Case: 13-31281 Document: 00513128507 Page: 1 Date Filed: 07/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-31281
Fifth Circuit
FILED
July 24, 2015
JOSEPH R. WILCOX; LISA WILCOX, Lyle W. Cayce
Clerk
Plaintiffs–Appellants
v.
WILD WELL CONTROL, INCORPORATED; SUPERIOR ENERGY
SERVICES, INCORPORATED,
Defendants–Appellees
---------------------------------------------------------------------------------------------------------
Cons. with 14-30137
JOSEPH R. WILCOX; LISA WILCOX,
Plaintiffs–Appellants
v.
MAX WELDERS, L.L.C.,
Defendant–Appellee
WILD WELL CONTROL, INCORPORATED; SUPERIOR ENERGY
SERVICES, INCORPORATED,
Defendants–Appellees–Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
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Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
This appeal arises from injuries sustained by Plaintiff–Appellant Joseph
R. Wilcox while welding on an offshore platform. Wilcox, an employee of
Defendant–Appellee Max Welders, L.L.C., was working as the borrowed
employee of Defendant–Appellee–Appellant Wild Well Control, Incorporated,
a subsidiary of Defendant–Appellee–Appellant Superior Energy Services,
Incorporated. Wilcox sued the Defendants under, inter alia, the Jones Act.
Superior and Wild Well filed a cross-claim for indemnity from Max Welders
pursuant to a Master Service Agreement (MSA) or, in the alternative, Vessel
Boarding, Utilization and Hold Harmless Agreement (VBA) between Superior
and Max Welders. The district court granted summary judgment to all
Defendants on the Jones Act claims because it found that Wilcox is not a Jones
Act seaman and granted summary judgment to Max Welders on indemnity
because 1) the MSA was void under Louisiana law and 2) the VBA did not
apply to Wilcox’s work. Wilcox, Superior, and Wild Well appeal these decisions.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Max Welders is a contractor that provides various offshore construction,
fabrication, and repair services. Max Welders employed Wilcox as a welder.
During his employment with Max Welders, Wilcox worked in numerous
locations, including a fabrication yard in Louisiana and on various rigs, barges,
and vessels owned by Max Welders’ customers. Wilcox concedes that during
his entire employment with Max Welders, he spent less than thirty percent of
his time in service of any one vessel or group of vessels.
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Energy Resource Technology GOM, Incorporated (ERT) hired Wild
Well—a subsidiary of Superior—to decommission a well in the Gulf of Mexico
(“the ERT job”). Wild Well contracted with Max Welders to provide welders to
assist. Wilcox was one of the welders sent to work on the ERT job, which was
expected to last for approximately two months. During this time, Wilcox was
required to live on Wild Well’s barge, the D/B SUPERIOR PERFORMANCE,
which was on site at the well to provide support to the decommissioning work.
Superior previously owned the D/B SUPERIOR PERFORMANCE. Wilcox
allegedly sustained injuries on June 5, 2012, when gasses exploded while he
was welding inside on the well platform. Wild Well concedes that, at the time
of the accident, Wilcox was its borrowed employee.
Wilcox and his wife sued Max Welders, Superior, and Wild Well for
negligence under the Jones Act, 46 U.S.C § 30104, and general maritime law
(GML), or alternatively for vessel negligence against the D/B SUPERIOR
PERFORMANCE under the Longshore and Harbor Workers’ Compensation
Act (LHWCA), 33 U.S.C. § 905(b). Superior and Wild Well jointly filed a cross-
claim alleging that Max Welders had agreed to indemnify and hold harmless
Superior and its subsidiaries against any personal-injury claims brought by
Max Welders’ employees pursuant to the 2004 MSA between Max Welders and
Superior. They argued, in the alternative, that Max Welders owed them
indemnity pursuant to a 2010 VBA between Superior and Wild Well.
