National-Ben Franklin Ins. Co., Ill. v. Levernier
| Decision Date | 28 March 2003 |
| Docket Number | No. 01-C-1166.,01-C-1166. |
| Citation | 280 F.Supp.2d 851 |
| Parties | NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF ILLINOIS, Plaintiff, v. Edward LEVERNIER, Lawrence Hoffman, Northern Insurance Company of New York, Darlene Rickert, Kenneth Pingel, Michael Pingel, Troy Plass and General Casualty Company of Illinois, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Barbara A. O'Brien, Attorney at Law, Borgelt Powell Peterson & Frauen, Milwaukee.
Eric S. Darling, Attorney at Law, Schmidt Darling & Erwin, Milwaukee.
Thomas R. Schrimpf, Attorney at Law, Hinshaw & Culbertson, Milwaukee.
Terry E. Nilles, Beth J. Kushner, Attorneys at Law, von Briesen Purtell & Roper, Milwaukee.
James E. Mercante, Attorney at Law, Rubin Florella Friedman, New York, NY.
Michael S. Siddall, Attorney at Law, Herrling Clark Hartzheim & Siddall, Appleton.
John T. Schomisch, Jr., Attorney at Law, Dilley & Schomisch, Appleton.
Michael R. McCanna, Jarrod J. Papendorf, Attorneys at Law, McCanna Konz Dudas Kewley & Papendorf, Appleton.
Thomas L. Williams, Attorney at Law, Gabert Williams & Farb, Appleton.
Steven L. Wilson, Attorney at Law, Wilson Law Office, Appleton.
Robert F. Johnson, Attorney at Law, Cook & Franke, Milwaukee.
DECISION AND ORDER
The plaintiff, National Ben-Franklin Insurance Company of Illinois (National Ben-Franklin), filed this action seeking a declaration that it does not owe a duty of indemnification or defense to its insured, defendant Edward Levernier. In the alternative, the plaintiff seeks a declaration that its policy is excess to that of defendants Northern Insurance Company of New York (Northern Insurance) and General Casualty Company of Illinois (General Casualty).
This action is based on admiralty and maritime jurisdiction. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1333. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D.Wis.).
On July 31, 2002, plaintiff National Ben-Franklin filed a motion for summary judgment. (Docket # 99). On the same date, defendant Northern Insurance moved for summary judgment. On August 1, 2002, defendant General Casualty filed its motion for summary judgment. These motions are fully briefed and will be addressed herein.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The burden of showing the needlessness of a trial-(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law-is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Therefore, all inferences are taken in the light most favorable to the nonmoving party. Matter of Wade, 969 F.2d 241, 245 (7th Cir.1992).
On June 25, 1999, a collision occurred between watercraft owned by Lawrence Hoffmann and Troy Plass. On December 14, 2001, Darlene Rickert, individually and as personal representative of the Estate of Mark Rickert, brought suit against Edward Levernier and others for injuries and damages arising out of the collision. This suit is styled Rickert v. Northern Insurance Company of New York, et al., Outagamie County Case No. 01-CV-1410. . Michael Pingel and Kenneth Pingel filed intervenor complaints in Outagamie County Case No. 01-CV-1410, alleging injuries and damages as a result of the collision. On June 17, 2002, Troy Plass and his wife, Anne Plass, filed suit against Levernier and others for injuries and damages arising out of the collision. This suit is styled Plass v. Northern Insurance Company of New York, et al., Outagamie County Case No. 02-CV-707. (Fleming Aff., Exh. D).
During the fall of 1998, defendant Lawrence Hoffman (Hoffman) purchased a 37-foot Sea Ray yacht. Hoffman's boat had twin inboard engines with in excess of 50 horsepower.
On June 25, 1999, defendant Edward Levernier (Levernier), Hoffman and four other passengers set out on Hoffman's boat for a trip on Lake Michigan from Racine, Wisconsin to Sturgeon Bay, Wisconsin. Hoffman's boat was a 37-foot Sea Ray 370 DA. Levernier arrived at the Racine marina about 10:00 a.m. and the group left aboard Hoffman's boat between 10:30 and 11:00 a.m. Levernier did not discuss the route or fuel supply with Hoffman, did not pay attention to the fuel gauges that day and did not discuss any planned stops along the way with Hoffman.
