Opinion
No. 05-14-01364-CV
05-09-2016
EXCO RESOURCES, INC., Appellant v. CUDD PRESSURE CONTROL, INC. AND CUDD PUMPING SERVICES, INC., Appellees
On Appeal from the 160th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-13-13248
MEMORANDUM OPINION
Before Justices Bridges, Stoddart, and O'Neill
Opinion by Justice Stoddart
The Hon. Michael J. O'Neill, Justice, Retired, Assigned.
Exco Resources, Inc. appeals from a summary judgment dismissing its suit for a declaratory judgment that Cudd Pressure Control, Inc. and Cudd Pumping Services, Inc. (collectively Cudd) were obligated to defend and indemnify Exco in a lawsuit filed by injured Cudd employees in Louisiana. In four issues, Exco contends (1) Cudd's motion for summary judgment was not ripe and the trial court lacked jurisdiction to grant it; (2) Exco established its right to summary judgment; (3) the trial court erred by applying Louisiana law because the contract contains a valid choice of law provision in favor of Texas; and (4) the trial court erred by denying Exco's motion for summary judgment. We affirm the trial court's judgment.
BACKGROUND
Exco and Cudd entered into a Master Service and Supply Agreement (MSSA) for the purchase of goods and services for Exco's oilfield operations in the United States. The MSSA contains broad mutual indemnity provisions, with special provisions relating to Texas and to Louisiana. The MSSA also contains a general choice of law provision stating Texas law applies to the interpretation of the agreement and the rights of the parties under the agreement.
In 2011, Exco entered into a work order with Cudd, which incorporated the terms of the MSSA, for hydraulic fracking of wells in Exco's East Texas and Northern Louisiana operating area. In 2012, Exco's office in Grand Cane, Louisiana contacted Cudd's office in Kilgore, Texas to arrange for the fracking of a well in Louisiana under the terms of the work order and the MSSA. Three Cudd employees were injured in an accident while working on the Exco well in Louisiana. The employees sued Exco in Louisiana for damages. Exco answered, denied liability, and alleged several defenses, including that Cudd's negligence caused the accident. Exco then demanded that Cudd defend and indemnify Exco in the lawsuit under the terms of the MSSA and Texas law. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 127.001-.007 (the TOAIA). Cudd refused, arguing Louisiana law applied because the accident occurred in Louisiana and an agreement to indemnify Exco for its own negligence or fault is invalid under the Louisiana Oilfield Anti-Indemnity Act (the LOAIA). See LA. REV. STAT. § 9:2780 (West, Westlaw through 2016 1st Extra. Sess.).
Before filing suit in Louisiana, two of the employees sought pre-suit depositions from Exco under rule 202 of the rules of civil procedure. TEX. R. CIV. P. 202.
Exco then filed this suit against Cudd in Texas seeking a declaratory judgment that Cudd has a duty to defend and indemnify Exco for the Louisiana lawsuit under the MSSA's broad provision for indemnity regardless of who may be at fault. Cudd answered and asserted that Louisiana law applied to the indemnity provisions. Cudd argues that under the specific MSSA provision relating to Louisiana, Exco is entitled to indemnity and a defense only for injuries caused by Cudd's negligence or fault. Both parties filed motions for summary judgment. The trial court granted Cudd's motion, denied Exco's motion, dismissed Exco's lawsuit, and awarded Cudd attorney's fees.
The trial court denied Exco's motion and granted Cudd's motion in part, reserving the issue of attorney's fees for a later hearing. The trial court later granted Cudd's motion for entry of attorney's fees and rendered a final judgment incorporating its orders on the motions for summary judgment.
DISCUSSION
A. Standard of Review
We review the trial court's summary judgment de novo, Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and apply the well-established standards for reviewing summary judgments. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When both parties move for summary judgment, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all questions presented. Id. We render the judgment the trial court should have rendered or reverse and remand if neither party has met its summary judgment burden. Id.; Emps. Reinsurance Corp. v. Am. Sw. Ins. Managers, Inc., 261 S.W.3d 432, 435-36 (Tex. App.—Dallas 2008, pet. denied).
B. Jurisdiction
Exco contends the trial court lacked jurisdiction to grant Cudd's motion for summary judgment because the validity of an indemnity agreement under the LOAIA cannot be determined before the indemnitee's liability is decided in the underlying lawsuit. Exco characterizes this as a ripeness issue.
