Glover v. Hryniewich

Decision Date28 September 2022
Docket NumberCivil Action 2:17CV109 (RCY)
PartiesDAVID I. GLOVER and TIMOTHY B. PRIDEMORE, Plaintiffs, v. RICHARD J. HRYNIEWICH, and THE CITY OF NORFOLK, VIRGINIA, Defendants and Third-Party Plaintiffs, v. SAFE BOATS INTERNATIONAL, LLC, and WILLARD MARINE, INC., Third-Party Defendants.
CourtU.S. District Court — Eastern District of Virginia

Roderick C. Young, United States District Judge.

This matter is before the Court on Third-Party Defendant Safe Boats International, LLC's Motion for Summary Judgment (ECF No. 221) on all counts of the Third-Party Complaints filed against it (ECF Nos. 27, 29). The motion has been briefed, and the Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons stated herein, the Court will DENY Safe Boats' Motion for Summary Judgment.


In 2007, the City of Norfolk (“the City”) purchased a vessel, Marine 5, from Safe Boats International, LLC (Safe Boats) to use in maritime security operations. (Def. Hryniewich's Third-Party Compl. Safe Boats ¶¶ 5-8, ECF No. 27.) In 2014, the City contracted with Willard Marine, Inc. (Willard Marine) to replace Marine 5's twin 250 horsepower engines with twin 300 horsepower engines and to replace the steering system so that the vessel could reach maximum speed. (Def. City's Third-Party Compl. Willard Marine ¶¶ 5-8, ECF No. 28; Def. Hryniewich's Third-Party Compl. Safe Boats ¶ 20, ECF No. 27.)[2] The contract with Willard Marine (“Contract”) also called for Willard Marine to conduct a sea trial “with [a] NHP representative” (id. ¶¶ 9, 14), with the promise that if the City's employees were satisfied with the vessel's performance, they would accept delivery of the vessel on behalf of the City. (Id. ¶14.) A sea trial is a specialized tactical endeavor to test the capabilities of a vessel. It is meant to be performed in a systematic, progressive fashion. (Mem. Supp. Mot. Summ. J. ¶ 18, ECF No. 222.)

Willard Marine delivered the vessel for a sea trial on March 21, 2014. Five individuals were present for the sea trial: Officer Hryniewich, Sergeant Pagan, and Lieutenant Evans on behalf of the City, and Plaintiffs Glover and Pridemore on behalf of Willard Marine. (Pl. Compl. ¶¶ 7-8, ECF No. 1; Mem. Supp. Mot. Summ. J. ¶ 16.) At all relevant times, Officer Hryniewich remained employed by the City as an officer with the Norfolk Harbor Patrol, and remained on duty and in uniform throughout the sea trial. (Id. ¶ 4.) Before the sea trial, representatives from the City informed Willard Marine that it had selected Hryniewich to operate Marine 5 during the sea trial. (Glover Dep. 53:1-11, ECF No. 91-3.)[3]

After the sea trial commenced, Officer Hryniewich observed what he believed to be a steering and handling issue with the vessel and expressed those concerns to others aboard. (Pl. Compl. ¶¶ 10-11.) He described the steering as “very tight” and expressed concern that the handing of the vessel was different from his usual experience. Glover responded that the boat would feel different because Willard Marine had increased the horsepower and repaired the steering systems. (Glover Dep. 61:7-62:20.) After receiving this reassurance from Glover, Officer Hryniewich did not check the engines or steering system further. (Id.) Despite his concerns and his observation that Marine 5 “turns very hard” (City Opp. Summ. J. 9, ECF No. 231), Officer Hryniewich proceeded to push the vessel to a high speed and made a hard turn. (Pl. Compl. ¶ 11.) Prior to making this sharp turn at a high speed, the Officer warned others aboard to “hold on” and asked Pridemore, who was expressing concern, to move inside the boat for safety reasons. (Pl. Compl. ¶ 11; Answers ¶ 11, ECF Nos. 18, 19; Pl. Opp. Mot. Summ. J. 5, ECF No. 227.) The vessel then capsized and all those on board were thrown into the water. (Pl. Compl. ¶ 12.) Plaintiffs Glover and Pridemore sustained serious injuries and were transported to local hospitals. (Id.)


Plaintiffs Glover and Pridemore filed separate complaints on February 23, 2017. (ECF No. 1; Pl. Compl., Pridemore v. Hryniewich et al., No. 2:17cv110 (E.D. Va. Feb. 23, 2017), ECF No. 1.)

