     Case: 19-20739      Document: 00515477698         Page: 1    Date Filed: 07/06/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                                 July 6, 2020
                                    No. 19-20739
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


GULF CRANE SERVICES, INC.; C&D PRODUCTION SPECIALIST CO.,
INC., doing business as Crosby Energy Services; LEXINGTON INSURANCE
COMPANY,

               Plaintiffs - Appellants

v.

TOTAL SAFETY U.S., INCORPORATED,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 4:17-CV-1343


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       This appeal arises from a dispute as to whether a duty to defend and
indemnify provision has been triggered. Plaintiffs Gulf Crane Services, Inc.
(“Gulf Crane”), C&D Production Specialist Co., Inc. (“CDPS”), and Lexington
Insurance Company allege that the governing agreement requires Defendant


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-20739
Total Safety U.S., Inc. (“Total Safety”) to defend or indemnify Plaintiffs as it
relates to a now-settled negligence action. On cross motions for summary
judgment, the district court ruled in Total Safety’s favor. We affirm.
                                        I.
      Because the parties take no issue with the undisputed facts, our
background largely follows the Memorandum and Recommendation adopted
by the district court.
      The parties are in the oil industry. During the relevant time period,
Plaintiffs were performing abandonment and plug operations off the shore of
Texas, and Total Safety was hired for industrial safety services.
      There are two agreements in play—the 2005 Master Services Agreement
(the “2005 MSA”) and 2013 Master Services Contract (the “2013 MSC”).
      The 2005 MSA. In 2005, Total Safety entered into this agreement with
McMoRan Oil & Gas LLC and its affiliated and subsidiary entities (collectively,
“MOG”). Significant under the 2005 MSA is that MOG may request specific
goods and services, or “Work,” from Total Safety, orally or in writing.
      The indemnification provision stated in relevant part:
      [Total Safety] shall protect, indemnify, defend and save harmless [MOG]
      . . . from and against all claims, demands or causes of action of every kind
      and character for bodily injury or death of, or for property damage or loss
      sustained by, [Total Safety or Total Safety’s] employees, subcontractors
      or consultants arising directly or indirectly out of the Work under [the
      2005 MSA].
      The 2013 MSC. In April 2013, Total Safety and Plains Exploration &
Production Company and its subsidiaries (collectively, “PXP”) entered into this
service contract. Different from the 2005 MSA, the 2013 MSC provides that
PXP may request Work by written and verbal work order, but if verbal, the
request must be submitted as a written order as soon as possible thereafter.
      The 2013 MSC’s indemnification provision provides in relevant part:

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                                  No. 19-20739
      [Total Safety] agrees to defend, indemnify and hold [PXP] harmless from
      and against any and all loss, claim, demand, fine, penalty, liability or
      cause of action of every kind and character, on account of bodily injury
      to, illness or death of any employee, agent or representative of [Total
      Safety] . . . which arises out of, in connection with, incident to or results
      directly or indirectly from the Work or services performed under this
      Contract, and regardless of the cause of such property damage, illness or
      death.
      2013 PXP Merger. Subsequent to the execution of the 2013 MSC (May
2013), PXP effectively merged with Freeport McMoRan Oil & Gas, LLC
(“FMOG”), making FMOG the surviving company.
      The 2016 Maillet Lawsuit. In 2016, a Total Safety employee, Troy A.
Maillet (“Maillet”), filed a negligence action against, inter alia, Gulf Crane,
CDPS, and FMOG. He alleges that in the course and scope of his employment
as a safety technician, he sustained injuries aboard the High Island 537 during
a crane-mounted personnel basket transfer.         High Island 537 (owned by
FMOG) is a fixed platform off the shore of Texas. FMOG subcontracted Gulf
Crane who operated the crane that transferred Maillet, and CDPS contractors
were present at the time of the incident..
      Duty to Defend and Instant Litigation. Shortly thereafter, Gulf Crane
and CDPS sent a demand for defense and indemnification to Total Safety. Gulf
Crane and CDPS quarreled over the provisions of the 2005 MSA and 2013
MSC, specifically as which contract governed the Maillet action. Originally,
Gulf Crane and CDPS sent the demands pursuant to the 2005 MSA—and Total
Safety rebuffed.     Subsequently, Gulf Crane and CDPS resubmitted the
demands to Total Safety but now relying on the 2013 MSC as a basis for the
defense and indemnification. Again, Total Safety rebuffed.
      Seeking declaratory relief as to its duty to defend and indemnify, Total
Safety initiated this action. By stipulation, the case was dismissed and refiled



