Vandermeer v. M/V Charazz, et al.
ORDER denying 58 Motion for Summary Judgment. Signed by Chief Judge James C. Dever III on 9/25/2017. Sent to James Allen Hinds at 4425 Arendell St. Unit #609Morehead City, NC 28557 and Grand Slam Yacht & Boat Sales, LLC at 4096 Bridges Street Morehead City, NC 28557-9000 via US Mail. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
MN CHARAZZ (EX-SIP'N'TIME
NC 7055 DF) (HIN#RPGUSA13A900),
her boats, tackle, apparel, furni:ture,
engines, fishing history and peimits, and
appurtenances, etc., in rem,
GRAND SLAM YACHT & BOAT SALES )
LLC; WILTON CARLYLE GAY; and
JAMES ALLEN HINDS, in Personam,
Albert G. Vandermeer ("Vandermeer" or "plaintiff") seeks to recover damages for personal
injuries he sustained in a boating accident. See Am. Compl. [D.E. 7]. On October 2, 2016, Wilton
Carlyle Gay ("Gay" or "defendant") moved for summary judgment [D.E. 58--60]. On October 26,
2016, V andermeerresponded in opposition [D.E. 68-72]. On November 9, 2016, Gay replied [D.E.
76]. As explained below, the court denies Gay's motion for summary judgment.
On February 2, 2013, a boating accident occurred in the Bogue Sound Area of the Atlantic
Intercoastal Waterway in Carteret County, North Carolina. See Am. Compl. [D.E. 7] ~ 17; Answer
17. At the time, MN SIP'N'TIME (later MN CHARAZZ) (''the vessel") was
undergoing a sea-trial to ensure that all systems were operational as a routine part of the sale of the
vessel to a new owner.
The buyer, Dale Rasmussen
("Rasmussen"), hired Vandermeer, a marine surveyor, to conduct a survey of the vessel and, in
particular, to inspect recent repairs to the engine. Am. Compl. ~ 13; Answer ~ 13. Gay owned the
vessel and retained defendants Grand Slam Yacht and Boat Sales, LLC ("Grand Slam") and James
Hinds ("Hinds") to broker the sale. Am. Compl. ~~ 8-9; Answer~~ 8-9.
Hinds's daughter, Lois Hinds Brooks ("Brooks"), owns and operates Grand Slam. Brooks
Dep. 9:1 [D.E. 72-1] 3. According to Brooks, she is the sole owner, manager, and operator of Grand
Slam, and never employed Hinds. Brooks Dep. 10:2-4, 9:1 [D.E. 72-1] 3. According to Hinds, he
is an independent subcontractor who acted through his own corporation, Tale Dancer Charters (d/b/a
Just Add Water Boat Sales). Hinds Dep. 16:2-5 [D.E. 66-1] 2. Gay didnotknowthe details of the
relationship between Grand Slam and Hinds, but believed that Hinds was a Grand Slam employee
at all relevanttimes. See Gay Dep. 12:19-25 [D.E. 72-2] 3.
On February 2, 2013, Vandermeer, Hinds, Rasmussen, and another unidentified individual,
[D.E. 72-2] 6, were onboard the vessel conducting a pre-purchase sea-trial. Am. Compl. ~~ 17, 20.
Two prior sea-trials had been conducted, during which Vandermeer noticed fiberglass delamination
and engine problems. See Vandermeer Dep. 38:3-10 [D.E. 72-3] 10. On February2, 2013, the
parties undertook another sea-trial to ensure that the repairs had been completed correctly. [D.E. 59]
14; [D.E. 69] ~ 14. During this sea-trial, Vandermeer wanted to test the engines at a high RPM to
determine if they would operate properly under those conditions without overheating or losing oil
pressure. See Vandermeer Dep. 62:5-24 [D.E. 72-3] 16. Gay was not available to operate the vessel
during the sea-trial. Thus, pursuant to Brooks's request, Gay authorized Hinds to operate the vessel
for the sea-trial. [D.E. 71-1]; Gay Dep. 31-32 [D.E. 72-2] 8.
Hinds navigated the vessel by steering in a zig-zag manner between the markers denoting the
channel. Vandermeer Dep. 56:8-22 [D.E. 72-3] 14. Over the course of approximately thirty
minutes, Vandermeer observed the relevant instruments and successfully completed his survey. Id.
