463 F. App'x 383

In re In the Matter of the Complaint of ENVIRONMENTAL SAFETY & HEALTH CONSULTING SERVICES, INCORPORATED, for Exoneration from or Limitation of Liability. Environmental Safety & Health Consulting Services, Incorporated, as Owner of a 16 foot Alweld Boat Bearing Louisiana Registration No. LA-8174-EW, Petitioner-Appellant v. Avery Diaz, Claimant-Appellee.

No. 11-30567.

United States Court of Appeals, Fifth Circuit.

March 5, 2012.

*384Robert S. Reich, Esq., Lawrence R. Plunkett, Jr., Esq., Reich, Album & Plunk-ett, L.L.C., Metairie, LA, for Petitioner-Appellant.

Scott Eric Silbert, Esq., Silbert & Gar-on, L.L.P., New Orleans, LA, for Claimant-Appellee.

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

The Limitation of Liability Act allows owners of maritime vessels to limit their liability for accidents occurring on their vessels to the value of the vessel. 46 U.S.C. § 30505. The Act requires that a limitation of liability action “be brought within six months after a claimant gives the [vessel] owner written notice of a claim.” Id. at § 30511. We agree with the district court that the state-court petition filed by Plaintiff-Appellee Avery Diaz was sufficient to constitute “written notice” under § 30511 of his claim against Defendant-Appellant Environmental, Safety & Health Consulting Services, Inc. (“ES & H”).

I. FACTUAL & PROCEDURAL BACKGROUND

Diaz claims he was injured on August 25, 2008 while working aboard a “small, unnamed boat.” On the day in question, Diaz was working for Team Labor Force, a subcontractor of ES & H, assisting in ES & H’s clean-up of an oil spill in the Mississippi River near the Port of New Orleans. Diaz filed a claim in Louisiana state court on July 19, 2010 and served ES & H with process in conjunction with that claim on August 4, 2010.1

*385ES & H filed the underlying limitation of liability action in the Eastern District of Louisiana on March 14, 2011. Diaz moved to dismiss ES & H’s claim for failure to bring the action within six months of receiving notice. The district court treated Diaz’s motion to dismiss as a motion for summary judgment and granted summary judgment to Diaz. ES & H timely appealed.

*386II. STANDARD OF REVIEW

We employ a de novo standard in reviewing whether an action was timely filed. Billiot v. Dolphin Scrvs., Inc., 225 F.3d 515, 517 (5th Cir.2000). We also review a district court’s grant of summary judgment de novo and applies the same standard as the district court. Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir.2010). Under that standard, summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). When reviewing a motion for summary judgment, the Court construes all the evidence and reasonable inferences in the light most favorable to the nonmoving party. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010) (quoting Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.2009)).

III. DISCUSSION

This Circuit uses the “reasonable possibility” test to determine the sufficiency of a written notice in Limitation of Liability Act cases. Complaint of Tom-Mac, Inc., 76 F.3d 678, 683 (5th Cir.1996) (citing Complaint of Morania Barge No. 190, Inc., 690 F.2d 32, 34 (2d Cir.1982)). Under this test, notice must “reveal[ ] a ‘reasonable possibility that the claim made is one subject to limitation.” Id.; Billiot, 225 F.3d at 517. That is, “notice is sufficient if it informs the vessel owner of an actual or potential claim ... which may exceed the value of the vessel ... and is subject to limitation.” P.G. Charter Boats, Inc. v. Soles, 437 F.3d 1140, 1143 (11th Cir.2006) (internal quotation marks omitted).

ES & H claims that because the state court petition did not identify ES & H as the owner of the “small, unnamed boat,” and generally referred to acts that might be construed as negligence resulting from ES & H’s supervision of Team Labor Force, ES & H did not know that Diaz was asserting a claim against it as a vessel owner.2 Diaz argues in response that his state-court petition constituted sufficient written notice to ES & H that his claim could be subject to limitation.

In his state-court petition, Diaz averred that: (1) he was working for a subcontractor of ES & H; (2) he was “assigned to work in a small, unnamed boat”; (3) ES & H caused him to work from the boat and directed his work for the day; (4) ES & H told Diaz and other Team Labor Force employees to keep working when it otherwise shut down operations on August 25, 2008 due to an approaching storm; (5) ES & H sent home its safety representative when it shut down operations; and (6) Diaz was injured on August 25, 2008, while still performing his assigned work on the designated vessel. In addition, Diaz states in his memo in support of summary judgment that Team Labor Force has the same owners, officers, directors, and upper management as ES & H, and that they “operate out of the same facility.” Management of both companies knew of Diaz’s injury when it occurred, and they made accommodations for him at work after the accident, until his doctors required that he cease working due to the severity of his injuries. Therefore, it is clear that ES & *387H knew that Diaz was injured, the date of his injury, that Diaz had been directed to work from “a small, unnamed boat,” and that ES & H had told Diaz what tasks to perform on that boat. “The [Limitation of Liability] Act does not require plaintiff to have identified the vessel in his underlying action (written notice of claim).” Billiot, 225 F.3d at 517.3 Considering the fact that ES & H and Team Labor Force had the same management, and that the two entities assigned and directed Diaz’s work on August 25, 2008, ES & H should have determined, within six months of Diaz’s petition, that it owned the boat on which Diaz worked that day, and that there was a “reasonable possibility” that Diaz’s claim was subject to limitation.

Diaz’s state-court petition contained enough information to “inform the owner [of the vessel] both of details of the incident and that the owner appeared to be responsible for the damage in question.” Matter of Oceanic Fleet, Inc., 807 F.Supp. 1261, 1262 (E.D.La.1992) (quotation marks and citations omitted). The Limitation of Liability Act requires nothing more. In addition, we must remember that “[t]he purpose of the six-month prescription on the limitation of liability petition is to require the shipowner to act promptly to gain the benefit of the statutory right to limit liability.” Exxon Shipping Co. v. Cailleteau, 869 F.2d 843, 846 (5th Cir.1989). Using the same information it had when Diaz filed his state-court petition, ES & H realized, albeit too late, that his claim could be subject to limitation.4 ES & H cannot now regain a statutory right lost due to its own failure to investigate and act in a timely manner. C.f. Morania Barge, 690 F.2d at 33-34 (placing burden on shipowner of investigating within six-month period whether the amount of the claim exceeds the value of his ship, where claim does not specifically identify amount of damages at issue and “such an excess appears reasonably possible”); In re Donjon Marine Co., Inc., 2009 WL 3241687, at *2 (D.N.J. Oct.7, 2009) (same).

Accordingly, because we find that Diaz’s state court petition was specific enough to inform ES & H of a claim that could be subject to the Limitation of Liability Act, we AFFIRM the district court’s grant of summary judgment in Diaz’s favor.

Environment Safety & Health Consulting Services, Inc. v. Diaz
463 F. App'x 383

Case Details

Name
Environment Safety & Health Consulting Services, Inc. v. Diaz
Decision Date
Mar 5, 2012
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463 F. App'x 383

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United States

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