ESTATE of CHRISTOPHER MINK, deceased, by and through its co-personal administrators HOLLY ESTES and CHRISTOPHER FERGUSON Plaintiff,
GCM, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Defendant GCM, LLC moves for summary judgment on Carmeuse Lime & Stone's cross-claim for indemnification, arguing that the parties' contract does not require GCM to indemnify Carmeuse for costs incurred in defending the underlying general maritime law action because Carmeuse's negligence was the sole cause of GCM employee Christopher Mink's death. The Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and § 1333.
I. Factual and Procedural Background
On Saturday, December 17, 2011, GCM, LLC's (hereinafter "GCM") towboat, the M/V Anna C (hereinafter "Anna C"), was scheduled to tow a barge to Carmeuse Lime and Stone's (hereinafter "Carmeuse") Black River Dock, where it would be loaded with lime and stone product bound for the Zimmer power plant. (Doc. # 111-5 at 14-16, 40-42). GCM assigned Captain William Terrell (hereinafter "Captain Terrell") and Richard Littlejohn (hereinafter "Littlejohn") to work aboard the Anna C that day. ( Id. ). GCM also called in employee Christopher Mink (hereinafter "Mink") to work as a replacement deckhand. ( Id. ).
On that date deckhands Littlejohn and Mink attached cables and winches to the barge covers, which Carmeuse barge load operator Pamela Adams (hereinafter "Adams") opened using barge load controls. (Doc. # 111-1 at 38-42 and Doc. # 111-5 at 56-57). Adams, who was operating the controls for the first time without supervision, waited until loading was complete and then closed the barge covers. (Doc. # 111-1 at 28-30). Adams had been trained to wait for the deckhands to unhook the cables and give the all clear signal via radio before she resumed operating the load controls. ( Id. at 33, 49-53). However, as Mink attempted to unhook the cable, it went taut and pinned him against the coaming of the barge, causing severe injuries that ultimately resulted in his death. ( Id. ).
Based on the record, it is unclear what caused the drop-down cable go taut. In the aftermath of the accident, Adams signed a written statement, at Carmeuse's request, indicating that she had heard Littlejohn tell her to raise the drop-down cable. (Doc. # 111-6). When Adams was deposed approximately one year later, she had difficulty recalling the details of the accident due to the ensuing chaos and could not confidently say that the signed statement was accurate. (Doc. # 111-1 at 9-12). However, she refused to accept any responsibility for Mink's death. ( Id. ).
Neither Captain Terrell nor Littlejohn saw Adams raise the drop down-cable. (Doc. # 111-7 at 88-90, 94, 96, 109-10; Doc. # 111-5 at 224-25). Captain Terrell speculated that Adams caused the accident by raising the drop down cable without waiting for Littlejohn's signal, but he was unable to offer more concrete information because he was otherwise occupied at the time of the accident. (Doc. # 111-7 at 88-90, 94, 96, 109-10). Littlejohn was also engaged in other duties at the time of the accident, so he came on the scene after Mink had been pinned to the barge coaming. (Doc. # 111-5 at 75-78 and 172-73). He felt that Mink could not have become pinned unless he stepped into the bight of the line, rather than approaching it away from the direction of the pull. ( Id. ). When asked about his radio communications with Adams, Littlejohn stated that he could not recall telling her to raise the drop down cable. (Doc. # 111-5 at 224-25).
Although Christopher Mink was one of GCM's regular employees, and had worked at the Black River Dock on a few occasions, he usually worked at the Silver Grove Dock. ( Id. at 46-50 and 68-70). On the day of the accident, he was filling in for one of the regular deckhands assigned to the Black River Dock. ( Id. ). Captain Terrell admitted that extra precautions should be taken in briefing and supervising deckhands with limited experience at a given facility. ( Id. ). Mink occasionally decked for Captain Terrell at the McGinnis and Silver Grove docks, but Captain Terrell could not recall what duties Mink regularly performed there. ( Id. at 182-84). Captain Terrell also failed to find out whether Mink was familiar with the Black River Dock. ( Id. ).
Littlejohn explained that working in close proximity to large cables and wires was a common hazard that river deckhands encounter. (Doc. # 111-5 at 164-66). He felt it was common knowledge among deckhands that one must never step into the bight of a line because even slack cables can become taut without warning. ( Id. ). Such information could even be found in the deckhand manual. ( Id. ). Littlejohn also acknowledged that Mink could not have been caught in the pinch point if he had followed protocol and approached the anchor shackle away from the direction of the pull. ( Id. at 169). Although Littlejohn did go through a safety briefing with Mink before approaching the barge, at which time they discussed which tasks each of them would perform, he did not specifically tell Mink where he should stand when unshackling the pull cable because "[e]verybody knows to stand out of the pinch point and that's where he wound up." ( Id. at 75-78).
All dealings between GCM and Carmeuse are governed by a Harbor Boat Service Agreement (hereinafter "Agreement"). (Doc. # 102-2 at 1). The Article pertaining to insurance and indemnification provides, in pertinent part, as follows:
GCM shall observe all applicable federal, state, and local laws and regulations and orders issued thereunder and agrees to and does hereby indemnify, save harmless, protect and defend Carmeuse from and against any and all suits, legal proceedings, causes of actions, claims, demands, penalties, fines, liabilities, damage, costs and expenses (including all costs of legal proceedings and attorney's fees), for bodily injury, including death, resulting therefrom, destruction or damage to any property, contamination of or adverse effects on the environment, any violation of federal, state or local laws, regulations or orders or claims of Carmeuse or GCM's employees or any other person caused by any act or omission of GCM, its agents, employees, servants, subcontractors, vendors, or invitees in the performance of its services hereunder.
( Id. at 12-13).
On February 10, 2012, Mink's co-executors, Holly Estes and Christopher Ferguson, filed this action in the U.S. District Court for the Eastern District of Kentucky. (Doc. # 1). The original Complaint brings Jones Act and unseaworthiness claims against GCM, LLC and its affiliates. ( Id. ). The Amended Complaint adds a general maritime claim for negligence against Carmeuse, which prompted the company to demand indemnification from GCM pursuant to the Agreement. (Docs. # 27 and 102-3). When GCM declined to provide the requested funds, Carmeuse filed this cross-claim, claiming that the accident arose from the acts or omissions ...