Opinion
CIVIL ACTION NO. 02-3249 SECTION `T' (2)
March 11, 2003
ORDER AND REASONS
Before this Court is a Motion to Dismiss and/or For Summary Judgment [doc. 7], filed by claimant, Jerald Mark Goff. The matter came before the Court for hearing, on the briefs alone, on January 29, 2003. The Court after reviewing the briefs submitted by the claimant, Jerald Mark Goff, and petitioner from exoneration and/or from liability, Bisso Marine Company, Inc., the law, the record, and the applicable jurisprudence, this Court is now ready to rule.
I. BACKGROUND AND PROCEDURE
This action arises out of activities which allegedly resulted in an accident on August 3, 1999. Jerald Mark Goff was working as a commercial diver assigned to D/B BIG CHIEF, located in Grand Isle, Block 49. On the date in question, Goff, an independent contractor, was allegedly injured when he ignited a small gas pocket while diving. Plaintiff filed a lawsuit in the Civil District Court for the Parish of Orleans, State of Louisiana, at Division F, Section 10, #20022-11101, Jerald Mark Goff v. Bisso Marine Company, Inc. And Cardinal Services, Inc., d/b/a Superior Energy Services L.L.C., and/or Superior Energy Services, Inc., on July 17, 2002. On October 28, 2002, Bisso Marine filed a Complaint for Exoneration from or Limitation of Liability [Doc. 1], and this Court issued a stay in the above captioned matter on October 30, 2002 [Doc. 2]. On January 3, 2003, claimant Cardinal Services, Inc., d/b/a Superior Energy Services, LLC, and Superior Energy Services, Inc., filed an answer and claim for indemnification, contribution, and fees and costs. Now, the claimant, Jerald Mark Goff, asks this Court to dismiss the case pursuant to Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims, Federal Rules of Procedure, and title 46 U.S.C. § 181, et seq. on the grounds that the complaint is untimely.
Supplemental Rules for Certain Admiralty and Maritime Claims Rule F. Limitation of Liability (in part, emphasis ours):
(1) Time for Filing Complaint; Security. Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the owner's interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at the owner's option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, the owner's interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security' for costs and, if the plaintiff elects to give security, for interest at the rate of 6 percent per annum from the date of the security.
(2) Complaint. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer the plaintiffs interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip . . .
II. ARGUMENTS OF THE PARTIES
Claimant, Jerald Mark Goff, argues that the complaint for limitation of liability should be dismissed for untimeliness. Goff states that complainant was put on notice of the potential claim in January, 2002, based upon several letters sent from prior counsel for claimant to Bisso Marine and to counsel for Bisso Marine.
Complainant, Bisso Marine, argues that the letters fail to meet the appropriate statutory and jurisprudential standards for sufficient written notice in order to trigger the six-month prescriptive period for filing a complaint for limitation of liability.
III. LAW AND ANALYSIS
A. Law on Summary Judgment
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56 ©). The party moving for summary judgment bears the initial responsibility 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. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catret, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). "When the moving party has carried its burden under Rule 56 ©), its opponent must do more than simply show that there is some metaphysical doubt as t6 the material facts. The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In some instances, as in the case at hand, a motion for summary judgment is unopposed. However, the Federal Rules of Civil Procedure require the Court to examine a motion for summary judgment on its merits, and to grant an unopposed motion only "if appropriate." FED. R. CIV. P. 56(e).