Max Welders moved for summary judgment on Wilcox’s Jones Act and
GML claims, asserting that Wilcox was not a seaman. Max Welders also moved
for summary judgment on Superior and Wild Well’s indemnity cross-claim,
contending that the MSA and VBA did not provide indemnity for Wild Well’s
demolition work for a third party. Superior and Wild Well then filed a cross-
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motion for summary judgment on their indemnity claims. The district court
granted summary judgment to Max Welders on Wilcox’s Jones Act and GML
claims as well as on Superior and Wild Well’s indemnity claims.
Superior and Wild Well later moved for summary judgment on Wilcox’s
Jones Act and GML claims, arguing that if Wilcox was not a seaman with
respect to his employer, Max Welders, he was also not a seaman with respect
to his borrowing employer, Wild Well. The district court granted this motion.
The district court later granted summary judgment to Superior and Wild Well
on Wilcox’s remaining claims for vessel negligence under the LHWCA.
These consolidated cases encompass two appeals. First, Wilcox appeals
the grant of summary judgment for Wild Well on Wilcox’s Jones Act and GML
claims based on his seaman status. 1 Second, Wild Well and Superior appeal
the grant of summary judgment for Max Welders on indemnity.
II. DISCUSSION
This Court has jurisdiction to review a district court’s final judgment
pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of
summary judgment, viewing “all facts and evidence in the light most favorable
to the non-moving party.” Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d
431, 433 (5th Cir. 2013). We apply the same standard as the district court in
the first instance. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007).
Summary judgment is appropriate “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). A genuine dispute of material fact
1 Wilcox does not appeal the grant of summary judgment on his LHWCA claims.
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exists when the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
A. Wilcox’s Jones Act Claims
The district court granted summary judgment for Wild Well and
Superior because it found that Wilcox was not a Jones Act seaman. The
Supreme Court has articulated a two-prong test to determine seaman status
under the Jones Act: 1) “an employee’s duties must ‘contribut[e] to the function
of the vessel or to the accomplishment of its mission,’” and 2) “a seaman must
have a connection to a vessel in navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its duration and its nature.”
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (quoting McDermott Int’l, Inc.
v. Wilander, 498 U.S. 337, 355 (1991)).
At issue in this appeal is the substantial-connection prong. 2 The
“fundamental purpose” of this inquiry “is to . . . separate the sea-based
maritime employees who are entitled to Jones Act protection from those land-
based workers who have only a transitory or sporadic connection to a vessel in
navigation.” Id. at 368. “Land-based maritime workers do not become seamen
because they happen to be working on board a vessel when they are injured,
and seamen do not lose Jones Act protection when the course of their service
to a vessel takes them ashore.” Id. at 361. Following Barrett v. Chevron U.S.A.,
Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), we have generally “declined to
find seaman status where the employee spent less than 30 percent of his time
2The district court found a genuine issue of material fact regarding the contribution
prong. Wild Well does not contest this finding.
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aboard ship.” Chandris, 515 U.S. at 367. The Supreme Court deemed this “an
appropriate rule of thumb,” but noted that “departure from it will certainly be
justified in appropriate cases.” Id. at 371.
Generally, the status of an employee who splits time between land and
a vessel is “determined in the context of his entire employment with his current
employer.” Barrett, 781 F.2d at 1075 (internal quotation marks omitted); see
also Chandris, 515 U.S. at 370–71. But if the employee “receives a new work
assignment before his accident in which either his essential duties or his work
location is permanently changed, he is entitled to have the assessment of the
substantiality of his vessel-related work made on the basis of his activities in
his new job.” Barrett, 781 F.2d at 1075–76 (emphasis added); see also Chandris,
515 U.S. at 371–72 (“[W]e see no reason to limit the seaman status inquiry . .
. exclusively to an examination of the overall course of a worker’s service with
a particular employer. When a maritime worker’s basic assignment changes,
his seaman status may change as well.”). This reassignment exception applies
only when an employee has “undergone a substantial change in status, not
simply [by] serv[ing] on a boat sporadically.” Becker v. Tidewater, Inc., 335 F.3d
376, 389 (5th Cir. 2003) (emphasis added).
