Daniel D. Pipitone, Kenneth Wayne Bullock, II, Chamberlain, Hrdlicka, White,
Williams & Aughtry, Houston, TX, for Plaintiff-Appellant.
Andrew T. McKinney, Litchfield Cavo, L.L.P., Houston, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before DAVIS and JONES, Circuit Judges, and MILAZZO, District Judge. [*]
JONES, Circuit Judge.
This case revolves around the terms of an indemnity agreement between Weeks Marine, Inc. (" Weeks Marine" ) and Standard Concrete Products, Inc. (" Standard Concrete" ). In 2011, John Johnson, Jr., (" Johnson" ) filed suit in Alabama state court against several entities, including Weeks Marine and Standard Concrete, for the injuries that he allegedly sustained when he fell from his crane while working on the I-10 Mississippi River Bridge fender replacement and reconditioning project (" the Project" ). In the present case, Weeks Marine, the general contractor on the Project, seeks a declaration that Standard Concrete, Johnson's employer, is contractually obliged to defend and indemnify it in the underlying state court action. Because the indemnity agreement is not applicable to the underlying suit, we affirm the judgment in favor of Standard Concrete.
Shortly after Weeks Marine was selected as general contractor for the Project, it accepted Standard Concrete's bid for the manufacture of pre-cast concrete fender modules. The parties executed a contract, which consists of two documents: Purchase Order No. 161845 (" Purchase Order" ) and the Additional Terms and Conditions (" Additional Terms" ). The present dispute involves the following provisions from the contract:
Description of Material (Purchase Order): Seller (Standard Concrete) shall furnish all supervision, equipment, forms, materials, labor, supplies, fabrication, coatings, quality control, etc. to provide pre-cast fender modules.
Paragraph 2 (Purchase Order): Inserts: Buyer (Weeks Marine) to provide all inserts for shear keys and whalers and lift hardware. Seller (Standard Concrete) to install lift hardware to facilitate lifting and handling.
Paragraph 10 (Purchase Order): Property and Personal Liability: Seller (Standard Concrete) shall save harmless and indemnify Buyer (Weeks Marine) from and against all claims, suits (including counsel fees and other expenses), judgments and awards stemming from any damage to property or injury (including death) to persons (including any damage or injury to the property or the person of any employee of either Buyer or ...