Nguyen et al v. American Commercial Lines, Inc. et al
Filing
61
ORDER AND REASONS denying defendant's 44 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (Reference: all cases)(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHUC NGUYEN, ET AL.
CIVIL ACTION
VERSUS
NO. 11-1799
c/w 11-2705
PERTAINS TO ALL CASES
AMERICAN COMMERCIAL LINES, INC.,
ET AL.
SECTION “B”(4)
ORDER AND REASONS
Nature of Motions and Relief Sought:
Before the Court is Defendant's Motion for Summary Judgment,
Plaintiffs’ Opposition, and Defendant's Reply. (Rec. Docs. No.
44, 51, & 60). Accordingly, and for the reasons articulated
below,
IT IS ORDERED that Defendant's Motion for Summary Judgment
(Rec. Doc. No. 44) is DENIED.
Procedural History and Facts of the Case:
This
case
arises
out
of
the
collision
between
the
M/V
TINTOMARA and Barge DM-932 on July 23, 2008 on the Mississippi
River, the same event that gave rise to litigation in Gabarick v.
Laurin Maritime (America), Inc., 623 F. Supp. 2d 741 (E.D. La.
2009). As a result of the collision, oil discharged into the
Mississippi
River
and
traveled
downstream
into
various
water
bodies, allegedly including estuaries within Plaquemines Parish,
Louisiana. (Rec. Doc. No. 1 at 4-5). On July 24, 2008, the United
States Coast Guard (“Coast Guard”) designated Barge DM-932 as the
source of the discharge and named American Commercial Lines, Inc.
(“ACL”) as the responsible party under the Oil Pollution Act of
1990
(“OPA”).
Id.
at
5.
ACL
then
hired
Worley
Catastrophe
Response, LLC (“Worley”) as its third party claims administrator.
Id.
Between approximately June 11 and July 23, 2009, Plaintiffs’
counsel, Michael A. Fenasci, submitted 224 “form claim letters”
to
Worley
on
behalf
of
commercial
fishermen
and
seafood
wholesalers allegedly affected by the oil spill. (Rec. Doc. No.
44-1 at 4-5). Each form letter sought recovery for damage to
property, loss of profits, loss of earning capacity, and loss of
subsistence.
Each
letter
also
requested
payment
of
amounts
loosely ranging from $4,000 to $30,000.1
On July 23, 2009, Worley requested additional information in
substantiation of the claims submitted, including copies of each
claimant’s federal income tax returns for 2007 and 2008, “daily
catch” or sales data for May–September 2008, and an explanation
of each claimant’s “lost days” calculation. (Rec. Doc. No. 44-1
at 5). Following that request, Mr. Fenasci and attorney Wayne
Yuspeh submitted approximately forty-eight additional claims but
did not provide all of the requested documents and information.
(Rec. Doc. No. 44-1 at 6).
1
Scans of each letter were provided to the Court as a DVD manual attachment,
which will hereinafter be cited as “Rec. Doc. 51-1.”
2
On
July
25,
2011,
approximately
two
years
after
first
contacting Worley, Plaintiffs initiated this action, asserting
claims under the OPA and the Louisiana Unfair Trade Practices
Act. (Rec. Doc. No. 1). Roughly six months later, on March 15,
2012, Defendant filed a motion to dismiss on the grounds that the
Plaintiffs
failed
to
comply
with
the
OPA’s
presentment
requirement. (Rec. Doc. No. 13). The Court initially granted that
motion
to
dismiss
and
entered
prejudice. (Rec. Docs. 34 & 37).
judgment
dismissing
However, on
without
Plaintiff’s motion
to reconsider, the Court vacated judgment and denied Defendant’s
motion to dismiss “because the Court’s prior order [had] not
assume[d] the truth of Plaintiffs’ allegations and relied on
‘evidence’ in dismissing the claims at the pleading stage.” (Rec.
Doc. No. 44 at 1). At the Court’s direction, Defendant filed the
instant
a
motion
for
summary
judgment
on
October
29,
2013.
