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Tucker v. Cascade General, Inc.

United States District Court, D. Oregon, Portland Division

February 10, 2015

PHILIP TUCKER, Plaintiffs,
CASCADE GENERAL, INC., an Oregon corporation, and UNITED STATES OF AMERICA, Defendant.


JOHN V. ACOSTA, Magistrate Judge.

Philip Tucker ("Tucker") brought a negligence action against Cascade General, Inc. ("Cascade") and the United States to recover damages for personal injury to Tucker.[1] Tucker sustained permanent and life-altering injuries aboard the dredge ESSAYONS, a public vessel owned by the United States, when a hatch cover from the upper pump room fell through the hatch opening and struck him in the head while he was working below in the lower pump room.

The United States and Cascade filed cross-claims against each other. Prior to trial, Tucker settled his claim against Cascade, and Cascade's cross-claims against the United States were dismissed, with prejudice. The court deferred ruling on the United States' contractual indemnification cross-claims against Cascade.

Following a nine-day court trial of Tucker's case against the United States, the court found the United States was 50% responsible for the harm to Tucker and, accordingly, obligated to pay that share of his resulting damages ($2, 077, 187 for economic damages; $8, 000, 000 for pain and suffering and loss of enjoyment).

Prior to an entry of Judgment[2] in this case, and pursuant to its deferred cross-claims against Cascade, the United States now seeks indemnification from Cascade, up to the limit of $300, 000 per contract, for the total sum of $600, 000, to reduce the amount the United States owes Tucker. Cascade's settlement with Tucker included a provision that Tucker would "accept the risk... [of] setoffs occasioned by the United States' cross-claims against Cascade []." (Def.'s Ex. 555.) The parties agree that pursuant to Tucker's Settlement Agreement with Cascade, the amount, if any, owed to the United States under Cascade's contractual indemnity provisions will directly reduce the amount of damages owed by the United States to Tucker set forth in this court's Findings of Fact and Conclusions of Law.

Background [3]

The Army Corps of Engineers ("Corps") and Cascade entered into two contracts, the Repower Contract and the Maintenance and Repair Contract ("M&R Contract"), for work on the ESSAYONS; both Contracts were in effect during the relevant time period. The Repower Contract generally involved replacing engines on the ESSAYONS. The M&R Contract was a five-year contract to perform annual maintenance on the dredge. The two Contracts were executed at separate times and covered different, but overlapping time periods. The M&R Contract was executed in June 2003, by the Corps' Portland Office for a base amount of $4, 097, 725. The Repower Contract was let by the Corps' Philadelphia Contracting Division in 2006, for a base amount of $11, 633, 778.

Both Contracts included an indemnity clause:

(c) Indemnification.' The Contractor indemnifies the Government and the vessel and its owners against all claims, demands, or causes of actions to which the Government, the vessel or its owner(s) might be subject as a result of damage or injury (including death) to the property or person of anyone other than the Government or its employees, or the vessel or its owner, arising in whole or in part from the negligence or other wrongful act of the Contractor or its agents or employees, or any subcontractor, or its agents or employees.
(1) The Contractor's obligation to indemnify under this paragraph shall not exceed the sum of $300, 000 as a consequence of any single occurrence with respect to any one vessel.
(2) The indemnity includes, without limitation, suits, actions, claims, costs, or demands of any kind, resulting from death, personal injury, or property damage occurring during the period of performance of work on the vessel or within 90 days after redelivery of the vessel. For any claim, etc., made after 90 days, the rights of the parties shall be as determined by other provisions of this agreement and by law. The indemnity does apply to death occurring after 90 days where the injury was received during the period covered by the indemnity.

(Def.'s Trial Ex. 507 at 104-06; Trial Ex. 508 at US01375-77.).) At the time of the accident, Tucker was working on the ESSAYONS under the M&R Contract. Josh Economides was aboard the ship pursuant to the Repower Contract.


The United States contends Cascade's contractual indemnity obligation to the United States totals $600, 000, i.e., $300, 000 under each of the two Contracts. As such, Tucker's Judgment against the United States must be reduced by $600, 000. According to the United States, the indemnification provisions in the contracts between the United States and Cascade are clear, complete, and unambiguous on their face. Conversely, Tucker argues the indemnification provisions do not require Cascade to indemnify the United States for claims arising from the United States' own negligence. Alternatively, if ...

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