Opposition Brief — Outboard Marine Corp. v. Woltering

ms

—

Byoreme Court, US |

ELLEOD

FEB 4 1994 |

No. 93-1098 OFEKE Of THE CLERM

In The

Supreme Court of the United States

October Term, 1993

+

OUTBOARD MARINE CORPORATION,

Petitioner,

DAVID R. WOLTERING,

Administrator of the Estate

of Stacey Lee Grace,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Appellate Court Of Illinois,

Fifth District

*

RESPONDENT’S BRIEF IN OPPOSITION

*

Gait G. RENsHAW* BARBARA 5S. JOINER

Ropert H. GreGory 2 Center Grove Road

THe LAKIN LAw Firn, P.C., Edwardsville, IL 62025

251 Old St. Louis Road 618/692-0406

Wood River, IL 62095-0027

618/254-1127

Counsel for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING ©O., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I.

If.

Ill.

QUESTIONS PRESENTED FOR REVIEW

WHETHER A STATE APPELLATE COURT'S

REVERSAL OF PARTIAL SUMMARY JUDGMENT

AND REMAND FOR FURTHER PROCEEDINGS

ON GROUNDS THAT STATE LAW RATHER THAN

ADMIRALTY LAW APPLIED IS A FINAL JUDG-

MENT.

WHETHER FEDERAL MARITIME LAW APPLIES

TO A PRODUCT LIABILITY ACTION ARISING

OUT OF THE DEATH OF A PASSENGER THROWN

FROM AND STRUCK BY A RECREATIONAL BOAT

ON NAVIGABLE WATERS.

