Opinion
CIVIL ACT. NO. 1:20-cv-7-TFM-M
2022-12-07
Patrick BASS and Jocelyn Bass, Plaintiffs, v. M/V STAR ISFJORD, Greig Star Shipping, and G2 Ocean, Defendants.
Patrick H. Hufft, Pro Hac Vice, Hufft & Hufft, APLC, New Orleans, LA, Tom Shlosman, Pro Hac Vice, Shlosman Law Firm, New Orleans, LA, Peter S. Mackey, Burns, Cunningham & Mackey, Mobile, AL, for Plaintiffs. John P. Kavanagh, Jr., Lewis Robert Shreve, Burr & Forman LLP, Mobile, AL, for Defendants Grieg Star Shipping, G2 Ocean.
Patrick H. Hufft, Pro Hac Vice, Hufft & Hufft, APLC, New Orleans, LA, Tom Shlosman, Pro Hac Vice, Shlosman Law Firm, New Orleans, LA, Peter S. Mackey, Burns, Cunningham & Mackey, Mobile, AL, for Plaintiffs. John P. Kavanagh, Jr., Lewis Robert Shreve, Burr & Forman LLP, Mobile, AL, for Defendants Grieg Star Shipping, G2 Ocean. SUPPLEMENTAL OPINION TERRY F. MOORER, UNITED STATES DISTRICT JUDGE
This Court previously entered Memorandum Opinion and Order on Defendants' Motion for Summary Judgment and Alternative Motion for Partial Summary Judgment (Doc. 100, entered 9/28/22), in which the Court held in abeyance a ruling on the alternative motion for summary judgment, specifically with respect to the issue of whether punitive damages are recoverable. The Court heard oral arguments on the punitive damages issue on November 9, 2022. This Supplemental Opinion addresses now addresses the motion for partial summary judgment and punitive damages issue. After reviewing the motion, response, reply, evidentiary submissions in support of the motions, and relevant law, and after hearing oral arguments from the parties, the Court finds that Defendants' motion for partial summary judgment is DENIED.
I. PARTIES AND JURISDICTION
Plaintiffs Patrick Bass ("Mr. Bass") and Jocelyn Bass ("Mrs. Bass") (collectively, "Plaintiffs"), assert claims of negligence, gross negligence, wanton conduct, punitive damages, and damages for loss of consortium against Defendants M/V STAR ISFJORD, Grieg Star Shipping II AS, and G2 Ocean AS. M/V STAR ISFJORD is a Norwegian Flagged cargo vessel owned and/or operated by Defendant Grieg Shipping II, AS (a Norwegian company). G2 Ocean AS is a company based in Norway that is a joint venture between Defendant Grieg Shipping II AS and Gearbulk (another open hatch ship owning company). The instant motion for partial summary judgment is brought by Defendant Grieg Shipping II, AS and G2 Ocean AS (collectively referred to as "Defendants" in this opinion).
This Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1333 (admiralty, maritime, and prize cases). The parties do not contest personal jurisdiction or venue, and the Court finds that sufficient support exists for both.
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background from the previous Memorandum Opinion and Order (Doc. 100) is incorporated by reference. See Bass v. M/V STAR ISFJORD, No. 1:20-cv-7-TFM-M, 2022 WL 4543684, 2022 U.S. Dist. LEXIS 176339 (S.D. Ala. September 28, 2022). The Court now supplements with additional procedural background.
On September 28, 2022, the Court issued a separate memorandum opinion on the motion for summary judgement and alternative motion for partial summary judgment, in which it granted the motion as to the loss of consortium and duty to intervene negligence claims and denied the motion as to turnover duty and active involvement/control. Doc. 100. The Court held in abeyance the alternative motion for partial summary judgment, specifically with respect to the issue of whether punitive damages are available. Id. On October 10, 2022, the Plaintiffs filed a Motion for Reconsideration with respect to Mrs. Bass' loss of consortium claims. Doc. 101. On November 9, 2022, the Court heard oral argument from the parties regarding the motion for reconsideration and the issue of punitive damages. The alternative motion for partial summary judgment, as it pertains to the issue of punitive damages, is ripe for adjudication. The Court issues a separate opinion on the motion for reconsideration.
III. STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "[T]he substantive law will identify which facts are material." Id. at 248, 106 S. Ct. at 2510. At the summary judgment stage, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Id. at 249, 106 S. Ct. at 2511. The "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). For factual issues to be considered genuine, they must have a real basis in the record. Id.
