REVISED December 16, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20610

WEEKS MARINE, INCORPORATED,

Plaintiff-Appellant

v.

STANDARD CONCRETE PRODUCTS, INCORPORATED,

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before DAVIS and JONES, Circuit Judges, and MILAZZO, District Judge.

∗

JONES, Circuit Judge: 

This case revolves around the terms of an indemnity agreement between 

Weeks Marine, Inc. (“Weeks Marine”) and Standard Concrete Products, Inc. 

(“Standard Concrete”). In 2011, John Johnson, Jr., (“Johnson”) filed suit in

Alabama state court against several entities, including Weeks Marine and 

Standard Concrete, for the injuries that he allegedly sustained when he fell 

from his crane while working on the I-10 Mississippi River Bridge fender 

replacement and reconditioning project (“the Project”).1 In the present case, 

∗ District Judge of the Eastern District of Louisiana, sitting by designation.

1 The underlying litigation is styled John Johnson, Jr., et ux. v. Hesler Industries, Inc., 

et al., Circuit Court of Mobile County, Alabama, Civil Action No. 2011-900374.

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2013

Lyle W. Cayce

Clerk

 

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Weeks Marine, the general contractor on the Project, seeks a declaration that 

Standard Concrete, Johnson’s employer, is contractually obliged to defend and 

indemnify it in the underlying state court action. Because the indemnity 

agreement is not applicable to the underlying suit, we affirm the judgment in 

favor of Standard Concrete.2 

BACKGROUND

Shortly after Weeks Marine was selected as general contractor for the 

Project, it accepted Standard Concrete’s bid for the manufacture of pre-cast 

concrete fender modules. The parties executed a contract, which consists of 

two documents: Purchase Order No. 161845 (“Purchase Order”) and the 

Additional Terms and Conditions (“Additional Terms”). The present dispute 

involves the following provisions from the contract: 

Description of Material (Purchase Order): Seller (Standard 

Concrete) shall furnish all supervision, equipment, forms, 

materials, labor, supplies, fabrication, coatings, quality control, 

etc. to provide pre-cast fender modules. 

Paragraph 2 (Purchase Order): Inserts: Buyer (Weeks Marine) 

to provide all inserts for shear keys and whalers and lift hardware. 

Seller (Standard Concrete) to install lift hardware to facilitate 

lifting and handling. 

Paragraph 10 (Purchase Order): Property and Personal 

Liability: Seller (Standard Concrete) shall save harmless and 

indemnify Buyer (Weeks Marine) from and against all claims, 

suits (including counsel fees and other expenses), judgments and 

awards stemming from any damage to property or injury 

(including death) to persons (including any damage or injury to the 

property or the person of any employee of either Buyer or Seller 

2 Accordingly, we do not reach Weeks Marine’s argument that the agreement is 

enforceable under Texas’s fair notice requirements for indemnity agreements. Cf. Coastal 

Mart. Inc. v. Southwestern Bell Telephone Co., 154 S.W. 3d 839, 843 (Tex. App. Corpus Christi 

2005) (providing that the determining the scope of coverage is the “starting point” for 

resolving an indemnity dispute).

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which may be caused or alleged to have been caused in whole or in 

part by, or which may occur or be alleged to have occurred in 

connection with the execution of this Purchase Order by Seller 

(Standard Concrete), or the use of the items furnished hereunder, 

excepting Buyer’s (Weeks Marine) sole negligence.

Paragraph 4 (Additional Terms): Indemnification will be limited 

to actual damages relating to workmanship of Seller’s (Standard 

Concrete) product. In no event is Seller (Standard Concrete) liable 

for indirect or consequential damages. Total damages are limited 

to $500,000.00.

Paragraph 6 (Additional Terms): It is mutually agreed that any 

provision in the purchase order which would modify, conflict with, 

or contradict any of these terms and conditions, shall be deemed to 

be null and void. 

