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Collins v. A.B.C. Marine Towing, L.L.C.

United States District Court, E.D. Louisiana

July 7, 2017


         SECTION: “L” (3)


          ELDON E. FALLON United States District Judge.

         Before the Court are Lloyd's[1] 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.

         I. BACKGROUND

         This 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.

         At 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.

         A 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.

         In the 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.

         The 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.


         Lloyd's 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.

         Additionally, 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.


         A. Summary Judgment

         Summary 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).

         Under 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.

         B. Bifurcation of Trial

         Federal 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)).

         The 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.

         Rule 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 so.” Id.

         C. Maritime Contract Interpretation

         Construction 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 ...

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