Sandra Simmons, et al v. Lexington Insurance Company

Filing

UNPUBLISHED OPINION FILED. [10-30433 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/03/2010 [10-30433]

Sandra Simmons, etCav.e: 10-30433 Document: 00511292435 al s Lexington Insurance Company

Page: 1 Date Filed: 11/12/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 12, 2010 N o . 10-30433 S u m m a r y Calendar Lyle W. Cayce Clerk

S A N D R A SIMMONS; JACK SIMMONS, P la in t if f s ­ A p p e lla n t s v. J U D Y C. BERGLIN, D e fe n d a n t ­ A p p e lle e

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:07-CV-5911

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D u r in g Hurricane Katrina, the TRUST ME II, a forty-seven-foot sailboat o w n e d by Judy C. Berglin, came loose from its moorings, washed ashore, and d a m a g e d Sandra and Jack Simmons' ("Plaintiffs") property. Plaintiffs sued B e r g lin for the damage, but the district court granted summary judgment in fa v o r of Berglin. Plaintiffs appeal, and we now affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 10-30433 I . FACTUAL AND PROCEDURAL HISTORY P la in t iffs own a house on Moonraker Drive in the Eden Isles subdivision i n Slidell, Louisiana, on the north shore of Lake Pontchartrain. Berglin, who h a d moved to Oregon three or four years before Hurricane Katrina, kept the T R U S T ME II continuously moored to a wooden finger dock by Pontchartrain D r iv e , between one-half-mile and one-mile south of Plaintiffs' house. Berglin w a s in the New Orleans area visiting her daughter about seven to ten days b e fo r e the hurricane hit. During this visit, she asked two of her dock neighbors, F r a n k Beber and Pete Thompson, to check on the TRUST ME II to make sure t h a t it was ready for the storm. T h o m p s o n , a boat builder who lived on a sixty-five-foot schooner, often c a r e d for the TRUST ME II in Berglin's absence. Beber, a mariner with over fo r t y years of marine experience, was a licensed Master in the Merchant Marines a n d served as the safety officer aboard the U.S. Coast Guard's 300-foot "tall ship" E A G L E , where his duties included overseeing the vessel's moorings. He owned s e v e r a l boats, including a thirty-foot trimaran that he kept docked in the slip a d ja c e n t to the TRUST ME II. Berglin did not tell Beber or Thompson how to s e c u r e the TRUST ME II, but at her deposition, she testified that Beber knew m o r e about boats than she did and that she trusted him to do what was best u n d e r the circumstances. T h o m p s o n and Beber both checked on the TRUST ME II before the storm. The boat was already tied to the pilings with seven 3/4-inch lines: two lines on t h e bow, two spring lines midship, two lines on the stern, and one line that ran fr o m the stern diagonally back across the boat to the seawall. At his deposition, B e b e r characterized this arrangement as "overkill," explaining that "a 3/4 inch lin e on a nine-ton boat is far more than you would normally use on a boat that s iz e ." To prepare for the storm, Beber doubled the spring lines on the midship c le a t s and added two extra 3/4-inch lines on the bowsprit and one extra spring 2

