Friday, October 27, 2006

Sain v. EOG, 10th Circuit, 2006

This isn't  published opinion, i.e, it doesn't appear in the Federal Reporter, but it does appear in Wests' Federal Appendix at 204 Fed.Appx. 739.

This one is an odd one for me, as my role was quite limited, and I didn't appear at the argument.  Nonetheless, I ended up with my name in the decision for my minor role in it.

Noah A. SAIN; Marilyn Sain, Plaintiffs-Appellants,
EOG RESOURCES, INC., a Delaware Corporation; SST Energy Corporation, a Colorado Corporation, Defendants-Appellees.
No. 05-2320.
Oct. 27, 2006.
Robert N. Williams, Erin E. Weisman, Meyer & Williams, Jackson, WY, Terry M. Word, Word & Bogardus, Albuquerque, NM, for Plaintiffs-Appellants.
Lynn Isaacson, Mason, Isaacson & Macik, Gallup, NM, Jennifer Leigh Collins, Robert J. Mroz, Madison, Harbour, Mroz & Brennan, Albuquerque, NM, Patrick Holscher, Schwartz, Bon, Waler & Studer, Casper, WY, for Defendants-Appellees.
Before O'BRIEN, PORFILIO, and ANDERSON, Circuit Judges.

Plaintiffs Noah and Marilyn Sain appeal from the district court's order dismissing their complaint for lack of jurisdiction based on its determination that both the Sains and defendant SST Energy Corporation (SST) are Wyoming citizens for purposes of diversity jurisdiction. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
On October 16, 2002, Mr. Sain was working as a field maintenance operator on an oil rig in Moffat County, Colorado when part of the rig collapsed, causing him to suffer severe and permanent injuries. The rig was owned by SST, a company that provides drilling equipment and operations crews for oil and gas wells. SST's equipment had been provided pursuant to a contract with EOG Resources, Inc. (EOG), which owned the federal lease and state permit to drill for oil in Moffat County.
On February 17, 2005, the Sains sued SST and EOG in U.S. District Court in New Mexico alleging that the accident was caused by the defendants' negligence. The Sains invoked federal jurisdiction under the diversity statute, 28 U.S.C. § 1332, claiming that they are Wyoming citizens; that EOG is a citizen of both Delaware and Texas; and that SST is a citizen of Colorado. On April 8, 2005, SST filed a motion to dismiss for lack of subject matter jurisdiction based on lack of complete diversity. It argued that in addition to being a citizen of Colorado, its state of incorporation, it was also a citizen of Wyoming because that is where its principal place of business was located.1
Following jurisdictional discovery, the Sains responded to the motion with two arguments. First, they argued that an examination of SST's total activities could support no other finding than that its principal place of business was in Colorado. Second, they argued that SST should be *741 judicially estopped from asserting that its principal place of business was in Wyoming because it had previously listed Denver, Colorado as its principal office in a filing with the New Mexico Public Regulation Commission.
On August 12, 2005, the Sains filed a motion to supplement their response with additional evidence that they claimed supported their judicial estoppel argument. The motion was accompanied by a request to take judicial notice, which attached pleadings and other filings from an unrelated Colorado state court case involving SST. The state court complaint alleged that SST's principal place of business was in Denver, Colorado, and SST had filed an answer in the case admitting that allegation. The Sains argued that this admission, along with the New Mexico public filing, precluded SST from taking a contrary position in the instant case.
The district court rejected both of the Sains' arguments. Employing the “total activity” test that we adopted in Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 915 (10th Cir.1993), the court found that the majority of SST's activities took place in Wyoming. It went on to reject the Sains' judicial estoppel argument based on our refusal to adopt the doctrine in Rascon v. U.S. West Commc'ns, Inc., 143 F.3d 1324, 1332 (10th Cir.1998). The court did say, however, that even if the doctrine were recognized in this circuit, it would not apply to bar SST's position in this case, because “SST's principal place of business was not an issue in the Colorado suit and no judicial body relied on the New Mexico administrative form.” Aplt.App. at 260. Having found that SST's activities in Wyoming “clearly exceed[ed]” its activities in other states, id., and that the Sains' judicial estoppel argument was without merit, the court concluded that Wyoming was SST's principal place of business for purposes of diversity jurisdiction. Since the Sains were also citizens of Wyoming, the district court concluded that diversity was not complete and dismissed the complaint.
A. Standard of Review
A district court's “determination of a corporation's principal place of business is a question of fact that we review under the clearly erroneous standard.” Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc., 415 F.3d 1158, 1162 (10th Cir.2005). To the extent that the district court's decision depended on whether SST may be judicially estopped from asserting its position regarding its principal place of business, however, it is a question of law that we review de novo. See Rascon, 143 F.3d at 1329 (“The issue of the application of judicial estoppel presents a legal question.”).
B. Judicial Estoppel
