author: ALAIMO, Chief Judge.

text:
    Jimmy HINES, Plaintiff, v. SAYLOR MARINE CORPORATION, Defendant.
    No. Civ. A. 284-226.
    United States District Court, S.D. Georgia, Brunswick Division.
    July 8, 1985.
    Edward Boshears, Brunswick, Ga., for plaintiff.

      Wallace E. Harrell, Brunswick, Ga., for defendant.
   ORDER

ALAIMO, Chief Judge.

Plaintiff Jimmy Hines filed the instant action under the Jones Act, 46 U.S.C. § 688 (1982), to recover damages for personal injuries he received while working for Saylor Marine Corporation (“Saylor Marine”). Before this Court is defendant’s motion for summary judgment based on the contention that plaintiff is not entitled to relief under the Jones Act because he was not a “seaman” during the relevant time. Having read and considered the parties’ briefs in support of their respective positions, the Court is now prepared to rule on the summary judgment motion.

FACTUAL BACKGROUND

The defendant is a marine construction company engaged primarily in the business of building and repairing docks, wharves, piers and similar maritime structures. As part of its regular operations, Saylor Marine employs barges as floating platforms for cranes and pile-driving equipment used at the work sites. Affidavit of Jimmy Hines, at 1. The defendant also operates the tugboats required to move the barges from one location to another. Id.

Jimmy Hines went to work for Saylor Marine as a laborer in 1979. From 1979 until 1982, he worked intermittently at various construction sites, performing whatever tasks his supervisor asked him to do. Affidavit of Jimmy Hines, at 1. Although Hines’ specific duties varied from one job to another, their character primarily remained that of land-based construction work, notably building forms and doing related carpentry work associated with pouring concrete. Affidavit of Robert Myrick, at 2. Hines was never assigned permanently to any barge or vessel as a member of its crew, nor was he ever provided with meals or sleeping quarters aboard any barge or vessel. Id.

As a by-product of working for a marine construction company, Hines spent part of his time on and around barges secured at work sites adjacent to navigable waters. His job required him to carry materials on and off these vessels and occasionally to assist in moving the barges. In addition, Hines’ supervisors sometimes asked him to perform chores aboard the barges, such as greasing and securing a crane or sweeping the deck. Affidavit of Jimmy Hines, at 2. Although incidental to his main duties as a laborer, these tasks were an outgrowth of the fact that Saylor Marine did most of its work at sites on or near water. Hines went to sea only once, and that was in 1982 when Saylor Marine moved one of its crane barges from Brunswick, Georgia, to a pier on St. Simons Island, Georgia. Affidavit of Jimmy Hines, at 3. It was on the St. Simons pier that Hines sustained the injury at issue in this suit.

On June 4, 1982, Hines was building a blockade on the St. Simons pier when he strained his back severely while trying to pick up a heavy timber. Deposition of Jimmy Hines, taken April 4, 1985, at 9. At the time of the injury, plaintiff was assigned to a carpentry crew as a laborer, a position he had held since January 1982 and continued to hold after his accident. Affidavit of Andy Andrews, at 1-2. Hines continued working for approximately six weeks following his injury, but finally had to quit his job because of back pain. Since his injury did not respond to conservative treatments with medication and injections, in August 1983, Hines was admitted to a Savannah hospital for back surgery. Deposition of Jimmy Hines, at 11-13. On June 1, 1984, Hines was released to return to work and secured employment as a woodcutter, a job he has since left.

On December 3, 1984, plaintiff filed this action, alleging that Saylor Marine was negligent in failing to provide a reasonably safe working environment, failing to maintain safe and adequate equipment, failing to warn plaintiff of dangers at his workplace and failing to exercise the proper degree of care for Hines’ safety. Plaintiff’s Complaint, at 2. Defendant answered by denying admiralty jurisdiction, denying plaintiff was a “seaman” within the meaning of the Jones Act, asserting that the claim was barred by laches or the statute of limitations and asserting that Hines failed to exercise ordinary care for his own safety. Defendant’s Answer, at 1-2. Saylor Marine has now filed a motion for summary judgment under Fed.R.Civ.P. 56 on the question of whether plaintiff is a “seaman” within the purview of the Jones Act. In reply, Hines asserts that he is a seaman and that his status as such under the Act is a question of fact best left to the wisdom of a jury.

DISCUSSION

The Jones Act provides, in pertinent part: Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply____ Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C. § 688 (1982) (emphasis added).

The requirement that a Jones Act claimant be a “seaman” in order to recover benefits under the section is jurisdictional. See Bernard v. Binnings Construction Co., 741 F.2d 824 (5th Cir.1984). Only one so situated can show the “maritime nexus” necessary to invoke the admiralty jurisdiction of the federal courts. See Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). The party seeking recovery under the Jones Act bears the burden of proving that he was a “seaman” within the meaning of the statute at the time of his injury. Bernard, supra, at 827; Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108, 1109 (5th Cir.1980).

Although the Jones Act itself does not define “seaman,” the term is used interchangeably throughout the case law with the phrase “member of the crew.” See, e.g., Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980); Noble Drilling Corp. v. Smith, 412 F.2d 952 (5th Cir.1969); Boatel, Inc. v. Delamore, 379 F.2d 850 (5th Cir.1967). Titles and job descriptions are not determinative, however, and courts have repeatedly held that seaman status ordinarily presents a question of fact for the jury. See Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955) (per curiam); Tullos v. Resource Drilling, Inc., 750 F.2d 380 (5th Cir.1985); Fredieu v. Rowan Companies, Inc., 738 F.2d 651 (5th Cir.1984); Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982).

Since seaman status is a fact-sensitive issue, “summary judgment in Jones Act cases is rarely appropriate.” Buras v. Commercial Testing & Engineering Co., 736 F.2d 307, 309 (5th Cir.1984). See also Prinzi v. Keydril Co., 738 F.2d 707 (5th Cir.1984); Bouvier v. Krenz, 702 F.2d 89 (5th Cir.1983); Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240 (5th Cir.1983). Indeed, the Fifth Circuit Court of Appeals has held that the riddle of seaman status should be submitted to the jury even in marginal cases. Bertrand, supra, at 244; Leonard v. Exxon Corp., 581 F.2d 522 (5th Cir.1978); Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir.1972).

In some cases, however, a court may conclude that no evidentiary basis exists to support a finding that an injured employee is a Jones Act seaman. Ardoin v. J. Ray McDermott & Co., 641 F.2d 277 (5th Cir. 1981); Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447 (5th Cir.1980); Landry v. Amoco Production Co., 595 F.2d 1070 (5th Cir.1979). “Where the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences about these facts,” summary judgment or a directed verdict is appropriate. Bertrand, supra, at 244; Abshire, supra, at 835; Guidry, supra, at 454; Landry, supra, at 1072; Stanley v. Guy Scroggins Construction Co., 297 F.2d 374, 376 (5th Cir.1961).

Since the underlying facts are undisputed in the present case, the Court will review them to determine if they give rise to conflicting inferences about whether plaintiff was a Jones Act seaman.

In Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), the Fifth Circuit established a.two-prong test for analyzing whether a Jones Act claimant met the threshold requirement of being a seaman. The factors to be considered include:

(1) [whether] there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) [whether] the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.

Id. at 779.

For more than 25 years, courts presiding over Jones Act cases have followed the Robison test for seaman status, and a substantial body of law has emerged. It is now clear that, to meet the permanency or substantiality prong of the Robison test, a claimant must show he performed a significant part of his work aboard ship with some degree of regularity and continuity. Keener v. Transworld Drilling Co., 468 F.2d 729 (5th Cir.1972). The Fifth Circuit has further held that “[t]he issue of an injured worker’s status as a seaman should be addressed with reference to the nature and location of his occupation taken as a whole.” Longmire v. Sea Drilling Corp., 610 F.2d at 1347. The courts also have emphasized “[t]he relationship creating seaman status must be substantial in point of time and work, not merely sporadic.” See Bertrand v. International Mooring & Marine, Inc., supra, at 246; Dove v. Belcher Oil Co., 686 F.2d 329, 333 (5th Cir.1982).

Although the underlying facts in this case are not disputed, the inferences to be drawn from those facts are hotly disputed. Saylor Marine contends that Hines’ job description, when viewed in conjunction with his actual duties, reveals beyond a shadow of a doubt that plaintiff was nothing more than a land-based construction worker. Hines, on the other hand, argues that his work required far more contact with barges and the attendant perils of the sea than his job description indicates. Stressing the maritime nature of his employment, Hines further asserts he often performed traditional seaman’s duties, even while assigned to the carpentry crew. Plaintiff points out that he cleaned up the barges, tightened and hooked up ropes, maintained equipment located on the barges and sometimes assisted in moving the barges. Saylor Marine responds that such tasks were incidental to Hines’ primary duties and were too sporadic and fortuitous to vest plaintiff with seaman status.

In support of their respective positions, both parties cite numerous cases that are factually similar to the present one. Each side argues that its cases should control. Unfortunately, close scrutiny of this contradictory mass of case law only highlights the difficulty judges have encountered in deciding who qualifies as a Jones Act seaman. While the Court is of the opinion that Hines was more a laborer than a seaman, it is evident from the briefs and affidavits that conflicting inferences can be drawn about the nature of Hines’ work at Saylor Marine. The amount of time plaintiff spent working on the barges and the duties he performed there undoubtedly will have great bearing on the proper resolution of this question. Such factual matters, however, are better addressed at trial than at the pleadings stage of the proceedings.

