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Dinh v. American Freedom Vessel , 155 F. App'x 137 ( 2005 )


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  •                                                            United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    November 17, 2005
    FOR THE FIFTH CIRCUIT
    _____________________                  Charles R. Fulbruge III
    Clerk
    No. 04-31243
    Summary Calendar
    _____________________
    SAU DINH,
    Plaintiff,
    LOUISIANA COMMERCE AND TRADE ASSOCIATION
    SELF INSURER FUND,
    Intervenor - Appellant,
    versus
    AMERICAN FREEDOM VESSEL; ET AL.,
    Defendants,
    KYE INC.,
    Defendant - Appellee.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Louisiana, New Orleans
    USDC No. 2:03-CV-3013
    _________________________________________________________________
    Before JOLLY, DAVIS, and OWEN, Circuit Judges.
    PER CURIAM:1
    The Louisiana Commerce and Trade Association Self Insurer Fund
    (“LCTA”) appeals   the   summary   judgment   in   favor   of    KYE,    Inc.
    (“KYE”).2
    1
    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    this opinion should not be published and is not precedent except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.
    2
    Appellee KYE is no longer represented by counsel and did not
    file a brief. A July 15, 2005 letter to KYE from the clerk of this
    LCTA was the workers’ compensation carrier for Structure
    Services Ltd.     Pursuant to an “Out Source Agreement”, Structure
    Services provided laborers, including plaintiff Sau Dinh, to work
    at KYE’s shipyard.      Dinh was injured while performing repair work
    aboard a vessel at KYE’s shipyard. LCTA paid workers’ compensation
    benefits    to   Dinh   under   the    Longshore   and     Harbor   Workers’
    Compensation Act.
    The district court held that Dinh was KYE’s borrowed employee,
    but that the indemnity clause in the contract between KYE and
    Structure    Services     barred      LCTA’s   claim     against    KYE   for
    reimbursement of the LHWCA benefits LCTA had paid to and on behalf
    of Dinh.
    On appeal, LCTA argues that the district court erred by ruling
    that the indemnity clause in the Structure Services/KYE contract
    bars or defeats LCTA’s reimbursement claim.            LCTA’s claim is based
    on Total Marine Services, Inc. v. Director, OWCP, 
    87 F.3d 774
    , 779
    (5th Cir. 1996), in which this court stated that “a borrowing
    employer is required to pay the compensation benefits of its
    borrowed employee, and, in the absence of a valid and enforceable
    indemnification agreement, the borrowing employer is required to
    reimburse an injured worker’s formal employer for any compensation
    benefits it has paid to the injured worker.”
    court was returned with the following notation:              “Box Closed No
    Forwarding Order on File”.
    2
    The contract between Structure Services and KYE provides:
    “Structure Services, Ltd. agrees to indemnify and hold [KYE]
    harmless from any claim due to negligence or injuries of their
    employees or by any governmental claim for withholding taxes,
    F.I.C.A. taxes and unemployment taxes attributable to covered
    workers.”    The district court held that this language constitutes
    a “valid and enforceable indemnification agreement” under Total
    Marine that relieves KYE of its obligation to reimburse LCTA for
    compensation benefits LCTA paid to Dinh.
    LCTA    argues   that   this    provision      should   not   bar    its
    reimbursement claim because the provision is ambiguous and does not
    expressly    provide   indemnity     for   LHWCA   liabilities.     It    also
    contends that reference to other portions of the Agreement supports
    its   contention   that   indemnity    for   LHWCA    liabilities   was    not
    mutually intended by the indemnity language.            Specifically, LCTA
    notes that the contract does not require a waiver of the right of
    any insurer of Structure Services to recover from KYE.              Finally,
    LCTA contends that any arguable indemnity obligation to KYE on the
    part of Structure Services should not bind LCTA because it is not
    a party to the contract.
    The district court considered and rejected all of LCTA’s
    contentions, reasoning, in its ruling from the bench:
    [T]he contract, although it could have
    been more artfully written, ... must [be]
    give[n] its plain and common sense meaning.
    Clearly, this is an arrangement where a labor
    pool employer is providing employees to KYE
    3
    and, as part of that arrangement, the labor
    pool employer provides the Workers’ Comp
    insurance, among others.    That’s one of the
    reasons for the agreement.     So, they would
    administer the Workers’ Compensation claims as
    set forth in the contract and be responsible
    for the insurance.
    It would be sheer folly to go through
    this arrangement and then to be open to ...
    paying the claim without insurance.
    ....
    [T]he   Court   interprets    the   word
    “injuries” in that [indemnity] clause, in
    general, as an indemnification clause, as
    contemplated by Total and its progeny. And,
    that’s the only way it really makes any sense
    in this context.
    Based on our de novo review of the summary judgment record in
    this case,    we    agree   with   the       district   court’s   reasoning   and
    conclusion.   The summary judgment is, therefore,
    AFFIRMED.
    4
    

Document Info

Docket Number: 04-31243

Citation Numbers: 155 F. App'x 137

Judges: Jolly, Davis, Owen

Filed Date: 11/18/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024