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In re Complaint of Weeks Marine

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


June 30, 2006

IN RE: COMPLAINT OF WEEKS MARINE, INC. AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 254 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY

The opinion of the court was delivered by: Wolfson, United States District Judge

OPINION

Before the Court is the Motion for Summary Judgment filed by Defendant S.T. Hudson Engineers, Inc. ("Defendant"), on the Cross-Claim of Plaintiff South Jersey Port Corporation ("Plaintiff"). Plaintiff alleges that the collapse of Berths 1 and 2 of its Beckett Street Marine Terminal ("Beckett Street Terminal"), along the east shore of the Delaware River in Camden, New Jersey, was caused by an underwater landslide that resulted from vibrations created by pile driving conducted by Weeks Marine, Inc., and overseen by Defendant, during construction of the Battleship USS New Jersey Memorial Pier. After an initial coverage dispute, Plaintiff reached a settlement with its insurance carrier, Lexington Insurance Company ("Lexington"), in which Lexington paid Plaintiff $7,315,926 for Plaintiff's damages associated with the collapse at the Becket Street Marine Terminal. As part of that settlement, Lexington purported to assign its right to pursue an action in subrogation against any third-party tortfeasor to Plaintiff.

Plaintiff bases this action against Defendant on two separate theories. First, Plaintiff asserts that, as the assignee of Lexington's subrogation rights, Plaintiff stands in Lexington's shoes and may assert any action Lexington would have been entitled to initiate against Defendant. Consequently, Plaintiff argues that it may recover damages to the extent of Lexington's rights against a tortfeasor. Second, Plaintiff asserts that, notwithstanding the operation of equitable subrogation or Plaintiff's status as assignee of Lexington's subrogation rights, Plaintiff retains an independent right to sue a tortfeasor for the balance of Plaintiff's losses not compensated by its insurance settlement with Lexington.

In this Motion for Summary Judgment, Defendant argues that Plaintiff is precluded from pursuing an action against it for damages arising out of the Beckett Street Terminal collapse because: (1) Plaintiff's independent right to assert a claim against Defendant, or any other tortfeasor, was extinguished upon Plaintiff's settlement with Lexington, by the operation of equitable subrogation; (2) Lexington's purported assignment of its subrogation rights to Plaintiff violates the Supreme Court of New Jersey's prohibition against pre-judgment assignment of tort claims; (3) even if Lexington's assignment to Plaintiff is valid, Plaintiff is bound by judicial estoppel to the factual position taken by Lexington in earlier litigation, during which Lexington disputed Defendant's responsibility for Plaintiff's damages; and (4) Plaintiff has been fully compensated by its settlement with Lexington, thus a successful action against Defendant would result in a double recovery, in violation of the equitable principles underlying subrogation. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, Defendants' Motion for Summary Judgment is granted.

I. BACKGROUND

Plaintiff is an agency of the State of New Jersey and statutorily responsible for operation of the Beckett Street and Broadway Marine Terminals on the east shore of the Delaware River in Camden, New Jersey. See N.J. Stat. Ann.§ 12:11A-1, et seq. In Fall 2000, Plaintiff purchased an insurance policy from Lexington for coverage of all risks associated with its operation of the Beckett Street and Broadway Marine Terminals during the period between December 15, 2000 and December 15, 2001. See Certification of Dante C. Rohr ("Rohr Cert."), submitted in support of Plaintiff's Opposition Brief ("Pf Opp. Br."), Ex. 1. The policy was subject to a specified list of exclusions, and carried a maximum of $15 million in coverage per single occurrence. Id.

Defendant has served as the Port Engineer for Plaintiff since its formation in 1969 See Plaintiff's Cross-Claim against Defendant ("Cross-Claim"), at ¶ 11. For over thirty years, Defendant has controlled the marine engineering for Plaintiff's terminals, and has maintained responsibility for, among other things, the conduct of periodic condition surveys of the berths at the Becket Street Terminal, as well as inspection of its other marine structures. Id. In 1998, after a condition survey of Berths 1 and 2 of the Beckett Street Terminal, Defendant designed a repair plan to be carried out by W.H. Streit*fn1 , in early 2001, on the number 1 steel auxiliary H-piles of Berths 1 and 2. Id. at ¶¶ 15, 18, 20. At the same time, Defendant served as the design engineer overseeing Weeks Marine's construction of Memorial Pier. Id. at ¶¶ 20-22. Memorial Pier is located upriver and adjacent to Berth 1 of the Beckett Street Terminal. Id. ¶ 16. Construction of the pier required "the driving of numerous large piles including 16 and 18 inch steel pipe piles, plate anchors and eight foot diameter monopiles." Id. at ¶¶ 24-35.

