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Bean & Archer respond to Barhanovich objection to Suzuki

Mark Barhanovich was boating past Deer Island Mississippi in September 2012. His outboard motor stuck something (allegedly a dredge pipe), flipped up into the boat, struck and killed him.

Suzuki DF225 outboard

Suzuki DF225 outboard

In February 2014, Bean and Archer (dredging contractors) responsible for the dredge pipe allegedly struck by Mark Barhanovich proposed bringing Suzuki (maker of the outboard) and Bob’s Machine Shop (maker of the jack plate) into the legal case surrounding his death. Mrs. Barhanovich responded to the court in early March 2014 stating she is opposes bringing Suzuki and Bob’s Machine Shop in. Her reasons included the challenges of legal proceedings against Japanese firms, the bankruptcy of American Suzuki Motor Corporation (now emerged as Suzuki Motor of America), and that Bean & Archer’s motion to include Suzuki and Bob’s Machine shop failed to comply with local rules (did not include a brief citing previous cases or authorities backing up their proposal).

On 20 March 2014, Bean and Archer responded to Mrs. Barhanovich’s objections. As would be expected, Bean and Archer still want to bring Suzuki and Bob’s Machine Shop in to share any possible blame or to lay it all on them.

Bean and Archer’s response to Mrs. Barhanovich’s response to their motion refers to Mr. Barhanovich’s accident as a “freak accident” (quotes are theirs). Calling any kind of a propeller accident a freak accident always angers us. Earlier we listed about 50 boat accidents in which the outboard motor flipped in like it did in Mr. Barhanovich’s accident. We also listed about over 50 boat accidents in which a dredge pipe was struck by a boater. In several of dredge pipe strikes we identified, the outboard motor flipped into the boat, often striking people and sometimes killing them. These are not “freak accidents”, they are regularly occurring events.

Next, Bean and Archer reiterate the need to bring Suzuki and Bob’s Machine Shop into the case, but add little to what they said before.

As to Mrs. Barhanovich’s claim they did not include a brief, Bean and Archer claim their motion essentially functioned as the brief. They say it would have been superfluous to have included any more materials.

Bean and Archer claim Mrs. Barhanovich overreached by looking forward to the kinds of defenses that might be offered by Suzuki (like you have no jurisdiction over us we are in Japan, and besides that our U.S. division went bankrupt after the accident and dumped any future product liability issues based on accidents prior to the bankruptcy). Bean and Archer say Suzuki and Bob’s Machine Shop should be brought into the litigation to let it play out after discovery and depositions.

As to the challenges of serving and suing companies based in Japan, Bean and Archer spend the bulk of their response trying to convince the court it would not be difficult. One suspects Bean and Archer would think otherwise if the situation were reversed.

Mrs. Barhanovich questioned as to whether Suzuki and Bob’s Machine Shop could even legally be brought into the suit as it is under a limitation of liability proceeding (Jone’s Act) which would not apply to them. Bean and Archer say third party claimants are routinely brought into limitation of liability proceedings and if that is not enough, this case has already consolidated Mrs. Barhanovich’s suit into the limited liability proceedings. Third party issues could be considered to be in her part of the case and not in the limited liability part.

In general, we were disappointed. We thought Bean and Archer would throw some facts, numbers, examples, evidence, etc into their response explaining why Suzuki and Bob’s Machine Shop are at least partially to blame and why it is critical to include them in this suit. We are pretty convinced their arguments failed to sway Mrs. Barhanovich, and feel they presented little more to sway the court than was already in their earlier motion.

27 March 2014 Update

On March 21, 2014 Bean and Archer responded to Barhanovich’s revised complaint. As would be expected they say it was Barhanovich’s or other party’s fault, not theirs. They do list a few pretty harsh claims we will not repeat here. Those were probably added to try to scare his family out of suing them (if you sue us we will air out your dirty laundry in court and if you don’t have any we will make some up anyway). They also say Mrs. Barhanovich (his wife) has not yet qualified as Mark Barhanovich’s legal succession representative and thus her claim is barred by law.

On March 25 Mrs. Barhanovich filed an unopposed motion for the right to respond one more time to Bean and Archer’s response to her response to their request to bring Suzuki and Bob’s Machine Shop into the case. On March 26, her request was granted. She must file her comments by April 3, 2014. Such a response (responding to their response to her response to their motion) is called a Sur-Reply Brief. Sort of reminds us of the country song she was looking back to see
if I was looking back to see if she was looking back at me.