We addressed the Barrett reassignment exception in a borrowed-
employee context similar to Wilcox’s in New v. Associated Painting Services,
Inc., 863 F.2d 1205 (5th Cir. 1989). 3 The plaintiff worked for a painting
company that sent employees to offshore drilling rigs and oil platforms. Id. at
1207. The employee was regularly assigned to different vessels owned by
Although New was decided before the Supreme Court’s seminal decision in Chandris,
3
we applied the Robison seaman-status test, which the Court “essentially accepted” in
Chandris. Nunez v. B&B Dredging, Inc., 288 F.3d 271, 274–75 (5th Cir. 2002). Thus, New
remains binding. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
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unrelated entities. Id. One week into an assignment to a drilling rig as a
borrowed employee, the plaintiff sustained injuries in an accident. Id. The
employee argued that he was a seaman with regard to the painting company
and the borrowing employer. Id. Although he did not satisfy the thirty-percent
requirement based on his entire employment with the painting company, the
employee asserted that the court should look only to the time he worked for
the borrowing employer because as a matter of law, he contended, the Barrett
exception applied to his work as a borrowed employee. Id. at 1208–09. We held
1) that the plaintiff’s status as a borrowed employee did not make him a Jones
Act seaman; and 2) that because the summary-judgment evidence showed no
permanent change to his essential work duties or work location, his status
must be determined by looking to his entire employment with the painting
company. Id. 4
Wilcox argues that the district court erred in its substantial-connection
analysis by refusing to determine Wilcox’s status by reference to his period of
employment with Wild Well, rather than his entire employment with Max
Welders. 5 Wilcox disclaims reliance on the Barrett exception, and for good
4 We followed a similar analysis in a post-Chandris case. In Becker v. Tidewater, Inc.,
335 F.3d 376 (5th Cir. 2003), we refused to apply the reassignment exception to a land-based
worker temporarily reassigned to a vessel. Id. at 390–91.
5 Wilcox devotes a substantial portion of his brief to arguing that the district court
granted summary judgment based on dictum from New v. Associated Painting Services, Inc.,
1987 WL 4944 (E.D. La. May 8, 1987). He suggests that the New district court created, and
the district court in this case applied, a per se rule that a borrowed employee’s seaman status
must always be determined by looking at the time spent working for the original employer.
This argument mischaracterizes the district court’s summary-judgment analysis in
this case. The district court carefully analyzed and applied our New opinion, which affirmed
the lower court. Wilcox also ignores the context of the summary-judgment order: in its prior
order granting summary judgment to Max Welders, the district court had already addressed
the argument that Wilcox’s status should be determined based on the time spent as Wild
Well’s borrowed employee. When the district court disposed of Wild Well’s summary
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reason—there is no evidence in the record to support application of the
reassignment exception in this case. Wilcox’s case presents facts that are
strikingly similar to those in New. Like the borrowed employee in New, Wilcox
was not permanently reassigned to work on Wild Well’s vessel—the project
was expected to last for approximately two months. Nor did his essential duties
change—his primary duty continued to be welding. Wilcox does not point to
any evidence suggesting a “fundamental change in status,” Becker, 335 F.3d at
390, which would allow us to assess the substantial-relation prong with sole
reference to Wilcox’s time as a borrowed employee with Wild Well.
Conceding that the Barrett exception does not apply here, Wilcox instead
asserts that he “started a new job with a new employer when he began work
as Wild Well’s borrowed employee,” making Wild Well his “current employer,”
Chandris, 515 U.S. at 366, for the purposes of the seaman-status inquiry.
