In thе wake of an accident during the load-out of part of an offshore oil platform, the parties in this case find themselves litigating the question of who should bear the burden of the loss. We conclude that the district court resolved the cases properly, which means that none of the efforts to re-allocate expenses can survive summary judgment.
I.
Louisiana Land & Exploration Co. entered into two contracts in connection with its efforts to drill for oil off of the gulf coast. In February of 1991, LL & E contracted -with Gulf Island Fabrication for the construction, load-out, and tie-down of an offshore facility. Gulf Island was to construct the “jacket”— the legs of the offshore platform — at its yard in Houma, Louisiana. LL & E would hold title to the jacket at all times. The contract specifiеd that the risk of loss fell upon- Gulf Island “until -the Marine Surveyor has certified the acceptability of the Stowage of the Cargo upon the barge(s) supplied by the Installation Contractor.” The contract required both that Gulf Island defend and indemnify LL & E against any claims arising out of damage caused by Gulf Island or any of its agents and also that Gulf Island maintain various insurance policies while pеrforming work for LL & E. Gulf Island obtained a general liability insurance policy from Lloyd’s. Gulf Island also maintained an insurance policy for builders’ risk with Reliance Insurance Company, the original plaintiff in this ease.
LL & E’s second contract was with CBS Engineering, which agreed to provide “structural design, facilities design and project management” services in connection with Gulf Island’s fabrication of the jacket. Essentially, LL & E hired CBS to oversee Gulf Island’s progress on the project and to provide professional engineering services. The contract with CBS contained a comparative fault provision for damage to the property of either party. It also required CBS to defend and indemnify LL & E in case CBS’s negligence caused any damage to or claims against LL & E. When the parties executed the contract, they crossed out and initialed a provision that would have required CBS to indemnify LL & E for CBS’s negligence in performing professional services. In compliance with the contract, CBS obtained general liability insurance from United National Insurance Company (“UNIC”) and named LL & E as an additional insured. The UNIC policy, however, did not insure against рrofessional negligence.
The parties planned to load the jacket onto a barge with a width of 100 feet in order to transport it for installation in the gulf. But the widest barge available was only 72 feet wide. Gulf Island proposed a plan to modify the barge to accommodate the jacket. Gulf Island’s strategy was to build load-out beams across the barge so that the legs of the
In an August 26, 1991, letter from its vice president of operations, Gulf Island acknowledged its responsibility under the risk-of-loss provision to repair the jacket. Gulf Island performed these repairs and eventually loaded out the jackеt successfully. Reliance fulfilled its obligations under the builders’ risk policy and reimbursed Gulf Island in the amount of $275,425.22.
Then Reliance, as Gulf Island’s subrogee, sued LL & E and CBS to recover the costs of the jacket repairs, which Reliance claims were due to the fault of LL & E and CBS. LL & E filed a erossrdaim against CBS and third-party claims against UNIC, Gulf Island, and Lloyd’s.
On September 30, 1993, the district court dismissed Reliance’s claim against CBS on a summary judgment motion. On October 4, it dismissed Reliance’s claim against LL & E. Both dismissals were predicated on the insufficiency of evidence presented by Reliance’s expert, Dennis Sherman. Mr. Sherman offered muddled deposition testimony, and the court had denied Reliance’s request to supplement his report in order to clarify the testimony. Two days later, the court dismissed LL & E’s claim against CBS. The court further held that the indemnity provision in the contract between LL & E and Gulf Island would not be triggered unless Gulf Island was at fault in causing damage to the jacket.
After Reliance’s claims were dismissed, Gulf Island filed its third-party demand against Reliance in order to recover the costs of defending against LL & E and to claim a right to reimbursement for any damages Gulf Island might suffer in LL & E’s third-party claim against Gulf Island. In November of 1995, LL & E settled its claim against Gulf Island for LL & E’s defense costs and attorneys’ fees throughout this litigation. The district court dismissed Gulf Island’s third-party complaint on February 14,1996.
Three parties have appealed. Reliance appeals the summary judgments granted in favor of LL & E and CBS. LL & E appeals the summary judgments granted in favor of CBS, UNIC, Gulf Island, and Lloyd’s. And Gulf Island appeals the summary judgment granted in favor of Relianсe. We take up each of these disputes in turn.
II.
A.
