TGL Marine Holdings, ULC v. Nicholson Terminal & Dock Company

Filing 167

MEMORANDUM OPINION and ORDER Denying Plaintiff's 162 MOTION for a New Trial - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TGL Marine Holdings, ULC,
Plaintiff,
v.

Case No. 13-cv-14734
Judith E. Levy
United States District Judge

Dean Marine & Excavating, Inc.,
and DME Leasing, LLC,
Defendants.
________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
A NEW TRIAL [162]
The Court held a jury trial in the above-captioned matter from
September 20, 2016 through September 27, 2016. On September 27,
2016, the jury reached a verdict in favor of defendants Dean Marine &
Excavating, Inc. and DME Leasing, LLC. (Dkt. 155.) Plaintiff TGL
Marine Holdings, ULC, has now filed this motion for a new trial. (Dkt.
162.) For the reasons set forth below, plaintiff’s motion is denied.
I.

Background
In 2009, plaintiff entered into a contract with former defendant

Nicholson Terminal & Dock Company (“Nicholson”) to dock a barge, the

Sarah Spencer, and a tugboat, the Jane Ann IV, at Nicholson’s terminal
in Ecorse, Michigan. (Dkt. 1 at 2–5.) At some point between 2009 and
November 2011, plaintiff hired defendants Dean Marine & Excavating,
Inc. (“Dean Marine & Excavating”) and DME Leasing, LLC (“DME
Leasing”) to inspect and maintain the tugboat. Defendants completed
work to prepare the Jane Ann IV for winter in November 2011, and this
was the last time defendants were on the tugboat.

At some point

during this same period, plaintiff also hired Joseph Plozai to visit the
tugboat, inspect it for signs of damage while docked, and determine
whether maintenance or repairs were needed.
Between January 25 and 28, 2013, there was a severe winter
storm, and the Jane Ann IV sank at the terminal. (Dkt. 1 at 6.) After
inspection, it was determined that several factors caused the tugboat to
sink.

First, the power cut out during the storm, and without heat,

several pipes or valves froze and cracked or burst. Second, the sea chest
valve on the tugboat was open and water flowed into the tugboat, which
then sank.
On November 15, 2013, plaintiff filed a complaint against
Nicholson Terminal & Dock Company (“Nicholson”). (Dkt. 1.) Plaintiff
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alleged Nicholson had failed to maintain and inspect the tugboat, which
caused the boat to take on water and sink during the winter storm.
Plaintiff brought six counts against Nicholson: negligence, negligent
misrepresentation, breach of contract, and three counts of breach of
express or implied warranties. (See generally id.)
On January 13, 2014, Nicholson filed a third-party complaint
against Dean Marine & Excavating and Mr. Plozai.

(Dkt. 10.)

Nicholson argued that Dean Marine & Excavating failed to close the
valves on the tugboat, which caused or contributed to the tugboat
sinking. (Id. at 3.) Nicholson also argued Mr. Plozai was negligent in
his inspection duties, including failing to supply a backup power source
and inspect the systems and valves during winter. (Id. at 4.)
On March 31, 2014, Nicholson amended its third-party complaint
to add DME Leasing as a defendant, alleging plaintiff hired Dean
Marine & Excavating and/or DME Leasing, and that one or both
entities was liable for failing to close the valves on the Jane Ann IV.
(Dkt. 22 at 3–4.)
On April 16, 2015, plaintiff filed an amended complaint, adding as
defendants Dean Marine & Excavating, DME Leasing, Benchmark
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Aviation Marine LLC (the Illinois and Michigan entities), and James
Nisbet.

(Dkt. 62.)

Plaintiff alleged defendants Dean Marine &

Excavating and DME Leasing breached the contract between the
parties and were negligent in performing maintenance and repair work
on the Jane Ann IV by, among other things, failing to close the sea chest
valve when they were last on the tugboat in November 2011, which
caused the tugboat to take on water and sink in January 2013. (Id. at
22–23.)
By June 28, 2016, plaintiff had reached a settlement with several
of the defendants, and Nicholson, Benchmark Aviation (both entities),
and Mr. Plozai were dismissed from the case.

