Per Fifth Circuit online reporter:
The Offshore Drilling Company v. Gulf Copper & Manufacturing Corporation No. 08-40885
http://www.ca5.uscourts.gov/opinions/pub/08/08-40885-CV0.wpd.pdf
Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
AFFIRMED in part; REVERSED and REMANDED in part. (April 20, 2010).
Judge OWEN dissented.
The Court next considered the question of attorney's fees, examining the following relevant contractual language:
Should any claim for loss, damage or expense be raised against any indemnitee under any provision of this Agreement, the indemnitor shall be promptly informed of same by the party against whom the claim is being made. No claim shall be settled without the written approval of the indemnitor. The indemnitor shall assume the defense of such claim.
The Court, concluding that this language applied to third-party claims as well as to claims between the contracting parties, reversed and remanded the District Court's denial of attorney's fees. The Court was untroubled by fact that the notice provision serves no purpose when the claim is brought by the indemnitee itself. Although the Court acknowledged that the provision could have distinguished that in the event the claim is by a third party that notice must be given, it did not conclude that this failure rendered the provision surplusage. The Court explained: "The notice requirement becomes a provision that applies to some but not all the circumstances in which indemnity may be owed."
In a dissenting opinion, Judge OWEN expressed her agreement with the majority's affirmance of the grant of summary judgment in favor of Gulf Copper, but diverged on the issue of attorney's fees. Judge OWEN found the majority's application of the provision led to the "absurd result that the indemnitor must defend against the very claim it is making against the indemnitee."
Just ongoing poor scholarship. Perhaps these judges mistakenly adhere to the lay person's perception law is just power and the courts just make up who they want to win and then back into the language in the opinion. Reason is inherently liberal.