B. Court's Analysis
Pursuant to Rule F(1) of the Supplemental Rules for Certain Admiralty and Maritime Claims, the rule states: " Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute." (emphasis ours). The six month limitation prescriptive period was subsequently added to 46 U.S.C. App. § 185: a limitation action must be initiated within six months "after a claimant shall have given to or filed such owner written notice of claim." 46 U.S.C. § 185. The statute does not define the contours of "notice," but it does explicitly require that notice (1) be "written" and (2) emanate from the claimant. Id. In In Re Matter of Oceanic Fleet, Inc., 807 F. Supp. 1261, 1262 (E.D.La. 1992), Judge Arceneaux held that, "Courts have concluded that written notice must inform the owner both of the `details of the incident' and `that the owner appeared to be responsible for the damage in question.'" In In Re Lewis, 190 F. Supp.2d 885, 888 (M.D.La. 2002) (emphasis ours), Chief Judge Polozola held that the "following principles are well established . . . a letter must inform potential defendants of: the facts of the incident; the claimant's belief that the vessel owner is to blame for the damage; and the claimant's intention to seek damages from the vessel owner . . . A letter that does not advise a potential defendant, who is a potential petitioner in limitation, of these points, does not constitute sufficient notice." The court went on to explain that "letter which do not blame the vessel owner for damages or make some indication that the claimants would be seeking damages from the vessel owner are insufficient." Id. (emphasis ours). In In the Matter of Texaco, Inc., 1991 A.M.C. 2624, 2626 (E.D.La. 1991), Judge Mentz explained that to trigger the six-month prescriptive period for filing limitation of liability petitions, a letter must contain a "clear expression of intent to pursue a claim for damages against" the vessel owner.
This Court agrees with the assertions of the complainant that the letters which are provided as exhibits to the Claimant's Motion to Dismiss do not meet the somewhat specific requirements of the standards of notice. Not only do the letters fail to provide any details of the alleged incident, but they also fail to identify the location, the vessel, or the date of the incident. Neither letter sent from prior counsel for Goff to counsel for Bisso even provides the appropriate date of the incident. From the face of the letters, counsel for claimant makes no claim that Bisso was involved in the alleged incident, nor do they blame Bisso for any loss nor damages. With more specific, detailed information, courts have found that sufficient notice was given to complainants, thereby triggering the six month prescriptive period; however, in each of the those cases, including the cases cited by the claimant, the information in the letters, or series of letters was sufficient to provide "notice" likened to the type of notice that was envisioned by Judge Arceneaux in In Re Oceanic, 807 F. Supp. 1261, supra. The letter that was sent to Bisso on January 18, 2002 acts as a retention letter and fails to make any specific reference to the accident except that it alleges that an accident occurred in "August, 1999." Without more information, such a letter fails to inform the addressee of the letter of anything that would be of assistance. Similarly, the second letter from counsel for Claimant, dated January 31, 2002, merely tells counsel for Complainant that they have sent medical records. This letter fails to provide any more specific information than the first letter submitted to this Court as proof of notice of a claim between the Complainant and Claimant. While there may have been oral communications between the two parties which could have contained other information regarding the claim, communications other than written communications do not meet the written notice requirement that has roots in statutory grounds as well as jurisprudential grounds. Also, without more information, this Court is unable to grant summary judgment at this time.
Claimant's Motion to Dismiss, Exhibit A, states in part: "Date of loss: 8/?/99 . . ." "This is to place you on notice and advise you that the LAW FIRM OF WILLIAM L. DENTON has been retained to represent Jerald Mark Goff in his claim for damages resulting from an accident which occurred in August, 1999."
Claimant's Motion to Dismiss, Exhibit C. states in part: "Date of loss: 8/?/99 . . ." "Please find enclosed a copy of the medical records we have obtained from Tulane regarding the above named client. These are the only records we have as yet. No bill accompanying the records has arrived, but has been requested."
Accordingly,
IT IS ORDERED that the Claimant's Motion to Dismiss and/or Summary Judgment be, and the same, is hereby DENIED.
ORDER AND REASONS
Before this Court is a Motion to Lift Stay and Claimant's Stipulations [doc. 8], filed by claimant, Jerald Mark Goff. The matter came before the Court for hearing, on the briefs alone, on January 29, 2003. The Court after reviewing the briefs submitted by the claimant, Jerald Mark Goff, and petitioner from exoneration and/or from liability, Bisso Marine Company, Inc., this Court is now ready to rule.