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No. 10-30433 lin e from the bowsprit to one of the aft pilings. He gave the lines about six in c h e s of slack. Beber testified that he put as much line on the TRUST ME II's c le a t s as possible and that the vessel was as secure as it could have been at that lo c a t io n . He said that he wanted to make sure that the TRUST ME II was as s e c u r e as possible because he did not want it to break free and damage his own s a ilb o a t in the adjacent slip. Beber then evacuated. W h e n the center of Hurricane Katrina hit the Eden Isles area, the storm s u r g e was unprecedented. According to Beber, the water rose twenty to twentyt w o feet above mean sea level at his dock. Jack Simmons, who weathered the s t o r m at home, testified that the water level rose fifteen to sixteen feet at his h o u s e . Either way, Hurricane Katrina's storm surge was significantly higher t h a n the four-feet rise that occurred during Hurricane Georges in 1998, which w a s the highest surge that either Berglin or Beber had seen in the Eden Isles a r e a during a hurricane. W h e n Beber returned to his dock a couple of days later, he found almostc o m p le t e devastation. The marina had been demolished by the storm. Berglin's d o c k had been destroyed, the buildings next to her dock had collapsed, and the T R U S T ME II was missing. The aft pilings that the TRUST ME II had been tied t o had been bent over at a forty-five degree angle; its forward pilings were still s t a n d in g , but only because they were bolted to the concrete seawall. Every other d o c k in the area had also been destroyed, and all of the vessels that had been m o o r e d to those docks, other than Beber's own sailboat, had been ripped from t h e ir moorings and scattered. Beber's boat had not come loose, but it had been d is m a s t e d , cut in two, and sunk, along with his entire dock. Plaintiffs found the T R U S T ME II in their backyard. They claim that it damaged their pier, seawall, c a b a n a , pool, fences, and sidewalks. P la in t iffs filed suit against Berglin, alleging that she was responsible for t h e damage because she had failed to take adequate precautions to make sure 3

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No. 10-30433 t h a t the TRUST ME II was secure.1 On February 19, 2010, Berlin moved for s u m m a r y judgment, arguing that the claims against her should be dismissed b e c a u s e the damage to Plaintiffs' property was caused by an Act of God. On M a r c h 19, 2010, the district court awarded summary judgment to Berglin. It fo u n d that the Act of God defense applied in this case because"[t]he undisputed fa c t s show that Berglin's actions in hav[ing] the vessel secured in anticipation o f Hurricane Katrina were reasonable under the circumstances." P la in t iffs appeal. They concede that they have no personal knowledge a b o u t how the TRUST ME II was moored before the hurricane, what measures B e r g lin or her agents took to secure the vessel, or what condition the docks and p ilin g s were in after the storm. Nonetheless, they contend that Berglin has fa ile d to show that there is no genuine issue of fact as to whether she took all r e a s o n a b le precautions under the circumstances to ensure that her vessel did n o t break loose during Hurricane Katrina. I I . STANDARD OF REVIEW W e review an order granting summary judgment de novo, applying the s a m e standard as the district court. Jackson v. Cal-W. Packaging Corp., 602 F .3 d 374, 377 (5th Cir. 2010). "We view the evidence in the light most favorable t o the non-moving party and avoid credibility determinations and weighing of t h e evidence." Id. (citation omitted). We will uphold a grant of summary

ju d g m e n t where "the competent summary judgment evidence demonstrates that t h e r e are no genuine issues of material fact and the moving party is entitled to ju d g m e n t as a matter of law." Id. (citation omitted). "An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The mere a r g u e d existence of a factual dispute does not defeat an otherwise properly
Plaintiffs also sued St. Paul Fire and Marine Insurance Co., which insured Berglin and the TRUST ME II at the time of Hurricane Katrina.
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No. 10-30433 s u p p o r t e d motion. See Anderson, 477 U.S. at 248. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is a p p r o p r ia te . Id. at 249­50 (citations omitted). I I I . ANALYSIS U n d e r the general maritime law, when a drifting vessel causes damage to a stationary object, there is a presumption that the moving vessel is at fault. The Louisiana, 70 U.S. (3 Wall.) 164, 173 (1865). This presumption is based on t h e logical deduction that a vessel found loose and adrift was mishandled or im p r o p e r ly moored. James v. River Parishes Co., 686 F.2d 1129, 1132­33 (5th C ir . 1982). "The party against whom the presumption operates bears the burden o f disproving it, not merely coming forward with countervailing evidence." Delta T r a n s lo a d , Inc. v. M/V Navios Commander, 818 F.2d 445, 449 (5th Cir. 1987) (c it a t io n omitted). T h e drifting vessel may rebut this presumption by showing, by a p r e p o n d e r a n c e of the evidence, that the collision was an inevitable accident or t h e result of an Act of God. See The Louisiana, 70 U.S. at 173. "`The burden of p r o v in g inevitable accident or Act of God rests heavily upon the vessel asserting s u c h defense.' The vessel must show that the accident could not have been p r e v e n t e d by `human skill and precaution and a proper display of nautical s k ills . . . .'" James, 686 F.2d at 1132 (quoting In re United States (Dammers & V a n Der Heide Shipping & Trading (Antilles), Inc. v. The Steamship Joseph L y k e s ), 425 F.2d 991, 995 (5th Cir. 1970)) (alterations omitted). T h e test for determining whether [Berglin is] free from fault is w h e t h e r [she] took reasonable precautions under the circumstances a s known or reasonably to be anticipated. If [she was] reasonable in [her] anticipation of the severity of the impending storm and u n d e r t o o k reasonable preparations in light of such anticipation, t h e n [she is] relieved of liability.