On August 22, 2001, a section of Berth 1 of the Beckett Street Terminal collapsed and sank into the Delaware River, along with Plaintiff's Number 5, Clyde-Whirley crane. Id. at ¶ 38. An additional section of Berth 1 collapsed on December 5, 2001. Id. at ¶ 41. On November 14, 2001, Plaintiff filed a claim with Lexington in which Plaintiff alleged losses in excess of $15 million and asserted that the pile driving conducted by Weeks Marine during the construction of the Memorial Pier caused the collapse at the Beckett Street Terminal. See Rohr Cert., Ex. 3. On November 30, 2001, Plaintiff sent Lexington a "Sworn Statement in Proof of Loss" which itemized $14,716,328 worth of losses Plaintiff allegedly suffered. See Affidavit of Edward V. Cattell ("Cattell Aff."), submitted in support of Defendant's Summary Judgment Brief ("Df Br."), Ex. B. On December 11, 2001, Plaintiff sent Lexington a supplemental "Sworn Statement in Proof of Loss" which included an additional $36,183 in business interruption losses. See Cattrell Cert., Ex. C.

Lexington retained an engineering firm to perform an independent evaluation of Plaintiff's losses, and, relying on the firm's report, denied Plaintiff's claim. Id. at Ex. 4. Lexington took the position that Plaintiff's losses did not occur during the policy period. Id. Specifically, Lexington asserted that the collapse of Berth 1 did not result from a landslide caused by Weeks Marine's pile driving activity at the Memorial Pier, but rather, that it resulted from broken pilings, damaged long before the policy period began, that failed due to normal wear and tear. Id. On December 19, 2001, Plaintiff filed a Declaratory Judgment Action against Lexington in the Superior Court of New Jersey, alleging breach of contract and bad faith. See Rohr Cert., Ex. 5. Lexington removed the matter to a court in this District on January 18, 2002. Id.

Before trial, Lexington and Plaintiff reached a settlement and, on April 23, 2004, executed a Release and Settlement Agreement ("Settlement Agreement"). Id. at Ex. 7. Pursuant to the terms of the Settlement Agreement, Lexington paid Plaintiff $7,315,926.00 as "full and final payment under the Policy for all losses and/or claims arising out of the collapses." Id, at Ex. 7, ¶ 1. In exchange, Plaintiff "release[d] and fully discharge[d] all claims . . . for coverage under the Policy . . . against . . . Lexington...." Id. at ¶ 4. The Settlement Agreement also incorporated the terms of an Assignment and Relinquishment of Subrogation Rights executed between Plaintiff and Lexington, under which Lexington assigned its rights of subrogation to Plaintiff, and relinquished those rights.*fn2 Id. at Ex. 8, ¶¶ 1, 4.

Subsequently, in this case, Plaintiff filed claims against various defendants, some of whom responded with cross-claims, and counter-claims. The details of those various claims are unnecessary for the disposition of this Motion, except to note that on July 13, 2004, Plaintiff filed a cross-claim against Defendant for negligence, breach of contract, trespass, and nuisance.*fn3 On October 31, 2005, Defendant filed this Motion, pursuant to Fed. R. Civ. P. 56(c), seeking Summary Judgment on Plaintiff's Cross-Claim. Id. at Ex. 9 at ¶¶ 46-68.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The burden of establishing that no "genuine issue" exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. Once the moving party satisfies this initial burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the non-moving party must "do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

On this Motion, Defendant essentially argues that there is no legal basis to support a claim against it by Plaintiff. To set the groundwork for its argument, Defendant asserts that Plaintiff's independent right to bring a claim against it, or any other tortfeasor potentially responsible for the collapse at the Becket Street Terminal, was extinguished by operation of the doctrine of equitable subrogation when Plaintiff accepted payment for its losses from Lexington. Thus, according to Defendant, Plaintiff's claims against it arise solely out of Lexington's assignment of its subrogration rights to Plaintiff. Defendant next attacks the validity of that assignment and argues that it is invalid. As a result, Defendant asserts Plaintiff is divested of a right to sue Defendant, and lacks a legal basis for its Cross-Claim. Assuming the possibility that I might find Lexington's assignment of its subrogation rights to Plaintiff valid, Defendant also presents certain other alternative arguments. Among them is Defendant's most meritorious argument, that Plaintiff has been fully compensated for it losses and is barred from receiving a double recovery. Before addressing that point, I discuss Defendant's other contentions.

