IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31281

JOSEPH R. WILCOX; LISA WILCOX, 

 Plaintiffs–Appellants

v.

WILD WELL CONTROL, INCORPORATED; SUPERIOR ENERGY 

SERVICES, INCORPORATED, 

 Defendants–Appellees

---------------------------------------------------------------------------------------------------------

Cons. with 14-30137

JOSEPH R. WILCOX; LISA WILCOX,

 Plaintiffs–Appellants

v.

MAX WELDERS, L.L.C.,

 Defendant–Appellee

WILD WELL CONTROL, INCORPORATED; SUPERIOR ENERGY 

SERVICES, INCORPORATED,

 Defendants–Appellees–Appellants

Appeals from the United States District Court

for the Eastern District of Louisiana

United States Court of Appeals

Fifth Circuit

FILED

July 24, 2015

Lyle W. Cayce

Clerk

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Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This appeal arises from injuries sustained by Plaintiff–Appellant Joseph 

R. Wilcox while welding on an offshore platform. Wilcox, an employee of 

Defendant–Appellee Max Welders, L.L.C., was working as the borrowed 

employee of Defendant–Appellee–Appellant Wild Well Control, Incorporated, 

a subsidiary of Defendant–Appellee–Appellant Superior Energy Services, 

Incorporated. Wilcox sued the Defendants under, inter alia, the Jones Act. 

Superior and Wild Well filed a cross-claim for indemnity from Max Welders 

pursuant to a Master Service Agreement (MSA) or, in the alternative, Vessel 

Boarding, Utilization and Hold Harmless Agreement (VBA) between Superior 

and Max Welders. The district court granted summary judgment to all 

Defendants on the Jones Act claims because it found that Wilcox is not a Jones 

Act seaman and granted summary judgment to Max Welders on indemnity 

because 1) the MSA was void under Louisiana law and 2) the VBA did not 

apply to Wilcox’s work. Wilcox, Superior, and Wild Well appeal these decisions.

We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Max Welders is a contractor that provides various offshore construction, 

fabrication, and repair services. Max Welders employed Wilcox as a welder. 

During his employment with Max Welders, Wilcox worked in numerous

locations, including a fabrication yard in Louisiana and on various rigs, barges, 

and vessels owned by Max Welders’ customers. Wilcox concedes that during 

his entire employment with Max Welders, he spent less than thirty percent of 

his time in service of any one vessel or group of vessels. 

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Energy Resource Technology GOM, Incorporated (ERT) hired Wild 

Well—a subsidiary of Superior—to decommission a well in the Gulf of Mexico 

(“the ERT job”). Wild Well contracted with Max Welders to provide welders to 

assist. Wilcox was one of the welders sent to work on the ERT job, which was 

expected to last for approximately two months. During this time, Wilcox was 

required to live on Wild Well’s barge, the D/B SUPERIOR PERFORMANCE, 

which was on site at the well to provide support to the decommissioning work. 

Superior previously owned the D/B SUPERIOR PERFORMANCE. Wilcox 

allegedly sustained injuries on June 5, 2012, when gasses exploded while he 

was welding inside on the well platform. Wild Well concedes that, at the time 

of the accident, Wilcox was its borrowed employee. 

Wilcox and his wife sued Max Welders, Superior, and Wild Well for 

negligence under the Jones Act, 46 U.S.C § 30104, and general maritime law 

(GML), or alternatively for vessel negligence against the D/B SUPERIOR 

PERFORMANCE under the Longshore and Harbor Workers’ Compensation 

Act (LHWCA), 33 U.S.C. § 905(b). Superior and Wild Well jointly filed a crossclaim alleging that Max Welders had agreed to indemnify and hold harmless 

Superior and its subsidiaries against any personal-injury claims brought by 

Max Welders’ employees pursuant to the 2004 MSA between Max Welders and 

Superior. They argued, in the alternative, that Max Welders owed them 

indemnity pursuant to a 2010 VBA between Superior and Wild Well. 