CONCLUSION

In light of the conflicting inferences that can be drawn from the underlying facts here, this Court cannot rule as a matter of law that plaintiff was not a seaman at the time of his injury. Since even marginal Jones Act cases should be submitted to a jury, defendant’s motion for summary judgment is hereby DENIED.


source: Caselaw Access Project

author: REGAN, Senior District Judge.

license: Public Domain

text:
    FALCON PRODUCTS, INC., et al., Plaintiffs, v. The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Defendant.
    No. 84-2477C(B).
    United States District Court, E.D. Missouri, E.D.
    July 12, 1985.
    Paul Schramm, Schramm, Pines & Spewak, St. Louis, Mo., for plaintiffs.
    Eugene Wollan, Rein, Mound & Cotton, New York City, Joseph H. Mueller (local counsel), Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, St. Louis, Mo., for defendant.
   MEMORANDUM AND ORDER

REGAN, Senior District Judge.

This action was brought by Falcon Products, the named insured, and then the sole plaintiff, alleging that defendant issued its policy of Difference in Conditions property insurance whereby defendant insured plaintiff against all risks of direct physical loss or damage to personal property owned or as may be acquired by it while on premises occupied by plaintiff in Mexico; that thereafter, personal property of plaintiff or in its custody “was lost, damaged and destroyed by a fortuitous external cause, bombardment by radiation introduced into plaintiff’s premises without its knowledge or consent.”

Subsequently, Falcon de Juarez was added as a party plaintiff upon the representation that it was Falcon de Juarez, a wholly owned subsidiary of Falcon Products, which actually sustained the alleged losses and so is the real party in interest. The amended complaint alleges the claim in virtually the same language as the original, except to allege in Count I that the policy was purchased by Falcon Products as agent for its Mexican subsidiary. Count III is also rescript of the original complaint except for the allegation that the property allegedly lost or damaged was owned or in the custody of Falcon de Juarez, and that as a direct result of the radiation bombardment Falcon de Juarez and Falcon Products (the latter by reason of its 100% ownership of its subsidiary) sustained the alleged losses. For determination are plaintiffs’ motion for summary judgment on Counts I and III and defendant’s cross-motion for summary judgment.

Falcon Products, Inc., a Delaware corporation with its principal place of business in Missouri, manufactures and sells, inter alia, tables and components thereof for use in the food industry. It also distributes tables and components thereof manufactured by its wholly owned Mexican subsidiary, Falcon de Juarez, a Mexican corporation.

The following facts are not in dispute. On December 6, 1983, Yonke Fénix, a Juarez scrap dealer, purchased parts of a medical teletherapy unit. The unit contained some 6,000 pellets of Cobalt-60 housed in a capsule in its head. Cobalt-60 is a radioactive metal, manufactured by bombarding ordinary cobalt with neutrons in an atomic reactor. During the delivery of the unit’s parts to the scrap yard, the capsule housing the pellets ruptured, contaminating the scrap metal, the delivery truck and the streets. At the scrap yard, loose pellets of Cobalt-60 were scattered about, contaminating the dealer’s scrap metal, including that which the dealer subsequently sold and delivered to Falcon de Juarez between December 6, 1983 and January 20, 1984.

Beginning December 10, 1983, Falcon de Juarez melted the contaminated scrap in its foundry and formed the resulting product into table base castings. These contaminated table bases were sold to the parent company, Falcon Products, and many of them were resold to customers of Falcon Products before the plaintiffs became aware of the facts. In their irradiated condition, these table bases were unusuable for the purposes intended and were retrieved and disposed cf. As the result, plaintiffs incurred substantial expenses and sustained losses which are the subject of their claims against defendant under the policy. Defendant denied the claims.

The insurance policy, first issued in August, 1982 and renewed for the period from November 1, 1983 through November 1, 1985, named Falcon Products as insured and covered Falcon Products in most countries, including Mexico, but excluding the United States. To the extent relevant the property covered by the policy was “(t)he interest of the insured in personal property owned or (thereafter) acquired, all while on premises owned, leased or occupied by the insured,” together with its interest in personal property of others in the insured’s custody. Perils insured against were defined in the policy as follows:

“This policy insures against all risks of direct physical loss or damage to the property covered hereunder from any external cause ... except as herein excluded and subject to all other provisions of the policy.”

Among the perils excluded were loss or damage caused by or resulting from “faulty materials”, “inherent vice”, “latent defect” and “contamination.” The policy also contained a Nuclear Exclusion Clause.

That the scrap metal purchased by Falcon de Juarez from Yonke Fénix had theretofore been “contaminated” (as that term is commonly understood) is undeniable, with the result that the metal into which the scrap metal was melted and manufactured by Falcon de Juarez into the table bases sold to Falcon Products was also contammated. Plaintiff concedes that in common understanding “contamination” connotes a condition of impurity resulting from mixture or contact with a foreign substance. Plaintiff further concedes that “plaintiffs’ loss herein was the result of an impurity resulting from the scrap metal’s contact with Cobalt 60, a radioactive (foreign) substance.” They contend, however, that plaintiffs’ loss was not the proximate result of “contamination” as that term is used in the policy.

It is plaintiffs’ position that the proximate or “efficient physical” cause of their loss was “the negligent conduct of those persons who broached the sealed capsule in which the Cobalt-60 pellets were kept.” In so arguing, plaintiffs overlook the decisive fact that the “negligent conduct” and the resultant contamination occurred prior to the time Falcon de Juarez acquired the scrap metal. That is, the metal was contaminated by Cobalt-60 before title thereto passed to Falcon.

As noted supra, the policy provided insurance (subject to exclusions) only against all risks of direct physical loss or damage to property covered thereunder, namely, the interest of Falcon in property owned or in Falcon’s custody on Falcon’s premises at the time of the loss. It follows as a matter of law and fact that irrespective of what or who caused the scrap metal to be contaminated, plaintiffs could not have sustained an insurable loss based on negligent conduct of third persons which occurred on premises in which Falcon had no interest and which resulted in contaminating property in which Falcon then had no interest whatever.

Plaintiffs further contend that when the policy is read as a whole, the contamination exclusion does not apply to contamination resulting from contact with a radioactive substance other than nuclear fuel or nuclear waste. They argue that inasmuch as the Nuclear Exclusion Clause expressly excludes from coverage, inter alia, loss or damage caused by contamination by radioactivity from any nuclear fuel or from nuclear waste from the combustion of nuclear fuel, the intended effect is to modify and limit the scope of the general exclusion clause by extending coverage to losses caused by contamination by radiation from other than nuclear fuel sources, even though the property was already contaminated when acquired and the loss was certain to occur. No such intent is here manifested.

Over and beyond the foregoing, we believe that the exclusion of losses caused by faulty materials is also here applicable. Although plaintiffs concede that under the dictionary definition and common understanding, the scrap metal utilized by Falcon de Juarez may have been “faulty material”, they contend that if material is rendered faulty by reason of contamination, only the contaminated exclusion (as they construe it) would apply. This is a non-sequitur. If material is faulty, the cause thereof is irrelevant.

Under any view of the facts, neither plaintiff sustained a loss within the coverage of the policy. We add that the amended complaint contains no allegation supportive of the right of Falcon Products to recover under the policy. Therein it is alleged that Falcon de Juarez sustained a property loss and incurred additional expenses related thereto and that Falcon Products is entitled to recover therefor solely by virtue of its one hundred percent ownership interest in Falcon de Juarez (which is a separate entity).

Summary judgment for defendant is appropriate. Accordingly, plaintiffs’ motion for partial summary judgment should be and is HEREBY OVERRULED, and defendant’s motion for summary judgment should be and it is HEREBY SUSTAINED. Judgment will be entered in accordance herewith.

      . Counts II (for Falcon de Juarez) and III seek additional damages for the alleged vexatious refusal of defendant to pay the claim.


author: BOWEN, District Judge.

text:
    James E. TENNER, Petitioner, v. Tommy WALLACE, Superintendent, Respondent.
    Civ. A. No. 684-55.
    United States District Court, S.D. Georgia, Statesboro Division.
    July 12, 1985.
    Roger A. Baruch, Prisoner Legal Counseling Project, Athens, Ga., for petitioner.
    Paula K. Smith, Wm. B. Hill, Jr., Marion 0. Gordon, Office of the Atty. Gen., Atlanta, Ga., for respondent.
   ORDER

BOWEN, District Judge.

Through his petition for a writ of habeas corpus under 28 U.S.C. § 2254, petitioner James E. Tenner seeks to attack the constitutionality of a judgment of conviction by the Superior Court of Bulloch County, Georgia. For the reasons outlined below, the Court has determined that the writ should issue.

Procedural and Factual Background

Petitioner was indicted with J.C. Washington and Alonzo Grant for the January 6, 1982 armed robbery of a convenience store in violation of Ga.Code § 26-1902(a). Prior to trial, petitioner’s co-defendants pleaded guilty. After a trial on February 11, 1982, a Bulloch County Superior Court jury found petitioner guilty of armed robbery. The trial judge sentenced petitioner to ten years incarceration. Petitioner appealed his conviction to the Georgia Court of Appeals on the ground of insufficient evidence to support the conviction. In a 5-4 decision, the Court of Appeals affirmed petitioner’s conviction. Tenner v. State, 165 Ga.App. 646, 302 S.E.2d 405 (1983). In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner claims his armed robbery conviction is constitutionally infirm because the evidence at trial was insufficient to support a guilty verdict. Since petitioner raised the issue on direct appeal, he has exhausted his state remedies. Buck v. Green, 743 F.2d 1567, 1569 (11th Cir.1984).

The Georgia Court of Appeals adduced from the evidence the facts of the case:

[t]he evidence shows that Tenner and his wife lived in the Stiles Motel for six or eight months and then moved. Several months later, Tenner returned alone and rented Room 25. A couple of days later two friends, Washington and Grant, came and rented Room 23. That same night, Washington and Grant wearing distinctive shoes and clothing robbed a convenience store across the street from the motel. Police found tracks of shoes worn by Washington and Grant leading from the store to Room 23 and then to Room 25. One of the armed robbers was wearing a long green raincoat, apparently under which the rifle used in the robbery was hidden. The raincoat and rifle were found in Room 23. During the robbery, 5 rolls of pennies were stolen. When the officers followed the steps to Room 25, they knocked on the door and it was answered by Tenner. He stated he was alone but he agreed to allow the officers into the room. As soon as the door was opened, Grant was seen sitting on the edge of the bed. Further search disclosed Washington in the bathroom. Under Tenner’s bed were found the five rolls of pennies. Tenner first said the pennies were given to him because he was owed money. Then he amended his statement to admit he knew that Washington and Grant were going to rob the store but he tried to talk them out of it. After the robbery, which he admitted he knew had occurred, he was given the five rolls of pennies.

