Opinion issued June 6, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00072-CV

———————————

ENTERPRISE MARINE SERVICES LLC, Appellant

V.

MOTION INDUSTRIES INC. D/B/A VOORHIES SUPPLY COMPANY, 

LLC, A DIVISION OF MOTION INDUSTRIES INC., Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2019-39423A

MEMORANDUM OPINION

Enterprise Marine Services LLC (Enterprise) and Motion Industries, Inc. 

d/b/a Voorhies Supply Company, LLC, a division of Motion Industries, Inc. 

(Voorhies) dispute the meaning of a contractual indemnity provision under 

Louisiana law. On cross-motions for summary judgment, the trial court ruled against 
2

Enterprise, the indemnitee, and for Voorhies, the indemnitor. Because Enterprise

correctly interprets the indemnity obligation, we reverse and remand for further 

proceedings.

Background

In 2009, Enterprise’s predecessor, CTCO Shipyard of Louisiana, LLC 

(CTCO), sought to consolidate the storerooms at its shipyard in Houma, Louisiana 

and outsource the procurement and disbursement of supplies for its vessels by having 

a vendor at the shipyard. CTCO agreed to lease Voorhies warehouse space at 

CTCO’s shipyard, and Voorhies agreed to use the warehouse exclusively to sell

products to CTCO. By having Voorhies supply the products CTCO needed for its 

vessels from this central location, CTCO “eliminate[d] the need for [it] to account 

for, procure, or replenish” its product inventory. 

CTCO and Voorhies executed a written Supply Agreement that is “governed, 

interpreted, construed, and regulated by the laws of Louisiana.” In the Supply 

Agreement, Voorhies agreed to: purchase CTCO’s existing product inventory, 

“control and account for distributing the[] products for [CTCO’s] use,” and “use best 

efforts to minimize obsolescence of the products[.]” Voorhies promised to “provide 

CTCO with on-time delivery of the[] products and expertise along with the product 

manufacturers in the recommended use and application of the products.” The 

non-exclusive list of products included industrial supplies; bearing and PT products; 
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marine and janitorial supplies; fasteners, pipe fittings, weld fittings, and specialty 

products; hydraulic pumps, hydraulic motors, controls, and hydraulic hose and 

fittings; hand, air, and power tools; and repair of these power tools. 

In exchange, CTCO agreed to provide Voorhies a rent-free “Building” or 

“Premises” at the shipyard with some conditions. Voorhies was responsible for “all 

building services” and “utilities, water, janitorial, and ordinary repair and 

maintenance” and had to “keep the Building in good order, repair, and condition[.]” 

Voorhies also had to maintain commercial general liability insurance “covering the 

Premises” and insure both CTCO and Voorhies “against loss of the contents of the 

Premises, including the inventory.”

The parties also executed the disputed indemnity provision in CTCO’s favor:

Voorhies will occupy and use the Building and Premises at its own risk. 

Without limitation of any other provision herein, CTCO . . . shall not 

be liable for any injuries to any person or damages to property from any 

cause whatsoever, whether owing to the Building or any part thereof, 

or any appurtenance thereof, being in need of repair or owing to the 

happening of any accident in or about the Building or the Premises or 

owing to any act of neglect of Voorhies or of any employee of Voorhies 

or visitor to the Building. Without limitation, this provision shall apply 

to injuries and damage caused by nature, rain, flood, hurricane or 

tropical storm, snow, ice, wind, frost, water, steam, gas, or odors in any 

form or by the bursting or leaking of windows, doors, walls, ceilings, 

floors, pipes, gutters, other fixtures; and to damage caused by fixtures, 

furniture, equipment, and the like situated at the Premises, whether 

owned by Voorhies or others.

Voorhies shall protect, defend, indemnify, and hold harmless 

CTCO . . . from any and all claims, demands and/or causes of action of 

any nature or kind, including but not limited to any claims for personal 
4

injuries . . . brought by any person or entity which are in any way 

related to or connected with or arise out of this Agreement and/or 

Voorhies’[s] use or occupancy of the Premises, whether or not caused 

in whole or in part by active, passive, sole or concurrent negligence, 

strict liability or other fault or condition (preexisting or 

otherwise) attributable to CTCO . . . .

CTCO later sold its shipyard to Enterprise and, with Voorhies’s consent, 

assigned the Supply Agreement to Enterprise (Assignment). Enterprise assumed

CTCO’s obligations under the Supply Agreement, and Voorhies agreed to perform 

its contractual obligations for Enterprise’s benefit.

