Total Safety Escapes Duty of Indemnification in Negligent Crane Accident
GulfCrane Servs. v. Total Safety U.S., Inc., No. H-17-1343, 2019U.S. Dist. LEXIS 162057, 2019 WL 4603753 (S.D. Tex. Aug. 22, 2019).
By: Stephanie Stafford
Total Safety entered two Master Services Contracts(MSCs): one in 2005 with MOGL and MSA OWNER (the “2005 MSA”) and a second inApril 2013 with PXP (the “2013 MSC”). In May 2013, a merger between FMI and PXP,which created FMOG as a subsidiary, became effective.
In June 2015, Maillet and other crew members wereinjured while being transported from a platform operated by FMI, FMOG, and/orCDPS to a vessel via a crane-mounted personnel basket owned and operated byGulf Crane. In 2016, Maillet filed a lawsuit against Gulf Crane, FMI, FMOG, andCDPS claiming that their negligence lead to his injury.
In response to the Maillet Lawsuit, Gulf Crane andCDPS requested that Total Safety defend and indemnify them pursuant to the 2005MSA and the 2013 MSC. Total Safety denied the requests and filed this lawsuitseeking a declaratory judgment to deny indemnification for Gulf Crane or CDPS pursuantto the alleged negligence in the Maillet Lawsuit.
The 2013 MSC and the 2005 MSA were entered into by differentparties, so one did not supersede and replace the other. Therefore, the courthad to decide which contract applied to the work Maillet performed at the timeof injury. Both contracts provided that work may be requested through either awritten work order or a verbal request; however, the 2013 MSC required awritten work order to follow the verbal request. As Maillet’s injury occurred whileperforming work requested via verbal request only, the 2005 MSA was theapplicable contract.
The 2005 MSA did not include an express provision forthe indemnification of negligent acts. Thus, Total Safety was not required todefend or indemnify Gulf Crane or CDPS for the negligence alleged in theMaillet lawsuit.
