Jerrie Barhanovich, widow of Mark Barhanovich filed suit against C.F. Bean and Archer Western Contractors in the death of her husband resulting from a boating accident in which his boat allegedly struck a dredge pipe.

We previously covered the accident in Mark Barhanovich Boat Propeller Accident at Deer Island Near Biloxi, MS: Dredge Pipe Strike?.

We also covered the Jones Act suit by C.F. Bean, their attempt to limit their potential liability in this accident.

Now, Jerrie Barhanovich has filed suit in those proceedings. Her case is: Jerrie P. Barhanovich, Executrix and Personal Representative of the Estate of Mark Barhanovich, Deceased.

It was filed 20 March 2013 in U.S. District Court for the Southern District of Mississippi.

The claim begins by describing the September 16, 2012 accident that claimed Mark Barhanovich’s life. It says a vessel in navigation (the barge) created a submerged obstruction (the dredge pipe) and failed to adequately “monitor, mark, light, and warn” of the obstruction.

Claims are being made under admiralty and maritime law. Bean and Archer are subject to jurisdiction because they were the proximate cause of Mark Barhanovich’s injuries, and their acts arose from a contract in part with the State of Mississippi.

The FIRST CLAIM is for Maritime Negligence and Negligence Per Se for an Obstruction to Navigation.

Archer Western is a construction business. In 2012, Archer Western won a State of Mississippi contract for the Mississippi Port Authority Restoration Project which included dredging and transporting the spoils to Deer Island.

Archer Western subcontracted the dredging to C.F. Bean. Archer Western Contractors agreed to provide a full time Quality Control Representative and to to verify compliance with the contract specifications. Part of those specifications called for conducting dredging operations in a manner that caused the least obstruction and inconvenience to public traffic and to furnish, erect, and maintain lights, warnings, and directional signs to give adequate warning to the public at all times.

The dredging operations were to display signal lights and conduct operations according to the General Regulations of the U.S. Army and the U.S. Coast Guard. Archer Western was to provide lights and buoys between sunset and sunrise for equipment that could endanger or obstruct navigation. Archer was also to provide lights for observing the dredging operation when it was running at night. Those lights were to conform to USCG color and visibility regulations.

Under their subcontract, Bean Dredging agreed to perform and supervise the work. In the subcontract, Bean Dredging certified they were familiar with the Archer Western contract documents and were bound by them.

Archer Western Contractors and Bean Dredging left the dredge pipe submerged in navigable waters near Deer Island on the morning of September 16, 2012. Those sections of pipe were not resting on the bottom, and they were inadequately monitored, marked, lighted,and inspected. In addition, they were not visible to vessels on the surface.

The morning of September 16, 2012, Mark Barhanovich and one other person set out in a 24 foot outboard powered boat to Katrina Reef in Mississippi Sound. During that trip, Mr. Barhanovich’s vessel came in contact with the submerged dredge line. That contact caused the outboard motor to flip into the vessel. It’s propeller “struck, cut, and severely injured” Mark Barhanovich. He was taken to Ocean Springs Hospital and died later that day.

The Defendants were negligent per se. Their failure to comply with federal law is a violation of the Pennsylvania Rule. Now the burden of proof is shifted to the defendants. They must prove their acts and omissions could NOT have caused the accident.

The SECOND CLAIM is for Punitive Damages.

The defendants knew or should have known of previous accidents in which vessels struck the dredge line near Deer Island. However, the defendants continued business as usual. They failed to adequately monitor, mark, light, inspect, or warn of the hazards of the dredge pipe. Those wanton and grossly negligent methods, policies, and conduct resulted in the accident that claimed the life of Mark Barhanovich.

The plaintiff asks for judgement against Bean and Archer Western for compensatory damages sufficient to cover:

• Medical expenses
• Funeral and burial expenses
• Cost of Estate Adminstration
• Conscious pain and suffering

The plaintiff also asks for wrongful death damages and for punitive damages in an amount seen fit by the court.

Serving as co-counsel for Jerrie Barhanovich in this matter are Paul T. Benton of Biloxi, David A. Wheeler of Wheeler & Wheeler of Biloxi, and Wynn E. Clark of Gulfport, Mississippi.