The day before, on June 24, 1999, Hoffman charted the course from Racine to Sturgeon Bay. He entered the course to Sturgeon Bay on the boat's GPS, by setting waypoints with four legs for manual turns. Those legs included the mouth of the Racine Harbor to Wind Point, Wind Point to the right of the Sturgeon Bay channel entrance, Sturgeon Bay channel entrance to the break wall of Sturgeon Bay and the break wall to the harbor at Sturgeon Bay. Levernier did not discuss the planned route with Hoffman.
Once the boat was underway on June 25, 1999, Hoffman engaged the automatic pilot on the boat just outside of the Racine harbor. In order to engage the automatic pilot on his boat, Hoffman had to enter waypoints obtained from an electronic chart and push the go button. Once the automatic pilot is engaged, the boat's steering wheel is ineffective until the automatic pilot is disengaged. Hoffman set the boat's speed. Hoffman had to set the engine speed manually and there were two throttles on his boat. Hoffman had set his boat's automatic pilot so that manual input to turn the boat was required. When the boat reached the first waypoint at Wind Point outside of Racine, the automatic pilot beeped and Hoffman manually turned the boat.
The only discussion Hoffman had with Levernier about the operation of the boat was at the beginning of the cruise, when Levernier asked him how to turn off the automatic pilot. Hoffman also set the engine speed and testified that the operator of the boat has the responsibility to make sure that everything is "secure, safe." (Affidavit of Barbara A. O'Brien [O'Brien Aff.], ¶ 3, Exh. B, Deposition of Lawrence Hoffman [Hoffman Dep.] at 49, 133). As operator, according to Hoffman, it is necessary to put on the blowers, turn on the ignition and check the weather. Hoffman set the automatic pilot. However, he set it in such a way that any turns that were necessary would have to be done manually.
Hoffman's boat had radar which would pick up objects within a certain distance of his boat. Hoffman normally set his radar for a distance of three miles. On June 25, 1999, Hoffman chose not to use radar. The radar most likely would have picked any other boat that was within a three-mile radius. Levernier did not know how to operate the radar.
Hoffman's boat traveled uneventfully for the first four hours. During those four hours, Hoffman was the operator of the boat. As originally projected, the trip's waypoints were Wind Point, Sturgeon Bay channel entrance and the break wall at Sturgeon Bay. Hoffman became concerned about the boat's fuel supply at about 2:25 or 2:30 p.m. when the boat was near Sheboygan, Wisconsin. Prior to that time, Hoffman could not recall if he had left the helm of the boat or asked anyone to watch over the boat for him.
Because of his concern about fuel, Hoffman decided to head for Algoma, Wisconsin. He changed his boat's course, turned off the automatic pilot to change the waypoint to Algoma, and then re-engaged the automatic pilot. To his knowledge, no one else on the boat was aware of this course change. Hoffman turned the boat about eight degrees. No one else on the boat knew that the boat was now headed for Algoma.
For about two to two and one half hours before the change in the waypoint to Algoma, Levernier had been up on the front bow of the boat, sleeping and resting. A few minutes after the change in direction of the boat, Levernier came off the bow and came up to where Hoffman was located at the helm and sat down. There may have been discussion at that point between Hoffman and Levernier concerning the fuel supply. Hoffman told Levernier that they were going to Algoma or Kewaunee, Wisconsin.
Shortly after Levernier joined him, Hoffman left the helm to get a book showing the harbors of Lake Michigan. Hoffman did not alert Levernier to the fact that he was going to get the book. Without saying anything to Levernier, Hoffman stood up and passed in front of Levernier to go to the stairs leading below deck. Levernier had to stand up to let Hoffman pass. To retrieve the book, Hoffman was gone for only a "moment or so." (O'Brien Aff., Exh. B. Hoffman Dep. at 81).
After returning to the helm with the book,...
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