UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31271
Summary Calendar
KENNETH R. DEROUEN,
Plaintiff.
versus
TAYLOR ENERGY CO.,
Defendant.
TAYLOR ENERGY CO.,
Third-party Plaintiff-Appellant,
versus
SOUTHWEST FABRICATORS, INC.; RIUNIONE ADRIATICA DI SICURTA; and
ASSICURAZIONI GENERALI, S.P.A.,
Third-party Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(Civ. No. 6:95-1110)
July 10, 1997
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Taylor Energy Co. appeals from the district court’s entry of
judgment for third-party defendants Southwest Fabricators, Riunione
Adriatica Di Sicurta, and Assicurazioni Generali S.P.A.
(collectively “the Defendants”) on Taylor’s indemnity claim.
Taylor had moved for summary judgment claiming an absence of
genuine issues of material fact as to the application of the
Louisiana Oilfield Anti-Indemnity Act (LOAIA). While the
Defendants opposed the motion, they did not file their own cross-
motion for summary judgment. The district court nevertheless
determined that judgment should be entered in favor of the
Defendants and that Taylor would not be prejudiced thereby. Taylor
asserts that the court’s entry of summary judgment was
inappropriate for three reasons: the court’s construction of the
LOAIA was incorrect; there was insufficient evidence in the record
for its conclusion; and the court improperly entered summary
judgment sua sponte.
We first consider whether the district court erred in
concluding the contract “pertained to a well,” thereby making
applicable the anti-indemnity provisions of Louisiana law. The
LOAIA renders void indemnity agreements which protect the principal
against its own fault at the expense of a contractor if the
indemnity provisions are part of an agreement pertaining to an oil
or gas well. La. Rev. Stat. Ann. § 9:2780(A). The question of
whether a contract “pertains to a well” is no stranger to us,
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having been the subject of numerous cases. E.g., Transcontinental
Gas Pipeline Corp. v. Transportation Ins. Co., 953 F.2d 985 (5th
Cir. 1992). The district court determined that the LOAIA applied
for a number of reasons, one of them being on authority of our
decision in Broussard v. Conoco, Inc., 959 F.2d 42 (5th Cir. 1992).
Broussard involved a contract to provide food service to production
workers on a platform adjacent to a production platform. We
concluded that the purpose of the contract was to sustain manpower
for production, thereby supplying the required “functional nexus.”
Id. at 44-45. Here, likewise, Southwest provided employees who
performed work on the platform’s living quarters. Our recent
decision in Roberts v. Energy Dev. Corp., 104 F.3d 782 (5th Cir.
1997), bolsters our conclusion. We held in Roberts that a contract
to provide safety equipment on a platform “pertained to a well”
because it assisted in sustaining the manpower and equipment on the
site. The record here indicates that Southwest employees worked on
the platform’s fire water protection system. We agree with the
district court that the LOAIA renders unenforceable the indemnity
provision of Taylor’s contract with Southwest.
Taylor also argues that, regardless of the district court’s
construction of the LOAIA, it erred by assuming facts not in
evidence. The Key is the question of whether the information
contained on the delivery tickets indicates that Southwest
performed the work the district court found it did. Having
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reviewed this evidence, we conclude the district court did not err
in relying upon it.
Taylor finally complains it had no notice that the district
court was prepared to consider summary judgment in favor of the
Defendants and that its consequent granting of judgment was
improper. A district court need not wait for the filing of a
cross-motion under Rule 56 before entering a summary judgment in
favor of a non-movant. See McCarty v. United States, 929 F.2d
1085, 1088 (5th Cir. 1991); Jensen v. Snellings, 841 F.2d 600, 618
(5th Cir. 1988); 10A Wright, Miller & Kane, Federal Practice and
Procedure § 2720 (“the practice of allowing summary judgment to be
entered for the nonmoving party in the absence of a formal cross-
motion is appropriate” and “in keeping with the objective of Rule
56 to expedite the disposition of cases.”) A court must be careful,
however, that the original movant has had an adequate opportunity
to show that there is a genuine issue and that the non-movant is
not entitled to judgment as a matter of law. Id. Because Taylor’s
motion centered on the applicability of the LOAIA and the court
granted judgment on that same issue, there can be no question that
Taylor was in any way prejudiced. Taylor’s reliance upon our
decision in Washington v. Resolution Trust Corp., 68 F.3d 935, 939
(5th Cir. 1995), is misplaced. In that case the district court
entered a summary judgment on an issue that the losing party was
not prepared to address. Here, by contrast, the issue ruled upon
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was the same one briefed by Taylor in its own motion. The issue
was properly before the court and ripe for adjudication.
For these reasons, we affirm the district court’s grant of
summary judgment in favor of the Defendants on Taylor’s indemnity
claim.
AFFIRMED.
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