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In re Complaint of Hartman

April 15, 2010

IN THE MATTER OF THE COMPLAINT OF KIMBERLY HARTMAN AS OWNER OF 2007 YAMAHA SUPER JET PERSONAL WATERCRAFT FOR EXONERATION FROM AND LIMITATION OF LIABILITY


The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

This admiralty suit arises out of serious injuries Claimant Gregory Forte suffered while using Plaintiff Kimberly Hartman's jet ski on the intercoastal waterway near Ocean City, New Jersey. Both Forte and Hartman move for summary judgment on Hartman's Petition for Exoneration from, or Limitation of, Liability.*fn1 For the reasons discussed herein, Forte's motion will be granted in part and denied in part and Hartman's motion will be granted in part and denied in part.

I.

The relevant facts are undisputed. In the early to mid-afternoon on August 25, 2007, Forte and his brother, Jeffrey Borquin, were each operating a jet ski in the intercoastal waterway near Ocean City. Both jet skis were owned by Hartman. Hartman was at work at the time, but she testified that she "permitted... Borquin... and... Forte to take [her] two wave runners for the day." (Hartman Dep. 6:16-19) Both Hartman and Borquin had valid New Jersey boaters safety course certificates. They both knew that Forte had not taken such a course, and had no license from any state to operate a jet ski.

At approximately 2:30 p.m., Forte was operating the jet ski, traveling in a northerly direction, at a speed of 50-55 miles per hour. He was following Borquin, who decided which course they should take. An unidentified boat suddenly accelerated from a stopped position, moving in a southerly direction, toward Forte. The boat created a wake that pushed Forte and the jet ski into a day marker. (Borquin was ahead of Forte and was unaffected by the wake.) Forte testified, "I was moving at such a high rate of speed, that [colliding with the day marker] was pretty much inevitable." (Forte Dep. 54:14-16) Forte severely broke his leg in the accident.

On May 28, 2008, Forte filed suit against Hartman, Borquin, and Hartman's insurer, Ace American Insurance Company ("Ace"), in the Superior Court of New Jersey, Law Division, Camden County. That suit asserted negligence claims against both Hartman and Borquin, and two claims-- breach of contract and breach of fiduciary duty / bad faith-- against Ace.

On July 28, 2008, Ace removed the suit to this Court on the basis of diversity jurisdiction, see Forte v. Ace American Ins. Co., Hartman, and Borquin, 08-cv-3761, (D.N.J.) (JEI / JS). Forte moved to remand based on alleged deficiencies in the removal procedure.*fn2 Before that motion was decided, however, Hartman filed her Complaint for Exoneration from, or Limitation of Liability pursuant to 46 U.S.C. § 30501 et seq. This Court then issued the requisite order restraining suits, see Fed. R. Civ. P. Supp. R. F(3), and stayed Forte's suit against Hartman, Borquin, and Ace.*fn3

Forte has filed the only claim in this case.*fn4 His claim has two "counts": (1) Hartman's negligent entrustment of the jet ski to him and (2) Hartman's vicarious liability for Borquin's alleged negligence. As noted previously, both Forte and Hartman move for summary judgment.

II.

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).*fn5 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The summary judgment standard is not affected when the parties file cross-motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Such motions "'are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'" Transportes Ferreos de Venez. II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If after review of cross-motions for summary judgment the record reveals no genuine issues of material fact, then judgment will be entered in favor of the deserving party in light of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).

III.

A.

Forte argues that this suit should be dismissed because a jet ski is not a "vessel" within the meaning of The Limitation Act. See 46 U.S.C. § 50302 ("this chapter... applies to seagoing vessels and vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters."); 1 U.S.C. § 3 (defining "vessel" as "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."). This Court disagrees. Keys Jet Ski, Inc. v. Kays, holds, "a jet ski is a 'vessel' covered by the Limitation Act." 893 F.2d 1225, 1230 (11th Cir. 1990); see also Gorman v. Cerasia, 2 F.3d 519, ...


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