Tenner v. State, 165 Ga.App. at 646-47, 302 S.E.2d at 406.

Legal Analysis

The due process clause of the fourteenth amendment precludes a state criminal conviction “except upon proof of guilt beyond a reasonable doubt.” Pilon v. Bordenkircher, 444 U.S. 1, 2, 100 S.Ct. 7, 8, 62 L.Ed.2d 1 (1979), citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When assessing the constitutional sufficiency of evidence, “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (original emphasis). After making all credibility decisions in favor of the state, Cosby v. Jones, 682 F.2d 1373, 1382-83 (11th Cir. 1982), “if the reviewing court is convinced by the evidence only that the defendant is more likely than not guilty then the evidence is not sufficient for conviction.” Id. at 1379 (original emphasis). In other words, “the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” Jackson, 443 U.S. at 324, 99 S.Ct. at 2792; this “standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. n. 16. The evidence, however, need not rule out every hypothesis except for guilt beyond a reasonable doubt. Martin v. Alabama, 730 F.2d 721, 724 (11th Cir.1984), citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.

To determine the sufficiency of evidence at petitioner Tenner’s trial, therefore, the Court must examine the essential elements of armed robbery under Georgia law. See Id. The Georgia statute under which petitioner was indicted provides in part: “[a] person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by the use of an offensive weapon, or any replica, article, or device having the appearance of such a weapon.” Ga.Code Ann. § 26-1902(a) (Supp. 1981); Ga.Code Ann. § 16-8-41(a) (1984). Furthermore, Georgia law provides that a person may be convicted of armed robbery if he is a party to the crime as defined in Ga.Code Ann. § 26-801 (1968) (Ga.Code Ann. § 16-2-20 (1984)). The statute provides:

(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
(b) A person is concerned in the commission of a crime only if he: (1) directly commits the crime; or (2) intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; or (3) intentionally aids or abets in the commission of the crime; or (4) intentionally advises, encourages, hires, counsels or procures another to commit the crime.

Ga.Code Ann. § 26-801 (1968). See also Ga.Code Ann. § 16-2-20 (1984).

The facts of the case clearly indicate that petitioner Tenner did not “directly commit” the armed robbery as defined in Ga.Code Ann. §§ 26-801(b)(l) (1968) and 26-1902(a) (Supp.1981). The Georgia Court of Appeals’ recitation of the facts, as noted supra, rules out petitioner’s direct participation in the robbery. Indeed, the convenience store clerk expressly testified that petitioner was not one of the two bandits. Trial Transcript at 12, 33. Furthermore, the footprints of Grant and Washington led from the robbery site, and the two perpetrators pleaded guilty to the substantive offense. Accordingly, the evidence was insufficient for any rational factfinder to determine guilt beyond a reasonable doubt with respect to Ga.Code §§ 26-1902(a) and 26-801(b)(l).

Georgia Code § 26-801(b)(3), which permits a person to be convicted of a substantive offense when he intentionally “aids or abets” another in the commission of the offense, has been interpreted by the Georgia courts to require either the person’s actual or constructive presence at the scene of the crime or his participation in a conspiracy to commit the crime. “Aid or abet,” as used in the statute, “should be given the same meaning as in former Code § 26-501 defining a principal in the second degree as one ‘who is present, aiding and abetting the act to be done.’ ” Hannah v. State, 125 Ga.App. 596, 598, 600, 188 5. F.2d 401, 403, 404 (1972). See also La-fave and Scott, Criminal Law 497-98 (1972). As noted above, no evidence suggests that petitioner was present at the convenience store armed robbery. Additionally, no evidence indicates that he was constructively present as a “lookout.” Trial Transcript at 23; see Kimbro v. State, 152 Ga.App. 893, 264 S.E.2d 327 (1980); Simmons v. State, 129 Ga.App. 107, 198 S.E.2d 718 (1973). See also LaFave, supra. The absence of evidence suggesting Tenner’s presence at the robbery scene precludes a conviction based on intentional aiding and abetting within the meaning of Ga.Code § 26-801(b)(3), Hannah, supra, unless petitioner conspired to commit the robbery. Shehee v. State, 167 Ga.App. 542, 307 S.E.2d 54 (1983); Scott v. State, 229 Ga. 541, 192 S.E.2d 367 (1972); Osborn v. State, 161 Ga.App. 132, 291 S.E.2d 22 (1982).

While an individual who has engaged in a conspiracy may be deemed a party to a crime under § 26-801(b)(3) and (b)(4) Id., the Court has determined that the evidence against Tenner cannot reasonably support an inference beyond a reasonable doubt of the existence of a conspiracy to commit armed robbery. Neither does the evidence reasonably support a conclusion that Tenner intentionally advised, encouraged, hired, counseled or procured another to commit the crime within the meaning of Georgia Code § 26-801(b)(4) (1968). Viewing the evidence in the light most favorable to the prosecution and disbelieving the defense testimony, Cosby, 682 F.2d at 1382, we are faced with the following facts. (1) Tenner returned to the Stiles Motel two days before the robbery; he previously had lived there for six or eight months and was away several months before returning. (2) Grant’s and Washington’s footsteps led from the convenience store to their room and then to Tenner’s room. (3) Grant and Washington were found in Tenner’s room shortly after the robbery, with most of the loot in their pockets. Trial Transcript at 44. (4) Five rolls of pennies that had been taken in the robbery were under Tenner’s bed and Tenner claimed ownership of them. (5) Tenner made misstatements to the police officer by initially claiming that the pennies were payment for a debt and by claiming that no one else was in the motel room.

“In reviewing the sufficiency of evidence under Jackson, an inference could not establish guilt unless, on the evidence in the case, a rational connection existed between the fact established and the fact inferred.” Turner v. McKaskle, 721 F.2d 999, 1003 n. 3 (5th Cir.1983). To constitutionally sustain Tenner’s conviction, therefore, the aforementioned circumstantial evidence must logically support an inference beyond a reasonable doubt, Jackson, supra, that Tenner either conspired to commit the armed robbery, Scott, supra, or intentionally advised, encouraged, hired, counseled or procured Washington and Grant to commit the robbery. Ga.Code Ann. § 26—801(b)(4) (1968). The aforementioned evidence simply does not support a logical inference of such intentional conduct. Turner, 721 F.2d at 1003-04; Cosby, 682 F.2d at 1381-83; United States v. Henderson, 693 F.2d 1028 (11th Cir.1982). At most, “the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal support to a theory of guilt and a theory of innocence of the crime charged.” Cosby, 682 F.2d at 1383. Consequently, “a reasonable jury must necessarily entertain a reasonable doubt.” Id,

Although Tenner’s acceptance of the five rolls of pennies and his attempt to hide Washington and Grant in his motel room might have supported convictions for theft by receiving stolen property (O.C. G.A. § 16-8-7 (Code Ann. § 26-1806)) and hindering the apprehension of a criminal (O.C.G.A. § 16-10-50 (Code Ann. § 2503)), there is no evidence from which it may reasonably be inferred that he directly participated in the planning or execution of the robbery or that he was otherwise concerned in its commission pursuant to O.C.G.A. § 16-2-20 (Code Ann. § 26-801). In particular, there is no evidence to support the majority’s speculation that Tenner cased the store and notified Grant and Washington to come to the motel or that he conferred with them in any sort of advisory capacity before the crime was committed.

Tenner v. State, 165 Ga.App. at 648, 302 S.E.2d at 407 (Banke, J., dissenting, joined by Carley, Sognier and Pope, JJ.).

Upon the foregoing review of the trial evidence in the light most favorable to the prosecution, the Court concludes that no rational trier of fact could have found beyond a reasonable doubt the essential elements of Ga.Code Ann. §§ 26-1902(a) (Supp.1981) and 26-801 (1968). Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16. Consequently, the Court GRANTS petitioner James E. Tenner’s request for a writ of habeas corpus.

Since the Court’s decision is based upon the insufficiency of evidence to support the armed robbery conviction, the double jeopardy clause of the fifth amendment precludes petitioner’s retrial for the same offense. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1 (1978); Turner v. McKaskle, 721 F.2d at 1004. Nevertheless, as the Court noted above, the facts of this case indicate that petitioner may have committed criminal violations for which he has not been tried. Accordingly, the Court hereby orders respondent to release petitioner James E. Tenner from custody in one hundred twenty (120) days from the date of this order if, by the expiration of the one hundred twenty days, petitioner is not brought to trial for a crime other than armed robbery, as defined in Ga.Code Ann. § 26-1902(a) (Supp.1981) and Ga.Code Ann. § 26-801 (1968) (Ga.Code Ann. § 16-2-20 (1984)).

      . Washington and Grant did not testify at petitioner’s trial.

      . Approximately $Ill.00 in currency and coins was taken in the robbery. Respondent's Exhibit No. 1 at 4.

      . Under Georgia law, a defendant need not be indicted under this statute before the state may prove his culpability as a party to a crime. Wright v. State, 165 Ga.App. 790, 302 S.E.2d 706 (1983). The 1968 and 1984 versions of the statute are virtually identical.

      . The jury instruction at petitioner’s trial encompassed the elements of this statute. See Trial Transcript at 153.

      . Subsection (b)(2) clearly is inapposite to the instant case.

