# Opposition Brief — Outboard Marine Corp. v. Woltering

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1198

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1050%3A3. Public record. Not legal advice.