Thus, Wilcox concludes, he has satisfied the substantial-connection prong
because he spent more than thirty percent of his time with Wild Well aboard a
vessel. He concedes that there is no direct support for this conclusion but
argues that it is “suggested” by other pre-Chandris cases that recognize that a
borrowed employee can become a seaman with regard to his borrowing
employer. We decline to adopt such a rule.
The Supreme Court has recognized that in determining seaman status,
“it [is] preferable to focus upon the essence of what it means to be a seaman
and to eschew the temptation to create detailed tests to effectuate the
congressional purposes, tests that tend to become ends in and of themselves.”
Id. at 369. Our thirty-percent rule and the Barrett reassignment exception
judgment motion, the only remaining question was “whether the seaman status finding that
was made with respect to Max Welders should also be applied to Wild Well.”
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“get[] at the . . . basic point [that] [t]he Jones Act remedy is reserved for sea-
based maritime employees whose work regularly exposes them to the special
hazards and disadvantages to which they who go down to sea in ships are
subjected.” Chandris, 515 U.S. at 370 (internal quotation marks omitted). We
do not here adopt a bright-line rule that courts performing the seaman-status
inquiry must always look to an employee’s entire employment with his nominal
employer rather than his borrowing employer. 6 Nevertheless, we also decline
to adopt a rule that borrowed-employee status automatically requires courts
look only to his period of employment with the borrowing employer. 7
Wilcox supports his argument with Roberts v. Williams–McWilliams Co.,
648 F.2d 255 (5th Cir. 1981), in which this Court held that a borrowed
employee was a seaman with regard to his borrowing employer. See id. at 262.
In Roberts, we found “no reason to distinguish [the plaintiff] because he
received his paycheck from the [nominal employer].” Id. at 262. There, the
employee was under the complete control of the borrowing employer; he was
sent to work on the vessel for an indefinite period of time and was expected to
remain on the vessel until the completion of the project. Id. Importantly, the
employee was assigned to work for the borrowed employer on his second day of
work for the nominal employer. Id. at 257–58. Thus, the distinction at issue
6 Such a rule would enable employers to contract around Jones Act rights. See Spinks
v. Chevron Oil Co., 507 F.2d 216, 225 (5th Cir. 1975) (rejecting a rule that would “result in
defeating Jones Act rights through contractual manipulations”), overruled on other grounds
by Gautreaux v. Scurlack Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
7 Such a rule would be inconsistent with our reasoning in New—in which, after finding
that the Barrett exception did not apply, we concluded that the district court “applied the
proper legal standard” by reviewing the borrowed employee’s entire employment with his
nominal employer. 863 F.2d at 1208–09. Such a rule would also result in workers walking
“into and out of [Jones Act] coverage in the course of his regular duties.” See Chandris, 515
U.S. at 363.
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here—entire period of employment versus period of employment with the
borrowing employer—was inconsequential in Roberts.
Here, there is good reason to distinguish Wilcox from Wild Well’s
permanent employees. While employed by Max Welders, Wilcox worked for 34
different customers on 191 different jobs, both offshore and onshore. He was
assigned to work for Wild Well on the D/B SUPERIOR PERFORMANCE for
one specific project, which had a clear end date only two months after it began.
Moreover, testimony indicates that, although crew would usually stay on a
vessel for an entire job, they could request relief and leave the vessel before the
job was complete.
Focusing on the “essence of what it means to be a seaman,” Chandris,
515 U.S. at 369, we cannot say Wilcox demonstrated a genuine issue of
material fact from which a reasonable jury could conclude that he qualifies for
seaman status under the Jones Act. Therefore, we affirm the district court’s
grant of summary judgment to Wild Well on Wilcox’s Jones Act claims.
B. The Indemnity Cross-Claims
We now turn to the district court’s grant of summary judgment to Max
Welders on Superior and Wild Well’s indemnity claims. Because we affirm
summary judgment on Wilcox’s remaining claims against all Defendants, we
need only address Max Welders’ liability for defense costs. Superior and Wild
Well filed a cross-claim for indemnity from Max Welders pursuant to the MSA
or, in the alternative, the VBA between Superior and Max Welders.
