ATIC ENTERPRISES, INC., Plaintiff, v. COTTINGHAM & BUTLER INSURANCE SERVICES, INC. and WESTCHESTER FIRE INSURANCE COMPANY, Defendants.

 

Civil Action No. 1:14-cv-132-DJH-HBB

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, BOWLING GREEN DIVISION

 

2016 U.S. Dist. LEXIS 127715

 

 

September 19, 2016, Decided

September 19, 2016, Filed

 

 

COUNSEL:  [*1] For Atic Enterprises, Inc., Plaintiff: Ena Viteskic, LEAD ATTORNEY, Kerrick Bachert PSC, Bowling Green, KY; Thomas N. Kerrick, LEAD ATTORNEY, Kerrick Bachert Stivers PSC, Bowling Green, KY.

 

For Cottingham & Butler Insurance Services, Inc., Defendant: Brian Frank Haara, Katherine L. Crosby, LEAD ATTORNEYS, Tachau Meek PLC, Louisville, KY.

 

JUDGES: David J. Hale, United States District Judge.

 

OPINION BY: David J. Hale

 

OPINION

 

MEMORANDUM OPINION AND ORDER

Copper is often the target of thieves. Plaintiff Atic Enterprises, Inc. learned this the hard way when thieves stole copper it was transporting. (Docket No. 67, PageID # 952, 965, 981) Atic’s prior insurance policy covered theft of copper. (D.N. 61-2; D.N. 67, PageID # 964-65, 975, 985) But when Atic tried to make an insurance claim for the stolen copper, Defendant Cottingham & Butler Insurance Services denied the claim because Atic’s new insurance policy specifically excluded coverage for copper losses due to theft. (D.N. 67, PageID # 981-82) Although Cottingham & Butler had previously notified Atic of the policy change, Atic sued Cottingham & Butler, contending that the notice was inadequate. (D.N. 1) Cottingham & Butler has now moved for summary judgment. (D.N. 61) [*2]  It argues that notice was not necessary under Kentucky law and that even if it was required, the notice provided sufficed. (D.N. 61-1) Cottingham & Butler is correct: Kentucky law does not require formal notification of an insurance policy change unless the insurance contract is ambiguous. Marcum v. Rice, 987 S.W.2d 789, 791-92 (Ky. 1999). This insurance contract was not ambiguous; it expressly excluded copper. (See D.N. 1-5, PageID # 88) The Court will therefore grant Cottingham & Butler’s motion for summary judgment.

 

1. BACKGROUND

Atic was a trucking company based in Bowling Green, Kentucky.1 (D.N. 67, PageID # 936, 964, 959) According to its United States Department of Transportation Motor Carrier Identification Report, Atic transported general freight, “commodities dry bulk,” beverages, and paper products from 2011 to 2014. (D.N. 61-5) Atic did not list metals as products that it transported. (See id.) Nevertheless, Atic transported copper during those years. (D.N. 67, PageID # 955)

 

1   Atic is no longer in business. (D.N. 61-2, PageID # 624)

Atic acknowledges that copper is a high-risk commodity, meaning that it is more likely to be a target of theft than other commodities. (Id., PageID # 965) From July 2012 to July 2013, Atic had an [*3]  insurance policy that covered the transportation of copper. (D.N. 61-2; D.N. 67, PageID # 964-65, 975, 985) The policy was through former Defendant Westchester Fire Insurance Company and was sold by Cottingham & Butler.2 (D.N. 61-2; D.N. 67, PageID # 985-86) Jacob Zeal, Cottingham & Butler’s sales agent, sold Atic this policy. (D.N. 68, PageID # 1298, 1323-24) At the time of the sale, Cottingham & Butler asked Atic to list the commodities it transported. Atic did not explicitly list copper, but claims it lumped copper into a category titled “miscellaneous.” (D.N. 67, PageID # 960)

 