      . Although the Stiles Motel is located across the street from the convenience store, Tenner v. State, supra, the trial transcript indicates that petitioner’s room did not face the store. Trial Transcript at 37, 50-51.

      . "[T]he inference of participation in the crime drawn from possession of fruits of the crime is to be judged like any other inference, that is, on the strength of that inference in light of the facts of each particular case." Cosby, 682 F.2d at 1380.

      . Cf. Cosby, 682 F.2d at 1383 n. 19, citing Holloway v. McElroy, 632 F.2d 605, 640-41 (5th Cir. 1980) (“inconsistencies in defendant’s story do not support the prosecution’s case but only discredit the specific points in defendant’s testimony").

      . One who hinders the apprehension of a criminal is not considered a “party to a crime” under Ga.Code Ann. § 26-801. Moore v. State, 240 Ga. 210, 240 S.E.2d 68 (1977).

      . The Court is acutely concerned with the necessity of finality of criminal convictions. Nevertheless, ”[t]he duty of a federal habeas corpus court to appraise a claim that a constitutional error did occur—reflecting as it does the belief that the ‘finality’ of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right—is not one that can be so lightly abjured.” Jackson v. Virginia, 443 U.S. at 323, 99 S.Ct. at 2791.


author: KANE, District Judge.

text:
    SIERRA CLUB, a nonprofit California corporation, Plaintiff, v. John BLOCK, in his official capacity as Secretary of Agriculture, and Max Peterson, in his official capacity as Chief of the Forest Service, Federal Defendants, and Mountain States Legal Foundation, a nonprofit Colorado corporation; Colorado Water Congress; Colorado Water Conservation Board; and City and County of Denver, acting By and Through its Board of Water Commissioners, Defendant-Intervenors.
    Civ. A. No. 84-K-2.
    United States District Court, D. Colorado.
    July 16, 1985.
    Lori Potter and Anthony Ruckel, Sierra Club Legal Defense Fund, Denver, Colo., for Sierra Club.
    Richard Nolan, John Hill, Asst. U.S. Attys., Denver, Colo., and Stuart Shelton, Office of General Counsel, U.S. Dept. of Agriculture, Washington, D.C., for federal defendants.
    Casey Shpall, Mountain States Legal Foundation, Denver, Colo., for Mountain States Legal Foundation.
    Clyde O. Martz, John M. Sayre, Gregory J. Hobbs, Jr., Zach C. Miller and Bennett W. Raley, Davis, Graham & Stubbs, Denver, Colo., for Colorado Water Congress.
    Wendy Weiss, Asst. Atty. Gen., State of Colorado, Denver, Colo., for Colorado Water Conservation Bd.
    Wayne D. Williams, Michael L. Walker, Henry C. Tiegen, and Jack F. Ross, James F. Engelking, Christopher R. Paulson and Melvin B. Sabey, Saunders, Snyder, Ross & Dickson, Denver, Colo., for City and County of Denver.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is an action seeking declaratory relief against officers of the United States Department of Agriculture, including the Secretary of Agriculture and the Chief of the Forest Service. Plaintiff Sierra Club contends that defendants have failed to claim federal reserved water rights in all 24 of the designated wilderness areas which they administer in the State of Colorado. It is asserted that the United States’ failure to assert federal reserved water rights will result in the loss of such rights. Plaintiff seeks a judgment declaring that: 1) the United States possesses the reserved water rights necessary to fulfill the wilderness purposes of all present and future wilderness areas in Colorado, and 2) the failure of defendants to claim those rights is arbitrary and capricious, constitutes unlawfully withheld agency action, and is a violation of the public trust.

This matter is now before me on defendants’ motion to dismiss, or, in the alternative, for summary judgment. The issue raised by the motion to dismiss is whether defendants’ failure to claim reserved water rights for wilderness areas is subject to judicial review. Defendants contend that the United States Supreme Court’s recent decision in Heckler v. Chaney, — U.S. —, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), prevents judicial review in this case and that the cause of action must now be dismissed. Alternatively, defendants argue that the existence of federal reserved water rights is uncertain and therefore, the defendants could not have acted arbitrarily or unlawfully in not claiming those rights.

I.

Review of agency action in this case is sought under the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, which provides comprehensive provisions for review of final agency actions. “Agency actions” are defined to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act____” 5 U.S.C. § 551(13) (emphasis added). Thus, under the APA, both an agency’s failure to act and its actions are subject to judicial review.

However, this general rule of reviewability is not without limitation. The APA provides two exceptions in § 701(a): “This chapter applies, according to the provisions thereof, except that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Further, with regard to the second exception, the Supreme Court recently created a rebuttable presumption that an agency’s decision not to take enforcement action is not subject to judicial review. Chaney, — U.S. —, —, 105 S.Ct. 1649, 1656.

The first exception applies when Congress has affirmatively expressed an intent to preclude judicial review in a statute. In the present case, there is no indication that there are any existing statutes which expressly prohibit review of the agency’s failure to assert federal reserved water rights in wilderness areas. Rather, defendants contend that review is precluded under the second exception and the Supreme Court’s decision in Chaney.

A.

The second exception for action “committed to agency discretion” was first discussed by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). At issue in that case was the Secretary of Transportation’s approval of the building of an interstate highway through a park in Memphis, Tennessee. In addressing the question of whether the Secretary’s action was reviewable, the Court noted that the exception under § 701(a) for action “committed to agency discretion” was “very narrow”. 401 U.S. 402, 410. The Court then stated that “[t]he legislative history of the Administrative Procedure Act indicates that ... [this exception] is applicable in those rare circumstances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” 401 U.S. 402, 410, 91 S.Ct. 814, 820, quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945); see also Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). In other words, in determining whether the exception applies, courts must analyze the statutes in question. If there is “no law to apply”, or “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Chaney, — U.S. —, —, 105 S.Ct. 1649, 1655, then review is precluded.

In Overton Park, the statutes in question were § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138. Both of these statutes provided that the Secretary of Transportation “shall not approve any program or- project” that requires the use of any parkland unless he finds that alternative routes are not feasible and harm to the park is minimized. See 23 U.S.C. § 138; 49 U.S.C. § 1653(f). The Court stated that these statutes “are clear and specific directives” and that “[t]his language is a plain and explicit bar____” 401 U.S. 402, 411. Because these statutes provided a meaningful standard against which to judge the Secretary’s exercise of discretion, the Court held that “the exemption for action ‘committed to agency discretion’ [was] inapplicable,” and thus, the Secretary’s decision was subject to judicial review. 401 U.S. 402, 413.

Subsequently, in Chaney, the Court was again faced with the question of whether the exception for action “committed to agency discretion” applied, precluding review of an agency’s action. However, unlike Overton Park, where review was sought of the Secretary’s affirmative act of approval, in Chaney, review was sought of an agency’s failure to act.

In Chaney, prisoners sentenced to die by lethal injection petitioned the Food and Drug Administration (FDA), alleging that the use of the drugs for such purpose violated the Federal Food, Drug and Cosmetics Act (FDCA), 21 U.S.C. § 301 et seq., and requesting that the FDA take various enforcement actions to prevent these violations. The FDA refused their request. The issue before the Supreme Court was “the extent to which determinations by the FDA not to exercise its enforcement authority over the use of drugs in interstate commerce may be judicially reviewed.” Chaney, — U.S. —, —, 105 S.Ct. 1649, 1654 (emphasis in original). In determining this issue, the Court distinguished Overton Park by stating that

Overton Park did not involve an agency’s refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement, steps generally involve precisely the opposite situation____

Chaney, — U.S. —, —, 105 S.Ct. 1649, 1655.

The Court then determined that agency decisions to refuse enforcement were generally unsuitable for judicial review. — U.S. —, —, 105 S.Ct. 1649, 1654. Yet the Court did not declare that all such agency decisions were unreviewable. Instead, the Court created a rebuttable presumption that an agency’s decision not to take enforcement action was immune from judicial review under § 701(a)’s exception for action “committed to agency discretion.” — U.S. —, —, 105 S.Ct. 1649, 1656.

Whether this presumption is rebutted depends upon the application of the standard in Overton Park. — U.S. —, —, 105 S.Ct. 1649, 1656. If there is “no law to apply” in that Congress has not “indicated an intent [in the statutes in question] to circumscribe enforcement agency discretion, and has [not] provided meaningful standards for defining the limits of that discretion,” then the presumption stands and review is precluded. — U.S. —, —, 105 S.Ct. 1649, 1656. However, as the Court acknowledged, “Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers.” — U.S. —, —, 105 S.Ct. 1649, 1657. Thus, if the statutes in question contain legislative direction and provide a meaningful standard by which to judge the agency’s exercise of discretion, then the presumption is rebutted and judicial review is proper. For example, “where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities^] ... the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’ ” — U.S. —, — n. 4, 105 S.Ct. 1649, 1656 n. 4, quoting Adams v. Richardson, 480 F.2d 1159 (D.C.Cir. 1973).

In Chaney, after applying this standard to the relevant provisions of the FDCA, the Court found that the presumption was not overcome. — U.S. —, —, 105 S.Ct. 1649, 1658. Accordingly, the Court held that “[t]he FDA’s decision not to take the enforcement actions requested by respondents ... [was] not subject to judicial review under the APA.” — U.S. —, —, 105 S.Ct. 1649, 1659. The Court reasoned that the pertinent provisions of the FDCA were “framed in the permissive” and “thus commit[ted] complete discretion to the Secretary to decide how and when they should be exercised.” — U.S. —, —, 105 S.Ct. 1649,1657. For example, the FDCA’s general provision for enforcement provides only that “[t]he Secretary is authorized to conduct examinations and investigations____” 21 U.S.C. § 372 (emphasis added).

B.