Cudd did not file a counterclaim or request affirmative relief from the trial court. Its motion for summary judgment raised the choice of law issue as a defense to Exco's claims for indemnity and damages.
Ripeness "is a threshold issue that implicates subject matter jurisdiction . . . [and] emphasizes the need for a concrete injury for a justiciable claim to be presented." Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011) (quoting Patterson v. Planned Parenthood of Hous. & Se. Tex., 971 S.W.2d 439, 442 (Tex. 1998)). In evaluating ripeness, we consider whether the facts are sufficiently developed "so that an injury has occurred or is likely to occur, rather than being contingent or remote." Patterson, 971 S.W.2d at 442; see also Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000). "Although a claim is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon ripen, the case must be dismissed." Robinson, 353 S.W.3d at 755; see Perry v. Del Rio, 66 S.W.3d 239, 251 (Tex. 2001).
Under Louisiana law, whether the LOAIA bars an indemnity claim can only be resolved after the indemnitor's liability for the accident is determined. See Meloy v. Conoco, Inc., 504 So. 2d 833, 839 (La. 1987) ("Whether an oil company (indemnitee) is free from fault and thus outside the scope of the Act can only be determined after trial on the merits."). Only if the indemnitee is not at fault will it be entitled to indemnity for defense costs. See id. at 838-39 (cause of action for indemnification for cost of defense does not arise until lawsuit is concluded and defense costs are paid); Webb v. Shell Offshore Inc., 557 So. 2d 276, 278 (La. App. 1990) ("Shell must assert its action for defense costs after the termination of the instant suit and may only recover if it is free of negligence or fault."). Thus, if Louisiana law applies, resolution of Exco's claim for indemnity and damages in this lawsuit must await the determination of Exco's liability in the Louisiana lawsuit.
However, the controversy in this case is not the ultimate outcome of an indemnity claim under the LOAIA, but rather what law to apply to Exco's claim for indemnity under the MSSA. The choice of law issue is ripe even if the outcome of that claim will depend on whether Exco is found to be at fault in the Louisiana suit. For Exco to prevail, Texas law must apply to the claim for indemnity. For Cudd to prevail, Louisiana law must apply to the claim for indemnity and Exco must be found negligent or at fault. See Meloy, 504 So. 2d at 839 ("The Act only prohibits indemnity for cost of defense where there is 'negligence or fault (strict liability) on the part of the indemnitee.' The Act does not apply where the indemnitee is not negligent or at fault."). If Louisiana law applies, the outcome of Exco's indemnity claim will have to await the determination of Exco's liability for the accident, see id., but that does not preclude resolution of the controversy over whether Texas or Louisiana law applies in this case.
The supreme court's decision in Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228 (Tex. 2008), confirms there is no jurisdictional problem. In Sonat, the supreme court considered whether Louisiana law applied to a claim for indemnity under the terms of a master services agreement even though Sonat's liability had not been determined in the underlying litigation. See id., 271 S.W.3d at 238 (Sonat "has never conceded negligence; to the contrary, its settlement documents specifically denied any liability."). Because liability had not been determined, the supreme court affirmed the court of appeals' judgment, which reversed the application of Texas law and remanded the case to the trial court for further proceedings applying Louisiana law. Id. at 237-38. Thus, the choice of law issue was ripe in Sonat even though Sonat's liability for the underlying claim had not been determined.
On remand from the supreme court, Sonat stipulated to some fault in connection with the blowout. See Sonat Expl. Co. v. Cudd Pressure Control, Inc., 340 S.W.3d 570, 573-74 (Tex. App.—Texarkana 2011, no pet.).
We conclude that the choice between applying the TOAIA or the LOAIA under the facts of this case is ripe even though the ultimate result may depend on the determination of liability in the underlying litigation. Because the controversy decided by the trial court was ripe, the court had subject matter jurisdiction. We overrule Exco's first issue.
C. Conflict of Law
Exco's second and fourth issues argue the trial court erred by denying its motion for summary judgment because Exco presented evidence supporting the elements of its claim for indemnity and defense under Texas law. Exco's third issue contends the trial court erred by granting Cudd's motion for summary judgment and applying Louisiana law to the indemnity and defense claims. We discuss these issues together as they depend on the conflict of law analysis.