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No. 10-30433 I n re United States, 425 F.2d at 995; see also Brown & Root Marine Operators, I n c . v. Zapata Off-Shore Co., 726 (5th Cir. 1967) (holding that the vessel a s s e r t in g the defense "must exhaust every reasonable possibility which the c ir c u m s t a n c e s admit and show that in each they did all that reasonable care r e q u ir e d " ).2 T h e district court found that Hurricane Katrina was as an Act of God. It b a s e d this finding on similar findings by other federal and state courts and on t h e National Hurricane Center's post-storm assessment that Hurricane Katrina w a s "an extraordinarily powerful and deadly hurricane that carved a wide swath o f catastrophic damage and inflicted large loss of life" and was "one of the most d e v a s t a t in g natural disasters in United States history." Further, the record in t h is case shows that Hurricane Katrina's high storm surge caused extensive d a m a g e to the Eden Isles area in particular. Plaintiffs do not contest this fin d in g on appeal. They argue only that Berglin has failed to show that there is n o genuine issue of fact as to whether Berglin took all reasonable precautions u n d e r the circumstances to prevent the TRUST ME II from breaking loose from it s moorings. W e disagree. Based on the summary-judgment record before us, we find t h a t no reasonable juror could say that Berglin acted unreasonably under the c ir c u m s t a n c e s . Berglin asked two experienced mariners to check on her boat b e fo r e the hurricane. Both men, as her agents, did what she had requested, and o n e of them, Beber, added extra mooring lines to ensure that the already overs e c u r e d boat would not break loose. His uncontested deposition testimony was t h a t the TRUST ME II was as secure as it could be in that location.

Accord Terre Aux Boeufs Land Co. v. J.R. Gray Barge Co., 2000-2754, p. 9 (La. App. 4 Cir. 11/14/01; 803 So. 2d 86, 93 ("[T]he purpose of the Act of God defense is to relieve a defendant from liability for damages when the following elements are present: (1) the damages claimed were caused by the Act of God, and (2) no amount of prudence or care on the part of the defendant could have prevented the damages from occurring.").