2   Westchester was dismissed from this action by stipulation of the parties. (D.N. 47, 48)

In early 2013, prior to the expiration of the 2012-2013 insurance policy, Westchester notified Atic that it would not renew the insurance policy. (D.N. 61-4; D.N. 61-2, PageID # 637, 642-43) The notice stated that “for the next policy term, the terms, limits and premiums may be materially different.” (D.N. 61-4) Atic admits receiving and reading this notice. (D.N. 61-2, PageID # 637, 642-43) In July 2013, Cottingham & Butler sent Atic a proposal for new insurance. (D.N. 67, PageID # 974-75; D.N. 61-3) That proposal stated, [*4]  on a page that included a side-by-side comparison of the proposed 2013-2014 policy and the current 2012-2013 policy, that copper was not covered. (D.N. 61-3) Atic admits having received and reviewed the proposal, though it claims not to have noticed or read the copper exclusion. (D.N. 67, PageID # 975)

In September 2013, Cottingham & Butler mailed the new 2013-2014 Westchester policy to Atic. (D.N. 12) The 2013-2014 policy included a separate page titled “COPPER EXCLUSION.” (D.N. 1-5, PageID # 88) The page stated, “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” (Id.) It then stated, “Copper is added to Paragraph A.2, Property Not Covered.” (Id.) Atic contends that it never received this policy. (D.N. 73-1, PageID # 1837-38)

Without receiving or reading the new insurance policy, Atic continued to transport copper. (D.N. 67, PageID # 981-82) On or about November 9, 2013, thieves stole two loads of copper from Atic. (Id., PageID # 952, 965, 981) Atic then contacted Cottingham & Butler and requested a copy of the 2013-2014 policy. (Id., PageID # 981-82) At this point, Zeal explained to Atic that the policy excluded copper. (Id.) Despite the exclusion, Zeal encouraged Atic [*5]  to submit a claim, which it did. (Id.) Cottingham & Butler denied Atic’s claim. (Id.)

Atic sued, accusing Cottingham & Butler of being negligent by not discussing or advising it of the copper exclusion.3 (D.N. 1, PageID # 5) Cottingham & Butler has now moved for summary judgment, contending that it did not have a duty to advise Atic of the policy change; that if it did have a duty, it satisfied that duty; and that its agent, Zeal, did not owe Atic any such duty. (D.N. 72) The Court agrees. Because the 2013-2014 policy included a clearly stated copper exclusion, Cottingham & Butler did not have a duty to further advise or notify Atic of the policy change. And Zeal did not assume the duty to advise Atic of the change. Consequently, the Court will grant Cottingham & Butler summary judgment.4,5

 

3   Atic also brought several other claims against Cottingham & Butler (see D.N. 1), but it has abandoned these additional claims. (D.N. 72, PageID # 1817)

4   In Atic’s response to Cottingham & Butler’s summary judgment motion, it requests a hearing on this matter. (D.N. 72, PageID # 1817) Cottingham & Butler opposes the request. (D.N. 73, PageID # 1832) The Court finds oral argument to be unnecessary and will [*6]  thus deny Atic’s request.

5   Atic has also filed a motion for leave to file a sur-reply. (D.N. 76) Cottingham & Butler opposes this motion. (D.N. 78) Atic’s motion will be granted. The Court has considered the sur-reply.

 

1. STANDARD

To grant a motion for summary judgment, the Court must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying the basis for its motion and the parts of the record that demonstrate an absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The non-moving party must then establish a genuine issue of material fact with respect to each element of each of its claims. Id. at 322-23; see also Hardy Oil Co., Inc. v. Nationwide Agribusiness Ins. Co., 587 F. App’x 238, 240 (6th Cir. 2014). The mere existence of a scintilla of evidence in support of the non-moving party’s position will be insufficient; instead, the non-moving party must present evidence upon which the jury could reasonably find for it. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Ultimately, the Court must determine whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52).

 

III. DISCUSSION

 

A [*7] .