1 The Sains' primary challenge is directed at the district court's refusal to apply judicial estoppel against SST to preclude it from asserting that its principal place of business is in Wyoming. They accuse the district court of “completely ignor[ing] the fact that SST has blown hot and cold on its residence,” Reply Br. at 4, and urge this court to revisit Rascon “to the extent that it abrogates the responsibility of parties to act in a consistent fashion relative to jurisdictional issues,” Opening Br. at 12. SST defends the district court's decision not to apply judicial estoppel, arguing that the prerequisites for invoking the doctrine are not present in this case.2
The district court's decision was based in part on our historical rejection of the judicial estoppel doctrine. See Rascon, 143 F.3d at 1332 (reaffirming our refusal to adopt the doctrine). Last year, however, following the Supreme Court's guidance in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), we reversed course and recognized the doctrine's limited applicability. See Johnson v. Lindon City Corp., 405 F.3d 1065, 1068, 1069 (10th Cir.2005). Therefore, the district court's statement that “[t]he Tenth Circuit has rejected the doctrine of judicial estoppel,” Aplt.App. at 260, is incorrect in light of recent precedent. The district court went beyond our historical disapproval of the doctrine, however, in finding that judicial estoppel was not applicable in this case because “SST's principal place of business was not an issue in the Colorado suit and no judicial body relied on the New Mexico administrative form.” Id.
In Johnson, we described the doctrine of judicial estoppel as follows:
“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”
405 F.3d at 1069 (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1895)). We cautioned that the doctrine should only be applied “in the narrowest of circumstances,” and should be limited to situations where a party was successful in “persuading a court to accept” his earlier position. Id. (emphasis added) (quotation omitted). Therefore, the district court's understanding of the doctrine, in particular, its narrow applicability to situations where the party's previous position was asserted before a “judicial body,” Aplt.App. at 260, was correct, as was its decision not to apply judicial estoppel based on statements made before the New Mexico Public Regulation Commission, a non-judicial body.
We also conclude that it would have been error to preclude SST from claiming Wyoming citizenship based on a formulaic admission made in the Colorado state case. The location of SST's principal place of business was only relevant in that case in the context of proper venue within Colorado. The state court had neither an opportunity nor a reason to compare the company's activities in Colorado versus Wyoming. The district court's determination that “SST's principal place of business was not an issue in the Colorado suit,” id., was therefore correct. More importantly, we need not be concerned with a party's inconsistent position “creat[ing] the perception that either the first or second court was misled.” Johnson, 405 F.3d at 1069 (quotation omitted). Insofar as the *743 prerequisites for judicial estoppel have not been met, we conclude that the district court correctly declined to apply the doctrine against SST.
C. The Total Activity Test
“For diversity purposes, a corporation is deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Gadlin v. Sybron Int'l Corp., 222 F.3d 797, 799 (10th Cir.2000) (quotation omitted). We have held that a corporation's principal place of business is to be determined by examining “the total activity of the company or the totality of the circumstances, considering the character of the corporation, its purposes, the kind of business in which it is engaged, and the situs of its operations.” Id. (quotations omitted). The determination “does not hinge on one particular facet of corporate operations” but is based on a variety of factors, including “the location of the corporation's nerve center, administrative offices, production facilities, employees, etc.” Shell, 415 F.3d at 1162 (quotations omitted); see also Amoco Rocmount Co., 7 F.3d at 915, n. 2 (stating that a corporation's principal place of business is located in “the state where a substantial part of its business is transacted and from which centralized general supervision ... is exercised.”).
2 The Sains argue that the district court erred in failing to consider the evidence of SST's prior statements among the factors relevant to determining its principal place of business. This argument is without merit. The district court unquestionably considered the factors that we have held relevant to the principal place of business determination. The court recognized that SST maintains an office in Denver, Colorado and that the company's sole marketing manager, who is responsible for negotiating contracts, resides in Denver. It noted, however, that in contrast to SST's sole employee in Colorado, the company's “management, operations, accounting, and engineering functions” are all located in Wyoming. Aplt.App. at 259-60. In addition, the court found that the company's “real property, home office, and maintenance shop are located in Wyoming,” and that the “bulk of its work” takes place in, and “[a]ll employees are paid out of the Wyoming office.” Id. at 260.
Based on the record before us, we conclude that the district court did not clearly err in determining that SST's principal place of business was located in Wyoming rather than Colorado. Since a corporation's principal place of business determines its citizenship for purposes of diversity jurisdiction, 28 U.S.C. § 1332(c)(1), diversity was not complete in this case, and the district court properly dismissed the complaint for lack of subject matter jurisdiction. Its judgment is therefore AFFIRMED.