We first decide whether the laws at issue are actually in conflict. If the laws are not in conflict, there is no need to resolve the choice of law issue. Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex. 2004); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984). Both Texas and Louisiana have enacted statutes to regulate oilfield indemnity agreements. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 127.001-.007; LA. REV. STAT. § 9:2780. While concerning similar subject matter, the two statutes reach different results in most cases. Under the TOAIA, "oilfield indemnity clauses are valid if they are mutual and supported by liability insurance." Sonat, 271 S.W.3d at 231. Under the LOAIA, "such clauses are invalid if the party seeking indemnity was negligent or strictly liable." Id.; see Meloy, 504 So. 2d at 838 (holding LOAIA "nullifies completely any provision in any agreement that requires defense and/or indemnification where there is any negligence or fault on the part of the indemnitee"). Under the terms of the MSSA relating to Texas, the indemnity obligations are mutual and supported by liability insurance. Thus, if Exco were negligent or strictly liable, the mutual indemnity provisions would be valid under Texas law, but not under Louisiana law. Because these laws conflict, we must determine which state's law applies to the circumstances presented in this case. Sonat, 271 S.W.3d at 231.
Under the terms of the MSSA, if the LOAIA applies, a different indemnity provisions is substituted for the broad provision for indemnity regardless of fault. Under the substituted provision, the parties indemnify each other for losses caused by the willful misconduct, negligence, or fault of the indemnitor.
D. Analysis
Texas choice of law rules governing contracts follow the Restatement (Second) of Conflict of Laws. Id.; RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 187, 188 (Am. Law Inst. 1971). Section 187 applies to contracts where the parties expressly choose the law to be applied and section 188 applies to contracts where the parties fail to make an effective choice of law. We begin with the terms of the parties' contract to decide if they effectively chose the law to apply under these circumstances.
1. Section 187
The MSSA is a comprehensive agreement. It is fourteen pages long, single spaced, and contains eighteen articles, many with multiple subsections or paragraphs. The MSSA contemplates that Exco would purchase goods and services from Cudd by verbal or written work order in connection with exploration for, or development or production of, oil, gas, and other minerals in the United States. One provision of the MSSA states that Exco is the statutory employer of Cudd's employees for purposes of Louisiana workers compensation law and entitled to the protections afforded statutory employers under Louisiana law.
Article IV of the MSSA contains similar broad indemnity provisions for both parties. Cudd's indemnity obligation is defined as:
D. Indemnities
1. [CUDD'S] INDEMNITY OBLIGATIONS.
Exco quoted this broad indemnity provision as the basis for its claim in this lawsuit.
[CUDD] SHALL DEFEND, INDEMNIFY, HOLD HARMLESS, AND RELEASE [EXCO] FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, . . . BY ANY PARTY WHOSOEVER, . . . ARISING FROM ANY CLAIM OF LOSS, DAMAGE, INJURY, ILLNESS OR DEATH . . . REGARDLESS (EXCEPT AS EXPRESSLY PROVIDED HEREIN) OF WHO MAY BE AT FAULT . . . .
The indemnity provision identifies several specific theories of liability, including statute, contract, warranty, strict liability, negligence, and defects in property or equipment.
Article IV also contains the following special provisions:
G. Special Provisions Relating to Texas and Louisiana
1. TEXAS
(a) To the extent that a party's loss or liability for damage is subject to the provisions of the Texas Oilfield Anti-Indemnity Act (Chapter 127, Texas Civil Practice and Remedies Code) (the "Act"), both parties agree that in order to be in compliance with the Act regarding indemnification mutually assumed for the other party's sole or concurrent negligence, each party agrees to carry supporting insurance . . . .
. . . .
2. LOUISIANA
Notwithstanding anything to the contrary provided herein, to the extent, and only to the extent, Louisiana law (specifically, the Louisiana Oilfield Anti-Indemnity Act) is found to govern the indemnity provisions found in Article IV.D.1 and IV.D.2 In this Agreement then Article IV.D.1 and IV.D.1 (a) and IV.D.2 and IV.D.2(a) shall be deleted and the following substitute indemnity provisions contained in this Article IV.G.2(a) and (b) shall be inserted ONLY as to loss or liability for damages arising from death or bodily injury to persons. . . .