Hearing thereon was continued several times to allow the parties
to collect and review the voluminous claims materials involved.
(Rec. Docs. 47 & 50).
Law & Analysis
A. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,
answers,
show
that
and
there
admissions,
is
no
together
genuine
issue
with
as
to
any
any
material fact and that the moving party is entitled to judgment
3
as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986). A genuine issue exists if
the evidence would allow a reasonable jury to return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, (1986). Although the Court must consider the evidence
with all reasonable inferences in the light most favorable to the
nonmoving party, the non-movant must produce specific facts to
demonstrate
that
a
genuine
issue
exists
for
trial.
Webb
v.
Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536
(5th Cir. 1998). Because “only those disputes over facts that
might
affect
the
outcome
of
the
lawsuit
under
governing
substantive law will preclude summary judgment,” questions that
are unnecessary to the resolution of a particular issue “will not
be counted.” Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272
(5th Cir. 1987).
As to issues for which the nonmoving party has the burden of
proof
at
trial,
the
moving
party
may
satisfy
its
burden
by
demonstrating the absence of evidence supporting the nonmoving
party’s claim. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant makes this showing, the burden shifts to the nonmovant
to
set
forth
specific
facts
showing
that
there
is
a
genuine issue for trial. Rivera v. Houston Indep. Sch. Dist., 349
F.3d 244, 247 (5th Cir. 2003).
pleadings
and
use
The non-movant must go beyond the
affidavits,
4
depositions,
interrogatory
responses, admissions, or other evidence to establish a genuine
issue. Id. Accordingly, conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
B. Present of claims under the Oil Pollution Act of 1990
Congress passed the Oil Pollution Act of 1990, 33 U.S.C. §
2701, et seq. (the “OPA”), in the wake of the Exxon Valdez oil
spill with an intent “to streamline federal law so as to provide
quick and efficient cleanup of oil spills, compensate victims of
such spills, and internalize the costs of spills within the
petroleum industry.” Rice v. Harken Exploration Co., 250 F.3d
264,
266
(5th
Cir.
2001)(citing
Senate
Report
No.
101–94,
reprinted in 1990 U.S.C.C.A.N. 722, 723.) Congress sought to
achieve such goals by several means.
First, to effect prompt cleanup and compensation, the OPA
authorizes the prompt designation of responsible parties who may
be held strictly liability for certain damages arising from oil
spills.
Specifically,
the
OPA
authorizes
the
Coast
Guard
to
designate as a “responsible party” those it unilaterally deems
responsible for oil discharged into navigable waters. See, e.g.,
Gabarick v. Laurin Mar. (Am.) Inc., 623 F. Supp. 2d 741, 744
(E.D. La. 2009); United States v. Conoco, Inc., 916 F. Supp. 581,
583 (E.D. La. 1996). Those parties may be held strictly liability
for removal costs and other specified damages, although they may
5
later
seek
contribution
and
indemnity
from
other
culpable
parties. In re Oil Spill by the Oil Rig Deepwater Horizon in the
Gulf of Mexico, 808 F. Supp. 2d 943, 959 (E.D. La. 2011)(citing
33 U.S.C. §§ 2709, 2710, 2713).
Second,
the
OPA
imposes
a
presentment
requirement
under
which claimants must present a claim to a responsible party and
wait the shorter of 90 days or until the responsible party denies
all liability before filing suit for damages. Id.; see also 33
U.S.C. § 2713. The purpose of this “presentment” requirement is
to
promote
settlement
and
thereby
reduce
litigation
and
streamline claims processes. Gabarick, 623 F. Supp. 2d at 747-48;
Johnson v. Colonial Pipeline Co., 830 F. Supp. 309, 310 (E.D. Va.
1993).