For Atic to succeed on its negligence claim, it must establish (1) that Cottingham & Butler owed a duty of care to Atic, (2) that it breached that duty, and (3) that the breach actually and proximately caused Atic’s damages. Helton v. Am. Gen. Life Ins. Co., 946 F. Supp. 2d 695, 708 (W.D. Ky. 2013) (citing Mullins v. Comm. Life Ins. Co., 839 S.W.2d 245 (Ky. 1992)). Although Cottingham & Butler did owe Atic a standard duty of care, it did not have a duty to notify Atic of the policy change, as Atic contends. (See D.N. 1, PageID # 5) Under applicable Kentucky law, “where the language of an insurance contract unambiguously explains the terms and conditions, no separate formal notification is required to effectuate the policy provision unless the unannounced change misleads an insured.” Marcum, 987 S.W.2d at 791-92; see Wales v. Farmers Stockyards, Inc., No. 5:14-cv-394-JMH, 2016 U.S. Dist. LEXIS 39287, 2016 WL 1180186, at *3 (E.D. Ky. Mar. 25, 2016).

The copper exclusion in the 2013-2014 policy was unambiguous. The policy included a separate page titled “COPPER EXCLUSION” that stated “THIS ENDORSEMENT CHANGES THE POLICY” and advised Atic to “PLEASE READ IT CAREFULLY”; it also stated that “[c]opper is added to Paragraph A.2, Property Not Covered.” (D.N. 1-5, PageID # 88) This is sufficient under Kentucky law, and thus “no separate formal notification [was] required.” Marcum, 987 S.W.2d at 791-92.

Despite not having a duty to do so, Cottingham & Butler provided [*8]  Atic with formal notification. It sent Atic a proposal that explicitly excluded copper from the new policy. (D.N. 61-3; D.N. 67, PageID # 974-75) Atic also received notice from Westchester that the old policy would not be renewed and that the new policy could be materially different. (D.N. 61-2, # 637, 642-43; D.N. 61-4) Atic concedes that it received these documents. (D.N. 61-2, PageID # 637, 642-43; D.N. 67, PageID # 975) The Court thus concludes that even if Cottingham & Butler had a duty to notify Atic of the new policy’s copper exclusion, there is no evidence in the record to support a finding that it breached this duty.

 

The Court likewise rejects Atic’s claim that Cottingham & Butler’s agent, Zeal, assumed a duty to advise it of the copper exclusion. Under Kentucky law, “whether an insurance agent has a duty to advise his client (as opposed to merely a duty to execute the client’s orders) is a question of law.” Hardy Oil, 587 F. App’x at 240 (citing Mullins, 839 S.W.2d at 248). And “no affirmative duty to advise is assumed by the mere creation of an agency relationship.” Id. Instead, all that is owed is a standard duty of reasonable care. Helton, 946 F. Supp. 2d at 708.

Zeal may have assumed a duty to advise, however, if he expressly or impliedly undertook to [*9]  advise Atic. Mullins, 839 S.W.2d at 248. “An implied assumption of duty may be present when: (1) the insured pays the insurance agent consideration beyond a mere payment of the premium; (2) there is a course of dealing over an extended period of time which would put an objectively reasonable insurance agent on notice that his advice is being sought and relied upon; or (3) the insured clearly makes a request for advice.” Id. In Hardy Oil, the Sixth Circuit found that the insurance agent did not assume a duty to advise when there was no evidence of additional consideration paid, the client had switched insurers over the years, and there was not “a clear request for advice” from the client. 587 F. App’x at 240.

Similarly, Zeal did not expressly or impliedly undertake to advise Atic. Atic contends that Zeal undertook the role of an insurance adviser because he (1) is licensed, (2) represented that he was a transportation consultant, (3) tried to sell Atic insurance, and (4) told Atic that it Case would be easier to get a better insurance quote if it consolidated its company. (D.N. 72, PageID # 1802-04) But these allegations are simply a description of the role of an insurance agent. Nowhere in the record is there any evidence that [*10]  Zeal expressly undertook the duty to advise Atic, that Atic paid any additional consideration for advice, that there was an extended course of dealing, or that Atic requested advice. Without any evidence to the contrary, Zeal only owed Atic a standard duty of care, which was satisfied with respect to the 2013-2014 insurance policy.