On March 10, 2009, seven months after the parties executed the contract, 

Johnson sustained the alleged injuries that form the basis of the underlying 

suit. In his state court pleadings, Johnson alleges that he fell from a “corner 

module” or “steel module” that was designed by Modjeski & Masters, Inc., 

manufactured by Helser Industries, Inc., and contracted for by Weeks Marine. 

The complaint describes the incident as occurring in the following manner: 

[Johnson] was attempting to disassemble the corner module 

(hereinafter “corner module” or “steel module”) by lifting it away 

from a concrete form using a crane. Mr. Johnson placed two eyehooks in pre-drilled holes in the top of the steel module. However, 

the eye-hooks could not be secured from the top. Instead, Mr. 

Johnson had to secure the eye-hooks to the module by placing a 

nut on the eye-hooks from the underside. Unlike in other locations 

on that and other modules, there were no pre-welded nuts on the 

underside of the holes in the corner module where the eye-hooks 

were placed. When Mr. Johnson attempted to secure the eye-hook 

to the corner module, he fell approximately fourteen feet to the 

ground. 

After Weeks Marine was served with Johnson’s complaint, it sent 

demand letters to Standard Concrete, seeking defense and indemnification in 

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the state court action. When Standard Concrete concluded that it had no duty 

to defend or indemnify, Weeks Marine sought declaratory relief in federal 

court, and Standard Concrete counter-claimed. Cross-motions for summary 

judgment were filed. The district court referred the motions to a magistrate 

judge, who issued a Report and Recommendation (“Report”), concluding that 

the court should grant Standard Concrete’s motion for exoneration from 

defense or indemnification. The district court adopted the magistrate judge’s 

Report and dismissed the case. Weeks Marine filed a timely appeal. 

STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo, 

applying the same standards as the district court. St. Paul Surplus Lines Ins. 

Co. v. Settoon Towing, L.L.C. (In re Settoon Towing, L.L.C.), 720 F.3d 268, 275 

(5th Cir. 2013). Summary judgment is appropriate when “the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We must view 

all facts and evidence in the light most favorable to the non-moving party when 

considering a motion for summary judgment. Dameware Dev., L.L.C. v. Am. 

Gen. Life Ins. Co., 688 F.3d 203, 206-07 (5th Cir. 2012) (citation omitted). The 

interpretation of a contractual indemnity provision is a question of law that is 

also reviewed de novo. Becker v. Tidewater, Inc., 586 F.3d 358, 369 (5th Cir. 

2009).

Under the Purchase Order’s choice of law provision, disputes between 

Weeks Marine and Standard Concrete must be resolved under Texas law. 

Such choice-of-law provisions are unquestionably enforceable, DeSantis v. 

Wackenhunt Corp., 793 S.W.2d 670, 677-78 (Tex. 1990)); Restatement (Second) 

of Conflict of Laws § 187. 

Texas courts apply general contract law principles when construing 

indemnity agreements. Ideal Lease Service, Inc. v. Amoco Production Co., 

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662 S.W.2d 951, 952-953 (Tex. 1983). The primary concern of contract

interpretation under Texas law is to ascertain the true intentions of the parties 

as expressed in the instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 

223, 229 (Tex. 2003). Texas courts examine the entire contract in an effort to 

harmonize and give effect to all provisions so that none is rendered 

meaningless. Id. 

Under Texas law, the duties to defend and indemnify “are distinct and 

separate duties” and “enjoy a degree of independence from each other.” D.R. 

Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W. 3d 740, 743-44 (Tex. 2009). 

