Sea Trek, Inc. v. Sunderland Marine Mut. Ins.

757 So. 2d 805, 99 La.App. 5 Cir. 893, 2000 La. App. LEXIS 197, 2000 WL 181769
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2000
Docket99-CA-893, 99-CA-894
StatusPublished
Cited by5 cases

This text of 757 So. 2d 805 (Sea Trek, Inc. v. Sunderland Marine Mut. Ins.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sea Trek, Inc. v. Sunderland Marine Mut. Ins., 757 So. 2d 805, 99 La.App. 5 Cir. 893, 2000 La. App. LEXIS 197, 2000 WL 181769 (La. Ct. App. 2000).

Opinion

757 So.2d 805 (2000)

SEA TREK, INC.
v.
SUNDERLAND MARINE MUTUAL INSURANCE COMPANY, LTD.

Nos. 99-CA-893, 99-CA-894.

Court of Appeal of Louisiana, Fifth Circuit.

February 16, 2000.

*806 J. Francois Allain, New Orleans, Louisiana, Attorney for Appellant.

Rufus C. Harris, III, Alfred J. Rufty, III, New Orleans, Louisiana, Attorneys for Appellee.

Panel composed of Judges CHARLES GRISBAUM, JAMES L. CANNELLA and MARION F. EDWARDS.

EDWARDS, Judge.

Plaintiff/appellant Sea Trek Inc. appeals a summary judgment in favor of defendant/appellee Sunderland Marine Mutual Insurance Company (Sunderland). The trial court found that an endorsement specific to fishing vessels excluded coverage for the damages claimed by Sea Trek to the fishing boat F/V Brigette Ann. We affirm.

*807 The trial court's reasons for judgment set forth the history of the present case as follows:

