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In re Complaint of Operation Bass, Inc.

United States District Court, W.D. Tennessee, Eastern Division

December 5, 2017

In the Matter of the Complaint of Operation Bass, Inc., as Owner Pro Hac Vice of the 2011 Ranger Z520 20' 9” Boat with Hull Identification Number RGR04271A111, for Exoneration from or Limitation of Liability
v.
FISHING HOLDINGS, LLC, OPERATION BASS, INC., and SHINICHI FUKAE, Defendants. In the Matter of the Complaint of Fishing Holdings, LLC, as Owner of the 2011 Ranger Z520 20' 9” Boat with Hull Identification Number RGR04271A111, for Exoneration from or Limitation of Liability ROBERT GULLEY, Plaintiff, and THE HARTFORD INSURANCE COMPANY, Intervenor Plaintiff,

         ORDER GRANTING DEFENDANT FISHING HOLDINGS, LLC's MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT SHINICHI FUKAE'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM FOR MEDICAL EXPENSES; GRANTING DEFENDANT OPERATION BASS, INC.'s MOTION FOR SUMMARY JUDGMENT; AND GRANTING OPERATION BASS, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CLAIMS FOR KNEE AND NECK INJURIES

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         The Court sits in admiralty jurisdiction over claims arising from an accident that occurred during the final day of a professional bass fishing tournament. Before the Court are the four Motions for Summary Judgment and Partial Summary Judgment of Defendants Fishing Holdings, LLC (“Fishing Holdings”), Shinichi Fukae (“Fukae”), and Operation Bass, Inc. (“Operation Bass”) (collectively “Defendants”) on the Jones Act and general maritime law claims of Plaintiff Robert Gulley (“Plaintiff”) in this consolidated matter.[1] For reasons set forth below, Fishing Holdings's Motion for Summary Judgment is GRANTED; Fukae's Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART; Operation Bass's Motion for Summary Judgment is GRANTED; and Operation Bass's Motion for Partial Summary Judgment is GRANTED. Accordingly, the Court finds that Operation Bass and Fishing Holdings are entitled to exoneration from all liability regarding the injuries suffered by Plaintiff, and all of Plaintiff's claims against Operation Bass and Fishing Holdings are DISMISSED. The Clerk is DIRECTED to enter judgment forthwith in favor of Operation Bass and Fishing Holdings as to their Verified Complaints seeking exoneration.

         I. BACKGROUND

         A. Factual Background

         The following facts are undisputed by the parties for the purposes of the instant Motions unless otherwise noted. See Statement of Uncontested Facts, June 30, 2017, ECF No. 93 [hereinafter “Fishing Holdings's Statement of Facts”]; Statement of Material Facts in Supp. of Def. Shinichi Fukae's Mot. for Partial Summ. J. on Pl.'s Claim for Medical Expenses, June 30, 2017, ECF No. 94-2 [hereinafter “Fukae's Statement of Facts”]; Statement of Undisputed Material Facts in Supp. of Operation Bass, Inc.'s Mot. for Summ. J., June 30, 2017, ECF No. 95-2 [hereinafter “Operation Bass's First Statement of Facts”]; Statement of Undisputed Material Facts in Supp. of Operation Bass, Inc.'s Mot. for Partial Summ. J. on Claims for Knee and Neck Injuries, June 30, 2017, ECF No. 96-2 [hereinafter “Operation Bass's Second Statement of Facts”]; Resp. to Allegedly Undisputed Material Facts in Supp. of Operation Bass, Inc.'s Mot. for Summ. J., Aug. 10, 2017, ECF No. 110 [hereinafter “Pl.'s First Statement of Facts”]; Resp. to Allegedly Undisputed Material Facts in Supp. of Shinichi Fukae's Mot. for Summ. J., Aug. 11, 2017, ECF No. 111 [hereinafter “Pl.'s Second Statement of Facts”]; Resp. to Statement of Uncontested Facts by Fishing Holdings, Aug. 14, 2017, ECF No. 114 [hereinafter “Pl.'s Third Statement of Facts”]; Gulley Resp. to Statement of Allegedly Undisputed Material Facts Made in Support of Operation Bass, Inc.'s Mot. for Summ. J. on Claims for Knee and Neck Injuries, Aug. 16, 2017, ECF No. 117 [hereinafter “Pl.'s Fourth Statement of Facts.”]; Corrected (Re Allegation #7) Resp. to Allegedly Undisputed Material Facts in Supp. of Shinichi Fukae's Mot. for Summ. J., Aug. 16, 2017, ECF No. 119 [hereinafter “Pl.'s Corrected Second Statement of Facts”]. While each series of competing statements of facts arises in the context of each Defendant's Motion-that is to say, the particular Defendant's statement of facts as marshalled against Plaintiff's particular statement of facts in response-Defendants have had ample time to review and dispute any of their co-defendants' statements of the facts or a statement made by Plaintiff against their co-defendants. All of the statements of facts have been available to all parties since August if not before.

