Collins v. Cottrell Contracting Corp., 7:08-CV-96-FL

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Citation: 733 F.Supp.2d 690
• Decision Date: 05 August 2010
• Docket Number: No. 7:08-CV-96-FL,7:08-CV-96-FL
• Parties: Rodney COLLINS and Leah Collins, Plaintiffs, v. COTTRELL CONTRACTING CORPORATION, Defendant. In the Matter of the Complaint of Cottrell Contracting Corporation, Owner of the Dredge Marion, For Exoneration from or Limitation of Liability.

733 F.Supp.2d 690

Rodney COLLINS and Leah Collins, Plaintiffs,
v.
COTTRELL CONTRACTING CORPORATION, Defendant.
In the Matter of the Complaint of Cottrell Contracting Corporation, Owner of the Dredge Marion, For Exoneration from or Limitation of Liability.

No. 7:08-CV-96-FL.

United States District Court,
E.D. North Carolina,
Southern Division.

Aug. 5, 2010.

733 F.Supp.2d 692

Henry T. Dart, Attorneys at Law, Covington, LA, Matthew J. Dixon, Matthew J. Dixon, PLLC, Elizabethtown, NC, for Plaintiffs.

John E. Holloway, Troutman Sanders, LLP, Norfolk, VA, D. Kyle Deak, Troutman Sanders, LLP, Raleigh, NC, for Defendant.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

This matter comes before the court in these consolidated cases on the motion of Rodney and Leah Collins ("plaintiffs") to increase the value of and security for the limitation fund (DE # 29), the motion of Cottrell Contracting Corporation ("defendant") for partial summary judgment (DE # 40), and the parties' motions in limine to limit or exclude testimony of certain expert

733 F.Supp.2d 693

witnesses (DE # 39, 42, 64). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge David W. Daniel entered a memorandum and recommendation ("M & R") wherein he recommends that the court deny plaintiffs' motion to increase the limitation fund, grant in part and deny in part defendant's motion for partial summary judgment, grant in part and deny in part plaintiffs' motion in limine, and deny defendant's motions in limine. The parties have timely filed objections to the M & R, and have likewise responded to one another's objections. In this posture, the issues raised are ripe for ruling.

STATEMENT OF THE CASE

On June 11, 2008, plaintiffs filed suit pursuant to the Jones Act, 46 U.S.C.App. § 688, against defendant, the owner of the Dredge Marion and plaintiff Rodney Collins' employer (No. 7:08-CV-96-FL). According to the complaint, plaintiff Rodney Collins was injured in the course of his employment and while in the service of the Marion as a result of the negligence of defendant and/or the unseaworthiness of his vessel. On November 13, 2008, defendant filed a complaint pursuant to 46 U.S.C. §§ 30501-30512 for exoneration from or limitation of liability (No. 7:08-CV-190-FL). On November 24, 2008, the court accepted defendant's Ad Interim Stipulation for Costs in the amount of $1,500,000.00 for the value of the Marion. On December 30, 2008, the court consolidated the two actions on the joint motion of the parties.

On October 9, 2009, plaintiffs moved for partial summary judgment as to the limitation action, seeking to increase the value of the limitation fund and to increase the amount of security posted by defendant. Plaintiffs seek to increase these amount by $2,263,300.00, which is the value of a dredging contract between defendant and the United States Army Corps of Engineers, arguing that this contract constituted "pending freight" as that term is used in 46 U.S.C. § 30505(a). Also on October 9, 2009, plaintiffs filed a motion in limine asking the court to strike portions of the expert disclosures of Mr. Decator Harrell Austin and to preclude him from testifying to the same at trial.

On October 13, 2009, defendant filed a motion for partial summary judgment as to the Jones Act action. Defendant contends that there are no genuine issues of material fact regarding certain of plaintiff's claims and allegations in support of certain other claims. Also on October 13, 2009, defendant filed a motion in limine to limit or exclude the testimony of three of plaintiffs' experts: Dr. Pedro Steven Buarque de Macedo, Mr. Edward G. Webster, and Mr. Stephen Harned. On April 15, 2010, defendant moved to further limit or exclude the testimony of Mr. Harned.

On June 4, 2010, the magistrate judge filed his M & R. First, the magistrate recommended denying plaintiff's motion for summary judgment because the dredging contract was not pending freight. Second, the magistrate judge would hold that plaintiffs' loss of consortium claim is not available under the Jones Act, but that defendant's remaining arguments in its motion for summary judgment are improper in form. Third, the magistrate judge recommends striking in part the proposed testimony of defendant's expert. Finally, the magistrate judge recommends denying defendant's motion in limine, finding no fault in plaintiffs' experts' proposed testimony.

