Collins v. A.B.C. Marine Towing, L.L.C. et al
ORDER AND REASONS denying 400 Motion for Reconsideration. Signed by Judge Eldon E. Fallon on 9/20/2017. (Reference: ALL CASES)(cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHELLE COLLINS, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE OF THE ESTATE *
OF MICHAEL COLLINS
A.B.C. MARINE TOWING, L.L.C. AND
BOARD OF COMMISSIONERS PORT
OF NEW ORLEANS
NO. 14-1900 REF: All Cases
SECTION: “L” (3)
ORDER AND REASONS
Before the Court is the Port’s motion to reconsider the Court’s July 7, 2017 Order and
Reasons. Lloyd’s1 opposes the motion. Having considered the parties’ arguments, submissions,
and applicable law, the Court now issues this Order and Reason.
This insurance dispute arises out of a fatal collision at the Florida Avenue Bridge, which
spans the Inner Harbor Navigational Canal in Orleans Parish, Louisiana. On or about August 12,
2014, a spud barge and attached barge crane were being transported by the M/V CORY MICHAEL
through the Canal from the Intercoastal Waterway towards the Mississippi River. The M/V CORY
MICHAEL is owned by ABC Marine. See Rec. Doc. at 5; Case No. 16-cv-11559. Boh Brothers
was the owner/operator of the barge. See id. The Board of Commissioners of the Port of New
Orleans (“Port”) was the owner/operator/custodian of the Florida Avenue Bridge. See id.
At approximately midnight on August 13, 2014, Mr. Michael Collins, decedent, was
operating the M/V CORY MICHAEL, which was pushing the spud barge and barge crane. See
For the purpose of this Order and Reasons, “Lloyd’s” refers interchangeably to Plaintiff and its possessive
id. at 5. Mr. Collins had contacted the Florida Avenue Bridge and requested sufficient clearance
to allow safe passage underneath the bridge.
Id. As the M/V CORY MICHAEL passed
underneath, the bridge was not sufficiently raised, and the mast of the crane struck the bridge
superstructure, which caused the raised crane boom to fall and crush the pilot house. Id. Mr.
Collins was killed. Id. at 6.
A variety of maritime claims and cross claims were filed, settled or addressed in this Court
as a result of the accident, and were consolidated under Case No. 14-cv-1900. The instant action,
however, remains. See generally Rec. Doc. 1; Case No. 16-cv-11559. Lloyd’s issued a Protection
and Indemnity Insurance Policy (“P&I Policy”) to ABC Marine, providing primary and excess
hull and machinery collision insurance. See id. at 2. Parties dispute whether ABC Marine listed
Boh Brothers as an additional insured under the P&I Policy. The P&I Policy contained a
subrogation clause that subrogated all rights to which the assured may have against a third person
to Lloyd’s. Id.
In the wake of the above described allision, Boh Brothers filed a claim against the Port
seeking compensation for damages sustained by the barge and a third-party complaint against
Lloyd’s in this action, seeking insurance coverage for the claims asserted against Boh Brothers
and for Boh Brothers’s own losses. Id. at 6. Lloyd’s and Boh Brothers resolved the coverage
dispute over Boh Brothers’s losses by which Lloyd’s paid Boh Brothers $320,000.00. Id. at 7.
Lloyd’s now claims that as a result of this payment, Lloyd’s was subrogated to Boh Brothers’s
rights against the Port under the blanket subrogation clause in the P&I Policy, Louisiana law, and
equity. Id. Because Lloyd’s was subrogated to Boh Brothers’s rights against the Port, Lloyd’s
claims that the Port is now liable to it in the amount of $320,000.00, plus interest, fees, and costs.
