave to file sur-reply (Dkt.
33), and Wildhorse's objections (Dkt. 37). Having
considered the motion, responses, evidentiary record, and
applicable law, the court finds that Wildhorse's motion
should be DENIED.
a declaratory judgment action arising out of an August 15,
2016 oilfield accident in which G&C's employee,
Dalarius Qualls, was injured while transporting saltwater to
one of Wildhorse's disposal wells in Louisiana. Dkt. 19
at 7; Dkt. 26 at 2. Qualls sued Wildhorse in Louisiana state
court (“the underlying suit”). Dkt. 19-1.
Wildhorse instituted the instant suit in Texas state court on
May 16, 2018, seeking a declaration that, under the
parties' Master Service Agreement (“MSA”),
G&C is contractually obligated to defend and indemnify
Wildhorse. Dkt. 19-3 at 5. Specifically, Wildhorse asked the
court to find that the MSA obligates G&C to defend and
indemnify Wildhorse in the underlying suit. Id.
Wildhorse also requested attorney's fees and costs.
Id. On May 23, 2018, during mediation, one of
Wildhorse's insurance carriers settled with Qualls. Dkt.
27 at 34. G&C removed the suit to this court on July 17,
2018. Dkt. 1. Wildhorse filed its motion for partial summary
judgment on March 7, 2019. Dkt. 19.
relevant portions of the MSA are the recitals, choice of law,
and indemnity provisions. The recitals refer to Wildhorse as
the “Company” and G&C as the
“Contractor.” Dkt. 19-2 at 1. Paragraph 24
discusses the parties' choice of law:
a. THIS AGREEMENT WILL BE INTERPRETED UNDER THE LAWS OF THE
STATE OF TEXAS WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW
PRINCIPLES . . . .
b. THE PARTIES RECOGNIZE THAT WORK PERFORMED UNDER THIS
AGREEMENT MAY BE PERFORMED IN MULTIPLE AND VARIOUS
JURISDICTIONS. HOWEVER, THE PARTIES GENERALLY PREFER AND
AGREE THAT, TO THE EXTENT POSSIBLE, THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED CONSISTENTLY IN ACCORDANCE WITH ITS
EXPRESS TERMS AND THAT THE PARTIES' FIRST PREFERENCE OF
THE LAW TO BE APPLIED SHALL BE GIVEN EFFECT IF AT ALL
Id. ¶ 24. Paragraph 8 of the MSA discusses the
parties indemnity obligations. Specifically, paragraph 8(b)
b. Contractor's Indemnity - Personal
Injury. Contractor will release, protect,
Defend, indemnify, and hold harmless Company Group from and
against any and all Claims for personal injury, bodily
injury, illness or death of any member of Contractor Group,
which arise out of, relate to, or are connected with this
Id. ¶ 8(b). Wildhorse owes G&C an identical
indemnity obligation for claims against G&C by any
Wildhorse personnel. See Id. ¶ 8(d). Paragraph
8(f) further provides:
f. Express Negligence. THE RELEASE, DEFENSE
AND INDEMNITY OBLIGATIONS CONTAINED IN SECTIONS 8(b) THROUGH
8(e) SHALL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY . .
. NEGLIGENCE OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, . . .
BUT NOT TO THE EXTENT CAUSED BY OR RESULTING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT . . . . BOTH PARTIES AGREE
THAT THIS STATEMENT COMPLIES WITH THE REQUIREMENT KNOWN AS
THE EXPRESS NEGLIGENCE RULE TO EXPRESSLY STATE IN A
CONSPICUOUS MANNER TO AFFORD FAIR AND ADEQUATE NOTICE THAT
THIS SECTION 8 HAVE [sic] PROVISIONS
REQUIRING ONE PARTY TO BE RESPONSIBLE FOR THE NEGLIGENCE,
STRICT LIABILITY, OR OTHER FAULT OF ANOTHER PARTY.
Id. ¶ 8(f). Finally, the parties included
“SPECIAL PROVISIONS FOR
LOUISIANA” which provide that “[i]f, and
only if, it is determined that the Parties' defense and
indemnity rights and obligations hereunder are subject to the
application of the State of Louisiana's Oilfield
Anti-Indemnity Act, LSA-R.S. 9:2780 (the “LOIA”),
then the provisions of this Section 8(i) shall
apply[.]” Id. ¶ 8(i). Paragraph 8(i)(iii)
states that these provisions “are intended to comply
with the provisions [sic] Marcel v. Placid Oil Co.,
11 F.3d 563 (5th Cir. 1994), ” while paragraph 8(i)(iv)
clarifies that “nothing in this Section 8(i) shall
affect the Parties' choice of law set forth in Section 24
below.” Id. ¶ 8(i).
parties agree that three issues are before the court in
Wildhorse's partial motion for summary judgment: (1)
whether Texas or Louisiana law governs interpretation of
parties' rights under the MSA; (2) whether G&C is
obligated to defend and indemnify Wildhorse in the underlying
suit; and (3) whether Wildhorse qualifies as an additional
insured under G&C's insurance. Compare Dkt.
19 at 7 (setting forth issues before the court),
with Dkt. 26 at 1-2 (same).
judgment is proper only when “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). “[O]n summary judgment, ‘the
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his or her
favor.'” Waste Mgmt. of La., L.L.C. v. River
Birch, Inc., 920 F.3d 958, 972 (5th Cir. 2019) (quoting
Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861,
188 L.Ed.2d 895 (2014) (per curiam)). With regards to this
partial motion for summary judgment, there are no disputed
facts, only legal questions.