Free Order - District Court of Federal Claims - federal

Case 1:05-cv-00840-MMS

Document 55

Filed 09/08/2006

Page 1 of 2

In the United States Court of Federal Claims
No. 05-840 C and No. 05-1044 C (CONSOLIDATED) (Filed: September 8, 2006) *********************************** * FISHERMAN'S HARVEST, INC., et al., * * Plaintiffs, * * v. * * WEEKS MARINE, INC. * * Intervenor-Plaintiff * * v. * * THE UNITED STATES, * * Defendant. * * *********************************** ORDER On August 23, 2005, Weeks Marine, Inc. ("Weeks Marine"), in its First Amended Complaint in Intervention, alleged: "[T]o the extent that Plaintiffs suffered any damages as alleged, such damages are entirely the responsibility of the United States and the United States Army Corps of Engineers, and Intervenor is accordingly entitled to indemnity from the United States and the United States Army Corps of Engineers." Am. Compl. in Intervention ¶ 24. Weeks Marine further alleged: "[T]o the extent that Plaintiffs suffered any damages as alleged, such damages were caused, in whole or in part, by the conduct and/or negligence of the United States and the United States Army Corps of Engineers, and Intervenor is accordingly entitled to contribution from the United States and the United States Army Corps of Engineers." Id. ¶ 25. On December 15, 2005, Defendant filed an Answer to Weeks Marine's First Amended Complaint in Intervention. Therein, Defendant made an affirmative defense, arguing that "[p]ursuant to clauses 52.236-6, 52.236-7, 52.236-9(b), 52.236-13, as well as provisions of sections 01355 and 02482, of contract DACW64-02-C-0034 between intervenor and the United States Army Corps of Engineers, intervenor is required to indemnify the United States for damage purportedly suffered by plaintiffs." Answer ¶ 28.

Case 1:05-cv-00840-MMS

Document 55

Filed 09/08/2006

Page 2 of 2

In the Joint Preliminary Status Report filed on January 9, 2006, the Parties stated: "The United States has made an indemnity demand against Weeks Marine, Inc., and intervenor intends to file third party claims against parties who may be responsible to it by indemnity or contribution." J. Prelim. Status Rep. ¶ 4(f). Then, on January 24, 2006, Weeks Marine stated at the Preliminary Status Conference: "[T]here are issues back and forth between the government contractually with its contract with respect to indemnification or [the] like. The government has sought indemnification. We have sought indemnification, and Weeks has contracts with other subcontractors involving indemnification and the like." Tr. at 27-28. The indemnity agreement between Weeks Marine and Defendant is unclear to the Court, yet is important for determination of the proper alignment of Weeks Marine. The Court ORDERS Defendant to file with the Court, on or before September 15, 2006, the relevant portions of the DACW64-02-C-0034 contract cited in its Answer to Weeks Marine's First Amended Complaint in Intervention. The Court further ORDERS Weeks Marine to file, on or before the same date, a memorandum explaining the basis for its allegations that Weeks Marine is entitled to indemnity or contribution from Defendant. Attached thereto, Weeks Marine shall enclose any supporting evidence.1

s/ Edward J. Damich EDWARD J. DAMICH Chief Judge

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Both Parties shall make their filing as a "Notice (Other)" in ECF. 2