I. BACKGROUND AND PROCEDURE
This action arises out of activities which allegedly resulted in an accident on August 3, 1999. Jerald Mark Goff was working as a commercial diver assigned to D/B BIG CHIEF, located in Grand Isle, Block 49. On the date in question, Goff, an independent contractor, was allegedly injured when he ignited a small gas pocket while diving. Plaintiff filed a lawsuit in the Civil District Court for the Parish of Orleans, State of Louisiana, at Division F, Section 10, #20022-11101, Jerald Mark Goff v. Bisso Marine Company, Inc. And Cardinal Services, Inc., d/b/a Superior Energy Services L.L.C., and/or Superior Energy Services, Inc. On October 28, 2002, Bisso Marine filed a Complaint for Exoneration from or Limitation of Liability [Doc. 1], and this Court issued a stay in the above captioned matter on October 30, 2002 [Doc. 2]. On January 3, 2003, claimant Cardinal Services, Inc., d/b/a Superior Energy Services, LLC, and Superior Energy Services, Inc., filed an answer and claim for indemnification, contribution, and fees and costs. Now, the claimant, Jerald Mark Goff, asks this Court to lift the stay and restraint of prosecution of claims.
See Memorandum in Support of Motion to Lift Stay, Affidavit of Jerald Mark Goff. He has stipulated that:
(1) this Court reserves exclusive jurisdiction to determine all issues related to the shipowners right to limit liability while reserving his right to deny and contest all assertions and allegations made by the petitioner in the complaint;
(2) that he will not seek in an action in pending in any state court, in which a jury has been demanded, any judgment or ruling on the issue of petitioner's right to limitation of liability, and hereby consents to waive any claim of res judicata relative to the issue of limitation based on any judgment that may be rendered in said state court action;
(3) while not stipulating to or agreed to the sum contained in petitioner's stipulation for value as the combined value of petitioner's interest in the vessel and her pending freight, hereby stipulate that in the event there is a judgment or recovery in any state court in excess of the sum contained in petitioner's stipulation for value, whether against petitioner or any other liable parties who may cross-claim or claim over against petitioner, in no event will claimants seek to enforce said excess judgment or recovery insofar as same may expose petitioner to liability in excess of the sum contained in petitioner's stipulation for value pending the adjudication of the complaint of limitation of liability in this Court; and
(5) Claimant reserves the right to challenge the adequacy of the limitation fund only in the district court.
II. ARGUMENTS OF THE PARTIES
A. Arguments of Claimant in favor of lifting the stay
Claimant seeks that the stay be lifted on account of the stipulation attached to the Memorandum in Support of Motion to Lift Stay. Claimant states that, "since this appears to be a single claim case, the `savings to suitors' clause becomes more important than any interest of the owner in an admiralty suit, since the owner's rights can be preserved." Claimants also cite Texaco, Inc., v. Williams, 47 F.3d 765, 768 (5th Cir.), cert. denied, 516 U.S. 907 (1995), for the premise that a federal court must allow a state court action to proceed:
See Memorandum in Support of Motion to Lift Stay, p. 1.
(1) if [the claims] total less than the value of the vessel, or (2) if the claimants stipulate that the federal court has exclusive jurisdiction over the limitation of liability proceeding and that they will not seek to enforce a greater damage award until the limitation action has been heard by the federal court.
Claimant, that through the attached stipulation, the rights of the shipowner are fully protected by its declaration; therefore, the stay should be lifted.
B. Arguments of Complainant against lifting the stay
Bisso Marine pray that the stay remain in place based upon three issues:
(1) the stipulations, signed by Goff, are not signed by all of the additional claimants; Bisso asserts that in keeping with the current precedent in the United States Courts of Appeal for the Fifth Circuit, Odeco Oil and Gas Company, Drilling Div. v. Bonnette, 74 F.3d 671, 675, cert. denied, Bonnette v. Odeco Oil and Gas, Drilling Div., 519 U.S. 822, 117 S.Ct. 79, 136 L.Ed.2d 37 (1996) (' Odeco II'), all of the claimants in the above-captioned matter failed are not signatories to the stipulation. Complainants point out that since Superior Energy Services has not signed the stipulation, the stipulation fails to meet the standard of law;
(2) the stipulations do not protect Bisso's right to exoneration; under Odeco II, 74 F.3d at 675, Bisso argues that the shipowner's right to limit liability is absolute and thus "takes precedent over the claimants' right to proceed in the forum of their choice." Bisso states that the stipulations address only the limitation aspects of Bisso's petition and fail to address the exoneration issues; and,
(3) the stipulations do not adequately protect Bisso as to other litigation; Bisso maintains that the stipulation is insufficient as it applies only to judgment and rulings obtained in "pending" state court actions. It fails to address any future filed state court actions, and does not apply to judgments or rulings obtained in other federal court actions.
