Truehart v. Blandon, Civ. A. No. 87-0708

• Citation: 672 F. Supp. 929
• Decision Date: 23 October 1987
• Docket Number: 87-0796.,Civ. A. No. 87-0708
• Parties: Joan Robienczak TRUEHART, Wife of/and Donald Truehart v. Peter C. BLANDON, J. Robert Lee, III, the M/V BUCCANEER, Her Engines, etc., In Rem, United States Fidelity and Guaranty Company and ABC Insurance Companies. Consolidated with UNITED STATES FIDELITY & GUARANTY COMPANY v. Michael S. WILLIAMS, J. Robert Lee and the North River Insurance Company.
• Court: U.S. District Court — Eastern District of Louisiana

672 F. Supp. 929

Joan Robienczak TRUEHART, Wife of/and Donald Truehart v. Peter C. BLANDON, J. Robert Lee, III, the M/V BUCCANEER, Her Engines, etc., In Rem, United States Fidelity and Guaranty Company and ABC Insurance Companies.

Consolidated with

UNITED STATES FIDELITY & GUARANTY COMPANY v. Michael S. WILLIAMS, J. Robert Lee and the North River Insurance Company.

Civ. A. Nos. 87-0708, 87-0796.

United States District Court, E.D. Louisiana.

October 13, 1987.

As Amended October 23, 1987.

Chaffe, McCall, Phillips, Toler & Sarpy, John H. Clegg, L. Havard Scott, III, T.A., New Orleans, La., for Trueharts.

Bienvenu, Foster, Ryan & O'Bannon, Hugh M. Glenn, Jr., T.A., Franklin H. Jones, III, New Orleans, La., for J. Robert Lee, III, North River Ins. and U.S. Fire Ins. Co.

Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, Ashton R. O'Dwyer, Jr., New Orleans, La., for Peter C. Blandon and U.S. Fidelity & Guar. Co.

John D. Rawls, New Orleans, La., for Michael Williams.

AMENDING AND SUPERSEDING ORDER & REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter is before the Court on defendants' motions to dismiss and/or for summary judgment. By Minute Entry dated September 17, 1987, the Court disposed of all issues but one raised in these motions. The Court now disposes of the final issue. For the following reasons, the Court GRANTS defendants' motions to dismiss plaintiff's claim for loss of society and CERTIFIES this order under 28 U.S.C. § 1292(b).

The present episode adds yet another chapter to admiralty's long and twisted history on wrongful death. To date, apparently no other court has ruled whether surviving, nondependent parents or siblings may recover for loss of society of their deceased child/sibling who had no surviving spouse or issue, who had not been living with his parents or siblings at the time of his death and who died on a state's territorial, navigable waters. Today, this Court rules they may not.

I.

On February 23, 1986, Peter Blandon and several of his friends spent the day on Lake Pontchartrain aboard his Hatteras yacht. On the way home, Mr. Blandon turned the helm over to Robert Lee while Mr. Blandon went below deck. Soon thereafter, the boat struck the Lake Pontchartrain Causeway Bridge and sank. Victor Truehart, who had been up top on the yacht, died from the accident.

Victor's father, Donald Truehart, has sued the yacht in rem as well as Mr. Blandon, his insurer (United States Fidelity and Guaranty Company), Mr. Lee and his insurers (The North River Insurance Company and United States Fire Insurance Company). Plaintiff is suing on behalf of Victor's estate and Victor's immediate family (namely, plaintiff, his wife and their two other, surviving children)¹ and alleges that Mr. Blandon and/or Mr. Lee were negligent in Victor's wrongful death. Among the claims sought is one for loss of society.

At the time of his death, Victor was a twenty-four year old New Orleans resident who had no surviving wife or child. For several years, he had not lived with his parents, who live in Massachusetts.² He had never contributed to their financial support.³

II.

A.

A tort claim comes within the admiralty jurisdiction of federal courts, among other times, when the alleged wrong occurs on navigable waters within the United States and bears a significant relationship to a traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972); see East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, ___, 106 S.Ct. 2295, 2298, 90 L.Ed.2d 865 (1986). The "maritime nexus" requirement, or the "plus" element of the "locality-plus" test, is not restricted to commercial activity: it applies as well to pleasure boat activity, such as where two pleasure boats collide. Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674-76, 102 S.Ct. 2654, 2658-59, 73 L.Ed.2d 300 (1982). Nor is it restricted simply to collisions between boats; admiralty jurisdiction exists, for the same general reasons, where a pleasure boat strikes a stationary object in the water. See McCormick v. United States, 680 F.2d 345, 347-48 (5th Cir.1982) (action against United States where a pleasure boat struck an unmarked piling); Herbert v. Outboard Marine Corp., 638 F.Supp. 1166, 1170 (E.D.La.1986) (Carr, J.) (action against a motor manufacturer where a homemade skiff struck a log piling); cf. Foremost Insurance, 457 U.S. at 676, 102 S.Ct. at 2659 ("the smooth flow of maritime commerce is promoted when all vessel operators are subject to the same duties and liabilities").