 

1. CONCLUSION

Because the 2013-2014 insurance policy conspicuously excluded copper from covered goods, Cottingham & Butler did not owe Atic a duty to notify it of the policy change under Kentucky law. Nor is there any evidence that Zeal assumed a duty to advise Atic of the change. Accordingly, and the Court being otherwise sufficiently advised, it is hereby

ORDERED as follows:

(1) Defendant Cottingham & Butler’s Motion for Summary Judgment (D.N. 61) is GRANTED.

(2) Defendant Cottingham & Butler’s Motion in Limine (D.N. 65) is DENIED as moot.

(3) Plaintiff Atic Enterprises’ Motion for Leave to File Sur-Reply (D.N. 76) is GRANTED.

(4) A separate judgment will issue this date.

September 19, 2016

/s/ David J. Hale

David J. Hale, Judge

United States District Court

TODD J. OUBRE, Plaintiff, VS. SCHLUMBERGER LIMITED, et al, Defendants.

 

CIVIL ACTION NO. 3:15-CV-111

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION

 

2016 U.S. Dist. LEXIS 130251

 

 

September 23, 2016, Decided

September 23, 2016, Entered

 

 

COUNSEL:  [*1] For Todd J. Oubre, Plaintiff: Jerry C von Sternberg, Spagnoletti Law Firm, Houston, TX; Marcus Raymond Spagnoletti, Spagnoletti and Co, Houston, TX.

 

For Schlumberger Limited, Schlumberger Technology Coporation, Defendants: James Richard Watkins, LEAD ATTORNEY, Royston Rayzor et al, Galveston, TX; Kelly Mullins Haas, LEAD ATTORNEY, Royston Rayzor Vickery & Williams LLP, Galveston, TX.

 

JUDGES: George C. Hanks, Jr., United States District Judge.

 

OPINION BY: George C. Hanks, Jr.

 

OPINION

 

MEMORANDUM OPINION AND ORDER

This is a personal injury lawsuit filed by Plaintiff, Todd J. Oubre. Oubre is a citizen of Louisiana. Defendants Schlumberger Limited, Schlumberger Well Services, and Schlumberger Technology Corporation (collectively, “Schlumberger”) have their principal places of business in Texas.

Oubre’s Complaint alleges that, on “May 15, 2014,” he “was a trucking contractor performing services for [Schlumberger],” and he was injured at Schlumberger’s Houma, Louisiana facility when “an employee of [Schlumberger] rammed a forklift [into] his vehicle.” Dkt. 1. Oubre asserts claims for negligence and gross negligence, and he alleges that Schlumberger is directly and vicariously responsible for the acts of its employee. Id. Oubre [*2]  filed his Complaint in this Court on May 15, 2015.

Schlumberger’s First Amended Answer denied many of the allegations in Oubre’s Complaint, including his allegation that the collision took place on May 15, 2014. Schlumberger did admit that, “at relevant times, Plaintiff was employed with or through a trucking contractor performing services for Schlumberger Technology Corporation.” Dkt. 13, ¶ 9. Further, Schlumberger’s First Amended Answer raised the affirmative defense of limitations–contending that Oubre’s suit was time-barred by the Louisiana Civil Code.

Schlumberger has now filed a motion for summary judgment on its affirmative defense of limitations. Dkt. 14. Oubre has responded, and the motion has been fully briefed. Dkt. 17, Dkt. 18, Dkt. 23. On May 10, 2016, this Court referred the case to United States Magistrate Judge John R. Froeschner. Dkt. 24. On May 18, 2016, Judge Froeschner issued his Report and Recommendation, recommending that Schlumberger’s motion for summary judgment be granted. Dkt. 25. Oubre filed Objections to Judge Froeschner’s Report and Recommendation. Dkt. 26.

This Court is required to make a de novo determination of those portions of the magistrate judge’s report [*3]  or specified proposed findings or recommendations to which an objection has been made. In this regard, the Court is permitted to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b)(3). The Court need not, however, consider objections that are conclusive, general in nature, or frivolous. See Battle v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. Unit B 1982) (en banc) (overruled on other grounds); Mosley v. Quarterman, 306 F. App’x 40, 42 n.2 (5th Cir. 2008). After careful consideration of the Objections, the motion, the responses, the pleadings, and the arguments of the parties, the Court ACCEPTS the Magistrate Judge’s Report and Recommendation, in part, and REJECTS the Recommendation, in part, as follows.