Max Welders moved for summary judgment on Wilcox’s Jones Act and 

GML claims, asserting that Wilcox was not a seaman. Max Welders also moved 

for summary judgment on Superior and Wild Well’s indemnity cross-claim, 

contending that the MSA and VBA did not provide indemnity for Wild Well’s 

demolition work for a third party. Superior and Wild Well then filed a cross-

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motion for summary judgment on their indemnity claims. The district court 

granted summary judgment to Max Welders on Wilcox’s Jones Act and GML 

claims as well as on Superior and Wild Well’s indemnity claims.

Superior and Wild Well later moved for summary judgment on Wilcox’s 

Jones Act and GML claims, arguing that if Wilcox was not a seaman with 

respect to his employer, Max Welders, he was also not a seaman with respect 

to his borrowing employer, Wild Well. The district court granted this motion. 

The district court later granted summary judgment to Superior and Wild Well 

on Wilcox’s remaining claims for vessel negligence under the LHWCA. 

These consolidated cases encompass two appeals. First, Wilcox appeals 

the grant of summary judgment for Wild Well on Wilcox’s Jones Act and GML 

claims based on his seaman status.1 Second, Wild Well and Superior appeal 

the grant of summary judgment for Max Welders on indemnity.

II. DISCUSSION

This Court has jurisdiction to review a district court’s final judgment 

pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of 

summary judgment, viewing “all facts and evidence in the light most favorable 

to the non-moving party.” Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 

431, 433 (5th Cir. 2013). We apply the same standard as the district court in 

the first instance. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 

(5th Cir. 2007). 

Summary judgment is appropriate “if 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). A genuine dispute of material fact 

 

1 Wilcox does not appeal the grant of summary judgment on his LHWCA claims.

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exists when the “evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 

400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986)).

A. Wilcox’s Jones Act Claims

The district court granted summary judgment for Wild Well and 

Superior because it found that Wilcox was not a Jones Act seaman. The 

Supreme Court has articulated a two-prong test to determine seaman status 

under the Jones Act: 1) “an employee’s duties must ‘contribut[e] to the function 

of the vessel or to the accomplishment of its mission,’” and 2) “a seaman must 

have a connection to a vessel in navigation (or to an identifiable group of such 

vessels) that is substantial in terms of both its duration and its nature.” 

Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (quoting McDermott Int’l, Inc. 

v. Wilander, 498 U.S. 337, 355 (1991)). 

At issue in this appeal is the substantial-connection prong.2 The 

“fundamental purpose” of this inquiry “is to . . . separate the sea-based 

maritime employees who are entitled to Jones Act protection from those landbased workers who have only a transitory or sporadic connection to a vessel in 

navigation.” Id. at 368. “Land-based maritime workers do not become seamen 

because they happen to be working on board a vessel when they are injured, 

and seamen do not lose Jones Act protection when the course of their service 

to a vessel takes them ashore.” Id. at 361. Following Barrett v. Chevron U.S.A., 

Inc., 781 F.2d 1067 (5th Cir. 1986) (en banc), we have generally “declined to 

find seaman status where the employee spent less than 30 percent of his time 

 

2 The district court found a genuine issue of material fact regarding the contribution 

prong. Wild Well does not contest this finding.

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aboard ship.” Chandris, 515 U.S. at 367. The Supreme Court deemed this “an 

appropriate rule of thumb,” but noted that “departure from it will certainly be 

justified in appropriate cases.” Id. at 371.

Generally, the status of an employee who splits time between land and 

a vessel is “determined in the context of his entire employment with his current 

employer.” Barrett, 781 F.2d at 1075 (internal quotation marks omitted); see 

also Chandris, 515 U.S. at 370–71. But if the employee “receives a new work 

assignment before his accident in which either his essential duties or his work 

location is permanently changed, he is entitled to have the assessment of the 

substantiality of his vessel-related work made on the basis of his activities in 

his new job.” Barrett, 781 F.2d at 1075–76 (emphasis added); see also Chandris, 

515 U.S. at 371–72 (“[W]e see no reason to limit the seaman status inquiry . . 

. exclusively to an examination of the overall course of a worker’s service with 

a particular employer. When a maritime worker’s basic assignment changes, 

his seaman status may change as well.”). This reassignment exception applies 

only when an employee has “undergone a substantial change in status, not 

simply [by] serv[ing] on a boat sporadically.” Becker v. Tidewater, Inc., 335 F.3d 

376, 389 (5th Cir. 2003) (emphasis added).

