Walters v. A-Way Tank Service12/29/2000
mited to, claims, demands or suits for bodily injury, illness, disease, death, loss of wages or services, maintenance cure or property damage) which may be brought against [A-Way], its Stockholders, Officers, Directors, Agents and/or Employees (including, but not limited to, those brought by CESI, CESI's Employees and Agents, Subcontractors, their Agents and Employees, or any Third Party) incident to, arising out of, connected in any manner with, directly or indirectly, or resulting from the activities of CESI, its Agents, Employees, Subcontractors, or Third Parties, or connected in any manner with the performance of the work by the under the SERVICE AGREEMENT or failure to perform thereunder by CESI, its Agents, Employees, Subcontractor or Third Parties or in connection with the work to be performed, services rendered or material furnished to or for the benefit of [A-Way]. The foregoing indemnification by CESI shall apply regardless of whether such claim, demand, loss, damage, suit and/or expense is contributed to in part by the negligence or fault of [A-Way] or the concurrent negligence or fault of its Stockholders, Officers, Directors, Agents and/or Employees and/or whether such was due to imperfections, latent, patent or pre-existing, or otherwise, or from any other cause whatsoever. Pursuant to the terms of the SERVICE AGREEMENT, CESI agrees to fully insure the above contractual indemnity and to cause such insurers to name [A- Way] in such insurance as an insured and to waive all rights of subrogation against [A-Way], its Stockholders, Officers, Directors, Agents and/or Employees. (Emphasis added.)
On March 10, 1993, CESI and Lloyds responded to the cross-claim by filing an answer denying responsibility to A-Way for indemnity and a for a legal defense.
In the months that followed, the trial court considered a number of summary judgment motions addressing the employment status of Walters. Ultimately, in separate judgments, the trial court concluded that Walters was the employee of both CESI and A-Way. In reaching that conclusion, the trial court dismissed Walters' negligence claims but preserved his intentional tort claims against both of these employers.
On September 5, 1995, A-Way filed a second cross-claim against CESI and Lloyds, again praying for indemnity and for a defense to Walters' suit. Wilkins and Mayeaux did not join in this cross-claim. CESI and Lloyds answered this cross-claim by again denying responsibility to A-Way for indemnity or a defense to Walters' suit for intentional torts or acts. A-Way, Wilkins, and Mayeaux dismissed their February 16, 1993 cross-claim by motion and order filed July 23, 1998. However, in the dismissal, A-Way reserved its rights asserted in its September 5, 1995 cross-claim.
On April 2, 1996, Walters dismissed all claims against all defendants with prejudice, subject to the reservation of his claims against CESI solely to the extent necessary to preserve his rights against Lloyds. This motion and order dismissing the claims resulted from a negotiated settlement. A judgment of the trial court signed on August 1, 1997, granted summary judgment in favor of A-Way and against Lloyds to the extent that Lloyds was required to reimburse and indemnify A-Way for its reasonable defense costs and attorney fees associated with its defense of Walters' claim based on ordinary negligence.
The April 2, 1996 settlement compromised the intentional tort aspect of Walters' claim, and the rendition of the August 1, 1997 judgment left as the only indemnity issue the indemnification of A-Way for its contribution to the intentional tort claim settlement and repayment of the defense costs. On November 10, 1999, CESI and Lloyds filed a m
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