Id. at 8. Meanwhile and separately, the Port settled with Boh Brothers’s. See Rec. Doc. 385-1 at
The Port timely answered Lloyd’s complaint and raised a number of affirmative defenses,
including prescription, estoppel, laches, and the statute of limitations. Rec. Doc. 4 at 1. The Port
admitted to entering into a confidential settlement agreement with Boh Brothers and asserted it
had no knowledge of Lloyd’s alleged subrogation rights. Id. at 6. The Port noted that fault will
be determined at trial, and should act as a complete bar or mitigating factor to Lloyd’s recovery;
furthermore, the Port alleged, among other things, that Collins had the last clear chance to avoid
the accident, that the Port did not contribute to the property loss, that any loss was caused by third
parties or intervening acts, that Collins and ABC Marine violated the primary duty doctrine, and
that Lloyd’s has no right of action. Id. at 7. In addition, the Port claimed that Lloyd’s has waived
rights of subrogation, that Boh Brothers was not made whole, and that if subrogation rights exist,
they were waived when Lloyd’s failed to notify the Port. Finally, the Port plead Louisiana Civil
Code articles 1826(b) and 2644 in its defense. Id.
Lloyd’s filed a motion for partial summary judgment, which the Port opposed. Rec. Doc.
361; Rec. Doc. 389. The Port also moved for summary judgment based on three arguments. Sealed
Rec. Doc. 385. First, the Port argued that Lloyd had no subrogation rights because the subrogation
clause in the P&I Policy did not apply to Boh Brothers. Id. at 8-10. Second, the Port argued that
its settlement agreement with Boh Brothers terminated Lloyd’s subrogation rights. Id. at 10-16.
Third, the Port argued that Lloyd’s should be entitled to a reduction of the claims because it
transferred rights to another insurer (“Excess Underwriters”). Id. at 16. The Port additionally
moved to bifurcate the trial into two parts: (1) Lloyd’s subrogation claims and (2) the remaining
issues on liability. Rec. Doc. 375-1 at 3. The Court concluded that the issues surrounding Lloyd’s
subrogation rights constituted genuine issues of material fact and denied the Port’s motion for
summary judgment. See Rec. Doc. 398 at 13. The Court granted the Port’s motion to bifurcate
trial. Rec. Doc. 398 at 19.
The Port filed a motion to reconsider, asking the Court to reconsider its July 7, 2017 ruling
on the Port’s motion for summary judgment. Rec. Doc. 400. Specifically, the Port requests that
the Court reconsider two holdings. Id. at 1. First, the Port requests that the Court reconsiders its
ruling that Boh Brothers’s status as an additional insured under the P&I Policy entitles it to firstparty coverage. Id. Second, the Port requests that the Court to reconsider its ruling denying the
Port’s request to reduce Lloyd’s subrogation claim. Id.
A motion that calls into question the correctness of a judgment is typically a motion under
Federal Rule of Civil Procedure 59(e). Bodin v. Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989)
(citing Harcon Barge Co. v. D&G Boat Rentals Inc., 784 F.2d 665, 669-70 (5th Cir. 1989)). Rule
59(e) motions must be filed within 28 days of the final judgment. Fed. R. Civ. P. 59(e). When
deciding whether to grant a Rule 59(e) motion, the district court has considerable discretion.
Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993); see also Flynn v. Terrebonne Parish
School Bd., 348 F. Supp. 2d 769, 771 (E.D. La. 2004). In order to prevail on a Rule 59(e) motion
to alter or amend the judgment, courts in this district have held that the moving party must prove
that either: “(1) the motion is necessary to correct a manifest error of fact or law; (2) the movant
presents newly discovered or previously unavailable evidence, (3) the motion is necessary in order
to prevent manifest injustice; or (4) the motion is necessary is justified by an intervening change
in the controlling law.” Flynn, 348 F. Supp. 2d at 771; see also Fidelity & Deposit Co. of Md. v.
Omni Bank, No. CIV. A. 99-1167, 1999 WL 970526, at *3 (E.D. La. Oct. 21, 1999).
Additionally, a“[c]ourt’s reconsideration of a prior order is an extraordinary remedy which
should be used sparingly.” Flynn, 348 F. Supp. 2d at 771. The Fifth Circuit favors denial of Rule
59(e) motions to amend or alter. See Southern Constructors Group, Inc. v. Dynalectric Co., 2.
