• Fifth Circuit Affirms Ruling that Subcontractor Does Not Have the Duty to Defend or Indemnify General Contractor Pursuant to the Pleadings
  • February 10, 2014 | Author: George B. Hall
  • Law Firm: Phelps Dunbar LLP - New Orleans Office
  • The Fifth Circuit applied Texas' "eight-corner" doctrine and affirmed a district court's ruling that a subcontractor did not owe the general contractor a duty to defend or indemnify pursuant to a plaintiff's complaint that did not allege negligence against the subcontractor. Weeks Marine, Inc. v. Standard Concrete Products, Inc., 737 F.3d 365 (5th Cir. 2013).

    The underlying case involved the slip and fall of an employee of a subcontractor when he fell from a crane while making repairs on a module contracted by his employer. The general contractor sought declaration that the subcontractor was contractually obliged to defend and indemnify it. The district court dismissed the action.

    The Fifth Circuit affirmed. Under Texas law, the duty to defend is circumscribed by the "eight-corners" doctrine, so that a defense is determined solely by the language of the indemnity provision and the allegations in the third-party pleadings. The court agreed that the agreement between the parties required indemnification only with respect to claims related to the workmanship of the subcontractor. The employee's complaint attributed his accident to the construction process itself. Thus, the Fifth Circuit concluded, the accident did not originate from faulty workmanship of the subcontractor and a defense was not afforded per the parties' agreement. Further, the court held there was no duty to indemnify since "the same reasons that negate the duty to defend likewise negate any possibility that the [indemnitor] will ever have a duty to indemnify."