The party asking for summary judgment bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S. Ct. at 2552. A party must support its assertion that there is no genuine issue of material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1). The admissibility of evidence is subject to the same standards and rules that govern admissibility of evidence at trial. Clemons v. Dougherty County, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)).
"When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal quotations omitted) (citing Celotex, 477 U.S. at 324, 106 S. Ct. at 2553). The court must view facts and draw all reasonable inferences in favor of the non-moving party. Moore v. Reese, 637 F.3d 1220, 1231 (11th Cir. 2011) (citing Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1043 (11th Cir. 2007)). However, to avoid summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (citations omitted). Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgment are likely insufficient to defeat a proper motion for summary judgment. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed. 2d 695 (1990).
IV. DISCUSSION AND ANALYSIS
Defendants, in the alternative motion for partial summary judgment, argue that Mr. Bass' claims for punitive damages should be dismissed because there is no evidence demonstrating the requisite culpability, such as a showing of intentional or wanton and reckless conduct that is required for the assessment of exemplary damages. See In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 121 F.3d 1421, 1427-28 (11th Cir. 1997) ("[P]laintiffs cannot recover punitive damages for simple negligence as punitive damages require a showing of intentional or wanton and reckless conduct on the part of the defendants amounting to a conscious disregard of the rights of others." (internal quotations omitted)). Defendants reason that there was no intentional, wanton, or reckless conduct in making the decision to cover the access way opening. Doc. 61 at 15. According to Amtrak, "personal injury claimants have no claim for non-pecuniary damages such as . . . punitive damages, except in exceptional circumstances such as . . . intentional denial of a vessel owner to furnish a seaworthy vessel to a seaman and in those very rare situations of intentional wrongdoing." In re Amtrak, 121 F.3d at 1429.
However, as noted by Plaintiff, it is questionable whether Amtrak remains good law in light of the Supreme Court's decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 174 L. Ed. 2d 382 (2009). Prior to Atlantic Sounding, the Eleventh Circuit was clear: punitive damages were not an available remedy for personal injury actions brought pursuant to general maritime law, except for actions based on intentional wrongdoing. In Amtrak the Eleventh Circuit stated:
Unless or until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as . . . punitive damages, except in exceptional circumstances . . . .Id.
But in Atlantic Sounding, the United States Supreme Court held that a seaman could, under general maritime law, get punitive damages for his employer's willful and wanton disregard of its maintenance and cure obligation. Atlantic Sounding, 557 U.S. at 424, 129 S. Ct. at 2575. Although the plaintiff's claim in that case was for failure to pay maintenance and cure, the Court's rationale was broad: (1) that "punitive damages have long been available at common law," (2) that "the common-law tradition of punitive damages extends to maritime claims," and (3) that "nothing in the Jones Act altered this understanding." Id. at 414, 424, 129 S. Ct. at 2569, 2575. In short, it seemed to recognize that punitive damages that were available at common law for wanton, willful, or outrageous conduct traditionally have been extended to claims arising under federal maritime law. Id. at 409-411, 129 S. Ct. at 2566-2568. Yet, "[u]nder the prior precedent rule, [the Court is] bound to follow a prior binding precedent 'unless and until it is overruled by this court en banc or by the Supreme Court.' " United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). For the Supreme Court to overrule a binding Eleventh Circuit decision, the Supreme Court opinion "must have actually overruled or conflicted" with the Eleventh Circuit decision. Id. at 1237. And "[t]here is a difference between the holding in a case and the reasoning that supports that holding." Id. So "[e]ven if the reasoning of an intervening high court decision is at odds with a prior appellate court decision, that does not provide the appellate court with a basis for departing from its prior decision." Id.
A rift has since developed among the district courts about Atlantic Sounding and its effect on Amtrak. Some courts read this holding to find that Congress has not enacted any legislation limiting the recovery of punitive damages in a personal injury action brought under general maritime law. See, e.g., Vairma v. Carnival Corp., Civ. Act. No. 15-20724, 2015 WL 12911465, 2015 U.S. Dist. LEXIS 188952 (S.D. Fla. May 27, 2015). But other courts find that it did not explicitly overrule or abrogate Amtrak. See, e.g., Ginley v. Dutra Dredging Company, Civ. Act. No. 19-23487, 2020 WL 13379369, 2020 U.S. Dist. LEXIS 115404 (S.D. Fla. Jun. 30, 2020) (discussing that it was bound to follow Amtrak under the prior precedent rule).