We addressed the Barrett reassignment exception in a borrowedemployee context similar to Wilcox’s in New v. Associated Painting Services, 

Inc., 863 F.2d 1205 (5th Cir. 1989).3 The plaintiff worked for a painting 

company that sent employees to offshore drilling rigs and oil platforms. Id. at 

1207. The employee was regularly assigned to different vessels owned by 

 

3 Although New was decided before the Supreme Court’s seminal decision in Chandris, 

we applied the Robison seaman-status test, which the Court “essentially accepted” in 

Chandris. Nunez v. B&B Dredging, Inc., 288 F.3d 271, 274–75 (5th Cir. 2002). Thus, New

remains binding. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

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unrelated entities. Id. One week into an assignment to a drilling rig as a 

borrowed employee, the plaintiff sustained injuries in an accident. Id. The 

employee argued that he was a seaman with regard to the painting company 

and the borrowing employer. Id. Although he did not satisfy the thirty-percent 

requirement based on his entire employment with the painting company, the 

employee asserted that the court should look only to the time he worked for 

the borrowing employer because as a matter of law, he contended, the Barrett 

exception applied to his work as a borrowed employee. Id. at 1208–09. We held 

1) that the plaintiff’s status as a borrowed employee did not make him a Jones 

Act seaman; and 2) that because the summary-judgment evidence showed no 

permanent change to his essential work duties or work location, his status 

must be determined by looking to his entire employment with the painting 

company. Id.4

Wilcox argues that the district court erred in its substantial-connection 

analysis by refusing to determine Wilcox’s status by reference to his period of 

employment with Wild Well, rather than his entire employment with Max 

Welders.5 Wilcox disclaims reliance on the Barrett exception, and for good 

 

4 We followed a similar analysis in a post-Chandris case. In Becker v. Tidewater, Inc., 

335 F.3d 376 (5th Cir. 2003), we refused to apply the reassignment exception to a land-based 

worker temporarily reassigned to a vessel. Id. at 390–91. 

5 Wilcox devotes a substantial portion of his brief to arguing that the district court 

granted summary judgment based on dictum from New v. Associated Painting Services, Inc., 

1987 WL 4944 (E.D. La. May 8, 1987). He suggests that the New district court created, and 

the district court in this case applied, a per se rule that a borrowed employee’s seaman status 

must always be determined by looking at the time spent working for the original employer. 

This argument mischaracterizes the district court’s summary-judgment analysis in 

this case. The district court carefully analyzed and applied our New opinion, which affirmed

the lower court. Wilcox also ignores the context of the summary-judgment order: in its prior

order granting summary judgment to Max Welders, the district court had already addressed 

the argument that Wilcox’s status should be determined based on the time spent as Wild 

Well’s borrowed employee. When the district court disposed of Wild Well’s summary 

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reason—there is no evidence in the record to support application of the 

reassignment exception in this case. Wilcox’s case presents facts that are 

strikingly similar to those in New. Like the borrowed employee in New, Wilcox 

was not permanently reassigned to work on Wild Well’s vessel—the project 

was expected to last for approximately two months. Nor did his essential duties 

change—his primary duty continued to be welding. Wilcox does not point to 

any evidence suggesting a “fundamental change in status,” Becker, 335 F.3d at 

390, which would allow us to assess the substantial-relation prong with sole 

reference to Wilcox’s time as a borrowed employee with Wild Well. 

Conceding that the Barrett exception does not apply here, Wilcox instead 

asserts that he “started a new job with a new employer when he began work 

as Wild Well’s borrowed employee,” making Wild Well his “current employer,” 

Chandris, 515 U.S. at 366, for the purposes of the seaman-status inquiry. 