WHETHER NON-DEPENDENT SURVIVORS OF A

NON-SEAMAN MAY RECOVER LOSS OF SOCIETY

DAMAGES IN A GENERAL MARITIME WRONG-

FUL DEATH ACTION.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

TABLE OF AUTEIOURREEES so cccutsdvccwscexssesvars iii

OBJECTION TO JURISDICTION ..cccsececcccsesés: 1

STATUTORY PROVISION INVOLVED.............. 1

ABLSUMENT ocicevetevcecucevaves he cquuadeee werent? 2

I. THE UNITED STATES SUPREME COURT

LACKS JURISDICTION TO REVIEW THE

STATE APPELLATE COURT’S REVERSAL OF

PARTIAL SUMMARY JUDGMENT AND

REMAND FOR FURTHER PROCEEDINGS ON

GROUNDS THAT STATE LAW RATHER THAN

ADMIRALTY LAW APPLIED BECAUSE IT IS

NOT A FINAL JUDGMENT ...cccccccccscsess 2

Il. THE APPELLATE COURT HOLDING THAT

STATE LAW RATHER THAN FEDERAL MAR-

ITIME LAW APPLIES TO A PRODUCT LIA-

BILITY ACTION ARISING OUT OF THE

DEATH OF A PASSENGER THROWN FROM

AND STRUCK BY A RECREATIONAL BOAT

ON NAVIGABLE WATERS DOES NOT CON-

TRAVENE SUPREME COURT PRECEDENT... 6

III. NON-DEPENDENT SURVIVORS OF A NON-

SEAMAN MAY RECOVER LOSS OF SOCIETY

DAMAGES IN A GENERAL MARITIME

WRONGFUL DEATH ACTION................ 10

CARVE DRE 60 6erccctdeusnepecevannenweaeneenee 12

iii

TABLE OF AUTHORITIES

Page

Unitep States Supreme Court Cases

Asarco Inc. v. Kadish, 490 U.S. 607 (1989) ............. 4

California v. Rooney, 483 U.S. 307 (1987) .............. 6

Castarelli v. Massachusetts, 421 U.S. 193 (1975) ........ 4

Construction Laborers v. Curry, 371 U.S. 542 (1963)..... 5

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ...3, 4

Executive Jet Aviation, Inc. v. City of Cleveland, 409

eLearn oo Secs 600s e000 95000 es 5, 6

Flynt v. Ohio, 451 U.S. 617 (1981) ...............0005. 4

Foremost Insurance Corp. v. Richardson, 457 U.S. 668

I ETECU EU ere ee Ree eevar en eseseccercureseseerss 6

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

ECON GG a oe oe ben 640.00 60080% <4 0K epee 5

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)....10, 11

North Dakota State Board of Pharmacy v. Snyder's

Drug Stores, Inc., 414 U.S. 156 (1973)............... 2

Perry v. Thomas, 482 U.S. 483 (1987).................. 6

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 659

MCCS TERT. y wee pyeeeeeuecsecsedcéessecveves 11

Sisson v. Ruby, 497 U.S. 358 (1990)................. 7,9

OTHER Court Cases

Anderson v. Whittaker Corp., 692 F.Supp. 764

Stee eevenessnsyesbinsocsvscsnessds 9

iv

TABLE OF AUTHORITIES - Continued

Page

Complaint of Bird, 794 F.Supp. 575 (D.S.C. 1992) ...... 8

Delta Country Ventures, Inc. v. Maganu, 986 F.2d

ee. sk TTT ere r ee 7,8

Green v. Industrial Helicopter, Inc., 593 S.2d 634 (La.

SUPER hed cvseuvasencensueessadenesteabenbapseaans 12

Kunreuther v. Outboard Marine Corp., 715 F.Supp. -

SOG GB NUD ooo esc vcvccvesecséeveneursssceres 7

Kunreuther v. Outboard Marine Corp., 757 F.Supp.

oe kek | rer erererrcririy verre rere 7

Palmer v. Ribax, Inc., 407 F.Supp. 974 (M.D.FI.

| Oe TT eer Teer e TTT eer eer Teer rrrey 11

Price v. Price, 929 F.2d 131 (4th Cir. 1991)............ 8

Rebstock v. Sonat Offshore Drilling, 764 F.Supp 75

CRB. BOGE 66 6000cccaccdedcdsewebesaeecsarnens 10

St. Hilaire Maye v. Henderson, 469 F.2d 973 (8th Cir.

DRGs no vnc cccchbnyeedeeesedsnebecieeevabebieesasen 8

Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975) .... 11

Thompson v. Offshore Co., 440 F.Supp. 752 (D.Ct. TX

fs MEET TEL Pere eT COOP PT TT er Te ey 11

Wahlstrom v. Kawasaki Heavy Industries, Ltd. 800

Pam. 1660 (ACR: TORE) cc cccessccesecccevcoses 9

Walker v. Braus and Terra Resources, Inc., 1992 WL

See Gs: POs Vee Fevevudedenecebcevettes 10

V

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Death On The High Seas Act, 46 U.S.C. § 761 et

DEE oc cveesesccvovecctesuceetsndscssbntucnneteeths 11

Federal Boat Safety Act, 46 U.S.C. §§ 4306-4307...... 4

weet Pee Age; GB Ths BS Giein vcs dtcvcccceadausdns 11

Longshore and Harbor Workers’ Compensation

Fs SE Vs BH Fe 0 oo beer nceintsxvesvesecr 11

OBJECTION TO JURISDICTION

The judgment which petitioner seeks review of by

petition for writ of certiorari is not a final judgment,

because it ordered reversal of the partial summary judg-

ment entered by the trial court and remanded the case for

further proceedings.

28 U.S.C. § 1257(a) confers upon the United States

Supreme Court jurisdiction to review only final judg-

ments rendered by the highest court of a State in which a

decision could be had by writ of certiorari. The judgment

herein lacks finality. Consequently, there is no jurisdiction

to review.

STATUTORY PROVISION INVOLVED

28 U.S.C. § 1257. STATE COURTS; CERTIORARI

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of cer-

tiorari where the validity of a treaty or statute of the

United States is drawn in question or where the validity

of a statute of any State is drawn in question on the

ground of its being repugnant to the Constitution,

treaties, or laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes

of, or any commission held or authority exercised under,

the United States.