The “duty to defend” is the broader of the two. Northfield Ins. Co. v. Loving 

Home Care, Inc., 363 F.3d 523, 528 (5th Cir. 2004). It is “circumscribed by the 

eight-corners doctrine,” so that it is determined solely by the language of the 

indemnity provision and the allegations in the third-party pleadings. Gilbane 

Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 594 (5th Cir. 2011). Moreover, the 

court must review the third-party pleadings “without regard to the truth or 

falsity of those allegations.” GuideOne Elite Ins. Co. v. Fielder Rd. Baptist 

Church, 197 S.W.3d 305, 308 (Tex. 2006). The duty to indemnify, by contrast, 

“is triggered by the actual facts that establish liability in the underlying 

lawsuit.” Guar. Nat’l Ins. Co. v. Azrock Indus. Inc., 211 F.3d 239, 243 (5th Cir. 

2000). 

DISCUSSION

Duty to Defend 

Applying the eight-corners rule here, the indemnity agreement and 

Johnson’s pleadings govern whether Standard Concrete owes Weeks Marine a 

defense. If Johnson’s factual allegations potentially support a claim covered 

by the indemnity agreement, then Standard Concrete’s duty to defend is 

invoked. GuideOne Elite Ins. Co., 197 S.W.3d at 310 (citation omitted). 

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Paragraph 10 of the Purchase Order requires Standard Concrete to “save 

harmless and indemnify Buyer (Weeks Marine) from and against all . . . suits 

(including counsel fees and other expenses).” Paragraph 4 of the Additional 

Terms, however, limits indemnification to “actual damages relating to the 

workmanship of Seller’s (Standard Concrete) product.” Since the Additional

Terms also provide that any term in the Purchase Order modified by one of the 

Additional Terms is “null and void,” the limiting language in the Additional 

Terms controls.3 Thus, the indemnity agreement, read as a whole, does not 

require Standard Concrete to defend Weeks Marine in suits where the claim 

for damages is unrelated the workmanship of Standard Concrete’s product.

In the underlying complaint, Johnson alleges that he fell and was injured 

while “attempting to disassemble the corner module.” According to Johnson’s 

complaint, the module was designed, manufactured and contracted for by 

companies other than Standard Concrete. Johnson asserts that that he was 

unable to secure eye-hooks to the pre-drilled holes on the top of the corner 

module, and as a result, he resorted to placing a nut on the eye-hooks from the 

underside. He further claims that the corner module lacked a pre-welded nut 

on the underside, preventing him from simply securing the eye-hooks to the 

module from the topside. 

The Fifth Circuit has characterized a defect in workmanship as a defect 

in the way some part of a product is constructed. U.S. Industries, Inc. v. Aetna 

Cas. & Sur. Co., 690 F.2d 459, 462-63 (5th Cir. 1982) (citation omitted). 

Workmanship relates to the quality of a product, and does not include damage 

to a product caused by negligence when the product is used during the

construction process. Id. Johnson’s complaint, however, attributes his 

3 Further, both sides agree that Paragraph 4’s words “indemnification will be limited 

to” refers to the indemnification agreement as a whole, not just the duty to indemnify. 

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accident to the construction process used by him and his crew. Alternatively, 

Johnson alleges a defect in the corner module, but the module is not a Standard 

Concrete product. The steel modules are a component that Standard Concrete 

used to make its product; they are not the product itself. Standard Concrete’s 

products are the pre-cast concrete fender modules. The common usage of 

“product” distinguishes this term from components, tools, and equipment used 

in the manufacturing process. See BLACK’S LAW DICTIONARY 1328 (9th ed. 

2009) (defining “product” as “something that is distributed commercially for 

use or consumption”). As Standard Concrete did not distribute steel modules 

for consumption or use, Johnson has not stated a claim related to the 

workmanship of Standard Concrete’s product. Thus, Standard Concrete has 

no duty to defend Weeks Marine in the underlying action. 

In reaching this conclusion, we considered Weeks Marine’s arguments 

for finding a duty to defend, but found them unpersuasive. First, Weeks 

Marine contends that because the “Description of Materials” provision of the 

Purchase Order required Standard Concrete to provide metal forms, these 

forms constitute Standard Concrete’s product under the indemnity agreement. 

Weeks Marine may have prevailed under this theory had the indemnity 

agreement consisted only of Paragraph 10 of the Purchase Order, which 

covered all claims stemming from the execution of the Purchase Order. 