Thus, Wilcox concludes, he has satisfied the substantial-connection prong 

because he spent more than thirty percent of his time with Wild Well aboard a 

vessel. He concedes that there is no direct support for this conclusion but 

argues that it is “suggested” by other pre-Chandris cases that recognize that a 

borrowed employee can become a seaman with regard to his borrowing 

employer. We decline to adopt such a rule.

The Supreme Court has recognized that in determining seaman status, 

“it [is] preferable to focus upon the essence of what it means to be a seaman 

and to eschew the temptation to create detailed tests to effectuate the 

congressional purposes, tests that tend to become ends in and of themselves.” 

Id. at 369. Our thirty-percent rule and the Barrett reassignment exception 

 

judgment motion, the only remaining question was “whether the seaman status finding that 

was made with respect to Max Welders should also be applied to Wild Well.” 

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“get[] at the . . . basic point [that] [t]he Jones Act remedy is reserved for seabased maritime employees whose work regularly exposes them to the special 

hazards and disadvantages to which they who go down to sea in ships are 

subjected.” Chandris, 515 U.S. at 370 (internal quotation marks omitted). We 

do not here adopt a bright-line rule that courts performing the seaman-status 

inquiry must always look to an employee’s entire employment with his nominal 

employer rather than his borrowing employer.6 Nevertheless, we also decline

to adopt a rule that borrowed-employee status automatically requires courts 

look only to his period of employment with the borrowing employer.7

Wilcox supports his argument with Roberts v. Williams–McWilliams Co., 

648 F.2d 255 (5th Cir. 1981), in which this Court held that a borrowed 

employee was a seaman with regard to his borrowing employer. See id. at 262. 

In Roberts, we found “no reason to distinguish [the plaintiff] because he 

received his paycheck from the [nominal employer].” Id. at 262. There, the 

employee was under the complete control of the borrowing employer; he was 

sent to work on the vessel for an indefinite period of time and was expected to 

remain on the vessel until the completion of the project. Id. Importantly, the 

employee was assigned to work for the borrowed employer on his second day of 

work for the nominal employer. Id. at 257–58. Thus, the distinction at issue 

 

6 Such a rule would enable employers to contract around Jones Act rights. See Spinks 

v. Chevron Oil Co., 507 F.2d 216, 225 (5th Cir. 1975) (rejecting a rule that would “result in 

defeating Jones Act rights through contractual manipulations”), overruled on other grounds 

by Gautreaux v. Scurlack Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). 7 Such a rule would be inconsistent with our reasoning in New—in which, after finding 

that the Barrett exception did not apply, we concluded that the district court “applied the 

proper legal standard” by reviewing the borrowed employee’s entire employment with his 

nominal employer. 863 F.2d at 1208–09. Such a rule would also result in workers walking 

“into and out of [Jones Act] coverage in the course of his regular duties.” See Chandris, 515 

U.S. at 363.

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here—entire period of employment versus period of employment with the 

borrowing employer—was inconsequential in Roberts. 

Here, there is good reason to distinguish Wilcox from Wild Well’s 

permanent employees. While employed by Max Welders, Wilcox worked for 34

different customers on 191 different jobs, both offshore and onshore. He was 

assigned to work for Wild Well on the D/B SUPERIOR PERFORMANCE for 

one specific project, which had a clear end date only two months after it began. 

Moreover, testimony indicates that, although crew would usually stay on a 

vessel for an entire job, they could request relief and leave the vessel before the 

job was complete. 

Focusing on the “essence of what it means to be a seaman,” Chandris,

515 U.S. at 369, we cannot say Wilcox demonstrated a genuine issue of 

material fact from which a reasonable jury could conclude that he qualifies for 

seaman status under the Jones Act. Therefore, we affirm the district court’s 

grant of summary judgment to Wild Well on Wilcox’s Jones Act claims.

B. The Indemnity Cross-Claims 

We now turn to the district court’s grant of summary judgment to Max 

Welders on Superior and Wild Well’s indemnity claims. Because we affirm 

summary judgment on Wilcox’s remaining claims against all Defendants, we 

need only address Max Welders’ liability for defense costs. Superior and Wild 

Well filed a cross-claim for indemnity from Max Welders pursuant to the MSA 

or, in the alternative, the VBA between Superior and Max Welders.