After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
SST also argued that it lacked the requisite minimum contacts to establish a basis for personal jurisdiction in New Mexico. This argument, however, was not a basis for the district court's decision and is not raised on appeal.
Interestingly, neither party has raised the issue of whether the application of judicial estoppel in this context is governed by state or federal law. Compare Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 12 F.3d 171, 172-73 (10th Cir.1993) (stating that “diversity, as it affects jurisdiction, is a matter of federal and not state law,” and holding that federal principles must dictate whether diversity exists) with Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1325 (10th Cir.1998) (stating generally that state law determines whether and how to apply doctrine of judicial estoppel). Given that the ultimate issue is whether federal subject matter jurisdiction exists, however, the parties' and the district court's assumption that federal law governed the judicial estoppel issue was reasonable. Moreover, since the Sains failed to make any argument under state law or even tell us which state's law would apply here, any such arguments have been waived. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir.1994). Therefore, for the purposes of this case, we will assume that federal law governs the judicial estoppel question and proceed accordingly.

Friday, March 24, 2006

True Oil Company v. Mid-Contenant Casualty Company, 10th Circuit

Another case that wasn't published, but which appears in West's Federal Appendix at 173 Fed.Appx. 645.

United States Court of Appeals,
Tenth Circuit.
TRUE OIL COMPANY, a Wyoming partnership, Plaintiff-Appellant,
MID-CONTINENT CASUALTY COMPANY, an Oklahoma corporation, Defendant-Appellee.
No. 05-8028.
March 23, 2006.
Richard E. Day, Scott P. Klosterman, Williams, Porter, Day & Neville, Casper, WY, for Plaintiff-Appellant.
Patrick T. Holscher, Schwartz, Bon, McCrary & Walker, Casper, WY, for Defendant-Appellee.
Before TACHA, Chief Circuit Judge, PORFILIO, Circuit Judge, and JOHNSON, District Judge.