In 2019, Dallas Theriot sued Enterprise in Texas for injuries he sustained 

while working as a relief captain on an Enterprise vessel. Theriot alleged that he was 

injured when he sat in a newly installed captain’s chair, which gave way “suddenly”

and “without warning,” causing him to fall backward and strike his head and neck. 

Voorhies had obtained the chair from H.O. Bostrom Company, the manufacturer, 

and supplied it to Enterprise. Enterprise investigated the incident and concluded the 

chair disconnected from its stand because the hardware delivered with the chair by 

H.O. Bostrom to Voorhies and then by Voorhies to Enterprise was the wrong size. 

Under maritime law, an injured seaman has three potential claims against his 

employer: (1) a Jones Act negligence claim, (2) a claim that the ship was 

unseaworthy, and (3) a claim for maintenance and cure. Theriot asserted all three 

claims against Enterprise. He alleged that Enterprise was negligent because, among 

other things, it failed to:
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• maintain, inspect, or repair the vessel’s equipment; 

• properly assemble the chair at issue;

• provide and maintain a safe work environment; 

• adequately supervise or train its employees;

• follow its own safety rules, policies, and regulations; 

• maintain safe mechanisms for work on the vessel; and

• operate the vessel in a safe and proper manner.

Theriot also alleged that Enterprise’s vessel was unseaworthy because he “did not 

have adequate equipment to perform his duties because the chair [he] was sitting on 

collapsed without warning.” Finally, Theriot alleged that he was entitled to 

maintenance and cure because he was injured while working as a seaman. 

Theriot also sued H.O. Bostrom and Voorhies, alleging that they had a duty 

to provide correct hardware for the chair and that their failure to do so was not only 

negligent but also a design, manufacturing, or marketing defect. As to Voorhies, 

Theriot further alleged breaches of implied and express warranties. 

Enterprise tendered its defense and indemnity to Voorhies under the Supply 

Agreement and the Assignment. Enterprise also sought coverage and a defense under 

Voorhies’s insurance policies as an additional insured. Voorhies refused the tender, 

and Enterprise filed a third-party complaint asserting a breach-of-contract
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crossclaim against Voorhies.1 Relevant here, Enterprise alleged that the Supply 

Agreement obligated Voorhies to indemnify and defend Enterprise against Theriot’s 

claims and that Voorhies had “materially breached the Supply Agreement and the

Assignment” by “failing to comply with the scope and terms of the Agreements” and

“providing the defective chair.” 

Both parties moved for partial summary judgment on Enterprise’s 

breach-of-contract crossclaim, asserting different interpretations of the Supply 

Agreement’s indemnity provision. Enterprise argued that it was entitled to judgment 

as a matter of law because Voorhies promised to indemnify Enterprise for all claims 

related to, connected with, or arising out of the Supply Agreement, which included 

Theriot’s lawsuit. Enterprise requested that the trial court grant its 

summary-judgment motion and award attorney’s fees for both Theriot’s lawsuit and 

the contract crossclaim against Voorhies.

Voorhies argued that its defense and indemnity obligation extended only to 

the use of the Premises, not to supplying a captain’s chair. Voorhies asserted that it 

simply served as a middleman for Enterprise to obtain supplies for its vessels: 

1 Enterprise asserted several other crossclaims that are not before us, including for 

breach of the contractual insurance obligations. Although Enterprise argued below 

that it was entitled to coverage and a defense as an additional insured, it has not 

carried that contention forward on appeal. Enterprise’s appellate arguments rest 

exclusively on the Supply Agreement’s indemnity provision.
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[It] leased [Enterprise’s] warehouse building on [Enterprise’s] 

property[] and had two . . . employees working on site. [Enterprise] 

directed Voorhies to order supplies and then [Enterprise] retrieved the 

supplies from its own warehouse. . . . Voorhies does not open the boxes 

shipped to [it], nor does [Enterprise] expect [Voorhies] to open and 

inspect [the boxes]. Because of Voorhies’[s] occupancy of the building 

through its lease, the [Supply Agreement] obligates Voorhies to defend 

and indemnify [Enterprise] for damage to the building, or claims 

relating to the building. However, the parties never intended for 

Voorhies to defend and indemnify [Enterprise] for claims such as 

[Theriot’s] . . . .