Further, courts have long held that an action arising from a passenger's injury aboard a boat on navigable waters comes within admiralty jurisdiction. E.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550 (1959); cf. Gele v. Chevron Oil Co., 574 F.2d 243, 249-50 (5th Cir.1978) (not finding expressly that admiralty jurisdiction existed in an action by a pleasure boat passenger against the owner and the operator, but holding under general maritime law that the operator was partially liable for the passenger's injuries).

B.

With admiralty jurisdiction comes the application of substantive maritime law. East River Steamship, 476 U.S. at ___, 106 S.Ct. at 2299; see Foremost Insurance, 457 U.S. at 685, 102 S.Ct. at 2663 (Powell, J., dissenting). Absent a relevant federal statute, the general maritime law, as developed by the judiciary, applies. East River Steamship, 476 U.S. at ___, 106 S.Ct. at 2299.

C.

In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), Chief Justice Waite announced the simple, but archaic rule that in the absence of an applicable statute, no action for wrongful death would lie under general maritime law. Id. at 212-14, 7 S.Ct. at 146-47. Thereafter, courts began to allow an action for maritime wrongful death if an applicable state statute permitted recovery for such. E.g., Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210 (1921); The Hamilton, 207 U.S. 398, 405-06, 28 S.Ct. 133, 135, 52 L.Ed. 264 (1907). But the action was subject to the substantive limitations imposed by the state statute. The Tungus v. Skovgaard, 358 U.S. 588, 592-93, 79 S.Ct. 503, 506-07, 3 L.Ed.2d 524 (1959).

Meanwhile, in 1920, Congress enacted the Death on the High Seas Act (DOHSA), ch. 111, §§ 1-8, 41 Stat. 537 (codified as amended at 46 U.S.C. §§ 761-768 (1982)), and the Jones Act, ch. 250, § 33, 41 Stat. 1007 (codified as amended at 46 U.S.C. § 688 (1982)). On the one hand, DOHSA repudiated The Harrisburg rule for wrongful maritime death outside state territorial waters by providing an exclusive statutory remedy of pecuniary damages for wrongful death more than three miles from shore. 46 U.S.C. §§ 761-762; Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, ___, 106 S.Ct. 2485, 2491, 2500, 91 L.Ed.2d 174 (1986). On the other hand, the Jones Act repudiated the rule for wrongful death of a seaman by providing a remedy against his employer. 46 U.S.C. § 688; Gillespie v. United States Steel Corp., 379 U.S. 148, 154-55, 85 S.Ct. 308, 312-13, 13 L.Ed.2d 199 (1964) (holding that the Jones Act remedy against a deceased seaman's employer precludes recovery under state wrongful death statutes). Unfortunately, this mixture of state and federal law amounted to statutory chaos. See G. Gilmore & C. Black, The Law of Admiralty § 6-29, at 359 (2d ed. 1975); see also Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 457 (5th Cir.) (enumerating the incongruities and terming them an "unfair and irrational system"), rehearing en banc denied, 775 F.2d 301 (5th Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89 L.Ed.2d 318 (1986).

Subsequently, in 1970, the Supreme Court overruled The Harrisburg, disposed of the need to look to state law for possible recovery and held that a federal remedy for wrongful death existed under general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970) (reversing the dismissal of a widow's wrongful death claim based on unseaworthiness, where the applicable state statute did not recognize the claim). The Court expressly recognized that the exact parameters of this new cause of action could be defined only after further litigation. Id. at 408, 90 S.Ct. at 1792. But the Court consistently referred to the intended beneficiaries of the new cause of action as being dependents of the deceased. E.g., id. at 382, 90 S.Ct. at 1778 ("in the case of death, those closest to him the decedent — usually spouse and children — seek to recover for their total loss of one on whom they depended"); id. at 385, 90 S.Ct. at 1779 ("courts have recognized ... calculation of loss sustained by dependents or by the estate of the deceased").

In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), the Supreme Court addressed for the first time maritime wrongful death claims for loss of society. The Court held that the widow of a longshoreman killed on state territorial waters could recover damages on her (Sieracki) unseaworthiness claim for loss of support, services and society and for funeral expenses, even though her husband had recovered in his lifetime for his personal injuries. Id. at 583-91, 94 S.Ct. at 814-18; cf. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (holding that the wife of a harbor worker nonfatally injured in state waters may sue for loss of society under general maritime law). The Court defined society broadly:

The term "society" embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, attention, companionship, comfort, and protection.

Gaudet, 414 U.S. at 585, 94 S.Ct. at 815. But as it did in Moragne, the Court in Gaudet continued to refer to the...