The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court in this declaratory judgment action, brought pursuant to 28 U.S.C. § 2201, are cross motions for summary judgment filed on behalf of plaintiff, One Beacon American Insurance Company, and defendant Bartley Marine, Inc., the insured. Defendant Eric Kolodziej joins the motion for summary judgment of his employer, Bartley Marine, for which he was employed on September 20, 2004. Mr. Kolodziej was working as a deckhand on the M/V Kathleen Nicole, which Bartley Marine had chartered earlier that day, in an effort to protect Bartley Marine's fleet (vessels and barges) from damage from flooding, flotsam and jetsam caused by Hurricane Ivan, which dumped record breaking rainfall in the Upper Ohio River watershed on September 17, 2004.
One of Bartley Marine's barges, Barge 8160, a jumbo barge, was beached when the floodwaters of the Ohio River began to recede; one of Bartley Marine's vessels, the M/V Envoy, was disabled by flotsam which struck its propeller. Eugene Bartley Jr., the President of Bartley Marine, piloted, and Eric Kolodziej was a crew member on, the M/V Kathleen Nicole attempting to free Barge 8160 via a controlled slide, when Mr. Kolodziej was caught between the barge and the vessel, sustaining serious injuries. One Beacon has made payments for medical treatment incurred by Mr. Kolodziej for which it seeks reimbursement under reservation of rights, but has denied Bartley Marine's prompt claim for coverage of its employee's injuries occurring during his work on the M/V Kathleen Nicole. One Beacon asserts that this chartered vessel was not covered by the Hull and Machinery and Protection & Indemnity (P&I) policies which it had issued to Bartley Marine because it was not one of four vessels listed in the Schedule of Insurance attached to the Policy.
After careful consideration of the cross motions for summary judgment, the responses thereto, the supporting briefs and the materials submitted in support of summary judgment, the Court finds that the P&I policy covers injuries to crew members working the M/V Kathleen Nicole on September 20, 2004, and, therefore, will grant Bartley Marine's motion for summary judgment and deny One Beacon's motion for summary judgment.
II. Summary Judgment Standards
Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'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." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir.2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence ... through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most favorable, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party ).
There are no genuine issues of material fact, only issues about the appropriate inferences and legal consequences of the undisputed material facts, and unless noted, the following facts are not disputed.
Bartley Marine is a family operated Pennsylvania corporation founded in 1995 by Eugene Bartley, Jr., with its principal place of business at a river landing in West Virginia on the Ohio River in the navigation pool created by the Pike Island Dam at Mile Marker 84. Bartley Marine owns and charters towboats and is engaged in "towing, fleeting, cleaning, and shifting of barges owned by others, as well as tug service" at the Mile 84 landing and other landings on the Ohio River. Bartley Marine has always owned several vessels, and from time to time charters other towboats for use in its business operations, taking complete custody and control over such chartered vessels. Routinely, other towing companies deliver an average of five to ten barges a day to Bartley Marine landings for cleaning; as is customary in the business, Bartley Marine employees regularly assist those other towing companies in dropping off and picking up barges, ...