B. Subrogation and Plaintiff's Independent Right of Action Against Defendant

"Subrogation is a device of equity to compel the ultimate discharge of an obligation by the one who in good conscience ought to pay it." Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 171 (1954); see also Culver v. Ins. Co. North America, 115 N.J. 451, 455 (1989). It most often comes into play in cases in which "an insurer who has indemnified an insured for damage or loss is subrogated to any rights that the insured may have against a third party, who is also liable for the damage or loss." Pellecchia, 15 N.J. at 171. In such cases, equity demands that the insurer be reimbursed for its payment to the insured, "otherwise either the insured would be unjustly enriched by virtue of a recovery from both the insurer and the third party, or in the absence of such double recovery by the insured the third party would go free despite the fact that he has the legal obligation in connection with the loss or damage." Id. "'The process is analogous to the creation of a constructive trust, the creditor being compelled to hold his rights against the principal debtor, and his securities, in trust for the subrogee.'"Id. at 171 (quoting Camden Trust Co. v. Cramer, 136 N.J. Eq. 261, 264 (E. & A.1944)). "Subrogation is highly favored in the law." Pellecchia, 15 N.J. at 171; see also Culver, 115 N.J. at 456.

Subrogation rights are created in one of three ways: (1) an agreement between the insurer and the insured, (2) a right created by statute, or (3) a judicial device of equity to compel the ultimate discharge of an obligation by the one who in good conscience ought to pay it. Culver, 115 N.J. at 456 (internal quotations and citations omitted). In the insurance context, in the absence of a controlling contract or statute, the right of subrogation exists without the consent of the insured. Pellecchia, 15 N.J. at 172. However, parties to a valid contract may, by agreement, waive or limit that right. Id. A subrogee asserting a claim against a third-party tortfeasor, in effect, steps into the shoes of the insured and can recover only if the insured likewise could have recovered. Id. (citing Sullivan v. Naiman, 130 N.J.L. 278, 280 (Sup. Ct. 1943)). In other words, a subrogee is subrogated only to those rights of the insured that are sufficient to reimburse it for the amount for the loss paid. Culver, 115 N.J. at 457 (citing Restatment 2nd of Restitution § 162, comment c (1937)). The subrogee is subject to all legal and equitable defenses that the third party may have either against it or against the insured and "there can be recovery only if the cause is just and enforcement is consonant with right and justice." Pellecchia, 15 N.J. at 173 (citing Bater v. Cleaver, 114 N.J.L. 346, 353 (E. & A.1935)).

Unless otherwise required by contract, an insured must be made whole before an insurer can be subrogated to the insured's rights against a tortfeasor.*fn4 Culver, 115 N.J. at 457; McShane v. N.J. Mfrs. Ins. Co., 375 N.J. Super. 305, 312 (App. Div. 2005). Furthermore, "an insured is not liable to the insurer for moneys received from a tortfeasor, where the total of [the insured's] recovery from both the insurer and the tortfeasor does not exceed [the insured's] loss." Federal Insurance Co. v. Engelhorn, 141 N.J. Eq. 349, 351 (E. & A. 1947). The logical implication of such a rule is that an insured who recovers only part of its loss from its insurer retains an independent cause of action against any alleged tortfeasor until the insured has been fully compensated.*fn5 See, e.g., Charnecky v. American Reliance Ins., 249 N.J. Super. 91, 94-94 (App. Div. 1991) (explaining in dicta that "despite the insurer's general subrogation right, it is clear that if an insured who has recovered only part of his loss from his insurer then recovers an additional payment from the tortfeasor, he has no liability to repay the insurer unless the total recovery exceeds his total loss."), overruled on other grounds by Frazier v. New Jersey Mfrs. Ins., 142 N.J. 590, 605 (1995). If an insured receives payment from an insurer for part, but not all of its damages, and later pursues an action against a third party tortfeasor, any amount the insured recovers in excess of its actual damages will be available to the insurer in an action for reimbursement. See, e.g., Providence Washington Ins. Co. v. Hogges, 67 N.J. Super. 475 (App. Div.1961) (holding that an insured must be made whole before an insurer can obtain reimbursement from him for benefits paid or can be subrogated to his rights against a tortfeasor).

