Opinion
Case No. 3:03-cv-95-J-12TEM
December 16, 2003
ORDER
Petitioner's Verified Complaint for Exoneration from or Limitation of Liability (Doc. 1) was filed on February 7, 2003. Petitioner's Complaint seeks exoneration from or limitation of liability with regard to the death of Beverly Joanne Brittain, who drowned in an incident occurring after Petitioner's vessel completed the refueling of a dredge owned and operated by the Lowenthal Group (Claimant Lowenthal). Petitioner's Complaint references a civil action arising out of the same factual circumstances filed by Barbara J. Mongeon, as personal representative of the estate of Beverly J. Brittain (Claimant Mongeon), in Circuit Court, Fourth Judicial Circuit, in and for Duval County Florida. Both Petitioner and Claimant Lowenthal are defendants in the state court action. That state court action has been stayed pending resolution of Petitioner's complaint herein.
Claimant Mongeon filed an Answer and Affirmative Defenses (Doc.8) to the Complaint on March 19, 2003. Claimant Lowenthal's ". . . Answer, Defenses, and Claim . . ." (Doc.9) was filed March 28, 2003.
Petitioner filed a reply and cross-claim regarding Claimant Lowenthal's claims for indemnity and contribution (Doc. 13) on April 17, 2003, to which Claimant Lowenthal replied (Doc. 17) on April 25, 2003.
Claimant Mongeon filed a counter-claim against Petitioner and a cross-claim against Claimant Lownenthal (Doc. 18) on April 28, 2003. On May 15, 2003, Petitioner filed a reply (Doc.19) to Claimant Mongeon's counter-claim, and on August 6, 2003, Claimant Lowenthal filed an answer (Doc.25) to Claimant Mongeon's cross-claim.
On July 18, 2003, a Notice of Confidential Settlement (Doc.21) was filed, advising the Court that Petitioner and Claimant Mongeon had reached a confidential settlement as to all claims between them. This cause is now before the Court on Petitioner's Motion for Summary Judgment (Doc.22), filed that same date. In its motion for summary judgment, Petitioner asserts that the confidential settlement between Petitioner and Claimant Mongeon extinguishes any claims for indemnity or contribution between Petitioner and Claimant Lowenthal pursuant to the law of the Eleventh Circuit. Claimant Lowenthal filed a memorandum in opposition to Petitioner's motion for summary judgment (Doc.24) on August 1, 2003. On August 12, 2003, Claimant Mongeon filed a dismissal of her cross-claim against Claimant Lowenthal (Doc. 26), asserting that Petitioner's motion for summary judgment was well reasoned and urging the Court to grant Petitioner's motion for summary judgment and to dismiss her cross-claim against Claimant Lowenthal without prejudice.
The Court conducted a hearing on the motion for summary judgment on October 1, 2003, at which all parties were represented. At the hearing, the Court heard argument by counsel for Petitioner and for Claimant Lowenthal. Claimant Mongeon was offered an opportunity to argue, but instead adopted the position of Petitioner. Both Petitioner and Claimant Lowenthal submitted proposed orders (Docs. 30 and 31).
As indicated in the Notice of Confidential Settlement (Doc.21), all claims between Petitioner and Claimant Mongeon have been resolved. As a result, the claims remaining in this action are the claims for indemnity and/or contribution between Petitioner and Claimant Lowenthal, and the claims of Claimant Mongeon against Claimant Lowenthal.
In its motion for summary judgment, Petitioner asserts, and Claimant Mongeon agrees, that under the proportionate fault approach adopted in the Eleventh Circuit, when one of two alleged tortfeasors (Petitioner in this case) enters into a settlement with the injured party (Claimant Mongeon in this case), the non-settling alleged tortfeasor (Claimant Lowenthal in this case), is left responsible only for the proportion of the total damages that may be attributed to it at trial, no more or no less, so that claims for indemnity and contribution between two alleged joint tortfeasors are thereby extinguished. The Court has reviewed numerous cases cited by the parties and agrees that the proportionate fault approach described by Petitioner has been adopted in the Eleventh Circuit. See, e.g., Murphy v. Florida Keys Elec. Co-op. Ass'n, Inc., 329 F.3d 1311, 1314-1318 (11th Cir. 2003) (and cases cited therein).