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No. 10-30433 D e s p ite these reasonable precautions, the hurricane's unheard-of storm s u r g e destroyed Berglin's dock and the docks around it, collapsed the buildings n e x t to the docks, bent Berglin's aft pilings by forty-five degrees, and ripped all b u t one of the sailing boats in the vicinity from their moorings, including the T R U S T ME II. The one sailboat in the vicinity that was not sent adrift was B e b e r 's sailboat, which was cut in half and sunk along with the dock that it was t ie d to. Given the unexpected strength of Hurricane Katrina, and because it d e s t r o y e d TRUST ME II's own dock, we find not only that Berglin and her a g e n t s were reasonable in preparing for the storm, but also that no reasonable ju r o r could say that Berglin's actions or omissions, even if negligent, had any e ffe c t on whether the TRUST ME II broke free from its moorings. N o n e of Plaintiffs' counter-arguments on appeal have any merit. First, P la in t iffs argue that Berglin was negligent because she took no steps to prepare fo r the hurricane other than to ask one of her dock neighbors to check on the T R U S T ME II, and because she failed to follow up on the condition of the TRUST M E II after the hurricane. But the record shows that Berglin asked more than o n e person to check on her boat; she asked two experienced mariners to do so. Both men checked on the boat, and Beber added extra mooring lines to the boat b e fo r e the storm. Beber and Thompson's actions were reasonable under the c ir c u m s t a n c e s , and as her agents, they are imputed to Berglin. As for Berglin's a c t io n s after the storm, the Act of God defense, as applied in this kind of case, a s k s whether the custodian of the moving vessel took reasonable precautions b e fo r e the storm to avoid the damage. As a result, what Berglin did or did not d o after the storm is not relevant. Given the record in this case, Berglin's failure t o contact either Thompson or Beber after the storm and ask about the condition o f the TRUST ME II does not tend to show that the actual precautions that B e r g lin , Thompson, and Beber took before the storm were in any way negligent o r unreasonable. 7

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No. 10-30433 S e c o n d , Plaintiffs argue that Berglin was negligent because she did not i n s p e c t the TRUST ME II's mooring lines during the three or fours years that s h e lived in Oregon before Hurricane Katrina. As a result, Plaintiffs contend, s h e did not know whether those lines were in serviceable condition or needed to b e replaced. The record, however, shows that Thompson regularly checked on t h e TRUST ME II during Berglin's absence. In addition, there is no evidence in t h e record about the actual condition of the TRUST ME II's original mooring lin e s before the hurricane, nor is there any evidence showing that mooring lines s h o u ld be replaced after less than three to four years as a general rule. Beber t e s t ifie d that he added extra mooring lines and that he made sure the vessel was a s secure as it could be before the storm. Plaintiffs do not assert that the extra lin e s were also defective, and Beber's testimony about the condition of the vessel b e fore the storm is uncontested. Thus, Plaintiffs' argument is nothing more than a n unsubstantiated accusation. T h ir d , Plaintiffs argue that Berglin was negligent because she permitted t h e TRUST ME II to be tied down with mooring line that was 3/4-inches thick, w h ic h Beber characterized as "overkill." To support their argument, Plaintiffs p o in t to the following sentence in Berglin's marine expert's report: "Boater's P o c k e t Reference: Chapter 4 recommends not over sizing mooring lines for the b o a t size since the line will not stretch when the boat heaves on it." This record d o e s not create a genuine issue of fact as to whether Berglin was negligent in u s in g 3/4-inch line. First, Plaintiffs have misconstrued Beber's testimony about t h e 3/4-inch line being "overkill." Beber did not testify that it was wrong to s e c u r e a sailboat in adverse weather conditions with 3/4-inch line; he said only t h a t the use of 3/4-inch line was more than sufficient to secure a nine-ton s a ilb o a t under normal weather conditions. In fact, Beber's actions show that he t h o u g h t that the 3/4-inch line was appropriate in this case, because he secured t h e TRUST ME II before the storm with at least two additional 3/4-inch lines. 8

