In the Matter of: Marquette Transportation Company, LLC

Filing 229

ORDER & REASONS that the 196 Motion for Partial Summary Judgment filed by Marquette Transportation Company, LLC is hereby DENIED. Signed by Judge Eldon E. Fallon on 9/12/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF:
MARQUETTE TRANSPORTATION COMPANY

CIVIL ACTION
NO. 15-2316

THIS DOCUMENT RELATES TO: ALL CASES

SECTION "L" (3)

ORDER & REASONS
Before the Court is Defendant’s Motion for Partial Summary Judgment. R. Doc. 196.
Plaintiff responds in opposition. R. Doc. 202. Having reviewed the parties’ briefs and the
applicable law, the Court now issues this Order & Reasons.
I. BACKGROUND
These consolidated cases involve two accidents that occurred on two separate dates on the
Mississippi River. First, on September 22, 2014, the M/V BLAKE DENTON, operated by
Defendant Marquette Transportation Company struck the Barge CP-12, chartered to Plaintiff
Kostmayer, and pushed the CP-12 into Barge OU-701, also owned by Kostmayer. R. Doc. 1-1 at
1. Both of Plaintiff’s barges were tied to a dock in the Mississippi River in East Baton Rouge
Parish when Barge CP-12 was struck by the M/V BLAKE DENTON, which was traveling
southbound with approximately thirty-five barges in tow. R. Doc. 1-1 at 1–2. Barge CP-12 was
pushed into Barge OU-701, and both barges detached from the dock and floated freely downriver
until a tow boat pushed them to the east bank. R. Doc. 1-1 at 2. Plaintiff alleges that the barges
sustained substantial damages as a result of the impact and required extensive repairs. R. Doc. 11 at 2.

Plaintiff Kostmayer invokes the Court’s jurisdiction pursuant to 28 U.S.C. §§ 1332 and
1333, and asserts multiple negligence theories based on the actions of the captain and crew
manning the Defendant’s vessel: (1) inattentiveness to their duties, (2) failing to see what they
should have seen, (3) failing to maintain control of the towed barges, and (4) any other acts of
negligence. Rec. Doc. 1-1 at 2. Plaintiff seeks to recover property damages, including the cost of
repairs, loss of use, and loss of profits. R. Doc. 1-1 at 2.
Defendant denies all allegations of negligence and asserts a number of affirmative
defenses. R. Doc. 5 at 3. First, Defendant avers that the Plaintiff’s barges and the dock were
obstructions to navigation. R. Doc. 5 at 3. Defendant also alleges that the damages sustained by
Plaintiff’s barges resulted from unrelated incidents or from normal wear and tear. R. Doc. 5 at 3.
Defendant alleges that Kostmayer’s damages were caused solely or in part by its own fault or
negligence, including failure to maintain a proper lookout, violations of the U.S. Inland Navigation
Rules and other regulations, and failure to properly moor the barges without obstructing the
channel. R. Doc. 5 at 4.
A second and unrelated accident between Kostmayer and Marquette occurred on December
29, 2014. In this accident, Marquette was operating the M/V MYRA ECKSTEIN near the Terminal
234 Dock Facility on the Mississippi River in Baton Rouge, LA. According to Kostmayer’s
Complaint in state Court, the M/V MYRA ECKSTEIN “contacted” two other crane barges
operated by Kostmayer. At the time of the accident, the cranes were spudded down, or anchored,
in the Mississippi River, in relation to work Kostmayer was completing on a mooring dolphin
attached to the CEMUS dock near the 190 bridge in Baton Rouge. Plaintiffs James Ainsworth
(“Ainsworth”) and Michael Bankston (“Bankston”) were employed by Kostmayer as welders,
while Joseph Solomon (“Solomon”) was employed by Ameri-Force and assigned to work for

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Kostmayer. At the time of the accident, Ainsworth and Bankston were eating lunch on the MS
DARLENE, while Solomon was working on the MS ASHLEY, the two crane barges involved in
the accident. Solomon avers that when the M/V MYRA ECKSTEIN allided with the barge where
he was working, he sustained personal injuries. Solomon seeks various damages, including loss of
earnings and earning capacity, pain and suffering, and mental anguish and emotional trauma.
Similarly, Bankston and Ainsworth allege they were working on the MS DARLENE crane barge
and the time of the accident, and sustained personal injuries as a result of the allision.
The present motion deals with Interested Builders Risk Underwriter’s remaining claim
against Marquette. This claim seeks to recover insurance payments made to rebuild the mooring
dolphin structure that was damaged.
II. PRESENT MOTIONS
a. Defendant Marquette’s Motion for Partial Summary Judgment (R. Doc. 196)
Defendant Marquette requests that the Court grant partial summary judgment on the
claims of Plaintiff Interested Builders Risk Underwriters (“IBRU”). R. Doc. 196-1 at 1.
Defendant argues that IBRU does not have the right to recover insurance payments made to
rebuild Plaintiff Kostmayer’s dolphin structure because at the time of the damage to the dolphin
it was not a permitted structure. R. Doc. 196-1 at 1.
Defendant alleges that in March 2013, the COE authorized Plaintiff Kostmayer to repair a
dock and construct a dolphin “roughly 200 feet upriver from the main dock structure.” R. Doc.
196-1 at 7. However, Defendant argues, when Kostmayer constructed the dolphin it used plans
that had not been submitted to the COE and placed the dolphin 285 feet upriver. R. Doc. 196-1 at
7. Defendant argues that this deviation from the permitted plan requires a request to amend the
permit and that Plaintiff’s permit was not amended. R. Doc. 196-1 at 8-9. Defendant cites Yaist