Claimant Lowenthal argues that the proportionate fault approach does not apply in the situation presented by the instant case, because under the facts and theories of liability asserted by the various parties, Claimant Lowenthal could be found vicariously liable for the death of Beverly J. Brittain, represented by Claimant Mongeon. In that event Claimant Lowenthal argues that, having been found liable under a no-fault theory, it would not be protected by the proportionate fault rule to liability only for its own fault, and will have lost its claim for indemnity against Petitioner. Claimant Lowenthal therefore maintains that Petitioner's motion for summary judgment must be denied.
The Court finds that Claimant Lowenthal's position is well-taken and that under the case law cited, extinguishing claims for indemnity and contribution is not appropriate in the situation where the non-settling tortfeasor may be found liable under a no-fault theory, because application of the proportionate fault approach would not function to limit that alleged tortfeasor's liability to its own fault-based conduct. See, e.g., Chisolm v. UHP Projects, Inc., 205 F.3d 731, 734-739 (4th Cir. 2000). An application of the proportionate fault approach in such situation, one not involving strictly alleged joint tortfeasors, would effectively permit the settling alleged tortfeasor to limit its liability to the amount of the settlement, but would leave the non-settling tortfeasor exposed to unlimited liability on a non-fault basis, without the remedy of indemnity.
Nevertheless, the Court is of the opinion that the Petitioner's motion for summary judgment should be granted, given the posture of the posture of the case and the positions of the parties regarding the motion. Petitioner has argued in its motion, and at the hearing on this matter, that there is no viable theory of liability under which Claimant Lowenthal could be found liable without fault, and therefore applying the proportionate fault approach to extinguish the claims for indemnity and contribution between Petitioner and Claimant Lowenthal will leave Claimant Lowenthal in the position of being liable only for damages for whatever a jury may find to be Claimant Lowenthal's own fault-based conduct, no more and no less.
Claimant Mongeon asserted that Petitioner's position on the motion for summary judgment is "well-reasoned" (Doc.26) and also adopted Petitioner's arguments at the hearing on this matter. Petitioner and Claimant Mongeon therefore have both urged application of the proportionate fault rule, asserting that as a result of the settlement between them, and the application of the applicable Eleventh Circuit law, all that remains to be determined is the proportionate fault of Claimant Lowenthal, if any, and any corresponding amount of damages owed by Claimant Lowenthal to Claimant Mongeon. In adopting Petitioner's position, Claimant Mongeon agrees that there is no viable non-fault basis of liability which would preclude application of the proportionate fault approach, and that any recovery against Claimant Lowenthal is limited to damages resulting from its fault-based conduct. Accordingly, the Court will grant Petitioner's motion for summary judgment
As a result of granting Petitioner's motion for summary judgment, in accordance with Claimant Mongeon's request (Doc.26), the Court will dismiss the Claimant Mongeon's claims against Claimant Lowenthal without prejudice. It is, therefore
ORDERED AND ADJUDGED:
1. That pursuant to the Notice of Confidential Settlement (Doc.21) filed July 18, 2003, all claims between Petitioner and Claimant Barbara B. Mongeon, etc., are dismissed;
2. That Petitioner's Motion for Summary Judgment as to the Lowenthal Group's Claims Against Petitioner (Doc.22) is granted, and all claims for indemnity and contribution between Petitioner and Claimant the Lowenthal Group, Inc. are extinguished;
3. That Claimant Barbara B. Mongeon, etc.'s claims against Claimant the Lowenthal Group, Inc. are dismissed without prejudice;
4. That the Court's rulings in this matter (Nos. 1-3) are hereby stayed for ninety (90) days;
5. That the Court's Order Enjoining Suit (Doc.6) is hereby suspended for ninety (90) days to permit the parties to proceed in the Circuit Court, Fourth Judicial Circuit, in and for Duval County Florida as they deem appropriate;
6. That at the conclusion of the ninety (90) days, Petitioner shall file a Notice with this Court as to the status of the state court proceedings and whether there is any further need for a stay, so that the Court may enter a further Final Order Granting Final Summary Judgment, dismissing all claims, and closing this case.