III. LAW AND ANALYSIS
As has been stated previously, the issue before this Court involves a recurring and inherent conflict between the exclusive jurisdiction vesting in admiralty courts by the Limitation of Liability Act and the common law remedies embodied in the saving to suitors clause of 28 U.S.C. § 1333. The Limitation provides that the liability of a shipowner shall not exceed the value of the vessel at fault and her pending freight if the casualty occurred without the knowledge or privity of the shipowner. The preservation of the Act, and the absolute right of the shipowner to limit its liability in a federal forum are the district court's primary concerns. 46 App. U.S.C.A. § 183; Texaco, Inc. v. Williams, 47 F.3d 765, 766 (5th Cir. 1995); see Magnolia Marine Transp. v. LaPlace Towing Corp., 964 F.3d 1571, 1575 (5th Cir. 1992) (citing Langnes v. Green, 282 U.S. 531, 543, 51 S.Ct. 243, 247, 75 L.Ed 520 (1931)).
Texaco, Inc., v, Williams, 47 F.3d 765, 767 (5th Cir.), cert. denied, 516 U.S. 907 (1995).
46 App.U.S.C.A. § 183.
For stipulations of injured employees to be sufficient to allow lifting of the stay of their savings to suitors remedies in limitation actions, stipulations have to cover all potential claimants and adequately protect employer's rights to limit liability. 28 U.S.C.A. § 1333; 46 App. U.S.C.A. § 183; Texaco, 47 F.3d at 766 (emphasis ours). Furthermore, "the case law is clear that if all claimants stipulate that the federal court has exclusive jurisdiction over limitation issues and the claimants will not seek to enforce a greater damage award than the limitation fund, the claimants may proceed outside of the limitation action." Texaco, 47 F.3d at 768 (emphasis ours). In both instances, allowing the state court action to proceed is contingent on protecting the "absolute" right of the shipowner to limit his or her liability. In Re Complaint of Port Arthur Towing Co. ex rel., M/V MISS CAROLYNN, 42 F.3d 312, 316-17 (5th Cir.) (reviewing de novo the adequacy of a stipulation under the Limitation Act), cert. denied, 516 U.S. 87, 116 S.Ct. 87, 133 L.Ed.2d 44 (1995). In In Re Complaint of Port Arthur, the Fifth Circuit recognized that a claimant in this context included a co-defendant who was asserting a crossclaim for indemnification, costs and attorney's fees. Id. at 316; see also Gorman v. Gervasia, 2 F.3d 519, 525 (3rd Cir. 1993) (noting that "all courts have recognized that a multiple claimant situation exists where a third party seeking indemnity or contribution also requests attorneys' fees and costs associate with its claim.")
Multiple claimants may reduce their state court claims to the equivalent of a single claim, for purposes of having a stay of state court proceedings lifted in a limitation of liability action, by stipulating to a priority in which their claims will be paid from a limitation fund. 28 U.S.C.A. § 1333; 46 App.U.S.C.A. § 183. However, there is no evidence in the immediate matter which indicates that both claimants have signed the stipulation. In fact, it is clear that claimant Goff is the only party that is a signatory to the stipulation. Neither Superior Energy Services, Inc., nor Cardinal Services, Inc., d/b/a Superior Energy Services, LLC have signed the stipulation.
See Memorandum in Support of Motion to Lift Stay, Affidavit of Jerald Mark Goff.
