Nguyen v. Am. Commercial Lines, L. L.C.

• Decision Date: 08 October 2015
• Docket Number: No. 15–30070.,15–30070.
• Citation: 805 F.3d 134
• Parties: Chuc NGUYEN; Leo Ancalade; Matthew Andrews; George Arnsen; Mark Arnold; et al, Plaintiffs–Appellees v. AMERICAN COMMERCIAL LINES, L.L.C., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

805 F.3d 134

Chuc NGUYEN; Leo Ancalade; Matthew Andrews; George Arnsen; Mark Arnold; et al, Plaintiffs–Appellees

v.AMERICAN COMMERCIAL LINES, L.L.C., Defendant–Appellant.

No. 15–30070.

United States Court of Appeals, Fifth Circuit.

Oct. 8, 2015.

Revised Nov. 13, 2015.

Wayne W. Yuspeh, Metairie, LA, for Plaintiffs–Appellees.

Glenn G. Goodier, Richard David Bertram, Esq., Jones Walker LLP, New Orleans, LA, John A.V. Nicoletti, Esq., Terry Lee Stoltz, Esq., Nicoletti, Hornig & Sweeney, New York, N.Y., for Defendant–Appellant.

Before KING, DENNIS, and OWEN, Circuit Judges.

Opinion

PER CURIAM:

Following a collision, a barge owned by American Commercial Lines, L.L.C., discharged oil into the Mississippi River. A number of fishermen and others dependent on fishing filed claims under the Oil Pollution Act of 1990 against the owner of the barge for damages arising from the spill. The district court denied the motion of American Commercial Lines for summary judgment but certified to this court the two controlling issues of law concerning the requirements for proceeding under the Act. For the following reasons, we AFFIRM in part and REVERSE in part the order denying summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 23, 2008, a collision occurred on the Mississippi River in the Port of New Orleans between the M/V TINTOMARA and Barge DM–932, causing oil to discharge from the barge into the river. See Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 551–52 (5th Cir.2014) (discussing the same oil spill at issue in this case). Following the discharge, the oil traveled downriver and entered various bodies of water, including estuaries within Plaquemines Parish, Louisiana. The United States Coast Guard designated Barge DM–932 as the source of the discharge and named American Commercial Lines, L.L.C., (“ACL”), the owner of the barge, as the responsible party under the Oil Pollution Act of 1990 (“OPA”). ACL hired Worley Catastrophe Response, LLC, (“Worley”) as its third-party claims administrator to handle any claims against ACL under the OPA for damages arising from the oil spill.

In June 2009, Michael A. Fenasci, an attorney representing commercial fishermen and others affected by the oil spill (the “claimants”), began submitting claims to Worley on form claim letters signed only by Fenasci—not the individual claimants. Attached to the form letters were copies of the individual fishermen's applicable licenses and selected copies of dock receipts for seafood sold to wholesalers. Each letter alleged that oil entered and contaminated the fishing grounds of the individual fisherman and that the oil disrupted fishing operations for approximately 25 days. The letters also stated that as a result of the pollution discharge, the fishermen suffered losses in earning capacity and in the subsistence use of harvested sea life. Each letter included a specific “evaluation of damages” that constituted the fisherman's demand under the OPA. Each evaluation included the claimant's gross loss of earning capacity, which was calculated by multiplying the gross loss of earnings per day by the total number of lost fishing days and then reduced by 5% to account for overhead costs. All of the letters also alleged a loss of $60 per day in subsistence use of natural resources and $200 for hull cleaning.¹

On July 23, 2009, Worley sent a letter to Fenasci stating that it had reviewed each of the 224 claims submitted thus far. Worley also requested additional documentation from each claimant. The documentation included the following: (1) a copy of the claimant's federal income tax return for 2007 and 2008; (2) a record of daily catch or sales data for the five months surrounding the spill; (3) an explanation, with support, for the number of lost fishing days; (4) a calculation demonstrating how the lost income per day was determined from the supporting materials provided by each claimant; (5) an explanation of how the $60 in subsistence loss was calculated; (6) the invoice for the hull cleaning; and (7) a map indicating where the claimant normally fished and normally stored his vessel. Fenasci responded to Worley's request by sending tax returns for the individual claimants, which had increased from 224 to 247. On December 2, 2009, Worley informed Fenasci that some of the submitted tax returns were missing information and reiterated its request for the other information it had previously demanded. On June 4, 2010, Wayne W. Yuspeh, the attorney currently representing the claimants, responded that both his office and Fenasci's office had previously forwarded a number of claims concerning the oil spill to Worley. He also stated that if no response with a good faith effort to settle the previously submitted claims was received within ten days, then a lawsuit would be filed. On July 22, 2011, Yuspeh sent notices of new and amended individual claims, and on July 25, 2011, the claimants filed this action.