(a) To the extent permitted by law, [CUDD] shall protect, defend, indemnify and hold harmless [EXCO] from and against any losses, liabilities, costs, expenses, suits, actions, claims, . . . arising out of injuries to persons, including death, to the extent caused by, or occurring in connection with, any willful misconduct or negligent act or omission or fault of [CUDD] . . . .
Article XI of the MSSA contains the choice of law provision:
XI. APPLICABLE LAW
The parties agree and intend to provide that Texas law shall in all instances govern the interpretation of this Agreement and the rights of the parties under this Agreement and any amendments hereto, without regard, however, to any choice of laws or conflict of laws provisions which would direct the application of the laws of another jurisdiction.
"In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument." Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005) (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). We examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. J.M. Davidson, Inc., 128 S.W.3d at 229; Coker, 650 S.W.2d at 393. Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); W. Reserve Life Ins. Co. v. Meadows, 261 S.W.2d 554, 557 (Tex. 1953).
Exco argues the choice of law provision in Article XI of the MSSA requires application of Texas law. However, we cannot consider this provision in isolation. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994) ("No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions."; quoting Guardian Trust Co. v. Bauereisen, 121 S.W.2d 579, 583 (Tex. 1938)). This case involves a claim for indemnity and defense of a lawsuit filed in Louisiana arising out of injuries allegedly suffered working on Exco's well in Louisiana. Therefore, we must consider the choice of law provision in connection with the special provision relating to indemnity and Louisiana law.
In the special provision, Article IV.G.2, the parties recognized that Louisiana law might be found to govern their indemnity agreements. In that event, the parties agreed to substitute an indemnity provision that would be valid under Louisiana law. If the parties intended that Texas law would apply regardless of where the work was performed or the injury occurred, there would be no need for them to add a special provision for when Louisiana law applied to the indemnity terms. Exco's contention that the choice of law provision mandates the application of Texas law in all cases would render the special provision relating to Louisiana meaningless. See Coker, 650 S.W.2d at 394; Wells Fargo Bank, Minnesota, N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex. App.—Dallas 2006, pet. denied) ("A court must favor an interpretation that affords some consequence to each part of the agreement so that none of the provisions will be rendered meaningless.").
To the extent there is a conflict between the choice of law provision and the Louisiana indemnity provision, that conflict is resolved by the terms of the contract. The Louisiana indemnity provision begins by stating: "Notwithstanding anything to the contrary provided herein . . . ." When parties use such language in a contract, "they contemplate the possibility that other parts of their contract may conflict with that paragraph, and they agree that this paragraph must be given effect regardless of any contrary provisions of the contract." Helmerich & Payne Intern. Drilling Co. v. Swift Energy Co., 180 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Cleere Drilling Co. v. Dominion Explor. & Prod., Inc., 351 F.3d 642, 649 & n. 13 (5th Cir.2003)). The Texas Supreme Court recently gave effect to "notwithstanding any provision to the contrary" language to preclude arbitration under an arbitration agreement in the contract. G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 532 (Tex. 2015). The court recognized that although an earlier provision in the subcontract required arbitration, a later provision stated the subcontract did not require mandatory arbitration "notwithstanding any provision to the contrary" in any of the contract documents. Id. The court held the "notwithstanding any provision to the contrary" language specifically provided the means for resolving the conflict with the arbitration provision and required that the no-arbitration provision controlled. Id.
The same reasoning applies in this case. The parties agreed that "notwithstanding anything to the contrary provided herein"—such as the requirement to apply Texas law—to the extent Louisiana law is found to govern the indemnity provisions, a different indemnity agreement would be substituted for the broad indemnity specified earlier in the contract. This language indicates the parties expected that in some cases, Louisiana law rather than Texas law would apply to the indemnity provisions, and in that circumstance they agreed to different indemnity terms. This language resolves any conflict between the general choice of law provision and the specific provision regarding indemnity if Louisiana law applies. See id.
Exco again argues there has not been and cannot be a determination that Louisiana law applies because there has been no finding of liability against Exco in the underlying lawsuit. But this argument ignores the holding of the supreme court in Sonat. 271 S.W.3d at 236 ("[W]e hold in these circumstances that Louisiana law applies."). The supreme court specifically held that Louisiana law applied to the indemnity claim even though "neither the trial court nor the jury found Sonat negligent or strictly liable." Id. at 238. The supreme court affirmed a remand to the trial court "for further proceedings applying Louisiana law." Id. We reject Exco's argument that the application of Louisiana law cannot be decided without a finding regarding liability.