ARGUMENT

I. THE UNITED STATES SUPREME COURT LACKS

JURISDICTION TO REVIEW THE STATE APPEL-

LATE COURT’S REVERSAL OF PARTIAL SUM-

MARY JUDGMENT AND REMAND FOR FURTHER

PROCEEDINGS ON GROUNDS THAT STATE LAW

RATHER THAN ADMIRALTY LAW APPLIED

BECAUSE IT IS NOT A FINAL JUDGMENT.

The judgment which petitioner seeks to have

reviewed does not meet the jurisdictional requirements of

28 U.S.C. § 1257 in two respects.

First, the judgment lacks finality. This is because it

does not completely resolve all issues involved in the

controversy and does not terminate the litigation. The

Illinois Court of Appeal’s opinion held state law rather

than admiralty law applied to a wrongful death products

liability action, which occurred in navigable waters off a

pleasure boat. The Appellate Court reversed the trial

court’s grant of partial summary judgment and remanded

the case for further proceedings.

28 U.S.C. § 1257 limits Supreme Court review of state

court judgments to final judgments rendered by the high-

est court of the state in which a decision could be had.

The finality requirement serves several purposes:

(1) it avoids piecemeal review of State Court

judgments; (2) it avoids giving opinions in

cases where there may be no real “case” or

“controversy” in the sense of Art. III; (3) it

limits review of State Court determination

of federal constitutional issues to leave at a

minimum federal intrusion in State affairs.

North Dakota State Board of Pharmacy v.

Snyder's Drug Stores, Inc., 414 U.S. 156, 158

(1973).

Clearly, the judgment of reversal and remand in this

case is not final because there are further proceedings to

be conducted in the state court on the merits of the case.

Review at this juncture would conflict with the intended

purpose of the statute.

This Court in Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975) defined four categories of exceptions to the

finality requirement, and petitioner has asserted in its

jurisdictional statement that this case falls within the

exceptions. It has claimed the federal question has been

finally decided by the Illinois state courts, that if it pre-

vails on non-federal grounds, this Court will not have

another opportunity to review the federal case, that a

reversal by this Court would preclude further litigation

on claims for recovery on behalf of the survivors and that

the constitutionally based policy of uniformity of mar-

itime law would be eroded. (Pet., p. 2)

Respondent disputes those claims. A careful exam-

ination of Cox and subsequent case law leads to the

conclusion that the exceptions set out in Cox do not apply

to the instant case, and therefore this Court is without

jurisdiction to review the issues presented by petitioner

at this time.

Petitioner Outboard Marine Corporation’s (OMC)

claim that the federal question has been decided is only

partially correct. The issue of whether maritime or state

law applied to this state court cause of action has been

ruled on by the state appellate court. However, the loss of

society damages question has not been addressed by the

state appellate court.

Moreover OMC omits any mention of additional fed-

eral issues being raised. This is a critical omission

because the Cox exception that an order is final if the

federal issue is resolved even though other proceedings

remain will not apply if the remaining issues give rise to

any other federal issues. Flynt v. Ohio, 451 U.S. 617, 101

S.Ct. 1958, 68 L.Ed.2d 489 (1981); Asarco, Inc. v. Kadish, 490

U.S. 607, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989).

In the underlying state court complaint, plaintiff has

alleged that defendant was negligent for designing and

manufacturing the outboard boat motor without a pro-

peller guard. (Pet. A-22-28). An issue of federal preemp-

tion involving the Federal Boat Safety Act, 46 U.S.C.

§ 4306, 4307 is likely to arise in the remaining state court

proceedings. Thus, the potential for piece meal review

exists, which can be avoided if review of the question

presented by petitioner is denied at the present time.

Second, the fact that there will not be another oppor-

tunity to review the question presented if petitioner pre-

vails on the merits on non-federal grounds does not

qualify the case as a Cox exception to finality. Castarelli v.