(Footnotes omitted.) Construing the indemnity provision in the broad manner 

asserted by Enterprise would, according to Voorhies, lead to absurd consequences. 

The trial court denied Enterprise’s motion, granted Voorhies’s motion, and 

dismissed Enterprise’s breach-of-contract crossclaim with prejudice. The trial court 

then severed the contract claim from Theriot’s lawsuit, making its 

summary-judgment rulings final and appealable. 

Standard of Review

Although the Supply Agreement calls for the application of Louisiana law, we

apply Texas procedural law. Nexen, Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 

412, 417 (Tex. App.—Houston [1st Dist.] 2006, no pet.). As a procedural matter, 

when, as here, both sides move for summary judgment on the same issue and the 

trial court grants one motion and denies the other, we consider both sides’ 

summary-judgment evidence, determine all questions presented, and render the 

judgment the trial court should have rendered. E.g., Gilbert Tex. Constr., L.P. v. 
8

Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010). Each party must 

carry its own burden to establish its entitlement to summary judgment by proving all 

the elements of the claim or defense; neither can prevail just because the other side 

failed to meet its burden. See Atl. Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 208 

(Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing CU Lloyd’s of Tex. 

Feldman, 977 S.W.2d 568, 569 (Tex. 1998)). 

Indemnity

Enterprise and Voorhies moved for summary judgment on the same issue, 

both seeking a declaration on whether Voorhies had to indemnify and defend 

Enterprise. Enterprise contends that the trial court erred in denying its 

summary-judgment motion and instead granting Voorhies’s motion. 

A. Louisiana rules of contract construction

The interpretation of a contractual indemnity provision is a question of law. 

See Boykin v. PPG Indus., Inc., 987 So.2d 838, 842 (La. Ct. App. 2008). Voorhies’s

indemnity obligation must be determined under Louisiana law because of the Supply 

Agreement’s choice-of-law provision. Language in an indemnity agreement dictates 

the parties’ obligations. La. United Bus. Ass’n Cas. Ins. Co. V. J & J Maint., Inc., 

328 F. Supp. 3d 563, 569 (W.D. La. 2018); see also Becker v. Tidewater, Inc., 586 

F.3d 358, 369 (5th Cir. 2009) (applying Louisiana law). Indemnity provisions are 

construed according to the general rules of contract interpretation. Berry v. Orleans 
9

Par. Sch. Bd., 830 So.2d 283, 295 (La. 2002) (citing LA. CIV. CODE arts. 2045–57). 

As in Texas, Louisiana courts seek to give effect to the parties’ intent. See Brock 

Servs., L.L.C. v. Rogillio, 936 F.3d 290, 285 (5th Cir. 2019) (citing LA. CIV. CODE

art. 2045). 

Courts begin by examining the contract’s words. Clovelly Oil Co., LLC v. 

Midstates Petroleum Co., LLC, 112 So.3d 187, 192 (La. 2013). Words and phrases 

must be given their plain, ordinary, and generally prevailing meaning, unless they 

have been ascribed a technical meaning. See id.; LA. CIV. CODE art. 2047. “Each 

provision in a contract must be interpreted in light of the other provisions so that 

each is given the meaning suggested by the contract as a whole.” Ortiz v. 

MeadWestvaco Corp., 274 So.3d 158, 165 (La. Ct. App. 2019) (citing LA.CIV.CODE

art. 2050). None should be construed separately at the expense of disregarding 

others. 2700 Bohn Motor, LLC v. F.H. Myers Constr. Corp., 338 So.3d 500, 508 (La.

Ct. App. 2022) (citing LA. CIV. CODE art. 2050).

If a contract does not lead to absurd consequences, it will be enforced as 

written. Doerr v. Mobil Oil Corp., 774 So.2d 119, 124 (La. 2000) (citing LA. CIV.

CODE art. 2046); see also Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La. 

2003) (courts may not alter contract’s unambiguous terms under guise of contractual 

interpretation). But when the words of a contract lead to absurd consequences, a 
10

court may determine the parties’ common intent in other ways. Gottsegen v. Hart 

Prop. Mgmt., Inc., 820 So.2d 1138, 1140–41 (La. Ct. App. 2002). 

