Opinion
CIVIL ACTION NO: 00-2643 SECTION: "G"(1)
May 14, 2002
SUPPLEMENTAL MEMORANDUM AND ORDER
On May 7, 2002, I denied defendants' motion for reconsideration of my order granting summary judgment in favor of the third-party defendant, Boland Marine and Manufacturing, Inc. On that same date, at 4:23 p.m., defendants filed a motion for leave to file a reply memorandum in support of their motion for reconsideration, and enclosed the memorandum. I did not receive notice of the motion and reply memorandum until May 8, 2002, when counsel for defendants telephoned my law clerk to inform her of the filing. A copy of the reply memorandum was then telefaxed to my chambers.
Defendants were unduly dilatory in filing their reply memorandum, and made no effort to contact my chambers prior to filing to inform me of their intention to seek leave to do so. Nevertheless, I have signed the motion requesting leave to file the reply memorandum, and have considered the arguments and jurisprudence discussed therein. However, I find the arguments to be without merit, and the cases cited to be clearly distinguishable from the one before me.
In their reply brief, defendants argue that Boland is liable to them "for that portion of fault attributed to Crescent City Sheet Metal Works, Inc., plaintiff's statutory, and therefore immune, employer, as a result of the employer's breach of the warranty of workmanlike performance implied in its subcontract with Boland." Defendants contend that the evidence will establish that Crescent City was negligent in failing to determine whether the lifeboat was secure prior to allowing the plaintiff to enter the lifeboat to perform repairs. Defendants further contend that this negligence constitutes a breach of the warranty of workmanlike performance ("WWLP") implied in ship repair contracts, making Crescent City liable to Boland.
Rely Memorandum, at p. 1.
Assuming, solely for the purpose of defendants' argument, that Crescent City is found to have been negligent, defendants are correct that the negligence would constitute a breach of the WWLP owed to Boland. However, regardless of whether Crescent City is immune as the statutory employer, Boland is not responsible for the negligence of Crescent, and without a finding of negligence on the part of Boland, Boland is not liable to the defendants, whether in tort, contract, or pursuant to an implied warranty of workmanlike performance.
Defendants cite Whisenant v. Brewster-Bartle Offshore Co., 446 F.2d 394 (5th Cir. 1971) for the proposition that "a party contracting to perform services beneficial to the vessel owes the vessel owner a duty to perform in a workmanlike manner." However, application of this principle, even if still viable, would only entitle defendants to a claim against Crescent City, and does not obligate Boland to indemnify defendants for damages attributable to Crescent City, the statutorily immune employer. Defendants have failed to create a genuine issue of fact as to whether Boland itself violated its warranty of workmanlike performance. Accordingly, Boland cannot be held vicariously responsible for the independent negligence, if any, of Crescent City. Further, although Boland may very well have been named as an additional insured on Crescent City's insurance policies, as contended by defendants, that insurance coverage would only come into play in the event of a finding of fault on the part of Boland.
Id., at 401.
Whisenant has been "called into doubt" by the Fifth Circuit, at least in the context of claims for economic, rather than personal injury, damages. Nathaniel Shipping, Inc. v. General Electric Co., Inc., 932 F.2d 366, 367 (5th Cir. 1991), citing Hercules, Inc. v. Stevens Shipping Co., Inc., 629 F.2d 418, 422 (5th Cir. 1980), reversed on other grounds, 698 F.2d 726 (5th Cir. 1983).
After consideration of defendants' late-filed reply brief, I find no basis to reverse my prior rulings. Accordingly, for the reasons set forth herein and in my prior rulings,
IT IS ORDERED, that my ruling of May 7, 2002, denying the defendants' motion for reconsideration, be maintained, for the reasons set forth therein and in this supplemental opinion.