1. The MSA

The MSA that Max Welders and Superior entered into in April 2004

contains an indemnity-and-defense provision. The district court assumed 

without deciding that the MSA applied to Wilcox’s work and held the MSA’s 

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“obligations to defend [or] indemnify . . . are void and unenforceable” under the 

Louisiana Oilfield Anti-Indemnity Act (LOAIA). 

Superior and Wild Well argue that this was error with reference to two 

key cases. In Meloy v. Conoco, Inc., 504 So. 2d 833 (La. 1987), the Louisiana 

Supreme Court made clear that the LOAIA “does not apply where the 

indemnitee is not negligent or at fault,” id. at 839. Thus, “the indemnitor’s 

obligation for cost of defense cannot be determined until there has been a 

judicial finding that the indemnitee is liable or that the charges against it were 

baseless.” Id. In Melancon v. Amoco Production Co., 834 F.2d 1238 (5th Cir. 

1988), we affirmed summary judgment for a borrowing employer on an 

employee’s LHWCA claim. Id. at 1247–48. Applying Meloy, we held that the 

district court erred in finding that the LOAIA voided the borrowing employer’s 

indemnity agreement with the nominal employer and awarded the borrowing 

defense costs. Id. at 1248.

Max Welders argues that Wild Well and Superior have waived their 

argument that they are entitled to attorneys’ fees under Meloy and Melancon

because they did not present this argument to the district court. Superior and 

Wild Well counter that they could not raise their argument because they “were 

not conclusively determined to be ‘not negligent’” until the district court 

dismissed Wilcox’s final claim against them on February 14, 2014, “after the 

district court’s Scheduling Order deadline” for pretrial motions. 

“An argument not raised before the district court cannot be asserted for 

the first time on appeal.” XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 

513 F.3d 146, 153 (5th Cir. 2008) (citing Stokes v. Emerson Elec. Co., 217 F.3d 

353, 358 n.19 (5th Cir. 2000)). A party preserves an argument only if it is 

“raised to such a degree that the trial court may rule on it.” Id. (quoting Butler 

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Aviation Int’l, Inc. v Whyte (In re Fairchild Aircraft Corp.), 6 F.3d 1119, 1128 

(5th Cir. 1993)), abrogated on other grounds by Tex. Truck Ins. Agency, Inc. v. 

Cure (In re Dunham), 110 F.3d 286 (5th Cir. 1997). 

Superior and Wild Well did not have to wait for a conclusive 

determination of their liability to raise Meloy and Melancon. In its indemnity 

motion for summary judgment, Max Welders argued that the MSA’s indemnity 

agreement was void under the LOAIA. Superior and Wild Well filed a crossmotion for summary judgment, but only argued that the LOAIA did not govern 

the MSA because it did not “pertain to a well.” They could have argued in their 

opposition that Meloy and Melancon precluded the district court from 

determining the validity of the indemnity provision before liability was 

determined, but they did not.8 Because Wild Well and Superior failed to raise 

the Meloy–Melancon argument at the summary-judgment stage, we conclude 

that they have waived the argument on appeal. See Provident Life & Accident 

Ins. Co. v. Goel, 274 F.3d 984, 990 n.11 (5th Cir. 2001) (“As a general rule, 

arguments . . . not presented in the district court in connection with a summary 

judgment motion are waived on appeal and the appellate court will be unable 

to consider these materials in its review of the district court’s decision.” 

(quoting in a parenthetical 11 James Wm. Moore et al., Moore’s Federal 

Practice ¶ 56.41[3][c] (3d ed. 1997))).

 

8 Superior and Wild Well did cite to Meloy in the law section of their cross-motion for 

summary judgment on indemnity, noting that “[i]f the LOAIA applies to the Superior/Max 

MSA, then the defense, indemnity and insurance provisions will be void as a matter of public 

policy if there is any negligence on the part of Superior/Wild Well.” (citing Meloy, 504 So. 2d 

833). However, in the pertinent section of their brief, they only argue that the LOAIA does 

not apply because the agreement does not pertain to a well. This was most likely a strategic 

choice: because they also sought summary judgment on indemnity, the Meloy–Melancon issue 

could have precluded summary judgment in their favor.