Despite Defendant's argument to the contrary, I find that Plaintiff retained an independent right to sue it, or any other potentially responsible tortfeasor, to recover the balance of its damages not satisfied by its settlement with Lexington, assuming the existence of such damages. Accordingly, Plaintiff's Cross-Claim against Defendant does not depend necessarily on the validity of Lexington's assignment of its subrogation rights to it. I turn now to Defendant's argument on that issue.

C. Lexington's Assignment of its Subrogation Rights to Plaintiff

Defendant argues that Lexington's assignment of its subrogation rights to Plaintiff is invalid because it violates the New Jersey Supreme Court's prohibition against pre-judgment assignment of tort claims. While the issue is not dispositive, the validity of Lexington's assignment does impact the disposition of Defendant's Motion. Accordingly, I briefly address the argument.

"New Jersey law clearly forbids the assignment of prejudgment tort claims." Integrated Solutions, Inc. v. Technical Support Specialties, Inc., 124 F.3d 487, 490 (3d Cir. 1997). New Jersey Courts have consistently held such assignments invalid, as a matter of public policy, to protect injured, and potentially unsophisticated, parties from falling prey to the schemes of "'unscrupulous strangers.'" Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 612 (App. Div. 2000) (quoting Caldwell v. Ogden Sea Transp., Inc., 618 F.2d 1037, 1048 (4th Cir. 1980)); Village of Ridgewood v. Shell Oil Co., 289 N.J. Super. 181, 195 (1996) ("A tort claim cannot be assigned prior to judgment."); Costanzo v. Costanzo, 248 N.J. Super. 116, 121 (1991) ("[I]n New Jersey, as a matter of public policy, a tort claim cannot be assigned."); see also Conopco, Inc. v. McCreadie, 826 F. Supp. 855, 865-67 (D.N.J. 1993) ("It is clear that under New Jersey law, choses in action arising out of tort are not assignable prior to judgment.").

While this bar has traditionally extended to all tort claims, "[m]ore recent cases have indicated that the non-assignability rule applies only to tort claims for personal injuries." Kimball, 334 N.J. Super. at 613 n.6 ("The limitation of the non-assignability rule to personal injury claims is consistent with the rule in most other jurisdictions which still maintain some restrictions upon the assignability of claims."); Di Tolvo v. Di Tolvo, 131 N.J. Super. 72, 78 (App. Div. 1974) ("a claim for damages in tort for personal injuries cannot be made the subject of assignment before judgment"); Berkowitz v. Haigood, 256 N.J. Super. 342, 346 (Law. Div. 1992) ("a claim for damages in tort for personal injuries is not assignable before judgment."). But see Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het Kaptiaal Van Saybolt Int'l B.V. v. Schreiber, 407 F.3d 34, 46-47 (2nd Cir. 2005).*fn6

Except for the prohibition against assignment of tort claims, New Jersey law otherwise allows the assignment of a claim for money damages arising out of contractual rights. Kimball, 334 N.J. Super. at 612. In that connection, N.J. Stat. Ann. § 2A:25-1 provides in pertinent part:

All contracts for the sale and conveyance of real estate, all judgments and decrees recovered in any of the courts of this state or of the United States or in any of the courts of any other state of the United States and all choses in action arising on contract shall be assignable, and the assignee may sue thereon in his own name. In such an action, the person sued shall be allowed, not only all set-offs, discounts and defenses he has against the assignee, but also all set-offs, discounts and defenses he had against the assignor before notice of such assignment was given to him....

(emphasis added). While New Jersey courts have "broadly construed" N.J. Stat. Ann. § 2A:25-1, Kimball, 334 N.J. Super. at 612, they have also noted that the assignability of contract rights may be limited by operation of law or public policy. Somerset Orthopedic Assocs., P.A. v. Horizon Blue Cross & Blue Shield of N.J., 345 N.J. Super. 410, 415 (App. Div. 2001).

In this case, Plaintiff argues that Lexington's assignment of its subrogation rights to it is valid under N.J. Stat. Ann. § 2A:25-1 because it merely assigns to Plaintiff a chose in action "arising on contract." Plaintiff notes that its insurance policy with Lexington expressly creates Lexington's subrogation right, and modifies it according to the parties' interests.*fn7 Defendant counters that the underlying action assigned by Lexington to Plaintiff is a tort claim that did not itself arise out the contract between Plaintiff and Lexington. Thus, Defendant argues that the assignment is invalid under New Jersey law because it merely assigns a pre-judgment tort claim from Lexington to Plaintiff.

