HENRY'S MARINE SERVICE, INC. v. FIREMAN'S FUND INSURANCE CO. (E.D.La. 2004)

SARAH VANCE, District Judge

Before the Court is intervenor Law Office of Paul C. Miniclier and Paul C. Miniclier, Esq.'s Motion for Summary Judgment. The original parties to the action, Henry's Marine Services, Inc. and Fireman's Fund Insurance Company, do not oppose the motion. For the following reasons, the Court GRANTS Miniclier's motion for summary judgment.

Henry's Marine Service, Inc. is a family-owned marine service and boat brokering/chartering business located in Morgan City, Louisiana. Part of Henry's business consists of chartering vessels to others. Henry's chartered several vessels to Tetra Applied Technologies, L.P. Tetra chartered some of the vessels under an oral charter agreement. On March 1, 2000, the parties formalized the oral charter agreement by executing a Master Time Charter Agreement. The oral charter agreement and Article 11 of the Master Agreement obliged Henry's to defend, indemnify, and hold Tetra harmless for, among other things, injuries to third parties in connection with the chartered vessels.

When three of Tetra's employees were injured in separate and unrelated accidents and sued Tetra in state court, Tetra demanded that Henry's indemnify Tetra for any amounts that it may be required to pay in either judgment or settlement. Henry's eventually agreed to defend and to indemnify Tetra in the underlying state court suits. Henry's retained the services of Paul Miniclier and his law firm to represent Tetra's and its own interests in the underlying state actions. Miniclier performed services in this and other matters, for which he billed approximately $100,000.00. Miniclier obtained a promissory note from Henry's in the principal amount of $100,000.00, which was secured by a UCC-1 financing statement and Henry's interest in the proceeds of the Fireman's Fund lawsuit.

To protect itself against claims arising from its boating operations, Henry's had a comprehensive book of insurance coverage through defendants Fireman's Fund Insurance Company and New York Maritime and General Insurance Company. Relying on provisions in its insurance contracts with Fireman's Fund and New York Marine, Henry's tendered Tetra's demands to its two insurers. Both Fireman's Fund and New York Marine refused to pay.

Henry's then sued Fireman's Fund and New York Marine in this Court. By order and reasons dated October 22, 2003, the Court granted Henry's motion for summary judgment on the issue of insurance coverage. ( See Rec. Doc. No. 22). After a bench trial on the issue of damages, by order and reasons dated April 8, 2004, the Court awarded judgment for defense and indemnity costs to Henry's and against Fireman's Fund in the amount of $378,371.92, with interest and costs of $4,883.53, including an award for $25,008.43 in defense costs for Miniclier's services. ( See Rec. Doc No. 66).

On May 6, 2004, Fireman's Fund filed a notice of appeal of the Court's order and reasons dated April 8, 2004. On May 26, 2004, Miniclier moved to intervene to protect his interest in the litigation, i.e., his attorney's fees incurred as a result of defending the underlying state court lawsuits. Two days after Miniclier moved to intervene, the Court issued final judgment. Fireman's Fund filed an amended notice of appeal on July 2, 2004, which appeals the final judgment. The Court found that it had jurisdiction over the motion to intervene because the motion was collateral to the matter on appeal, and because the motion to intervene did not bear on Fireman's Fund's appeal on the merits. ( See Rec. Doc. No. 79). The Court granted the motion to intervene, finding that Miniclier had satisfied the criteria for intervention of right under FED. R. CIV. P. 24(a)(2). ( See id.)

Miniclier now moves for summary judgment on his intervention complaint, requesting that judgment be entered in his favor for the amount of the $100,000.00, payable to him from the proceeds of the underlying litigation. Henry's not only does not oppose the motion, but has executed a declaration acknowledging the debt it owes to Miniclier and its acquiescence to having the debt paid out of the proceeds of this litigation. Fireman's Fund has filed a response indicating that it does not oppose the motion so long as no previous judgments or awards in the litigation are reconsidered or altered.

A. Legal Standard

Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).

The Court finds that, having retained jurisdiction over Miniclier's intervention, it also has jurisdiction to grant judgment on the intervenor's complaint. The Court further finds that summary judgment is warranted on Miniclier's complaint because there are no genuine issues of material fact. The promissory note evidences Miniclier's entitlement to payment of the debt for fees, and Henry's has confirmed that the debt is valid and agrees that it is secured by the proceeds of this litigation. Because there is no genuine issue of material fact as to Miniclier's entitlement to the attorney's fees, the Court finds that summary judgment in Miniclier's favor is appropriate. Further, the Court recognizes Miniclier's security interest in the proceeds of this litigation. This ruling has no effect on the Court's previous ruling as to the amount of the judgment against Fireman's Fund.

For the foregoing reasons, the Court GRANTS intervenor Miniclier's motion for summary judgment.