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Because Superior and Wild Well have waived their argument for 

attorneys’ fees based on Melancon and Meloy, we affirm the district court’s 

summary-judgment holding that the MSA was void under the LOAIA.

2. The VBA

Superior and Wild Well also argue that they are entitled to defense costs 

and indemnity under the Vessel Boarding, Utilization and Hold Harmless 

Agreement (VBA) between Superior and Max Welders.9 The district court 

rejected this argument, but it did not distinguish between indemnity for Wild 

Well and indemnity for Superior in its analysis. After concluding that the VBA 

did not apply to Wild Well, the district court granted summary judgment to 

Max Welders against both Wild Well and Superior. We address each indemnity 

issue in turn.

The VBA states it was “executed by Contractor [Max Welders] for the 

purpose of obtaining access from Owner [Superior] to vessels owned, chartered 

and/or operated by Owner . . . in order to allocate the risks and liabilities 

arising out of Owner granting to Contractor such access.” It further provides: 

Contractor agrees to defend, indemnify and hold Owner harmless 

from and against any claims, losses, or demands of any kind 

arising as a result of personal injury, death or disease, that may 

be asserted by Contractor . . . or on behalf of any of its or their 

employees . . . no matter how occasioned . . . .

a. Indemnity for Wild Well

Before the district court, Superior and Wild Well argued that the VBA 

was intended as an addendum to the MSA that provided indemnity in 

 

9 Max Welders points out that the VBA is not countersigned by Superior, and argues 

“[t]his alone renders the VBA inapplicable.” However, it cites no authority for this 

proposition. We find this argument to be inadequately briefed and abandoned. See Fed. R. 

App. P. 28(a)(8); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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connection with the D/B SUPERIOR PERFORMANCE, regardless of whether 

it was owned by Wild Well or Superior.10 They conceded that the plain 

language of the agreement did not reflect this intent, but argued, based on 

parol evidence, that the VBA should be reformed to reflect that intent. They 

asserted that because this was a reformation issue, rather than an ambiguity 

issue, the parol evidence could be considered. The district court found the 

contract to be unambiguous and found the defendant’s reformation argument 

to be an “end-run” around the parol evidence rule. On appeal, Superior and 

Wild Well raise nearly identical arguments. 

“Reformation is an equitable remedy used to correct errors or mistakes 

in contracts.” Am. Elec. Power Co. v. Affiliated FM Ins. Co., 556 F.3d 282, 287

(5th Cir. 2009) (internal quotation marks omitted). The party seeking 

reformation bears the burden of establishing mutual error in the contract’s 

creation. Id. Ordinarily the party must only show mistake by a preponderance 

of the evidence; but when a party seeks to reform a provision “to provide 

coverage for a ‘substantially different and greater risk’ than expressly covered, 

the party must demonstrate a mutual error by clear-and-convincing evidence.” 

Id. at 287 n.4 (quoting Samuels v. State Farm Mut. Auto. Ins. Co., 939 So. 2d 

1235, 1240 (La. 2006)). 

In American Electric Power Co. v. Affiliated FM Insurance Co., we

interpreted an insurance agreement that had been adopted by the defendant 

insurance company through a “prior loss” clause in its coverage agreement 

with the plaintiff. Id. at 284–85. The clause obligated the defendant to cover a 

loss if the prior insurance agreement did. Id. The prior agreement covered 

 

10 Superior owned the D/B SUPERIOR PERFORMANCE when the VBA was signed 

in 2010 but transferred the vessel to Wild Well in 2011, prior to Wilcox’s injury. 

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losses for the company and “any subsidiary corporation now existing or 

hereafter created or acquired.” Id. at 285. The question was whether this 

provision covered subsidiary LLCs. Id. Before the district court, the plaintiff 

sought to introduce affidavits from the original parties to the agreement 

evincing that they intended to include LLCs in the coverage. Id. The district 

court, granting summary judgment for the defendant insurance company,

found that “corporation” was unambiguous and, therefore, “struck the 

affidavits as impermissible parol evidence.” Id. The plaintiff company filed a 

Rule 59(e) motion seeking reformation to match the original intent of the 

parties; the district court denied the motion. Id.