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v. United States, 17 Cl. Ct. 246 (1989), for the proposition that a party claiming a loss for an
unpermitted structure does not have a compensable interest in that structure. R. Doc. 196-1 at 4.
Therefore, Defendant argues, Plaintiffs Kostmayer and IBRU have no compensable interest in
the dolphin. R. Doc. 196-1 at 9.
b. Plaintiff Interested Builders Risk Underwriters’ Response (R. Doc. 202)
Plaintiff Interested Builders Risk Underwriters responds arguing that Defendant’s motion
should be denied because the Army Corps has not determined that the dolphin was in an
unpermitted location or that it was a navigation hazard. R. Doc. 202 at 2. Plaintiff IBRU states
that an investigation remains ongoing at Army Corps of Engineers and no determination has
been made at this time. R. Doc. 202 at 2. Plaintiff also argues that even if the dolphin was
constructed outside the permitted area, it remains up to the US Coast Guard to determine if it was
a navigation hazard. R. Doc. 202 at 3.
Plaintiff contends that to lose its compensable property rights in the dolphin would
require lawful condemnation of the property, which has not occurred. R. Doc. 202 at 4. Plaintiff
argues that the Yaist case cited by Defendant is not relevant because in Yaist the property in
dispute had been taken by eminent domain rather than damaged by a non-government actor. R.
Doc. 202 at 5. Plaintiff argues that Yaist holds that a party does not have a compensable interest
in property that was not permitted and then was condemned by eminent domain. R. Doc. 202 at
5. Finally, Plaintiff argues that even if the dolphin was unpermitted, this would merely be a
factor used to assess comparative fault rather than preclude the claim entirely. R. Doc. 202 at 6.
c. Defendant Marquette’s Reply (R. Doc. 205)
Defendant replies arguing, first, that the Court can determine that even a permitted
structure was a hazard to navigation and therefore, limit Defendant’s liability. R. Doc. 205-1 at 5.

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Second, Defendant argues that this Court does not need to wait for the Army Corps to determine
whether the dolphin was unpermitted. R. Doc. 205-1 at 2.
III. LAW & ANALYSIS
a. Summary Judgment Standard (Fed. R. Civ. P. 56)
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving for
summary judgment bears the initial burden of demonstrating the basis for summary judgment and
identifying those portions of the record, discovery, and any affidavits supporting the conclusion
that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden,
then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the
existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th
Cir. 1994); see also Anderson, 477 U.S. at 249-50. In ruling on a summary judgment motion, a
court may not resolve credibility issues or weigh evidence. See Int'l Shortstop, Inc. v. Rally's Inc.,
939 F.2d 1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence, review the

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facts and draw any appropriate inferences based on the evidence in the light most favorable to the
party opposing summary judgment. See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th
Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
b. Discussion
Here, the parties dispute whether the mooring dolphin was within the permit and whether
it was a navigation hazard. The question of whether the dolphin was within the permit is
undoubtedly a question of fact. Because it is unclear whether the shift in location of the dolphin
85 feet up the river changes the plan enough for it to be unpermitted and it is also unclear
whether 85 feet up the river, rather than out into the river, made the dolphin more hazardous to
navigation than it would have been under the plan, this issue remains a disputed material fact.
Furthermore, the Army Corps of Engineers is currently investigating this fact question. Having
reviewed the relevant law and facts, the Court finds that the issue remains a disputed material
fact. The questions surrounding whether the dolphin was within the permit, whether it was a
navigational hazard, and relative fault based on these facts remain questions for the jury.
Therefore, summary judgment on this issue is precluded.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion for Partial Summary
Judgment filed by Marquette Transportation Company, LLC is hereby DENIED.

New Orleans, Louisiana, this 12 day of September, 2017.

_________________________________
UNITED STATES DISTRICT JUDGE

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