Third, the OPA created the Oil Liability Trust Fund (the
“Fund”), a governmental entity managed by the Director of the
Coast Guard’s National Pollution Center, and established a claims
process under which claimants may in some instances submit OPA
claims to the Fund in lieu of suit in court. See 33 U.S.C. §§
2713(b), 2701(11); Arthur J. Ewenczyk, For A Fistful of Dollars:
Quick Compensation and Procedural Rights in the Aftermath of the
2010 Deepwater Horizon Oil Spill, 44 J. Mar. L. & Com. 267, 28185 (2013). If a claimant accepts payment from the Fund, the
government is then subrogated to the claimant’s rights under the
6
OPA and may later assert those rights in litigation and thereby
recoup any payments on claims. Id. at § 2715.
At issue here is whether the Plaintiffs satisfied the OPA’s
presentment requirement before initiating suit against ACL, the
“responsible party.” That requirement is set forth in 33 U.S.C. §
2713, which reads in relevant part:
(a) Presentation
Except as provided in subsection (b) of this section, all
claims for removal costs or damages shall be presented
first to the responsible party . . .
(b) Presentation to Fund
(1) In general
Claims for removal costs or damages may be presented
first to the Fund—
(A) if the President has advertised or otherwise
notified claimants in accordance with section
2714(c) of this title . . .
(c) Election
If a claim is presented in accordance with subsection (a)
of this section and—
(1) each person to whom the claim is presented
denies all liability for the claim, or
(2) the claim is not settled by any person by
payment within 90 days after the date upon which
(A) the claim was presented . . . the claimant may
elect to commence an action in court against the
responsible party or guarantor or to present the
claim to the Fund.
33 U.S.C. § 2713
Thus, pursuant to subsection (a), all claims for damages
under the OPA must first be presented to the responsible party
7
unless subsection (b) allows for immediate presentment to the
Fund. Subsection (c) provides that once a claimant has presented
a claim to the responsible party and waited the shorter of 90
days or until that party denies all liability, she may elect to
either initiate suit in court or present a claim to the Fund.
Thus, unless subsection (b) allows for an exception, which is not
the case here, subsections (a) & (c) make presentment a mandatory
condition precedent and failure to satisfy their requirements
will result in dismissal. See, e.g., Boca Ciega Hotel, Inc. v.
Bouchard Transp. Co., Inc., 51 F.3d 235, 240 (11th Cir. 1995); In
re Oil Spill by the Oil Rig Deepwater Horizon, 808 F. Supp. 2d
943, 964 (E.D. La. 2011).
What “presentment” of a “claim” substantively requires of
parties seeking redress from responsible parties is for the most
part made clear by statutory language. “Claim” is defined as “a
request, made in writing for a sum certain, for compensation for
damages or removal costs resulting from an incident.” 33 U.S.C. §
2701. “Damages” are defined to include removal costs, real
property damage, loss of subsistence use of natural resources,
loss of revenues, loss of profits, and loss of public services.
Id.; see also 33 U.S.C. § 2702.
Here, Defendant moves for summary judgment primarily on the
grounds that Plaintiffs have not met the substantive requirements
imposed by section 2713. The crux of their argument is that the
8
Plaintiffs did not properly present their claim under section
2713 because they failed to provide additional information and
substantiating
further
documentation
consideration,
as
the
requested
Court
by
Worley.
After
that
such
disagrees
substantiating evidence is required to present a claim to a
responsible party.
The Plaintiffs clearly satisfied the substantive presentment
requirements imposed by the language of the OPA itself. That is,
each Plaintiff requested a sum certain, in writing, for damages
recoverable under the OPA. Each plaintiff submitted a written
claim letter requesting compensation for a specific amount and
itemizing damages for property damage, cleaning costs, and loss
of income. (Rec. Doc. 51-1).2 The majority of Plaintiffs have
also satisfied section 2713’s procedural requirements. 224 of the
272 Plaintiffs submitted claims to Worley between June 11, 2009
and July 23, 2009, (Rec. Doc. No. 44-1 at 4-5), and did not
initiate
this
action
until
July
25,
2011,
well
beyond
the
requisite 90-day waiting period. The remaining 48 claims were
presented within the 90-day period but, considering that several
years have passed since the initiation of this suit, in this
instance the failure to wait 90 days before submitting those
2
Plaintiffs provided a DVD manual attachment to the Court with scans of the
documents provided to Worley during the claims process. Defendant does not
dispute the authenticity of these documents, nor does it contend that any of
the Plaintiffs failed to request the specific sums certain set forth therein.