In the present case, it is alleged that the Forest Service has failed to take action to preserve federal reserved water rights in Colorado wilderness areas. Although this is not a refusal to institute enforcement action, as in Chaney, it is a failure to act as opposed to an affirmative agency action. As such, it arguably falls within the Court’s decision in Chaney that there is a presumption of unreviewability. However, this presumption is rebuttable if there is “law to apply” under the standard of Over-ton Park.

To determine if there is “law to apply”, I must first examine the pertinent statutes. The relevant provisions of the Wilderness Act, 16 U.S.C. § 1131 et seq., are framed in mandatory rather than permissive language. For instance, the Act directs that wilderness areas “shall be administered ... in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas____” 16 U.S.C. § 1131(a) (emphasis added). Additionally, § 1133(b) of the Act requires that “each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area____” 16 U.S.C. § 1133(b) (emphasis added). These mandates include the establishment or protection of water rights. See 16 U.S.C. § 526. The Forest Service itself acknowledges, in its answer to Sierra Club’s amended complaint, that its statutory duty is to protect wilderness water resources.

Unlike the permissive statutory language in Chaney, where agency action was “authorized”, the mandatory language of the Wilderness Act provides “clear and specific directives”, Overton Park, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 to the Forest Service to protect the wilderness areas, including water resources. Certainly, “Congress [did] not intend administrative agencies [such as those involved in the instant case], agents of Congress’ own creation, to ignore [such] clear ... statutorycommands____” Chaney, — U.S. —, 105 S.Ct. 1649, 1660 (Brennan, J., concurring). The Wilderness Act provides both legislative direction and manageable standards by which to judge the agency’s failure to act in this case. Accordingly, the presumption of nonreviewability is rebutted and review of the Forest Service’s failure to assert reserved water rights is proper under the APA.

II.

Defendants argue, in the alternative, that I should grant summary judgment in this case for the defendants because the existence of federal reserved water rights is “uncertain” and thus, defendants were not arbitrary or capricious and did not act unlawfully in failing to assert those rights. Sierra Club responds to this argument by stating that its cross-motion for summary judgment, which is pending but not yet ripe for decision, dispels this “uncertainty” and would leave the Forest Service without a basis for summary judgment in its favor. Since the defendants’ motion for summary judgment is so closely tied with Sierra Club’s cross-motion, I shall defer decision on this issue.

IT IS THEREFORE ORDERED THAT:

1. Defendants’ motion to dismiss is denied;

2. Defendants’ motion for summary judgment will be considered at a later date along with plaintiff’s cross-motion for summary judgment.

8. The hearing set for July 26, 1985, at 9:00 a.m. is vacated.


author: DUHE, District Judge.

text:
    Mary Louise Simboli CARNEY v. MARATHON OIL COMPANY.
    Civ. A. No. 83-2517 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    July 26, 1985.

      John Blackwell, New Iberia, La., for third-party defendant and intervenor.
    Joseph L. Lemoine, Jr., Lafayette, La., for third-party plaintiff and counterclaim-ant.
   MEMORANDUM RULING

DUHE, District Judge.

FACTUAL BACKGROUND

This matter arises out of the fatal injuries sustained by P.J. Carney in the course of his employment with Normco Contractors (“Normco”) while aboard a fixed platform owned by Marathon Oil Company (“Marathon”) on the Outer Continental Shelf of Louisiana. Carney’s survivors brought this action against Marathon. The Travelers Indemnity Company—the Long-shore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA”) insurer of Normco—subsequently intervened to recover from Marathon and McDermott, Inc., the amount it paid in LHWCA benefits. Marathon in turn counterclaimed against Travelers and third-partied Normco.

In January this Court held that the indemnity provisions of the master-service contract between Normco and Marathon were nullified by the Louisiana Oilfield Indemnity Act, R.S. 9:2780, and granted summary judgment to Normco and Travelers against Marathon on that basis. However, Marathon’s claim for indemnity for an alleged breach of the implied warranty of workmanlike performance (“WWLP”) was expressly preserved in that ruling. Norm-co and Travelers now move for a reconsideration of that part of the ruling preserving Marathon’s claim for breach of WWLP. Marathon in turn responds by requesting reconsideration of that part of the ruling striking down the indemnification clause insofar that it requires Normco to indemnify Marathon for Normco’s negligence.

I. THE MOTION FOR REHEARING

The Normco/Travelers motion regarding the WWLP is well taken. Existing precedent unequivocally supports the proposition that the WWLP does not apply to platform situations. See, e.g., Hamilton v. Mesa Petroleum, 495 F.Supp. 718 (E.D.La. 1980); Law v. Sea Drilling Corporation, 510 F.2d 242 (5th Cir.1980).

Marathon responds that even if the WWLP isn’t applicable to fixed platforms, § 5(a) of the LHWCA does permit certain indemnification claims against employers. In Horton v. Sun Exploration and Production Company, 616 F.Supp. 130 (W.D. La. 1985), this Court held that a § 905(a) employer is subject to non-vessel third party indemnification claims arising out of contract (implied or express) or an obligation in tort between the employer and third-party. See also Pippen v. Shell Oil Company, 661 F.2d 378, 386-387 (5th Cir.1981). Since, however, Marathon has not presented any evidence of an obligation in tort between it and Normco that would cause Normco to be liable to Marathon for indemnity, the summary judgment against Marathon was proper.

Marathon also argues that R.S. 9:2780 does permit a contractual claim for indemnity, when the claim is for indemnity for the indemnitor’s negligence. R.S. 9:2780 provides, in pertinent part:

A. ... It is the intent of the legislature by this Section to declare null and void and against public policy of the State of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or any agent of employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.
B. Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or current negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indemnitee (emphasis added).

It is apparent that indemnity provisions are nullified by R.S. 9:2780 only to the extent they purport to require indemnification or defense for the indemnitee’s negligence. This Court's previous ruling will be so modified.

II. MOTION FOR SUMMARY JUDGMENT

McDermott moves for summary judgment against Travelers’ third party claim on the grounds that there is no genuine issue of material fact as to McDermott’s liability. In its third party complaint Travelers had alleged that McDermott personnel had been negligent in their first aid efforts because they had “failed to treat a bleeding headwound which was the cause of death.”

McDermott argues that there is no evidence whatsoever of any bleeding head-wound, and that what evidence there is indicates that the cause of death was electrocution. Travelers has not opposed this motion.

McDermott having made a prima facie showing that it is entitled to prevail on the motion, summary judgment will be granted in its favor.

To recapitulate, this Court:

(1) amends its ruling of January 24, 1985, by extending the summary judgment against Marathon to include its claims for breach of an implied warranty of workmanlike performance, and all other non-contractual indemnification claims. However, Marathon’s claim for contractual indemnity for Normco’s negligence is reinstated.
(2) grants summary judgment in favor of McDermott and against Travelers.


author: CAFFREY, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Darlene FRAPPIER, Defendant.
    Crim. No. 85-99-C.
    United States District Court, D. Massachusetts.
    July 31, 1985.
    Owen Walker, Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a criminal case in which defendant, Darlene Frappier, a/k/a Darlene Boissoneault, has been indicted pursuant to 18 U.S.C. §§ 1111 and 2 for the murder of her then husband, Sgt. Robert A. Boissonneault. The case is now before this Court on defendant’s motion to suppress statements which she made at her detention hearing on March 28, 1985. The motion to suppress was filed by Owen Walker, Esq. the Federal Defender who is successor counsel to her original lawyer, Raymond C. Malloy. Defendant alleges that her testimony at that hearing resulted from ineffective assistance of counsel and thus, was procured in violation of her Sixth Amendment rights. A suppression hearing on this matter was held on June 17, 18 and 27, 1985.

According to the evidence presented to this Court, defendant was represented at her detention hearing by Raymond C. Malloy, Esq. from Methuen, Massachusetts. A friend of defendant's had previously contacted Stephen Struffolino, a senior member of Mr. Malloy’s firm, to arrange for defendant’s representation. Thereafter, Mr. Struffolino asked Mr. Malloy to interview defendant and to arrange for her bail. Mr. Malloy first met with defendant on the evening of March 25, 1985, immediately after her arraignment. This meeting, which took place in the U.S. Marshal’s office, lasted about ten minutes. Mr. Malloy then had another brief conversation with defendant on the morning of March 28, shortly before her detention hearing. During each of these meetings, Mr. Malloy tried to learn as much as possible about his client’s background; he asked her very little about the specific facts of the murder case.

While Mr. Malloy and the defendant were in the courtroom waiting for the detention hearing to begin, the prosecuting attorney handed Mr. Malloy the reports of several statements which defendant had given to government agents during the investigation of the case. Mr. Malloy was only able to glance at these reports before the detention proceeding got underway.

At the hearing, the government called FBI Special Agent Thomas Terhaar, who described not only the case against defendant with respect to the murder of Sgt. Boisseneault, but also defendant's alleged involvement in the 1977 shooting of another of her former husbands. Mr. Malloy thought that the agent’s version of what had happened “was a pretty powerful story,” and therefore concluded that there was no hope of getting defendant out on bail unless she herself took the stand and attempted to rebut the agent’s testimony as to the substance of the charge. Mr. Malloy believed the few statements defendant had made to him regarding the facts of the case and felt she would be a credible witness. He thought that if the Magistrate believed her version of the facts, the Magistrate might release her on bail.

Mr. Malloy expressed his thoughts to defendant and asked her if she could relate the same facts on the stand that she had told him in their two conversations prior to the detention hearing. She said she could, and she agreed to testify. Mr. Malloy also told her that he thought testifying would be “dangerous” because “they” would ask her questions, but he did not specifically explain to her what he meant by these statements. After putting defendant on the stand, Mr. Malloy questioned her only briefly, but the prosecutor cross examined her extensively about her alleged involvement in both the murder of Sgt. Boissoneault and the shooting of Robert Veinot in 1977. It is this testimony which defendant now seeks to suppress.