1. The MSA
The MSA that Max Welders and Superior entered into in April 2004
contains an indemnity-and-defense provision. The district court assumed
without deciding that the MSA applied to Wilcox’s work and held the MSA’s
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“obligations to defend [or] indemnify . . . are void and unenforceable” under the
Louisiana Oilfield Anti-Indemnity Act (LOAIA).
Superior and Wild Well argue that this was error with reference to two
key cases. In Meloy v. Conoco, Inc., 504 So. 2d 833 (La. 1987), the Louisiana
Supreme Court made clear that the LOAIA “does not apply where the
indemnitee is not negligent or at fault,” id. at 839. Thus, “the indemnitor’s
obligation for cost of defense cannot be determined until there has been a
judicial finding that the indemnitee is liable or that the charges against it were
baseless.” Id. In Melancon v. Amoco Production Co., 834 F.2d 1238 (5th Cir.
1988), we affirmed summary judgment for a borrowing employer on an
employee’s LHWCA claim. Id. at 1247–48. Applying Meloy, we held that the
district court erred in finding that the LOAIA voided the borrowing employer’s
indemnity agreement with the nominal employer and awarded the borrowing
defense costs. Id. at 1248.
Max Welders argues that Wild Well and Superior have waived their
argument that they are entitled to attorneys’ fees under Meloy and Melancon
because they did not present this argument to the district court. Superior and
Wild Well counter that they could not raise their argument because they “were
not conclusively determined to be ‘not negligent’” until the district court
dismissed Wilcox’s final claim against them on February 14, 2014, “after the
district court’s Scheduling Order deadline” for pretrial motions.
“An argument not raised before the district court cannot be asserted for
the first time on appeal.” XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd.,
513 F.3d 146, 153 (5th Cir. 2008) (citing Stokes v. Emerson Elec. Co., 217 F.3d
353, 358 n.19 (5th Cir. 2000)). A party preserves an argument only if it is
“raised to such a degree that the trial court may rule on it.” Id. (quoting Butler
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Aviation Int’l, Inc. v Whyte (In re Fairchild Aircraft Corp.), 6 F.3d 1119, 1128
(5th Cir. 1993)), abrogated on other grounds by Tex. Truck Ins. Agency, Inc. v.
Cure (In re Dunham), 110 F.3d 286 (5th Cir. 1997).
Superior and Wild Well did not have to wait for a conclusive
determination of their liability to raise Meloy and Melancon. In its indemnity
motion for summary judgment, Max Welders argued that the MSA’s indemnity
agreement was void under the LOAIA. Superior and Wild Well filed a cross-
motion for summary judgment, but only argued that the LOAIA did not govern
the MSA because it did not “pertain to a well.” They could have argued in their
opposition that Meloy and Melancon precluded the district court from
determining the validity of the indemnity provision before liability was
determined, but they did not. 8 Because Wild Well and Superior failed to raise
the Meloy–Melancon argument at the summary-judgment stage, we conclude
that they have waived the argument on appeal. See Provident Life & Accident
Ins. Co. v. Goel, 274 F.3d 984, 990 n.11 (5th Cir. 2001) (“As a general rule,
arguments . . . not presented in the district court in connection with a summary
judgment motion are waived on appeal and the appellate court will be unable
to consider these materials in its review of the district court’s decision.”
(quoting in a parenthetical 11 James Wm. Moore et al., Moore’s Federal
Practice ¶ 56.41[3][c] (3d ed. 1997))).
8 Superior and Wild Well did cite to Meloy in the law section of their cross-motion for
summary judgment on indemnity, noting that “[i]f the LOAIA applies to the Superior/Max
MSA, then the defense, indemnity and insurance provisions will be void as a matter of public
policy if there is any negligence on the part of Superior/Wild Well.” (citing Meloy, 504 So. 2d
833). However, in the pertinent section of their brief, they only argue that the LOAIA does
not apply because the agreement does not pertain to a well. This was most likely a strategic
choice: because they also sought summary judgment on indemnity, the Meloy–Melancon issue
could have precluded summary judgment in their favor.
