Karbel v. Comerica Bank

• Decision Date: 19 October 2001
• Docket Number: Docket No. 216324.
• Citation: 635 N.W.2d 69,247 Mich. App. 90
• Parties: Robert A. KARBEL, as Personal Representative of the Estates of George F. Drummey and Lynne S. Drummey, Deceased, Plaintiff-Appellant, v. COMERICA BANK and Marietta Frankel, as Co-Personal Representatives of the Estate of Charles A. Muer, Deceased, Defendants-Appellees, and C.A. Muer Corporation, Defendant.
• Court: Court of Appeal of Michigan — District of US

635 N.W.2d 69

247 Mich. App. 90

Robert A. KARBEL, as Personal Representative of the Estates of George F. Drummey and Lynne S. Drummey, Deceased, Plaintiff-Appellant, v. COMERICA BANK and Marietta Frankel, as Co-Personal Representatives of the Estate of Charles A. Muer, Deceased, Defendants-Appellees, and C.A. Muer Corporation, Defendant.

Docket No. 216324.

Court of Appeals of Michigan.

Submitted February 7, 2001, at Detroit.

Decided July 31, 2001, at 9:00 a.m.

Released for Publication October 19, 2001.

Seikaly & Stewart, P.C. (by Jeffrey T. Stewart), Bloomfield Hills, for the plaintiff.

Willingham & Cote, P.C. (by John L. Cote and Curtis R. Hadley) and Leonard, Kruse & Zlatopolsky (by Norbert B. Leonard), Bloomfield Hills, for the defendants.

Before BANDSTRA, C.J., and RICHARD ALLEN GRIFFIN and COLLINS, JJ.

RICHARD ALLEN GRIFFIN, J.

This action arises from the March 13, 1993, sinking of Charley's Crab, a fortyfoot sailboat owned by C.A. Muer Corporation and operated presumably by defendants' decedent, Charles A. Muer, that resulted in the deaths of all aboard, including George F. Drummey and Lynne S. Drummey, plaintiff's decedents. Plaintiff Robert A. Karbel, as personal representative of the estates of the Drummeys, commenced a wrongful death action against defendants.¹ Plaintiff appeals as of right an order of the trial court granting summary disposition in favor of defendants. We affirm.

I

In the early part of March 1993, plaintiff's decedents were vacationing with Charles Muer and his wife on the sailboat Charley's Crab. The two couples had been sailing in the waters surrounding the Bahama Islands and intended to sail to Jupiter, Florida. On March 10 and 11, 1993, the National Weather Service of the United States issued severe weather watches and warnings for the area of the sailboat's expected course. A storm hit the coast of Florida on March 13, 1993, resulting in high winds and heavy seas. The sailboat was reported as overdue on March 15, 1993, and a search was conducted, but no evidence of the sailboat or its occupants was found. It was judicially determined that the sailboat and its occupants were lost at sea on March 13, 1993, off the coast of Florida.

On December 12, 1994, plaintiff commenced a wrongful death action against defendants, alleging that Muer owed plaintiff's decedents a duty to exercise the care of a reasonably prudent mariner. Plaintiff claimed that Muer should have known the approaching storm presented an unreasonable risk of harm to plaintiff's decedents and that Muer was negligent for failing to seek safe harbor and in proceeding to Jupiter, Florida. Plaintiff contended the cause of action was governed by general maritime law or, alternatively, the Death on the High Seas Act (DOHSA), 46 U.S.C. 761 et seq., which permits suits for damages resulting from death that occurs more than one marine league (equivalent to three nautical miles) from shore as a result of wrongful act, neglect, or default.²