B. Voorhies’s duty under the contractual indemnity clause

Here, as is often true in contract-interpretation cases, both sides say the 

meaning of the Supply Agreement’s indemnity provision is clear, yet they say it 

means different things. Enterprise interprets the Supply Agreement’s indemnity 

provision broadly and contends the trial court erred by agreeing with Voorhies that 

only claims relating to Voorhies’s use of the Premises fall within its scope. In support

of its broader interpretation, Enterprise emphasizes this indemnity language:

Voorhies shall protect, defend, indemnify, and hold harmless

[Enterprise] . . . from any and all claims, demands and/or causes of 

action of any nature or kind, including but not limited to any claims for 

personal injuries . . . brought by any person or entity which are in any 

way related to or connected with or arise out of this Agreement and/or 

Voorhies’[s] use or occupancy of the Premises, whether or not caused 

in whole or in part by active, passive, sole or concurrent negligence, 

strict liability or other fault or condition (preexisting or 

otherwise) attributable to [Enterprise] . . . .

(Emphasis added.) According to Enterprise, “and/or” expresses the parties’ intention

for the indemnity provision to be read disjunctively and conjunctively, i.e., to mean 

“A, B, or both.” Thus, the indemnity provision requires Voorhies to defend and 

indemnify Enterprise for three categories of claims: claims related to, connected 

with, or arising out of (1) the Supply Agreement, (2) or Voorhies’s use or occupancy 

of the Premises, (3) or both. And Voorhies’s interpretation limiting its indemnity 
11

obligation to the second category of claims related to building use effectively reads 

“this Agreement and/or” out of the Supply Agreement and so is too narrow.

Voorhies responds that Enterprise’s interpretation improperly isolates the 

indemnity provision and disregards the rest of the Supply Agreement. Voorhies 

points to the paragraph right before the indemnity provision providing that:

Voorhies will occupy and use the Building and Premises at its own risk. 

Without limitation of any other provision herein, [Enterprise] . . . shall 

not be liable for any injuries to any person or damages to property from 

any cause whatsoever, whether owing to the Building or any part 

thereof, or any appurtenance thereof, being in need of repair or owing 

to the happening of any accident in or about the Building or the 

Premises or owing to any act of neglect of Voorhies or of any employee 

of Voorhies or visitor to the Building. Without limitation, this provision 

shall apply to injuries and damage caused by nature, rain, flood, 

hurricane or tropical storm, snow, ice, wind, frost, water, steam, gas, or 

odors in any form or by the bursting or leaking of windows, doors, 

walls, ceilings, floors, pipes, gutters, other fixtures; and to damage 

caused by fixtures, furniture, equipment, and the like situated at the 

Premises, whether owned by Voorhies or others.

According to Voorhies, this paragraph lists the types of claims that fall within 

the indemnity guarantee, including certain personal injuries, acts of nature, and 

property damage. The indemnity provision then defines the nature of the obligation 

for such claims, specifically referencing “Voorhies’s use or occupancy of the 

premises.” Voorhies asserts that reading these two paragraphs together, as intended, 

“and/or” relates only to:

• those things listed in the first paragraph—personal injuries and property 

damage caused by “nature, rain, flood, hurricane or tropical storm, snow, 

ice, wind, frost, water, steam, gas, or odors in any form or by the bursting 
12

or leaking of windows, doors, walls, ceilings, floors, pipes, gutters, other 

fixtures; and . . . damage caused by fixtures, furniture, equipment, and the 

like situated at the Premises, whether owned by Voorhies or others”; or

• Voorhies’s use of the Building or Premises. 

Voorhies urges that Enterprise’s broader interpretation would have an absurd 

consequence—Voorhies, a non-manufacturing distributor of third-party products, 

would have to provide a defense and indemnity for all products sold to Enterprise

from 2009 on, without limitation.

While we agree with Voorhies that the indemnity provision cannot be read in 

isolation, see LA. CIV. CODE art. 2050, we do not agree that its application is so 

narrow when the Supply Agreement is read as a whole. Voorhies correctly asserts 

that the first paragraph under the indemnity heading limits Enterprise’s liability by 

stating that it shall not be liable for personal injury or property damage “owing to”

three things:

• a condition of the Building or any part or appurtenance of it;

• “any accident in or about the Building or Premises”; or 

• “any act of neglect” or Voorhies, Voorhies’s employee, or a visitor to the 

Building. 

