1 Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4.

2 Appellee 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



## FILED

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”). 2court was returned with the following notation: “Box Closed No

Forwarding Order on File”.

2 LCTA was the workers’ c o mpensation 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 W orkers’

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 L C TA’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 compensat ion benefits of its

borrowed employee, and, in the absence of a valid and enforceable

indemnification agreement, th e borrowing employer is required to

reimburse an injured worker’s formal employer for any compensation

benefits it has paid to the injured worker.”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 unemplo y ment taxes attributable to covered

workers.” The district court held that this language constitutes

a “valid and en forceable indemnification agreement” under T otal

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 LHW CA liabilities. It also

contends that reference to other portions of the Agreement supports

its content ion that indemnity for LHWCA liabilities was not

mutually in tended 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 KYE4 and, as part of that arrangement, th e labor

pool employer provides the Workers’ Comp

insurance, am ong others. That’s one of the

reason s 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 inter prets the word

“injuries” in that [indemnity] clause, in

general, as an indemnification clause, as

contemplated by Total and its progen y. 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.