Exco also argues we must enforce the choice of Texas law provision unless all three elements of the section 187(2)(b) test are satisfied, citing Gator Apple, LLC v. Apple Texas Restaurants, Inc., 442 S.W.3d 521, 533 (Tex. App.—Dallas 2014, pet. denied). We disagree. The franchise agreement in Gator Apple did not contain a special provision pointing to the application of another state's law that would be rendered superfluous by application of the general choice of law provision. See id. Therefore, we analyzed the issue under the section 187(2)(b) test. In this case, the special provision regarding indemnity under Louisiana law conflicts with the general choice of law provision for Texas law. The special provision would be meaningless if Texas law always applies and applying the Texas choice of law provision would contradict the "notwithstanding anything to the contrary provided herein" language of the special provision. Thus, unlike Gator Apple, the parties here did not make an effective choice of law for circumstances of this case.
Section 187(2)(b) provides that law chosen by the parties will be applied, even if the issue was one that could not be resolved by an explicit agreement, unless either the chosen law has no substantial relationship to the parties or transaction, or the law chosen is contrary to a fundamental policy of another state with a more significant relationship under the rule of 188 and that state has a materially greater interest than the chosen state in determination of the particular issue. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2).
Application of the section 187(2)(b) test "depends on three determinations: (1) whether a state has a more significant relationship with the parties and their transaction than the chosen state; (2) whether that state has a materially greater interest than the chosen state in deciding whether the liquidated damages provision is enforceable; and (3) whether that state's fundamental policy would be contravened by the application of the law of the chosen state." Id.
For these reasons, we reject Exco's argument that Texas law is mandated by the choice of law provision in the MSSA. We conclude the parties did not effectively choose Texas law to apply to the circumstances of this case. As a result, we need not decide whether the choice is valid under the principles of section 187(2) of the restatement. See Sonat, 271 S.W.3d at 232 (objectives of choice of law rules best attained by "letting parties choose" law governing their contract, "[b]ut the parties must make that choice themselves"). Because the contractual choice was not effective, we must look to section 188 to determine the applicable law. See Sonat, 271 S.W.3d at 232.
2. Section 188
Where the parties have not effectively chosen the law applicable to a particular issue, we apply the principles of sections 6 and 188 of the Restatement (Second) of Conflict of Laws. Sonat, 271 S.W.3d at 233.
Section 188 lists five contacts to consider in applying the principles listed in section 6 of the restatement: (a) the place of contracting, (b) the place of negotiation, (c) the place of performance, (d) the location of the subject matter, and (e) the domicile, place of incorporation, and place of business of the parties. Sonat, 271 S.W.3d at 233; RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(2). Section 6 of the restatement lists several factors relevant to the choice of the applicable law.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2) ("[T]he factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.").
In Sonat , the supreme court noted that the section 188 contacts are not particularly helpful in a case like the one before us. Sonat, 271 S.W.3d at 233-234. The court stated:
The MSSA was entered into in Texas. There is little evidence about negotiation of the contract, but Exco negotiated from Texas. Several Exco entities are parties to the MSSA, some are Texas corporations or limited partnerships, and the rest are Delaware corporations, limited liability corporations, or limited partnerships. Exco also has offices in several states, including Louisiana. The Cudd parties are Delaware corporations, with headquarters in Texas and offices in several states.
But neither the place of contracting nor the place of negotiation is significant when (as occurred here) the parties conduct both from offices in different states. Nor is the location of the subject matter significant when the parties contemplate services in several different states. Nor is the place of incorporation significant, as nothing suggests these two Delaware corporations ever contemplated oilfield work there.Id. (footnotes omitted). And while the place of business may have some significance, the supreme court noted that "Cudd's place of business appears to be flexible." Id. The evidence in this case supports that conclusion.
The section 188 contacts are to be evaluated according to their relative importance with respect to the particular issue in dispute. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(2). Place of performance is not dispositive in this case because the MSSA contemplates services in several states, see Sonat, 271 S.W.3d at 234. However, the relative importance of this contact is high because the issue here is indemnity for an injury that occurred on a work site in Louisiana and a lawsuit pending in Louisiana.