And it clarifies that these three things include, “without limitation,” (1) injuries and

damages caused by the enumerated acts of nature or the “bursting or leaking of 

windows, doors, walls, ceilings, floors, pipes, gutters, other fixtures,” and 
13

(2) damage caused by “fixtures, furniture, equipment, and the like situated at the 

Premises, whether owned by Voorhies or others.”

But reading the indemnity provision to include only those things would 

effectively read words out of the Supply Agreement. The indemnity provision

expressly covers claims related to, connected with, or arising out “this Agreement 

and/or Voorhies’[s] use or occupancy of the Premises.” (Emphasis added.) In the 

contract recitals, “Agreement” is defined as a reference to the Supply Agreement 

itself. Voorhies’s interpretation ignores that reference and the later hybrid “and/or.” 

“And/or” has a generally prevailing meaning: it is commonly understood to mean 

the one or the other or both. See State v. Dudley, 106 So. 364, 365 (La. 1925); see 

also LA. CIV. CODE art. 2047. Nearly a century ago, the Louisiana Supreme Court 

observed: 

The expression and/or is quite frequently used in contracts . . . . When 

used in a contract, the intention is that the one word or the other may 

be taken accordingly as the one or the other will best effect the purpose 

of the parties as gathered from the contract taken as a whole. In other 

words, such an expression in a contract amounts in effect to a direction 

to those charged with construing the contract to give it such 

interpretation as will best accord with the equity of the situation, and 

for that purpose to use either ‘and’ or ‘or’ and be held down to neither. 

Dudley, 106 So. at 365; accord “And/or,” MERRIAM-WEBSTER.COM DICTIONARY,

https://www.merriam-webster.com/dictionary/and%2For (defining “and/or” as “a 

function word to indicate that two words or expressions are to be taken together or 

individually”); ANTONIN SCALIA & BRYAN A. GARNER, Reading Law: The 
14

Interpretation of Legal Texts 125 (2012) (“The literal sense of and/or is ‘both or 

either,’ so that A and/or B means (1) ‘A,’ (2) ‘B,’ or (3) ‘both A and B.’”).

Giving “and/or” its generally prevailing meaning imposes defense and 

indemnity obligations on Voorhies for claims related to, connected with, or arising 

out of: (1) the Supply Agreement, (2) Voorhies’s use or occupancy of the Premises, 

or (3) both the Supply Agreement and Voorhies’s use or occupancy of the Premises. 

That meaning tracks the Supply Agreement as a whole. 

Voorhies contends that the Supply Agreement as a whole calls for a narrow 

interpretation of the indemnity provision because the use and occupancy of the 

Building and Premises is the essence of the Supply Agreement. But, as Enterprise 

points out, the Supply Agreement is more than a lease agreement. Its titular purpose 

is to facilitate the supply of products from Voorhies to Enterprise. Its scope includes 

“eliminat[ing] the need for [Enterprise] to account for, procure, and replenish its 

inventory of the subject products.” And to that end, the Supply Agreement identifies 

some product categories.

2

It also provides for obtaining, replenishing, and tracking 

inventory; pricing and minimum sales returns; and warehouse staffing. In addition, 

the Supply Agreement includes Voorhies’s warranty for not just “on-time delivery”

but also “expertise along with product manufacturers.” Voorhies’s use and 

2 Although a captain’s chair or furniture is not included on the product list, the list is 

expressly non-exclusive. And there is no dispute that the captain’s chair at issue was 

procured by Voorhies and sold to Enterprise under the Supply Agreement. 
15

occupancy of the Building serves the same purpose. Reading the Supply Agreement 

as a whole requires us to consider this purpose and these provisions, not just those 

related to the Building and Premises.

That the parties intended the broad indemnity asserted by Enterprise is also 

supported by the other words in the indemnity provision. Few words restrict the 

indemnity provision’s scope. It expressly applies not just to claims but to “any and 

all claims, demands, and/or causes of action of any nature or kind.” And in 

describing the connection required for indemnifiable “claims, demands, and/or 

causes of action,” the indemnity provision again uses broad language requiring only 

that they be in “any way related to or connected with or aris[ing] out of.” 