Massachusetts, 421 U.S. 193 (1975). It applies only where

subsequent review is impossible, regardless of the ulti-

mate outcome of the case. Cox, 420 U.S. at 482. Here, if

petitioner does not prevail in the subsequent proceed-

ings, it will have the opportunity to seek review on the

federal issue.

As for OMC’s final claim, namely that the constitu-

tionally based policy of uniformity in maritime law could

be eroded, if the decision is not reversed, the substance of

this issue of uniformity is addressed under Points II and

Ill of this brief. The decision of the state appellate court

does not erode uniformity of maritime law. The court

appropriately applied the two pronged test of admiralty

jurisdiction originally established by this Court in Execu-

tive Jet Aviation, 409 U.S. 249 (1972) and concluded the

requisite nexus to traditional maritime activity was

absent.

The cases cited by the Cox Court in which this excep-

tion has been invoked are distinguishable from the

instant case. Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241 (1974) involved a freedom of the press “chilling

effect situation”, and in Construction Laborers v. Curry, 371

U.S. 542 (1963), the decision to take jurisdiction relied in

part on the fact that the litigation was concluded as a

practical matter because the petitioner had no other

defenses to the injunction which had been authorized by

the state court.

The second respect in which the jurisdictional

requirement of 28 U.S.C. § 1257 has not been met con-

cerns the second issue raised by OMC, which is whether

loss of society damages are recoverable under general

maritime law.

Assuming arguendo, that this Court accepts jurisdic-

tion of the admiralty versus state law issue, the damage

question still cannot be reviewed because it is not a

decision of the highest court in the state which could be

had.

The intermediate state appellate court did not

address this issue and there is no way of knowing how

Te

the Illinois Appellate Court or Illinois Supreme Court

would rule. This Court has previously refused jurisdic-

tion over issues which were not reached by the state court

on the grounds of prematurity. California v. Rooney, 483

U.S. 307 (1987); Perry v. Thomas, 482 U.S. 483 (1987).

Review of this issue on recoverable damages under gen-

eral maritime law at this time would be premature. To

grant certiorari on the admiralty law question alone

would inevitably lead to piece meal review. The statute

and its underlying policy considerations compel a denial

ofthe petition for writ of certiorari.

Il. THE APPELLATE COURT HOLDING THAT STATE

LAW RATHER THAN FEDERAL MARITIME LAW

APPLIES TO A PRODUCT LIABILITY ACTION

ARISING OUT OF THE DEATH OF A PASSENGER

THROWN FROM AND STRUCK BY A RECRE-

ATIONAL BOAT ON NAVIGABLE WATERS DOES

NOT CONTRAVENE SUPREME COURT PRECE-

DENT.

The state court appellate opinion in this case prop-

erly set forth and applied the test for invoking admiralty

jurisdiction (Pet. A-1-7). Three United States Supreme

Court decisions established and refined this two pronged

test. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.

249 (1972) required first a determination of whether the

tort occurred in navigable waters and if so, then a deter-

mination whether there was a significant relationship

between the wrong and traditional maritime activity.

Foremost Insurance Corp. v. Richardson, 457 U.S. 668

(1982) expanded admiralty jurisdiction beyond commer-

cial vessels by holding a collision of two pleasure boats

did bear a significant relationship to traditional maritime

activity. And, in Sisson v. Ruby, 497 U.S. 358 (1990), the

Court concluded a yacht docked at a marina which was

destroyed by fire was subject to admiralty jurisdiction in

that a substantial relationship to traditional maritime

activities existed because the fire had “a potentially dis-

ruptive impact on maritime commerce.” Sisson, 497 U.S.

at 363.

It is undisputed that incidents resulting in injuries

from pleasure boats are not automatically outside the

realm of admiralty jurisdiction simply because they are

noncommercial. However, these three cases do not pur-

port to hold all incidents involving pleasure vessels in

navigable waters bear a significant relationship to tradi-

tional maritime activity.