In In Re Nguyen, 2002 WL 31207454, (Africk, J.) (E.D.La. 10/01/02), Claimant, Vo, contended that because he had filed the stipulations recognized in Odeco II which would be adequate to protect the shipowner's right to have this federal court adjudicate the limitation claim, the stay should be lifted. Complainants, Nguyen and Le, who were also claimants in these limitation actions, and claimant, AGF, the insurer of the owner and operator of the vessel seeking indemnification and contribution, objected to the lifting of the stay. The claimants argued that because they had not filed stipulations, one of the requirements necessary for a district court to lift the stay was not present. In response, Vo contended that the complainants were not personal injury claimants and that they needed not file stipulations in order for the stay to be lifted.
The same issue was addressed by the Odeco II court which stated:
Specifically, the question before this court is whether the parties seeking contribution and indemnity are "claimants" within the meaning of the Limitation Act, and therefore must actually sign the stipulation before the injured claimants may proceed in state court. We believe that we have previously resolved the question of whether parties seeking contribution and indemnity are "claimants" within the meaning of the Limitation Act [citations omitted]. Co-defendant cross-claims for indemnity and contribution are liabilities that must be addressed in order to protect the shipowner's rights under the Limitation Act [citation omitted]. Therefore, parties seeking indemnification and contribution from a shipowner must be considered claimants within the meaning of the Limitation Act.
As we have previously held, in order to proceed in state court, all claimants must sign the stipulation protecting the shipowner's rights under the Limitation Act. In re Complaint of Port Arthur Towing Co., 42 F.3d at 316. This rule is a prudent attempt to balance the inherent conflict between the Limitation Act and saving to suitors clause. Although the claimants' interest in litigating in the forum of their choice is substantial, we will accede to that choice only "if it is accompanied by stipulations fully protecting Odeco's right to limit liability and agreeing to abide by an admiralty court determination of the right to limit." Odeco Oil Gas Co., Drilling Division v. Bonnette, [ 4 F.3d 401, 405 (5th Cir. 1993), cert. denied, 511 U.S. 1004, 114 S.Ct. 1370, 128 L.Ed.2d 47 (1994)] (" Odeco I"). The shipowner's right to limitation takes precedence over the claimant's rights to proceed in the forum of their choice.74 F.3d at 674-675 ( footnote omitted).
As stated, Vo contended that the contribution and indemnity claimants, Nguyen, Le, and AGF, did not need to sign the stipulation and that the claims of the insurer, AGF, to recover property damage and personal injury and maintenance and cure payments were subordinate to those of a personal injury claimant. Judge Africk found that Vo had no jurisprudential authority to support his position. He wrote that: "In the Fifth Circuit, all claimants in a limitation action must agree to stipulations protecting the vessel owner's Limitation Act rights and that parties whose claims are for indemnity and contribution from a shipowner are considered claimants within the meaning of the Limitation Act." In Re Nguyen, 202 WL 31207454 at 4; see, In re: In the Matter of the Complaint of ADM/Growmark River System, Inc., 234 F.3d 881, 885-886 (5th Cir. 2000), citing Odeco II, 74 F.3d at 675; accord, Cal Dive International, Inc. v. Johnson, 2001 WL 823728 at *1 and *2 (Clement, J.) (E.D.La. 2001).
In the stipulation presented by claimant Jerald Mark Goff, there are no other signatories to the document other than his own signature. As previously stated, neither Cardinal nor Superior are parties to the document. Additionally, there is no evidence in the record that either claimant that is not a party to the document ever intended to submit a stipulation, as their answer and claim to the complaint includes paragraphs which dispute the stipulated value of the vessel which was included in the original complaint.
Therefore, in line with Fifth Circuit standard and law, this Court finds that the stipulation provided by Jerald Mark Goff is insufficient to allow this Court to lift the stay in the current action. Without certain safeguards, the absolute rights of the shipowners cannot be protected.
Accordingly,
IT IS ORDERED that the Motion to Lift Stay, filed by claimant, Jerald Mark Goff, be and the same is hereby DENIED.