Bill Burns Martin v. D & S Marine Service, LLC

• Court: Louisiana Court of Appeal
• Decided: April 4, 2012
• Docket: CA-0011-1489
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-1489

BILL BURNS MARTIN

VERSUS

D & S MARINE SERVICE, L.L.C.

**********

APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF CAMERON, NO. 10-18356 HONORABLE PENELOPE QUINN RICHARD, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

Saunders, J., dissents and assigns written reasons.

AFFIRMED.

John R. Pohorelsky Peter J. Pohorelsky Scofield, Gerard, Singletary, & Pohorelsky Post Office Drawer 3028 Lake Charles, Louisiana 70602 (337) 433-9436 Counsel for Plaintiff/Appellant: Bill Burns Martin Jefferson R. Tillery Jean-Paul A. Escudier Jones, Walker, Waechter, Poitevent Carrère & Denègre, L.L.P. 201 St. Charles Avenue – 48th Floor New Orleans, Louisiana 70170-5100 (504) 582-8616 Counsel for Defendant/Appellee: D&S Marine Service, L.L.C. PICKETT, Judge.

Plaintiff appeals trial court’s award for damages caused to his dock and large

steel mooring dolphin which resulted when they were struck by a tugboat and two

barges owned and/or operated by defendant. For the following reasons, we affirm.

FACTS

On February 11, 2008, the M/V ANNA MICHAEL, a push tug owned and

operated by D&S Marine Service, L.L.C. (D&S), was pushing two barges owned by

Kirby Inland Marine (Kirby), when it allided with a dock and steel mooring dolphin

situated on the Gulf Intracoastal Waterway in Grand Lake that is owned by Bill

Burns Martin. Mr. Martin sued D&S to recover the cost of repairs to his dock and

dolphin necessitated by the allision.

The morning of trial, D&S stipulated to liability, and the only issue presented

for resolution was damages. Mr. Martin testified and presented the testimony of

Captain Anthony Brown, a marine surveyor. D&S presented the deposition

testimony of marine surveyor, Harry Stark, and the live testimony of Jeffrey

Boudreaux, of B&J, Inc. (B&J), a marine construction company that submitted a bid

to repair the damaged dock and dolphin. After taking the matter under advisement,

the trial court awarded Mr. Martin $30,478.42. Mr. Martin appealed.

ASSIGNMENTS OF ERROR

Mr. Martin assigns four errors with the trial court’s judgment:

(1) The trial court erred when it relied upon two incomplete and inaccurate bids for repair in calculating damages;

(2) The trial court erred when it reduced damages by use of a linear depreciation factor;

(3) The trial court erred in not awarding damages for the cost of removing steel pilings of a mooring dolphin; and (4) The trial court erred in awarding damages in the amount of $30,478.42 when the evidence and law mandate an award in excess of $200,000.00.

DISCUSSION

Did the trial court err in including incomplete and inaccurate bids for repair in calculating damages?

Mr. Martin solicited and received three bids for repairing the dock and

dolphin. The trial court determined there were problems or issues with each of the

three bids and averaged the bids to determine the cost to repair the dock and dolphin.

The evidence established that the bid presented by B&J was incomplete and that the

bid presented by Bass Builders, L.L.C. (Bass) was also incomplete because Bass did

not have the equipment required to perform the repairs and intended to contract the

work to B&J, resulting in Bass’s bid actually being B&J’s bid with a markup.

Mr. Stark testified the third bid presented by F. Miller Construction LLC (F. Miller)

was ―too high‖ and was ―not comparable‖ to the other bids submitted. He

explained that F. Miller’s primary business was constructing and repairing large

commercial docks and opined that its bid was high because it was not interested in

performing small jobs like Mr. Martin’s. Mr. Boudreaux also opined that

F. Miller’s bid was high and that the repairs could be performed for less than the

amount quoted in its bid.

Mr. Martin argues the trial court erred in considering B&J’s and Bass’s bids

because they were incomplete and inaccurate. D&S acknowledges that

Mr. Boudreaux admitted B&J’s bid was incomplete because it did not include all the

work to be performed. It argues, however, this error did not render the bids of B&J

and Bass invalid because Mr. Boudreaux also testified that B&J would honor its bid

and perform all the required work for $61,380.00, the amount it bid, to protect its

reputation.

