Submitted December 8, 2017 Seattle, Washington
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
William Block (argued), Foster Pepper PLLC, Seattle,
Washington, for Defendant-Appellant.
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.
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.
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.
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.
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).
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.
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 ...