(Dkt. 108.)

Plaintiff

maintained its lawsuit against defendants Dean Marine & Excavating
and DME Leasing, but dismissed the negligence count on July 25, 2016.
(Dkt. 121.)
On September 20, 2016, the case went to trial on the sole
remaining count of breach of contract.

A jury found in favor of

defendants on September 27, 2016, and judgment was entered for
defendants on October 3, 2016. (Dkts. 154, 155.)
On October 28, 2016, plaintiff filed this motion for a new trial.
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II.

Legal Standard
Federal Rule of Civil Procedure 59 permits a court to grant a new

trial, “after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.” “[A] new
trial is warranted when a jury has reached a seriously erroneous result
as evidenced by: (1) the verdict being against the weight of the evidence;
(2) the damages being excessive; or (3) the trial being unfair to the
moving party in some fashion, i.e., the proceedings being influenced by
prejudice or bias.” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 312
(6th Cir. 2016).
III. Analysis
Plaintiff first argues the trial was unfair because the great weight
of the evidence supported plaintiff’s argument that defendants were
liable given that defendants knew leaving a sea chest valve open could
cause the boat to fill with water and suffer damage.

Plaintiff next

argues the Court erred in permitting defense counsel to introduce
evidence of contributory negligence and in not giving a jury instruction
that ordinary negligence is foreseeable.

Finally, plaintiff argues

defense counsel committed misconduct during closing arguments by
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stating the case was really a negligence case and not a breach of
contract case, by stating Mr. Plozai was “suspect number one” with
respect to liability, and by referring to plaintiff as a “big company.”
Claim One: Great Weight of the Evidence Supported
Plaintiff
First, plaintiff argues the trial was unfair because the great
weight of the evidence supported plaintiff.

(Dkt. 162 at 19–20.)

Although a court may grant a new trial on this ground, it may not “set
aside the verdict simply because it believes that another outcome is
more justified.” Waldo v. Consumers Energy Co., 726 F.3d 802, 813 (6th
Cir. 2013). In other words, “[i]f the verdict ‘was one which the jury
reasonably could have reached,’ then a motion for a new trial should be
denied.” Id. (quoting Armisted v. State Farm Mut. Auto. Ins. Co., 675
F.3d 989, 995 (6th Cir. 2013)).
The evidence in this case was not so one-sided that it was
unreasonable for the jury to return a verdict for defendants.

Here,

defendants admitted into evidence handwritten and typed notes stating
they closed the sea chest valve. Plaintiff presented evidence that (1) the
parties had a contract requiring defendants to, among other things,
close the sea chest valve; (2) the sea chest valve was found open after
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the tugboat sank, fourteen months after defendants were last on the
tugboat; and (3) defendants’ employees were the last individuals on the
tugboat who were authorized to work with the valves. Based on these
facts, plaintiff argued the jury should conclude that defendants must
have left the sea chest valve open, thereby breaching their contract and
causing the tugboat to sink.
Considering the totality of the evidence presented at trial, it is
clear a jury could reasonably conclude—as the jury in this case did—
there was a contract between the parties but that the contract was not
breached.

Defendants took contemporaneous hand-written notes

stating they closed the valves, and a reasonable jury may have found
those notes credible. Alternatively, given that there was no written
contract between the parties, plaintiff had to establish the existence of
the contract by conduct and defendants’ notes, and a jury may have
reasonably concluded that the terms of the contract did not include
closing the sea chest valve.1

A sea chest is an area on a vessel through which a piping system can draw raw
water into the vessel. (See Dkt. 147 at 16 (Trial Tr. Sept. 20, 2016).) A sea chest
valve is the valve that opens or closes the sea chest and controls whether water may
flow into or out of the sea chest to the vessel’s other areas. Even if the valve was
left in the open position, that alone would not cause a vessel to sink. For example,
defendants’ owner testified that one of the “potential risks associated with leaving
1