2 In cases such as this, maritime law, not state law, applies because the cause of

action arose under maritime law. Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d

300 (5th Cir. 1976). Nevertheless, property damage principles are the same under

federal maritime law and Louisiana law: the goal is to restore the victim to the

position he was in before his property was damaged. Id.; see also Massie v.

Deloach, 04-1425 (La.App. 3 Cir. 3/2/05), 896 So.2d 1246, writ denied, 05-786 (La.

5/6/05), 901 So.2d 1107. Additionally, a defendant can only be held liable for

damages that he has been proved to have caused. Freeport, 526 F.2d 300.

Furthermore, under maritime law, a defendant cannot be held liable for repairs that

enhance or extend the useful service life of the damaged property. Id. If repairs

are not made, damages are measured by the estimated cost of repair at the time the

damage occurred. United States v. Shipowners & Merchants Tugboat Co., 103

F.Supp. 152 (N.D.Cal. 1952), aff’d, 205 F.2d 352 (9th Cir 1953), cert. denied, 346

U.S. 829, 74 S.Ct. 51 (1953); see also Kan. City S. Ry. Co. v. Barge HBC 8106, 642

F.Supp. 609 (W.D.La. 1986). Lastly, a trial court’s award of special damages is a

finding of fact that cannot be reversed unless there is no reasonable basis for the

award and it is clearly wrong. Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10),

31 So.3d 996. Repair costs are special damages. Eddy v. Litton, 586 So.2d 670

(La.App. 2 Cir. 1991), writ denied, 590 So.2d 1203 (La.1992); see also Bernard v.

City of Lafayette, 98-1815 (La.App. 3 Cir. 5/5/99), 735 So.2d 804.

As the trier of fact, the trial court determined the credibility of the witnesses

and had the prerogative of accepting or rejecting some or all of the witnesses’

testimony; this included expert witness testimony. Ryan v. Zurich Amer. Ins. Co.,

07-2312 (La. 7/1/08), 988 So.2d 214. The trial court’s findings of fact, credibility

evaluations, and inferences of fact should not be disturbed on appeal if they are

reasonable. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

3 Mr. Martin strongly argues that F. Miller’s bid is the only valid bid because it

includes all the repair work to be performed and Mr. Stark testified it would

construct a beautiful dock; therefore, it is the only bid the trial court should have

considered. This argument fails to acknowledge that not only did Mr. Boudreaux

testify B&J would have performed the work for the amount it originally quoted in its

bid, but Mr. Stark testified that F. Miller’s bid was high and not competitive,

explaining that F. Miller primarily performs commercial work and, more likely than

not, submitted the bid as a professional courtesy. Additionally, Mr. Boudreaux also

opined the bid was high.

This evidence shows the trial court’s determination that there was a problem

with each bid was reasonable and that its resolution of the problem of averaging the

bids was reasonable as well. Accordingly, we cannot reverse the trial court’s

calculation of Mr. Martin’s damages.

Did the trial court err in reducing damages by use of a linear depreciation factor?

The trial court reduced its repair-cost calculation as provided in Freeport, 526

F.2d 300, which provides that if repairs enhance or extend the useful service life of

the damaged property, the damage award is reduced or depreciated to the extent that

the useful service life of the property was extended. The trial court concluded the

dock and dolphin had ten years useful service life remaining which the repairs would

extend an additional twenty-five years. As provided in Freeman, the trial court

determined a depreciation factor of 71% had to be applied to its repair-cost

calculation. Application of this factor to the repair costs of $105,098 resulted in the

trial court’s award of $30,478.42 as the cost to restore Mr. Martin’s property to its

pre-collision condition.

Mr. Martin urges the trial court erred in applying a linear depreciation factor

where the evidence shows that the property was not deteriorating at a linear rate.

He cites Pillsbury Co. v. Midland Enters., Inc., 715 F.Supp. 738 (E.D. La. 1989),

4 aff’d and remanded, 904 F.2d 317 (5th Cir. 1990), cert. denied, 498 U.S. 983, 111

S.Ct. 515 (1990), as support for this argument. Mr. Martin is correct that

straight-line depreciation is not applicable in all instances, but he has not shown it is

not applicable here.