Updates

25 March, 2012 – Archer Western Contractors and C.F. Bean were personally served summons requiring them to respond to these claims within 21 days.

25 April, 2013 – Archer Western Contractors LLC added Michael W. Ulmer AND H. Ruston Comley, both of Watkins & Eager to their defense team.

25 April, 2013 – Archer Western Contractors moved for an extension (delay) to respond to the complaint. Archer says it just added the two new attorneys today (listed above) and needs additional time to “evaluate the case and potential defenses” as well as to respond to the complaint. The plaintiff agreed to an extension until May 8, 2013.

26 April 2013 – The Judge allowed Archer Western Contractors the extension to May 8, BUT said Archer must answer the complaint on or prior to May 8 or other wise plead by the same date.

3 May 2013 Archer Western responded to the claim. Their response is summarized below.

Archer Western’s Response to the Claims

May 3, 2013, Archer Western responded to the claims made upon them by Jerrie Barhanovich. Their response is summarized below.

Archer states 10 defenses against those claims:

1. Plaintiff failed to state a claim upon which relief could be granted in each and every cause of action.
2. The accident may have been caused at least in part by 3rd partied for which they are not responsible.
3. Any duty to mark the vessel or pipe was the responsibility of the vessel owner or operator, not theirs
4. The Plaintiff or the deceased is neither a beneficiary in the contract with the Port Authority so they lack standing to assert a claim against Archer.
5. The deceased knew or should have known about the dredge pipe.
6. The deceased did not exercise ordinary care or caution. Such negligence bars Plaintiff’s recovery or comparatively reduces any fault of Defendant.
7. Any judgement against Archer must be limited to the proportion of any fault attributed to them as opposed to the fault of the deceased and that of others.
8. Archer is without knowledge or information sufficient to form a belief as to the truth in some of the allegations.
9. Archer Western has asserted a claim for defense and indemnity against C.F. Bean in this same court. However the court has stayed any actions against Bean. Thus Archer is unable to make claims against Bean in this case. If the stay is lifted in that case, Archer reserves the right to file against Bean in this one.
10. Similarly, Archer has been stayed from filing against any Bean underwriters (insurance policies), if that stay is lifted, Archer reserves the right to file against them over here.

Like we said earlier (actually in the PGIC Comments below), these responses are pretty easy to write – its everybody else’s fault and we don’t have enough information to figure out the rest.

Archer then went on to respond to the claims and subclaims.

1st Claim – Maritime Negligence and Negligence Per Se for an Obstruction to Navigation

In general, Archer primarily relies on the contract and say the contract speaks for itself (they have no responsibility).

Archer is without knowledge or information sufficient to form a belief as to the truth of some of the claims, therefore they deny them.

2nd Claim – Punitive Damages

Archer denies Plaintiff is entitled to any damages, including punitive damages from them.

Again, as we mention below, these responses are pretty easy to write. The problem is when you have to defend them in court against the evidence and experts the Plaintiff assembles. That could be a long ways off. At the moment, the players are just posturing and pointing fingers.

PGIC Comments

It seems a bit odd to ask for a delay in responding to the complaint when we all know how industries initially responds to similar complaints (its not our fault, even if he did hit the pipe its still not our fault, the contractual issues are much more complex than represented by the Plaintiff (each side of the contract thinking more responsibility lies on the other side), we don’t have enough information yet, we are still studying that situation, it was the boat operator’s fault, we have no knowledge of prior collisions with the pipe, etc.). Initial responses are pretty easy to script, you just deny everything or say you do not yet have enough information, you are still studying it, or its somebody else’s fault. Plus in this instance, they will list a few reasons why they think the Pennsylvania Rule does not apply to them. We have seen enough initial responses we could write this one ourselves. The real problem comes when the Plaintiff begins to individually challenge those responses with some significant evidence and you have to defend your answers (or give up some ground and defend a new position).

Of extreme importance to the Defense in this case to try to stay under the Limitations of Liability Act. If they get knocked from under that umbrella, potential awards could several times the value of the vessel and its contents.

We may see Bean and Archer shoulder to shoulder fighting to enforce the Jones Act / Limitation of Liability Act AND to keep the Pennsylvania Rule from being applied. Then turn on each other when it gets to assigning any potential blame.