9
claims should not be grounds for dismissal. More than enough time
has passed to cure this deficiency.
ACL contends that the requirements of 33 C.F.R. § 136.105
apply to Plaintiffs’ claims and that Plaintiffs have not met
those requirements because they failed to produce evidence in
support of their claims during the presentment process. More
specifically, ACL contends that the Plaintiffs did not properly
present their claims because they did not (i) substantiate their
lost earnings claims with tax returns, daily catch records, or
otherwise document the number of days they could not work, (ii)
provide invoices for hull cleaning expenses, or (iii) provide a
map identifying each claimants’ use of the affected areas. This
argument must be rejected for several reasons.
First,
it
entails
error
as
a
matter
of
statutory
interpretation. It is axiomatic that the interpretation of a
statute begins and ordinarily ends with the text of the statute.
See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475. (“In a statutory construction case, the beginning point
must be the language of the statute, and when a statute speaks
with clarity to an issue judicial inquiry into the statute's
meaning,
in
finished.”)
all
but
Moreover,
the
most
extraordinary
“[s]tatutory
circumstance,
definitions
control
meaning of statutory words . . . in the usual case.”
is
the
Burgess v.
United States, 553 U.S. 124, 129-30 (2008). (quoting Lawson v.
10
Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)). Only when
application of an undefined term’s plain meaning renders the term
“opaque,” “translucent,” or ambiguous,” should the court turn to
extraneous sources. United States v. Barlow, 41 F.3d 935, 942
(5th Cir.1994), cert. denied, 514 U.S. 1030, 115 S.Ct. 1389, 131
L.Ed.2d
241
(1995).
Here,
the
OPA’s
language
concerning
presentment is statutorily defined and clear on its face. Section
2713(a)
provides
that
“all
claims
for
.
.
.
damages
shall
presented first to the responsible party or guarantor” unless
subsection (b) mandates presentation to the Fund, which is not
the case here. 33 U.S.C. § 2713(a). As noted above, “claim” is
defined as “a request, made in writing for a sum certain, for
compensation
for
damages
or
removal
costs
resulting
from
an
incident.” 33 U.S.C. § 2701. “Damages” are defined to include
removal costs, real property damage, loss of subsistence use of
natural resources, loss of revenues, loss of profits, and loss of
public services. Id.; see also 33 U.S.C. § 2702. There is nothing
ambiguous about these distinctly defined terms. Accordingly, the
Court now holds that Section 2713(a) requires only that claims be
presented as written requests, for sums certain, and for an
enumerated type of damage. Consequently, there is no statutorily
mandated need in this instance to look to extraneous sources such
as 33 C.F.R. § 136.105.
11
Second, the plain language of 33 U.S.C. § 2713(e), entitled
“Procedure for claims against Fund,” makes clear that 33 C.F.R. §
136.105 is inapplicable claims made to responsible parties. That
section delegates power to the executive branch to “promulgate
.
.
.
regulations
for
the
presentation,
filing,
processing,
settlement, and adjudication of claims under this Act against the
Fund.” 33 U.S.C. § 2713(e) (emphasis added). In light of the
Supreme Court’s admonition that “[a]n agency literally has no
power to act . . . unless and until Congress confers power upon
it,” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986), it
is clear that 33 C.F.R. § 136.105 is inapplicable to claims to
responsible parties because the Coast Guard lacks any rule-making
authority concerning claims to entities other than the Fund.