 

ANALYSIS

Schlumberger’s motion for summary judgment asserts that the collision at its Houma facility occurred on May 14, 2014, not May 15, 2014. Accordingly, it contends that Oubre’s suit is time-barred under the applicable statute of limitations, the one-year time limit of Article 3492 of the Louisiana Civil Code.

Schlumberger first argues that this Court, sitting in diversity, must apply the choice-of-law rules of Texas and that Texas follows the “most significant relationship test” set out in the Restatement (Second) of Conflict of Laws. [*4]  Schlumberger asserts that Louisiana, where the collision took place, is the state with the most significant relationship here. Accordingly, Schlumberger asks this Court to find that Louisiana’s one-year statute of limitations bars Oubre’s lawsuit because it is untimely. Schlumberger points out that Texas Civil Practice and Remedies Code section 71.031 also supports this conclusion. Schlumberger’s motion attaches a single piece of summary judgment evidence–the affidavit of Scott Thibodaux, a Schlumberger employee who affirms that he participated in the investigation of a May 14, 2014, accident involving “a parked truck which was operated through United Vision Logistics and which was parked in the yard area of the [Houma, Louisiana] facility.” Dkt. 14-1.

In his response, Oubre concedes that the accident did indeed occur on May 14, 2014–not May 15, 2014. Dkt. 17. But he argues the proper statute of limitations is the two-year limit found in the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code § 16.004. Oubre asserts two reasons that the one-year Louisiana statute of limitations does not apply in this case. First, Oubre presents a Master Services Agreement (“MSA”) between Schlumberger and Dynasty Transportation, LLC, asserting that this MSA is the contract [*5]  “under which [he] was working for Schlumberger at the time he was injured.” Oubre argues that Schlumberger is therefore “estopped” from relying on Louisiana’s statute of limitations in this case because the MSA provides that “[the] Agreement shall be construed in accordance with, and governed by, the laws of the State of Texas.” Dkt. 17-1, ¶ 11.

Second, Oubre contends that Schlumberger misapplies Texas law. Schlumberger’s motion is premised on its assertion that Louisiana is the state where the “negligent act” took place. Oubre now contends this is not entirely true. Instead, he argues that much of Schlumberger’s “management decisions and corporate governance are undertaken from Schlumberger headquarters [in Houston, Texas].” Accordingly, he posits that some part of his negligence suit will touch upon Schlumberger’s management decisions made in Houston, i.e., “the creation of company policy and Schlumberger’s failure to train and supervise its employees pursuant to this policy.” Dkt. 17. Therefore, he concludes that Texas Civil Practice and Remedies Code section 71.031 mandates the application of Texas’s, not Louisiana’s, statute of limitations.

In their reply, the Schlumberger Defendants take issue with Oubre’s claim that he was an “employee” [*6]  of the trucking company that executed the MSA with Schlumberger. Instead, Schlumberger’s reply presents evidence that Oubre was an “independent trucking contractor” and was “self-employed” at the time of the incident. Schlumberger also argues that Oubre cannot rely upon the MSA because he is not an intended third-party beneficiary to that contract.

With the permission of the Court, Oubre filed a sur-reply. In his sur-reply, Oubre contends that “the precise nature of his role . . . is not significant.” Dkt. 23. Instead, he holds on to the doctrine of estoppel by contract, and asserts that he is among the “class of persons” discussed in the MSA and is therefore a beneficiary to the MSA.

In his Report and Recommendation, Magistrate Judge Froeschner recommended that Schlumberger’s motion be granted on the grounds that (1) Oubre was a “self-employed independent contractor,” not an intended beneficiary of the MSA, and he could not “take advantage of the forum selection clause;” (2) Texas law required an analysis of which state had the “most significant relationship” to the case; and (3) Louisiana was the state with the most significant relationship. Magistrate Judge Froeschner therefore concluded [*7]  that Louisiana law applied, including Louisiana’s one-year statute of limitations, and Oubre’s suit was time-barred. In finding Louisiana was the state with the most significant relationship to this case, Magistrate Judge Froeschner also found:

 

In this case the injury occurred in Louisiana; the conduct which caused the injury occurred in Louisiana; Oubre’s residence and place of business were in Louisiana, and the place where the relationship, if any, between the Parties was centered was solely on Schlumberger’s Houma, Louisiana, property.

