In re Bridge Constr. Servs. of Fla., Inc.

• Decision Date: 11 August 2014
• Docket Number: 13cv3123 (JGK).,Nos. 12cv3536 (JGK),12cv6285 (JGK),s. 12cv3536 (JGK)
• Parties: In re BRIDGE CONSTRUCTION SERVICES OF FLORIDA, INC., Hughes Bros., Inc., and Tutor Perini Corp., Petitioners.
• Court: U.S. District Court — Southern District of New York

39 F.Supp.3d 373

In re BRIDGE CONSTRUCTION SERVICES OF FLORIDA, INC., Hughes Bros., Inc., and Tutor Perini Corp., Petitioners.

Nos. 12cv3536 (JGK), 12cv6285 (JGK), 13cv3123 (JGK).

United States District Court, S.D. New York.

Signed Aug. 9, 2014
Filed Aug. 11, 2014

Ordered accordingly.

[39 F.Supp.3d 377]

David Riordan Hornig, Guerric S.D.L. Russell, Nicoletti Hornig & Sweeney, New York, NY, for Plaintiffs.

Paul T. Hofmann, Dario Anthony Chinigo, Hofmann & Associates, Michael Carl Becker, Marcus, Ollman & Kommer LLP, Christopher J. DiCicco, Daniel Gerard McDermott, Marshall, Dennehey, Warner, Coleman & Goggin, New York, NY, Jamele A. Hamad, Marsh & Gaughran LLP, White Plains, NY, for Defendants.

[39 F.Supp.3d 378]

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

These actions in admiralty arose out of injuries that claimant Jose Ayala sustained after falling off a barge named “Hughes 660” on the Hudson River. Ayala contends that he fell off the barge because the barge was jolted by a tugboat. The petitioners, Bridge Construction Services of Florida, Inc. (“Bridge”), Hughes Brothers, Inc. (“Hughes”), and Tutor Perini Corp. (“Tutor Perini”), are purported owners or bareboat charterers of the vessels involved in the incident.

Claimant Jose Ayala and his wife, claimant Teresa Ayala, (collectively, “the Ayalas”) have previously commenced actions in the New York State Supreme Court against the petitioners and against Tri–State Electric Contracting, Inc. (“Tri–State”), a contractor also working on Hughes 660 at the time the incident occurred. Each of the petitioners subsequently filed a separate petition in this Court seeking exoneration or limitation of liability in connection with the incident under the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. Claimants Jose Ayala and Teresa Ayala filed claims against Bridge, Hughes, and Tri–State for negligence and violation of the New York Labor Law (NYLL).¹ The Ayalas have also asserted claims against Tutor Perini for negligence under general maritime law and the Merchant Marine Act of 1920, also known as the Jones Act, 46 U.S.C. § 30104 et seq. Tutor Perini has also asserted an indemnification claim against Bridge based on a Subcontract Agreement between the two parties.

This Court has subject matter jurisdiction under 28 U.S.C. § 1333(1) and 46 U.S.C. § 30511(a) over the exoneration and limitation of liability claims. The Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over any state law claims asserted in this action. The petitioners and Tri–State now move for summary judgment seeking exoneration, limitation of liability, or dismissal of the Ayalas' claims against the movants pursuant to Federal Rule of Civil Procedure 56. Tutor Perini also moves under Rule 56 for summary judgment on its indemnification claim against Bridge.

I.

The standard for granting summary judgment is well established. “The [C]ourt shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir.1994). “[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and “[o]nly disputes over facts that might affect the

[39 F.Supp.3d 379]

outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible....” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993).

II.

The following facts are undisputed for purposes of this motion, unless otherwise indicated.

