Barhanovich case: Suzuki released, Bean appeals

Mark Barhanovich

Mark Barhanovich

The fatal propeller accident in which Mark Barhanovich’s boat allegedly struck a dredge pipe and the Suzuki outboard motor broke off, flipped into the boat and struck him with the propeller has resulted in perhaps the most complicated propeller accident case ever with no end in sight.

Mr. Barhanovich was a cherished, well known citizen of Biloxi Mississippi with a young family when the accident occurred off Deer Island Mississippi in September 2012.

Recently Suzuki was released from the case, but Bean quickly appealed and the case is now in the U.S. 5th Circuit Court of Appeals.

We will back up a little and describe events leading up to the latest actions.

Initially in March 2013, Bean (the dredging firm) filed what we describe as a Jones Act suit in U.S. District Court for the Southern District of Mississippi trying to limit their liability to any potential claims to the value of their vessel (barge) and its contents.

Later that same month, Mr. Barhanovich’s widow filed a claim against Bean and Archer (Archer was another firm involved in the dredging operation).

The case was primarily Mr. Barhanovich’s family claiming the dredging operation was not properly marked and warned against.

In February 2014, Bean filed a Third Party Complaint wanting to bring Suzuki (manufacturer of the outboard) and Bob’s Machine (manufacturer of the jack plate) into the case. Bean was later allowed to do so.

Suzuki (America), Suzuki (Japan), and Bob’s Machine were brought into the case.

Bob’s Machine was fairly quickly released. They were granted summary judgement and dismissed from the case.

Further complicating the matter, the U.S. version of Suzuki at the time of the accident declared bankruptcy since the accident and prior to filing against them in this case. The new U.S. version of Suzuki was released from the case because they did not exist at the time of the accident and part of the terms of the bankruptcy was to shed any such liabilities.

Beyond the complications of dealing with a Japanese company (distance, language, culture, metric system), the U.S. Coast Guard took a tough stance on access to the boat involved in the accident. Experts were basically only able to look at the boat. No one was allowed to run metallurgical tests on the failed components.

In early September 2015, Bean reached a monetary settlement with the Barhanovich family and that portion of the case officially ended on 22 October 2015.

That left Bean and Archer suing Suzuki (Japan) trying to recover some of the funds Bean paid the Barhanovich family.

On 16 October 2015, the U.S. Attorney General’s Office filed a criminal case against Bean for criminal negligence in marking the location of the dredge pipe resulting in the death of Mark Barhanovich.

Eleven days later, 27 October 2015, Bean plead guilty and received the maximum fine possible, $500,000.

Suzuki tried to prevent Bean’s expert, Edward Fritsch, from testifying and to have his expert reports thrown out of the case. Bean planned to use him to show why the outboard failed and it was Suzuki’s fault.

On 16 November 2015 Suzuki was successful in striking Mr. Fritsch’s expert report, supplemental report, and his testimony from the trial.

Bean moved the Court reconsider its decision to ban Edward Fritsch and his reports from the case. The Court affirmed their original stance. Not much was going well for Bean at this point. They lost their expert and they had little left to throw at Suzuki.

23 November 2015 Suzuki was granted summary judgement and dismissed from the case. The remaining motions included one to exclude testimony of Don Kueny, Suzuki’s expert, were denied as moot (the motions no longer matter).

25 November 2015 cross claims between Bean and Archer were dismissed. The case is over.

30 November 2015 the Court issued Final Judgement. “All claims in this matter have now been resolved”.

So much for that.

2 December 2015 Suzuki filed for approaching $19,000 worth of court costs (predominately for copies of transcripts from the Court).

16 December 2015 the Court billed Bean and Archer for those charges.

22 December 2015, Bean appealed the Court’s rulings regarding Suzuki, and the recent court costs.

23 December 2015 Archer joined in the appeal.

20 January 2016 the appeal was docketed for the U.S. Court of Appeals 5th Circuit as Bean v. Mark Barhanovich.

Here we go again.

Thoughts – we are certainly not lawyers and recognize Bean made grievous errors before and after the accident. Placing that aside, Bean faced severe challenges in the Suzuki portion of this case.

  • Suzuki was brought into the case relatively late.
  • Too many sealed cases of previous outboard motors flipping into boats. McMahon sealed by Suzuki, McFarlin sealed by Mercury. Bean was unable to use previous testimony, documents, and accidents in their case against Suzuki.
  • Suzuki supplied one gentleman, Nobuyuki Shomura, from Japan who could have been said to have been very unforthcoming with his testimony about much of anything, including the 1987 McMahon case involving a Suzuki outboard.
  • The Coast Guard totally refused to allow non-destructive or destructive testing of the boat or marine drive involved in the accident and limited access to it.
  • All the distance, language, and cultural barriers real or unreal but used as a barrier by Suzuki (Japan).
  • Loosing U.S. Suzuki as a potential third party claimant due to a previous bankruptcy.
  • Much of the technical information supplied by Suzuki was in Japanese and in metric units
  • During a critical time in this case, Bean was distracted by having to face criminal charges in the same matter brought forth by the U.S. Attorney General’s Office.
  • Bean’s public relations image took a big hit which may have limited some of the resources available to them.
  • A couple of Bean’s experts were challenged for borrowing materials from our web site for their expert report without crediting the source. The court found the issue moot when the family settled, however if Bean tries to bring them back in the appeal they may still face that hurdle.

While all the legal moves and findings are interesting, let us not forget this all began with the death of a great man, larger than life to his community and to his family.

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