                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-01215-SCT
CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON AND TEXAS SNUBBING
CONTROL, INC.
v.
GARY KNOSTMAN, TRUSTEE IN THE ESTATE OF BANKRUPTCY OF TOMLINSON
INTERESTS, INC.

DATE OF JUDGMENT:                                    06/17/1999
TRIAL JUDGE:                                         HON. JOHN T. KITCHENS
COURT FROM WHICH APPEALED:                           RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                            DAVID T. COBB
                                                     ROBERT RUSSELL WILLIARD
ATTORNEYS FOR APPELLEE:                              JEFFERY P. REYNOLDS
                                                     EDWIN S. GAULT, JR.
                                                     DANIEL M. WEIR
NATURE OF THE CASE:                                  CIVIL - CONTRACT
DISPOSITION:                                         AFFIRMED - 04/12/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                      5/3/2001

     BEFORE McRAE, P.J., DIAZ AND EASLEY, JJ.

     DIAZ, JUSTICE, FOR THE COURT:

¶1. This matter arises from an opinion and order entered by the Rankin County Circuit Court on June 17,
1999, granting Gary Knotsman, Trustee in the Estate of Bankruptcy of Tomlinson Interests, Inc.
(Tomlinson), a summary judgment dismissing claims made by certain underwriters at Lloyd's of London on
two liability indemnification insurance policies issued on Texas Snubbing Control, Inc. The trial court also
entered a M.R.C.P. 54(b)(1) judgment on January 21, 2000. Tomlinson's cross-claim against Texas
Snubbing for indemnification remains outstanding. The Underwriters and Texas Snubbing appeal the entry
of summary judgment, and we address the following dispositive issue:

     WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT TEXAS SNUBBING
     WAS NOT ENTITLED TO INDEMNITY BECAUSE IT VOLUNTARILY SETTLED THE
     UNDERLYING CASES.

Finding that this action by Texas Snubbing disqualifies it from indemnity, we affirm the judgment of the
circuit court.

                                                  FACTS

¶2. In February of 1985, Tomlinson drilled a sour gas well near the Johns Community in Rankin County,
Mississippi, pursuant to a court order. This endeavor, the E. N. Ross No. 2 (well), served as a replacement
well for the E. N. Ross No. 1. In June of 1985, the well encountered problems "down hole." A drilling bit
became lodged deep within the recesses of the hole causing the well to become "out of balance." In order
to return the well to a balanced state for completion to full production depth or filled with concrete and
abandoned, a snubbing operation(2) was required on the well site.

¶3. Texas Snubbing was engaged to perform that service under the supervision of its president, Jim
Hutchins. Tomlinson required Texas Snubbing to purchase $2 million worth of liability insurance before
hiring it to perform the unique and dangerous work. Hutchins told Dan and Daryl Pierce, Tomlinson's
supervising engineers, that they would be required to sign a blank Texas Snubbing work order authorizing
Texas Snubbing to enter the gas field. The back side of each work order consisted of a list of terms and
conditions under which Texas Snubbing would work including an indemnity agreement.

¶4. On the evening of July 15, 1985, the well "blew out" when another contractor, Halliburton, lost a valve
controlling one of the pumps regulating the flow of the well. Hutchins and others in direct control of the well
ordered an increase in the pumping rate to six barrels per minute, apparently an amount in excess of what
the remaining pumps could handle. The increased pressure caused the line to break resulting in hydrogen
sulfide gas (H2S) escaping into the atmosphere, forcing the evacuation of landowners and inhabitants within
a three mile radius.

¶5. Thereafter, in due course, numerous groups of land owners and others allegedly exposed to H2S gas
filed suit alleging negligence, trespass and nuisance naming Tomlinson and Texas Snubbing, among others,
as defendants. Texas Snubbing answered denying negligence on its part, much less liability, pleading that
actions of third parties caused the loss of the well. However, before litigation resolved these various and
sundry claims, Lloyd's of London, Texas Snubbing's insurer, voluntarily chose to settle the claims.