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That defendants knew leaving the sea chest valve open could
cause damage (see Dkt. 162 at 7–8) does not, standing alone,
demonstrate a contract was breached. Thus, plaintiff cannot rely on
defendants’ admission to prove that the great weight of the evidence
showed defendants either (1) were required by contract to close the sea
chest valve or (2) failed to close the sea chest valve. For the Court to
hold otherwise in this case would require the Court to independently
reweigh the evidence presented at trial and usurp the function of the
jury.
Accordingly, plaintiff is not entitled to a new trial based on its
claim that the great weight of the evidence favored plaintiff.
Claim Two:
Negligence

Admission

of

Evidence

of

Contributory

Next, plaintiff argues the Court erred in allowing defendants to
introduce evidence of contributory negligence through the testimony of
Robert Ojala. (Dkt. 162 at 21–22; Dkt. 162-2 at 16–17.) Mr. Ojala
testified about, among other things, the duties of a ship keeper and good
marine practices. (Id.)
the sea chest valves on the vessel open included the risk that in the event the pipes
in the engine room developed cracks, the Jane Ann IV would take on water . . . in
sufficient quantities to sink the vessel.” (Id. at 20.)

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Under Michigan law, in a breach of contract case, contributory
negligence is not a defense to liability. JP Morgan Chase Bank, N.A. v.
First Amer. Title Ins. Co., 795 F. Supp. 2d 624, 633 (E.D. Mich. 2011)
(citing Nelson v. Nw. Sav. & Loan Ass’n, 146 Mich. App. 505, 509
(1985)). But a plaintiff is entitled to recover damages only “as may
fairly and reasonably be considered either as arising naturally—that is,
according to the usual course of things—from such breach of contract
itself, or such as may reasonably be supposed to have been in the
contemplation of both parties at the time they made the contract, as the
probable result of a breach.” Lawrence v. Will Darrah & Assocs., Inc.,
445 Mich. 1, 7 (1994) (quoting Frederick v. Hillebrand, 199 Mich. 333,
341 (1917)).
Plaintiff’s argument regarding Mr. Ojala’s testimony about good
marine practices and the role of a ship keeper is misplaced. Mr. Ojala’s
testimony, insofar as it related to damages, did not address contributory
negligence. Rather, his testimony addressed what is standard practice
or common knowledge within the industry and therefore foreseeable for
purposes of assessing damages caused by any breach of contract.

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Further, as the transcript reflects, Mr. Ojala’s testimony on these
issues was elicited, in part, to establish the terms of the contract
between the parties. As defense counsel said, Mr. Ojala’s testimony
“would also define the roles of the ship keeper versus Mr. Williams
[owner of defendant entities] in this scenario in terms of what would be
expected of Mr. Williams contractually speaking.” (Dkt. 162-2 at 17
(Trial Tr. Sept. 20, 2016).)

Thus, Mr. Ojala’s testimony did not

improperly introduce evidence of contributory negligence.
Plaintiff also objects to Mr. Ojala’s testimony, combined with
defense counsel’s statement that Mr. Plozai was “suspect number one.”
(Dkt. 162 at 23.) This objection is unavailing. In a breach of contract
case, a plaintiff must demonstrate a defendant’s conduct breached the
contract. Thus, when a party’s failure to perform an obligation is at
issue, the behavior of other individuals may be relevant if that behavior
supports a defendant’s argument that it did not fail to perform its
obligation.
In this case, plaintiff contends defendants failed to close the sea
chest valve and therefore breached the contract between the parties and
that this breach caused plaintiff’s injury.
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Consequently, it was