Under the Sixth Amendment, a criminal defendant is constitutionally entitled to receive assistance of counsel which is reasonably competent in light of both prevailing professional norms and the circumstances of the particular case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In evaluating a claim of ineffective assistance of counsel, a court must show special deference for counsel’s professional judgment. Because a decision to have a defendant testify at any stage of a criminal proceeding is an extremely sensitive one, “defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound ... strategy.’ ” Id. at —, 104 S.Ct. at 2066, quoting Michel v. New York, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955).

Despite the great weight of defendant’s burden, I find that Mrs. Frappier has succeeded in proving that Mr. Malloy failed to exercise reasonable professional judgment when he advised defendant to take the stand at the detention hearing. At the time of the hearing, Mr. Malloy had not properly acquainted himself with either the law governing the proceeding or the facts surrounding his client’s case. Mr. Malloy was unaware of the option available to him under the Bail Reform Act of 1984, which permits an attorney to present a defendant’s testimony by proffer at a detention hearing, 18 U.S.C. § 3142(f), thereby eliminating the need for a defendant to incur the risks of cross-examination. Although Mr. Malloy understood the seriousness of the charge which defendant was facing, he spent a total of only twenty minutes talking with her before the bail hearing, and he devoted less than half of that time to investigating the facts of the ease. When Mr. Malloy called his client to the stand in the hope that the Magistrate would believe her testimony concerning the substance of the charge, Mr. Malloy had no more than “skimmed” her previous statements to law enforcement agents, and he was regretfully unaware that her indictment was the result of a comprehensive two-year FBI investigation. Furthermore, he did not know that the government’s attorney had already successfully prosecuted another defendant in the case, and was therefore likely to be a knowledgeable and formidable adversary.

Not only did Mr. Malloy fail to investigate adequately the facts and posture of his client’s case, but he also failed to provide Mrs. Frappier with sufficient information on which to base an intelligent decision about whether to testify. He explained to her Ijeither her constitutional right to remainJ^ilent nor the potential consequences of waiving her privilege against self-incrimination. He also failed to describe to her the manner in which witnesses may be examined in an adversarial proceeding and to prepare her for the various inquiries which were likely to be made of her on direct and cross-examination. See R. Keeton, Trial Tactics and Methods 34-40 (1973).

At the hearing on defendant’s motion to suppress counsel for defendant proffered as expert witnesses, Rikki Klieman, Esq., and John Prescott, Esq. Ms. Klieman is a practicing attorney whose experience in criminal law consists of 4Vz years in a state prosecutor’s office and approximately 5 years in private practice in both state and federal courts in this district and elsewhere. Ms. Klieman has appeared for defendants in approximately 35 criminal murder cases and has lectured as an expert in the area of criminal defense practice. Mr. Prescott is the supervising attorney for the Committee for Public Counsel formerly known as the Mass. Defenders. Mr. Prescott has been practicing criminal law for approximately 20 years both as the First Assistant District Attorney for Norfolk County and as a public defender. The Court declined to take expert testimony from these two well-qualified lawyers because it was not satisfied that their testimony met the requirements of Rule 702 of the Federal Rules of Evidence which states in pertinent part: “[I]f (expert testimony) ... will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified ... may testify____” This court felt that 24 years experience on this court coupled with six years in the office of the United States Attorney made such assistance academic and unnecessary. Nevertheless this Court is prepared to believe the truthfulness of the proffered testimony as to Ms. Klieman’s testimony, namely, that she has never put a defendant on the stand at a bail hearing and would never do so because the risk far outweighs the possible benefits from so doing. I also treat as factual the proffered testimony that Ms. Klieman would withdraw as counsel for a defendant rather than allow a defendant to take the witness stand at a bail hearing. I further treat as factual the proffered 'testimony of Mr. Prescott, who has handled approximately 1,000 bail hearings, that he has never put a defendant on the witness stand at a bail hearing, and that he would withdraw if he could not persuade a defendant-client to stay off the witness stand. I summarize these proffered statements to the extent they bear on the reasonableness or unreasonableness of the conduct adopted by Mr. Malloy.

For all of the reasons stated above, I find and rule that Mr. Malloy’s conduct in connection with his representation of defendant at her detention hearing fell short of reasonable professional standards and constituted a violation of defendant’s Sixth Amendment right to counsel. After reviewing the transcript of defendant’s testimony at the bail hearing, I further find that such testimony may prove prejudicial to her defense, see Strickland v. Washington, 466 U.S. —, 104 S.Ct. at 2065, and I therefore rule that her testimony at the detention hearing on March 28, 1985 should be suppressed as to their use in the government’s case in chief. See United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed. 564 (1981).

Order accordingly.


author: JAMES M. BURNS, District Judge.

text:
    Roger E. LOE, Plaintiff, v. David FROHNMAYER, Attorney General and State of Oregon, Bureau of Vital Statistics, Defendants.
    No. CIV. 84-6539-E.
    United States District Court, D. Oregon.
    Aug. 2, 1985.
    Roger E. Loe, in pro per.
    Thomas Elden, Asst. Atty. Gen., Salem, Or., for defendants.
   OPINION AND ORDER

JAMES M. BURNS, District Judge.

Nearly two centuries ago, Samuel Taylor Coleridge began his epic “The Rime of the Ancient Mariner” in this familiar fashion;

It is an ancient Mariner,

And he stoppeth one of three,

By thy long grey beard and glittering eye,

Now, wherefore stopp’st thou me?

My reaction to the “Complaint in Admiralty” filed here is similar to that of the wedding guest accosted by the seemingly demented old salt in Coleridge’s poem. I haven’t the foggiest concept of the legal course plaintiff is attempting to navigate. He attempts to invoke the admiralty jurisdiction of this court through vague metaphors relating to his Oregon birth certificate as a “charter” or a “Bill of Lading” aboard a “ship of state;” the Attorney General is described as the “Master” of the vessel. He describes the Bureau of Vital Statistics as a “Public Vessel” that is “harboured within the flood plane [sic] at Box 116, Portland, Oregon 97207.” Said “Public Vessel” is allegedly “chartered in the common carriage of cargo” and is under the “charter party flag” of the U.S.

While I must confess I have some admiration for plaintiff’s literary talents, his inventive pleadings do not state any basis for invoking this court’s admiralty jurisdiction under 28 U.S.C. § 1333, or under any other statute which grants jurisdiction. Instead, plaintiff creates only a sea of confusion and a case of judicial mal de mer. Ninth Circuit case law, largely through its opinions in the Franklin cases (Franklin v. Murphy, 745 F.2d 1221 (1984) and Franklin v. State of Oregon, 662 F.2d 1337 (1981)) compels trial judges not to be too hasty to dismiss pleadings which sometimes appear more frivolous to trial than to appellate judges. Nonetheless, this case can deserve nothing more than a judicial “deep six.”

The Magistrate’s Findings and Recommendation, filed March 5, 1985, are approved and adopted. The complaint and this action are dismissed with prejudice. The Clerk will enter judgment accordingly.

IT IS SO ORDERED.

COMPLAINT IN ADMIRALTY

IN REM AGAINST THE PUBLIC VESSEL FOR CARGO IN PERSONAM AGAINST THE MASTER FOR POSSESSION

I

This complaint in Rem against the Public Vessel Bureau of Vital Statistics, hereinafter called the Public Vessel, for the cargo and in Personam against the Master, David Frohnmayer, Attorney General hereinafter called the Master, for the possession of the cargo.

JURISDICTION

II

This is a case of admiralty and maritime jurisdiction, as hereinafter more fully appears, and is an admiralty or maritime claim within the meaning of 28 U.S.C. and Rule 9(h) of the Federal Rules of Civil Procedure.

III

Roger E. Loe, hereinafter called Plaintiff is domiciled in Marion County at 5798 Evans Valley Road, Silverton, Oregon 97831. Therefore the jurisdiction of this Court is determined by this domicile and is within the United States District Court, District of Oregon.

IV

David Frohnmayer is the Attorney General of the State of Oregon and is the' Master of the Public Vessel.

V

Public Vessel Bureau of Vital Statistics is harboured within the flood plane at Box 116, Portland, Ore. 97207.

VI

At all times hereinafter mentioned the defendant Public Vessel was a vessel chartered in the common carriage of cargo under the flag and/or seal of the State of Oregon and under the charter party flag of the United States.

VII

Consignors delivered to the port of loading the original voluntary grants of an intangible, incorporeal hereditaments of personalty which is evidenced by the Birth Certificate, Registrar number 643 Local Registered No. 82(258) Said Birth Certificate is acting as a Bill of Lading. A certified copy of the Record on file with the Vital Records, Portland, Oregon is attached as Exhibit A.

VIII

Said Birth Certificate, Bill of Lading is now and has been stored aboard said Public Vessel as an appurtenance for the voyage of the charter party.

IX

On September 6, 1928 Roger E. Loe, Plaintiff consignee, was born as a natural individual with his legal title and on September 8, 1928 a voluntary, original grant of an intangible incorporeal hereditament of personalty was transported and delivered to the Public Vessel Bureau of Vital Statistics and accepted as evidenced by the signature of the Registrar and the State Seal.

X

The aforesaid Birth Certificate acting as a Bill of Lading that transported the basic grant of personalty are in fact the basis for all jurisdiction that governs the charter party’s public policy.

XI

The basic grant was voluntary and Plaintiff as consignee of the shipment is entitled to said cargo and brings this action on his own behalf.

XII

All and singular the premises are true and within the admiralty and maritime jurisdiction of the United States and this Honorable Court.

Wherefore, Plaintiffs each pray:

1. That process in due form of law according to the practice of this Court in cases in Admiralty and Maritime jurisdiction may issue against the defendant Master of the Vessel for possession of cargo citing him to appear and answer all and singular the matters aforesaid.

2. That process in due form of Law according to the practice of this Court in cases of Admiralty and Maritime jurisdiction issue against defendant Public Vessel Bureau of Vital Statistics, all relevant appurtenances, and all persons claiming any interest in such Vessel may be cited to appear and answer all and singular the matters aforesaid.