 

 

Oubre filed Objections to Magistrate Judge Froeschner’s Report and Recommendation. Those Objections focused on whether Oubre may benefit from the MSA’s choice-of-law provision. Notably, Oubre does not complain of Judge Froeschner’s finding that “[i]n this case the injury occurred in Louisiana; [and] the conduct which caused the injury occurred in Louisiana . . . .”

 

STANDARD OF REVIEW

Schlumberger’s motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule, a reviewing court “shall grant summary judgment 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.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). [*8]  A fact is “material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.

“When seeking summary judgment, the movant bears the initial responsibility of demonstrating the absence of a genuine issue of material fact with respect to those issues on which the movant bears the burden of proof at trial.” Serna v. Law Office of Joseph Onwuteaka, P.C., 614 Fed. App’x. 146, 152 (5th Cir. 2015), cert. denied, 136 S. Ct. 1160, 194 L. Ed. 2d 174 (2016) (citing Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995) (per curiam)). The movant discharges this burden by making out “a prima facie case that would entitle [it] to judgment as a matter of law if uncontroverted at trial.” Id. (internal citations omitted). If the movant succeeds, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Id. (citing Little, 37 F.3d at 1075). “‘If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.'” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)). In deciding a summary judgment motion, the reviewing court must “construe all facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal [*9]  citation and quotation marks omitted).

The Court is mindful that a non-movant’s burden is not satisfied with “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1074 (citations and internal quotation marks omitted). Moreover, “‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378-80 (5th Cir. 2010). Instead, “[a] district court’s decision on summary judgment is largely controlled by what the parties present[].” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). Therefore, “[i]f somewhere in a record there is evidence that might show a dispute of material fact, the district court needs to be pointed to that evidence as opposed to having to engaging in an extensive search.” Id.

Further, when reviewing the evidence, this Court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Factual controversies are to be resolved in favor of the nonmovant, “but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075.

 

DISCUSSION

The Court’s analysis here must adhere to the summary judgment principles set out in [*10]  the above paragraphs. Accordingly, the Court begins with the motion for summary judgment itself and then turns to the response, evaluating each under the standards set out by the United States Court of Appeals for the Fifth Circuit and the Federal Rules of Civil Procedure.

 

2014. Schlumberger’s motion presents uncontroverted evidence that the collision occurred in Houma, Louisiana, on May, 14, 2014.

Schlumberger moved for summary judgment on its affirmative defense of limitations. As Schlumberger correctly contends, “[a] federal court sitting in diversity follows the choice-of-law rules of the state in which it sits.” Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 258 (5th Cir. 2014); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). This Court will therefore apply Texas choice-of-law rules.

Schlumberger is also correct in its next contention, that Texas courts answer choice-of-law questions by determining which state has the “most significant relationship” to the parties and the allegations, using the test provided by Sections 6 and 145 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000); Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex. 1979). Under the Restatement, the court must consider: “(a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and; (d) the [*11]  place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145. Further, according to the Restatement, “the applicable law will usually be the local law of the state where the injury occurred.” Id. at § 156(2). Thus, according to Schlumberger, Thibodeaux’s affidavit is sufficient summary judgment evidence to show that the collision happened in Houma, Louisiana on March 14, 2014, and this Court should easily conclude that Louisiana law, including Louisiana’s one-year statute of limitations, applies.

