Mark Barhanovich: C.F. Bean Limitation of Liability Case Update 9 May 2013

C.F. Bean, operator of the dredging operation allegedly struck by Mark Barhnovich’s boat in his December 2012 fatality near Deer Island, Mississippi previously filed a Praying for Exoneration From or Limitation of Liability case in this matter. We covered Bean’s filing at Jones Act Suit by C.F. Bean.

We also covered the filing by Mark Barhanovich’s widow in the same U.S. District Court for Southern Mississippi at Barhanovich v. Bean & Archer.

Now, both sides are beginning to respond to each other.

On 3 May 2013, Archer Western (the overall contractor) filed in response to Bean’s Claim for Exoneration or Limitation of Liability. In their 5 page filing Archer basically says they (Archer) are totally indemnified by Bean in the contract. In addition to Archer being protected from any lawsuits, Bean is also contractually obligated to pay any attorney fees, court costs, and legal expenses Archer might incur.

The contract between Archer and Bean required Bean to list Archer as an additional insured on their insurance policy and that coverage is to be primary. The insurance was provided by Gulf Coast Marine Subscribers and Starr Indemnity and Liability Company.

In early April, Archer wrote Bean and its insurers requesting indemnification in this case. They received a response from Starr denying coverage. Starr says their policy expressly excludes coverage for the claims made in this lawsuit. They (Starr) suggest Archer contact the other insurer. Bean says the demand is being reviewed by their underwriters.

Archer claims Bean is liable to its attorney fees and costs to date (plus all future costs) due to their failure to insure, defend and indemnify Archer.

Archer says Bean’s insurers are liable to Archer for those same costs, and Bean is contractually liable to Archer for any judgements against Archer in this case.

Archer also says their agreement with Bean is a personal contract and not subject to exoneration or limitation, so the court should in no way limit Bean’s potential liability in this case.

PGIC comment – classic contractor vs. subcontractor vs. insurance companies situation. When asked who will pay the damages, everybody points at the other guy.

On the same date, 3 May 2013, Archer also filed their answers to claims made by Bean in Bean’s filing for Exoneration or Limitation of Liability.

Archer says are without knowledge or information sufficient to form a belief as to the truth of many allegations made by Bean.

Archer denies that Bean is entitled to exoneration or limitation of liability because Bean and/or their insurers are contractually obligated to defend and indemnify Archer.

Archer only completely admits to one item in Bean’s request, that Bean filed its request for exoneration or limitation of liability with six months of the accident.

Archer requests the court to lift a ban and allow Archer to cross file against Bean.

Archer says they have not yet seen Bean’s insurance policies and seeks the court to allow Archer to cross file against the insurers as well.

3 May & 6 May 2013 Some new attorneys were added to this case:

  • H. Ruston Comley of Watkins & Eager for Archer Western Contractors
  • Paul T. Benton of Paul T. Benton for Jerrie Barhanovich
  • David A. Wheeler for Jerrie Barhanovich

6 May 2013 Jerrie Barhanovich filed her Answer, Defenses, and Claim against Bean in Bean’s request for exoneration of limitation of liability. As part of her filing, she asserts a survival and a wrongful death claim against Bean and Archer.

Defense 1 – She says Bean filed for exoneration of limitation of liability before any claims had been made against them. Thus they lacked the standing to assert such a claim (Bean could not ask for protection against something that had not happened yet).

Defense 2 – Bean’s claim does not contain enough information to determine if they are entitled to their request.

Defense 3 – The accident happened within Bean’s knowledge and thus they are not entitled to their request.

Defense 4 – Bean’s negligence and unseaworthiness of their vessel removes the limitations of liability from the table.

Defense 5 – Bean’s personal participation in the negligence also precludes them from being entitled to the limitations of liability act.

Defense 6 – Bean had prior knowledge of the vessel’s unseaworthiness and knowledge of other similar accidents with this dredge pipe making them ineligible for limitations of liability.

Defense 7 – Bean failed to comply with federal, state, and local laws under its subcontract relevant to safety equipment and marking the location of the pipe.