Admiralty jurisdiction determinations necessarily

must be made on a case by case basis. OMC incorrectly

alleges the state appellate decision contravenes estab-~

lished Supreme Court precedent and ignores the over-

whelming authority supporting admiralty jurisdiction.

Clearly, the state court followed the dictates of the United

States Supreme Court (See Opinion, Pet. A-1-7). In doing

so, it analyzed the precise activity and conduct involved

and relied on Delta Country Ventures, Inc. v. Maganu, 986

F.2d 1260 (9th Cir. 1993) and Kunreuther v. Outboard

Marine Corp., 715 F.Supp. 1304 (E.D. Pa. 1989) in support

of its ruling.

Kunreuther v. Outboard Marine Corp., 757 F.Supp. 633

(E.D. Pa. 1991), it held state law and not admiralty law

applied to a case alleging a failure to design and equip

outboard motors with propeller guards because it did not

bear a significant relationship to traditional maritime

activity!.

With respect to Maganu, the Ninth Circuit held that

because the underlying purpose of admiralty jurisdiction

is the protection of commercial shipping, not every acci-

dent in navigable waters that could disrupt maritime

commerce would invoke admiralty jurisdiction. The

appellate court reasonably concluded that being a pas-

senger in a pleasure boat in an area of the Mississippi

River that is used for recreational boating constituted

aquatic recreation involving a pleasure boat analogous to

the diving or “aquatic recreation off a pleasure boat”, in

Maganu.

While negligent navigation is not a prerequisite to

admiralty jurisdiction, it is more likely to trigger that

disruptive impact to traditional maritime activity than

the factual situation presented in the case at bar and

therefore is significant. See Price v. Price, 929 F.2d 131 (4th

Cir. 1991) where admiralty jurisdiction was invoked only

because excessive speed and a failure to secure a pleasure

boat resulted in a passenger’s injury. The Court stated

this was a navigational error.

OMC has cited St. Hilaire Maye v. Henderson, 469 F.2d

973 (8th Cir. 1974) as a case with similar facts holding

admiralty jurisdiction applied. Yet, this case, was decided

before Sisson. And, although Complaint of Bird, 794

F.Supp. 575 (D.S.C. 1992) found admiralty jurisdiction

1 The opinion was later withdrawn on other grounds, i.e.

that Death on The High Seas Act applied to the case.

applied where a passenger was pushed overboard, it is

not a products case.

The more recent cases relied on by defendant, Ander-

son v. Whittaker Corp., 692 F.Supp. 764 (W.D. Mich. 1988)

and Wahlstrom v. Kawasaki Heavy Industries, Ltd., 800

F.Supp. 1061 (D.Conn. 1992), for example, involved prod-

uct defects which, in the case of the former, resulted in an

unnavigable vessel, and in the latter resulted in death

from a collision with a boat.

In the instant case there was no collision or naviga-

tional error causing Stacey Grace, a passenger, to be

thrown from the boat causing her to be killed by the

defective propeller. Instead, it was the defective design of

the propeller which is alleged to have caused her death.

Contrary to petitioner’s position that the determina-

tion of admiralty jurisdiction cannot consider the facts,

without an inquiry into facts involving the incident caus-

ing injury, there can be no finding as to whether the

wrong bears a significant relationship to traditional mar-

itime activity, which is the second prong of the test. To

eliminate a case by case inquiry on this question would in

effect return the admiralty jurisdiction test to one based

on locality only.

The Sisson Court examined the type of event in terms

of to its relationship to traditional maritime activity. The

state court opinion was not based on the absence of

negligent navigation, as suggested by OMC. It was based

on the relationship to tradignal maritime activity.

The state appellate court’s characterization of plain-

tiff’s activity as “aquatic recreation involving a pleasure

10

boat” and the subsequent conclusion that admiralty juris-

diction does not apply due to the lack of a significant

relationship to traditional maritime law is congruous

with existent federal law and the case does not warrant

review by this Court.