DEANELL REECE TACHA, Chief Circuit Judge.
This appeal arises out of a diversity action filed in the District of Wyoming in which Plaintiff-Appellant True Oil Company (“True Oil”) brings claims against Defendant-Appellee Mid-Continent Casualty Company (“Mid-Continent”) for breach of insurance contract, breach of the covenant of good faith and fair dealing, and bad faith arising from Mid-Continent's failure to defend True Oil and pay for its liability resulting from the injuries of a worker at one of True Oil's wells. On cross-motions for summary judgment, the District Court granted summary judgment in favor of Mid-Continent. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
In 1969, in recognition of the ultrahazardous nature of work in the mineral industry, Wyoming adopted a law to prohibit the contractual shifting of liability for a party's own negligence in connection with certain contracts relating to oil, gas, or water wells and mineral mines. Wyoming's anti-indemnity statute provides:
(a) All agreements, covenants or promises contained in, collateral to or affecting any agreement pertaining to any well for oil, gas or water, or mine for any mineral, which purport to indemnify the indemnitee against loss or liability for damages for:
*647 (i) Death or bodily injury to persons;
(ii) Injury to property; or
(iii) Any other loss, damage, or expense arising under either (i) or (ii) from:
(A) The sole or concurrent negligence of the indemnitee or the agents or employees of the indemnitee or any independent contractor who is directly responsible to such indemnitee; or
(B) From any accident which occurs in operations carried on at the direction or under the supervision of the indemnitee or an employee or representative of the indemnitee or in accordance with methods and means specified by the indemnitee or employees or representatives of the indemnitee,
are against public policy and are void and unenforceable to the extent that such contract of indemnity by its terms purports to relieve the indemnitee from loss or liability for his own negligence. This provision shall not affect the validity of any insurance contract or any benefit conferred by the Worker's Compensation Law ... of this state.
Wyo. Stat. Ann. § 30-1-131. The statute was likely a response to “the safety issues raised by contracts which indemnify the indemnities from their own negligence which could have the effect of insulating persons responsible for such work from the consequences of unsafe practices in the workplace.” Union Pac. Res. Co. v. Dolenc, 86 P.3d 1287, 1292 (Wyo.2004).
In May 2001, True Oil, an owner and operator of oil and gas wells throughout the United States, contracted with Pennant Service Company (“Pennant”) to perform work on one of its wells in Wyoming. The two companies executed a Master Service Contract (“MSC”) that includes an indemnity provision-despite the fact that Wyoming law renders such agreements unenforceable-whereby Pennant agrees to indemnify and hold True Oil harmless for True Oil's own negligence arising out of the work to be performed by Pennant.1 The MSC also contains an insurance provision which requires Pennant to obtain insurance and name True Oil as “an additional insured” on the contract. These two provisions state in relevant part:
6. Indemnification. To the fullest extent permitted by law, [Pennant] shall and does agree to indemnify, protect, defend and hold harmless [True Oil], its affiliated companies, their joint owners, officers, directors, shareholders, employees and agents (collectively “Indemnitee”) from and against all claims, damages, ... even if these liabilities are caused in part by the negligence or omission of any Indemnitee.
7. Insurance. (a) At any and all times during the terms of this Agreement, [Pennant] agrees to carry insurance of the types and in the minimum amounts as set forth on Exhibit “B” attached hereto, incorporated by reference.... Such coverage shall not substitute for or limit in any way the indemnification given above. [Pennant] further agrees to have its insurance carrier furnish [True Oil], on the form of Insurance Certificate attached hereto as Exhibit “C” and incorporated herein by reference ... evidence of insurance coverage complying with the requirements which are set forth on Exhibit “B” hereto, and specifically setting forth the additional insured status ...
(b) ... [Pennant] agrees to have its insurance carrier furnish [True Oil] a certificate or certificates evidencing insurance coverage in accordance with the above requirements.
(c) [Pennant] will promptly, following the execution of this Contract, obtain from its insurers a waiver of subrogation against [True Oil] for all of the insurance policies which are reflected on the Certificate of Insurance which is attached hereto as Exhibit “C,” and an endorsement for all Comprehensive General Liability and Excess Liability policies reflected on Exhibit “C” naming [True Oil] as an additional insured.
