Brunswick Cellulose, Inc. v. Rogers Cartage Co. , 364 F. App'x 592 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13898 ELEVENTH CIRCUIT
FEB 08, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D.C. Docket No. 08-00087-CV-AAA-2
BRUNSWICK CELLULOSE, INC.,
Plaintiff-Appellant,
versus
ROGERS CARTAGE COMPANY,
CONTINENTAL CASUALTY COMPANY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 8, 2010)
Before BLACK, PRYOR and COX, Circuit Judges.
PER CURIAM:
Brunswick Cellulose, Inc. appeals the grant of summary judgment to Rogers
Cartage Company and Continental Casualty Company. Brunswick Cellulose also
appeals the denial of its motion for summary judgment. We affirm.
In 2000, Georgia-Pacific Corporation, a non-party, entered into a carriage
agreement with Rogers. The contract called for Rogers to deliver freight to and from
a mill operated by the Brunswick Pulp & Paper Company, which was a wholly owned
subsidiary of Georgia-Pacific. The contract required Rogers to assume all risks and
to indemnify Georgia-Pacific from all losses arising out of Rogers’ performance
under the contract. It also required Rogers to obtain liability insurance, and to “cause
[Georgia-Pacific] to be named as an additional insured” on the policy. (R.2-30, Ex.
A App. A.) The contract between Rogers and Georgia-Pacific covered “all of the
direct or indirect subsidiaries and affiliates of Georgia-Pacific Corporation.” (Id. Ex.
A at 1.) At the time of its execution, Brunswick Pulp & Paper Company was covered
under the contract as a subsidiary of Georgia-Pacific. Each year, the contract
renewed automatically unless one of the parties cancelled the agreement, and the
contract provided that it could not be assigned without the consent of either party.
In 2004, Koch Cellulose, LLC, acquired Brunswick Pulp & Paper Company
from Georgia-Pacific. A purchase agreement between Georgia-Pacific and Koch
stated that the carriage agreement was an “excluded asset,” meaning Koch did not
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acquire rights under the carriage agreement when it purchased Brunswick Pulp &
Paper Company. (R.2-30 Ex. C Part 2 at 52.)
Shortly after it acquired Brunswick Pulp & Paper Company, Koch renamed it
Brunswick Cellulose, Inc. Over the next several years, Brunswick Cellulose and
Rogers continued to do business with one another; Rogers delivered freight to and
from the Brunswick mill site and accepted payment for its services. However,
Brunswick Cellulose and Rogers did not execute a written carriage agreement from
2004, when Koch acquired Brunswick Cellulose, until 2007.
In 2005, after Koch acquired Brunswick Cellulose but before a new written
carriage agreement was executed, Charles E. Bell, a truck owner and operator
working for Rogers was injured while making a delivery at the Brunswick Cellulose
mill. Bell filed a lawsuit against Koch and Brunswick Cellulose in the Superior Court
of Glynn County, Georgia. Brunswick Cellulose asked Rogers to defend and
indemnify it against Bell’s claims, but Rogers refused. The action remains pending
in the Georgia superior court.
Invoking the court’s diversity jurisdiction, Brunswick Cellulose sued Rogers
in the U.S. District Court for the Southern District of Georgia for breach of contract
arising out of Rogers’ refusal to defend and indemnify Brunswick Cellulose in Bell’s
case. Brunswick Cellulose also sued Continental, Rogers’ insurer, for bad faith
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refusal to defend and indemnify. All parties moved the district court for summary
judgment. The court granted Rogers’ and Continental’s motions, and denied
Brunswick Cellulose’s motion because the court concluded Rogers and Continental
had no contractual obligations to Brunswick Cellulose under the May 2000 carriage
agreement. (R.5-61 at 7.) Brunswick Cellulose appeals.
Brunswick Cellulose contends that it is entitled to indemnification and defense
in the Bell action because (1) it was an original party to the 2000 carriage agreement
between Georgia-Pacific and Rogers; and/or (2) Rogers’ conduct and course of
dealings with Brunswick Cellulose after the Koch acquisition ratified the carriage
agreement. We reject both of these arguments.
We conclude Brunswick Cellulose had no rights under the 2000 carriage
agreement at the time the incident giving rise to the Bell action occurred. Under
Georgia law, a contract may be enforced “by the person in whom the legal interest in
the contract is vested.” Harris v. Joseph B. English Co., 63 S.E.2d 346, 347 (Ga.
App. 1951). A third party beneficiary may enforce a contract if its terms indicate that
the contract was intended for his or her benefit. Id. Brunswick Cellulose was neither
a named party to nor a named beneficiary of the 2000 carriage agreement. The
agreement created rights and obligations for Rogers and for Georgia-Pacific and its
subsidiaries. (R.2-30 Ex. A at 1.) The carriage agreement applied to Brunswick Pulp
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& Paper Company only so long as it remained a subsidiary of Georgia-Pacific. Once
Koch acquired Brunswick, it could no longer claim any benefits under the contract.
Any questions as to whether the rights and obligations of the carriage agreement
transferred to Koch and the newly renamed Brunswick Cellulose as part of the
acquisition are resolved by a review of the terms of the purchase agreement between
Koch and Georgia-Pacific. It lists the carriage agreement as an excluded asset. So,
after the acquisition, the rights and obligations of the carriage agreement remained
with Georgia-Pacific and its subsidiaries; the contract ceased to be effective as to
Brunswick Cellulose.
After Koch acquired Brunswick Pulp & Paper Company and renamed it
Brunswick Cellulose, Rogers continued to deliver freight to and from the Brunswick
mill. But, Rogers and Brunswick Cellulose did not execute a formal carriage
agreement until 2007. We have no reason to conclude that between 2004 and 2007,
Brunswick Cellulose and Rogers agreed that Rogers would indemnify or defend
Brunswick Cellulose for losses arising from their business dealings. While in 2004
Brunswick Cellulose asked that Rogers name it as a beneficiary on its insurance
policies, Rogers did not respond to this request. Nor did it expressly or implicitly
assent to defend or indemnify Brunswick Cellulose prior to the execution of a formal
carriage agreement in 2007. The incident giving rise to the Bell action occurred when
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neither Rogers nor its insurer were under any obligation to indemnify or defend
Brunswick Cellulose. Therefore, the district court correctly concluded that both
defendants are entitled to summary judgment, and it did not err in dismissing
Brunswick Cellulose’s lawsuit.
AFFIRMED.
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