The City and Office Hryniewich filed Third-Party Complaints against both Willard Marine and Safe Boats on October 31, 2017. (ECF Nos. 26, 27, 28, 29.) The Third-Party Complaints against Safe Boats sought indemnity and contribution from Safe Boats in the event that Defendants were found liable to Plaintiffs. (ECF Nos. 27, 29.) Defendants' Third-Party Complaints against Safe Boats alleged claims for general maritime products liability, strict products liability, breach of express warranty, breach of the implied warranty of merchantability, and, in the alternative, breach of implied fitness for a particular purpose. (ECF Nos. 27, 29.) Safe Boats filed an Answer to each Third-Party Complaint on January 2, 2018, denying liability on all counts. (ECF Nos. 50, 51.)

On April 1, 2021, the case was reassigned to the undersigned. Safe Boats filed a Motion for Summary Judgment on September 28, 2018. (ECF No. 99.) The Motion was originally taken under advisement on November 21, 2019. (ECF No. 150.) On April 1, 2021, noting that the Motion was filed in 2018 and that “circumstances may have changed significantly since then,” the Court dismissed the Motion without prejudice. (ECF No. 206.) Safe Boats filed a second Motion for Summary Judgment on October 18, 2021 (ECF No. 221). Responses were filed (ECF Nos. 227, 231), and replies were filed (ECF Nos. 228, 233). Magistrate Judge Lawrence Leonard issued an opinion granting Safe Boats' Motion to Exclude Third-Party Plaintiffs' Expert Rik van Hemmen on March 3, 2022. (ECF No. 261.) Thereafter, Safe Boats filed a Supplemental Brief in support of its Motion for Summary Judgment (ECF No. 270), and the City filed a Response (ECF No. 271) to the Supplemental Brief.


The Federal Rules of Civil Procedure provide the standard for this matter. Rule 56(a) provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must determine “whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). The evidence must be viewed “in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).

Although the court must draw all reasonable inferences in favor of the nonmoving party, in order to defeat a motion for summary judgment, that nonmovant cannot rely on “mere belief of conjecture, or the allegations and denials contained in his pleadings.” Doyle v. Sentry Ins., 877 F.Supp. 1002, 1005 (E.D. Va. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).


The City and Officer Hryniewich each seek indemnity and contribution, should they be found liable, from Safe Boats based on five counts: Maritime Law Products Liability (Count I), Strict Products Liability (Count II), Breach of Express Warranty (Count III), Breach of Implied Warranty of Merchantability (Count IV), and in the alternative to Count IV, Breach of Implied Fitness for a Particular Purpose (Count V).[5] (ECF Nos. 27, 29.) Responding to each of these counts, Safe Boats alleges that Officer Hryniewich operated Marine 5 as a borrowed servant of Willard Marine at the time of the sea trial, thus rendering Hryniewich a fellow servant of the Plaintiffs and barring tort suit through the Longshore and Harbor Workers Compensation Act. As a result, according to Safe Boats, there is no tort liability from which Defendants and Third-Party Plaintiffs can seek indemnity. (Mem. Supp. Mot. Summ. J. 20.) Further, Safe Boats argues that, under the active-passive negligence theory of indemnity, the City cannot seek indemnity from Safe Boats if the City itself is an active tortfeasor. (Id. 24.) Safe Boats maintains that the City's selection of Officer Hryniewich to operate the vessel during the sea trial despite his relative inexperience with sea trials and the vessel in question constitutes a form of active negligence. (Id. 26.)

A. Longshore and Harbor Workers Compensation Act

The Longshore and Harbor Workers Compensation Act (hereinafter “LHWCA”), 33 U.S.C. § 905, serves as a compensation scheme for persons killed or injured in the course of, and arising out of, maritime employment. Where applicable, the LHWCA operates in lieu of tort damages, and grants the employer immunity from tort liability regardless of the seriousness of fault. Although Section 905(a) provides that the LHWCA is the exclusive means of achieving compensation from an employer, Section 905(b) specifically provides injured employees the right to sue a vessel for negligence. In order to trigger the exclusivity provision of Section 905(b), the injured worker (1) must be employed to provide shipbuilding, repairing, or breaking services, and (2) the defendant must be his employer and the owner, owner pro hac vice, agent, operator, or charterer of the vessel or a fellow employee of that employer. 1 Thomas Schoenbaum, Admiralty & Maritime Law § 7:14 (6th ed. 2021). See also Price v. Atlantic Ro-Ro Carriers, Inc., 262 F.Supp.3d 289, 292 (D. Md. 2017); Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 96 (1994).


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