United States District Court, N.D. Mississippi, Oxford Division
MGM RESORTS MISSISSIPPI, INC. doing business as Gold Strike Casino and Resort, PLAINTIFF
THYSSENKRUPP ELEVATOR CORP., DEFENDANT
For MGM Resorts Mississippi, Inc., doing business as Gold Strike Casino And Resort, Plaintiff: Scott Burnham Hollis, LEAD ATTORNEY, JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE LLP, Olive Branch, MS.
For Thyssenkrupp Elevator Corp., Defendant: David Joseph Schexnaydre, LEAD ATTORNEY, PAJARES & SCHEXNAYDRE, LLC, Mandeville, LA.
MEMORANDUM OPINION AND ORDER
Debra M. Brown, UNITED STATES DISTRICT JUDGE.
This declaratory judgment action arises from a dispute between MGM Resorts Mississippi, Inc. d/b/a Gold Strike Casino & Resort (" Gold Strike" ), and ThyssenKrupp Elevator Corporation (" ThyssenKrupp" ) regarding whether the elevator maintenance contract they entered requires ThyssenKrupp to defend Gold Strike in an underlying state court case. ThyssenKrupp argues that it does not have a duty to defend or indemnify unless and until there is a determination that Gold Strike did not contribute to the conduct alleged in the underlying case. Gold Strike argues that the claims asserted in the underlying case are within the scope of the contract at issue and, therefore, trigger ThyssenKrupp's duty to defend. Before the Court are the parties' cross-motions for summary judgment. Upon due consideration of the motions and for the reasons below, the Court finds that ThyssenKrupp is obligated to provide a defense in the underlying action and, therefore, summary judgment should be entered in favor of Gold Strike.
On or about May 27, 2002, Gold Strike and ThyssenKrupp entered an Elevator Maintenance Agreement wherein ThyssenKrupp agreed to maintain certain elevator and escalator equipment at the Gold Strike Casino in Robinsonville, Mississippi. See Elevator Maintenance Agreement [17-1]. According to the Agreement, ThyssenKrupp is required to:
Examine the elevator equipment for optimum operation.
Lubricate equipment for smooth and efficient performance.
Adjust elevator parts and components to maximize the elevator's performance and safe operation.
[Re-lamp] all signals as required (during regularly scheduled visits).
Repair or replace components worn due to normal wear.
Test equipment as outlined in the American National Standard Safety Code for Elevators and Escalators .... We will perform governor and safety tests on traction elevators once per year and relief ...