Orion Marine Constr., Inc. v. Carroll

619 F.Supp.3d 1136

ORION MARINE CONSTRUCTION, INC., as owner of Barges M-1801,M-1802, M-1701 and M-1402, their engines, tackle, appurtenances, equipment, etc.,in a cause of exoneration from or limitation of liability, Petitioner, v. Elizabeth CARROLL, Defendant,Daniel F. Bowen, et al., Claimants.

Case No: 8:15-cv-1136-MSS-TGW

United States District Court, M.D. Florida, Tampa Division

Signed January 12, 2022

Christopher F. Hamilton, Sharfi Holdings, Inc., Tampa, FL, Jules Victor Massee, Robert B. Birthisel, Stacey L. Papp, Kimberly Andreu Hendee, Hamilton, Miller & Birthisel, LLP, Tampa, FL, Michael Joseph Bradford, Marshall Dennehey Warner Coleman & Goggin, Tampa, FL, J. Suzanne M. Lehner, Simon Reed & Salazar P.A., Tampa, FL, Madison Elizabeth Wahler, Carlton Fields, P.A., Tampa, FL, William Matthew Poage, Poage Law, PLLC, Lithia, FL, for Plaintiff Orion Marine Construction, Inc.

ORDER

MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court for consideration of Claimants' Joint Motion for Partial Summary Judgment on Affirmative Defense Based on Florida Statute § 337.195, (Dkt. 727), and Petitioner's response in opposition thereto, (Dkt. 730); and Petitioner's Motion for Summary Judgment, (Dkt. 728), and Claimants' response in opposition thereto. (Dkt. 729) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court DENIES Claimants' Joint Motion for Partial Summary Judgment and DENIES Petitioner's Motion for Summary Judgment.

I. BACKGROUND

In 2011, Orion Marine Construction, Inc. contracted with the Florida Department of Transportation ("FDOT") to rebuild the Pinellas Bayway Bridge in Pinellas County, Florida. (Dkt. 1 at ¶ 12) Construction began in February 2012, and the bridge was completed in November 2014. (Dkt. 625-2) As part of the project, Orion used four barges—M-1801, M-1802, M-1701, and M-1402—to drive concrete piles into the ocean floor. (Dkt. 1 at ¶ 13) The piledriving took place in two stages: from February 2012 to October 2012, and then from March 2013 to April 2014. (Dkt. 704-2 at ¶¶ 7-9)

The agreement between FDOT and Orion contained a series of requirements governing Orion's piledriving activities. (Dkt. 728-1 at ¶¶ 3, 8) Orion was subject to FDOT's Standard Specifications for Road and Bridge Construction. (Id. at ¶ 13) Section 455-1.1 of the Standard Specifications required Orion to "take all reasonable precautions to prevent damage" to "existing structures" in "close proximity" to the piledriving. (Dkt. 729-1 at 516) Section 455-1.1 also required Orion to "[m]onitor" structures for "settlement" and vibrations, including the structures "shown in the plans." (Id. at 517) To implement the latter requirement, Orion prepared a Settlement/Vibration Monitoring Plan. (Dkt. 729-2) This document stated that Orion would "monitor[ ] for settlement" twenty-three houses near the Pinellas Bayway Bridge. (Id. at 1) Orion likewise agreed to "provide" "settlement/vibration monitoring" of these structures. (Dkt. 729-3) The monitoring would take place "on a weekly basis throughout pile installation and for two weeks after pile driving [was] complete." (Dkt. 729-2 at 1) Orion contracted out the vibration monitoring to Tally Engineering, Inc. (Dkt. 728-1 at ¶ 14)

The Parties dispute whether Orion complied with its contractual obligations concerning vibration monitoring. Claimants cite the testimony of Angelo Soldati, a project manager for Orion who served as the company's Rule 30(b)(6) representative. (Dkt. 729 at 5 n.6; Dkt. 728-2 at 7:4-19) Soldati testified that although vibration monitoring was performed at "some of the properties" listed in the Settlement/Vibration Monitoring Plan, monitoring was not conducted at all of the residences. (Dkt. 728-2 at 46:7-47:10) Soldati also explained that (i) the Settlement/Vibration Monitoring Plan was "a requirement in the contract to submit to FDOT prior to starting the pile driving," and (ii) Orion's agreement to "provide" "settlement/vibration monitoring" of the residences came "from the FDOT standard specs." (Id. at 23:13-22; 45:9-46:5)

