MEMC Electronic Materials, Inc. v. Albemarle Corp.

This appeal concerns whether a party to an indemnification agreement can obtain indemnification for a dispute regarding the scope and meaning of the indemnification agreement, specifically, whether the agreement provides for indemnification of another matter. The court concluded that appellee does not owe indemnity to appellants because the indemnity agreement with appellees does not provide for attorney's fees in this situation and the request for attorney's fees for appellant's defense of the litigation was not made in a motion for summary judgment. Houston's 1st Court of Appeals, No. 01-08-00770-CV, 05-14-2010

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OPINION

This appeal concerns whether a party to an indemnification agreement can obtain indemnification for a dispute regarding the scope and meaning of the indemnification agreement, specifically, whether the agreement provides for indemnification of another matter. Appellants, MEMC Electronic Materials, Inc., and MEMC Pasadena, Inc. (collectively “MEMC”), appeal the trial court’s rendition of summary judgment in favor of appellees Albemarle Corporation, Lexington Insurance Company, and Travelers Property Casualty group (collectively “Albemarle”).

In this appeal following remand of an earlier appeal concerning the same agreement between these two parties, MEMC raises two issues. MEMC contends that the trial court erred by rendering summary judgment in favor of Albemarle by determining that MEMC was not entitled to indemnity or damages for breach of contract and by denying MEMC’s motion for summary judgment for indemnity and breach of contract damages. MEMC makes two contentions concerning these two issues. First, MEMC contends it is entitled to damages in the form of attorney’s fees for its defense of this suit in which Albemarle sought indemnity from MEMC for Albemarle’s indemnification of Ethyl Corporation. Second, MEMC asserts it is entitled to damages for attorney’s fees for its defense of the Damewood litigation.*fn1 We conclude that Albemarle does not owe indemnity to MEMC because the indemnity agreement with Albemarle does not provide for attorney’s fees in this situation and the request for attorney’s fees for MEMC’s defense of the Damewood litigation was not made in a motion for summary judgment. We affirm.

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