permissible for defendants to argue (1) they closed the valve, as shown
by their notes, and (2) if the valve was open when the boat sank, there
were other individuals with access to the tugboat who may have opened
it after defendants were last on the tugboat. See Skibs A/S Gylfe v.
Hyman-Michaels Co., 438 F.2d 803, 808 (6th Cir. 1971) (“The fact that
someone or something else in fact ‘caused’ the injury may or may not in
varying situations affect the liability of the breaching party.”).
Although Mr. Ojala’s testimony and defense counsel’s remark
about Mr. Plozai during closing statements would be relevant to a
negligence claim, this evidence is also relevant to the breach of contract
claim, as set forth above. The fact that this evidence is pertinent to
proving a negligence and contract claim does not mean that introducing
the evidence solely for the purpose of negating the breach of contract
claim was improper.
Insofar as plaintiff’s argument can be construed as an objection to
Mr. Ojala’s statements regarding which party was liable in this case,
his statements do not warrant a new trial. Immediately after Mr. Ojala
began testifying about liability, plaintiff objected, and the Court
sustained the objection, instructing defense counsel and Mr. Ojala the
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testimony was not permitted. (Dkt. 157 at 31–32 (Trial Tr. Sept. 26,
2016).)

Plaintiff was not prejudiced by this “brief testimony” and

therefore is not entitled to a new trial on this ground. See Simmons v.
Napier, 626 F. App’x 129, 138 (6th Cir. 2015) (new trial not merited
where trial court sustained objection to improper comments and
instructed jury to disregard); Cummins v. BIC USA, Inc., 727 F.3d 506,
516 (6th Cir. 2013) (new trial not merited by inflammatory statements
because counsel was “duly chastened for his indiscretion by the district
court—abruptly and directly”).
Accordingly, plaintiff is not entitled to a new trial on the ground
that defendants improperly introduced evidence of contributory
negligence.
Claim Three: Failure to Give Jury Instruction that
Ordinary Negligence Is Foreseeable
Plaintiff argues the trial was unfair because the Court did not give
plaintiff’s proposed jury instruction that ordinary negligence is always
foreseeable. (Dkt. 162 at 22–23.) Defendants proposed Special Jury
Instruction 1, and the Court accepted the following portion:
The plaintiff may adequately show damages for breach of
contract by establishing that such damages arise naturally
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from the breach of contract or were in the contemplation of
the parties at the time the contract was made.
(See Dkt. 165 at 13.)
After the Court accepted this instruction, plaintiff proposed an
additional instruction:

Ordinary Negligence Is Foreseeable
In deciding whether all, some, or none of the damages
naturally arise from the breach of contract, or, in other
words, are “foreseeable” damages, you should consider that
ordinary negligence by the plaintiff or by other third parties
is considered to be foreseeable.
(Dkt. 142 at 6.)
Plaintiff argues this instruction should have been given because
defendants improperly introduced evidence of contributory negligence.
First, as set forth above, defendants did not improperly introduce
evidence of contributory negligence.

Second, the Sixth Circuit has

warned against “[t]he inappropriate use of tort-negligence language in .
. . contract actions.” Skibs A/S Gylfe, 438 F.2d at 805 n.1, 808. Thus,
giving plaintiff’s proposed jury instruction would have been potentially
misleading to the jury and contrary to the Sixth Circuit’s instructions.
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Third, “even erroneous instructions do not require reversal, unless
the instructions are ‘confusing, misleading, and prejudicial.’” Troyer v.
T. John E. Prods., Inc., 526 F. App’x 522, 525 (6th Cir. 2013). As set
forth above, giving the proposed instruction would have made the
instructions potentially confusing, and the jury instructions as given
more “fairly and adequately submitted the issues and applicable law to
the jury.”

Id.

Instead, the Court’s use of part of Special Jury

Instruction 1 and the following instruction more accurately reflect the
law of damages in breach of contract cases:
Contract damages are intended to give the party the benefit
of the party’s bargain by awarding him a sum of money that
will, to the extent possible, put it in as good a position as it
would have been in had the contract been fully performed.
The injured party should receive those damages naturally
arising from the breach.
M. CIV. JI 142.31.
As the Court explained on the record to the parties during a jury
instruction conference, the instructions given, as set forth above,
adequately addressed plaintiff’s concerns in light of the facts of this
case. This instruction covers foreseeability where it states, “naturally
arising from the breach,” and evidence of ordinary negligence was never
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introduced at trial. Accordingly, plaintiff is not entitled to a new trial
on this ground.
Claim Four: Defense Counsel Misconduct During Closing
Statement
Finally, plaintiff argues it was prejudiced by defense counsel’s
misconduct during closing statements.