Plaintiffs and defendant filed their respective objections to the magistrate judge's M & R on June 18, 2010. Plaintiffs responded to defendant's objection on July 2, 2010, and defendant responded to plaintiff's objection on July 5, 2010.

733 F.Supp.2d 694

STATEMENT OF UNDISPUTED FACTS

The M & R contains a thorough recitation of the relevant facts, to which the parties do not object. After careful review, the court adopts the magistrate judge's undisputed factual findings as its own, which are set forth below for the benefit of the reader:

On November 8, 2006, the Army Corps of Engineers awarded Cottrell a contract to perform maintenance dredging of four channels in North Carolina: Hatteras Inlet, Wainwright Slough, Atlantic Harbor, and Taylor's Creek at Beaufort (the "Contract"). The final Contract price was $2,363,300, $100,000 of which was payment for land-based dike improvements on Carrot Island. Cottrell utilized the non-self-propelled Dredge Marion, a cutter/suction dredge, which was just over 100 feet long, to perform the dredging operations under the Contract. From January through March 2007, the Marion was used to dredge the Hatteras Inlet and Wainwright Slough channels. For most of April, the Marion dredged the channel at Atlantic Harbor, pumping the spoils, pursuant to the Contract, to an area called "New Dump Island." The Contract required Cottrell to bring a bulldozer to New Dump Island to reshape or spread out the material dumped there, and to later remove the bulldozer. By approximately the end of April 2007, Cottrell had completed the Atlantic Harbor dredging project under the Contract. Collins was injured on May 6, 2007. At that time, Cottrell had completed three of the four dredging projects specified under the Contract, and only the smallest dredging project remained at Taylor's Creek.

On May 6, 2007, Cottrell and the Marion crew were not executing dredging operations. Because the dredging of the Atlantic Harbor was completed, the majority of the Marion's crew had been sent home. Rodney Collins, the long-time chief engineer, and Captain Terry Evans, who had also been a captain for several years, were still working on the Marion. Captain Evans was notified on Saturday, May 5, 2007, by the Army Corps of Engineers that Cottrell needed to remove the bulldozer from New Dump Island before any birds nested on it (which would mean the bulldozer would have to stay until the next year). Captain Evans called in a two crew members to assist, only one of whom arrived the next morning to help. Thus, Captain Evans, Rodney Collins, and crewman David Gore were aboard the Marion Sunday morning, May 6, 2007, for the bulldozer removal. On Captain Evans' orders, David Gore proceeded in a tender boat, pushing Cottrell's derrick (onto which they would load the bulldozer) as close to New Dump Island as he could get it. Captain Evans directed Collins to drive him in the skiff (which was a johnboat that was tied alongside the Marion ) to the shallows close to the island. Captain Evans went ashore, and he eventually successfully placed the bulldozer on the derrick. After getting ashore, Captain Evans sent Collins back by himself in the skiff to the Marion. No one was aboard the Marion when Collins was attempting to tie up the skiff to it. Collins was injured when he fell overboard as he tried to tie up the skiff to the Marion so that he could board the Marion.

There is heated factual dispute, including expert testimony on both sides, as to the exact weather conditions, water activity, and the events surrounding Collins' attempt to tie up the skiff to the dredge. There is no dispute, however, that the task at hand on the day in question-removing the bulldozer-was "demobilization" activity under the Contract.

733 F.Supp.2d 695

Mobilization and demobilization, generally, were included in the Contract price as a "lump sum price," sixty percent of which was paid upon mobilization at the work site and the balance of which was paid upon completion of demobilization.... [T]he Contract price for mobilization and demobilization generally was $875,000. Thus, there was no separate mobilization and demobilization price for the Atlantic Harbor phase of the Contract performance. The four phases of dredging, however, did each have a line item contract price for the amount of material removed.

Sometime after May 6, 2007, the Marion was towed to Taylor's Creek and dredged the channel there. The Taylor's Creek dredging completed the last phase of the Contract. Cottrell finished the Contract on June 13, 2007. Thus, it took six months for Cottrell to complete the work required under Contract.

(M & R 704-05 (internal citations and some quotation marks omitted)).

DISCUSSION

A. Motions for Summary Judgment

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no issue for trial unless...