Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Continental Insurance Co. v. L&L Marine Transportation, Inc.

United States Court of Appeals, Fifth Circuit

February 15, 2018

CONTINENTAL INSURANCE COMPANY, Plaintiff,
v.
L&L MARINE TRANSPORTATION, INCORPORATED, Defendant. P & I UNDERWRITERS, Subscribing to Policy Number B0507M13PP07280, Plaintiff-Appellee,
v.
ATLANTIC SPECIALTY INSURANCE COMPANY, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Louisiana

          Before REAVLEY, SMITH, and OWEN, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE.

         Three tugs were towing a barge, with one designated as the "lead" tug and the other two as "assisting" tugs. One of the assisting tugs allided with a bridge fender system and sank. An insurance policy on the lead tug covers damage only to its "tow." Accordingly, we decide the meaning of "tow" for purposes of that insurance contract and whether the assisting tug was the "tow" of the lead tug. The district court held that the assisting tug was the "tow" because of a tort principle known as the "dominant mind" doctrine. We reverse and render.

         I.

         Three tugs-the M/V MISS DOROTHY, the M/V ANGELA RAE, and the M/V FREEDOM-were traversing the Mississippi River with a barge, FSB 101. The MISS DOROTHY allided with a portion of a bridge fender system and sank, resulting in a total loss. Accordingly, its insurers, Continental Insurance Company ("Continental"), filed a complaint against the ANGELA RAE's owners, L&L Marine Transportation, Incorporated ("L&L"). According to Continental's complaint,

At the time of the allision, the M/V MISS DOROTHY was assisting the M/V ANGELA RAE, and the M/V FREEDOM, with the towage of FSB 101 . . . . Both the M/V ANGELA RAE and M/V FREEDOM were positioned behind FSB 101, pushing it down the river, and the M/V MISS DOROTHY was positioned at the head of FSB 101.

         Most importantly to the present dispute, Continental alleged that "[t]he M/V ANGELA RAE was the lead tug and was responsible for coordination of the tow." Continental further averred that the ANGELA RAE was negligent in several ways, including "failure to keep a proper look out; failure to properly navigate around the Sunshine Bridge fender system; [and] failure to chart and plan a proper and safe route."

         Both Atlantic Specialty Insurance Company ("Atlantic Specialty") and P & I Underwriters ("P & I") insured the ANGELA RAE. This is a dispute between them regarding whose policy covers the incident.[1] Atlantic Specialty is the Hull & Machinery insurer, while P & I provides Protection and Indemnity Insurance. Following the above complaint, Atlantic Specialty denied that its policy covered any liability for the MISS DOROTHY's allision and sinking. Accordingly, P & I filed a complaint against Atlantic Specialty, claiming that the Atlantic Specialty policy did so cover. P & I's coverage complaint was initially consolidated with Continental's tort suit against L&L, then severed by joint motion.

         The parties cross-moved for summary judgment, each alleging that the other's policy covered any liability for the loss of the MISS DOROTHY. As relevant here, Atlantic Specialty's policy insures the ANGELA RAE as follows:

[I]f the Vessel hereby insured shall come into collision with any other vessel, craft, or structure, floating or otherwise (including her tow); or shall strand her tow or shall cause her tow to come into collision with any other vessel, craft, or structure, floating or otherwise, or shall cause any other loss or damage to her tow or to the freight thereof or to the property on board, and the Assured, or the Surety, in consequence of the insured Vessel being at fault, shall become liable to pay and shall pay by way of damages to any other person or persons any sum or sums we, the Underwriters, will pay.

         Essentially, the Atlantic Specialty policy covers the following situations: (1) the ANGELA RAE collides with something else, (2) the ANGELA RAE strands her tow, (3) the ANGELA RAE causes her tow to come into collision with anything else, or (4) the ANGELA RAE causes any damage to her tow or to her tow's freight. As Atlantic Specialty maintains, none of those situations occurred. The ANGELA RAE never collided with anything, nor was her tow stranded, subject to collision, or damaged in any way.

         Conversely, P & I's policy is much broader, indemnifying L&L for "[l]ia-bility for loss of or damage to any other vessel or craft, or to property on such other vessel or craft . . . provided such liability does not arise by reason of a contract made by the assured." Yet P & I is suing because its policy covers only situations that Atlantic Specialty's does not: "Nonwithstanding anything to the contrary contained in this policy, no liability attaches to the Assurer [f]or any loss, damage, or expense which would be payable under the terms of the (Response} form of policy on hull and machinery." It is undisputed that, if Atlantic Specialty's policy does not cover this incident, then P & I's does.

         Accordingly, P & I contends that the loss of the MISS DOROTHY falls within the third situation covered by Atlantic Specialty's policy, i.e. that the ANGELA RAE caused her "tow" to come into collision with the fender system. P & I reasons that the MISS DOROTHY was the "tow" of the ANGELA RAE- despite being itself a tugboat-because the ANGELA RAE was allegedly the lead tug. The district court agreed with P & I and granted it summary judgment. Atlantic Specialty appeals.

         II.

         As a preliminary matter, the parties dispute whether the so-called "Eight Corners" rule governs this case. Under it, courts "assess whether there is a duty to defend by applying the allegations of the compliant to the underlying policy without resort to extrinsic evidence." Martco Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 872 (5th Cir. 2009). Put another way, the court determines whether an insurance policy covers an incident by looking to the allegations in the underlying suit's complaint. See id. P & I has consistently maintained, before the district court and on appeal, that the rule applies.

         For the first time on appeal-and only in its reply brief-Atlantic Specialty disputes the application of the rule. Accordingly, the district court stated, "The parties do not dispute [that] the allegations in the complaint control which policy is liable for defense costs and coverage." Thus, Atlantic Specialty has waived any quarrel over the applicability of the Eight Corners rule and the controlling nature of Continental's complaint.[2] Accordingly, we assume the facts in Continental's complaint-the ANGELA RAE was the lead tug; the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.