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TGL Marine Holdings, ULC v. Dean Marine & Excavating, Inc.

United States District Court, E.D. Michigan, Southern Division

January 24, 2017

TGL Marine Holdings, ULC, Plaintiff,
Dean Marine & Excavating, Inc., and DME Leasing, LLC, Defendants.


          Judith E. Levy United States District Judge

         The Court held a jury trial in the above-captioned matter from September 20, 2016 through September 27, 2016. On September 27, 2016, the jury reached a verdict in favor of defendants Dean Marine & Excavating, Inc. and DME Leasing, LLC. (Dkt. 155.) Plaintiff TGL Marine Holdings, ULC, has now filed this motion for a new trial. (Dkt. 162.) For the reasons set forth below, plaintiff's motion is denied.

         I. Background

         In 2009, plaintiff entered into a contract with former defendant Nicholson Terminal & Dock Company (“Nicholson”) to dock a barge, the Sarah Spencer, and a tugboat, the Jane Ann IV, at Nicholson's terminal in Ecorse, Michigan. (Dkt. 1 at 2-5.) At some point between 2009 and November 2011, plaintiff hired defendants Dean Marine & Excavating, Inc. (“Dean Marine & Excavating”) and DME Leasing, LLC (“DME Leasing”) to inspect and maintain the tugboat. Defendants completed work to prepare the Jane Ann IV for winter in November 2011, and this was the last time defendants were on the tugboat. At some point during this same period, plaintiff also hired Joseph Plozai to visit the tugboat, inspect it for signs of damage while docked, and determine whether maintenance or repairs were needed.

         Between January 25 and 28, 2013, there was a severe winter storm, and the Jane Ann IV sank at the terminal. (Dkt. 1 at 6.) After inspection, it was determined that several factors caused the tugboat to sink. First, the power cut out during the storm, and without heat, several pipes or valves froze and cracked or burst. Second, the sea chest valve on the tugboat was open and water flowed into the tugboat, which then sank.

         On November 15, 2013, plaintiff filed a complaint against Nicholson Terminal & Dock Company (“Nicholson”). (Dkt. 1.) Plaintiff alleged Nicholson had failed to maintain and inspect the tugboat, which caused the boat to take on water and sink during the winter storm. Plaintiff brought six counts against Nicholson: negligence, negligent misrepresentation, breach of contract, and three counts of breach of express or implied warranties. (See generally id.)

         On January 13, 2014, Nicholson filed a third-party complaint against Dean Marine & Excavating and Mr. Plozai. (Dkt. 10.) Nicholson argued that Dean Marine & Excavating failed to close the valves on the tugboat, which caused or contributed to the tugboat sinking. (Id. at 3.) Nicholson also argued Mr. Plozai was negligent in his inspection duties, including failing to supply a backup power source and inspect the systems and valves during winter. (Id. at 4.)

         On March 31, 2014, Nicholson amended its third-party complaint to add DME Leasing as a defendant, alleging plaintiff hired Dean Marine & Excavating and/or DME Leasing, and that one or both entities was liable for failing to close the valves on the Jane Ann IV. (Dkt. 22 at 3-4.)

         On April 16, 2015, plaintiff filed an amended complaint, adding as defendants Dean Marine & Excavating, DME Leasing, Benchmark Aviation Marine LLC (the Illinois and Michigan entities), and James Nisbet. (Dkt. 62.) Plaintiff alleged defendants Dean Marine & Excavating and DME Leasing breached the contract between the parties and were negligent in performing maintenance and repair work on the Jane Ann IV by, among other things, failing to close the sea chest valve when they were last on the tugboat in November 2011, which caused the tugboat to take on water and sink in January 2013. (Id. at 22-23.)

         By June 28, 2016, plaintiff had reached a settlement with several of the defendants, and Nicholson, Benchmark Aviation (both entities), and Mr. Plozai were dismissed from the case. (Dkt. 108.) Plaintiff maintained its lawsuit against defendants Dean Marine & Excavating and DME Leasing, but dismissed the negligence count on July 25, 2016. (Dkt. 121.)

         On September 20, 2016, the case went to trial on the sole remaining count of breach of contract. A jury found in favor of defendants on September 27, 2016, and judgment was entered for defendants on October 3, 2016. (Dkts. 154, 155.)

         On October 28, 2016, plaintiff filed this motion for a new trial.

         II. Legal Standard

         Federal Rule of Civil Procedure 59 permits a court to grant a new trial, “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” “[A] new trial is warranted when a jury has reached a seriously erroneous result as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 312 (6th Cir. 2016).

         III. Analysis

         Plaintiff first argues the trial was unfair because the great weight of the evidence supported plaintiff's argument that defendants were liable given that defendants knew leaving a sea chest valve open could cause the boat to fill with water and suffer damage. Plaintiff next argues the Court erred in permitting defense counsel to introduce evidence of contributory negligence and in not giving a jury instruction that ordinary negligence is foreseeable. Finally, plaintiff argues defense counsel committed misconduct during closing arguments by stating the case was really a negligence case and not a breach of contract case, by stating Mr. Plozai was “suspect number one” with respect to liability, and by referring to plaintiff as a “big company.”

         Claim One: Great Weight of the Evidence Supported Plaintiff

         First, plaintiff argues the trial was unfair because the great weight of the evidence supported plaintiff. (Dkt. 162 at 19-20.) Although a court may grant a new trial on this ground, it may not “set aside the verdict simply because it believes that another outcome is more justified.” Waldo v. Consumers Energy Co., 726 F.3d 802, 813 (6th Cir. 2013). In other words, “[i]f the verdict ‘was one which the jury reasonably could have reached, ' then a motion for a ...

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