Stephen Marshall Gabarick
| Decision Date | 10 August 2011 |
| Docket Number | Nos. 09–30549,09–30809.,s. 09–30549 |
| Citation | 2011 A.M.C. 1912,650 F.3d 545 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | Stephen Marshall GABARICK, on behalf of himself and all others similarly situated; et al., Plaintiffs,v.LAURIN MARITIME (AMERICA), INC.; Whitefin Shipping Company Limited, Defendants–Appellants.v.D.R.D. Towing Company, LLC, Defendant–Appellee.Austin Sicard; et al., Plaintiff,v.Laurin Maritime (America), Inc.; Whitefin Shipping Company Limited, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.In re In the Matter of the Complaint of Whitefin Shipping Company Limited, Owner and Managing Owner of M/V TINTOMARA, Laurin Maritime AB and Anglo–Atlantic Steamship Limited for Exoneration from or Limitation of Liability.Whitefin Shipping Company Limited, As owner and Managing owner of the M/V TINTOMARA, petitioning for Exoneration from or Limitation of Liability; Laurin Maritime (America) Inc., As owner and Managing owner of the M/V TINTOMARA, petitioning for Exoneration from or Limitation of Liability; Laurin Maritime AB; Anglo–Atlantic Steamship Limited, Petitioners–Appellants,v.D.R.D. Towing Company, LLC Claimant–Appellee.George C. McGee; et al., Plaintiffs,v.Laurin Maritime (America), Inc.; Whitefin Shipping Company Limited, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.Bernadette Glover, on behalf of herself and all others similarly situated, Plaintiff,v.Laurin Maritime (America), Inc.; Whitefin Shipping Company Limited, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.In re In the Matter of the Complaint of American Commercial Lines LLC, Owner of Barge DM–932 for Exoneration from or Limitation of Liability.American Commercial Lines LLC, As Owner of Barge DM–932, Praying for Exoneration from or Limitation of Liability, Petitioner–Appellant,v.Laurin Maritime AB; Whitefin Shipping Company Limited; Anglo–Atlantic Steamship Limited; Laurin Maritime (American), Inc., Movants–Appellants,v.Csilla Fekete; et al., Defendants.Jefferson Magee, Individually and on behalf of all others similarly situated; et al., Plaintiffs,v.Whitefin Shipping Company Limited; Laurin Maritime AB, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.James Roussell; et al., Plaintiffs,v.Laurin Maritime (America), Inc.; Whitefin Shipping Company Limited, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.James Joseph, on behalf of himself and all others similarly situated, Plaintiff,v.Laurin Maritime (America), Inc.; Whitefin Shipping Company Limited, Defendants–Appellants,v.D.R.D. Towing Company, LLC, Defendant–Appellee.Vincent Grillo, Individually and on behalf of all others similarly situated; et al., Plaintiffs,v.D.R.D. Towing Company, LLC, Defendant–Appellee,v.Whitefin Shipping Company Limited; Laurin Maritime AB, Defendants–Appellants.Indemnity Insurance Company of North America, Plaintiff–Appellee,v.American Commercial Lines, LLC; American Commercial Lines, Inc.; Laurin Maritime AB; Laurin Maritime (America), Inc., Defendants–Appellants,v.D.R.D. Towing Company, LLC; D.R.D. Towing Group, LLC; Waits, Emmett & Popp, LLC; Daigle, Fisse & Kessenich, Defendants–Appellees.In re In the Matter of the Complaint of D.R.D. Towing Company, Inc., Owner Pro Hac Vice or Alleged Owner Pro Hac Vice of the M/V MEL OLIVER, for Exoneration from or Limitation of Liability.D.R.D. Towing Company, Inc., as owner pro hac vice or alleged owner pro hac vice of the M/V MEL OLIVER, Petitioner–Appellee,v.Laurin Maritime AB; Whitefin Shipping Company Limited; Anglo–Atlantic Steamship Limited; Laurin Maritime (America), Inc., Claimants–Appellants.Donnetta Cheramie, individually and on behalf of all others similarly situated, Plaintiff,v.D.R.D. Towing Company, LLC, Defendant–Appellee,v.Whitefin Shipping Company Limited; Laurin Maritime AB, Defendants–Appellants.Tri Native Contractors, INC.; et al., Plaintiffs,v.D.R.D. Towing Company, LLC, Defendant–Appellee,v.Whitefin Shipping Company Limited; Laurin Maritime AB, Defendants–Appellants.In re In the Matter of the Complaint of American Commercial, LLC, Owner of M/V MEL OLIVER, for Exoneration from or Limitation of Liability.American Commercial Lines, LLC, as owner of the M/V MEL OLIVER Praying for Exoneration from or Limitation of Liability, Petitioner–Appellant,v.Laurin Maritime (America), Inc.; Laurin Maritime AB; Whitefin Shipping Co. Limited; Anglo–Atlantic Steamship Limited, Appellants,v.Jahda Muhammad, Defendant.Kevin A. Pettigrew, Plaintiff,v.D.R.D. Towing Company, L.L.C., Defendant–Appellee,v.Laurin Maritime (America), Inc.; Laurin Maritime AB; Whitefin Shipping Co. Limited; Anglo–Atlantic Steamship Limited, Movants–Appellants.Stephen Marshall Gabarick, on behalf of himself and all others similarly situated; et al., Plaintiffs,v.Laurin Maritime (America), Inc.; et al., Defendants.Indemnity Insurance Company of North America, Plaintiff–Appellee,v.D.R.D. Towing Company, L.L.C.; American Commercial Lines L.L.C.; American Commercial Lines, Inc.; Anglo–Atlantic Steamship Limited; Laurin Maritime AB; Laurin Maritime (America), Inc., Defendants–Appellants,v.Whitefin Shipping Company Limited, Appellant. |