Sea Trek purchased a policy of insurance, number BG0205, from [Sunderland] for its seventy-eight foot fishing vessel Brigette Ann. The paid policy was effective April 25, 1994 and provided coverage of Hull and Machinery at $250,000 and P & I at $250,000 in identical policies for both 1994-1995 and 1995-1996 policy terms.
The Hull and Machinery standard form contains an Inchmaree Clause which provides in pertinent part:
This insurance also covers loss or damage to the vessel named herein caused by ... Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boiler, breakage of shafts, or any latent defect in the machinery or hull (excluding the cost and expense of replacing or repairing the defective part); Negligence of master, mariners, engineers or pilots, provided such loss or damage has not resulted from want of due diligence by the assured, the owners or managers of the vessel, or any of them.
The following type-written Special Terms and Conditions appear in "Fishing Vessels Endorsement No.1":
CLAUSE 21. MACHINERY DAMAGE CLAUSE:
WARRANTED NOT LIABLE FOR LOSS OR DAMAGE TO MAIN ENGINE AND AUXILIARY MACHINERY AND APPURTENANCES UNLESS DIRECTLY CAUSED BY STANDING, SINKING, FIRE OF [sic] COLLISION WITH ANOTHER VESSEL, EXCEPT TO THE PROPELLER AND PROPELLER SHAFT.
CLAUSE 22. ENGINE DAMAGE CLAUSE (RETRIEVAL OF NETS): IN THE EVENT OF ENGINE DAMAGE, BREAKDOWN OR IMPAIRMENT OF OPERATION, IT IS UNDERSTOOD AND AGREED THAT ANY SUBSEQUENT DAMAGE OR AGGRAVATION OF EXISTING DAMAGE CAUSED BY CONTINUED OPERATION OF THE ENGINE TO RETRIEVE FISHING GEAR IS SPECIFICALLY EXCLUDED.
On July 4, 1994, the first of two engine failures occurred on the F/V Brigette Ann. On June 15, 1995, Sea Trek filed a Petition against Sunderland to recover costs of engine repairs and expenses associated with the July 4, 1994 accident under its policy of insurance. 24th J.D.C. No. 479-605. (After Sunderland removed this case to federal court, Judge Morey L. Sear, found no diversity jurisdiction and remanded this case back to the state court by order of July 24, 1995).
On August 25, 1995, Sunderland filed its first Motion for Summary Judgment contending that its policy of insurance as a matter of law does not provide coverage for Sea Trek's claim and that defendant did not act in an arbitrary and capricious manner in failing to pay petitioner's claim. On November 3, 1995, Sea Trek filed its Cross Motion for Summary Judgment contending that the exclusion clause 21 conflicts with the Inchmaree clause of the policy and also seeking the stipulated damage amount of $22,610.45 after subtracting the deductible. On November 28 1995, Judge pro tempore Frank V. Zaccaria, Sr. heard the motion, and on March 18, 1996 he granted Sea Trek's motion and awarded stipulated damages and costs and dismissed Sunderland's motion based on a finding that the policy was "vague and ambiguous [and] to be construed in the manner most favorable to an insured."
On December 11; 1996, the Fifth Circuit Court of Appeal vacated summary judgment for plaintiff and remanded the case for further proceedings:
*808 The trial court apparently concluded that the faulty fuel rack setting which allowed diluted fuel to get into the engine was a latent defect and hence found coverage under the policy
. . .
The [marine surveyor's] affidavit merely established possible cause of the oil dilution by fuel oil. The affidavit on its face does not establish that the engine failure was caused by a latent defect. Questions of fact remain and issue (sic), therefore, the trial court erred in granting summary judgment in favor of the plaintiff.[1]
On April 9, 1997, the court wrote counsel that it would consolidate case no. 479-605 with 24th J.D.C. case No. 492-408, a similar case between the same parties regarding the same insurance policy on the same vessel concerning a main engine failure but on a different date of October 19, 1995. Sea Trek filed the latter suit for engine repairs under the same policy against Sunderland on April 25, 1996. (The latter suit was remanded from federal court by order of June 19, 1996.) All pleadings from both counsel after April, 1997, bear a consolidated number, though the order for consolidation was not signed until July 14, 1998.
On October 16, 1997, Sunderland filed the instant Motion for Summary Judgment in the consolidated case seeking a dismissal of plaintiff's claims. It argues that the typewritten endorsement, viz. The machinery damage clause found at Endorsement No. 1, paragraph 1, clearly and unambiguously excludes damage to the Brigette Ann's main engine under the facts of this case on both occasions and that the endorsements control over the printed form of the policy.
In its July 7, 1998 opposition to defendant's motion, Sea Trek relies on (as yet unsigned) deposition testimony of Robert DiGirolamo that the policy is in three parts and all from forms in his office. After hearing the matter on July 8, 1998, the court took the matter under advisement.

The court then found that the parties intended to exclude coverage for main engine damage except in certain instances, and as a matter of law the endorsement controls over the Inchmaree clause. Further, the court found that Sea Trek had not alleged a factual circumstance in either engine failure where there would be coverage, since there was no claim for damages as a result of stranding, sinking, fire or collision. The court granted judgment in favor of Sunderland and subsequently denied Sea Trek's Motion for New Trial.

On appeal, Sea Trek contends that our previous opinion did not reverse the trial court's finding that Clause 21, when read together with Clause 22 is ambiguous and thus that finding of ambiguity became the "law of the case." Sea Trek also argues that the court erred in denying a new trial, apparently contending either that the deposition of Mr. DiGirolamo, signed subsequent to the judgment, constituted new evidence and/or that the court failed to consider that unsigned deposition in its original judgment. Sea Trek finally contends that the policy is ambiguous and that there is coverage under the Inchmaree Clause.

In our original opinion we vacated the first summary judgment because there was a question of material fact as to whether or not a latent defect caused the engine failure.

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Cite This Page — Counsel Stack

Bluebook (online)
757 So. 2d 805, 99 La.App. 5 Cir. 893, 2000 La. App. LEXIS 197, 2000 WL 181769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-trek-inc-v-sunderland-marine-mut-ins-lactapp-2000.