Schlumberger’s analysis is correct but incomplete. In addition to the Restatement’s choice-of-law rules, Texas has an additional choice-of-law rule that it applies in personal injury cases–section 71.031 of the Texas Civil Practice and Remedies Code, which contains what “is essentially a codified choice-of-law rule that borrows the statute of limitations of the foreign state where an injury occurred when the claimant is not a resident of Texas.” Malone v. Sewell, 168 S.W.3d 243, 253 (Tex. App.–Fort Worth 2005, pet. denied). It reads, in relevant part:

 

An action for damages for … personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect or default causing the … injury takes place in a foreign state … if: … [*12]

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; [and]

(3) for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place …

 

 

TEX. CIV. PRAC. & REM. CODE ANN. § 71.031(a). Both the Supreme Court of Texas and the United States Fifth Circuit have confirmed that this provision applies to suits filed in state and federal courts in Texas for personal injury or death caused by an act that occurred outside the state. See Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506, 511-13 (5th Cir. 2007); Owens Corning v. Carter, 997 S.W.2d 560, 573 (Tex. 1999). So long as the plaintiff is a Texas resident, then Texas’s two-year statute of limitations for personal injury suits applies, even though the injury or act occurred outside of Texas. In contrast, if a plaintiff is not a Texas resident, then the court must apply both Texas’s two-year statute of limitations for personal injury suits and any statutes of limitations from the location in which the injury or act occurred. This provision ensures that the more restrictive of the two limitations periods controls. See, e.g., Burdett v. Remington Arms Co., LLC, 3:15-CV-4038-B, 2016 WL 3745682, at *4 (N.D. Tex. July 13, 2016) (“If Burdett is a Texas resident . . . the Court [*13]  would need only apply Texas law. If Burdett is a Georgia resident . . . the Court would need to apply both Texas and New York law.”); Tullis v. Georgia-Pac. Corp., 45 S.W.3d 118, 123 (Tex. App.–Fort Worth 2000, no pet.) (” [The Texas] legislature sought to remedy the problem that Texas had become a popular forum for plaintiffs whose claims were time-barred by shorter statutes of limitations in the states where those claims arose.”) (citing Owens Corning, 997 S.W.2d at 574).

The Court notes that this case is strikingly similar to a recent case from the United States District Court for the Western District of Texas. In Ferguson v. Sevin, Judge Pitman granted summary judgment after finding that the Louisiana statute of limitations barred a personal injury suit filed by a Mississippi resident who had been injured in Louisiana by a Texas resident. No. 1-15-CV-462 RP, 2016 WL 164640, at *2 (W.D. Tex. Jan. 13, 2016) (“Plaintiff is a resident of Mississippi and the collision underlying this action occurred in Louisiana. Accordingly, Plaintiff’s claims are subject to the statutes of limitations of both Texas and Louisiana.”). Likewise, the personal injury claim of Plaintiff Oubre, who is not a Texas resident, and who was injured in an accident occurring in Louisiana, is, on its face, subject to the statutes of limitations [*14]  of both Texas and Louisiana.

 

1. Oubre’s response does not challenge Schlumberger’s evidence, and it instead deflects attention to the MSA and to the Complaint.

Oubre does not dispute that he is a Louisiana resident, nor does he dispute that the collision occurred in Houma, Louisiana, on May 14, 2014. Instead, his response raises two novel arguments. First, he asserts that Schlumberger is “estopped” from relying on Louisiana’s statute of limitations by the language of the MSA, which he contends is a contract between Schlumberger and his employer at the time. Second, Oubre contends that Louisiana is not the only location where a negligent act occurred in this case because his claims implicate management decisions made in Houston, i.e., “the creation of company policy and Schlumberger’s failure to train and supervise its employees pursuant to this policy.”

Magistrate Judge Froeschner’s Report and Recommendation focused on the first argument–that the MSA somehow benefitted Oubre or estopped Schlumberger from arguing Oubre’s suit was governed by the Louisiana statute of limitations. Judge Froeschner found that Oubre was not entitled to rely on the MSA, and Oubre’s Objections contend that he [*15]  is. However, this discussion somewhat misses the mark. Assuming, arguendo, that Oubre could rely on the MSA, the MSA calls for the application of “the laws of the State of Texas.” Section 71.031(a), which mandates that his suit is time-barred, clearly falls within the category of “laws of the State of Texas.”

