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In re Complaint of Natures Way Marine, LLC

United States District Court, S.D. Alabama, Southern Division

November 25, 2013

IN THE MATTER OF THE COMPLAINT OF NATURES WAY MARINE, LLC, Owner of the Tank Barge NWM 431 or AO 431 (Hull No. D 557753) for Exoneration from or Limitation of Liability

For Natures Way Marine, LLC, Plaintiff, Counter Claimant: John P. Kavanagh, Jr., LEAD ATTORNEY, Burr Forman, Mobile, AL; Marion A. Quina, Jr., Thomas Marriott Wood, LEAD ATTORNEYS, Burr & Forman LLP, Mobile, AL.

For Charles E Brunson, Claimant: Michael G. Huey, LEAD ATTORNEY, Huey Law Firm LLC, Mobile, AL.

For FlexiCrew Staffing, Inc., Claimant: Brian P. McCarthy, LEAD ATTORNEY, William Gray Chason, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL.

For Commerce & Industry Insurance Company, Claimant: William Gray Chason, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL.

For APEX/FCC LLC d/b/a APEX/FCC Oilfield Services, Claimant, Cross Defendant: Jeffrey William Melcher, LEAD ATTORNEY, Atlanta, GA.

For FlexiCrew Staffing, Inc., Cross Claimant: William Gray Chason, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL.

For FlexiCrew Staffing, Inc., Counter Defendant: Brian P. McCarthy, LEAD ATTORNEY, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL.

OPINION

Page 1232

ORDER

KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Flexicrew Staffing, Inc. (" Flexicrew" )'s Motion for Summary Judgment against Natures Way Marine, LLC (" Natures Way" ) and Apex, LLC, d/b/a FCC Oilfield Services (" Apex" ) (Docs. 178-180), Natures Way's Response (Doc. 200), Apex's Response (Doc. 201), Flexicrew's Replies (Docs. 205-206) and Apex's Sur-Reply (Doc. 224); and U.S. Environmental Services, LLC (" USES" )'s Motion for Summary Judgment against Natures Way and Apex (Docs. 190-192), Apex's Responses (Doc. 216), Natures Way's Response (Doc. 217), and USES' Reply (Docs. 225, 226).

I. Background

A personal injury lawsuit filed by temporary laborer Charles Brunson (" Brunson" ), regarding his alleged exposure to toxic chemicals while cleaning a barge on the Theodore Industrial Canal in Mobile County, Alabama, spawned a number of claims, cross-claims, and counter-claims among five (5) parties. As a result of this limitation of liability action filed by Natures Way, Apex filed a cross-claim against Flexicrew for indemnity/contribution (contractual and otherwise), alleging negligence within the indemnity claims, asserting it is a third party beneficiary to the August 13, 2010 labor staffing contract (" the contract" )[1] executed between USES [2] and Flexicrew.[3] (Doc. 175). Additionally,

Page 1233

Apex filed a separate suit for declaratory judgment against Flexicrew, CV 12-00507-WS-N, regarding its claim for indemnity which was consolidated, for all purposes, into the present case. (Doc. 58 at 2).

The relevant factual background is as follows. On September 6, 2011, barge [4] owner Natures Way Marine, LLC (" Natures Way" ) executed a charter agreement with Apex; Natures Way was the owner and Apex was the charterer. (Doc. 179-4). Apex planned to use the barge to transport " rainwater/wastewater" cargo. (Id.) A condition of the agreement was that Apex would return the barge to Natures Way in a " gas free" and clean condition. (Id.) After transferring the rainwater/wastewater from its facility to the barge tanks and back out for processing, Apex hired USES to remove the rainwater and clean the barge -- i.e., to provide a clean and " gas free" barge. Specifically, pursuant to a previously executed August 13, 2010 contractual agreement for temporary labor between USES and Flexicrew, USES hired Flexicrew in September 2011 to provide two (2) laborers to clean the barge's tanks.

The USES-Flexicrew contract provides, in relevant part, as follows:

This Agreement.....between.....USES or " contractor" [] and Flexicrew...... " subcontractor" [] concerns services and work to be provided by you [Flexicrew] as a subcontractor to us [USES], regarding a project to be performed for our client.
* * *
....This Agreement describes the work that you [Flexicrew] will do for us [USES], and the terms of our relationship. This Agreement may be used for a single project, or may serve as a master services agreement for a series of projects. You [Flexicrew] agree to work as an independent contractor, and not as an employee of us.
* * *
You [Flexicrew] agree to provide the services described as follows, and referred to as the Work: certified job specific supervisors, foreman and field techs...Administration Personal [sic]...job specific necessary transportation equipment...It is specifically agreed that for purposes of workers compensation, we [USES] are a statutory employer of you [Flexicrew], your [Flexicrew's] employees, ...

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