Subsequent to executing the MSC, True Oil requested and obtained two certificates of insurance from Pennant's insurance agent, Freburg & Company, Inc. (“Freburg”). Freburg is an agent of Mid-Continent and has authority to solicit and deliver insurance policies, certificates, and endorsements on behalf of Mid-Continent. One of the certificates, termed an “ACORD Certificate of Liability Insurance,”2 provides that it “is issued as a matter of information only and confers no rights upon the certificate holder” and that it “does not amend, extend, or alter the coverage afforded by the policies.” It also states that True Oil is the certificate holder and is named as an “Additional Insured ... when required by an insured contract.” The second certificate is True Oil's own certificate of insurance. It was signed by an agent of Freburg and provides that True Oil is included as an “Additional Insured” on Pennant's Commercial General Liability (“CGL”) policy issued by Mid-Continent.
In October 2001, one of Pennant's employees was injured while performing work on the well for True Oil. The employee sued True Oil, alleging that it negligently supervised the project and failed to implement safety precautions properly. True Oil made a demand upon Mid-Continent, seeking defense and indemnification in the action. Several months later, Mid-Continent denied True Oil's request because, in its view, the indemnity provision of the MSC was void as violative of public policy under Wyo. Stat. Ann. § 30-1-131 and therefore True Oil was not covered under Pennant's CGL policy.
True Oil filed suit against Mid-Continent for breach of contract, bad faith, and breach of the covenant of good faith and fair dealing, and sought declaratory relief and compensatory and punitive damages. True Oil filed a motion for partial summary judgment on its status as an “additional insured” under the CGL policy and on Mid-Continent's duty to defend. Mid-Continent filed a cross-motion for summary judgment on all claims. The District Court denied True Oil's motion for partial summary judgment and granted Mid-Continent's motion. This appeal followed.
A. Standard of Review
Pursuant to Fed.R.Civ.P. 56(c), we review the entry of summary judgment de novo and apply the same legal standards as the district court. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1147 (10th Cir.2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, “we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Dunbar, 392 F.3d at 1148. Finally, we note that Wyoming law governs this dispute. See id.
B. Analysis
As an initial matter, it is important that we emphasize what is not at issue in this case. True Oil has not sued Pennant. Thus, we are not called upon to interpret the exact contours of the MSC, which appears to obligate Pennant to obtain insurance in favor of True Oil. The only issue in this case is whether Pennant's CGL policy provides coverage for True Oil's negligence and what effect, if any, Wyo. Stat. Ann. § 30-1-131 has on the policy.
An insurance policy is a contract between the insurer and the insured. In Wyoming, a court's basic purpose in interpreting an insurance policy, as with other types of contracts, is to determine the parties' true intent. O'Donnell v. Blue Cross Blue Shield of Wyo., 76 P.3d 308, 312 (Wyo.2003). Intent is determined from the language used in the policy, and if the policy “is clear and unambiguous, our inquiry is limited to the four corners of the document.” Id. The terms of an unambiguous contract are given their ordinary and usual meaning. Id. A court need only resort to rules of construction when it decides, as a matter of law, that a contract is ambiguous. Id.
The CGL policy provides insurance coverage to Pennant for liability resulting from certain bodily injuries or property damage. True Oil is not named directly in the CGL policy. The policy contains a blanket endorsement, however, that True Oil contends makes it directly insured. The endorsement automatically extends coverage to “any person or organization ... whom [Pennant] has agreed by written ‘insured contract ’ to designate as an additional insured,” without requiring that the person or organization be expressly named in the policy.3 The policy defines an “insured contract”4 as:
That part of any other contract or agreement pertaining to [Pennant's] business ... under which [Pennant] assume[s] the tort liability of another party to pay for “bodily injury” or “property damages” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Accordingly, the plain language of Pennant's CGL policy with Mid-Continent states that a necessary prerequisite for True Oil to be considered an additional insured is that there be an “insured contract” between Pennant and True Oil. It is also plain that an insured contract within the meaning of the policy is an indemnification agreement in which Pennant agrees to hold another party, such as True Oil, harmless for that party's tort liabilities.5 This, in turn, refers to a provision like section 6 of the MSC in which Pennant “agree[s] to