3. That this Honorable Court shall issue the summons and at the end of the 20 day period the arrest for the cargo be issued.

4. That this Honorable Court order, adjudge and decree that the Plaintiff each in the above entitled action are absolute, are in actual possession of the legal title and therefore the claims are good against the world.

5. That this Honorable Court grants a perpetual injunction to further protect the public policy, meaning the Westeng P & I Club, its associations, members, agents and subagents and to save said public policy from further damage from the former original grants and Plaintiffs each private property.

6. That the Plaintiff have such other and further relief in the premises as in Law and Justice it may be entitled to receive.

RULE 12 MOTION TO DISMISS

Comes now defendant David Frohnmayer, Attorney General for the State of Oregon, and respectfully moves the court pursuant to FRCP 12(b)(6) and 12(f) to dismiss the Complaint for failure to state a claim upon which relief can be granted and in the alternative to strike the entire pleadings as impertinent. Said motions are supported by the attached Memorandum of Law and the Complaint on file herein.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General

/s/ Thomas K. Elden

THOMAS K. ELDEN,

OSB # 79036

Assistant Attorney General Of Attorneys for Defendant David Frohnmayer

MEMORANDUM OF LAW

To borrow an adaptation of John Masefield’s poem found in Admiralty Law of the Supreme Court 3d Ed by Herbert R. Baer:

“I must go down to the seas again, to the lonely sea and the sky,
And all I ask, oh august Court, is a case to steer me by.”

No amount of case authority would shed any light on the within Complaint which is frivolous in the extreme and a patent waste of the court’s time. The business of the federal district court in Oregon is too heavy to be burdened with nonsense such as filed by plaintiff. It is respectfully submitted that the Complaint does not state a claim for relief in admiralty or under any other theory and the matter should be dismissed, or in the alternative stricken.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General

/s/ Thomas K. Elden

THOMAS K. ELDEN,

OSB # 79036

Assistant Attorney General Of Attorneys for Defendant David Frohnmayer

      . A rather nifty bit of alliteration, by the way; alliteration is not, however to be confused with jurisdiction.

      . I must acknowledge my admiration also to the assistant attorney general (who filed the motion to dismiss this case) for his own literary efforts. He called upon an adaptation of the work of the poet John Masefield. Now that he, the plaintiff, and I have each had our turn at the bridge, we can all get on to better things. I attach copies of the complaint and of the defendant’s memorandum to this opinion for the edification of any reader of West’s Federal Supplement who is unwary enough to pause and scan this material.


author: J. THOMAS GREENE, District Judge.

text:
    Wardell LOSSER, Plaintiff, v. ATLANTA INTERNATIONAL INSURANCE COMPANY, Defendant.
    Civ. No. C84-792G.
    United States District Court, D. Utah, C.D.
    Aug. 7, 1985.

      Wallace R. Lauchnor, Salt Lake City, Utah, for plaintiff.
    Raymond M. Berry, Salt Lake City, Utah, for defendant.
   MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on cross motions for summary judgment on June 17, 1985. Plaintiff was rep-' resented by Wallace R. Lauchnor and defendant was represented by Raymond M. Berry. Both parties had submitted extensive memorandums of law to the Court. Counsel presented oral argument and the matter was taken under advisement.

After due consideration, and the Court being fully advised, we find that there are no material facts in dispute, and that the case is properly determinable by summary judgment.

This case involves interpretation of an insurance policy issued by the defendant Atlanta International Insurance Company (hereinafter “Atlanta”) to American Strevell, Inc. (hereinafter “American Strevell”). The operative language of the policy in question is contained in Endorsement No. 5 which provides:

The sum of One Hundred Thousand ($100,000.00) Dollars, per occurrence, shall be deducted from the total amount of all sums which the Insured shall become legally obligated to pay as damages to one or more persons or organizations as a result of an occurrence, and the Company shall be liable only for the difference between such deductible and the total amount of all damages for each occurrence subject to the Company’s limit of liability as stated elsewhere in the policy.

(Emphasis added)

The narrow question presented is whether the insured, American Strevell, was “legally obligated to pay” or liable in damages for more than the deductible amount of the insurance policy. If the answer to that question is “no,” the insurer, Atlanta, would have no liability under the policy.

On February 8, 1978, the plaintiff War-dell Losser (hereinafter “Losser”) was injured at the loading dock of American Strevell, when a forklift operated by an American Strevell employee crushed his foot and ankle. The insurance policy between Atlanta and American Strevell was in full force and effect when Losser was injured. Plaintiff timely filed a personal injury action against American Strevell in state court. Before that case was resolved, however, American Strevell filed for Chapter 11 bankruptcy, staying Losser’s personal injury suit. In September 1983 the Bankruptcy Court lifted the Stay on Losser’s claim and the matter was remanded to the Third District Court for Salt Lake County. American Strevell advised Atlanta of the pending claim, but Atlanta declined to defend or participate in defense of American Strevell. Thereafter, counsel for American Strevell and Losser entered into negotiations for settlement of Losser’s claim. Notice of the negotiations was given to Atlanta, but Atlanta still declined to participate, and at all times thereafter declined to participate in the settlement process. American Strevell and Losser entered into a Settlement Agreement dated June 6, 1984, which provided:

1. The parties hereby agree to stipulate to the entry of a judgment in favor of the plaintiff and against the defendant in the sum of $200,000.00, which judgment shall include all costs.
2. Losser does hereby agree that he shall not directly execute on said judgment as against American, in an amount in excess of the amount of the judgment above referenced for which American would have paid its “deductible” under the policy of insurance referenced herein, and Losser shall pursue recovery of the balance of the judgment from the insurance company pursuant to the assignment of rights contained herein.

American Strevell assigned to plaintiff whatever rights it might have against Atlanta, the Bankruptcy Court approved the Settlement Agreement, and the state court entered judgment against American Stevell accordingly. Losser then brought this action to collect $100,000.00 from Atlanta, which represented the amount of the Judgment taken pursuant to the Settlement Agreement after first subtracting the $100,000.00 deductible as called for under the insurance policy.

Defendant contends that American Strevell never became legally obligated to pay Losser the amounts claimed in this litigation because the Settlement Agreement in essence provided that Losser was entitled to no more than $25,000.00 from American Strevell, which was the 25% figure fixed by the Bankruptcy Court as to claims payable by American Strevell in the Chapter 11 proceedings. It is urged that American Strevell was never obligated to pay even the $100,000.00 deductible amount, but that even if the $25,000.00 payment by American Strevell to Losser somehow satisfied the deductible, American Strevell certainly never became obligated to pay more than the deductible amount. It is argued that Atlanta therefore should not be liable under the policy because American Strevell was not damaged in that it could never be obligated or required to “pay” any amount above the deductible because of the Settlement Agreement prohibition. The arguments as applied to this case should be rejected. The payment of $25,000.00 by American Strevell was the equivalent of payment of the $100,000.00 deductible since the Bankruptcy Court fixed 25% as the amount payable to discharge claims. Accordingly, it seems likely that the alleged condition precedent of satisfaction of the deductible amount was met. But whether this kind of legal equivalency constitutes “payment” within the meaning of the insurance policy need not be determined, since in Utah an insurer is obligated to pay any excess judgment regardless of whether the insured has fulfilled its obligation under the premium. Ammerman v. Farmers’ Insurance Exchange, 19 Utah 2d 261, 430 P.2d 576 (1967). Therefore if American Strevell was ever obligated to Losser in any amount at any time in excess of $100,000.00 the fact that American Strevell only paid out $25,000.00 to Losser is irrelevant. We are persuaded that American Strevell became legally obligated at the accident date for whatever liability might be determined thereafter on account of its negligent conduct. The Settlement Agreement did not create, but merely measured and limited that liability. Legal authorities are in general agreement on this point when applied to liability policies, such as the one in question here:

It is the date when harm is sustained which is significant in determining whether liability arises, even though such harm is the consequence of earlier actions or the extent of the harm cannot be determined until some later time.
* * * * * * *
As an example of the principle that liability attaches in terms of the date when harm is sustained, rather than a later date when its consequences are determined or measured, it has been held that the rights of the parties interested under a policy insuring against liability on account of bodily injury, including death at any time resulting therefrom, attach as of the date of the accident, and not at the date of a death resulting from the injuries received therein. (Emphasis added) 11 Couch on Insurance, 2d, Page 399, Section 44:256.

Defendant next urges that since it was not a party to the Settlement Agreement, the agreement may not be in its best interest, and therefore it should not be bound by its terms. We join with other courts that have reviewed this issue in holding that where, as here, the insurer refuses to defend on a claim against the policy, and the insured enters into a good faith agreement not deemed to be in the best interests of the insurer, the insurer has assumed the risk that it may be bound to the terms of the agreement. In American Family Mutual Insurance Company v. Kivela, 408 N.E.2d 805, 813 (Ind.App. 1980), the Indiana Supreme Court held that where an insurance company declined to represent its insured, and the insured entered into an agreement with certain claimants stipulating the amount of damages but holding the insured blameless, “... [the] insurer may not hide behind the ‘legally obligated to pay language of the policy after it abandons its insured and the insured settles the claim against him by agreement’ ...” Accord, Coblenty v. American Surety Company of New York, 416 F.2d 1059 (5th Cir.1969), State Farm Mutual Automobile Insurance Company v. Paynter, 122 Ariz. 198, 593 P.2d 948 (1979). Cf. Huffman v. Peerless Insurance Co., 17 N.C.App. 292, 193 S.E.2d 773 (1973). We find no evidence of collusion or bad faith in this case. The agreement is not on its face unconscionable and Atlanta had every opportunity if it so chose to take steps to protect its interests in this matter.