7 April 2014 Update

On April 4, 2014, Mrs. Barhanovich responded to Bean and Archer’s response to her response in a Sur-Reply Brief. In the brief, she reiterated that Bean and Archer’s motion to add Suzuki and Bob’s Machine Shop to the mix failed to comply with local rules (it did not include a legal brief supporting their position). She says they also failed to explain how Mississippi law could exert a claim against the American division of Suzuki that did not exist til after the accident (emerged from bankruptcy) or how the court could hold Suzuki Japan liable for act or omissions of a subsidiary corporation. (Bean and Archer doesn’t care if Suzuki escapes, they just want to lay as much blame on them as possible.).

Mrs. Barahanovich says Bean and Archer’s Third Party Complaint alleges defective design, defective materials, and failure to warn with respect to Suzuki and Bob’s Machine, but Bean and Archer provide no alternative design, identify no manufacturing defect, and do not say the manufacturer was aware of or should have been aware of the hazard that consumers were not aware of. (We anticipate Bean and Archer would say the details are to be held for the legal process, for after Suzuki and Bob’s Machine Shop are brought into the case.)

She notes Bean and Archer fail to explain how they could shift all of their liability to the potential new players under Admiralty Law (limited liability which they have not yet been granted).

As to Suzuki’s involvement, she points out her husband bought the boat used and it may have even traded hands before that as well. Would Suzuki’s potential liability pass down that chain? Once again she points out the potential delays of trying to serve legal documents on a company in Japan. Bean and Archer cited a reference claiming Mrs. Barhanovich could serve legal documents in Japan by mail, however her attorneys found more recent cases saying the Haugue Convention (international law) does not allow service by mail.

The most interesting part of her brief was revealing some information about other boats striking the pipe. In a deposition, a representative of Matthews Marine (subcontractor to Bean) said they actually observed three separate boats crashing into the pipe on the first day it was put in place. A Project Superintendent for Bean had to tow one of them back to port. Records of other collisions were discussed including hearsay evidence of many more.

Suggestion to Mrs. Barhanovich’s legal team – reread the article, “Coast Guard Investigating if Dredge Pipe Played Role in Accident” published 22 September 2012 in the local Sun Herald. The article includes several accounts of people striking the pipe and this quote from one person striking the pipe, “Guys working the dredge said I was the sixth boat in two hours to hit it.” (you might want to track that person down). The Coast Guard also noted, Sea Tow was sitting in the channel in plain sight (just waiting to haul the next victim off). We suggest you consider issuing a subpoena to Sea Tow (local and national) requesting their records related to coming to the aid of people striking the pipe if you have not already done so.


23 April 2014 Order Grants Motion to File 3rd Party Complaint

On April 23, 2014, the Judge Robert H. Walker, granted Bean and Archer the right to file a 3rd party complaint.

The court recognized many of the objections made by Mrs. Barhanovich to granting this motion. She said Bean and Archer did not file a brief citing previous legal decisions supporting their request. The court said that was not a fatal mistake and notes the several briefs since filed by both sides present sufficient legal discussion of their request.

The Court notes that bringing anybody into the case would probably delay the court date but a delay by itself is not sufficient reason not to bring them in.

The Court acknowledges:

  • Suzuki Motor of America (SMA) did not exist at the time of the accident (was since formed from a bankruptcy)
  • SMA does not have successor liability under the bankruptcy plan (says you can’t sue them for accidents previous to their formation)
  • Bean and Archer fail to legally explain the interplay between Mississippi Product Liability Act and Admiralty Law
  • The proposed complaint supplied by Bean and Archer did not allege there was a manufacturing defect, or that the manufacturer or seller should have known about that defect (danger)
  • Joint and several liability prevents Bean and Archer from accepting indemnity or contributions from third party defendants.

Bean and Archer claiming they have no liability. They say it was all Suzuki and Bobs’ Machine Shop’s fault.

Judge Walker said the issues above may require further discovery and further development (more legal discussion by both sides) before they can be fully resolved by the Court. Therefore the court orders those issues should be discussed with regards to the specific motion (whatever 3rd party motion Bean and Archer file) rather than being discussed and decided a step earlier (trying to sway the Judge with respect to a ruling on Bean and Archer being able to file a 3rd party complaint or not). As a result, the Court grants Bean and Archer the right to file a 3rd party complaint.