indemnify, protect, defend and hold [True Oil] harmless ... from and against all claims, damages, ... even if these liabilities are caused in part by the negligence or omission of any indemnitee.” Section 6 of the MSC, however, is unquestionably voided by Wyo. Stat. Ann. § 30-1-131. As such, that section does not constitute an “insured contract” between Pennant and True Oil. Furthermore, nothing in section 7 can be construed as an “insured contract” within the meaning of the CGL policy. Although it states that Pennant must procure “additional insured status” for True Oil, that section, which is separate and distinct from the indemnification provision, does not require Pennant to pay for “bodily injury” or “property damages” to a third person that otherwise would be True Oil's responsibility to pay. Similarly, “Exhibit B”-which section 7 incorporates by reference-describes the minimum level of insurance coverage that Pennant must maintain. Exhibit B also requires Pennant to obtain an “[e]ndorsement naming the ‘True Companies' as an additional insured,” but, again, nothing in that document suggests that Pennant has undertaken an assumption of True Oil's tort liabilities. True Oil points to no other provision of the MSC that could arguably create an “insured contract.” Because there is no valid “insured contract” between Pennant and True Oil, True Oil has not attained additional insured status under Pennant's CGL policy.6
The two certificates of insurance True Oil obtained as evidence of its additional insured status do not create a genuine issue of fact on this issue. The ACORD certificate, for example, explicitly provides that it “does not amend, extend, or alter the coverage afforded by the policies.” When a certificate contains this type of disclaimer, “any conflict between the terms of the certificate and the master policy results in the terms of the master policy being applied to determine the rights and obligations of the parties.” Poling v. N. Am. Life & Cas. Co., 593 P.2d 568, 572 (Wyo.1979). Thus, because True Oil was not made an additional insured under the policy, a contrary certificate of insurance does not extend coverage. We also note that were it not for the operation of Wyo. Stat. Ann. § 30-1-131, an insured contract would exist between Pennant and True Oil-and, accordingly, True Oil would be an additional insured on Pennant's CGL policy with Mid-Continent. Accordingly, the certificates' declaration that True Oil is indeed an additional insured is consistent with the parties' (including Freburg's) belief as to that issue.
For the same reasons, the deposition testimony of William Freburg, the owner of Freburg & Company, and Phil Pollard, the Account Manager for Freburg who provided True Oil with its certificates of insurance, is not sufficient to raise a genuine issue of material fact. Both men testified that they believed True Oil was an additional insured under the CGL policy. But neither of them testified as to what their belief of the meaning of “insured contract” was. They may have believed that True Oil was an additional insured either because they erroneously believed that section 6 was valid and enforceable or because they erroneously believed that an “insured contract” included the type of insurance-shifting agreement found in section 7. In any event, because the contract language is clear and unambiguous, “the language used in the contract expresses and controls the intent of the parties” and parol evidence as to the meaning of the terms is inadmissible. Kirkwood v. CUNA Mut. Ins. Soc., 937 P.2d 206, 208-09 (Wyo.1997).
Finally, we acknowledge that the MSC appears to require Pennant to obtain insurance coverage that extends to True Oil. It must be emphasized, however, that we need not decide here whether Pennant or Freburg was obligated to obtain that coverage for True Oil and failed to do so. We are only called upon to decide whether True Oil should be denied coverage for its tort liability under the CGL policy between Pennant and Mid-Continent as an additional insured because the MSC between Pennant and True Oil does not constitute an “insured contract” within the meaning of that policy. The evidence presented by True Oil might have some bearing on breach of contract, promissory estoppel, or reliance claims it could have brought against Pennant-as opposed to Mid-Continent-but in this case, such evidence is irrelevant where the CGL policy is clear that True Oil can only be an “additional insured” under the policy's blanket endorsement when there is an “insured contract” between True Oil and Pennant.
We conclude that no “insured contract” within the meaning of the CGL policy existed between Pennant and True Oil. As such, True Oil was not an additional insured under the policy and, accordingly, Mid-Continent was not obligated to provide for True Oil's defense or other liabilities resulting from the Pennant employee's injury. We therefore AFFIRM the District Court's entry of summary judgment in favor of Mid-Continent.


