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Foss Maritime Co. v. Corvus Energy Ltd.

United States Court of Appeals, Ninth Circuit

December 27, 2017

Foss Maritime Company, Plaintiff,
v.
Corvus Energy Limited, Defendant-Appellant,
v.
Ontario, Ltd., DBA Aspin Kemp & Associates, a Canadian private limited company, Third-Party-Defendant-Appellee.

          Submitted December 8, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington D.C. No. 2:14-cv-01243-MJP Marsha J. Pechman, District Judge, Presiding

          Steven William Block (argued), Foster Pepper PLLC, Seattle, Washington, for Defendant-Appellant.

          Donald K. McLean (argued), Bauer Moynihan & Johnson LLP, Seattle, Washington, for Third-Party-Defendant-Appellee.

          Before: Richard C. Tallman and Paul J. Watford, Circuit Judges, and Roger T. Benitez, [*] District Judge.

         SUMMARY [**]

         Admiralty

         The panel affirmed the district court's grant of summary judgment in favor of the defendant in a third-party contribution and indemnification action concerning fire damage to a tugboat.

         Foss Maritime Co., the vessel owner, brought tort and contract claims against Corvus Energy Ltd., which impleaded 11699997 Ontario Ltd. d/b/a Askin Kemp & Associates ("AKA"). Foss added AKA as a defendant and settled with AKA, releasing claims against Corvus for liabilities arising from the actions or inaction of AKA. Corvus then settled with Foss. AKA successfully moved for summary judgment, seeking to dismiss Corvus's third-party contribution and indemnity action against AKA.

         The panel held that Corvus could not seek indemnity against AKA because Corvus settled with Foss and no fact-finder made a determination of fault; Foss explicitly released all claims against Corvus related to AKA's wrongdoing; and allowing Corvus's indemnity action would dissuade settlement.

          OPINION

          PER CURIAM

         Appellant Corvus Energy Ltd. ("Corvus") appeals from the district court's grant of summary judgment for 1169997 Ontario Ltd., d/b/a Aspin Kemp & Associates ("AKA") in its third-party contribution and indemnity action. We have jurisdiction under 28 U.S.C. § 1291, and we review the district court's grant of summary judgment de novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).

         In 2010, Foss Maritime Co. ("Foss") and Corvus entered into a contract for Corvus to design, build, and install a hybrid power system on Foss's vessel, the CAMPBELL FOSS. Foss contracted with AKA to integrate the Corvus hybrid power system into the existing diesel power system. On August 20, 2012, the CAMPBELL FOSS suffered a battery fire in one of the modules provided by Corvus. Corvus alleges that the fire occurred because AKA disregarded Corvus's instruction regarding the proper charging algorithm. AKA counters that Corvus wrote a defective software algorithm for its battery system. An investigation by a team of representatives of Foss, Corvus, AKA, and the Coast Guard found both Corvus and AKA to be at fault for the fire.

         In 2014, Foss brought tort and contract claims against Corvus for damage to its tugboat. After Corvus impleaded AKA, Foss amended its complaint to include AKA as a co-defendant. Foss and AKA thereafter settled with Foss explicitly releasing all claims against Corvus "for liabilities arising from the actions or inaction of [AKA]." Corvus then settled with Foss. AKA successfully moved for summary judgment ...


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