Losser also alleged a second cause of action for bad faith denial of his claim, but waived any claim for damages because of such alleged bad faith denial in its submission for summary judgment. Any tortious claim which American Strevell might have had against Atlanta was not assignable and Atlanta owed no duties directly to Losser, so in all events that claim is denied.

Plaintiff’s Motion for Summary Judgment as to its First Cause of Action accordingly is granted. Defendant’s Motion for Summary Judgment is denied.


author: DAVID V. O’BRIEN, District Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff/Appellant, v. Jose Anselmo ORTIZ, Defendant/Appellee.
    Crim. No. 1984/67.
    District Court, Virgin Islands, St. Croix Division.
    Aug. 8, 1985.
    Lawrence Spivack, Asst. Atty. Gen., Virgin Islands, for plaintiff/appellant.
    Joseph Ponteen, Territorial Public Defender, Virgin Islands, for defendant/appellee.
   DAVID V. O’BRIEN, District Judge.

MEMORANDUM OPINION AND ORDER

THE MATTER on appeal concerns a Territorial Court order dismissing a Habitual Offender Information filed against the defendant, Jose Anselmo Ortiz (“Ortiz”). The sole issue in this case is whether the Territorial Court has jurisdiction to sentence convicted defendants pursuant to the provisions of the Habitual Criminal Statute (“Statute”). Since we find that sentencing pursuant to the Statute is not offensive to the Territorial Court’s subject matter jurisdiction, we will reverse the decision of the Territorial Court and remand this action for further proceedings not inconsistent with this opinion.

I. FACTS

On May 21,1984, Ortiz pled guilty before the Territorial Court to Assault Third Degree. 14 V.I.C. § 297(2). Prior to acceptance of this plea, the Government advised Ortiz that it intended to file an Habitual Criminal Information pursuant to 14 V.I.C. §§ 61-62. The Government filed this information of June 8, 1984. The Government included with the information a compilation of previous judgments indicating that the defendant had been convicted of eight prior felonies.

On July 5, 1984, the Territorial Court sentenced Ortiz for Assault in the Third Degree and on July 11,1984, the Territorial Court dismissed the Habitual Criminal Information. In this order Judge Finch did not express his reasons for dismissing the Habitual Offender Information; however, we can assume that he adopted his analysis in Government of the Virgin Islands v. Gautier, Crim No. 1981/15 (Terr.Ct.St. Croix May 5, 1981) (Territorial Courts lack jurisdiction to sentence defendants to the increased penalties required by the Statute because such penalties exceed five years of imprisonment). An appeal from this order brings this case before us.

II. DISCUSSION

Congress has empowered the Virgin Islands Legislature to establish local courts and to vest these courts with jurisdiction over any cause not within the exclusive jurisdiction of the District Court of the Virgin Islands. 48 U.S.C. § 1611(a) & (b). This section specifically recognized the validity of local legislation, such as 4 V.I.C. § 76(b), which had previously established local courts. 48 U.S.C. § 1611(a). Section 76(b) provides that “the territorial court shall have original jurisdiction, concurrent with that of the district court, in all criminal actions wherein the maximum sentence does not exceed imprisonment for five years____”

Whether the Territorial Court has jurisdiction to sentence defendants pursuant to the Habitual Offender statute presents a question of first impression. As stated, this statute provides for imprisonment in excess of five years.

Crucial to our analysis is the fine distinction between the definition of a court’s subject matter jurisdiction and a court’s sentencing authority. Ortiz, adopting the rationale from Gautier, argues that a court’s grant of subject matter jurisdiction not only limits the type of case a court can hear but also the length of sentence a court may impose. Thus, the Territorial Courts are prevented from sentencing criminals pursuant to the Statute because the prescribed ten year minimum sentence falls outside the ambit of the Territorial Court’s subject matter jurisdiction. We will reject this theory because it incorrectly equates two incongruent areas of authority.

We believe that a court’s jurisdictional grant only determines the type of ease a court can hear and does not limit the length of sentence a court may impose.

In our analysis we are guided by Lawrence v. United States, 224 A.2d 306 (D.C. Ct.App.1966). This ease is analogous to the present case for two reasons. First, in 1966 the District of Columbia’s jurisdictional division between local and federal courts approximated the present Virgin Islands scheme. Moreover, these eases are factually analogous because Ortiz presents the identical arguments advanced by Lawrence.

Like Ortiz, the appellant in Lawrence argued that the trial court did not have subject matter jurisdiction to try him for the offense charged. Lawrence claimed that as a second offender he was subject to an enhanced penalty in excess of the jurisdictional limitation of the District of Columbia Court of General Sessions. At that time the D.C.Code vested in the Court of General Sessions jurisdiction of all offenses committed in the District for which the punishment was by fine or imprisonment for one year or less. The D.C. Code also vested concurrent jurisdiction over these offenses in the United States District Court for the District of Columbia.

Lawrence was charged with petit larceny which carried a penalty of a fine not more than $200 or imprisonment for not more than one year or both. Distinguishing a court’s subject matter jurisdiction from a court’s sentencing authority, the Appellate Court upheld the Court of General Session’s ability to sentence defendants to enhanced penalties, greater than one year in prison, pursuant to the repeat offender statute. D.C.Code § 22-104. The Appellate Court stated:

In adopting § 22-104 Congress did not intend to remove from the jurisdiction of the lower court crimes otherwise within its cognizance but rather to give that court authority to impose heavier penalties when confronted with second offenders. Under appellant’s theory, where a crime is punishable by a maximum imprisonment of one year, only first offenders could be tried in the Court of General Session; second offenders, subject to § 22-104, would have to be charged and tried in the Federal District Court. We find no basis for such a contention, which confuses the power of the court to try an offense with the supplementary authority to impose penalties beyond its original jurisdictional limitation in cases involving repeaters.

We find persuasive the distinction between the power of a court to try an offense and the supplementary authority for a court to impose penalties. We therefore, will adopt the Lawrence court’s analysis. We hold that sentencing criminals pursuant to the provisions of the Habitual Offender Statute is not offensive to the Territorial Court’s subject matter jurisdiction. Moreover, we find that the Virgin Islands Legislature intended to vest the Territorial Courts with supplementary authority to sentence criminals pursuant to the Statute. Although no legislative history exists for this act, attached to appellant’s brief is the affidavit of Britain H. Bryant, Esq., who in 1978 was an elected Senator to the Virgin Islands Legislature. Attorney Bryant was the sponsor of the Habitual Offenders Act and in his affidavit states:

That, in committee and in debate the issue of this bill’s application to both the District Court and the Territorial Court of the Virgin Islands was discussed; and it was the intention of the Legislature that the Habitual Offenders Act apply, in its entirety, to all Courts of the Virgin Islands.

We find further support for our holding in subsequent D.C. cases which have also cited Lawrence with approval. Harvin v. United States, 445 F.2d 675 (D.C.1971); Tatum v. United States, 330 A.2d 522 (D.C.1975); Smith v. United States, 304 A.2d 28 (D.C.1973). These cases used the Lawrence analysis to determine when various constitutional rights attach to an individual.

For example, in Smith, supra, the defendant argued that her conviction was constitutionally defective because she was charged by information instead of by indictment. Although charged with petit larceny, which carried a one year maximum penalty, the defendant was a repeat offender and could have been sentenced to three years under the D.C. repeat offender statute. The defendant argued that since she faced this enhanced sentence, she had a Fifth Amendment right to be charged by indictment. In rejecting this argument the court acknowledged that crimes which carry an infamous punishment must be prosecuted by indictment. The court, however, adopted the Lawrence analysis and distinguished a court’s statutory authority to try a crime from the ultimate punishment imposed. Citing Lawrence, supra, the court held that the punishment which determines the question of infamy is that which relates to the offense itself. The defendant in Smith was convicted of petit larceny; petit larceny was not an infamous crime because it carried a punishment of less than one year in jail. Even though the defendant faced sentencing pursuant to a recidivist statute, the underlying crime was not an infamous one. The defendant therefore had no right to be charged by indictment.

Similarly, the court in Tatum v. United States, 330 A.2d 522 (D.C.1975) also adopted the Lawrence analysis. In this case, the court employed the distinction between a court’s jurisdiction and sentencing authority to determine the number of peremptory challenges a defendant should receive. Tatum was charged with petit larceny which carries a sentence less than one year. Prior to Tatum’s trial, the government informed the defendant that if convicted the government would seek an enhanced punishment pursuant to the D.C. repeat offender statute. Like the defendant in Smith, Tatum could have received up to a three year sentence.

On appeal, the defendant argued that his counsel had rendered him ineffective assistance by failing to request ten peremptory challenges, given for offenses punishable by more than one year in prison, instead of the three peremptory challenges assigned to offenses punishable by less than one year. Citing both Lawrence and Smith, the Tatum court stated “[a] sentence under the recidivist statute is only indirectly related to the offense itself; it is the statutorily prescribed punishment for the offense being tried which determines the number of peremptory challenges available to a defendant.” Tatum at 525.

III. CONCLUSION

In summary we hold that sentencing pursuant to the Habitual Criminal Statute is not offensive to the Territorial Court’s subject matter jurisdiction. We will therefore reverse the Territorial Court’s decision and remand this matter to the Territorial Court for further proceedings not inconsistent with this opinion.

      . 1. Burglary Third Degree and Grand Larceny (June 12, 1976, Criminal No. 74/25).
      2. Escape from custody (July 17, 1975, Criminal No. 75/51).
      3. Burglary Third Degree (May 26, 1976, Criminal No. 14/76).
      4. Possession of an Unlicensed Firearm (May 26, 1976, Criminal No. 15/76).
      5. Escape from Custody (September 3, 1976, Criminal No. 90/76).
      6. Escape from Custody (September 1, 1976, Criminal No. 146/76).
      7. Escape from Custody (October 1, 1980, Criminal No. 1980/40).
      8. Assault First Degree (March 22, 1984, Criminal No. 84/5).