Mr. Stark testified the dock and dolphin were at least thirty years old and had

exceeded its useful service life. As argued by Mr. Martin, Capt. Brown was of the

opinion that before the allision, the dock and dolphin had ten years useful service life

remaining, which is what the trial court found. Capt. Brown did not, however, give

an opinion as the age of the dock or dolphin. The only evidence other than

Mr. Stark’s and Capt. Brown’s opinions on this issue is more than thirty

photographs of the dock and dolphin that were introduced into evidence. The

photographs do not show that the trial court’s apparent acceptance of Mr. Stark’s

opinion over Capt. Brown’s opinion is clearly wrong. Accordingly, we cannot

disturb this conclusion.

Did the trial court err in not awarding damages for the cost of removing steel pilings of a mooring dolphin?

Mr. Martin next argues the trial court erred in not awarding damages for

removal of the dolphin pilings. He urges that Mr. Stark’s testimony was unreliable

because it showed his inspections of the dock and the dolphin were merely cursory

as compared to Capt. Brown’s inspections which were much more in depth.

Capt. Brown testified that he ―neglected‖ to include costs for removing and

replacing the dolphin pilings because he ―assumed that the dolphin had been laid

over‖ and was not broken at the mud line. Referencing Mr. Stark’s survey, counsel

for Mr. Martin asked if Mr. Stark ―suggested that perhaps the dolphin did break at

the mud line.‖ Capt. Brown agreed that it did, and counsel continued, ―If that was

true . . . what impact would that have on the cost of repairing?‖ Capt. Brown

responded, ―That would increase it significantly,‖ and explained that he performed a

5 ―tapping‖ test on the one of the piles which led him to conclude, ―there is -- it’s fair

-- reasonable to expect that -- that pipe was broken.‖ He then explained that any

piles that extended above the mud should be removed because they presented

potential liability to the plaintiff. Capt. Brown reviewed what removal of the

pilings would entail and estimated the cost would be approximately $100,000.00.

The trial court did not address Mr. Martin’s claim for the cost of removing

pilings; therefore, it is presumed the claim was denied. M.J. Farms, Ltd. v. Exxon

Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d 16. Having considered the testimony

of Mr. Stark and Capt. Brown, we find no error with the trial court’s rejection of this

claim. Although Mr. Stark’s stated in his survey ―the dolphin was apparently

broken at the mud line,‖ he and Capt. Brown both testified that without removing the

dolphin from the water they could not determine if the pilings were broken or if there

were pilings that were submerged in the mud that needed to be removed.

(Emphasis added.) Importantly, Capt. Brown testified that the tapping test he

performed led him to ―reasonably expect‖ the pilings were broken; however, he did

not call for removal and replacement of the pilings in his survey. Moreover,

Capt. Brown acknowledged that in cases such as this, it is customary for

landowner’s to pay for the removal or excavation of damaged structures to

determine the extent of damage, if any, caused by the allision. For these reasons,

the trial court could have reasonably concluded that Mr. Martin did not prove the

pilings of the dolphin were broken and needed to be replaced, and its conclusion is

not manifestly erroneous.

Did the trial court err in awarding damages in the amount of $30,478.42 when the evidence and law mandate an award in excess of $200,000.00?

Resolution of the prior assignments of error pretermits the need to address

this assignment of error.

6 DISPOSITION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed to Bill Burns Martin.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.

7 STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

BILLS BURNS MARTIN

SAUNDERS, Judge, dissents and assigns written reasons.

I disagree with the majority that the trial court did not err in reducing

damages by use of a linear depreciation factor. In Pillsbury Co. v. Midland

Enters., Inc., 715 F.Supp. 738, 765, cited by the majority, the United States District

Court for the Eastern District of Louisiana, after an extensive review of accounting

principles, concluded:

While a linear, or straight line, depreciation method is most commonly used for property with a fixed life span, this method is not to be applied where evidence establishes that the original property had been deteriorating at a nonlinear rate. Similarly, if there is no evidence of any deterioration prior to the casualty, then no deduction is made for depreciation.

After a review of the evidence submitted, in my view Mr. Martin established

that his property had not been deteriorating at a nonlinear rate. Thus, I feel that the

trial court was erroneous in reducing his recovery for the damage done to his dock

and dolphin, and I disagree with the majority that Mr. Martin did not show that

such straight line depreciation is not applicable. The result reached by both the trial

court and majority fails to fully indemnify Mr. Martin for the damage done to his

property. Thus, I respectfully dissent.