However, the parties modified Paragraph 10 with an additional term that 

requires indemnification only with respect to claims related to the 

workmanship of Standard Concrete’s product. As explained immediately

above, the product subject to indemnification under the indemnity agreement 

is the concrete fenders, not the forms that Standard Concrete used in making 

them. 

Second, Weeks Marine invokes Fresh Coat, Inc. v. K-2, Inc., 318 S.W. 3d 

893 (Tex. 2010), where the Texas Supreme Court held that synthetic stucco 

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components, collectively referred to as EIFS, were a “product.” Fresh Coat, 

318 S.W. 3d at 897. In so holding, the court rejected the definition of product 

put forth by K-2, the manufacturer of EIFS, which argued that EIFS was no 

longer a product once it was installed on the walls of homes. Id. The court 

held instead that a product within the meaning of Texas’s products liability 

statute is “something distributed or otherwise placed, for any commercial 

purpose, into the stream of commerce for use or consumption.” Id. 

Fresh Coat’s definition of “product,” however, offers Weeks Marine no 

relief. In order to enter the steam of commerce, a product must be released in 

some manner to the consuming public. Armstrong Rubber Co., v. Urquidez, 

570 S.W. 2d 374, 376-77 (Tex. 1978) (“The defective tire . . . always remained 

within the industrial testing process. Accordingly, the tire never entered the 

stream of commerce.”); Thate v. Texas & Pacific Rwy. Co., 595 S.W.2d 591, 599 

(Tex. Civ. App.—Dallas 1980, no writ) (noting that defendant-railroad never 

released a railroad car used in defendant’s business to an ordinary user or 

consumer).4 Here, there is no fact issue as to whether Standard Concrete 

placed the steel forms into the stream of commerce. The Purchase Order 

demonstrates that the concrete fender modules are the product that Standard 

Concrete made for a commercial purpose. The document provides that 

Standard Concrete is to sell Weeks Marine a specified number of these modules 

at a certain price. Although it is true that the Purchase Order also indicates 

4 See also Gardner v. Chevron U.S.A., Inc., 675 F.2d 658, 661 (5th Cir. 1982) (holding 

that defendant was not liable because it was not engaged in business of selling the product 

at issue); Dunn v. Penrod Drilling Co., 660 F. Supp. 757, 769 (S.D. Tex. 1987) (stating that 

Penrod employees at all times maintained control over a rig and there was no evidence that 

Penrod ever released the rig to the consuming public); FFE Transp. Servs., Inc. v. Fulgham, 

154 S.W.3d 84, 89 (Tex. 2004) (noting that FFE was the end user and consumer of a trailer 

used to transport its own cargo and never released that allegedly defective product to an 

ordinary user or consumer); Hernandez v. So. Pac. Transp. Co., 641 S.W.2d 947, 952 (Tex. 

App.—Corpus Christi 1982, no writ) (finding no evidence that the defendant-railroad 

released stanchions it used in its business into the stream of commerce). 

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that Standard Concrete must “furnish all supervision, equipment, forms, 

materials, labor, supplies, fabrication, costings, quality control, etc.,” the 

purpose of these provisions is clearly stated: “. . . to provide pre-cast fender 

modules.” Further, the Purchase Order indicates that Standard Concrete is to 

load the finished concrete modules onto Weeks Marine’s barges, but nowhere 

does it say that Standard Concrete must load any steel forms for shipping or 

otherwise distribute the forms into the stream of commerce. In sum, Fresh 

Coats shows only that Standard Concrete could have been liable for any defects 

in its concrete fenders even though the fenders are ultimately components of 

the bridge project. However, it does not extend Standard Concrete’s duty to 

defend against claims allegedly caused by the steel forms that, unlike EIFS in 

Fresh Coats or the concrete modules here, are not distributed commercially by 

the indemnitor.