Oubre’s second point is also unsuccessful. Oubre’s Complaint alleges, “Defendants are liable for the subject accident and Plaintiff’s injuries and damages by reason of their negligence, gross negligence, and conditions attributable to it, directly and/or vicariously, by and through their agents, representatives and/or employees.” He describes this allegation as broad enough to encompass decisions made in Schlumberger’s offices in Texas because the forklift driver “was self-evidently poorly trained and poorly managed.” Thus, he argues that Section 71.031 does not apply because acts contributing to his injury may have been committed in Texas rather than Louisiana. Instead of directly attacking Schlumberger’s evidence that the collision happened in Houma, Louisiana on May 14, 2014, Oubre seeks to expand the scope of his negligence claims, much like Lucy moving the football.

There are several problems here. First, [*16]  the single case Oubre cites on this point is wholly inapplicable. See, e.g., Vinson v. Am. Bureau of Shipping, 318 S.W.3d 34, 38 (Tex. App.–Houston [1st Dist.] 2010, pet. denied) (upholding plaintiff’s challenge to trial court’s forum non conveniens dismissal of lawsuit for personal injuries suffered in Singapore against Texas-based designer of allegedly defective derrick). Second, and more fatally, Oubre failed to object to the Magistrate Judge’s finding that “[his] injury occurred in Louisiana; the conduct which caused the injury occurred in Louisiana; . . . and the place where the relationship, if any, between the Parties was centered was solely on Schlumberger’s Houma, Louisiana, property.” Because Oubre declined to object to these findings, the Court declines to disturb them.1

 

1   Further, there are serious deficits in the summary judgment evidence that Oubre uses to support his contention that the forklift driver in Houma must have been trained, managed, employed, or supervised in some way from one of Schlumberger’s Texas offices. Oubre’s response presented only minimal evidence, such as choppy excerpts from the deposition of Scott Thibodaux. In those excerpts, Thibodaux stated that he is a “QHSE” manager for Schlumberger with an office in Houma, Louisiana, and he reports to “George [*17]  Fournier,” who is the “North Gulf Coast QHSE manager” in Lafayette, Louisiana. In turn, Fournier reports to “Eric Inglehart,” the “North America Offshore QHSE manager” located in Houston, Texas. Thibodaux also confirmed that he produced a report of his investigation of the incident, and he stated that “everyone has access to that report; everyone within the organization, . . . includ[ing] people in Sugarland, Texas.” Thibodaux did confirm that the forklift driver was an employee of Schlumberger Techonology Corporation, the same company that employed him, Fournier, and Inglehart. Oubre attached the “Light Accident/Non-conformance Report” created by Thibodaux, which gave cursory details of the incident, such as that “Forklift Commentary Drive Retraining” was completed on September 19, 2014. But none of this evidence contains anything approaching an assertion of fact as to where the forklift driver was trained, supervised, hired, or managed prior to the collision, or by whom.

 

1. Schlumberger is entitled to summary judgment on its affirmative defense of limitations.

After reviewing the motion for summary judgment, the response, the briefing by counsel, and the summary judgment evidence presented by [*18]  the parties–as well as the Magistrate Judge’s Report and Recommendation and Oubre’s Objections thereto–the Court finds that there is no genuine dispute that the collision took place on May 14, 2014, in Houma, Louisiana, and that Oubre is a resident of Louisiana who filed his personal injury lawsuit in Texas on May 15, 2015. Further, the Court adopts Magistrate Judge Froeschner’s finding that the injury at issue–as well as the conduct that caused the injury–occurred in Louisiana. Accordingly, the Court finds that Oubre’s suit is barred by the one-year time limit set out in Louisiana Civil Code art. 3492.

 

CONCLUSION

For the reasons explained above, Oubre’s Objections are SUSTAINED, in part, and OVERRULED, in part. Further, as discussed above, the Court ADOPTS, in part, the Magistrate Judge’s Report and Recommendation, and the Court REJECTS, in part, the Report and Recommendation.

The Court finds that there is no genuine dispute of material fact as to whether Oubre’s suit is time-barred. Accordingly, Schlumberger’s motion for summary judgment on its affirmative defense of limitations is GRANTED.

SIGNED at Galveston, Texas, this 23rd day of September, 2016.

/s/ George C. Hanks, Jr.

George C. Hanks, Jr.

United States District [*19]  Judge