Mandate Issued: 05/24/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROGER H. STUART, TRIAL JUDGE
Pritchett, Jr., David L. Kearney, DURBIN, LARIMORE &
BIALICK, Oklahoma City, Oklahoma, for Plaintiff/Appellee
A. Lagow, Nathaniel T. Smith, HOLDEN & MONTEJANO, Tulsa,
Oklahoma, for Defendant/Appellant
DEBORAH B. BARNES, PRESIDING JUDGE
This case stems from an accident that occurred at an oil well
in Texas. ETS Oilfield Services, LP (ETS) appeals from the
trial court's order granting summary judgment in favor of
American Energy -- Permian Basin, LLC (AEP). ETS is a
contractor for AEP. The dispositive issue on appeal is
whether the parties intended in their written agreement for
ETS to indemnify AEP from AEP's separately contracted
duty to indemnify a third-party contractor sued by an ETS
employee. We conclude that although the agreement between AEP
and ETS contains general language susceptible to a broad
interpretation, it lacks the unequivocally clear language
necessary under Oklahoma law to make ETS responsible for
indemnifying AEP from AEP's contractual duty to indemnify
the third-party contractor. Consequently, we reverse and
remand this case to the trial court with instructions to
enter summary judgment in favor of ETS.
The present action stems from the filing of a lawsuit in the
District Court of Regan County, Texas, by Joshua McBride --
an employee of Eagle Testing Services LP (Eagle) -- against
C&J Well Services, Inc. (C&J).  McBride alleges in
his petition in the underlying case that while working as
"an employee for Eagle" he was "called to a
location to do repair work on a work over rig" in Texas.
McBride alleges he
was sitting on the edge of the cellar, holding a rope to
stabilize some equipment.... Suddenly, and without warning, a
member of the [C&J] crew, who was working on the floor
above, dropped a heavy pipe wrench, which fell, striking
[McBride] on the top of his hardhat, jolting his spine[.]
Pursuant to indemnification provisions contained in an
agreement between AEP and C&J, C&J tendered defense
of the Texas lawsuit to AEP. It is undisputed AEP
"accepted tender of the defense of [C&J] in the
underlying suit" pursuant to the "separate
[agreement] between AEP and [C&J] that provides the basis
for AEP's duty to indemnify and defend [C&J] in the
underlying [Texas] lawsuit."
A separate agreement also exists between AEP and ETS which
also contains indemnification provisions. The evidentiary
materials in the record on appeal indicate that ETS and
C&J are both contractors for AEP. AEP's written
agreements with ETS and C&J, both of which are found in
the record on appeal, each contain (in addition to
indemnification provisions and various other provisions) a
provision stating that ETS and C&J "shall be deemed
to be an independent Contractor[.]"
After accepting tender of the defense of C&J in the
underlying suit, AEP, in a May 2016 letter to ETS, made
"demand... upon [ETS] for defense and indemnification in
connection with the claims and allegations made against
[C&J]" in the Texas lawsuit. Upon ETS refusing to
accept this demand, AEP filed the present action in the
District Court of Oklahoma County seeking a declaratory
judgment on its demand for indemnification -- which ETS
describes as a demand for "pass-through" indemnity.
The parties have filed competing motions for summary
In its order, the trial court granted summary judgment in
favor of AEP. The order states that the trial court
"finds that the language of the indemnity agreement
between the parties is clear and explicit and requires [ETS]
to indemnify [AEP] from and against any expenses, costs or
liabilities it has incurred and will incur, of every kind and
character without limit arising out of the lawsuit"
filed by McBride against C&J.
From this order, ETS appeals.
¶8 Summary judgment is proper only if it appears to the
court that there is no substantial controversy as to the
material facts and that one of the parties is entitled to
judgment as a matter of law. Only when the evidentiary
materials eliminate all factual disputes relative to a
question of law is summary judgment appropriate on that
issue. The trial court's ruling on the legal issue is
reviewed de novo as a question of law. However, an appellate
court will reverse the grant of summary judgment if the
materials submitted to the trial court indicate a substantial
controversy exists as to any material fact.
Plano Petroleum, LLC v. GHK Exploration, L.P., 2011
OK 18, ¶ 6, 250 P.3d 328 (citations omitted) (internal
quotation marks omitted). "When this Court reviews the
trial court's grant of summary judgment, all inferences
and conclusions drawn from the evidence must be viewed in the
light most favorable to the party opposing the motion."
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