Voorhies’s narrower interpretation would require us not only to ignore the 

broad language in the indemnity provision but also to impermissibly read out of the 

clause the phrase “this Agreement and/or” or construe it to mean only “this 

Agreement and Voorhies’[s] use or occupancy of the Premises.” This would give 

effect to only part of the indemnity provision and respect only part of the Supply 

Agreement’s purpose. We decline to do so. “While indemnity may only be found 

where it is clearly intended, that rule does not require us to adopt a stilted reading of 

the contract to avoid finding indemnity.” Rodrigue v. LeGros, 563 So.2d 248, 257 

(La. 1990). 
16

We disagree that the Supply Agreement’s insurance requirements mandate a 

different interpretation. It is no surprise that Voorhies would have to insure the 

Building and its contents from loss given the other requirements for its use and 

occupancy of the Building and Premises. But the insurance requirement does not 

undercut a broader interpretation of the indemnity provision. Insurance and 

indemnity obligations are distinct. See Morella v. Bd. of Comm’rs of Port of New 

Orleans, 888 So.2d 321, 325 (La. Ct. App. 2004).

We also disagree that a broad interpretation of the indemnity provision leads 

to absurd consequences, particularly given other provisions of the Supply 

Agreement that lend predictability to Voorhies’s costs. The Supply Agreement 

provides for Voorhies’s free use of the Building and Premises. It also ensures 

Voorhies will achieve a minimum standard net return each month:

For the [supply branch] to be viable, a minimum standard net return has 

to be achieved each month. This net return is based on a minimum sales 

dollar amount per month with a gross profit margin of 15%. (See 

attachment 1, branch expenses). If the sales dollars are not reached, a 

bill back representing Voorhies’[s] expenses not covered by the 

minimum standard net return will be made which [Enterprise] agrees to 

split with Voorhies on a 50/50 equal basis.

Sales Dollars Necessary per month based on Attachment 1

$175,000.00

Sales Dollars Annually

$2,100,000.00

Agreeing to defend and indemnify Enterprise for claims related to, connected with, 

or arising out of the products it sells under the Supply Agreement may prove to be 
17

an unwise business decision; but considering these other provisions, it is not 

objectively absurd. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Circle, Inc., 915 

F.2d 986, 991 (5th Cir. 1990) (applying Louisiana law and concluding that “although 

a business decision may be unwise, imprudent, risky, or speculative, it is not 

necessarily ‘absurd’”). Parties may not “escape the unfortunate and unexpected, 

though not objectively ‘absurd,’ consequences of a contract by subsequently 

characterizing their consequences as ‘absurd.’” Id.

We conclude the Supply Agreement’s indemnity provision does not limit 

Voorhies’s defense and indemnity obligations to claims related to, connected with, 

or arising from Voorhies’s use or occupancy of the Premises. Instead, the plain, 

ordinary, and generally prevailing meaning of the words used in the Supply 

Agreement, considered as a whole, express the parties’ intention for Voorhies to 

defend and indemnify Enterprise for: 

• claims in any way related to, connected with, or arising out of the Supply 

Agreement;

• claims in any way related to, connected with, or arising out of Voorhies’ 

use or occupancy of the Premises; and

• claims in any way related to, connected with, or arising out of both the 

Supply Agreement and Voorhies’s use or occupancy of the Premises. 

We therefore hold the trial court erred by granting Voorhies’s 

summary-judgment motion based on a narrower interpretation of the Supply 

Agreement’s indemnity provision. Whether the trial court also erred by denying 
18

Enterprise’s summary-judgment motion depends on whether, as Enterprise 

contends, the summary-judgment record establishes that Theriot’s claims against 

Enterprise are claims in any way related to, connected with, or arising out of the 

Supply Agreement. Accordingly, we turn to that question.

C. Theriot’s underlying suit

The indemnity provision provides indemnity for costs, including attorney’s 

fees, from personal injuries “in any way related to,” “connected with,” or “aris[ing] 

out of” the Supply Agreement or Voorhies’s use or occupancy of the Premises or 

both, “whether or not caused in whole or in part by active, passive, sole or concurrent 

negligence, strict liability or other fault or condition (preexisting or 

otherwise) attributable to [Enterprise].” Louisiana courts have applied a “but for” 

causation test to indemnity provisions containing “arising out of” language. See Kan.

City S. R. Co. v. Pilgrim’s Pride Corp., Civ. Action No. 06-0003, 2010 WL 1293340, 

at *6 (W.D. La. Mar. 29, 2010); Perkins v. Rubicon, Inc., 563 So.2d 258, 259–60 

(La. 1990) (“arising out of” language in an indemnity provision requires “a 

connexity similar to that required for determining cause-in-fact: Would the particular 

injury have occurred but for the performance of work under the contract?”). 