In support of its argument, Plaintiff relies heavily on the holding of the Appellate Division of the Superior Court of New Jersey in Kimball Int'l, Inc. v. Northfield Metal Prods. 334 N.J. Super. 596 (App. Div. 2000). In that case, a plaintiff (Baker) sued the manufacturer of a chair (Kimball) for personal injuries he suffered after the chair collapsed. Id. at 602. During discovery, the parties learned that a third party (Northfield) manufactured an allegedly defective component of the chair. Id. The trial court denied Baker's motion to join Northfield, and Kimball commenced a separate action against Northfield alleging claims for contribution and indemnification. Id. Thereafter, Kimball settled the action with Baker and agreed to assign Baker a partial interest in its indemnification claim against Northfield. Id. In a motion for summary judgment, Northfield challenged the purported assignment as against public policy. Id. The trial court rejected Northfield's argument, but granted summary judgment in its favor on other grounds. Id. at 603.

In a cross-appeal, Northfield again argued that Kimball's assignment of part of its indemnity claim to Baker was invalid. Id.at 604. However, the appellate court affirmed the trial court, and held that the assignment fell within the scope of those permissible under a predecessor statute to N.J. Stat. Ann. § 2A:25-1.*fn8 Id. at 613. The appellate court noted that a claim for indemnity might arise in equity or by contract, but held that "however the right to indemnity might be characterized, the foundation of Kimball's indemnification claim ... [was] the contract under which it purchased Northfield's component parts for its office chair," and thus, constituted a chose in action arising under contract which Kimball was free to assign to Baker. Id.

Here, the foundation for Lexington's subrogation claim is its insurance policy with Plaintiff. That contract expressly creates the chose in action that Lexington assigned to Plaintiff. While the underlying action may sound in tort, Lexington's subrogation right is more in the nature of a claim for reimbursement, and, therefore, similar to the indemnity action that was the object of the assignment in Kimball. Indeed, Lexington's right to sue a tortfeasor potentially liable for Plaintiff's damages is limited to the extent of Lexington's payment to Plaintiff under the insurance policy. Contrary to Defendant's argument, Plaintiff's tort claim was not transferred to Lexington by operation of subrogation. Thus, Lexington could never have assigned that claim back to Plaintiff. Instead, Lexington assigned its limited right to reimbursement, created by contract, to Plaintiff. Accordingly, despite its unusual nature, the assignment falls within the scope of those permissible under N.J. Stat. Ann. § 2A:25-1.*fn9

However, that does not end the discussion of the propriety of the assignment. As set forth earlier, the assignability of contract rights may be limited by operation of law or public policy. Somerset Orthopedic, 345 N.J. Super. at 415. Indeed, although the free assignment of choses in action may be a valuable goal of public policy, it will not override competing, superior public interests.*fn10 Id. I find that Lexington's purported assignment of its subrogation rights to Plaintiff violates a basic principle of equity, and a fundamental concept underlying the doctrine of subrogation because under the facts of this case, the assignment would result in a double recovery to Plaintiff. Thus, for the reasons discussed more fully below, I conclude that the assignment is invalid.

D. Double Recovery and Plaintiff's Damages

Defendant argues that Plaintiff may not pursue a claim against it arising out of Lexington's assignment of its subrogation rights, or by virtue of Plaintiff's independent tort right against it, because such an action, if successful, would result in a double recovery for Plaintiff. Defendant asserts that Plaintiff has been made whole by Lexington's payment to it. Plaintiff responds by asserting that it has not been made whole because the extent of its damages exceeds the payment made by Lexington. Having considered the evidence in the light most favorable to Plaintiff, as I must on this motion for summary judgment by Defendant, I find that Plaintiff has failed to raise a material factual dispute as to Defendant's assertion that Lexington's $7,315,926 insurance payment fully compensated Plaintiff for all of its losses arising out of the Beckett Street Terminal collapses. Consequently, any additional recovery by Plaintiff for the collapses --whether the product of an independent tort action by Plaintiff against Defendant as a third-party tortfeasor, or as an assertion of Lexington's subrogation rights -- would constitute a double recovery, barred by general equitable principles.