Amid this dispute, there are also two separate panel opinions - albeit unpublished - from the Eleventh Circuit that both explicitly hold that Atlantic Sounding does not undermine at least some of the holding in Amtrack but both cases are in the context of a loss of consortium claim. See Eslinger v. Celebrity Cruises, Inc., 772 F. App'x 872 (11th Cir. 2019); Petersen v. NCL (Bah.), Ltd., 748 F. App'x 246 (11th Cir. 2018). Specifically, Petersen noted that nothing in the Atlantic Sounding opinion undermines Amtrak holding that punitive or loss of consortium damages may only be available under federal maritime law "in exceptional circumstances such as willful failure to furnish maintenance and cure to a seaman[.]" Petersen, 748 F. App'x at 252. Eslinger, on the other hand, notes that the Atlantic Sounding opinion had no application to loss of consortium claims - seemingly dodging the punitive damages discussion. Eslinger, 772 F. App'x at 873. These two unpublished panel opinions deal with personal injury claims brought by cruise ship passengers, however, and do not address claims brought under the LHWCA.
Finally, wedged in between these two panel opinions, the Supreme Court issued its opinion in The Dutra Grp. v. Batterton wherein it limited the availability of punitive damages for certain maritime claims. — U.S. —, 139 S. Ct. 2275, 204 L. Ed. 2d 692 (2019). In Batterton, the Supreme Court distinguished Atlantic Sounding in holding that a mariner could not recover punitive damages on a claim that he was injured as result of the unseaworthy condition of a vessel. Id. at 2283-84. The Court explained that "[i]n Atlantic Sounding, we allowed recovery of punitive damages, but we justified our departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and cure" but that "[f]or claims of unseaworthiness, the overwhelming historical evidence suggests that punitive damages are not available." Id. at 2283.
Finally, looking outside the Eleventh Circuit, the Court finds yet more confusion which seems to indicate the majority of other courts outside our circuit find that punitive damages are recoverable. See, e.g., Kahumoku v. Titan Maritime, LLC, 486 F. Supp. 2d 1144 (D. Haw. 2007) (Congressional silence as to punitive damages in § 905(b) indicates the intent for the remedy to remain available under maritime law); Bommarito v. Belle Chasse Marine Transp., 606 F.Supp.3d 304 (E.D. La. 2022) (citing In re Rodi Marine LLC, Civ. Act. No. 17-5394, 2019 WL 861251, at *3, 2019 U.S. Dist. LEXIS 28382 (E.D. La. Feb. 22, 2019)) (finding punitive damages may be recoverable in LHWCA claims); Lopez v. United States, Civ. Act. No. 15cvl80, 2017 WL 11662686, 2017 U.S. Dist. LEXIS 236507 (S.D. Cal. Mar. 13, 2017) (same); Callahan v. Gulf Logistics, LLC, Civ. Act. No. 6:06-cv-561, 2013 WL 5236888, 2013 U.S. Dist. LEXIS 133050 (W.D. La. Sep. 16, 2013) (same); Summers v. Salmon Bay Barge Line, Inc., Civ. Act. No. 12-5859, 2013 WL 5912917, 2013 U.S. Dist. LEXIS 157914 (W.D. Wash. Nov. 4, 2013) (same). Yet, in Exxon Mobil Corp. v. Minton, 285 Va. 115, 135, 737 S.E.2d 16 (2013), the Supreme Court of Virginia held that the statutory language of § 905(b), which states that "[t]he remedy in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this [Act]" necessarily requires the finding that "punitive damages are not a remedy made available within the terms of the LHWCA[.]"
The law with regard to punitive damages under LHWCA claims is clearly in a state of flux, or put more bluntly, it's a mess. As noted by our sister court in Florida, "[b]oth the pro-Amtrak cases and the pro-Atlantic Sounding cases raise good points." Ginley, 2020 WL 13379369, at *3, 2020 U.S. Dist. LEXIS 115404, at *7. With that backdrop of confusion, the Court proceeds with the discussion on punitive damages.
