In Re: Bertucci Contracting

Filing

PUBLISHED OPINION FILED. [12-30780 Affirmed] Judge: WED , Judge: JEG , Judge: SAH Mandate pull date is 04/12/2013 [12-30780]

Case: 12-30780

Document: 00512184184

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Date Filed: 03/22/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
March 22, 2013

No. 12-30780

Lyle W. Cayce
Clerk

In Re: BERTUCCI CONTRACTING COMPANY, L.L.C., as owners and/or
owners of the M/V JULIE MARIE and owner pro hac vice of Barges GD 954
and GD 20102 for exoneration from or Limitation of Liability,

BERTUCCI CONTRACTING COMPANY, L.L.C., as owners and/or owners of
the M/V JULIE MARIE and owner pro hac vice of Barges GD 954 and GD
20102 for exoneration from or Limitation of Liability,
Petitioner - Appellee
v.
CAROL STEELE, both individually, and for and on behalf of all other persons
similarly situated; RONALD STEELE; ROBIN PALMISANO; DONITA
SCHLADWEILER; JERRY FAULKNER; ET AL,
Claimants - Appellants

Appeal from the United States District Court
for the Eastern District of Louisiana

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
This appeal arises out of a maritime accident in which a vessel owned by
Bertucci Contracting Co. hit the Leo Kerner bridge in Louisiana. Appellants are
residents of an affected community arguing that they suffered damages as a

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result of the accident. The district court dismissed Appellants’ claims, holding
that recovery was barred by circuit precedent. We affirm.
I. Factual and Procedural Background
On May 31, 2011, the vessel JULIE MARIE, owned by Bertucci
Contracting Co., LLC (“Bertucci”), allided with the Leo Kerner Bridge (“the
bridge”). The bridge, owned by the State of Louisiana, spans the Intracoastal
Waterway in Louisiana and links the communities of Lafitte and Barataria. As
a result of the accident, the bridge sustained damage that prevented its use by
pedestrians and vehicles and was closed for several days for repairs
In June 2011, Bertucci filed a complaint-in-limitation under the Limitation
of Liability Act, 46 U.S.C. §§ 30501 et seq., concerning the accident in the
Eastern District of Louisiana. Numerous claimants filed answers in Bertucci’s
limitation proceeding, including Appellants. Despite the district court’s order
that no claims relating to the accident be filed outside the limitation proceeding,
Carol Steele filed a separate class action suit on behalf of residents of Barataria,
seeking to recover damages resulting from the closure of the bridge. In their
class action complaint, Appellants outlined their damages resulting from the
bridge closure as including loss of use of property, loss of income and revenue
due to restricted access to their homes and businesses, and damages due to
inconvenience. The district court consolidated the class action proceeding with
Bertucci’s limitation proceeding.
Bertucci filed a motion to dismiss Appellants’ claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). On April 18, 2012, the district court granted
Bertucci’s motion to dismiss Appellants’ claims in both the limitation proceeding
and in the class action. The district court held that in maritime negligence
cases, recovery for economic damages is barred unless a plaintiff sustains
physical damage to a proprietary interest, relying on State of Louisiana ex rel
Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985) (en banc). The district
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court then found that Appellants had not stated facts that could plausibly state
a claim for physical damage to any property they own, as required for recovery
under the Testbank rule. Appellants appeal the dismissal of their claims.
II. Discussion
Recovery by Appellants in this case is barred by Supreme Court and
circuit precedent. Our en banc opinion in Testbank reviewed and reaffirmed the
“prevailing” maritime rule that “denie[s] a plaintiff recovery for economic loss if
that loss resulted from physical damage to property in which he had no
proprietary interest.” 752 F.2d at 1022; see Robins Dry Dock v. Flint, 275 U.S.
303, 308-09 (1927). Since Testbank, this court has consistently applied the rule
limiting recovery in maritime cases to plaintiffs who sustain physical damage to
a proprietary interest. See, e.g., In re Taira Lynn Marine Ltd. No. 5, LLC, 444
F.3d 371, 377 (5th Cir. 2006); Reserve Mooring Inc. v. Am. Commercial Barge
Line, LLC, 251 F.3d 1069, 1071 (5th Cir. 2001); IMTT-Gretna v. Robert E. Lee
SS, 993 F.2d 1193, 1194 (5th Cir. 1993).