¶6. Texas Snubbing, in turn, sued Tomlinson on the alleged indemnity agreement found on the reverse side
of the work orders signed in the field by Tomlinson's representatives and demanded reimbursement for
settlement claims paid to property owners totaling roughly $865,000 in addition to attorney's fees and
litigation costs amounting to approximately $1,042,000 plus interest. Tomlinson answered asserting, among
other things, that no contract was ever formed, or in any event, neither the contract nor Mississippi law
required Tomlinson to reimburse Texas Snubbing for voluntary settlement payments it made to claimants.
The circuit court granted Tomlinson's motion for summary judgment, from which the Underwriters and
Texas Snubbing appeal.

                                        STANDARD OF REVIEW

¶7. A trial court's decision to grant summary judgment is reviewed de novo. Hernandez v. Vickery
Chevrolet-Oldsmobile Co., 652 So. 2d 179, 181 (Miss. 1995). This Court reviews the grant or denial of
summary judgment under the same standard as that of the trial court under Rule 56(c) of the Mississippi
Rules of Civil Procedure. Cook v. Children's Med. Group, P.A., 756 So.2d 734, 739 (Miss. 1999). All
evidentiary matters before this Court, including but not limited to admissions in pleadings, answers to
interrogatories, depositions, affidavits, etc. will be examined. Brown v. Credit Ctr., Inc., 444 So. 2d 358,
362 (Miss. 1983). All evidence will be viewed in the light most favorable to the non-movant. Cook, 756
So.2d at 739. If no genuine issue of material fact is found and the moving party is entitled to judgment as a
matter of law, entry of summary judgment is appropriate. Brown, 444 So. 2d at 362. The burden of
demonstrating that no genuine issue of fact exists is on the moving party. Cook, 756 So.2d at 739.
                                             LEGAL ANALYSIS

      WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT TEXAS SNUBBING
      WAS NOT ENTITLED TO INDEMNITY BECAUSE IT VOLUNTARILY SETTLED THE
      UNDERLYING CASES.

¶8. The trial court surmised that in order to state a prima facie case against Tomlinson, Texas Snubbing
must plead and prove that it was liable for the underlying claims, reversing its position of consistently
denying liability in the underlying negligence suits it voluntarily chose to settle. The trial court found that the
facts of this case do not support such a shift and cited Great S. Box Co. v. Barrett, 231 Miss. 101, 94
So. 2d 912 (1957) as authoritative on the matter. The Barrett case involved an automobile accident
between a car in which Barrett was a passenger driven by Palmer, and a truck operated by Great Southern
Box Co. Great Southern, in its answer to Barrett's complaint, denied any negligence which proximately
caused the accident, instead blaming the entire incident on Palmer. However, Great Southern simultaneously
filed a motion to change venue. In its motion, Great Southern charged that venue was improper in the
county the plaintiff selected because no evidence could be found showing Palmer proximately caused the
injury. This Court held:

      The Box Company and Thompson cannot be heard to say on the one hand that they were not liable
      because Palmer was solely responsible for one purpose of the suit, and, without withdrawing or
      amending that position, say in the same judicial proceeding, for another purpose, that not Palmer but
      they were solely responsible for the collision.

Id. at 111-12, 94 So. 2d at 916 (citing 31 C.J.S. Estoppel § 117, p. 378).

¶9. Relying on this language, the trial court pointed out that Texas Snubbing had the option to litigate these
cases, yet chose to settle them instead. The trial court further noted that now, fourteen years later, Texas
Snubbing attempts to litigate the issues and recover some of the settlement money through indemnity.

¶10. The trial court found that assuming Texas Snubbing could prevail on the issue regarding contractual
indemnity, its claim would still fail because it voluntarily settled the lawsuits brought by the property owners.
The trial court correctly noted that in order for Texas Snubbing to recover from Tomlinson, Texas Snubbing
must prove that (1) it was legally liable to an injured third party, (2) that it paid under compulsion, and that
(3) the amount it paid was reasonable. Keys v. Rehab. Ctrs., Inc., 574 So. 2d 579, 584 (Miss. 1990).
Texas Snubbing failed to plead these necessary elements and further failed to demonstrate a genuine issue
of material fact for trial concerning these elements.