But “aris[ing] out of” is only one of three triggering terms in the indemnity 

provision. The other terms are susceptible to broader meanings. For instance, 

Louisiana courts have given a broad construction to “in connection with” language, 
19

noting it means “being related to or associated with, but not the primary or only 

purpose of.” Poole v. Ocean Drilling Expl. Co., 439 So.2d 510, 512 (La. Ct. App.

1983); see also Kan. City S. R. Co., 2010 WL 1293340, at *6.

In the underlying suit, Theriot sought recovery against Enterprise for 

negligence, unseaworthiness, and maintenance and cure under the Jones Act. The 

unseaworthiness claim and the maintenance-and-cure claim arise under general 

maritime law, while the negligence claim is statutory. See Chandris, Inc. v. Latsis, 

515 U.S. 347, 354 (1995). “Historically, conceptually, and functionally, the 

unseaworthiness and Jones Act tort actions are [conjoined].” David W. Robertson, 

Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70 LA. L.

REV. 463, 464 (2010). Both compensate a seaman for injuries. Applying the 

indemnity provision’s “connected with” language as “being related to or associated 

with,” as broadly interpreted by the Louisiana courts, we conclude that these two 

claims fall within the scope of the indemnity provision. They rest on Theriot’s 

allegation that, among other things, Enterprise provided unsafe equipment on its 

vessel. And Enterprise presented unrebutted evidence that Voorhies supplied the 

captain’s chair at issue to Enterprise under the Supply Agreement. Voorhies’s 

corporate representative testified: 

Q. And I believe it was your testimony that delivering the chair at 

issue in this [L]awsuit constituted work under this [Supply] 

[A]greement, correct? 
20

A. Yes.

Q. That Voorhies was performing its duties under this [Supply] 

[A]greement when it delivered the chair to [Enterprise], right? 

A. Correct.

But a different conclusion is required for the maintenance-and-cure claim. 

“The much older maintenance and cure action does not derive from tort principles 

and is something like a first cousin to the other two.” Robertson, supra. It does not 

compensate for injuries but serves a curative function. See, e.g., Johnston v. 

Tidewater Marine Serv., No. 96–30595, 1997 WL 256881, at *2 (5th Cir. Apr. 23, 

1997) (per curiam) (“A claim for unseaworthiness is compensatory in 

nature . . . while a claim for maintenance and cure is curative in nature.”). A 

maintenance-and-cure claim “concerns the vessel owner’s obligation to provide 

food, lodging, and medical services to a seaman injured while serving the ship.” 

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). A shipowner is 

required “not only to pay for the seaman’s maintenance and cure but to take all 

reasonable steps to make sure that the seaman, when he is injured or becomes sick, 

receives proper care and treatment.” GRANT GILMORE & CHARLES L. BLACK, JR.,

THE LAW OF ADMIRALTY § 6–13, at 310 (2d ed. 1975). A claim for maintenance and 

cure arises from the relationship between seaman and employer. Stermer v. 

Archer-Daniels-Midland Co., 140 So.3d 879, 885 (La. Ct. App. 2014). In other 

words, the maintenance-and-cure claim is not one for “personal injuries, death, or 
21

property damage” and thus falls outside the scope of the Supply Agreement’s 

indemnity provision.

Although Enterprise requested rendition of judgment, including an award of 

attorney’s fees, in its favor on its breach-of-contract cause of action in both the trial 

court and this court, that remedy is not ripe. We have before us only the matter of 

the indemnity provision’s interpretation. Our record includes no determination of 

Enterprise’s costs in the underlying Theriot lawsuit for the covered or non-covered 

claims, nor is there evidence of Enterprise’s attorney’s fees. Accordingly, the 

summary-judgment record does not establish Enterprise’s entitlement to judgment 

as a matter of law, see TEX. R. CIV. P. 166a(c). We therefore cannot hold that the 

trial court erred by denying Enterprise’s summary-judgment motion. 

Conclusion

For these reasons, we reverse that part of the trial court’s order granting 

Voorhies’s motion for summary judgment on Enterprise’s cause of action for breach 

of contract, but we affirm the denial of Enterprise’s summary-judgment motion. We 

remand for further proceedings consistent with this opinion. 

Sarah Beth Landau

Justice

Panel consists of Justices Landau, Countiss, and Guerra.