To be sure, New Jersey law clearly disfavors double recoveries by injured plaintiffs. See Daily v. Somberg, 28 N.J. 372, 383 (1958) (the release of a settling joint tortfeasor will also release the non-settling joint tortfeasor if "the consideration constitutes full compensation or is accepted as such"). See, e.g., Village of Ridgewood, 289 N.J. Super. at 196 ("Since [the plaintiff] was fully compensated for its losses ... it had no surviving claims which it could assert against the remaining defendants."). See also Tp. of Wayne v. Messercola, 789 F. Supp. 1305, 1312 (D.N.J. 1992) (quoting Daily, 28 N.J. at 383); Barticheck v. Fidelity Union Bank/First National State, 680 F. Supp. 144, 145 (D.N.J. 1988) (same).*fn11 Indeed, the very concept of subrogation arose, in part, out of an effort to avoid the inequity of a double recovery by an insured from both an insurer and a tortfeasor. See Pellecchia, 15 N.J. at 171.

Here, Defendant argues that Plaintiff's settlement with Lexington was intended to fully compensate Plaintiff for all losses associated with the Beckett Street Terminal collapses, and release not only Lexington but all otherpotentially liable parties as well. Defendant's position is not sustainable. The unambiguous language of the Settlement Agreement between Plaintiff and Lexington states that Plaintiff accepts the settlement as "full and final payment under the Policy." See Rohr Cert., Ex. 7, at ¶ 1 (emphasis added). The provision does not address the matter of additional compensation potentially available to Plaintiff from other parties. Nor can the release contained in the Settlement Agreement be construed to apply to any party other than Lexington, or any claims other than those "under the Policy." Id. at ¶ 4. Contrary to Defendant's argument, therefore, the Settlement Agreement, which was intended to be a compromise agreement, did not automatically divest Plaintiff of its independent right to seek additional recovery from Defendant or any other alleged tortfeasor if additional losses exist and can be attributed to those parties. Thus, Plaintiff's right to independently pursue recovery from Defendant for its alleged losses in excess of those compensated by Lexington's insurance payment depend upon Plaintiff's actual demonstration of such remaining, uncompensated losses.

I find, however, that the evidence in the record regarding the extent of Plaintiff's total losses arising out of the Beckett Street Terminal collapse leaves no material factual dispute that Lexington's payment to Plaintiff fully compensated Plaintiff for all of its damages. On December 15, 2001, Plaintiff sent Lexington a "Sworn Statement in Proof of Loss" which itemized $14,716,328 worth of damages Plaintiff allegedly suffered. See Cattell Aff., Ex. B. Among Plaintiff's itemized damages was $2 million in estimated replacement costs for Plaintiff's lost crane, as well as more than $10 million in estimated replacement costs for the pier at the Becket Street Terminal. Id. Plaintiff concedes that in this litigation it is not entitled to the replacement value of such losses, as was the case under Plaintiff's insurance policy, and instead, it is entitled only to the depreciated or "actual value"of its losses. See Pf. Opp. Br. at pg.1 n.1.

Those revised damage estimates are included in the February 18, 2005, Statement of Damages ("Statement") Plaintiff submitted in connection with this litigation. In that Statement, Plaintiff asserts that his damages associated with the Beckett Street Terminal collapse total $6,303,796, excluding interest.*fn12 See Cattell Cert., Ex. C. The Statement includes $4,524,712 in actual value damages to the pier at the Becket Street Terminal. Id. Additionally, the Statement lists the actual value damage for Plaintiff's crane (which was listed originally at more than $2 million) at $170,000. Id. Plaintiff's Statement makes no mention of what, if any, losses from its original insurance claim were compensated by the $7,315,926 Plaintiff received from Lexington. Rather, it simply re-lists the items with which its largest damage estimates were associated in its claim to Lexington, but attaches revised loss values to those items.*fn13

After carefully reviewing the record detailing Plaintiff's losses as a result of the Beckett Street Terminal collapse, I find no material factual dispute that Plaintiff has been made whole for its losses. Plaintiff was on notice of Defendant's challenge to the factual basis for Plaintiff's claim that it suffered losses beyond those compensated by the $7,315,926 paid by Lexington. However, Plaintiff produced no evidence of such distinct, additional damages. In the absence of any evidence to the contrary, I am left with no doubt that Plaintiff has been made whole for its losses. Consequently, Plaintiff may not pursue further recovery of damages from Defendant by virtue of an independent tort claim, or by way of the rights assigned to it by Lexington.*fn14 Any such additional recovery would constitute a double recovery.*fn15

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary judgment is granted and Plaintiff's Cross-Claim against Defendant is dismissed.

An appropriate Order shall follow.

The Honorable Freda L. Wolfson United States District Judge


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