During his closing, defense

counsel said plaintiff was “trying to make what would have been a
negligence case, which [plaintiff] didn’t bring, into something it isn’t”—
a breach of contract case. (Dkt. 157 at 107 (Trial Tr. Sept. 26, 2016).)
Plaintiff claims this comment was improper. (Dkt. 162 at 24.) Plaintiff
also claims it was prejudiced by defense counsel’s reference to Mr.
Plozai as “suspect number one” with regards to who should have
foreseen the tugboat would sink, and reference to plaintiff as a “big
company” to elicit sympathy for defendants’ “self-made businesses.” (Id.
at 25–26.)
When a motion for a new trial “is based on alleged attorney
misconduct . . . the movant must make a ‘concrete showing’ that the
conduct ‘consistently permeated’ the trial such that the moving party
was unfairly prejudiced by the misconduct.” Smith, 813 F.3d at 312.
Upon such a showing, the court “then considers ‘the totality of the
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circumstances, including the nature of the comments, their frequency,
their possible relevancy to the real issues before the jury, the manner in
which the parties and the court treated the comments, the strength of
the case . . . and the verdict itself.’” Id. (quoting Balsley v. LFP, Inc.,
691 F.3d 747, 761 (2012)).
In this case, defense counsel’s comment that the case should have
been brought as a negligence claim was improper. But after defense
counsel made this argument, plaintiff objected, and the Court sustained
the objection. (Dkt. 157 at 107 (Trial Tr. Sept. 26, 2016).) And in the
jury instructions, the Court instructed the jury as follows:
Statements and arguments by the lawyers are not evidence.
The lawyers are not witnesses. What they have said in their
opening statement, closing arguments, and at other times is
intended to help you interpret the evidence, but it is not
evidence.
(Jury Instr. at 6.) Thus, plaintiff is not entitled to a new trial based this
one improper comment. See Smith, 813 F.3d at 315 (citing Innovation
Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 542 (6th Cir. 2014))
(new trial not merited where court gave curative instruction regarding
improper opening and closing statements).

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Plaintiff did not object during trial to the reference to Mr. Plozai
as “suspect number one” or to plaintiff as a “big company.” However, a
court may consider the statements in a motion for a new trial even if
counsel did not object during trial. Park W. Galleries, Inc. v. Hochman,
692 F.3d 539, 549 (6th Cir. 2012) (declining to import waiver rule to
Rule 59 motions).
These statements do not merit a new trial. The comments about
the financial value of plaintiff did not permeate the entire trial and
were not relevant to the issues before the jury or the verdict. Further,
when read in context, the comments, while likely made to appeal to the
jury’s sympathies, were not inflammatory.

And given the other

evidence presented at trial, it was reasonable for a jury to find for
defendants regardless of these comments.

The comments about Mr.

Plozai may have been relevant to determining whether defendants
breached the contract, but there was sufficient evidence presented at
trial, as set forth above, for a jury to reasonably conclude defendants did
not breach their contract.

Thus, plaintiff has not satisfied the

“heightened showing of prejudice” required to merit a new trial, and its
“assertions alone are not enough to establish a reasonable probability of
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improper influence.” Troyer, 526 F. App’x at 525. Finally, as set forth
above, the Court instructed the jury that closing arguments are not
evidence.
Considering these allegedly improper statements together and the
totality of the circumstances, plaintiff has not demonstrated there is a
“‘reasonable probability that the verdict of the jury has been influenced’
by the improper conduct.” See Smith, 813 F.3d at 315. And “[a] jury is
presumed to have followed instructions correctly,” unless plaintiff
makes a concrete showing it has not done so. Troyer, 526 F. App’x at
525 (quoting Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 794 (6th
Cir. 2002)).

Plaintiff has not offered any evidence to make such a

concrete showing here. Accordingly, plaintiff is not entitled to a new
trial based on defense counsel’s closing statement.
IV.

Conclusion

For the reasons set forth above, plaintiff’s motion for a new trial is
DENIED.
IT IS SO ORDERED.
Dated: January 24, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 24, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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