57:19 [D.E. 72-3] 15. Shortly thereafter, the boat ran hard aground, 1 decelerating from a speed
between 30 and 35 knots to stopped within a matter of seconds. ld. 58:21-25 [D.E. 72-3] 15.2
During the grounding, Vandermeer fell down the companionway into the vessel's main cabin
and sustained injuries to his "head, shoulder, arm, back[,] and other body parts." Am. Compl. ~~
Vandermeer "experienced immediate excruciating pain, light-headedness, physical
impairments[,] and numbness.'' Id. ~ 34. Vandermeer was "diagnosed with numerous permanent
physical injuries, including, ... 7 broken vertebrae, ... a broken shoulder, [and] breaks of multiple
spinous processes." Id. ~ 40. Vandermeer also has undergone "serious and life-altering surgeries
for fusion of his U-L5 spinal bodies, shoulder surgery, and other procedures." ld.
The parties dispute whether to apply North Carolina law or federal admiralty law. Gay
contends that North Carolina's common law of negligence, not federal admiralty law, applies
because: (1) Vandermeer pled "a traditional state court cause of action" by alleging negligence in
the complaint, [D.E. 76] 2; see Am. Compl.
43-46; and (2) Vandermeer never asserted a
negligence claim against Gay as owner of the vessel. See [D.E. 76] 2.
Generally, a federal court hearing a tort claim will apply the substantive tort law of the state
Co. v. Tompkins, 304 U.S. 64,78 (1938). However,
A hard grounding describes a grounding where the vessel is unable to release itself under
its own power, and requires a tow boat or some external force to free the vessel. A soft grounding
is one in which the vessel can free itself through use of its own engines, a "kedging" maneuver, or
through use of wind, waves, or tide. See Grounding, Boat U.S. Foundation, http://www.
A knot is approximately 1.15 miles per hour.
recovery for a ''tort committed on navigable water, whether brought under federal admiralty
jurisdiction, in state court under the saving-to-suitors clause, or in federal court under diversity
jurisdiction, [is] governed by admiralty law." Byrd v. Byrd, 657 F.2d 615,617 (4th Cir. 1981); see
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959). Federal courts decide'
admiralty cases under admiralty jurisdiction, according to the substantive law of admiralty. See E.
River S.S. Cotp. v. Transamerica Delaval. Inc., 476 U.S. 858, 864 (1986); Kermarec, 358 U.S. at
628; Md. Dep't of Nat. Res. v. Kellum, 51 F.3d 1220, 1223 (4th Cir. 1995). When sitting in
admiralty, a federal court may supplement federal admiralty law with state law where there is no
directly applicable admiralty law. See Ost-West-Handel Bruno Bischoff GmbH v. Project Asia Line,
Inc., 160F.3d 170, 174(4thCir.l998);Byrd,657F.2dat617.
Vandermeer's amended complaint identifies this case as an action "under the Admiralty and
Maritime Law of the United States." Am. Compl., 1. It also references Federal Rule of Civil
Procedure 9(h), which deals exclusively with admiralty and maritime claims, and 28 U.S.C. § 1333
and 46 U.S.C. § 30103 et seq., which are admiralty statutes. See id. Furthermore, the amended
complaint alleges that Vandermeer and all defendants are citizens ofNorth Carolina, which destroys
complete diversity under 28 U.S.C. § 1332. Id. ,, 2-5. The amended complaint then discusses the
facts (id. ,, 16--42) and raises a single cause of action-negligence-against all defendants. See id.
,, 43-46. The amended complaint does not reference North Carolina law. Having reviewed the
record and governing law, the court conciUdes that federal admiralty law applies.
As for Gay's argument that Vandermeer cannot hold Gay liable for his alleged negligence
as owner of the vessel because Vandermeer did not explicitly raise this legal theory in the amended
complaint, the court rejects the argument. Generally, parties may not use summary judgment as a
vehicle for asserting new claims not contained in the complaint.
Gilbert v. Deutsche Bank
Tr. Co. Ams., No. 4:09-CV-181-D, 2017 WL 1012981, at *2 n.2 (E.D.N.C. Mar. 14, 2017)
(unpublished); Hexion Specialty Chems.. Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL
4527382, at *7 (E.D.N.C. Sept. 28, 2011) (unpublished) (collecting cases).
requirements under the federal rules and relevant cases require a short and plain statement of the
claim showing that the pleader is entitled to relief and giving the defendant adequate notice of the
nature of the claims against him. See Fed. R. Civ. P. 8(a), 9(h); Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009); Bell Atl. Corp. v.Twombly. 550 U.S. 544, 562--63, 570 (2007); Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v.
Johnso!l, 521 F.3d 298,302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(per curiam); Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to
dismiss, a plaintiff must allege facts sufficient to plausibly allege a claim for relief, but need not
assert a legal theory. See Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014) (per curiam); 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1215 (3d ed. 2017); 2-8
James Wm. Moore et al., Moore's Federal Practice - Civil § 8.04 (2017); see also Hanson v.