Orion, for its part, relies on the declaration of Jordan West, another Orion project manager. (Dkt. 728 at 3) West states that approximately once a month, an FDOT project manager evaluated "the timeliness and completeness of Orion's document submittals, the timeliness of Orion's completion of the project, Orion's environmental compliance, and Orion's conformity with the [c]ontract [d]ocuments." (Dkt. 728-1 at ¶ 20) According to West, Orion "consistently" received twenty out of twenty possible points for its "conformance with [c]ontract [d]ocuments." (Id. at ¶ 22; see also Dkt. 731-1) West thus concludes that Orion "substantially complied" with the contract documents. (Dkt. 728-1 at ¶ 23)

Between March 2012 and June 2014, nine local residents complained that the vibrations caused by Orion's piledriving had damaged their homes. (Dkt. 627 at 5) Beginning in December 2014, Orion began receiving similar property-damage claims "in bulk." (Id. at 17) As a result, Orion filed this limitation action under the Shipowner's Limitation of Liability Act, which permits shipowners to limit their liability for certain claims involving a "vessel" to "the value of the vessel and pending freight." 46 U.S.C. § 30505(a). Following the commencement of this action, 248 residents filed claims alleging damage to their homes from Orion's piledriving. According to the residents, Orion "improper[ly]" and "negligently" performed the piledriving, resulting in physical damage to their homes and a reduction in their property values. (E.g., Dkt. 348 at ¶¶ 5-8)

The Parties have now cross-moved for summary judgment as to Orion's affirmative defense under Fla. Stat. § 337.195. (Dkts. 727, 728) Section 337.195(2) provides that "[a] contractor who constructs, maintains, or repairs a . . . bridge . . . for the Department of Transportation is not liable to a claimant for . . . property damage . . . arising from the performance of the construction, maintenance, or repair if, at the time of the . . . property damage . . . , the contractor was in compliance with contract documents material to the condition that was the proximate cause of the . . . property damage." Fla. Stat. § 337.195(2). Orion contends that Section 337.195(2) exempts it from liability for its piledriving activities because "FDOT's own engineers . . . consistently found Orion to be compliant throughout the Project, including those phases involving piledriving." (Dkt. 728 at 4) Claimants offer two arguments in response: (i) federal maritime law preempts Section 337.195(2), which is therefore inapplicable in this limitation action, and (ii) there is a genuine dispute of fact as to whether Orion complied with the contract documents related to piledriving. (Dkt. 727 at 1; Dkt. 729 at 4-6)

II. LEGAL STANDARD

Summary judgment is appropriate when the movant can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (citing Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007)). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party discharges its burden on a motion for summary judgment by showing or pointing out to the Court that there is an absence of evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001) (citation omitted).

When a moving party has discharged its burden, the non-moving party must then designate specific facts (by its own affidavits, depositions, answers to interrogatories, or admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 1320-21 (11th Cir. 2006) (citation omitted). The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegations without specific supporting facts have no probative value."). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may grant summary judgment if the motion and supporting materials . . . show that the movant is entitled to it." Fed. R. Civ. P. 56(e).

III. DISCUSSION

Federal maritime law does not preempt the exemption from liability in Section 337.195(2). Nevertheless, summary judgment is inappropriate because there are genuine disputes of fact as to whether Orion complied with contractual provisions relevant to its piledriving activities.

A. Maritime Law Does Not Preempt Section 337.195(2)

Claimants contend that Section 337.195(2) is inapplicable as a matter of law because it is preempted by federal maritime law. (Dkt. 727 at 1) Specifically, Claimants argue that the "complete release from liability" conferred by Section 337.195(2) is "directly contrary to the general maritime rule of comparative fault." (Id. at 7) In light of this alleged conflict, Claimants seek a ruling that "the general maritime law rule of comparative fault [ ] prevail[s]" over the exemption from liability in Section 337.195(2). (Id. at 8) Claimants' preemption argument fails.

"With admiralty jurisdiction comes the application of substantive admiralty law." Misener Marine Const., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 837-38 (11th Cir. 2010). "Drawn from state and federal sources, the general maritime law is an amalgam of...