In its own motion for summary judgment, Defendants note "[w]hile the 'common-law tradition of punitive damages extends to maritime claims,' such damages are only available 'under maritime law where the defendant's conduct is wanton, willful, or outrageous.' " Doc. 61 at 15 (quoting White v. Fincantieri Bay Shipbuilding, 429 F. Supp. 3d 582, 588 (E.D. Wis. 2019) (quoting Atl. Sounding Co. v. Townsend, 557 U.S. 404, 414, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009); Holden v. Capstan Corp., 2018 WL 5618107, at *15 (W.D. Wis. Oct. 30, 2018)) (internal quotation marks omitted)). Defendants then move on to quote from Amtrak that punitive damages require "a showing of 'intentional or wanton and reckless conduct' on the part of defendants amounting to 'a conscious disregard of the rights of others.' " Id. (quoting Amtrak, 121 F.3d at 1427-28). Defendants also filed a supplemental brief expanding its analysis on the standard of liability for punitive damages under General Maritime law by arguing that Amtrak still stands as the standard which requires a showing of intentional misconduct for punitive damages. Doc. 66.
In its reply, and at oral argument, Defendants take a stronger stance in "their position that punitive damages are unlikely to be recoverable by longshoremen in a 905(b) action." Doc. 72 at 11. But, Defendants then argue that "[t]his issue does not need to be decided in the case at bar, however, because the Eleventh Circuit guidance is clear as to the standard applicable to non-seamen punitive damages claims" because Amtrak makes it clear that a showing of intentional conduct is required. Id. at 13. They argue Plaintiff makes no such assertion in the Amended Complaint.
Plaintiff, in his response in opposition to summary judgment, counters by arguing Amtrak has been overruled and in maritime cases, the standard is "wanton, willful or outrageous conduct" not "intentional misconduct." Doc. 69 at 27. Plaintiff then cites Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302 (S.D. Fla. 2019) to support his proposition. Yet, Kennedy itself holds that Amtrak was not overruled or abrogated1008by Atlantic Sounding. 385 F. Supp. 3d at 1328-29. The Kennedy court
The real issue, it appears, is not whether punitive damages are available under general maritime law, they are, but what standard of liability should apply in determining whether punitive damages may be recovered for a particular maritime claim. An overly broad reading of Atlantic Sounding would make punitive damages available even in the absence of a showing of intentional misconduct. However, the Court believes that Atlantic Sounding's statement that "[p]unitive damages have long been an available remedy at common law for wanton, willful or outrageous conduct" was simply a general description of the circumstances in which such damages are available at common law, and was not intended to announce a bright-line standard of liability governing recovery of punitive damages in all maritime tort claims. Again, the Court notes that Atlantic Sounding addressed only the availability of punitive damages in a cause of action for maintenance and cure, and did not specifically discuss personal injury claims brought by ship passengers. Given the relatively narrow scope of the issues presented in Atlantic Sounding, the Court does not believe that holding should be read so broadly as to find it in conflict with Amtrak. Therefore, the Court finds that Amtrak is controlling on this issue, and Plaintiffs in this action may recover punitive damages only upon a showing of intentional misconduct.Id. at 1329 (quoting Crusan v. Carnival Corp., 2015 WL 13743473, at *7, 2015 U.S. Dist. LEXIS 191522 (S.D. Fla. Feb. 24, 2015)). Plaintiff quotes Kennedy when it states, "to demonstrate intentional misconduct, the plaintiff must show 'the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct.' " Id. at 1329 (quoting Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1220 (11th Cir. 2010) which in turn quotes Fla. Stat. § 768.72(2) (2005)). Plaintiff essentially notes that gross negligence and intentional misconduct are a "distinction without a difference" as he does not have to prove "defendants intentionally injured Mr. Bass, only that their actions, which ultimately caused his injuries, were deliberate, with knowledge that those actions had a high probability to cause serious injury." Doc. 69 at 27-28.
Defendants are correct in that there is no place in the Amended Complaint which alleges that Defendants acted with the intent to cause him harm - rather it focuses on gross negligence and/or wanton conduct. However, after extensive review of the relevant law, the Court finds that Amtrak was abrogated by Atlantic Sounding as it pertains to the availability of punitive damages in certain maritime tort cases. Thus, the Court agrees with the majority of its sister courts that punitive damages may be recoverable under the LHWCA if there is a finding of willful, wanton, or outrageous conduct. See cases cited supra, pp. 1006-07. Whether there was wanton or outrageous conduct in this case is a finding of fact to be determined at trial. Consequently, summary judgment is denied as to the punitive damages claim.
V. CONCLUSION
Based on the foregoing discussion and analysis, the Defendants' alternative motion for partial summary judgment is DENIED as to punitive damages.
DONE and ORDERED this the 7th day of December 2022.