         1. The Accident

         On June 19, 2011, the final day of a professional bass fishing tournament, a bass boat piloted by Fukae and carrying Plaintiff allided[2] with a bridge, sparking this litigation. Operation Bass, doing business as Fishing League Worldwide (“FLW”), put on the particular tournament. During FLW tournaments, if a fisherman has “made the cut” to the latter portion of the tournament and is thus eligible to compete on either Saturday or Sunday, the fisherman is required to use an Operation Bass fishing boat. Operation Bass had leased all of its fishing boats from Fishing Holdings for the Saturday and Sunday of the particular tournament from which this case arose. On the Sundays of the 2011 tournaments, there would be ten fishermen participating. Each fisherman would be accompanied by a cameraman and using the fishing boats and outboard motors Operation Bass had leased from Fishing Holdings. Once the fisherman arrived at a fishing site, he was allowed under FLW rules to stow the pedestal seat that was provided with each boat in the storage containers on the particular fishing boat. At the end of each fishing season, Operation Bass returned the fishing boats to Fishing Holdings.

         Fukae, one of the professional fishermen participating in the June 2011 FLW tournament, and Plaintiff, the cameraman assigned to Fukae, were both on a 2011 Ranger Z520 20' 9” bass boat (the “Boat”) in Kentucky Lake in Henry County, Tennessee. Fukae was aware that Operation Bass employed Plaintiff and that Plaintiff had no dealings with Fishing Holdings. The Boat was one of the Operation Bass fishing boats leased from Fishing Holdings. At approximately 1:30 P.M., Fukae decided to try one last fishing stop before the tournament's final weigh-in and drove the Boat north. But before doing so, he removed the forward pedestal seat and laid it on the deck between the operator's console and the passenger's console. Fukae has fished out of Ranger boats since 2004 and was familiar with the Boat. Fukae has also confirmed that there was a space on the Boat in which to stow the pedestal seat. Fukae utilized the Boat's hand throttle to control whether the Boat moved forward or in reverse, as well as the speed of the propeller. As the Boat accelerated, the pedestal seat began to bounce and roll. Fukae attempted to secure the pedestal seat with his foot but was unsuccessful. Distracted by the pedestal seat during the Boat's approach, Fukae then looked up to see the Highway 79 Bridge (the “Bridge”) in front of him. The Boat struck the Bridge, throwing Plaintiff into the operator's console. As a result of the impact, Plaintiff claims to have sustained nine broken ribs, a punctured left lung, a ruptured liver, a gash on the head, at least an aggravation of the torn ACL in his right knee, and an injured or re-injured neck.