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Because Superior and Wild Well have waived their argument for
attorneys’ fees based on Melancon and Meloy, we affirm the district court’s
summary-judgment holding that the MSA was void under the LOAIA.
2. The VBA
Superior and Wild Well also argue that they are entitled to defense costs
and indemnity under the Vessel Boarding, Utilization and Hold Harmless
Agreement (VBA) between Superior and Max Welders. 9 The district court
rejected this argument, but it did not distinguish between indemnity for Wild
Well and indemnity for Superior in its analysis. After concluding that the VBA
did not apply to Wild Well, the district court granted summary judgment to
Max Welders against both Wild Well and Superior. We address each indemnity
issue in turn.
The VBA states it was “executed by Contractor [Max Welders] for the
purpose of obtaining access from Owner [Superior] to vessels owned, chartered
and/or operated by Owner . . . in order to allocate the risks and liabilities
arising out of Owner granting to Contractor such access.” It further provides:
Contractor agrees to defend, indemnify and hold Owner harmless
from and against any claims, losses, or demands of any kind
arising as a result of personal injury, death or disease, that may
be asserted by Contractor . . . or on behalf of any of its or their
employees . . . no matter how occasioned . . . .
a. Indemnity for Wild Well
Before the district court, Superior and Wild Well argued that the VBA
was intended as an addendum to the MSA that provided indemnity in
9 Max Welders points out that the VBA is not countersigned by Superior, and argues
“[t]his alone renders the VBA inapplicable.” However, it cites no authority for this
proposition. We find this argument to be inadequately briefed and abandoned. See Fed. R.
App. P. 28(a)(8); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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connection with the D/B SUPERIOR PERFORMANCE, regardless of whether
it was owned by Wild Well or Superior. 10 They conceded that the plain
language of the agreement did not reflect this intent, but argued, based on
parol evidence, that the VBA should be reformed to reflect that intent. They
asserted that because this was a reformation issue, rather than an ambiguity
issue, the parol evidence could be considered. The district court found the
contract to be unambiguous and found the defendant’s reformation argument
to be an “end-run” around the parol evidence rule. On appeal, Superior and
Wild Well raise nearly identical arguments.
“Reformation is an equitable remedy used to correct errors or mistakes
in contracts.” Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 287
(5th Cir. 2009) (internal quotation marks omitted). The party seeking
reformation bears the burden of establishing mutual error in the contract’s
creation. Id. Ordinarily the party must only show mistake by a preponderance
of the evidence; but when a party seeks to reform a provision “to provide
coverage for a ‘substantially different and greater risk’ than expressly covered,
the party must demonstrate a mutual error by clear-and-convincing evidence.”
Id. at 287 n.4 (quoting Samuels v. State Farm Mut. Auto. Ins. Co., 939 So. 2d
1235, 1240 (La. 2006)).
In American Electric Power Co. v. Affiliated FM Insurance Co., we
interpreted an insurance agreement that had been adopted by the defendant
insurance company through a “prior loss” clause in its coverage agreement
with the plaintiff. Id. at 284–85. The clause obligated the defendant to cover a
loss if the prior insurance agreement did. Id. The prior agreement covered
10 Superior owned the D/B SUPERIOR PERFORMANCE when the VBA was signed
in 2010 but transferred the vessel to Wild Well in 2011, prior to Wilcox’s injury.