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                                 No. 19-20739
to reflect Gulf Crane, CDPS and Lexington (Gulf Crane’s and CDPS’s insurer)
as Plaintiffs and Total Safety as Defendant.
      Both parties filed cross motions for summary judgment to determine
Total Safety’s obligation to defend.         The Magistrate Judge entered a
Memorandum and Recommendation, denying Plaintiffs’ motion and granting
Total Safety’s, alleviating Total Safety from defending or indemnifying
Plaintiffs. The recommendation order primarily held the PXP merger did not
mean that the 2013 MSC superseded and replaced the 2005 MSA. And because
the 2005 MSA’s indemnity provision did not comply with the express
negligence doctrine, Total Safety is under no duty to defend Plaintiffs for their
alleged negligence in the Maillet lawsuit. Moreover, even if the 2013 MSC
governed, the Maillet lawsuit also did not trigger its indemnity provision
because there was no record of a written work order confirming the work that
Maillet was performing when he was injured.
      The district court subsequently entered an order adopting the
recommendation. Plaintiffs now appeal.
                                       II.
      We review grants of summary judgment de novo, applying the same
standard as the district court. Antoine v. First Student Inc., 713 F.3d 824, 830
(5th Cir. 2013); see also FED. R. CIV. P. 56(a) (summary judgment is proper “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”).
                                      III.
      The central issue is straightforward: whether the district court erred in
holding that Total Safety owed no duty to defend Plaintiffs under the 2005
MSA’s indemnity provision.
      On appeal, Plaintiffs’ arguments mostly mirror its contentions presented
at summary judgment: (1) that FMOG is the successor-in-interest of the PXP
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                                       No. 19-20739
merger and therefore the 2013 MSC superseded the 2005 MSA entered into by
the predecessor, PXP; (2) Total Safety’s argument regarding the 2013 MSC’s
writing requirement was barred under waiver, estoppel and mutual mistake;
and (3) even if those doctrines are inapplicable, Total Safety still accepted the
work given via verbal call-out; thus falling within the scope of the 2013 MSC.
       We need not decide whether the 2013 MSC superseded the 2005 MSA
because, even assuming the 2013 MSC applies, Plaintiffs did not trigger its
indemnity provision because they did not fulfill its writing requirement. The
2013 MSC makes clear that work can be requested from Total Safety “orally or
in writing” and “[a]ny oral requests will be submitted in writing as soon as
possible.” 1 It is undisputed that Plaintiffs requested the work that Maillet was
performing via verbal call-out. But with regard to the memorialization of a
writing, Plaintiffs can only point to price negotiation correspondence and
contend that such correspondence should suffice as there is no level of
specificity required to constitute a writing under the 2013 MSC. As held in the
Memorandum and Recommendation, these negotiations concern future work if
ordered and are insufficient to be considered a writing that confirms a verbal
call-out. Consequently, Plaintiffs failed to memorialize the verbal call-out as
it pertains to the work at issue in the Maillet lawsuit. Therefore, the 2013
MSC’s indemnity provision was never triggered as the alleged injuries do not
fall within the scope of the 2013 MSC.
       Accordingly, we AFFIRM the district court’s adoption of the
Memorandum and Recommendation and otherwise adopt its analysis in full.




       1Of note, this is a materially different requirement from that of the 2005 MSA which
simply states that Total Safety’s services can be requested via purchase order or verbal call-
out when circumstances do not permit or require a written order.

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