An elephant in the room not yet mentioned is the man himself. Mark Barhanovich was larger than life. He was a very successful businessman, son of the man for whom the city stadium was named, major fixture in the community, philanthropist, exceptional high school baseball and football athlete at Biloxi High School, played football at nearby University of Southern Mississippi, and loved by all. The city even named a park after him after his passing. We would not be surprised to see some civic organizations or causes chime in with claims against Bean and Archer Western for killing their benefactor. A sense of his character and importance to the community will come out in a trial if it goes that far. We suspect C.F. Bean and Archer Western Contractors may not yet understand the importance of this particular man to his community and to his family and how that might play out with a jury.

This case / filing by Jerrie Barhanovich is in response to C.F. Bean and Bean Meridan filing a Jones Act suit in an effort to limit their liability. As part of that suit, the Judge ordered anyone with a claim in behalf of Mark Barhanovich’s death to file such a claim in this court by May 6, 2013.

We notice the plaintiff’s claims fail to list a couple items we are used to seeing separately listed in propeller cases:

• Lost wages
• Loss of consort / consortium (loss of spouse, father, husband, brother, etc)

Those claims are probably included in the “wrongful death damages”.

We still suspect that if C.F. Bean starts going down with the ship, they will try to drag the boat manufacturer and outboard manufacturer (and/or their insurance companies) down with them to share the blame (financial responsibility) stating that even if the outboard did strike the dredge pipe, it should not have flipped up into to boat and caused his injuries.

Plus we still anticipate some discussion about the actual navigability of the waters in which the accident took place (were in shallow waters that may not be considered navigable by commercial vessels which may impact the Jones Act Limitations).

The plaintiffs may actually want to be over here in Maritime law to gain the Pennsylvania Rule which basically states that if a ship is in violation of a navigable statute intended to prevent collisions at the time of the collision, the ship is presumed to be at fault. It shifts the burden of proving causation. Instead of the plaintiff having to prove the violation caused the collision, now the plaintiff must prove that it did not.

Jerrie Barhanovich is claiming Bean failed to properly mark and warn of the dredge pipe which they were required to do, therefore, they are presumed to be at fault. This relieves the plaintiff from having to prove Mark Barhanovich’s boat actually struck the dredge pipe. Now Bean has to prove Barhanovich did NOT strike the dredge pipe. Plus, if the plaintiff can prove negligence, the Jones Act limitations melt away.

If the analysis above is correct, this is somewhat of an odd case. Traditionally boat builders and drive manufactures start yelling Navigable Waters right after an accident on large bodies of water trying to limit their potential liability while injured parties are trying to stay over in the normal court system. In this event, it may prove to be in the best interest of the injured party to agree the waters are navigable.

Plus we anticipate Archer Western Contractors will try to lay the blame on C.F. Bean (their subcontractor). Archer will claim the dredge pipe did not contribute to the accident, but if the court finds it did, any fault lies with C.F. Bean who assumed that responsibility when they signed the subcontract.

The lawyers, judges will have to sort it out, possibly with the assistance of a jury.

The Black Box

A full trial would include detailed inspections of the boat, outboard motor, propeller, accident site, etc. We suspect the boat and motor have been stored and locked up somewhere. One point the lawyers involved may not be aware of is that most large modern outboard motors have a “black box” on them just like aircraft and modern automobiles. The industry sometimes calls them an Event Data Recorder or EDR. A chip (Engine Control Module or ECM) records several variables including RPM for the last few minutes of the motors operation. We suggest those in charge make sure that record remains intact and has a chain of custody as it might contribute a “snapshot” of what was happening at that time. When outboard motors strike something and flip into the boat, the engine begins to over rev as soon as the prop begins to clear the water allowing that point to be clearly identified in the data.

References

• Mark Barhanovich Boat Propeller Accident at Deer Island Near Biloxi, MS: Dredge Pipe Strike?
• Jones Act suit filed by C.F. Bean
• Boat or Boat Motor Struck Submerged Dredge Pipe: Exemplar Boat Accidents
• Outboard Motor Struck Submerged Object And Flipped Into Boat: Exemplar Outboard Boat Accidents
• Laass vs. Storm Lake, et al. (Mercury Marine and Lund Company) Settled – a dredge pipe strike fatality