         2. The Boat

         Plaintiff has admitted that the Boat, as it was outfitted at the time of the accident, was not unsafe, but Plaintiff believes that the boat could have been made safer with a “hot foot” device.[3]A hot foot device is a foot control throttle in a bass boat that resembles a gas pedal. The driver of the boat pushes down on the device to go faster and lets up on the device to go slower. A hot foot device only controls the speed of the boat. If a bass boat does not have a hot foot device, then the speed of the boat is controlled by a hand throttle, which also puts the boat in gear. On a boat with a hand throttle-such as the Boat-there is no reason for the driver to have his hand on the throttle once the boat is up to speed. The only time the driver would need to put his hand back on the throttle would be if he wanted to speed up or slow down. Operation Bass had been using Ranger Boats since 1979. At no point prior to and including the date of the incident had Operation Bass ever leased a boat from Fishing Holdings that was equipped with a hot foot device. Indeed, Ranger Boats does not offer a hot foot device as a standard feature in any of the thousands of bass boats it sells each year. Fukae does not believe that the lack of a hot foot device had anything to do with his collision with the Bridge. From the time that the boat was up on plane[4] until the time of the incident, Fukae never slowed the boat down and both of his hands were on the steering wheel. William B. Taylor was the Senior Director of Tournament Operations for Operation Bass at the time of the incident. Taylor essentially oversees the FLW Tour. Taylor believes that Ranger boats are the best boats on the market. Taylor also believes that the hot foot device has nothing to do with the overall safety of the vessel but is simply a preference of some fishermen. According to Taylor, Operation Bass has previously discussed the issue of safety and hot foot devices but concluded that such devices have no impact on safety.

         Taylor also stated that the Boat had substantial storage space at the time of the incident and that the pedestal seat could be stored in one of three ways: in the well between the passenger and the driver, as was done on the day of the incident; wedged in area designed for the seat to be pushed into; and in the storage area where it is normally stored during travel. The parties agree that no equipment was necessary to secure the pedestal seat that the Boat did not have at the time of the accident. Overall, Plaintiff believes that Ranger makes a very good boat and, in fact, has stated that the only two bass boats he has ever owned were Ranger boats. Fukae also believes that Ranger makes a very safe boat and had no complaints about the design or performance of the Boat. Plaintiff has admitted that he only blames Fukae for failing to secure the pedestal seat and not any of the other Defendants.

         Plaintiff also believes that additional factors beyond the relative safeness of the Boat contributed to his injury: (1) the roughness or choppiness of the water that Fukae and Plaintiff were sent out into during the tournament;[5] (2) all contestants in the tournament were required to fish out of a tournament boat, which meant that some may have been operating equipment they were not familiar with; and (3) contestants were prohibited from removing any equipment from the tournament boat, which caused unnecessary pressure and stress on the contestants because they (a) had to load all their equipment in a limited amount of time and (b) there was no room to store the pedestal seat in a storage compartment on the boat, allowing it to bounce around and distract Fukae. Fukae, however, had fished out of tournament boats many times prior to the incident at issue, and there was nothing about the tournament boat that he was operating at the time of the incident that was new or otherwise unfamiliar to him. Fukae knew how much storage space he had on the Boat and how much equipment he could bring that could be stored. In short, there is no evidence that Fukae's familiarity or lack thereof with the Boat had any effect on whether Fukae was watching where he was going. Nor is there any evidence that any pressure or stress Fukae may have experienced by moving his equipment contributed to him not watching where he was going.

         3. Plaintiff

         After the incident, Plaintiff worked for Operation Bass as a camera boat operator and as a co-angler during the fishing tournament seasons of 2012 and 2013. But since at least the date of the incident, Plaintiff has had no monthly living expenses because he has lived with his mother, who has paid for everything. Plaintiff is now 51 years old, unemployed, and not looking for a job.

         In September 1997, Plaintiff injured his right knee playing football and had an MRI performed that showed he had a torn ACL in his right knee. Plaintiff has never had this torn ACL repaired, so it was still torn at the time of the accident. Plaintiff's right knee began hurting in February or March 2012. Dr. Mitchell Massey, a board-certified orthopedic surgeon, who saw Plaintiff in October 2013 when Plaintiff was complaining of right knee pain, examined Plaintiff's knee as it was then and also reviewed the report from Plaintiff's 1997 MRI. Dr. Massey concluded that this was basically the same injury and noted that a torn ACL that goes untreated for too long will result in an arthritic knee. No doctor has told Plaintiff that his right knee was injured in the accident or that his problems were otherwise caused by the accident.

