Wal-Mart Stores, Inc. v. Qore, Inc.
647 F.3d 237
| 5th Cir. | 2011Background
- Wal‑Mart hired Qore (geotechnical), Sain (civil engineering), and SSW (general contractor) with separate contracts; Qore also served as testing/inspection firm.
- Site had expansive clay; geotechnical design aimed to create a subsurface buffer to protect a 20‑year design life.
- Wal‑Mart sued all three firms for breach and negligence seeking about $11.8 million in damages.
- Jury found Qore liable 10% (with SSW 90%) for building damage; damages awarded $486,000; Qore responsibility $48,600.
- Parking lot damages awarded ~ $1.6 million with SSW and Wal‑Mart each 50% liable; Sain exculpated; no damages for diminution in value.
- Both contracts included attorney’s fee provisions; geotechnical contract said each party bears its own fees; testing/inspection contract indemnified Wal‑Mart for fees caused by Qore’s negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does indemnity cover first‑party fees? | Wal‑Mart: plain language allows recovery for fees caused by Qore’s negligence in this dispute. | Qore: indemnity only covers third‑party claims, not this first‑party case. | Indemnity provision permits first‑party attorney’s fees. |
| Should fees be limited to fees tied to proving Qore’s liability on the building claim? | Wal‑Mart: fees cannot be easily separated; broad recovery allowed. | Qore: fees must be apportioned to the claim on which Wal‑Mart prevailed. | Fees must be partitioned; recovery limited to fees incurred enforcing Qore’s liability on the building claim. |
| Was Cobb v. Miller applicable to Mississippi contract fee recovery in this private dispute? | Wal‑Mart relied on Cobb to justify broad fee recovery. | Qore: Cobb not applicable to private contract/ Mississippi contract law. | Cobb does not apply; vacate the award. |
| Was the district court’s overall fee award an abuse of discretion? | Wal‑Mart contends the award was proper under contract. | Qore argues misapplication of law and improper scope. | Yes, the fee award was an abuse of discretion; vacated and remanded. |
Key Cases Cited
- Cobb v. Miller, 818 F.2d 1227 (5th Cir. 1987) (fee awards under §1988 not controlling here; distinguish civil rights context)
- Hopton Building Maintenance, Inc. v. United Parcel Service, Inc., 559 So.2d 1012 (Miss. 1990) (indemnity requires legal liability before claim arises)
- A & F Properties, LLC v. Lake Caroline, Inc., 775 So.2d 1276 (Miss. Ct. App. 2000) (fees limited to enforcing specific contract provisions; itemization required)
- Industrial and Mechanical Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So.2d 632 (Miss. Ct. App. 2007) (fees limited to enforcing prevailing contract provisions)
- Mauck v. Columbus Hotel Co., 741 So.2d 259 (Miss. 1999) (contract language governs recovery for defending against third‑party intervenors)
- Turner v. Terry, 799 So.2d 25 (Miss. 2001) (cases addressing first‑party indemnity under Mississippi law)
- Morgan v. U.S. Fid. & Guar. Co., 191 So.2d 917 (Miss. 1966) (express indemnity provisions interpreted by plain meaning)