Honorable William P. Johnson, District Judge for the District of New Mexico, sitting by designation.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
It is undisputed that the work to be performed by Pennant on True Oil's well in Wyoming is an “agreement pertaining to any oil well” as used in § 30-1-131.
An ACORD Certificate of Insurance is a standard form widely used in the insurance industry. See Am. Cas. Co. of Reading, Penn. v. Krieger, 181 F.3d 1113, 1122 (9th Cir.1999).
Blanket endorsements are added to policies as a way to automatically provide coverage for companies with whom the named insured does business without having to execute additional contracts and without having to name the additional insured explicitly in the policy.
The CGL policy includes several other types of agreements in its definition of “insured contract,” but none are applicable to this case.
This reading of the meaning of “insured contract” is bolstered by exceptions to the meaning of insured contract. The policy provides that an insured contract does not include “that part of a contract or agreement: (1)[t]hat indemnifies a railroad for ‘bodily injury’ or ‘property damage[;]’... (2)[t]hat indemnifies an architect, engineer or surveyor for injury or damage....” Accordingly, an “insured contract” must generally include indemnification agreements, since it specifically excludes only certain types of such agreements.
The District Court assumed that True Oil was an additional insured under the CGL policy but held that the insurance savings provision of the anti-indemnity statute, see Wyo. Stat. Ann. § 30-1-131 (stating that the anti-indemnity provision “shall not affect the validity of any insurance contract”), “does not create an obligation to insure where public policy specifically precludes enforcement of such an agreement to insure and indemnify for one's own negligence.” It therefore concluded that, as a matter of public policy, True Oil was not entitled to coverage under the CGL policy. Because we conclude the insurance policy is unambiguous and does not provide coverage to True Oil, we do not reach that question. See Green v. New Mexico, 420 F.3d 1189, 1197 n. 7 (10th Cir.2005) (an appellate court may affirm for any reason supported by the record).