We have stated that “[i]t is

unmistakable that the law of this circuit does not allow recovery of purely
economic claims absent physical injury to a proprietary interest in a maritime
negligence suit.” Taira Lynn, 444 F.3d at 377.
Appellants argue that the Testbank rule should not bar recovery here
because they are not maritime actors and have no connection to traditional
maritime activity. Appellants assert that their claims may be heard in federal
court pursuant to maritime jurisdiction, but the substantive law that should
apply is not the Testbank maritime rule, but Louisiana law.
Appellants’ attempts to distinguish Testbank and its progeny are not
persuasive. Appellants put forth no principled distinction between themselves
and similarly situated parties who have been consistently denied recovery under
the Testbank rule. Parties who have been denied recovery under this rule
include lessees with contractual rights to use docks and bridges near the water
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who lost use of that property due to a maritime tort, see IMTT-Gretna, 993 F.2d
at 1194; Louisville & Nashville R.R. Co. v. M/V BAYOU LACOMBE, 597 F.2d
469, 474 (5th Cir. 1979), and local businesses engaged in a variety of commercial
activities near the water who lost business and money due to a maritime tort
that damaged a bridge, Taira Lynn, 444 F.3d at 378-79. Yet Appellants argue
that dozens of private property owners residing near a damaged bridge, who
suffered no physical damage to their property, are different and can recover.
Appellants essentially argue that because they are not engaged in any maritime
activity, they are more remote than the parties denied recovery in cases like
Taira Lynn, IMTT-Gretna, and Testbank, and are in fact so remote from the
maritime accident and maritime activity that the Testbank limitation and
established maritime principles should cease to apply. This distinction is
antithetical to the Testbank rule’s purpose to create “a pragmatic limitation . .
. upon the tort doctrine of foreseeability.” Testbank, 752 F.2d at 1023.
Appellants’ argument that recovery under state law is available even if
maritime law bars recovery is foreclosed by circuit precedent and by principles
of maritime law. We have clearly held that “state law does not supply an
alternative remedy to [a claimant] when its claim was already denied in its
proper maritime jurisdiction.” IMTT-Gretna, 993 F.2d at 1195; see Taira Lynn,
444 F.3d at 380. The claims at issue arise from an alleged tort by a vessel on a
navigable waterway and are thus properly within the maritime jurisdiction of
the federal courts. See, e.g, Testbank, 752 F.2d at 1031; Jerome B. Grubart, Inc.
v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 542-43 (1995). “Maritime law
specifically denies recovery to non proprietors for economic damages. To allow
state law to supply a remedy when one is denied in admiralty would serve only
to circumvent the maritime law’s jurisdiction.” IMTT-Gretna, 993 F.2d at 1195;
Taira Lynn, 444 F.3d at 380. Appellants’ appeal to Erie v. Tompkins, 304 U.S.
64 (1938), is misplaced. As the Testbank court explained, “While our maritime
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decisions are informed by common law developments in the state courts, there
is no requirement, as in diversity cases, that state law be adopted. Indeed the
federal interest in protecting maritime commerce is often best served by the
establishment of uniform rules of conduct . . . .” Testbank, 752 F.2d at 1032; see
IMTT-Gretna, 993 F.2d at 1195.

Accepting Appellants’ argument for an

exception to the Testbank rule would subject a maritime tortfeastor on navigable
waters to more extensive liability when a tort has economic effects in a state that
allows for economic damages absent physical injury. This is precisely the kind
of non-uniformity that maritime law seeks to prevent. See Testbank, 752 F.2d
at 1031-32.
Appellants

alternatively

argue

that

even

if

Testbank

is

not

distinguishable, the district court erred in dismissing their claims because some
of the claimants might have suffered physical injuries.

In resolving this

question, we accept “all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (internal quotation marks omitted). However, as they
recognize, to survive a Rule 12(b)(6) motion to dismiss, Appellants must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Appellants clearly have not met
this standard. While Appellants assert that the bridge damage and closing
interfered with the use of their property, interference with access is not physical
damage. See Reserve Mooring, 251 F.3d at 1071-72 (holding that a barge sinking
and blocking a mooring facility was not physical damage).

On appeal,

Appellants do not point to any facts that might plausibly state a claim for
physical damages of any kind. The only specific facts referenced on appeal
concern Carol Steele’s increased medical expenses resulting from the restricted
access to her home. The district court thus correctly dismissed the claims

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because Appellants have alleged no facts, even if construed liberally, that
plausibly state a claim for physical damages.
III. Conclusion
For the above-stated reasons, we AFFIRM the district court’s dismissal of
Appellants’ claims in the limitation proceeding and in the class action.

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