In re Complaint of Gilfix
Decision Date | 06 July 2021 |
Docket Number | Civil Action No. 21-CV-10330 |
Parties | In the Matter of the Complaint of BARRY GILFIX, Owner of the 2016 10' 10" Sea-Doo with Hull Identification No. YDV09542B616 For Exoneration From or Limitation of Liability, Plaintiff. |
Court | U.S. District Court — Eastern District of Michigan |
HON. BERNARD A. FRIEDMAN
This matter is presently before the Court on plaintiff's "motion to dismiss Counts I, II, and IV of defendant/counter-claimants' counterclaim . . . and motion to strike portions of the affidavits of Terence Mousel, Jr. and Rachel Gill" (ECF No. 18). Counter-claimants have responded and plaintiff has replied. Pursuant to E.D. Mich. 7.1(f)(2), the Court shall decide these motions without a hearing.
This is an admiralty action in which plaintiff seeks exoneration from or limitation of liability pursuant to the Shipowners' Limitation of Liability Act, 46 U.S.C. § 30501, et seq., regarding a fatal boating accident that occurred on Lake St. Clair on August 8, 2020. According to the complaint, plaintiff is the owner of the vessel at issue, a Sea-Doo personal water craft. Compl. ¶¶ 3-4. Plaintiff further alleges:
Id. ¶¶ 6-9. The complaint also alleges:
14. Any injuries, losses and damages that occurred to any persons or property as a result of the Occurrence, including any injuries, losses and damages that any person and/or the Estates and heirs of Robert Cottingham, Jr. allege they may have sustained as a result of the Occurrence, and for which claims may be made, were occasioned and incurred without the privity and knowledge of GILFIX in that (a) they were occasioned by the navigation of the vessels involved, neither of which GILFIX was piloting and GILFIX was not aboard either vessel; (b) in advance of the Occurrence, GILFIX was unaware, and had no reason to anticipate, that a navigational error by anyone might occur; (c) the person piloting the Vessel at the time of the collision was fully qualified to operate such a vessel; and (d) GILFIX's conduct was in all respects prudent and did not improperly put into motion or proximately cause the Occurrence.
For relief, plaintiff asks that the Court
adjudge and find:
Countercl. ¶¶ 19-21, 24-29, 32, 34-35, 49.
The counterclaim asserts four counts. Count I ("negligence pursuant to federal law") claims that plaintiff was negligent "when he required, encouraged, and/or allowed Cottingham to operate the jet ski on August 8, 2020 after a day of providing Cottingham with alcoholic beverages." Id. ¶ 63. Count II ("negligence pursuant to Michigan law") asserts a negligence claim on the same grounds under state law. Count III ("wrongful death pursuant to M.C.L. § 600.2922(1)") asserts a claim under the Michigan wrongful death statute. And Count IV ("declaratory action") seeks a declaration that plaintiff "has wrongfully invoked the Limitation of Liability Act, 46 USC § 30505 et seq."
Plaintiff seeks dismissal of Counts I and II on the grounds that counter-claimants' claim under Michigan's wrongful death statute is their sole remedy. He seeks dismissal of Count IV on the grounds that the requested declaration serves no purpose and is improperly pled. Additionally, plaintiff asks the Court to strike some of the averments in Mousel Jr.'s and Gill's affidavits on the grounds that they are not based on personal knowledge.
Count I ("negligence pursuant to federal law"), while perhaps inartfully worded, is not subject to dismissal. Plaintiff concedes that general maritime law recognizes a claim for negligently-caused death. See Pl.'s Reply at 2 (). This comports with the Supreme Court's statement in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 811-12 (2001), that "[t]he general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury." Plaintiff's argument is that Count I fails because it asserts a claim for "negligence, not wrongful death." Pl.'s Reply at 2 (emphasis in original). But the allegations in the "statement of facts" section of the counterclaim, as well as those within Count I itself, make clear that the claim being asserted is that plaintiff's negligence caused Cottingham's death. See, e.g., Countercl. ¶ 65 (). This suffices to state a claim for negligently caused death, the type of claim recognized in Garris. Further, a wrongful death claim under general maritime law may be pursued along with a wrongful death claim under state law. See Garris; see also Yamaha Motor Corp v. Calhoun, 516 U.S. 199, 202 (1996) ( ).
While the Court shall deny plaintiff's motion to dismiss Count I, plaintiff correctly argues that a wrongful death action under general maritime law may be brought only by the appointed representative of the decedent's estate. See Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 734 (5th Cir. 1978), on reh'g, 606 F.2d 524 (5th Cir. 1979); Matter of Alpha VesselCo, LLC, No. 6:19-CV-01194, 2021 WL 1084403, at *2 (W.D. La. Mar. 19, 2021); Matter of Am. River Transp, Co., LLC, No. CV 18-2186, 2019 WL 2847702, at *7 (E.D. La. July 2, 2019). Therefore, this claim may be prosecuted only by Sherry Zunk, the personal representative of Cottingham's estate.
Count II asserts a claim for "negligence pursuant to Michigan law." In Michigan, "the wrongful death act provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death." Jenkins v. Patel, 684 N.W.2d 346, 350 (Mich. 2004). Counter-claimants acknowledge this, but argue that their Count...
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