Monday, February 13, 2006

Carpenter v. Tom Brown.

This case is another 10th Circuit case that wasn't published, but which appears in West's Federal Appendix at 166 Fed.Appx. 396.

Randall J. CARPENTER, Plaintiff-Appellant,
TOM BROWN, INC, a Delaware corporation, Defendant-Appellee.
No. 05-8030.
Feb. 13, 2006.

Ian D. Shaw, Terry W. Mackey, Hickey, Mackey, Evans & Walker, Cheyenne, WY, Shawna M. Geiger, Greenwood Village, CO, for Plaintiff-Appellant.
Patrick T. Holscher, Schwartz, Bon, Walker & Studer, Casper, WY, for Defendant-Appellee.
Before TACHA and PORFILIO, Circuit Judges, and JOHNSON, District Judge.


JOHN C. PORFILIO, Circuit Judge.
Randall J. Carpenter appeals the Fed.R.Civ.P. 12(b)(1) dismissal of his lawsuit for negligence against Tom Brown, Inc. Because our decision in Stuart v. Colorado Interstate Gas Company, 271 F.3d 1221 (10th 2001), dictates the conclusion here, we affirm.
With both parties fully versed in the facts, we recite only those Mr. Carpenter asserts distinguish his case from Stuart. In the spring of 2001, Cannon Oil & Gas Well Service, Inc., a Wyoming corporation, hired Mr. Carpenter as a floor hand. From its Rock Springs, Wyoming office which issued his paychecks, Cannon later dispatched Mr. Carpenter and two other employees to perform a workover operation on an oil well owned by Tom Brown, Inc., located in Rio Blanco County, near Meeker, Colorado. During the operation, a rubber gasket shot up the drilling pipe, struck Mr. Carpenter's right arm, and amputated it just below the elbow. Mr. Carpenter was transported to Denver, where his injury was treated. Cannon's Wyoming worker's compensation insurance reimbursed the cost of his medical care.
On the basis of these facts, then, aside from the place of his accident and trauma treatment, Mr. Carpenter asserts all of the relevant facts circumscribing his employment history and grounding his lawsuit reside in Wyoming. Only the fortuity of his employer's subcontracting work in Colorado along with his three-day presence at the job site interrupted his otherwise continuous Wyoming employment history.
Invoking diversity jurisdiction, Mr. Carpenter filed his complaint alleging Brown's negligence and seeking monetary damages in the United States District Court for the District of Wyoming. Brown moved to dismiss the complaint on the ground that under Colorado law which, it claimed, governed the action, Brown is a statutory employer and immune from suit. Brown relied upon Colo.Rev.Stat. § 8-41-401(1)(a), (b), which, in part, states:
(1)(a) Any person, company, or corporation operating or engaged in or conducting any business by ... contracting out any part or all of the work thereof to any lessee, sublessee, contractor, or subcontractor, irrespective of the number of employees engaged in such work, shall be construed to be an employer as defined in articles 40 to 47 of this title and shall be liable as provided in said articles to pay compensation for injury or death resulting therefrom to said lessees, sublessees, contractors, and subcontractors and their employees or employees' dependents, except as otherwise provided in subsection (3) of this section.
* * *
(b) The employer, before commencing said work, shall insure and keep insured against all liability as provided in said articles, and such ... contractor, or subcontractor, as well as any employee thereof, shall be deemed employees as defined in said articles....
Colo.Rev.Stat. § 8-41-401(1)(a), (b) (2001) (emphasis added).
Mr. Carpenter responded, first, that under Wyoming statutes and their interpretation by the Wyoming Supreme Court in Wessel v. Mapco, Inc., 752 P.2d 1363, 1370-71 (Wyo.1988), his employment was “principally localized” in Wyoming, displacing *398 application of Colorado law. Second, were Colorado law applied, Brown failed to satisfy its prerequisites to immunity. Third, Mr. Carpenter asserted Wyoming's strong public policy in the broad area of protecting its workers and the workers compensation system overrode any interest Colorado might have in the litigation.
The district court granted the motion, however, concluding Colorado's exclusive remedy immunizing Brown from suit ousted its subject matter jurisdiction. Recognizing the action's congruity with Stuart, the district court nonetheless noted its decision:
is not simply based on an arithmetic calculation to determine the rights and responsibilities of the parties. Such an analysis would ignore the important goals and [policies] underlying both States' worker's compensation schemes. The Court is uncomfortable with an analysis that seems to reward fortuitous, or strategic, connections between plaintiffs and defendants that inject uncertainty into the worker's compensation equation-uncertainty that the worker's compensation regimes were supposed to eliminate.
We review the dismissal for lack of subject matter jurisdiction under Fed. R. Civ. Pro. 12(b)(1) de novo and “review findings of jurisdictional facts for clear error.” Stuart, 271 F.3d at 1225 (citation omitted); see also, Cooper v. American Auto. Ins. Co., 978 F.2d 602, 611 n. 7 (10th Cir.1992). Like Stuart, that review here is predicated on the choice of law question. Although Mr. Carpenter would confine Stuart's analysis to its precise facts, the distinctions he draws do not alter or limit Stuart's reach here.
Mr. Stuart, a Wyoming resident like Mr. Carpenter and an employee of a Wyoming construction company, went directly to the Colorado facility where his employer's project superintendent hired him for the Colorado work. Stuart, 271 F.3d at 1224. Mr. Stuart's paychecks, like those of Mr. Carpenter, were issued from his employer's Wyoming office, and Mr. Stuart received benefits, as did Mr. Carpenter, from Wyoming under its worker's compensation fund. Id.
The Stuart court thoroughly examined Colorado and Wyoming constitutional and statutory law as well as case law from other jurisdictions. Its analysis further embraced a discussion of whether Wyoming as a matter of comity would recognize Colorado's exclusive remedy and concluded that result would not violate Wyoming public policy. Id. at 1227. Finding neither a factual nor legal basis to alter that jurisdictional determination here, we agree with the district court and are bound to AFFIRM.

The Honorable William P. Johnson, District Judge, United States District Court of New Mexico, sitting by designation.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.