         In 2003, Plaintiff had cervical fusion surgery. Plaintiff claims he re-injured his neck in the accident, but the precise time when he began having problems with his neck is disputed.[6] Dr. Steven Brooks is a board-certified surgeon who saw Plaintiff at Vanderbilt University Hospital on December 3, 2012. Plaintiff went to see Dr. Brooks because he had questions concerning his June 2011 surgery and other issues with workers compensation. Dr. Brooks conducted a physical examination of Plaintiff, including a musculoskeletal examination and a neurological examination, both of which showed no injury or other abnormality. Plaintiff was complaining of tingling in his hands and right knee pain but admitted to Dr. Brooks that those symptoms did not begin until seven to eight months after his injury.[7] It was Dr. Brooks's opinion that those symptoms were unrelated to the trauma that had necessitated the June 2011 surgery. A CT scan of Plaintiff's head and spine in June 2011 showed no evidence of a cervical spine injury.[8]

         All of Plaintiff's medical expenses-with the exception of the expenses for doctor visits for Plaintiff's problems with his right knee-were paid by Operation Bass's workers compensation carrier, Intervenor Plaintiff The Hartford Insurance Company (“Hartford”).[9] Plaintiff was paid approximately $1, 066.68 per month in workers compensation temporary total disability benefits by Hartford during the periods of time when his doctors said he should not be working. Hartford issued a workers compensation insurance policy with Operation Bass as a named insured. Plaintiff made a workers compensation claim under that policy for the injuries he sustained in the accident.[10] Hartford then paid workers compensation benefits to Plaintiff and his healthcare providers in connection with his workers compensation claim. Hartford paid Plaintiff $13, 104.93 in temporary total disability benefits in connection with his workers compensation claim. The total, undiscounted charges for Plaintiff's medical treatment allegedly incurred as a result of the accident are $272, 806.06. Hartford paid $165, 558.92 in medical bills in connection with Plaintiff's workers compensation claim. Hartford paid all of the medical bills that it received in connection with Plaintiff's workers compensation claim except for two bills from the Tupelo Orthopedic Clinic dated October 7, 2013, and October 9, 2013, in the amount of $207.00 each for treatment of Plaintiff's right knee. Hartford did not pay these two bills based on medical evidence-in the form of the Tupelo Orthopedic Clinic's office notes for these two visits, as well as a medical record dated December 3, 2012, from Dr. Steven Brooks at Vanderbilt University Hospital-that indicated Plaintiff's right knee injury was not related to his workers compensation claim. Prior to treatment by Dr. Brooks and Dr. Massey, Gulley had requested that Hartford authorize medical treatment for his right knee in connection with his workers compensation claim. Hartford denied Plaintiff's request because there was no medical evidence relating the knee injury to the 2011 injury that was the subject of Plaintiff's workers compensation claim.

         Plaintiff is now claiming damages for reasonable medical expenses incurred as well as for future medical expenses. Four physicians have testified as to Plaintiff's injuries and medical treatment.[11] And while Defendants and Hartford have stipulated that the amount actually paid for Plaintiff's past medical expenses was necessary and reasonable, Stipulation of the Parties as to the Reasonableness and Necessity of Medical Expenses, at 2, Oct. 23, 2017, ECF No. 139 [hereinafter “Stipulation”], no doctor has testified that any future medical expenses would be reasonable or necessary.