Defense 8 – Being aware of the fault and unseaworthiness of the vessel, Bean violated the dredge permit, contract, subcontract, regulations, and USACE health & safety manuals.

Defense 9 – Bean executives are presumed to have known of the problems that caused the death of Mark Barhanovich.

Defense 10 – The knowledge of the master of the vessel (barge) or the owner’s supervisor is imputed to the owner by U.S. code.

Defense 11 – Bean’s estimate of value of the vessel was wrong. The estimate should have included all vessels in the floatilla (all vessels being used to perform the contract).

Defense 12 – Jerrie Barhanovich reserves the right to move her case to a court of her choosing and not be forced into this one (U.S. District Court of Southern Mississippi).

Defense 13 – If the barge of vessels in floatilla somehow demise with respect to Bean (like they sink or burn), Bean remains liable for their unseaworthiness prior to that event.

Defense 14 – If Bean time chartered the vessel between its own companies (rented it internally) the limitation of liability cannot be invoked by Bean Meridian.

Defense 15- Jerrie Barhovich is the single claimant in this case as the personal representative of the deceased. Any other beneficiaries would be under her claim.

Defense 16 – She goes through Bean’s complaint paragraph by paragraph. As is common, she also reports being without knowledge or information to answer some of the questions.

She does agree that Bean Dredging and Bean Meridian deny Mark Barhanovich’s vessel collided with the pipe. Similarly, she admits Bean Dredging and Bean Meridian claim protection by the Limitation of Liability Act.

Barhanovich admits she and other wrongful death beneficiaries collectively seek a wrongful death claim in excess of the value of the Bean 20 barge and its freight/contents (the vessel and contents were valued at about $2.4 million).

Then she states her wrongful death claim against Bean (the dredging subcontractor) and against Archer Western Contractors (the contractor) as well. Her claims include: loss of services, society, companionship, guidance, training, nurture, support, future earnings, inheritance, present net cash value of his life expectancy, and other wrongful death damages.

Based on her previous statements and knowledge the defendant’s had or should have had, and their continued use of negligent methods, she explains why she should receive punitive damages as well.

Barhanovich closes by asking the court to dismiss the Defendant’s claim for limitation of liability, and that she be compensated for her husband’s property damage (damage to the boat), personal injuries and damages, medical expenses, funeral and burial expenses, estate administration costs, his pain and suffering, wrongful death damages, and punitive damages.

PGIC Comments

With the contractor already going after the subcontractor and the two insurance companies this one may get messy. If it ever works its way to the courtroom, they might need a whole bunch of separate tables to seat them.

Anybody else that wanted in this case (had a case against Bean in this accident) was supposed to file in this court by May 6th. That date has since passed, so it appears Jerrie Barhanovich as Personal Representative will be the sole claimant. Other parties (Archer and the insurance companies) are joining into the fray trying to protect themselves.

We still anticipate more parties at some date. If Bean and/or Archer starts to sink we anticipate they may go after the boat company and/or outboard manufacturer claiming the drive should not have flipped up into the boat as a means to limit their potential liability.

Further Updates

14 August 2013 – we noticed a note on the case docket tonight saying they were going to inspect the vessel involved in the incident tomorrow (August 15th). From the brief note it is not obvious which vessel they are speaking of (the barge or the recreational boat). Without experts being publicly identified yet, we suspect this inspection has mostly to do with the issues surrounding Bean’s trying use the Jones Act to limit any potential liability they may face.

16 October 2013 A Case Management Order set dates for designating experts. Barhanovich by 8/1/2014, CF Bean and Archer by 9/2/2014. It also set a date for designating rebuttal experts by Barhanovich of 9/16/2014. Discovery is due by 12/31/2014 and a three week trial has been scheduled to begin 8/3/2015.

18 October 2013 Jerrie Barhanovich was granted a previously requested extension of time to complete discovery. She will now be allowed to serve discovery responses on or before 11/4/2013.

12 November 2013 Matthews Marine, Inc (crane barge services, towing services, marine salvage) has returned a subpoena (filled it out).

4 December 2013 Ferrara Land Management has returned a subpoena (filled it out).

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