¶11. While Texas Snubbing recognizes that under common law, a party seeking indemnity must prove its
underlying liability, it believes that within the confines of a contractual indemnity case the obligation to
indemnify is governed by the language of the contract. It argues that this provides an exception of some sort
from the aforementioned elements of proof needed to procure recovery. As support for this proposition,
Texas Snubbing cites the following:

      From the foregoing we hold that both within the literal language of the indemnity provisions and in
      accordance with the intention of the contracting parties there was no contractual requirement that the
      contractor must be negligent in order for the indemnity provisions to operate.

Blain v. Sam Finley, Inc., 226 So.2d 742, 746 (Miss. 1969). The Blain case involved an action by a
contractor to recover from a subcontractor through indemnity provisions of the subcontract. The contractor
sought expenses, costs and attorneys' fees he incurred in defense of a suit regarding the death of one of his
employees that occurred in the due course of his employment. In Blain, the indemnity agreement provided:

      Subcontractor shall also pay all of the expense and cost and attorney's fees incurred by Contractor in
      the enforcement of the conditions and obligations of this subcontract and of any bond furnished in
      connection herewith or incurred in the investigation or defense of any action arising out of this
      subcontract or out of the non-payment of any claim of any third party, whether such claim is valid
      or not, or out of the performance or non-performance of the work hereunder.

Id. at 746 (emphasis added). The Blain Court explained that:

      Having already concluded that the contract in the present case is broad enough to indemnify Blain
      against his own negligent acts, we need not consider the fact that the allegations of negligence of Blain,
      under any circumstances, were totally untenable. Moreover, the indemnity provisions of the
      contract in the case at bar specifically refer to the recovery of expenses and attorneys' fees
      even where the claims are groundless.

Id. at 746 (emphasis added). The trial court seized upon the emphasized language holding that the Blain
case was easily distinguishable from this matter in that the contract in Blain specifically provided for
indemnification for settlements of claims without regard to the validity or liability of the claim. The work
orders in the case sub judice did not contain similar language.

¶12. Additionally, Keys holds that in order for an indemnitee to recover, he must allege and prove he was
legally liable to the injured party and paid under compulsion. Keys, 574 So. 2d at 584. Texas Snubbing
failed to do this. Texas Snubbing argues that it would have proven these elements at trial. However, Jim
Hutchings, President of Texas Snubbing, has consistently denied liability or any wrongdoing associated with
the blowout in previous depositions and court proceedings. This position is best exemplified by Texas
Snubbing's reply to Tomlinson's counterclaim, wherein it again denied liability for any matters concerning the
blowout.

¶13. Texas Snubbing's hopes of recovery seem to rely upon proving Tomlinson's negligence at trial. Texas
Snubbing did not prove any of the necessary elements needed to recover under the theory of contractual
liability during the summary judgment hearing, and all parties agreed that it was a question of contractual
liability. There is no genuine issue of material fact in question here.

                                              CONCLUSION

¶14. We affirm the trial court's conclusion that Texas Snubbing's voluntary settlements of the underlying
cases prevents it from claiming indemnity against Tomlinson as it failed to plead and prove the necessary
Keys factors. Accordingly, we affirm the judgment of the Rankin County Circuit Court.

¶15. AFFIRMED.

      PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, COBB AND
      EASLEY, JJ., CONCUR.

1. M.R.C.P. 54(b) provides:
      (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for
      relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or
      when multiple parties are involved, the court may direct the entry of a final judgment as to one or
      more but fewer than all of the claims or parties only upon an expressed determination that there is no
      just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of
      such determination and direction, any order or other form of decision, however designated which
      adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not
      terminate the action as to any of the claims or parties and the order or other form of decision is
      subject to revision at any time before the entry of judgment adjudicating all the claims and the rights
      and liabilities of all the parties.

2. A snubbing operation is designed to control the pressure of oil or gas in a well in order to insert or retract
tubing, drill pipe or casing. Performing this highly specialized procedure prevents the well operator from
having to "kill" the well, or stop production to equalize the pressure within it.
