Mrs. Barhanovich says No to Bean & Archer plan to blame Suzuki
Bean and Archer basically want to blame everything on Suzuki (in the U.S. and in Japan), and on Bob’s Machine Shop.
On 6 March 2014, Jerrie Barhanovich, widow of Mark Barhanovich, filed a brief stating her opposition to Bean and Archer’s request to bring Suzuki and Bob’s Machine Shop in as defendants.
She says Bean and Archer’s request should be denied on 2 counts:
- The motion does not comply with local rules
- The proposed third party complaint is futile, will delay the trial, and will prejudice her side of the case.
The Motion Does Not Comply With Local Rules
Mrs. Barhanovich says local court rules concerning motions require them to be supported by a brief citing authorities or case law supporting the request. No such brief accompanied Bean & Archer’s request. She notes there is especially no explanation of how Bean and Archer intend to hold a Japanese parent company liable for the acts or omissions of a subsidiary.
The proposed third party complaint is futile, will delay the trial, and will prejudice Barhanovich
Mrs. Barhanovich cites some of the upcoming deadlines, including the non-jury trial being scheduled for 3 August 2015. She says any attempt to bring the Japanese parent corporation into court, plus two other corporations jeopardizes the trial date.
She notes Suzuki Motor of America (SMA) did not exist until 20 February 2013 (it was formed out of bankruptcy from American Suzuki Motor Corporation). Mrs. Barhanovich also notes SMA did not even exist until after her husband’s death. Plus, SMA was created free and clear of any claims based on successor liability, meaning SMA cannot be sued for any alleged wrongdoing by their predecessor. While that defense may or may not hold up in court, it creates additional problems for Barhanovich.
The parent corporation is in Japan, the local subsidiary was reorganized after the death of her husband and has a “get out of jail free” card for any prior wrongdoings by American Suzuki. Taken together, that makes things much tougher for Barhanovich than going after Bean and Archer.
Mrs. Barhanovich also notes there is an issue of whether Bean and Archer could bring any defendants outside the maritime industry into the case or not. This case began by Bean filing for limitation of liability under the Jones Act, a special protection offered to shipowners. It may not be legally possible to bring in other defendants that do not fit under that umbrella.
Mrs. Barhanovich notes Bean and Archer allege defective design against the two Suzuki Corporations and against Bob’s Machine Shop, but supply no feasible design alternatives that would have prevented the accident. Plus no specific manufacturing defects are identified by Bean and Archer.
Now its time for Bean and Archer to Respond
We anticipate Bean and Archer will respond to the objections raised by Mrs. Barhanovich.
We will even help them a little bit. As to identifying feasible design alternatives for Suzuki outboard motors, we suggest Bean and Archer view our post and 65 page paper at Preventing Outboard Motors From Flipping into Boats and pick out the ones most applicable to Mr. Barhanovich’s boat and application (use).
As to identifying defective designs, a close look at photos of the boat and outboard after the accident should help identify what broke. Some thought will identify why those parts broke.
As to foreseeability, while it could come back and bite them (Bean and Archer), our list of dredge pipe strikes is notice to outboard manufacturers of this hazard.
The industry certainly knows outboard motors strike submerged objects and flip into boats, see our Outboard Motor Struck Submerged Object and Flipped into Boat page and its lengthy list of accidents.
In the interest of providing equal assistance to Mrs. Barhanovich’s legal team, we know someone you might want to compare notes with if Suzuki is brought into the case.
We anticipate Suzuki will eventually be brought into some sort of legal swirl as Bean and Archer try to find somebody to share any potential liability with.
Bean and Archer (or their insurance companies) may eventually have a go at Suzuki on their own if the case settles or an award is made and they can’t get Suzuki admitted to this case.
What Kind of Boat Was It?
Early reports said it was a 23 foot center console boat, but no more information was provided.
The 6 March 2014 filing by Mrs. Barhanovich includes a copy of the 2011 bill of sale for her husband’s boat. It was a 2005 2450 Fishmaster. The Hull ID number starts with KEN.
The Manufacturers Indentification Code (MIC) of KEN belongs to Kenner Boats of Forest City North Carolina.
It looks like Kenner went out of business in October 2011, and is now owned by Mako, which is owned by Tracker, which is owned by ….other outfits under the Johnny Morris / Bass Pro umbrella. Fishmaster may have been owned by Polar, Cajun, Sprint, and Travis but not necessarily in that order, sometime before 2002.
Marine Connection posted a very well done sales video for a 2004 (one year earlier) Fishmaster 2450 Center Console in their inventory in October 2010. Marine Connection was asking $21,900 for it. Mark Barhanovich paid $22,000 for one a year newer a year later. Both were powered by a Suzuki 225 outboard motor. We suspect the boat in Marine Connection’s video is reasonably representative of the boat involved in the accident.
- Mark Barhanovich Boat Propeller Accident at Deer Island Near Biloxi, MS: Dredge Pipe Strike?”.
- Mark Barhanovich: CF Bean Limitation of Liability Case Update 9 May 2013
- Jones Act Suit by C.F. Bean
- Barhanovich case: Archer & Bean blame Suzuki & Bob’s Machine Shop
- Outboard Motor Struck Submerged Object and Flipped Into Boat: Exemplar Outboard Boat Accidents
- Boat or Boat Motor Struck Submerged Dredge Pipe: Exemplar Boat Accidents
- Preventing Outboard Motors From Flipping into Boats
- Preventing & Mitigating Injuries and Fatalities from Outboard Motors Flipping into Boats
- Estate of David Paul McFarlin and Jamie Laass vs. Brunswick Corporation (young boy killed when outboard struck dredge pipe, flipped into boat, and he was struck by the propeller).
- Our previous coverage identified specific satellite images of the barge / dredging operation