Certain Underwriters At Lloyd's of London v. Brewer Ferry Point Marina, Inc.

603 F.Supp.3d 22

CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON, Plaintiff,

v.BREWER FERRY POINT MARINA, INC. et al., Defendants.

CIVIL CASE NO. 3:20-CV-01099 (JCH)

United States District Court, D. Connecticut.

Signed May 20, 2022

Michael S. Lynch, Lynch Law Group, LLC, Shelton, CT, for Plaintiff.

Timothy J. Nast, Tisdale & Nast Law Offices, LLC, New York, NY, for Defendants SHM Ferry Point, LLC, Safe Harbor Marinas, LLC.

James E. Mercante, Rubin, Fiorella, Friedman & Mercante LLP, New York, NY, Joseph Robert Federici, Law Office of Victoria A. Turchetti, New York, NY, for Defendant Offshore Northeast, LLC.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Janet C. Hall, United States District Judge

I. INTRODUCTION

Plaintiff Certain Underwriters at Lloyd's of London ("Certain Underwriters"), as subrogee of Stephen Rak, brought this one count Complaint on August 3, 2020, alleging that defendants Brewer Ferry Point Marina, Inc. ("Brewer"), SHM Ferry Point, LLC ("SHM"), and Safe Harbor Marinas, LLC ("Safe Harbors") were negligent in failing to inspect and reinstall the drainplug in Rak's vessel prior to launch, thereby allowing it to fill with water and damage certain equipment. See generally Compl.

Defendants SHM and Safe Harbors have moved for summary judgment. See Defs.’ Mot. for Summ. J. (Doc. No. 44); Mem. of Law in Supp. of the SHM Defs.’ Mot. for Summ J. ("Defs.’ Mem.") (Doc. No. 44-1); Defs.’ Reply Mem. in Further Supp. of Mot. for Summ. J. ("Defs.’ Reply"). Certain Underwriters opposes this Motion. See Pl.’s Mem. of Law in Opp'n to SHM Ferry Point, LLC's Mot. for Summ. J. ("Pl.’s Mem.") (Doc. No. 47).

For the reasons discussed below, the court grants the Motion for Summary Judgment as to defendant SHM. The claim against Safe Harbor is dismissed, and the claim against Brewer is terminated as moot.

II. FACTS¹

Many of the facts in this case are not in dispute. During the relevant period, Stephen Rak owned a 2016 50-foot Outerlimits SL 50 powerboat (the "Rak vessel"). Defs.’ R. 56(a)1 Stmt at ¶ 2; Pl.’s R. 56(a)2 Stmt at ¶ 2. In October 2017, defendant SHM sent all prospective patrons for the upcoming year a packet in the mail containing, inter alia, a summer slip contract for 2018. Defs.’ R. 56(a)1 Stmt at ¶ 6; Pl.’s R. 56(a)2 Stmt at ¶ 6. The prospective patrons that received the packet included Stephen Rak's father, John Rak. Defs.’ R. 56(a)1 Stmt at ¶¶ 3, 6; Pl.’s R. 56(a)2 Stmt at ¶¶ 3, 6. John Rak read and signed that contract, along with the General Marina Rules and Conditions, so that the Rak vessel could be stored at SHM's marina that summer. Defs.’ R. 56(a)1 Stmt at ¶¶ 7, 9, 13; Pl.’s R. 56(a)2 Stmt at ¶¶ 7, 9, 13. John Rak had done the same in previous years, and in the summer of 2018, again paid SHM pursuant to that contract so that his son Stephen could store the Rak vessel at its marina. Defs.’ R. 56(a)1 Stmt at ¶¶ 10-11; Pl.’s R. 56(a)2 Stmt at ¶¶ 10-11. All interactions regarding the contract and payment were between John Rak and SHM, and Stephen Rak never told SHM that he was the owner of the Rak vessel, not his father. Defs.’ R. 56(a)1 Stmt at ¶¶ 17, 21; Pl.’s R. 56(a)2 Stmt at ¶¶ 17, 21.

The contract John Rak entered into with SHM contains two documents. The first is the "Summer Contract Terms and Conditions", which the elder Rak signed on October 5, 2017. See 2018 Summer Slip Contract, Pl.’s Ex. 1 (Doc. No. 47-2). That document provides certain contractual terms, and also explicitly incorporates the General Marina Rules and Conditions into the agreement. Id.; see also Defs.’ Ex. A, Ex. C to Aff. of Matthew Marshall (Docs. No. 44-5, 44-7) (providing the rules and conditions themselves and then the page with John Rak's signature). For the purposes of this Motion, SHM highlights two provisions in its contract: the waiver of subrogation clause and the release of liability clause. The first reads:

WAIVER OF SUBROGATION : Marina and Owner hereby mutually waive any and all rights of recovery against one another based upon the negligence of either party or their agents or employees for real or personal property loss or damage occurring to the Slip, the Vessel, or to the Matina or any personal property located on the Marina or in the Slip from perils which are paid or reimbursed by an insurer of Marina or Owner under any fire, extended coverage or other property insurance policy maintained by Owner or Marina (or which would have been paid had the insurance required to be maintained hereunder been in full force and effect). Each party shall cause its insurance carrier to endorse all applicable policies waiving the carrier's rights of recovery under subrogation or otherwise against the other party. This section shall survive the termination or expiration of this Agreement.

