In Re American Commercial Barge Line LLC
Filing
98
MEMORANDUM OPINION AND ORDER vacating 11 Order of Consolidation, dismissing action (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
May 24, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN THE MATTER OF THE COMPLAINT
OF AMERICAN COMMERCIAL BARGE
LINE LLC FOR EXONERATION FROM
OR LIMITATION OF LIABILITY
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and
IN THE MATTER OF THE COMPLAINT
OF KINDER MORGAN MARINE
SERVICES, LLC, AS OPERATOR AND
OWNER OF THE M/V AUSTIN STONE
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3841
(Consolidated With)
CIVIL ACTION NO. H-18-0072
MEMORANDUM OPINION AND ORDER
Christopher Brothers ("Brothers" or "Claimant") filed suit in
Harris County, Texas, against Kinder Morgan Marine Services, LLC
( "KMMS") and American Commercial Barge Line, LLC ( "ACBL") alleging
claims
related
of
to
negligence,
alleged
negligence
injuries
he
per
se,
sustained
and gross
during
negligence
two
separate
incidents while working aboard two KMMS vessels,
the Elmer Stone
and Austin Stone, in 2015 and 2016 respectively. 1
ACBL filed this
limitation of liability action on December 21,
1
2017,
seeking to
See Plaintiff's
First Amended Petition
("State Court
Petition") , Exhibit B to Kinder Morgan Marine Services, LLC' s
Response in Opposition to Claimant's Motion to Dissolve Limitation
Injunction ("KMMS's Response in Opposition to Dissolve"), Docket
Entry No. 26-2, pp. 2-3; Claimant's Motion to Bifurcate, Docket
Entry No. 23, p. 2 (stating that the 2015 accident occurred on the
Elmer Stone and that the 2016 accident occurred on the Austin
Stone). All docket entry numbers are to Civil Action No. H-17-3841
unless otherwise stated.
limit its liability for injuries Brothers sustained in the 2016
incident. 2
KMMS filed a separate limitation of liability action
seeking to limit its liability to Brothers for his injuries arising
from both the 2015 and 2016 incidents. 3
Brothers filed answers and
claims against KMMS and ACBL in the two limitation actions. 4
The
two limitation actions were consolidated on March 28, 2018. 5
KMMS
filed its answer and claims against ACBL on April 20, 2018, seeking
indemnity and contribution from ACBL for liability it may incur to
Brothers as a result of the 2016 incident. 6
On July 19, 2018, the
court entered an order staying the institution or prosecution of
Brothers'
claims
exoneration. 7
against
ACBL
On January 22,
except
2019,
in
this
action
for
the court entered an Order
staying the institution of prosecution of Brothers' claims against
KMMS except in this action for exoneration. 8
2
On January 22, 2019,
Complaint, Docket Entry No. 1.
3
See Complaint for Exoneration from or Limitation
Liability, Docket Entry No. 1 in Civil Action No. H-18-0072.
of
4
See Answer and Claims of Claimant Christopher Brothers,
Docket Entry No. 4; Answer and Claims of Claimant Christopher
Brothers, Docket Entry No. 3 in Civil Action No. H-18-0072.
5
See Order, Docket Entry No. 11.
See Answer and Claim [of Claimant Kinder
Services, LLC], Docket Entry No. 13, pp. 5-6.
6
Morgan
Marine
7
0rder Approving Stipulation for Costs and Security for Value
and Directing Issuance of Notice, and Restraining Suits, Docket
Entry No. 20, pp. 2-3.
8
0rder for Ad Interim Stipulation and Directing Issuance of
Notice and Restraining Suits, Docket Entry No. 57.
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ACBL filed a claim against KMMS for contribution and indemnity. 9
Brothers recently settled his claims against ACBL, 10 and on May 13,
2019, the court entered a Partial Final Judgment dismissing with
prejudice
Brothers'
action
against
ACBL
and
dismissing
with
prejudice ACBL's claims against KMMS. 11
Because all claims between
Brothers and ACBL have been dismissed,
the court will vacate its
Order of Consolidation and will dismiss Civil Action No. H-17-3841.
Accordingly,
(1)
The court's Order of March 28, 2018, consolidating
Civil Action No.
H-17-3841 and Civil Action
No. H-18-0072 (Docket Entry No. 11) is VACATED.
(2)
Pursuant to the Partial Final Judgment (Docket
Entry No. 96), Civil Action No. H-17-3841 will be
dismissed. Because many of the live pleadings were
filed in C.A. No. H-17-3841, the Clerk is ORDERED
to electronically file duplicate copies of all
pleadings and orders filed in C.A. No. H-17-3841 in
C.A. No. H-18-0072.
Based on the present posture of the case and the stipulations
of Brothers contained in Claimant's Renewed Motion to Dissolve
Limitation Injunction (Docket Entry No. 85) and Claimant's Reply in
Support
of
Claimant's
Renewed
Motion
to
Dissolve
Limitation
Injunction (Docket Entry No. 97) it appears that Claimant's Renewed
Motion to Dissolve Limitation Injunction
9
American Commercial Barge Line,
Morgan, Docket Entry No. 60.
(Docket Entry No.
85)
LLC's Claim Against Kinder
10
Joint Motion for Entry of Partial Final Judgment and Motion
to Dismiss, Docket Entry No. 95.
11
Partial Final Judgment, Docket Entry No. 96.
-3-
should be
granted
(Docket Entry No.
and
80)
Claimant's
Renewed
Motion
should be denied as moot.
to
Bifurcate
If the parties
agree, they will submit a proposed agreed order by May 31, 2019.
If the parties cannot agree,
KMMS may submit a
letter,
not to
exceed three double-spaced pages, by June 4, 2019, explaining its
position;
and Brothers
may
submit
letter in response by June 6,
2019.
a
three-page,
double-spaced
The court will conduct a
hearing on June 7, 2019, at 2:30p.m., in Courtroom 9-B, 9th Floor,
United States Courthouse, 515 Rusk Avenue, Houston, Texas 77002.
SIGNED at Houston, Texas, on this the 24th day of May, 2019.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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