Dinh v. Amer Freedom Vessel

1Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2Appellee KYE is no longer represented by counsel and did not
file a brief. A July 15, 2005 letter to KYE from the clerk of this
United States Court of Appeals
Fifth Circuit
F I L E D
November 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-31243
Summary Calendar
_____________________
SAU DINH,
Plaintiff,
LOUISIANA COMMERCE AND TRADE ASSOCIATION
SELF INSURER FUND,
Intervenor - Appellant,
versus
AMERICAN FREEDOM VESSEL; ET AL.,
Defendants,
KYE INC.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
USDC No. 2:03-CV-3013
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
The Louisiana Commerce and Trade Association Self Insurer Fund
(“LCTA”) appeals the summary judgment in favor of KYE, Inc.
(“KYE”).2

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court was returned with the following notation: “Box Closed No
Forwarding Order on File”.
2
LCTA was the workers’ compensation carrier for Structure
Services Ltd. Pursuant to an “Out Source Agreement”, Structure
Services provided laborers, including plaintiff Sau Dinh, to work
at KYE’s shipyard. Dinh was injured while performing repair work
aboard a vessel at KYE’s shipyard. LCTA paid workers’ compensation
benefits to Dinh under the Longshore and Harbor Workers’
Compensation Act.
The district court held that Dinh was KYE’s borrowed employee,
but that the indemnity clause in the contract between KYE and
Structure Services barred LCTA’s claim against KYE for
reimbursement of the LHWCA benefits LCTA had paid to and on behalf
of Dinh.
On appeal, LCTA argues that the district court erred by ruling
that the indemnity clause in the Structure Services/KYE contract
bars or defeats LCTA’s reimbursement claim. LCTA’s claim is based
on Total Marine Services, Inc. v. Director, OWCP, 87 F.3d 774, 779
(5th Cir. 1996), in which this court stated that “a borrowing
employer is required to pay the compensation benefits of its
borrowed employee, and, in the absence of a valid and enforceable
indemnification agreement, the borrowing employer is required to
reimburse an injured worker’s formal employer for any compensation
benefits it has paid to the injured worker.”

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3
The contract between Structure Services and KYE provides:
“Structure Services, Ltd. agrees to indemnify and hold [KYE]
harmless from any claim due to negligence or injuries of their
employees or by any governmental claim for withholding taxes,
F.I.C.A. taxes and unemployment taxes attributable to covered
workers.” The district court held that this language constitutes
a “valid and enforceable indemnification agreement” under Total
Marine that relieves KYE of its obligation to reimburse LCTA for
compensation benefits LCTA paid to Dinh.
LCTA argues that this provision should not bar its
reimbursement claim because the provision is ambiguous and does not
expressly provide indemnity for LHWCA liabilities. It also
contends that reference to other portions of the Agreement supports
its contention that indemnity for LHWCA liabilities was not
mutually intended by the indemnity language. Specifically, LCTA
notes that the contract does not require a waiver of the right of
any insurer of Structure Services to recover from KYE. Finally,
LCTA contends that any arguable indemnity obligation to KYE on the
part of Structure Services should not bind LCTA because it is not
a party to the contract.
The district court considered and rejected all of LCTA’s
contentions, reasoning, in its ruling from the bench:
[T]he contract, although it could have
been more artfully written, ... must [be]
give[n] its plain and common sense meaning.
Clearly, this is an arrangement where a labor
pool employer is providing employees to KYE

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4
and, as part of that arrangement, the labor
pool employer provides the Workers’ Comp
insurance, among others. That’s one of the
reasons for the agreement. So, they would
administer the Workers’ Compensation claims as
set forth in the contract and be responsible
for the insurance.
It would be sheer folly to go through
this arrangement and then to be open to ...
paying the claim without insurance.
....
[T]he Court interprets the word
“injuries” in that [indemnity] clause, in
general, as an indemnification clause, as
contemplated by Total and its progeny. And,
that’s the only way it really makes any sense
in this context.
Based on our de novo review of the summary judgment record in
this case, we agree with the district court’s reasoning and
conclusion. The summary judgment is, therefore,
AFFIRMED.

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