Defs.’ Ex. A to Aff. of Matthew Marshall. The second provides:

RELEASE : Owner agrees that Marina, its lessor, and its designated property management company, and their respective partners, members, affiliates, and subsidiaries, and all of their respective officers, trustees, directors, shareholders, employees, servants, partners, representatives, insurers and agents (collectively, "Marina Indemnitees") shall not be liable to Owner or to any party claiming by, through or under Owner for (and Owner hereby releases Marina Indemnitees from any claim or responsibility for) any injury (including death) to persons or damage to or destruction, loss, or loss of use, or theft of any property of Owner or of Owner's officers, directors, employees, agents, representatives, Owners, Invitees, customers, assignees, subtenants, or contractors, or contractors [sic] (collectively, "Boat Owner Parties") located in or about the Marina or of any injury (including death) of any Boat Owner Parties caused by casualty, theft, fire, third parties or any other matter or cause, EVEN IF SUCH LIABILITIES ARE CAUSED SOLELY OR IN PART BY THE NEGLIGENCE OF ANY MARINA INDEMNITEE, BUT NOT TO THE EXTENT SUCH LIABILITIES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY SUCH MARINA INDEMNITEE . Owner acknowledges that Marina will not carry insurance on, and shall not be responsible for damage to, any property of a Boat Owner Party. This section shall survive the termination or expiration of this Agreement.

Id.

On August 3, 2018, the Rak vessel was stored at SHM's marina in Old Saybrook, Connecticut. Defs.’ R. 56(a)1 Stmt at ¶ 4; Pl.’s R. 56(a)2 Stmt at ¶ 4. That day, the Rak's took the vessel out across Long Island Sound to Montauk, New York, for lunch. Defs.’ R. 56(a)1 Stmt at ¶ 30; Pl.’s R. 56(a)2 Stmt at ¶ 30. In preparation for their trip, SHM took the Rak vessel out of the indoor storage area using a travel lift and launched it into the water. Aff. of Matthew Marshall at ¶ 17. Matthew Marshall, who was the General Manager of SHM at the time, also averred that "it [was] the custom and practice of SHM to inspect the engine compartment for water" after it was launched.² Id.

Once the vessel was launched, Marshall received a phone call from the SHM employee who had conducted the launch, and he then "towed the Rak [v]essel to the transient dock where the Raks would meet it when they arrived." Id. While towing the vessel, he "did not notice any water being discharged from [it] by the bilge pumps." Id. According to Marshall, after he secured the Rak vessel to the transient dock, he checked the engine compartment for water but did not find any. Id. at ¶ 18. The vessel then remained at the dock for approximately 2-3 hours before departure.³ Id. After the Raks arrived, an employee of Offshore Northeast, LLC ("Offshore") gave the Raks "a jump start because the batteries were dead." Dep. of John Rak at 36. The employee was on board for about 15 minutes, according to John Rak, and he just "put the cables on the boat and jump start[ed] it and left." Id.

When the Raks departed the Old Saybrook marina, they first stopped at a gas dock to take on fuel. Defs.’ R. 56(a)1 Stmt at ¶ 27; Pl.’s R. 56(a)2 Stmt at ¶ 27. They then proceeded to cross the Long Island Sound and docked in Montauk, New York. Defs.’ R. 56(a)1 Stmt at ¶ 28; Pl.’s R. 56(a)2 Stmt at ¶ 28. When they secured the vessel at the marina in Montauk, there was no noticeable water in the vessel and the bilge pumps were not operating. Defs.’ R. 56(a)1 Stmt at ¶ 30; Pl.’s R. 56(a)2 Stmt at ¶ 30. Approximately half an hour later, however, while they were eating lunch somebody approached the Raks to inform them their boat was sinking. Dep. of John Rak at 23, 25. After rushing to the dock, Stephen Rak jumped into the water and checked for the drain plug. Id. at 26. He found that it was missing, but was able to stick a rag in the hole to stop the flow of water into the vessel. Id. Eventually, with the help of a bystander at the marina, they were able to find a new drain plug, install it, and clear the water from the vessel. Id. They then washed the vessel down, got it started, and tried to limit the damage. Id. at 27. Once the boat was seaworthy again, they traveled back to Connecticut. Id. at 27-28. Certain Underwriters, who insured the Rak vessel at the time through a policy taken out by Stephen Rak, alleges that the damages to the vessel totaled approximately $130,000, and that it has paid that amount in full to Stephen Rak. See Compl. at ¶ 33.

III. PROCEDURAL HISTORY

Plaintiff Certain Underwriters filed its one count Complaint on August 3, 2020. The action was originally brought against three named defendants, Brewer Ferry Point Marina, Inc. ("Brewer"), SHM Ferry Point, LLC ("SHM"), and Safe Harbor Marinas, LLC ("Safe Harbors"). However, the Complaint alleged its single negligence count against Brewer "and/or its successor-in-interest." Compl. at ¶ 31. It also alleged "it[s] belie[f] that ... Safe Harbor and/or SHM[ ] is a successor-in-interest to [Brewer]." Id. at ¶ 10. Although all three defendants were served, see Doc. No. 8, only SHM and Safe Harbor subsequently appeared. See Notice of Appearance (Doc. No. 9).

Following...