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losses for the company and “any subsidiary corporation now existing or
hereafter created or acquired.” Id. at 285. The question was whether this
provision covered subsidiary LLCs. Id. Before the district court, the plaintiff
sought to introduce affidavits from the original parties to the agreement
evincing that they intended to include LLCs in the coverage. Id. The district
court, granting summary judgment for the defendant insurance company,
found that “corporation” was unambiguous and, therefore, “struck the
affidavits as impermissible parol evidence.” Id. The plaintiff company filed a
Rule 59(e) motion seeking reformation to match the original intent of the
parties; the district court denied the motion. Id.
This Court agreed that “corporation” was unambiguous and parol
evidence was properly excluded. Id. at 286–87. We also affirmed the refusal to
reform the agreement in part because “the use of the term ‘corporation’ is not
the type of ‘error’ that reformation is intended to remedy.” Id. at 288. We noted
that the plaintiff “argue[d] that the original parties had a broader-than-usual
meaning in mind when they purposefully included the word. In effect, [the
plaintiff] attempt[ed] to make an end-run around the parol-evidence rule by
framing its argument as a request for reformation.” Id.
American Electric defeats Superior and Wild Well’s reformation
argument. The VBA defines “Owner” as “Superior Energy Services, L.L.C.”
There is nothing ambiguous about this term, which Superior and Wild Well
now contend must be read to include all companies affiliated with Superior.
The agreement clearly covers “vessels owned, chartered and/or operated by”
Superior.” As in American Electric, the parties seek to use parol evidence to
show “the original parties had a broader-than-usual meaning in mind when
they purposely included the word,” id. Moreover, there is absolutely nothing in
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the agreement that even suggests it is meant as an addendum to the MSA, a
document executed six years prior.
Superior and Wild Well argue that American Electric is distinguishable
because “reformation of the contract at issue [in that case] would have been to
the detriment of a third party.” It is true that part of our reasoning in that case
was that the requested reformation would hurt a third party. See id. at 287–
88. But Superior and Wild Well do not explain how the alleged mistake—a
failure to include language in the contract indicating that “Owner” referred not
just to Superior, but also to any subsidiary it sold a vessel to—is “the type of
‘error’ that reformation is intended to remedy,” id. at 288. To allow Superior
and Wild Well, in spite of unambiguous contract language, to introduce
affidavits of its employees to show that the agreement was meant to include
Wild Well and serve as an addendum to the MSA would most certainly be “an
end-run around the parol-evidence rule . . . fram[ed] . . . as a request for
reformation,” id.
b. Indemnity for Superior
Superior also argues that even if the VBA does not provide for Wild
Well’s defense costs, “Superior had to defend itself in this case against
allegations that it was negligent as the owner of the D/B SUPERIOR
PERFORMANCE.” Therefore, Superior argues, it is entitled to defense costs
for defending against these allegations. We disagree.
The opening paragraph of the VBA states that it was “executed by
Contractor [Max Welders] for the purpose of obtaining access from Owner
[Superior] to vessels owned, chartered and/or operated by Owner, to provide
employees of Contractor with working, living or operating support aboard the
vessels of Owner, and in order to allocate the risks and liabilities arising out
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Case: 13-31281 Document: 00513128507 Page: 17 Date Filed: 07/24/2015
No. 13-31281
of Owner granting to Contractor such access.” This statement makes clear that
the risks and liabilities that are the subject of the VBA are those that arise out
of Superior allowing Max Welders’ employees to live, work, and operate aboard
vessels that are owned and/or operated by Superior. Reading the indemnity
provision’s coverage for “claims . . . asserted . . . on behalf of [Max Welders’]
employees” in the context of the VBA’s opening language, it is clear that the
parties only intended indemnity for claims of employees that had access to
Superior’s vessels. There was no Superior-owned vessel involved in Wilcox’s
injury, and therefore the VBA does not provide for defense costs. The
unambiguous language of the VBA does not show that the parties intended it
to cover any suit in which a Max Welders employee mistakenly or frivolously
claims that a vessel was owned by Superior.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment as to Wilcox’s Jones Act claims and Superior and Wild
Well’s indemnity claims.
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