Silver Ships, Inc. v. Louis T. Codega, P.E. et al

Filing 43

ORDER denying 32 Motion to Amend Complaint as set out. Signed by Senior Judge Callie V. S. Granade on 08/10/2018. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SILVER SHIPS, INC.,
Plaintiff,
vs.
LOUIS T. CODEGA, P.E., an
individual,
Defendant.

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) CIVIL ACTION NO. 17-0404-CG-N
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ORDER

This matter is before the Court on Plaintiff’s motion to amend complaint
(Doc. 32), and Defendant’s objection thereto (Doc. 34). For reasons explained below,
the Court finds that Plaintiff’s motion to amend should be denied.
Plaintiff seeks to amend its complaint to add a claim for “negligent design.”
The claim alleges that Plaintiff was damaged as a direct and proximate cause of the
following:
16. Codega was negligent in the design, testing and resolution process
for the two vessels made the basis of this action … such that the work
fell below the level of reasonable care, skill and diligence as other
similar situated naval architects/boat designers in the same general
line of practice ordinarily have exercised in like situations and was
negligent in failing to advise Silver Ships of his concerns about the
design criteria for each vessel before Silver Ships began construction.
(Doc. 32-1, p. 5). The claim simply restates Plaintiff’s “Architectural Mal-practice”
claim which this Court previously dismissed with prejudice. (Docs. 18, 27). The fact
that the claim was dismissed “with prejudice” in and of itself would militate against

any determination by this Court that the claim was revivable. See Citibank, N.A. v.
Data Lease Fin. Corp., 904 F.2d 1498, 1505 (11th Cir. 1990) (“A dismissal with
prejudice has the effect of a final adjudication on the merits favorable to defendant
and bars future suits brought by plaintiff upon the same cause of action.”);
Plumberman, Inc. v. Urban Sys. Dev. Corp., 605 F.2d 161, 162 (5th Cir. 1979 (“a
dismissal with prejudice at any stage of a judicial proceeding, normally constitutes
a final judgment on the merits which bars a later suit on the same cause of action.”
citation omitted).
Even if this Court were inclined to reconsider the dismissal with prejudice,
the Court finds that the proposed amendment is futile. As Defendant points out,1
the alleged tort arises out of a contract. The factual allegations of the complaint
offered to support Plaintiff’s negligence claim assert that Plaintiff breached his duty
off care as follows:
5. Codega negligently designed the South Hampton vessel such that it
did not meet the purchaser’s stability requirements in that it was not
stable at rest. Because of the negligent design, there was no way to
“fix” the problem by redistributing the weight of the vessel in a manner
that would bring in into conformity with the purchaser’s design criteria
ands/or usage criteria. Codega acknowledged after the fact that he had
had concerns about whether the vessel could be designed to meet the
required criteria.
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8. Codega negligently designed the Corps’ vessel such that it did not
meet the purchaser’s maneuvering and floatation stability
requirements. Codega’s own calculations after the fact bear this out.
The Court notes that Defendant failed to cite to any authority or to further explain his
contention that the claim cannot be maintained because it arises out of a contract.
Nevertheless, the Court is aware of the general rule in Alabama that the failure to perform
a contractual obligation will not sustain an action sounding in tort and is aware of the
rule’s exceptions. Accordingly, the Court will discuss the rule’s application to this case.
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Because of the negligent design, there was no way redistribute the
weight of the vessel in a manner that would bring in into conformity
with the Corps’ design criteria ands/or usage criteria.
(Doc. 32-1, pp. 2-3). Plaintiff’s allegation is that Defendant did not design the two
vessels in a manner that would allow the purchaser’s design criteria and usage
criteria to be met. The duty Defendant allegedly breached under the negligence
claim is the same duty the complaint alleges Defendant breached under the
contract. The complaint alleges that Defendant contracted with Plaintiff “to
adequately and properly design two vessels that would be in full compliance with
each customer’s specifications and intended usage requirements.” (Doc. 32-1, ¶ 3).
The general rule in Alabama is that the mere failure to perform a contractual
obligation will not sustain an action sounding in tort. See, e.g., Barber v. Business
Prods. Ctr., Inc., 677 So. 2d 223, 228 (Ala. 1996) (providing that "a mere failure to
perform a contractual obligation is not a tort"), overruled on other grounds by White
Sands Group, LLC v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009); Sims v. Etowah Cnty.
Bd. Of Ed., 337 So. 2d 1310, 1313 (Ala. 1976), overruled on other grounds by Ex
parte Hale Cnty. Bd. Of Educ., 14 So. 3d 844 (Ala. 2009).
There are recognized exceptions to the rule that failure to perform under a
contract will not give rise to an action in tort. While “an ordinary breach of contract
will not give rise to a tort,” “[i]t is possible for a tort to arise in Alabama out of a
breach of a duty implied by or arising out of a contract.” Brown-Marx Assocs., Ltd. v.
Emigrant Sav. Bank, 703 F.2d 1361, 1371 (11th Cir. 1983) (citation omitted). In
Brown-Marx the Court found there was no actionable tort because the claim alleged

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a violation of an obligation “plainly set out in the contract itself.” Id. “The Brown–
Marx panel distinguished between claims for breach of an obligation expressly set
forth in the contract (which are not actionable in tort under Alabama law) and
claims for breach of a duty implied by or arising out of the contract (which may be
actionable in tort).” Hardy v. Jim Walter Homes, Inc., 2008 WL 906455, at *14 (S.D.
Ala. April 1, 2008) (citing Brown–Marx, 703 F.2d at 1371). Here, the proposed
amended complaint alleges Defendant was negligent for breaching the duty to do
precisely what he allegedly contracted to do – “to adequately and properly design
two vessels that would be in full compliance with each customer’s specifications and
intended usage requirements.” Plaintiff’s allegations confirm that the alleged tort
arose out of the agreed terms of the contract. Accordingly, the Court finds that
Plaintiff cannot maintain the proposed negligent design claim and that the
proposed amendment would be futile.
CONCLUSION
Plaintiff’s motion to amend complaint (Doc. 32), is DENIED.
DONE and ORDERED this 10th day of August, 2018.

/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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