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No. 10-30433 S e c o n d , the expert's citation to the "Boater's Pocket Reference" is also u n a v a ilin g . The reference guide merely "recommends" a course of action, and it s recommendation is too vague to be relied on: it does not define an over-sized m o o r in g line. It does not say that a 3/4-inch line is too big for a nine-ton boat. And it does not explain whether different-size lines are more appropriate in a d v e r s e weather conditions. F o u r t h , Plaintiffs argue that Berglin was negligent because her agent, B e b e r , failed to attach the TRUST ME II's mooring lines high enough on the p ilin g s or with enough slack to allow the vessel to rise with the storm surge. To s u p p o r t this argument, Plaintiffs presented an expert report by Ronald Morris, a marine investigator, which says that in advance of a hurricane, mooring lines s h o u ld be attached "as high on pilings as possible and with enough slack that a llo w for storm surges related to the Hurricane Category threat level." Thus, by M o r r is 's logic, Beber should have given the TRUST ME II enough freedom of m o v e m e n t -- e it h e r by attaching the lines higher on the pilings (which stood only t w e lv e feet out of the water), by giving the lines several feet of slack, or by some c o m b in a t io n of the two--to permit the vessel to ride the storm surge up at least fift e e n or sixteen feet. Such an arrangement would have allowed a large boat to h e a v e unrestrained for most of the rise of the surge, and the boat would have lik e ly come loose well before the surge reached its highest point. Accordingly, w e agree with the district court's assessment that "it would not have been r e a s o n a b le to moor the TRUST ME II with enough slack to account for any s t o r m surge that may be created by a Category 5 hurricane." L a s t ly , Plaintiffs argue that Berglin was presumptively negligent because a t least four other boats of comparable size to the TRUST ME II did not come lo o s e during Hurricane Katrina. But none of these comparators were similarly s it u a t e d to the TRUST ME II. The first boat is a thirty-nine-foot aluminumh u lle d sailboat that had been docked close to the TRUST ME II. But this boat 9

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No. 10-30433 b e c a m e unmoored during the storm, so it does not support Plaintiffs' argument. The second boat is Beber's own sailboat, which did not come free of its moorings d u r in g the storm. Nonetheless, there is no evidence in the record that Beber's b o a t was moored any differently than the TRUST ME II, and given that both b o a t s were prepared for the storm by the same person, it seems unlikely that t h e y were moored differently. Moreover, Beber's boat did not remain "moored" in any meaningful way; it was dismasted, cut in half, and sunk, along with its d o c k . In the absence of any evidence about how it was tied down, we cannot say t h a t Beber's boat, which sank to the bottom of the canal and thus was subject to d iffe r e n t wind and wave forces, is a suitable comparison to the TRUST ME II, w h ic h remained afloat. Rather, it is merely good evidence of the overwhelming fo r c e of Hurricane Katrina and the devastation that it inflicted on the docks and b o a t s near the TRUST ME II. T h e third and fourth boats are powerboats owned by Plaintiffs' neighbor, J o h n n y Robertson. Neither powerboat left its moorings during the hurricane. Plaintiffs contend that the powerboats remained in their original locations b e c a u s e they had been tied parallel to the canal, not perpendicular to the canal lik e the TRUST ME II. This argument is not persuasive. First, the powerboats w e r e over a half-mile away from, and further inland than, the TRUST ME II. As a result, they likely faced different weather conditions. Second, both boats w e r e smaller than the TRUST ME II, and neither boat was a sailboat and thus d id not have masts and rigging, which are two features that make sailboats e s p e c ia lly susceptible to hurricane-force winds. Third, there is no evidence that s a il b o a t s in general or the TRUST ME II in particular could have been tied p a r a lle l to the canal or that there was room in the canal or marina for the T R U S T ME II to be tied parallel to the canal. Nor is there any evidence that any o t h e r sailboat in the area that had been tied perpendicular to the canal before t h e storm was tied parallel to the canal in preparation for the storm. Therefore, 10

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No. 10-30433 t h e powerboats are too dissimilar to the TRUST ME II to create a genuine issue o f material fact. A s the district court correctly pointed out, "the purported disputed issues o f fact raised by the plaintiffs are nothing more than hindsight speculations a b o u t what could have been done, not facts which disprove defendant's evidence t h a t she exercised reasonable care under the circumstances." Likewise, none of t h e arguments raised by Plaintiffs undermine our fundamental finding that, g iv e n the strength of Hurricane Katrina and the widespread devastation it in flic t e d upon the docks and boats in the area near where the TRUST ME II was m o o r e d , Berglin and her agents' actions or omissions, even if negligent, had no e ffe c t on the TRUST ME II coming loose. I V . CONCLUSION T h e district court's grant of summary judgment is AFFIRMED.

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