On November 9, 2012, the district court granted ACL's motion to dismiss under Federal Rule of Civil Procedure 12(c) and entered judgment accordingly on December 7, 2012. The court found that, by not providing Worley with the information it requested, the claimants had failed to comply with the OPA's requirement that claims first be properly presented to the responsible party. The court also explained that compliance with this presentment requirement was a mandatory condition precedent to commencing an action in court. However, the district court vacated its judgment on September 23, 2013, and directed ACL to file a motion for summary judgment. On July 18, 2014, the district court denied ACL's motion for summary judgment, stating that “[t]he Plaintiffs clearly satisfied the substantive presentment requirements imposed by the language of the OPA itself.” On December 17, 2014, the district court denied ACL's motion for reconsideration but granted ACL's motion for certification of an interlocutory appeal under 28 U.S.C. § 1292(b).

The district court certified two issues of law for appeal: (1) “whether [the claimants] met proper presentment requirements when they failed to personally sign the claim forms ... and did not provide certain specific requested items of evidence in support of their claims”; and (2) “whether the requirement of a 90-day waiting period after making proper presentment before starting litigation against the responsible party ... coupled with the three-year limitation period for commencing an action against a responsible party ... means that the [claimants] had to make a proper presentment at least 90 days before the expiration of the limitation period.” The first issue is relevant to all claimants in this case, as none of them personally signed their claims or provided Worley with all of the documentation it requested. The second issue relates only to those claimants who first presented their claims to Worley on or after July 22, 2011, since these claimants failed to wait 90 days after first presenting their claims to file suit in order to avoid having their claims time barred by the period of limitations. This court granted leave to appeal from the interlocutory order of the district court on January 27, 2015.

II. STANDARD OF REVIEW

A district court may certify an interlocutory appeal from an order if the court is “of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “Under 28 U.S.C. § 1292(b), a grant or denial of summary judgment is reviewed de novo, applying the same standard as the district court.” Castellanos–Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 397 (5th Cir.2010) (en banc) (citing First Am. Bank v. First Am. Transp. Title Ins. Co., 585 F.3d 833, 836–37 (5th Cir.2009) ). However, because review is only granted on “the issue[s] of law certified for appeal,” Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir.2005), this court's “review only extends to controlling questions of law,” Castellanos–Contreras, 622 F.3d at 397 (citing Tanks, 417 F.3d at 461 ). Summary judgment is proper “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). This court must construe “all facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir.2005) ).

III. PRESENTMENT UNDER THE OPA

Congress passed the OPA, 33 U.S.C. § 2701 et seq. , after the Exxon Valdez oil spill “to streamline federal law so as to provide quick and efficient cleanup of oil spills, compensate victims of such spills, and internalize the costs of spills within the petroleum industry.” Rice v. Harken Expl. Co., 250 F.3d 264, 266 (5th Cir.2001) (citing S.Rep. No. 101–94 (1989), as reprinted in 1990 U.S.C.C.A.N. 722, 723). To facilitate prompt cleanup and compensation, the OPA requires the “Coast Guard [to] identif[y] ‘responsible part[ies]’ who must pay for oil spill cleanup in the first instance.” United States v. Am. Commercial Lines, LLC, 759 F.3d 420, 422 (5th Cir.2014) (quoting 33 U.S.C. § 2701(32) ). “Responsible parties are strictly liable for cleanup costs and damages and [are] first in line to pay [for] ... damages that may arise under OPA.”² Id. at 422 n.2 (citing 33 U.S.C. § 2702(a) ). Individuals and entities harmed by an oil spill may file claims against the responsible party for damages. However, “to promote settlement and avoid litigation,” Johnson v. Colonial Pipeline Co., 830 F.Supp. 309, 310 (E.D.Va.1993), the OPA establishes specific procedures which claimants must follow. Specifically, the statute provides:

(a) Presentment

Except as provided in subsection (b) of this section, all claims for removal costs or damages shall be

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