Hoffmm 628 F.2d 42, 53 (D.C. Cir. 1980); Hostrop v. Bd. of Jr. College Dist. No. 515. Cook &
Will Ctys. & State oflll., 523 F.2d569, 581 (7thCir. 1975); Naglerv. Admiral Corp., 248 F.2d319,
325 n.9 (2d Cir. 1957). Twombly and Iqbal "concern the factual allegations a complaint must
contain," but do not require that plaintiffs assert a legal theory for relief. See City of Shelby, 135
S.Ct. at 347. In fact, when assessing a complaint's sufficiency, courts do not look to the legal
conclusions in the complaint. See, e.g., Iqbal, 556 U.S. at 677-79. Likewise, plaintiffs need not use
"any precise or magical words in [their] pleading[s]"or proper legal-theory headings to state a claim
for relief under Rule 8(a). See King v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016) (quotation
Notice pleading requires that a complaint put a defendant on notice ofthe claims against him.
Sometimes where a plaintiff does plead a legal theory, recovery on a different legal theory is barred
if the defendant had no notice of the different theory. See Ruivo v. Wells Fargo Bank. N.A., 766
F.3d 87, 91 (1st Cir. 2014) (holding that pleading a state statutory action did not give notice of
common-lawfraudclaim); Mariev. Am. Red Cross, 771 F.3d344, 365 (6thCir. 2014) (holding that
pleading Title VII and 42 U.S.C. § 1983 claims did not give notice of a claim under Bivens). Gay
invokes this line of cases and argues that Vandermeer's amended complaint alleges only a direct
negligence claim, and not a negligence claim against Gay as the owner of the vessel. See [D.E. 76]
Vandermeer was not obligated to plead a specific legal theory, and the court rejects Gay's
argument that Vandermeer may not recover against him for negligence as owner of the vessel.3
Vandermeer's amended complaint provides sufficient notice to Gay about the nature of the
negligence action against him and the reliefVandermeer seeks. See Am. Compl. ~~ 43-46. Gay had
the opportunity to use the discovery tools available in the Federal Ru1es of Civil Procedure to obtain
the details of why and how Vandermeer contends that he was negligent. Thus, the court rejects
Gay's argument that th~ amended complaint bars Vandermeer from pursuing a negligence claim
against Gay as the owner of the vessel.
Summary judgment is appropriate when, after reviewing the record as a whole, no genuine "
issue of material fact exists and the moving party is entitled to judgment as a matter oflaw. Fed. R.
Admiralty precedent recognizes that a shipowner owes a duty of reasonable care towards
those individuals lawfully aboard the vesse( who are not members of the crew. See, ~' Fed.
Marine Terminals. Jnc.v. Burnside Shipping Co., 394 U.S. 404,415-17 (1969); Kermarec, 358 U.S.
at 630; The Steamboat New World v. King, 57 U.S. 469,474-75 (1854); Bubla v. Bradshaw, 795
F.2d 349, 353 (4th Cir. 1986).
Civ. P. 56(a); Anderson v. Libeey Lobby. Inc., 477 U.S. 242, 247-48 (1986). The party seekiilg
summary judgment initially must.demonstrate the absence of a genuine issue of material fact or the
absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the
allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with
specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing ,
amotion for summary judgment should determine whether a genuine issue ofmaterial fact exists for
trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence
and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007).
In the introductory paragraph of Vandermeer's response to Gay's motion for summary
judgment, Vandermeer states that defendants' liability is so clear ''under bedrock principles of
admiralty law'' that "summary judgment should be entered in favor of Plaintiff pursuant to [Rule]
56(f)(1)." [D.E. 68] .1. Vandermeer also supplements his statement of material facts under Local
Rule 56.1 (a)(2) with additional facts concerning liability. [D.E. 69] 11.
To the extent Vandermeer seriously requests partial summary judgment, the court denies the
request. The Federal Rules of Civil Procedure "govern the procedure in all civil actions and
proceedings in the United States district courts." Fed. R. Civ. P. 1. These rules govern the types of
pleadings, motions, and other papers that may be submitted to the court for review. Under these
rules, "a requestforacourtordermustbemade by motion." Fed. R. Civ. P. 7(b)(1). Vandermeer's
memorandum is not a motion, and the court denies his request for partial summary judgment.
Moreover, even if Vandermeer made a proper motion, genuine issues of material fact preclude
summary judgment for Vandermeer.
As for Gay's motion for summary judgment, genuine issues of material fact exist on
numerous issues concerning Gay's alleged negligence. These issue include (1) the nature of the
relationship between Hinds and Gay; (2) the precise location and circumstances of the grounding;
(3) whether Gay is liable as the vessel's owner; and (4) whether Hinds was a pilot. Thus, the court
denies Gay's motion for summary judgment.
In sum, the court DENIES Gay's motion for summary judgment [D.E. 58].
SO ORDERED. This 2-S' day of September 2017.
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