Following the commencement of certain proceedings in the federal district court by the estate of Charles A. Muer and the ultimate resolution of the matter by the Sixth Circuit Court of Appeals,³ during which time the state court proceedings were stayed, the case was returned to the Wayne Circuit Court. Defendants then moved for summary disposition, contending that the pivotal issue in the case was whether general maritime law or the DOHSA applied. Defendants argued that one of the essential elements of plaintiff's claims under general maritime law was that plaintiff's decedents' deaths occurred within one marine league from shore, which plaintiff had the burden of proving by a preponderance of the evidence. Defendants claimed that plaintiff could not meet this alleged burden because plaintiff's expert had definitively testified at his deposition that the sailboat sank more than one marine league from shore. Defendants further argued that plaintiff's expert's subsequent affidavits recanting his deposition testimony could not be used by plaintiff to disavow the expert's previous sworn statements and that, in any event, the information contained in these affidavits was based on conjecture and speculation. Defendants maintained the evidence showed that the sailboat sank more than one marine league from shore and, therefore, the DOHSA provided the exclusive remedy for plaintiff's decedents' deaths; consequently, plaintiff's claims under general maritime law should be dismissed because plaintiff did not meet his burden of proof and plaintiff's claim for noneconomic damages should be dismissed because the DOHSA precluded the recovery of such damages.

The trial court essentially agreed with defendants' arguments and, concluding that the DOHSA applied under the circumstances, granted defendants' motion for summary disposition. Plaintiff now appeals.

II

As a preliminary matter, we reject plaintiff's contention that the trial court erred in ruling that plaintiff had the burden of proving that the sinking occurred within three miles of shore. Plaintiff filed a three-count complaint that alleged, in part, that decedents' deaths occurred within one marine league from shore, thereby entitling plaintiff to bring a wrongful death action under general maritime law. "Each party has the burden to prove its own cause of action." League General Ins. Co. v. Catastrophic Claims Ass'n, 165 Mich.App. 278, 293, 418 N.W.2d 708 (1987), rev'd on other grounds 435 Mich. 338, 458 N.W.2d 632 (1990). Moreover, the DOHSA does not change the burden of proof with regard to tort claims. In re Marine Sulphur Queen, 460 F.2d 89, 101, n. 2 (C.A.2, 1972). Because plaintiff's cause of action was based in part on an allegation that the deaths occurred within three miles of shore, we conclude that the trial court did not err in determining that plaintiff had the burden of establishing that allegation.

Plaintiff's related argument that a wrongful death action under general maritime law is not limited to coastal waters and defendants therefore had the burden of establishing the applicability of the DOHSA is likewise meritless. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Cf. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (the DOHSA cannot be supplemented with state law remedies); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

III

The essence of plaintiff's appeal is his contention that the trial court erred in concluding there was no genuine issue of material fact regarding the location of the sailboat when it sank. We disagree.

On appeal, this Court reviews de novo a trial court's decision regarding a summary disposition motion. Henderson v. State Farm Fire & Casualty Co., 460 Mich. 348, 353, 596 N.W.2d 190 (1999). "A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim."⁴ Libralter Plastics, Inc. v. Chubb Group of Ins. Cos., 199 Mich.App. 482, 485, 502 N.W.2d 742 (1993). The standard to be used in reviewing such a motion is set forth in Quinto v. Cross & Peters Co., 451 Mich. 358, 361-363, 547 N.W.2d 314 (1996):

MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways.

"First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 U.S. at 331, 106 S.Ct. 2548 (citations omitted).]"

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v. Globe Furniture Rentals, 205 Mich. App. 418, 420, 522 N.W.2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v. J. Walter Thompson [USA, Inc.], 437 Mich. 109, 115, 469 N.W.2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v. Auto Club Ins. Ass'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993). [Emphasis added.]

See also Maiden v. Rozwood, 461 Mich. 109, 119-121, 597 N.W.2d 817 (1999); Smith v. Globe Life Ins. Co., 460 Mich. 446, 454-455, 597 N.W.2d 28 (1999).

"Circumstantial evidence may be sufficient to establish a case." Libralter, supra at 486, 502 N.W.2d 742....