Reliance filed its expert report on time, and Mr. Sherman gave his deposition during the 30 days between the deadline for Reliance’s expert report and the deadline for LL & E’s and CBS’s expert reports. Mr. Sherman’s report did not address CBS’s load-out plan. Instead, it analyzed the quality of the original design of the jacket. At the deposition, Mr. Sherman seemed to deny that his analysis contributed to an understanding of what caused the jacket to fail during the load-out. When asked whether he was “asked to form an opinion as to the cause of this casualty,” he said: “No. Not really. I was not looking into how or why it was caused.” He admitted that he “never went to the point of failure analysis to determine if [the jacket] is under dеsigned enough to be failing, or to expect it to fail.” Instead, he limited himself to asking whether the jacket was designed so that it could handle the load-out plan as designed by CBS and as executed by Gulf Island. As LL & E and CBS prepared for trial, they operated on the theory that Mr. Sherman had no opinion as to whether deficiencies in CBS’s work contrib
Based on the report and the deposition, LL & E and CBS decided that it did not need to counter Mr. Sherman’s testimony with an engineering expert of its own. Ten days after the defendants’ deadline for submitting expert reports had passed, Reliance sought the court’s permission to supplement Mr. Sherman’s report. Mr. Sherman’s supplemental report would “specifically address his opinion regarding the cause of the failure of the load out method provided by defendants in plаin English, as opposed to being contained in mathematical calculations as it was in the original report.” Reliance assured the court that Mr. Sherman would be available for further depositions and that supplementing the report would not delay trial.
LL & E and CBS vigorously opposed Reliance’s motion to supplement the report. They pointed out that the discovеry cut-off date was only three weeks away and that the supplement might cause them to need an engineering expert of their own. With pretrial conference only two months away, delays were likely. LL & E and CBS also argued that the court should not allow a modification of the discovery schedule because Reliance failed to request supplementation at thе earliest possible date.
Whatever the import of Mr. Sherman’s testimony, the district court did not abuse its discretion when it denied Reliance’s request to supplement its expert report. Fed.R.Civ.P. 16(b) allows a scheduling modification only for good cause. We consider four factors in determining whether the district court abused its discretion in holding that Reliance did not show good cause: “(1) the explanation for the failure to [submit a complete report on time]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Geiserman v. MacDonald,
District judges have the power to control their dockets by refusing to give ineffective litigants a second chance to develop their case. See Turnage v. General Electric Co.,
B.
Reliance’s claim against CBS is grounded in professional negligence. Reliance concedes that Mr. Sherman did not speak to the question of whether CBS’s proposed modification breached the standard of care among professional engineers. It contends, however, that expert testimony concerning a professional’s duty of care and breach of that duty is not necessary “[w]hen the matter in question is one that can typically be understood without assistance from an expert.” M.J. Womack, Inc. v. State House of Representatives,
Even if we assume — contrary to the deposition testimony — that Mr. Sherman’s expert report supports the claim that CBS’s modifications caused the jacket to fail, Reliance has submitted no evidence from which a jury could conclude that CBS acted negligently. Mr. Sherman stated that Gulf Island did not follow CBS’s plan exactly when it attempted to load the jacket onto the barge. These facts are equally consistent with the speculation that Gulf Island acted negligently when it conducted the load-out or that the jacket’s materials were substandard. Mr. Sherman’s report included 90 pages of technical calculations. An unassisted court cannot be expected to evaluate the reasonableness of a professional judgment that involves so much sоphistication. Because Reliance has admitted that it must rely on a “common sense standard of care,” Womack,
C.
Reliance’s claim against LL & E is grounded both in tort and in contract. The district court correctly held that neither theory has validity.
According to Reliance, LL & E is vicariously liable for the negligence of CBS under Louisiana law either because the work was intrinsiсally dangerous or because it exercised operational control over CBS, its independent contractor. To support this position, Reliance cites Massey v. Century Ready Mix Corp.,
Because we affirm the grant of summary judgment in favor of CBS, we need not address Rehance’s arguments. Without negh-gence оn the part of CBS, Rehance’s tort theory against LL & E collapses.
Rehance’s contract theory against LL & E fares no better. The contract between LL & E and Gulf Island called for a 100-foot-wide barge. Rehance argues that LL & E breached this provision when it failed to supply one. Gulf Island did not object to the smaller barge. The district court held that Gulf Island’s consent meant that there was no breach, and it further held that Rehance failed to raise a question as to whether the smaller bаrge caused the damage to the jacket. On appeal, Rehance does not mention
As Gulf Island’s subrogee, Reliance cannot assert a contract claim that Gulf Island could not assert. Guillot v. Hix,
III.
