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In re Complaint of Healy Tibbitts Builders, Inc.

United States District Court, D. Hawaii

June 15, 2017

In the Matter of The Complaint of HEALY TIBBITTS BUILDERS, INC., as owner pro hac vice of WEEKS 544, O.N. 520935, for Exoneration from or Limitation of Liability. In the Matter of The Complaint and Petition of the United States of America in a Cause for Exoneration from or Limitation of Liability with Respect to Navy Barge YCV-23 Re the Incident Involving Mooring Buoy in Pearl Harbor on December 10, 2014.

          ORDER DENYING THIRD-PARTY DEFENDANT OWL INTERNATIONAL, INC., DBA GLOBAL'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE, ECF NO. 160

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         These consolidated admiralty limitation-of-liability Petitions brought under 46 U.S.C. §§ 30501-30512 arise from a December 10, 2014 incident at Pearl Harbor, where two persons were killed and several others allegedly were seriously injured. Third-Party Defendant Owl International, Inc., dba Global Government Services (“Global”) moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Third-Party Complaint filed by Truston Technologies, Inc. (“Truston”). ECF No. 160 (the “Motion”).[1]

         Because Global relies on evidence in making its arguments, the court exercises its discretion to consider that evidence, and thus construes the Motion as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d); Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir. 2007).

         So construed, the Motion is DENIED because genuine issues of material fact exist as to Global's actions that are alleged to have caused or contributed to the December 10, 2014 incident. See, e.g., T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987) (“[I]f a rational trier of fact might resolve the issue in favor of the nonmoving party, summary judgment must be denied.”) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         II. BACKGROUND

         The court briefly sets forth the basic background to provide context for the Motion only -- this section does not explain all the allegations in the Petitions, or attempt to present a comprehensive discussion of the facts alleged in the underlying actions.[2] In so doing, the court accepts as true all well-pleaded factual allegations, and draws all reasonable inferences in favor of the nonmoving parties. See, e.g., Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (setting forth Rule 12(b)(6) standard); In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (reiterating Rule 56 standards).

         The actions arise from a December 10, 2014 incident in Pearl Harbor. The U.S. Navy had contracted with Truston to upgrade moorings or certain mooring structures, and Truston in turn subcontracted with Healy Tibbitts Builders, Inc. (“Healy Tibbitts”) for some of the work. Pet. at 3, ECF No. 1. During the incident, mooring buoy D-8-H was lifted by a crane aboard the Barge/Vessel “Weeks 544, ” owned by Healy Tibbitts. Id. at 4. The buoy was suspended above deck of an adjacent “YCV Barge, ” owned by the Navy. Id. As alleged, “[w]hile the buoy was suspended above the deck, workers began connecting a large concrete sinker block, which was on the deck of the YCV barge, to the buoy's anchor chain.” Id. “Before the connection could be completed, the capture plate on at the top of the buoy failed, causing the buoy to slide down the anchor chain to the concrete sinker block.” Id. Two Healy Tibbitts workers (Justin Saragosa and Joefrey Andrada) were killed, and at least three others (David Makua III, Cesario Gaspar, and Willie Antonio) were seriously injured.

         Complaints were filed against Truston, Healy Tibbitts, Weeks Marine Inc., and the Vessel Weeks 544. Healy Tibbitts then filed a limitation of liability petition under 46 U.S.C. §§ 30501-30512, wherein claims were made by (1) Saragosa and Andrada (or by their estates and family members) (the “Saragosa/Andrada Plaintiffs”); (2) Makua, Gaspar and Antonio (collectively, the “Makua Plaintiffs”); and (3) Truston. ECF Nos. 13-15, 17, 26. In turn, Truston filed a Third-Party Complaint sounding in contribution/indemnity and joint/several liability against both the United States and Global. (The United States then filed its own limitation petition, in which the same parties filed claims, and the two Petitions were consolidated.)

         Truston's Third-Party Complaint alleges that an Occupational Safety and Health Administration (“OSHA”) investigation revealed that the flange or capture plate on buoy D-8-H was corroded, with most of the bolts having “rusted completely away.” Third-Party Compl. ¶¶ 23, 24, ECF No. 119. It further alleges that “Global was responsible to inspect and maintain the buoy and failed to do so.” Id. ¶ 26. And it alleges, on information and belief, that “Global painted over the corroded bolts, capture plate, and flange plate instead of properly maintaining the same.” Id. at ¶ 27.

         Count II (against Global) of the Third-Party Complaint alleges that “Global is a civilian contractor whose responsibility it was to maintain equipment at NISMO [Naval Inactive Ships Maintenance Office] Pearl Harbor, including the subject buoy.” Id. at ¶ 36. It repeats, “[o]n information and belief, Global painted over corrosion on the buoy, including but not limited to, painting over the corroded bolts, capture plate, and flange plate.” Id. ¶ 37. “Global had a duty to maintain the buoy and its flange plates, flange plate bolts and/or capture plate.” Id. ¶ 38. “Global breached its duty and actively covered over and hid corrosion on the subject buoy.” Id. ¶ 39. “Global's breach of its duty is a legal cause of the accident and injuries/death of Healy Tibbitts employees.” Id. ¶ 40.

         Count III (against both the United States and Global) of the Third-Party Complaint is based on failure to warn. As to Global, it alleges that “USA and Global had a duty to warn Truston about the risk posed by the Navy property in Pearl Harbor.” Id. ¶ 44. “The failure to warn Truston of such a known defect by both Third-Party Defendants was the legal cause of the accident.” Id. ¶ 45.

         Global's Motion seeks to dismiss the Third-Party Complaint. The Motion was heard on June 13, 2017, where the court gave its oral ruling. This Order explains that ruling in more detail.

         III. ...


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