In addition to the section 188 contacts, we consider the factors in section 6. Under section 6, protection of the justified expectations of the parties is one of the most significant factors in contract cases. Sonat, 271 S.W.3d at 235. Because the parties here contracted for a specific indemnity provision if Louisiana law is found to govern, they conceded the possibility that Louisiana law could apply. See id. ("Why insert this special provision applicable only to Louisiana jobs? . . . The only explanation is that the parties expected their cross-indemnities might not be enforceable there."). Significantly, the parties began the Louisiana indemnity provision with the words, "Notwithstanding anything to the contrary provided herein . . . ." These words indicate their expectation that the broad provision for indemnity without regard to fault might not be effective in Louisiana. They provided for a narrower indemnity in that circumstance. In this case, the work was done in Louisiana, the injury occurred in Louisiana, and the underlying lawsuit is pending in Louisiana. Under these circumstances, we cannot say the parties' justified expectations would be frustrated by the application of Louisiana law to the indemnity provisions.
Exco argues that because of the Texas choice of law provision, the parties would justifiably expect that Texas law would apply in this case. It cites a Louisiana court of appeals decision holding that the LOAIA did not apply to an injury and claim for indemnity in Louisiana because the contractor accepted a master services agreement containing a Texas choice of law provision. See King v. I.E. Miller of Eunice, Inc., 970 So.2d 703, 704 (La. App. 2007) (applying Louisiana choice of law rules). But nothing in the King opinion indicates the contract contained a special provision relating to indemnity under Louisiana law like the one in the MSSA in this case. See id. Under the contract here, the parties specifically provided for what would happen if Louisiana law governed their indemnity agreement. Texas's policy of upholding contracts that are freely and voluntarily entered into requires, in this case, that we follow the special provision relating to Louisiana. In light of that provision and the express term that it applies "notwithstanding anything to the contrary" in the MSSA, the parties justifiably expected that Louisiana law would apply to an indemnity claim arising out of a lawsuit filed in Louisiana for injuries relating to work performed in Louisiana under the agreements of the parties.
Applying the principles of sections 6 and 188, we reach the same conclusion as the supreme court did in Sonat. The parties here would justifiably expect under the express terms of the special provision relating to Louisiana that a claim for indemnity arising out of an injury and lawsuit in Louisiana would be governed by Louisiana law. Otherwise, the special provision would be superfluous. See Sonat, 271 S.W.3d at 236 ("But the parties here chose no law for Louisiana jobs, and included an additional-insured provision that would have been superfluous had they expected their indemnities to be enforceable in such cases.").
We conclude Louisiana law applies to the indemnity and defense claims brought by Exco under the terms of the MSSA. Thus, the trial court did not err by granting Cudd's motion for summary judgment and denying Exco's motion. We overrule Exco's second, third, and fourth issues.
CONCLUSION
The choice of law issue presented in this case is ripe for adjudication. The terms of the parties' contract contemplate that Louisiana law may apply to the indemnity provisions of the contract. We conclude the trial court did not err by concluding that Louisiana law applies to the indemnity claims arising from work and alleged injuries at the well located in Louisiana. Accordingly, we affirm the trial court's judgment.
In the conclusion section of its brief, Cudd requests us to "remand to the trial court solely for the determination of appellate fees no later than 180 days after mandate is issued by this Court." We deny this request. Cudd did not file a notice of appeal and assign a cross-point raising this issue in its brief. See TEX. R. APP. P. 26.1(c) (a party who seeks to alter the trial court's judgment must file a notice of appeal). Furthermore, the record indicates Cudd never requested an award of appellate attorney's fees, and presented no evidence supporting the amount of such fees to the trial court. See Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App.—Dallas 2003, no pet.) (award of attorney's fees may include fees for appeal, but there must be evidence in the trial court of the reasonableness of the fees for appellate work, and the award must be conditioned on appellant's unsuccessful appeal). --------
/Craig Stoddart/
CRAIG STODDART
JUSTICE 141364F.P05
JUDGMENT
On Appeal from the 160th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-13-13248.
Opinion delivered by Justice Stoddart. Justices Bridges and O'Neill participating.
In accordance with this Court's opinion of this date, the trial court's September 25, 2014 Order Granting Defendant's Motion for Entry of Attorneys' Fees and Final Judgment is AFFIRMED.
It is ORDERED that appellee Cudd Pressure Control, Inc. and Cudd Pumping Services, Inc. recover their costs of this appeal from appellant Exco Resources, Inc. Judgment entered this 9th day of May, 2016.