Ill. NON-DEPENDENT SURVIVORS OF A NON-

SEAMAN MAY RECOVER LOSS OF SOCIETY

DAMAGES IN A GENERAL MARITIME

WRONGFUL DEATH ACTION.

The state appellate court did not rule on the question

of whether loss of society damages were recoverable by a

non-dependent parent and sibling under federal maritime

law. Thus, it is not a question ripe for review.

However, plaintiff does take exception with OMC’s

contention that the principles enunciated by this court

and consistent lower court authority make it clear that

general maritime law bars non-dependent beneficiaries

from recovering loss of society damages for the wrongful

death of a non-seaman occurring in state territorial

waters. (Pet., 20)

A careful review of the relevant case law shows a

concerted effort to achieve uniformity between legislative

and judicial determinations on what is recoverable in

maritime actions involving seamen. Miles v. Apex Marine

Corp., 498 U.S. 19 (1990); Walker v. Braus and Terra

Resources, Inc., 1992 WL 115977 (E.D.La. 1992). Rebstock v.

Sonat Offshore Drilling, 764 F.Supp. 75 (E.D.La. 1991).

11

Congress has elected to restrict recovery of damages

to pecuniary damages in cases involving injuries to sea-

men, The Jones Act, 46 U.S.C, Section 688, injuries occur-

ring outside state territorial waters, Death on the High

Seas Act, 46 U.S.C., Section 761 et seq., and injuries to

longshoremen, Longshore and Harbor Workers’ Compen-

sation Act, 33 U.S.C., Section 901-950.

Under general maritime law, which is based on com-

mon law, there is no such restriction. Sea-Land Services,

Inc. v. Gaudet, 414 U.S. 659, 113 S.Ct. 1294, 122 L.Ed.2d 685

(1974). The United States Supreme Court in Miles, sought

to establish uniformity in recovery by seamen in its deci-

sion to prohibit non-pecuniary damages in a seaman’s

action brought under general maritime law.

The Miles decision does not turn on the dependency

or non-dependency of the party bringing the action.

Under general maritime law there is a split of authority

on whether to permit recovery to non-dependent bene-

ficiaries. See Skidmore v. Grueninger, 506 F.2d 716, 729 (5th

Cir. 1975) (adult child permitted to recovery); Thompson v.

Offshore Co., 440 F.Supp. 752 (D.Ct. TX 1977), and Palmer

v. Ribox, Inc., 407 F.Supp. 974 (M.D.FI. 1976) (non-depen-

dent parents permitted to recover).

There has been no pronouncement from the United

States Supreme Court limiting recovery in a non-seaman

action brought under general maritime law by non-

dependent survivors.

Conversely, the Illinois courts have expressly recog-

nized recovery of loss of society damages in state wrong-

ful death actions by non-dependent parents and siblings.

12

Federal maritime law may be supplemented by non-con-

flicting state law where there is no express provision

governing a specific question. Green v. Industrial Helicop-

ter, Inc., 593 S.2d 634 (La. 1992). Because no conflict exists

herein, recovery of loss of society damages by a non-

dependent survivor is permissible where a recreational

boat passenger is killed in territorial waters of a state that

permits such recovery in its wrongful death actions.

+

CONCLUSION

For the reasons stated, the petition for writ of cer-

tiorari should be denied. The judgment in question lacks

finality, thereby depriving this Court of jurisdiction to

review. Moreover, it represents a proper application of

the admiralty jurisdiction analysis established by this

Court, which is not in conflict with the decisions of this

Court.

Respectfully submitted,

THe Lakin Law Fir, P.C.

Gait Gaus RENSHAW

Rosert H. Grecory

251 Old St. Louis Road

Wood River, IL 62095-0027

618/254-1127

BARBARA S. JOINER

2 Center Grove Road

Edwardsville, IL 62025

618/692-0406

Attorneys for Respondent

se