In December 2010, the Tappan Zee Bridge on the Hudson River in New York was undergoing renovations; petitioner Tutor Perini was the general contractor of the renovation project. In connection with the project, Tutor Perini entered into a bareboat charter with petitioner Hughes and leased from Hughes several barges including Hughes 660, the barge that was later involved in the incident in this case; Hughes was the owner of these barges. ( See generally McDermott Decl. Ex. 5.) The barges were used as working platforms from which various contractors, including Tri–State, performed work on the Tappan Zee Bridge. Tutor Perini also hired petitioner Bridge, which supplied and operated two tugboats that would move the barges when needed. One of these tugboats, the “Bruce Russell,” was involved in the incident in this case. The Bruce Russell was owned by non-party Workboat Services, Inc., (Sweet Dep. at 78), and was operated by Kenny Kling, an employee of Bridge. (Kling Dep. at 22, 24–27.)

Claimant Jose Ayala was hired as a laborer by Tutor Perini to work on the project. (Ayala Dep. 18, 22–23.) Mr. Ayala was hired to replace another laborer named Carlos, who taught Ayala his duties. (Chakides Dep. at 25, 28–29.) Mr. Ayala's duties involved tying and untying the tugboat and the barges. Ayala would assist the tugboat captain Kling in moving the barges with the tugboat and tying the barges to dolphins, which are clusters of piles situated in front of bridge supports, so that Tri–State could install electrical conduits on the side of the Tappan Zee Bridge.

Kling directed Ayala's work and made decisions on site regarding the operation of the tugboat. (Kling Dep. at 123, 210.) Kling was not licensed to operate a tugboat, even though he was required to have such a license. (Kling Dep. at 27, 120.) In December, 2010, Bruce Sweet, the owner and president of Bridge, found out that Kling was not licensed but continued to allow him to operate the tugboat because he had no one else to fill that job. (Kling Dep. at 120; Sweet Dep. at 6, 23–26.)

Ayala had fallen into the river the day before the incident at issue in this case. Consequentially, Kling expressed concerns to Sweet and to Chakides, the foreman of Tutor Perini, that Ayala was not made for the job, but both Chakides and Sweet

[39 F.Supp.3d 380]

urged Kling to continue to work with Ayala. (Ayala Dep. at 47, 50; Kling Dep. at 154, 158–59, 207, 219–21.)

On the morning of December 15, 2010, Ayala and Tri–State electricians boarded the tugboat to be ferried to work barges. After the tugboat moved Hughes 660 to a new location, Ayala began the process of tying up the barge. He fell into the water during the process and was injured as a result. (Ayala Dep. at 64–69, 75, 81, 130.)

The parties dispute the events and conditions surrounding the accident. Ayala testified that he fell from the barge after the barge experienced an impact that caused him to lose his footing. (Ayala Dep. at 123, 130.) Andrew Reeves, a Tri–State electrician onboard the barge at the time, testified that he felt a “bump” hard enough that it could possibly make someone standing on the edge of the barge lose footing. (Reeves Dep. at 30–31.)

Ayala testified that he had no direct line of sight with the tugboat and could not see the tugboat at the time. (Ayala Dep. at 78). However, he described that the accident occurred while the tugboat was pushing the barge. He explained that his testimony about the collision between the two vessels was based on his observation that the water waves were pushing in the direction opposite from the direction in which the tugboat was pushing the barge. (Ayala Dep. at 123.) He also testified that, prior to the impact, Kling, who was operating the tugboat, was trying to push the barge to the bridge but could not succeed at first because the waves were tall, and that the tugboat had to come back with more speed to push the barge. Ayala testified that he was not expecting that impact and that was when he fell. (Ayala Dep. at 81.) Kling wrote a written statement two days after the incident, confirming that “[a]s I was pushing barge back to the bridge, [Ayala] fell off the north side of the barge into the water.” (Chinigo Decl. Ex. 2.)

There is testimony suggesting that Ayala was standing on a slippery surface of ice and wet steel, immediately before falling off the barge. (Ayala Dep. at 82.) Tutor Perini's post-accident report also indicated that slippery conditions were a cause of the incident. (Chinigo Decl. Ex. 15 at 2.) Brian Hughes, a representative of Hughes, testified that it was common practice to paint barges using non-skid paint. (Hughes Dep. at 43.) However, according to the on-hire survey of the barge dated November 24, 2010,...