LL & E and Gulf Island have settled their dispute over their respective duties to pay for the cost of LL & E’s defense. Because we affirm summary judgment in favor of LL & E and against Reliance, the remaining issues among LL & E, Gulf Island, and Lloyd’s are moot.
The same is true of LL & E’s suit against CBS and UNIC. At oral argument, counsel for LL & E stated that it was appealing the summary judgment granted in favor of CBS and UNIC only in case Reliance’s suit against LL & E should be revived. In light of our holding above, we have no occasion to review the district court’s summary judgment.
IV.
Gulf Island sued Reliance in order to recoup damages owed to LL & E and the costs of defending the suit brought by LL & E. In keeping with our holdings above, the only issue remаining is whether Reliance must reimburse Gulf Island for the costs of its settlement with LL & E and the costs of defending LL & E’s suit.
In part, Gulf Island argues that Reliance should not have asserted claims against LL & E that Gulf Island itself could not have asserted against LL & E. Because Gulf Island consented to the 72-foot-wide barge and accepted responsibility for the accident, it asserts that Reliance was not entitled to sue LL & E as Gulf Island’s subrogee. See State v. USF & G,
Gulf Island also argues that Reliance failed to exercise good faith because its suit caused financial harm to Gulf Island. But the two cases it cites are not on point. Maryland Cos. Co. v. Dixie Ins. Co.,
Gulf Island has failed to describe any conduct on the part of Reliance that was unfair to Gulf Island. Gulf Island granted Reliance subrogation rights, and Reliance was entitled to sue LL & E on theories of negligence and breach of contract. Reliance caused LL & E’s suit against Gulf Island, but Gulf Island has not cited any cases to support its claim that Reliance also breached some duty by suing a defendant whо in turn sued its insured. It is not our place to inject into Louisiana law the rule that an insurer is liable to an insured when the insurer asserts conventional subrogation rights and inadvertently causes a third party to sue the insured. Thus, the district court did not err in granting summary judgment for Reliance and against Gulf Island.
V.
The district court was correct to hold that none of the suits in this litigation involves a genuine issue of material fact. Summаry judgment in favor of LL & E and CBS and against Reliance is AFFIRMED. Summary judgment in favor of CBS and UNIC and against LL & E is AFFIRMED. Summary judgment in favor of Gulf Island and Lloyd’s and against LL & E is AFFIRMED. And summary judgment in favor of Reliance and against Gulf Island is AFFIRMED.
Notes
. LL & E also filed a separate suit against Gulf Island and Lloyd's. The district court consolidated that suit with the litigation initiated by Reliance.
. The attorney representing CBS and UNIC tried to pin Mr. Sherman down on this point.
Mr. Sherman: [T]he report states where members are under designed. It doesn't state whether the structure would fad at being under designed to that point. In other words, a member may not be designed per codes, but still may not fail. It’s hard to say whether it would fail or not____
Mr. Redwine: I gather from that answer that you have not formed an opinion as to whether your perceived under design had anything to do with this casualty.
A: ... I can't state that the under design was the definite reason for the casually.
Q: Can you state whether the under design was any part of the casualty?
A: No, I can't state that with certitude, no.
Q: I may seem to be repeating myself, and asking the same question a different way. I want to be sure I understand exactly what is going on here. I want to be sure that you have a chance to answer completely.... As I understand it from your answers, and correct me immеdiately if at anytime I am wrong, you were asked only to determine whether the design of this structure was proper for the load-out procedure that was proposed by Gulf Island Fabrication, or that was proposed by—
A: Yes, I was asked if the proposed load plan as of the CBS drawings and the load-out plan actually used by Gulf Island, which were not identical, whether they were — whеther they were — the structure itself was adequately designed for either of those conditions.
Q: And that was the limit of what you were asked to do.
A: Right.
Q: You were not asked, I gather, to form any opinion as to the propriety of either the CBS load-out plan or the load-out procedure that Gulf Island Fabrication actually used.
A: No. I was only asked in regard to the design. Not to the actual loading out.
Q: I think you previously told me all you wеre asked to do and all you have done is to analyze the structural integrity of that platform to see if it was designed properly for the proposed load's out on to a seven1y-two foot barge.
A: Yes.
Q: Is that the limit of what you did?
A: Yes____
. Gulf Island’s contract with LL & E included a choice-of-law clause that stated that Texas law would govern the contract. The rule would be the same under Louisiana law. See Stevens v. Mitchell,
. Again, the same is true under Louisiana law. See, e.g., Bank of Louisiana v. Campbell,
. Gulf Island directs our attention to Theriot v. Midland Risk Ins. Co.,