         B. Procedural Background

         On June 17, 2014, Plaintiff filed his Complaint (ECF No. 4), [12] seeking damages for negligence under the Jones Act, unseaworthiness, and maintenance and cure, as well as negligence with respect to Fukae under general maritime law. Defendants filed their respective Answers to the Amended Complaint in September 2014 (ECF Nos. 15, 16, & 17). Around that time, Operation Bass filed its Verified Complaint for Exoneration from or Limitation of Liability (ECF No. 1) as owner pro hoc vice of the Boat pursuant to the Limitation of Vessel Owner's Liability Act, 46 U.S.C. § 30501 et seq. This Verified Complaint opened a separate case that is now the lead case in this consolidated matter. Plaintiff filed an Answer (ECF No. 9) on October 15, 2014, to Operation Bass's Verified Complaint. On December 11, 2014, Plaintiff filed a claim for damages against the Boat (ECF No. 16). The next day, Fishing Holdings filed its own Verified Complaint for Exoneration from or Limitation of Liability (ECF No. 1)[13] as actual owner of the Boat pursuant to the Limitation of Vessel Owner's Liability Act. The filing opened the third and final case that is now a part of this consolidated matter. In January 2015, Operation Bass filed a Third Party Complaint against Fukae and Fishing Holdings (ECF No. 19), asserting any injury caused to Plaintiff was their fault rather than that of Operation Bass. In March, Fukae and Fishing Holdings both filed respective Answers to Operation Bass's Third Party Complaint (ECF Nos. 21 and 24). In Fishing Holdings's Answer, it asserted claims against Operation Bass, to which Operation Bass filed its own Answer (ECF No. 25). Plaintiff and Operation Bass filed Answers to Fishing Holdings's Verified Complaint (ECF Nos. 15 & 17)[14] in April and May 2015. Then Fishing Holdings moved the Court to consolidate the two limitation-of-liability cases (ECF No. 29). The Court granted that Motion in its May 18, 2015 Order (ECF No. 35), and, with the related case pursued by Plaintiff, all three cases have proceeded together.

         On April 4, 2017, Hartford filed its first Motion to Intervene (ECF No. 75). It filed an Amended Motion to Intervene (ECF No. 77) the next week. And then in June, Defendants filed the Motions now before the Court. Specifically, Fishing Holdings has filed a Motion for Summary Judgment (ECF No. 91);[15] Fukae has filed a Motion for Partial Summary Judgment on Plaintiff's Claim for Medical Expenses (ECF No. 94); and Operation Bass has filed both a Motion for Summary Judgment (ECF No. 95) and a Motion for Partial Summary Judgment on Claims for Knee and Neck Injuries (ECF No. 96). Fishing Holdings has joined in both Motions for Partial Summary Judgment (ECF Nos. 99, 100, & 108). Fukae has joined in Operation Bass's Motion for Partial Summary Judgment (ECF Nos. 102 & 108). Plaintiff Robert Gulley has filed a Response to Operation Bass's and Fishing Holding's Motions for Summary Judgment (ECF Nos. 110 & 114), a Response to Fukae's Motion for Partial Summary Judgment (ECF No. 111), and a Response in Opposition to Operation Bass's Motion for Partial Summary Judgment (ECF No. 117). Thereafter, Operation Bass filed a Reply to Plaintiff's Response to its Motion for Summary Judgment (ECF No. 124) and a Reply to Plaintiff's Response to its Motion for Partial Summary Judgment (ECF No. 132). Fukae filed a Reply to Plaintiff's Response to his Motion for Partial Summary Judgment (ECF No. 125) and a Reply to Plaintiff's Response to Operation Bass's Motion for Partial Summary Judgment (ECF No. 131). Fishing Holdings filed a Reply to Plaintiff's Response to its Motion for Summary Judgment (ECF No. 126). On August 31, 2017, the Court granted Hartford's Amended Motion and permitted it to intervene in this consolidated matter (ECF No. 133). On September 29, 2017, the Court reopened discovery for the limited purpose of medical proof (ECF No. 138), so that Hartford could respond to Fukae's Motion for Partial Summary Judgment. Hartford did so in its October 23, 2017 Response (ECF No. 140).

         II. LEGAL STANDARD

         Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. When deciding a motion for summary judgment, the Court must review all the evidence, viewing it in a light most favorable to the nonmoving party and also drawing all reasonable inferences in that party's favor. Roell v. Hamilton Cty., 870 F.3d 471, 479 (6th Cir. 2017) (citing Watson v. Cartee, 817 F.3d 299, 302 (6th Cir. 2016)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court “may not make credibility determinations []or weigh the evidence.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). “The burden is generally on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by ‘showing . . . that there is an absence of evidence to support the nonmoving party's case.'” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but instead must present some “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324; Eastham v. Chesapeake Appalachia, L.L.C., 754 F.3d 356, 360 (6th Cir. 2014). These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The Court must, however, enter summary judgment “against a party who fails to . . . [meet the burden] that party will bear . . . at trial.” Celotex Corp, 477 U.S. at 322.

         III. ...


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