Finally, Weeks Marine asserts that Paragraph 2 of the Purchase Order, 

which requires Standard Concrete “to install lift hardware to facilitate lifting 

and handling,” demonstrates that the metal forms are Standard Concrete’s 

product. Although Weeks Marine’s brief is not entirely clear, it appears that 

the contention here is that the workmanship of the steel forms is at issue in 

the underlying litigation because Standard Concrete did not properly install 

lift hardware on them as required. Weeks Marine thus states that Paragraph 

2 obliged Standard Concrete “to install the specific hardware on the metal 

forms necessary to lift and manipulate the metal forms during the process of 

molding the pre-cast concrete modules.” Br. of Appellant at 17 (emphasis 

added). 

Contrary to Weeks Marine’s claim, Paragraph 2 does not specify that the 

lift hardware must be installed on the steel forms. It is more reasonable to 

interpret Paragraph 2 as requiring Standard Concrete to install lift hardware 

on the finished pre-cast concrete fenders (after they are removed from the steel 

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corner modules used to form them) as part of Standard Concrete’s 

responsibility to load the concrete fender modules onto Weeks Marine’s barges 

after completion. Assuming arguendo that these circumstances are consistent 

with more than one fact and nothing shows that one is more probable than the 

others, none of the facts can be inferred. Marshall Field Stores, Inc. v. 

Gardiner, 859 S.W.2d 391, 400 (Tex. App—Houston [1st Dist.] 1993, writ 

dism’d w.o.j.) (op. on mo. for rehearing). As Weeks Marine offers no evidence 

supporting its interpretation of Paragraph 2, there is no triable issue of fact 

based on the language of this provision.5

Duty to Indemnify 

Weeks Marine’s argument that Standard Concrete is required to hold 

Weeks Marine harmless from any damages in the underlying litigation 

depends on the premise that Johnson’s alleged injuries fall within the scope of 

the indemnity agreement. For the reasons already discussed, we conclude that 

the indemnity agreement does not cover the underlying state court action.

This, however, does not end our inquiry because unlike the duty to defend, the 

duty to indemnify “is triggered by the actual facts that establish liability in the 

underlying lawsuit.” Guar. Nat’l Ins. Co., 211 F.3d at 243. As a result, the 

court may consider facts outside of those alleged in Johnson’s complaint to 

determine the scope of Standard Concrete’s duty to indemnify. Gilbane Bldg. 

Co., 664 F.3d at 594. Here, the magistrate judge’s Report noted that Weeks 

Marine “submitted no evidence that Mr. Johnson’s injuries were caused by or 

5 Standard Concrete offers a legitimate argument that Weeks Marine waived the 

stream of commerce and lift hardware arguments by raising them for the first time on appeal 

without appropriate justification. Indeed, the absence of discussion of these issues below 

may explain the lack of factual meat on the bones of Weeks Marine’s arguments. Although 

Weeks Marine did not address the waiver question in its reply brief, we nevertheless 

entertained Appellant’s claims as to Fresh Coats and Paragraph 2 out of an abundance of 

caution, and hold both to be unavailing. 

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related to the workmanship of Standard Concrete’s product.” Weeks Marine, 

Inc. v. Standard Concrete Products, Inc., No. 4:11-CV-03230, at 11 (S.D. Tex., 

filed on June 1, 2012). On appeal, Weeks Marine points to no facts that lead 

us to conclude otherwise. Instead, it argues that it is premature, as a matter 

of law, to dismiss its indemnification claim with prejudice. However, courts 

have recognized that there are situations in which there is no duty to defend, 

“and the same reasons that negate the duty to defend likewise negate any 

possibility that the [indemnitor] will ever have a duty to indemnify.” Columbia 

Cas. Co. v. Georgia & Florida RailNet, Inc., 542 F.3d 106, 111 (5th Cir. 2008) 

(citation omitted). This is such a case. 

CONCLUSION

Accordingly, we AFFIRM the district court’s judgment. 

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