Finally, the more obvious reason for requiring claimants to
substantiate their claims when presenting to the fund are absent
when claims are presented to private parties. As explained above,
when claims are presented to and a claimant accepts payment from
the Fund, the Fund is then subrogated to the claimant’s OPA
rights. In other words, the government is effectively purchasing
the claimant’s right to sue under the OPA and recouping the
expense through litigation. Before tax dollars are in this way
advanced for and invested in private OPA claims, there is an
obvious concern that the claim be vetted, supported by evidence
“deemed necessary by the Director, NPFC,” and otherwise shown
12
valid. 33 C.F.R. § 136.105. When claims are presented to private
parties, on the other hand, government funds are not so directly
at risk.
ACL’s
claim
that
district
courts
have
applied
C.F.R.
§
136.105 to claims against private parties construes those courts’
opinions far too broadly. In Johnson v. Colonial Pipeline Co.,
830
F.
Supp.
309
(E.D.
Va.
1993),
for
example,
the
Eastern
District of Virginia dismissed OPA claims after holding that the
plaintiffs had failed to present their claims to the responsible
party in accordance with section 2713. The court emphasized that
the plaintiffs failed to present their claims in two respects,
neither of which entailed application of section 136.105. First,
the court noted that the plaintiffs had not waited 90 days or
until the responsible party denied all liability as required by
section 2713(c); instead, the plaintiffs had actually filed suit
before presenting a claim. Id. at 311. Second, the court held the
plaintiffs failed to “‘present’ a claim within the meaning of”
section 2713(a) because the plaintiffs submitted only conclusory
claims
for
“losses
resulting
from
the
destruction
of
rent
property” without requesting a sum certain for any of the damages
alleged. Id. In holding that those conclusory claims not satisfy
section 2713(a), the court explained that because the purpose of
the presentment requirement is to induce settlement, claimants
must inform responsible parties with “some precision” of the
13
damages
alleged
and
amount
of
monetary
damages
sought,
as
“underscored by the regulations issued by the United States Coast
Guard pursuant to OPA setting forth the requirements for filing
such claims against the OPA Fund.” Id. (citing 57 Fed. Reg. 36314
(1992). It remains clear, however, that the Colonial Pipeline
court needed no analytical recourse to the regulations because
the plaintiffs there failed to present their claims with the
precision imposed by the statutory language of section 2713—-they
requested no sum certain. In a word, the court’s reference to
Colonial Pipeline is dicta.
Finally, ACL’s contention that enforcing no more than the
plain language of the OPA would undermine the statute’s purpose
is unpersuasive. ACL contends that failing to apply 33 C.F.R. §
136.105 would “defeat the purpose of the presentment requirement
which ‘is to enable the parties to negotiate, if possible, a
settlement
of
potential
claims
resulting
from
an
oil
spill
without having to resort to litigation.’” (Rec. Doc. 60 at 1
(citing
Colonial Pipeline Co., 830 F. Supp. At 311.)). This
argument is far too reductive. As evidenced by the
Colonial
Pipeline quote on which ACL relies, the purpose of presentment is
to
enable
settlement
“if
possible,”
and
settlement
remains
entirely possible even where private parties do not have the
power
to
settlement
demand
evidence
process.
of
their
Moreover,
where
14
choosing
a
throughout
statute’s
language
the
is
clear, “vague notions” of its purpose cannot “overcome the words
of its text regarding the specific issue under consideration.”
Mertens v. Hewitt Associates, 508 U.S. 248, 261 (1993).
Conclusion
In
presenting
their
claims
to
Worley,
the
Plaintiffs
provided all that the OPA requires of them. The vast majority of
Plaintiffs also satisfied the procedural requirement that they
wait 90 days after presenting their claims before filing. Those
that did not, have since waited several years.3 Accordingly,
IT IS ORDERED that Defendant's Motion for Summary Judgment
(Rec. Doc. No. 44) is DENIED.
New Orleans, Louisiana, this 17th day of July, 2014.
______________________________
UNITED STATES DISTRICT JUDGE
3
Given the apparent differences between processing claims against private
entities and the Fund, policymakers may want to reconsider the existing
statutory framework in this important area.
15
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