8 May 2014 Update – Bean and Archer file 3rd Party Complaint

On 1 May 2014, Bean and Archer officially filed a third party complaint against Suzuki Motor Corporation, Suzuki Motor of America, Inc. and Bob’s Machine Shop.

We thought the complaint they previously filed as an example might be considerably revised before filing to address some of the issues raised by attorneys representing Barhanovich, but the filing looks quite similar.

The Judge must still decide whether or not to accept it (to bring these three new parties in as defendants or not) and both sides (Bean/Archer and Barhanovich) will probably get a chance to promote their views before his decision.

We anticipate both sides will present viewpoints similar to the ones they expressed for and against the example 3rd party complaint Bean and Archer supplied earlier. However, it looks like the procedural objection by Barhanovich (Bean and Archer did not file a brief with their initial plea to file a 3rd party complaint) is no longer relevant.

Meanwhile, all three parties (Bean, Archer, Barhanovich) filed a stipulation on the priority of any payments from Bean’s limited liability defense. The stipulation also recognizes Bean’s access to a limited liability defense can still be challenged (maximum liability limited to value of the vessel and its contents) as well as the exact value of the vessel and its contents.


16 May 2014 Update – Summons issued to 3rd party defendants

On 9 May 2014, the court issued a summons to each of the third party defendants (Bob’s Machine Shop, Suzuki Motor Corporation, and Suzuki Motor of America asking them to answer the third party complaint. Their answers must be served to the defendant and plaintiff attorneys within 21 day of when it was served on them.

We are curious to see the answers. Traditional first round answers to propeller injury complaints are very minimal and evasive because they know they are in it for the long term. In this instance one or more of these three firms may try to supply some real answers hoping the court will let the off. Part of the problem for them is the accusations are very vague. The “A” thru “G” listing of ways SMC,SMA, and Bob’s were negligent according to Bean and Archer are not very explicit (like saying SMC and SMA were negligent in design and /or manufacturing of the motor without explaining what was wrong with it). Item “G” is just a catchall saying they were negligent in other ways that will be shown at the trial (its hard to definitively answer that statement, you can just brush it off and say we can’t respond to stuff they don’t list). We suspect much of their answers will be outside of responding to “A” thru “G”. Suzuki will be telling you they got a “get out of jail free card” with the bankruptcy and are not liable for anything. Bob’s will tell them that nobody has said the jackplate failed, and if it did, it would not have failed if the outboard did not hit your poorly marked dredge pipe. There will not be a lot of love lost among the defendants, its everybody for themselves.


10 July 2014 Update – 3rd Party Defendants responses update

On 26 June 2014, Suzuki US and Suzuki Japan were granted an extension to 21 July 2014 to respond (to file a response/reply). First responses typically deny any culpability and deny everything or say they need more information.

On 3 July 2014 RMS International and BMS International responded to the claims filed against Bob’s Machine Shop (builder of the jack plate). They provide a brief corporate history of “Bob’s Machine Shop”. They say Bob’s Machine Shop was:

  • Incorporated in Florida about 10 April 1984
  • Acquired by BMS International on 28 January 2003
  • Administratively dissolved on 19 September 2003
  • BMS continued to operate the business until it was acquired by RMS International on 31 December 2010
  • BMS International was dissolved on 20 June 2011
  • The used boat was sold to Mark Barhanovich on 11 October 2011, after the events listed above
  • The accident occurred 16 September 2012, long after the events above

They say “Bobs Machine Shop” is at best, an unregistered trade name or a d//bs/. Bob’s Machine Shop is not a distinct legal entity or a proper party in this suit.

RMS and BMS go on to say, they have seen no information as to the jackplate make, model, or serial number. Without such data they cannot speak more directly to this accident.

Side note – it might be interesting to ask BMS and RMS about Bob’s retrofit kit for all jack plates built before August of 2006.

9 July 2014 Jerry Barhanovich announced her intent to depose several individuals.


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Comments

  1. What did the Coast Guard investigation of this accident conclude? Anyone seen a report? Sounds like both sides are just saying what they want to hear and ignoring or trying to hide facts they don’t want the judge to hear.

    • I spoke to the USCG office handling the investigation some time ago. They said they will not release the report until the legal matters are resolved. Seems like USCG does not want their report being used as the basis of deciding legal matters. Therefore it will fall to the legal system to determine any potential liability of the defendants. MAIB does the same thing in the UK, but they go ahead and release their reports with a disclaimer stating they are not be used in legal matters.

      gary

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