In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability

Filing 268

ORDER Granting RSM International, Inc.'s 193 Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on March 4, 2015. (NM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C.F. BEAN
§
L.L.C., AS OWNER PRO HAC
§
VICE AND OPERATOR, AND BEAN §
MERIDIAN L.C.C., AS THE RECORD §
OWNER, OF THE BARGE BEAN 20, §
OFFICIAL NO. 627225, PRAYING
§
FOR EXONERATION FROM OR
§
LIMITATION OF LIABILITY
§

CIVIL NO.: 1:13cv77-HSO-RHW

CONSOLIDATED WITH
JERRIE P. BARHANOVICH,
§
EXECUTRIX AND PERSONAL
§
REPRESENTATIVE OF THE
§
ESTATE OF MARK BARHANOVICH, §
DECEASED
§
§
v.
§
§
C.F. BEAN LLC AND ARCHER
§
WESTERN CONTRACTORS, LLC
§
§
v.
§
§
BOB’S MACHINE SHOP, INC.,
§
SUZUKI MOTOR CORP., SUZUKI
§
MOTOR OF AMERICA, INC.
§

PLAINTIFF

CIVIL NO. 1:13cv84-LG-JMR
DEFENDANTS/
THIRD PARTY PLAINTIFFS

THIRD PARTY DEFENDANTS

ORDER GRANTING RSM INTERNATIONAL, INC.’S [193] MOTION FOR
SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Summary Judgment [193] filed by
Third Party Defendant RSM International, Inc. (“RSM”). Plaintiff Jerrie P.
Barhanovich, executrix and personal representative of the Estate of Mark
Barhanovich, deceased (“Plaintiff”), has filed a Response [198] claiming that RSM
“is entitled to summary judgment.” Third Party Plaintiffs CF Bean LLC, Bean
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Meridian LLC, and Archer Western, LLC (collectively “Third Party Plaintiffs”),
have advised the Court that they do not oppose RSM’s Motion [193]. Having
considered the Motion [193], the record, and relevant legal authorities, the Court is
of the opinion that the Motion [193] should be granted for the reasons set forth
below, and the claims against RSM should be dismissed with prejudice.
This consolidated action arises from fatal injuries suffered by Mark
Barhanovich on September 16, 2012, when the recreational vessel he was operating
in the navigable waters of the Mississippi Sound struck a submerged object causing
the vessel’s outboard motor to separate from its mounts, flip onto the vessel deck,
and strike Mr. Barhanovich. Br. in Supp. of Mot. for Summ. J. 4 [194]. At the time
of the accident, “a Bob’s Machine Shop ‘Flats Jac’ hydraulic jack plate was
positioned and affixed between the transom of the Barhanovich vessel and the
mounting arms of the vessel’s . . . outboard motor.” Id. at 3. RSM identifies itself as
the “successor in interest to BMS International, Inc., d/b/a ‘Bob’s Machine Shop’ the
actual manufacturer and seller of the jack plate . . . .” Id. at 4. The Third Party
Plaintiffs have filed a third party complaint advancing claims against RSM based
on the jack plate which RSM reads as being “in the nature of maritime products
liability, couched in terms of strict liability in tort, or in negligence under the
Restatement of Torts 2d, Section 402A, or alternatively under the Mississippi
Products Liability Act, § 11-1-63 of the Mississippi Code Annotated.” Id. at 2.
RSM contends that it is entitled to judgment as a matter of law as to the
claims asserted by the Third Party Plaintiffs because there is no evidence “that

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there was a defect in the jack plate and that such defect caused or contributed to
the detachment of the . . . outboard motor body from its mounts . . . .” Id. at 5.1
RSM has submitted the report of Gerald O. Davis, P.E., an expert in the field of
mechanical engineering and applied materials. Id. at 15. Mr. Davis opines, within a
reasonable degree of engineering probability, that there was no defect in the design,
materials, or manufacture of the jack plate affixed to the Barhanovich vessel
transom and that the findings of the engineers retained by the Third Party
Plaintiffs actually support his assessment that the jack plate was not defective.
Davis Aff. ¶ 4 [193-1, 2 of 14]; Davis Report 2, 3 [193-1, 6-7 of 14]. RSM contends
that because there is no expert evidence or opinion that the jack plate was defective,
the third party claims against RSM fail as a matter of law. Id. at 18-20 (citing
Sullivan v. Rowan Companies, Inc., 952 F.2d 141, 146-49 (5th Cir. 1992) (noting
that general maritime law requires expert testimony to support a claim of defective
design, materials, manufacturing, or warnings) and Cothren v. Baxter Healthcare
Corp., 798 F. Supp. 2d 779, 782 (S.D. Miss. 2011) (stating that “[e]xpert testimony is
required” to establish claims under the Mississippi Products Liability Act). No other
party to this dispute has presented any competent summary judgment evidence
tending to create a material fact question for trial on this point.
Having examined the evidence and legal authorities offered by RSM in
support of its Motion [193], the Court finds that RSM has carried its initial burden
under Rule 56. There being no facts, legal argument, or competent summary
RSM also “requests an express judicial determination of ‘no just reason for delay’ in entry of
a final judgment, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.” This request has
not been opposed by any party.
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judgment evidence offered in opposition to RSM’s Motion [193] which would create a
genuine issue of material fact as to whether the jack plate was defective, the Court
is of the opinion that RSM is entitled to judgment as a matter of law as to all claims
advanced by the Third Party Plaintiffs. Additionally, after due consideration of the
matters raised in RSM’s Motion [193], it is the Court’s opinion that although this
Order adjudicates the rights and liabilities of fewer than all the parties, there is no
just reason for delay and a final judgment should be entered in favor of RSM
pursuant to Rule 54(b) as to all claims asserted against RSM.
IT IS, THEREFORE, ORDERED AND ADJUDGED that RSM
International Inc.’s Motion for Summary Judgment [193] is GRANTED and all
claims asserted against RSM International, Inc., are DISMISSED WITH
PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that pursuant to Rule
54(b), there is no just reason for delay and a final judgment should be entered in
favor of RSM International, Inc., as to all claims asserted against RSM
International, Inc.
SO ORDERED this the 4th day of March, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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