United States District Court, E.D. Louisiana
MICHELLE COLLINS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL COLLINS
A.B.C. MARINE TOWING, L.L.C. AND BOARD OF COMMISSIONERS PORT OF NEW ORLEANS
ORDER AND REASONS
E. FALLON United States District Judge.
the Court are Lloyd's motion for partial summary judgment,
the Port's motion for summary judgment, and the
Port's motion to bifurcate trial. The Court heard oral
arguments on July 5, 2017. Having considered the parties'
arguments, submissions and applicable law, the Court now
issues this Order and Reason.
insurance dispute arises out of a fatal collision at the
Florida Avenue Bridge, which spans the Inner Harbor
Navigational Canal in Orleans Parish, Louisiana. On or about
August 12, 2014, a spud barge and attached barge crane were
being transported by the M/V CORY MICHAEL through the Canal
from the Intercoastal Waterway towards the Mississippi River.
The M/V CORY MICHAEL is owned by ABC Marine. See
Rec. Doc. at 5; Case No. 16-cv-11559. Boh Brothers was the
owner/operator of the barge. See Id. The Board of
Commissioners of the Port of New Orleans (“Port”)
was the owner/operator/custodian of the Florida Avenue
Bridge. See id.
approximately midnight on August 13, 2014, Mr. Michael
Collins, decedent, was operating the M/V CORY MICHAEL, which
was pushing the spud barge and barge crane. See
id. at 5. Mr. Collins had contacted the Florida
Avenue Bridge and requested sufficient clearance to allow
safe passage underneath the bridge. Id. As the M/V
CORY MICHAEL passed underneath, the bridge was not
sufficiently raised, and the mast of the crane struck the
bridge superstructure, which caused the raised crane boom to
fall and crush the pilot house. Id. Mr. Collins was
killed. Id. at 6.
variety of maritime claims and cross claims were filed,
settled or addressed in this Court as a result of the
accident, and were consolidated under Case No. 14-cv-1900.
The instant action, however, remains. See generally
Rec. Doc. 1; Case No. 16-cv-11559. Lloyd's issued a
Protection and Indemnity Insurance Policy (“P&I
Policy”) to ABC Marine, providing primary and excess
hull and machinery collision insurance. See Id. at
2. Parties dispute whether ABC Marine listed Boh Brothers as
an additional insured under the P&I Policy. The P&I
Policy contained a subrogation clause that subrogated all
rights to which the assured may have against a third person
to Lloyd's. Id.
wake of the above described allision, Boh Brothers filed a
claim against the Port seeking compensation for damages
sustained by the barge and a third-party complaint against
Lloyd's in this action, seeking insurance coverage for
the claims asserted against Boh Brothers and for Boh
Brothers's own losses. Id. at 6. Lloyd's and
Boh Brothers resolved the coverage dispute over Boh
Brothers's losses by which Lloyd's paid Boh Brothers
$320, 000.00. Id. at 7. Lloyd's now claims that
as a result of this payment, Lloyd's was subrogated to
Boh Brothers's rights against the Port under the blanket
subrogation clause in the P&I Policy, Louisiana law, and
equity. Id. Because Lloyd's was subrogated to
Boh Brothers's rights against the Port, Lloyd's
claims that the Port is now liable to it in the amount of
$320, 000.00, plus interest, fees, and costs. Id. at
8. Meanwhile and separately, the Port settled with Boh
Brothers regarding the claim Boh Brothers asserted against
the Port for the damages to its barge and crane resulting
from the bridge collision. See Rec. Doc. 385-1 at 3.
Port timely answered Lloyd's complaint and raised a
number of affirmative defenses, including prescription,
estoppel, laches, and the statute of limitations. Rec. Doc. 4
at 1. The Port admits to entering into a confidential
settlement agreement with Boh Brothers and asserts it had no
knowledge of Lloyd's alleged subrogation rights when it
settled with Boh Brothers. Id. at 6. The Port notes
that fault will be determined at trial, and should act as a
complete bar or mitigating factor to Lloyd's recovery;
furthermore, the Port alleges, among other things, that
Collins had the last clear chance to avoid the accident, that
the Port did not contribute to the property loss, that any
loss was caused by third parties or intervening acts, that
Collins and ABC Marine violated the primary duty doctrine,
and that Lloyd's has no right of action. Id. at
7. In addition, the Port claims that Lloyd's has waived
rights of subrogation, that Boh Brothers was not made whole,
and that if subrogation rights exist, they were waived when
Lloyd's failed to notify the Port of its subrogation
claim. Finally, the Port pleads Louisiana Civil Code articles
1826(b) and 2644 in its defense. Id.
filed a motion for partial summary judgment, averring that
some of the Port's affirmative defenses must be struck.
