United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Court has before it Defendants Fowlkes Plumbing, LLC,
Sullivan Enterprises, Inc., and Quality Hath & Air,
Inc.'s motion for summary judgment [Doc. No. 102]. Having
considered the matter, the Court finds that the motion should
be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
2015, the nonparty Chickasaw County School District entered
into a contractual agreement ("Agreement" or
"the Agreement") with Defendant Sullivan
Enterprises to perform window restoration work on the Houlka
Attendance Center. See Affidavit of Dr. Betsy
Collums [Doc. No. 107-1] at ¶ 7 & Document
Al01-2007, Agreement between Chickasaw County School District
and Sullivan Enterprises, Inc. [Doc. No. 107-2, Exhibit A]
(hereinafter "Agreement"). On July 30, 2015, while
construction work was being done, a fire began that consumed
the entire Houlka Attendance Center Building. Doc. No. 107-1
at ¶ 11.
result of this fire, Plaintiff Liberty Mutual, the school
district's property insurer, paid the school district
$4.3 million for the damages caused to the building.
Affidavit of Jay Goldstein [Doc. No. 107-4] at ¶ 13.
Liberty Mutual then brought this subrogation action against
the Defendants, alleging their negligence had started the
26, 2017, the Magistrate Judge permitted the parties to
conduct limited discovery on the Defendants' motion for
summary judgment as to their defenses of waiver of
subrogation. [Doc No. 67].The parties have conducted that
discovery, filed their motions and supporting briefs, and the
matter is now ripe for review.
SUMMARY JUDGMENT STANDARD
judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Fed. R. Civ. P. 56(a); Johnston &
Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561
(5th Cir. 2013). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a sufficient showing to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp., 477
U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 323, 106 S.Ct. 2548.
"An issue of fact is material only if its resolution
could affect the outcome of the action." DeBlanc v.
St. Tammany Par. Sch. Bd, 640 Fed.App'x 308, 312
(5th Cir. 2016) (per curiam) (quoting Manning v.
Chevron Chem. Co., LLC, 332 F.3d 874, 877 (5th
Cir. 2003) (quoting Wyatt v. Hunt Plywood Co., 297
F.3d 405, 408 (5th Cir. 2002) (internal quotation marks
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by ... affidavits, or by
the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.' "
Id. at 324, 106 S.Ct. 2548; Littlefield v.
Forney Indep. Sch Dist, 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61
F.3d 313, 315 (5th Cir. 1995). The Court "
'resolve[s] factual controversies in favor of the
nonmoving party, but only where there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.' " Thomas v.
Baldwin, 595 Fed, Appx. 378, 378 (5th Cir. 2014) (per
curiam) (quoting Antoine v. First Student, Inc., 713
F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and
citation omitted)). "[T]he nonmoving party cannot defeat
summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.' "
Id. at 380 (quoting Hathaway v. Bazany, 507
F.3d 312, 319 (5th Cir. 2007)).
contend that Liberty Mutual is barred from recovering damages
against them because the Agreement between the school
district and Sullivan Enterprises waived subrogation rights
for damages caused by the fire. They argue that AIA Document
A201-2007, General Conditions of the Construction Contract,
which contains a waiver of subrogation provision, is
incorporated by reference into the parties' Agreement.
Liberty Mutual argues that Document A201-2007 is not a part
of the Agreement. Further, it argues that even if Document
A201-2007 is a part of the Agreement, it does not apply to
all the damages for which it claims recovery.
Is AIA Document A201-2007 a part of the Agreement between the
School District and Sullivan Enterprises?
opposing summary judgment, Liberty Mutual argues that the
School Board was never aware of Document A201-2007, nor was
it physically attached to the Agreement. Therefore, argues
Liberty Mutual, the document cannot be a part of the
Agreement because it was never approved by the School Board
as required by Mississippi law, nor was it incorporated into
make two arguments in opposition to Liberty Mutual's
stance: first, that the School Board possessed a duty to
attach Document A201-2007 to the Agreement, and thus Liberty
Mutual may not argue the lack of attachment prevents Document
A201-2007 from being a part of the Agreement. Second, that
Document A201-2007 was in any event incorporated by reference
into the Agreement. The Court considers these arguments in
party disputes that the School Board and Defendant Sullivan
Enterprises entered into the Agreement [Doc. No. 107-2,
Exhibit A]. It stands to reason, then, that if Document
A201-2007 is part of the Agreement, the school board approved
Document A201-2007 when it approved the Agreement. And if the
Document A201-2007 was not a part of the Agreement, it has no
bearing on this case. Thus, the question the Court must first
decide is whether Document A201-2007 was a part of the
interpretation under Mississippi law is a
"three-tiered" process. Gatlin v. Sanderson
Farms, Inc.2007 So.2d 220, 222 (Miss. 2007)(citing
Pursue Energy Corp. v. Perkins,558 So.2d 349,
351-53 (Miss. 1990)). The court must first look to the
"four corners of the contract and at the language the
parties used in expressing their agreement."
Id. "When an instrument's substance is
determined to be clear or unambiguous, the parties'
intent must be effectuated." Id. (internal
quotations omitted). A court may apply the canons of contract
construction, however, where the intent of the parties is