F.3d 606, 610-11 (5th Cir. 1993), In re Self, 172 F. Supp. 2d 813 (W.D. La. 2001). Accordingly,
“[a] Rule 59(e) motion . . . cannot be used to relitigate issues with new arguments that could and
should have been presented before the judgment was rendered.” Fidelity, 1999 WL 970526 at *3.
When a party seeks to challenge a summary judgment on the basis of evidence not introduced at
trial, the district court must balance the need to bring litigation to an end and the need to render
just decisions. Lavespere v. Niagra Mach. & Tool Works, 910 F.2d 167, 174 (5th Cir. 1990).
The Port requests the Court to reconsider its Order under both Rule 59(e) and Rule 60(b).
See Rec. Doc. 401-1 at 3-4. While Rule 59(e) motions must be filed within 28 days of the final
judgment, motions under Rule 60(b) may be filed at a later date. Fed. R. Civ. P. 59(e); 60(b).
However, this does not mean that the court or the filing party may choose which rule applies. “If
a motion falls within the scope of Rule 59(e) and is timely served . . . as that rule requires, then the
court must consider it as a Rule 59(e) motion . . . .” Harcon Barge Co., 784 F.2d at 668. Therefore,
because the Port’s motion was filed within 28 days of the final judgment, it must be viewed as a
Rule 59(e) motion.
The Port argues that the Court was incorrect in finding that Boh Brothers’s status as an
additional insured under the P&I Policy entitled it to first-party coverage. See Rec. Doc. 400-1 at
4-6. The Port does not deny that Boh Brothers is entitled to additional insurance under the P&I
Policy, but argues that the P&I Policy entitles Boh Brothers to third-party, rather than first-party,
liability coverage. Id. at 6. However, whether Boh Brothers is entitled to third-party or first-party
liability coverage is not relevant to the matter at hand. In its denial of the Port’s motion for
summary judgment, this Court concluded that “the blanket additional insured provision covered
Boh Brothers’s barge.” Rec. Doc. 398 at 16. The Port concedes this, admitting that Boh Brothers
is an additional insured under the policy. Rec. Doc. 400-1 at 6. The distinctions between the
various types of insurance coverage that the Port points to are not “necessary to prevent a manifest
error of fact or law,” do not present newly discovered evidence, are not “necessary to prevent
manifest injustice,” and do not address any changes in the controlling law.
See Flynn v.
Terrebonne Parish School Bd., 348 F. Supp. 2d at 771.
Additionally, the Port argues that Lloyd’s is not entitled to all of its subrogation claims
because it assigned subrogation rights to another insurer (“Excess Underwriters”). Rec. Doc. 4001 at 18. However, the Port has already made this argument in its motion for summary judgment
as well as its response. See Rec. Doc. 385; Rec. Doc. 397 at 11. The Port relies on In Re Self to
establish the fact that it has met its burden under Rule 59(e). Rec. Doc. 400-1 at 3; 172 F. Supp.
2d 813. In that case, the Western District of Louisiana noted that “[a] Rule 59(e) motion should
not be used to relitigate prior matters that should have been urged earlier or that simply have been
resolved to the movant’s dissatisfaction.” In re Self, 172 F. Supp. 2d at 816 (citing Clay v. Daichi
Shipping, No. Civ.A. 97-3630, 2000 WL 6269 at *1 (E.D. La. Jan. 5, 2000)). The Self Court
additionally noted that “a motion based on recycled arguments only serves to waste the resources
of the court.” 172 F. Supp. 2d at 816 (citing Louisiana v. Sprint Communications Co., 899 F.
Supp. 282, 284 (M.D. La. 1995)). In this case, the Port’s arguments go against the spirit of Rule
59(e). The Port is simply recycling old arguments and attempting to relitigate issues in the case.
Based on the foregoing reasons, accordingly,
IT IS ORDERED that the Port’s motion to reconsider (Rec. Doc. 400) is DENIED.
New Orleans, Louisiana, this 20th day of September, 2017.
ELDON E. FALLON
United States District Judge
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