Rec. Doc. 361. The Port opposes the motion. Rec. Doc. 389.
The Port also moved for summary judgment based on three
arguments. Rec. Doc. 385. First, the Port argues that
Lloyd's has no subrogation rights because the subrogation
clause in the Primary P&I Policy does not apply to Boh
Brothers. Id. at 8-10. Second, the Port argues that
its settlement agreement with Boh Brothers terminated any
subrogation rights Lloyd's may have had, because the Port
had no notice or knowledge of it. Id. at 10-16.
Finally, the Port argues that one-third of Lloyd's
rights, if any, were transferred to another insurer, Certain
Underwriters at Lloyd's, London (“Excess
Underwriters”). Id. at 16. Lloyd's filed
an opposition to the Port's motion for summary judgment.
Rec. Doc. 387.
the Port filed a motion to bifurcate the trial into two
parts: (1) Lloyd's subrogation claims, and (2) the
remaining issues on liability, contributing fault, amount of
loss, resulting from the bridge allision, and amount of the
subrogated claim. Rec. Doc. 375-1 at 3.
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c));
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the
evidence in the record but refrains from making credibility
determinations or weighing the evidence.” Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 398 (5th Cir. 2008).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of “informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 322. When the moving party has met its Rule 56(c)
burden, “[t]he non-movant cannot avoid summary judgment
. . . by merely making ‘conclusory allegations' or
‘unsubstantiated assertions.'” Calbillo
v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir. 2002) (quoting Little, 37 F.3d at 1075).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986). All reasonable
inferences are drawn in favor of the nonmoving party, but a
party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little,
37 F.3d at 1075. A court ultimately must be satisfied that
“a reasonable jury could not return a verdict for the
nonmoving party.” Delta, 530 F.3d at 399.
Bifurcation of Trial
Rule of Civil Procedure 42(b) provides: “For
convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or
third-party claims. When ordering a separate trial, the court
must preserve any federal right to a jury trial.”
Fed.R.Civ.P. 42(b). “A motion to bifurcate is a matter
within the sole discretion of the trial court, and the
appellate court will not reverse the trial court's
decision absent an abuse of that discretion.” First
Tex. Sav. Assoc. v. Reliance Ins. Co., 950 F.2d 1171,
1174 n.2 (5th Cir. 1992) (citing Gonzalez-Marin v.
Equitable Life Assurance Soc'y., 845 F.2d 1140, 1145
(1st Cir. 1992)).
Fifth Circuit has recognized an important limitation on
ordering a separate trial of issues under Rule 42(b).
“[T]he issue to be tried must be so distinct and
separate from the others that a trial of it alone may be had
without injustice.” Swofford v. B. & W.,
Inc., 336 F.2d 406, 415 (5th Cir.1964), cert.
denied, 379 U.S. 962, (1965). Moreover, “even if
bifurcation might somehow promote judicial economy, courts
should not order separate trials when bifurcation would
result in unnecessary delay, additional expense, or some
other form of prejudice.” Laitram Corp. v.
Hewlett-Packard Co., 791 F.Supp. 113, 115 (E.D. La.
1992) (quoting Willemijn Houdstermaatschaapij BV v.
Apollo Comput., Inc., 707 F.Supp. 1429, 1433 (D. Del.
1989)); see also Interstate Restoration Grp., Inc. v. Al
Copeland Invs., Civ. A. 07-0970, 2009 WL 1870787, at *2
(E.D. La. June 25, 2009). “Prejudice is the Court's
most important consideration in deciding whether to order
separate trials under Rule 42(b).” Laitram
Corp., 791 F.Supp. at 115.
42(b) provides three separate justifications for bifurcation.
“A court may separate issues if (1) it would avoid
prejudice, (2) it would be convenient to do so, or (3) it
would be economical or would expedite the litigation to do
Maritime Contract Interpretation
of maritime contract is generally governed by federal
maritime law. See M.O.N.T. Boat Rental Service, Inc. v.
Union Oil Co., 613 F.2d 576 (5th Cir. 1980); Corbitt
v. Diamond M Drilling Co., 654 F.2d 329 (5th Cir. 1981)
(interpretation of indemnity provision in maritime contract
governed by federal maritime law). In the absence of a
specific and controlling federal maritime rule over this
dispute, the Court interprets maritime insurance contract
under Louisiana state law. See Albany Ins. Co. v. Anh Thi
Kieu, 927 F.2d 882, 886 (5th Cir. 1991); see also
Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348
U.S. 310 (1955) (absence of federal legislation or
conflicting rule, state law applied to interpretation of
certain contracts for marine insurance). Here, regardless of
which law is applicable, the ...