OPINION TEXT STARTS HERE
Kenneth G. Engerrand, I (argued), Michael Aaron Varner, Brown Sims, P.C., Houston, TX, Mark Lynn Clark, Charles Gavin Clayton, IV, Brown Sims, P.C., New Orleans, LA, for Plaintiff–Appellee.David B. Lawton, Sr. Atty. (argued), Phelps Dunbar, L.L.P., New Orleans, LA, for Petitioners–Appellants.Glenn G. Goodier, Richard David Bertram, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., David B. Lawton, Sr. Atty. (argued), Phelps Dunbar, L.L.P., New Orleans, LA, John A.V. Nicoletti (argued), Nicoletti, Hornig & Sweeney, New York City, for Defendants–Appellants.John Francis Emmett, I, Randolph J. Waits, Waits, Emmett & Popp, L.L.C., New Orleans, LA, for Defendants–Appellees.Appeal from the United States District Court for the Eastern District of Louisiana.Before HIGGINBOTHAM, OWEN and HAYNES, Circuit Judges.PATRICK E. HIGGINBOTHAM, Circuit Judge:
The M/V TINTOMARA, an ocean-going tanker, collided with the barge DM–932, in the tow of the M/V MEL OLIVER, splitting the barge in half and spilling its cargo of oil into the Mississippi River. Following the filing of numerous lawsuits, including personal injury claims by the crew members and class actions by fishermen, the primary insurer filed an interpleader action, depositing its policy limits with the court.
We are asked to review allocations of interpleader funds as well as the district court's finding that the maritime insurance policy's liability limit included defense costs. We affirm the district court's decision that defense costs erode policy limits but are persuaded that its orders allocating court-held funds among claimants were tentative and produced no appealable order.
The TINTOMARA was owned and operated by Laurin Maritime (America), Inc., Laurin Maritime AB, Whitefin Shipping Co. Limited, and Anglo–Atlantic Steamship Limited (collectively, “Laurin Maritime”). American Commercial Lines, LLC owned the tug, barge, and fuel oil. D.R.D. Towing, LLC provided the crew for the tug boat pursuant to a bareboat charter.
The towing company was covered by a protection and indemnity policy issued by Indemnity Insurance Company of North America (“IINA”). This policy contained the SP–23 Form, with some modifications, and provided a $1 million limit of liability for any single occurrence, with a $15,000 deductible. After the collision, the towing company and the barge owner1 demanded that IINA defend and indemnify them. IINA responded with an interpleader action for determination of its rights and obligations under the policy. Around the time of its filing, IINA deposited $985,000 into the registry of the court, which was its full liability limit less the deductible.
The barge owner moved to dismiss under Federal Rules of Civil Procedure Rule 12(c), arguing that IINA could not avoid its obligation to defend by depositing its policy limits with the court. The district court denied the motion to dismiss the interpleader action and held that IINA had a duty to reimburse defense costs but no duty to defend.
The towing company and the barge owner then sought release of funds to recover defense costs. IINA responded that defense costs were included within the policy limits—that is, monies paid for defense costs would come from funds capped by the policy limits. The district court agreed and found that defense costs eroded the limit of liability.2 Further, the court granted the towing company's motion for release of funds and denied the barge owner's motion.
The barge owner and Laurin Maritime timely filed notices of interlocutory appeal under 28 U.S.C. § 1292(a)(3), challenging the district court's decision that defense costs eroded the liability limits and allocating interpleader funds. We have jurisdiction over interlocutory appeals from orders that “determin[e] the rights and liabilities of the parties to admiralty cases.”
Shortly after filing its notice of appeal, the barge owner sought and obtained a Rule 54(b) certificate covering the same order it had previously appealed. The parties then appealed the 54(b) judgment, which was consolidated with the interlocutory appeals.3
IINA questions this court's jurisdiction, arguing in part that the § 1292(a)(3) appeals notice divested the district court of its authority to enter a Rule 54(b) certification. We do as a matter of course examine our own jurisdiction.4
The barge owner and Laurin Maritime both appealed the order before the district court entered a Rule 54(b) final judgment. Although the filing of a notice of appeal ordinarily divests the district court of jurisdiction over those aspects of the case involved in the appeal,5 the district court retains jurisdiction to enter a Rule 54(b) certification.6 Therefore, we have jurisdiction under Rule 54(b).
However, we are unpersuaded...
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