This Court agreed that “corporation” was unambiguous and parol 

evidence was properly excluded. Id. at 286–87. We also affirmed the refusal to 

reform the agreement in part because “the use of the term ‘corporation’ is not 

the type of ‘error’ that reformation is intended to remedy.” Id. at 288. We noted 

that the plaintiff “argue[d] that the original parties had a broader-than-usual 

meaning in mind when they purposefully included the word. In effect, [the 

plaintiff] attempt[ed] to make an end-run around the parol-evidence rule by 

framing its argument as a request for reformation.” Id.

American Electric defeats Superior and Wild Well’s reformation 

argument. The VBA defines “Owner” as “Superior Energy Services, L.L.C.” 

There is nothing ambiguous about this term, which Superior and Wild Well 

now contend must be read to include all companies affiliated with Superior. 

The agreement clearly covers “vessels owned, chartered and/or operated by” 

Superior.” As in American Electric, the parties seek to use parol evidence to 

show “the original parties had a broader-than-usual meaning in mind when 

they purposely included the word,” id. Moreover, there is absolutely nothing in 

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the agreement that even suggests it is meant as an addendum to the MSA, a 

document executed six years prior. 

Superior and Wild Well argue that American Electric is distinguishable 

because “reformation of the contract at issue [in that case] would have been to 

the detriment of a third party.” It is true that part of our reasoning in that case 

was that the requested reformation would hurt a third party. See id. at 287–

88. But Superior and Wild Well do not explain how the alleged mistake—a 

failure to include language in the contract indicating that “Owner” referred not 

just to Superior, but also to any subsidiary it sold a vessel to—is “the type of 

‘error’ that reformation is intended to remedy,” id. at 288. To allow Superior 

and Wild Well, in spite of unambiguous contract language, to introduce 

affidavits of its employees to show that the agreement was meant to include 

Wild Well and serve as an addendum to the MSA would most certainly be “an 

end-run around the parol-evidence rule . . . fram[ed] . . . as a request for 

reformation,” id. 

b. Indemnity for Superior

Superior also argues that even if the VBA does not provide for Wild 

Well’s defense costs, “Superior had to defend itself in this case against 

allegations that it was negligent as the owner of the D/B SUPERIOR 

PERFORMANCE.” Therefore, Superior argues, it is entitled to defense costs 

for defending against these allegations. We disagree.

The opening paragraph of the VBA states that it was “executed by 

Contractor [Max Welders] for the purpose of obtaining access from Owner 

[Superior] to vessels owned, chartered and/or operated by Owner, to provide 

employees of Contractor with working, living or operating support aboard the 

vessels of Owner, and in order to allocate the risks and liabilities arising out 

 Case: 13-31281 Document: 00513128507 Page: 16 Date Filed: 07/24/2015
No. 13-31281

17

of Owner granting to Contractor such access.” This statement makes clear that 

the risks and liabilities that are the subject of the VBA are those that arise out 

of Superior allowing Max Welders’ employees to live, work, and operate aboard 

vessels that are owned and/or operated by Superior. Reading the indemnity 

provision’s coverage for “claims . . . asserted . . . on behalf of [Max Welders’] 

employees” in the context of the VBA’s opening language, it is clear that the 

parties only intended indemnity for claims of employees that had access to 

Superior’s vessels. There was no Superior-owned vessel involved in Wilcox’s 

injury, and therefore the VBA does not provide for defense costs. The 

unambiguous language of the VBA does not show that the parties intended it 

to cover any suit in which a Max Welders employee mistakenly or frivolously 

claims that a vessel was owned by Superior. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of 

summary judgment as to Wilcox’s Jones Act claims and Superior and Wild 

Well’s indemnity claims. 

 Case: 13-31281 Document: 00513128507 Page: 17 Date Filed: 07/24/2015