Case 0:05-cv-61364-KAM Document 26 Entered on FLSD Docket 05/09/2006 Page 1 of 5

May 8 2006
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

IN ADMIRALTY

CASE NO. 05-61364-CIV-MARRA/SELTZER

INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC.,
A Florida Not For Profit Charity,

Plaintiff,
vs.

SANDERS MARINE TOWING, INC. d/b/a

FT. PIERCE TOWBOAT U.S.,
LARRY ALLEN BALANCHETT,
MCCULLEY MARINE SERVICES, INC.,
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA; ROYAL MARINE
INSURANCE GROUP, INC., in personam;
and, M/V Phoenix, a 1989 29' motor vessel,
her engines, tackle, accessories, and
appurtenances, in rem,

Defendants.
________________________________________/

PLAINTIFF’S RESPONSE TO DEFENDANT’S, INDEMNITY INSURANCE

COMPANY OF NORTH AMERICA, MOTION FOR SUMMARY JUDGMENT

Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE, INC., by and through

its undersigned counsel, and pursuant to this Honorable Court’s Order dated May 5, 2006,

hereby files its Response to Defendant’s, INDEMNITY INSURANCE COMPANY OF NORTH

AMERICA, Motion for Summary Judgment, and states:

STANDARD FOR SUMMARY JUDGMENT

In order to prevail on a motion for summary judgment, the movant must meet the criteria

set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states in part:

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The judgment sought shall be rendered forthwith 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 facts and that the moving party is entitled
to judgment as a matter of law.

Summary judgment is appropriate only where there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of meeting

this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In determining

whether summary judgement is appropriate, the facts and inferences from the facts are viewed in

the light most favorable to the non-moving party, and the burden is placed on the moving party

to establish both the absence of a genuine issue of material fact and that it is entitled to judgment

as a matter of law. Matsushita Elec. Indus. Co. Ltd. vs. Zenith Radio Corp., 475 U.S. 574, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Summary judgment should only be entered when the moving party has sustained its

burden of showing the absence of a genuine issue as to any material fact when all of the evidence

is reviewed in the light most favorable to the non-moving party. Sweat v. The Miller Brewing

Company, 708 F.2d 655 (11th Cir. 1983). All doubt to the existence of a material fact must be

resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d

994, 996 (5th Cir. 1979)1, quoting Gross v. Southern Railroad Co., 441 F.2d 292 (5th Cir. 1964).

A fact is material if it “might affect the outcome of the suit under governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986).

1
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh
Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit
before October 1, 1981.

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The party seeking summary judgment always bears the initial responsibility of informing

the Court of the basis for its motion, identifying those portions of the “pleadings, depositions,

answers to interrogatories, and affidavits, if any,” which it believes demonstrates the absence of

a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. At 2553.

In determining whether the moving party has met its burden of establishing that there is

no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the

Court must draw inferences from the evidence in the light most favorable to the non-movant and

resolve all reasonable doubts in that party’s favor. Spence v. Zimmerman, 873 F.2d 256 (11th

Cir. 1989); Samples on behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.

1988). The Eleventh Circuit has explained the reasonableness standard as follows:

In deciding whether an inference is reasonable, the Court must

‘cull the universe of possible inferences from the facts established
by weighing each against the abstract standard of reasonableness.’
[citation omitted]. The opposing party’s inference need not be
more probable than those inferences in favor of the movant to
create a factual dispute, so long as they reasonably may be drawn
from the facts. When more than one inference reasonably can be
drawn, it is for the trier of fact to determine the proper one.

WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988).

Put in a slightly different manner, if a reasonable fact finder evaluating the evidence

could draw more than one inference from the facts, and if that inference introduces a genuine

issue of material fact, then the Court should not grant the summary judgment motion. Augusta

Iron & Steel Works v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir. 1988). A

dispute about a material fact 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. at 248, 106

S.Ct. At 2510 (1986). The inquiry is “whether the evidence presents a sufficient disagreement to

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require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Id. at 251-52.

The evidence presented must be constructed in favor of the non-moving party, and that

party must receive the benefit of all favorable inferences that can be drawn from that party’s

evidence. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

In other words, all doubt as to the evidence of a genuine issue of material fact must be resolved

against the moving party and the court must draw inferences from the evidence in the light most

favorable to the non-movant. Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989); Sweat v.

Miller Brewing Co., 708 F.2d 655 (11th Cir. 1983). The trial court’s function is not to weigh the

evidence and determine the truth of the matter, but to determine whether there is a genuine issue

for trial. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. at 2511.

CONTROVERTED STATEMENT OF UNDISPUTED

MATERIAL FACTS

Pursuant to Local Rule 7.5 C. and D., IMRI controverts the Defendant’s Statement of

Undisputed Material Facts, §9, of the pending Motion for Summary Judgment. No deposition

has yet been taken and it is unclear whether Defendant, ROYAL MARINE INSURANCE

GROUP, INC. transmitted information regarding the Nikki’s movement from the St. Augustine

area prior to the loss as set forth in §9.

ARGUMENT

Summary judgment should not be granted before the parties have an opportunity to

engage in meaningful discovery. In the present case, Plaintiff told Defendant, ROYAL

MARINE INSURANCE GROUP, INC.’s representatives that the M/V Nikki was going to be

moved from St. Augustine, Florida towards South Florida without having the opportunity to take

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Defendant, ROYAL MARINE INSURANCE GROUP, INC.’s deposition or Defendant,

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA’s deposition. It is unclear

whether the information was relayed from ROYAL MARINE INSURANCE GROUP, INC. to

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA concerning the vessel Nikki’s

southbound movement in conformity with the policy terms.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that the foregoing has been electronically filed with the U.S.

District Court and that a true and correct copy of the foregoing has been furnished via U.S. Mail

and telefax on this 8th day of May, 2006, to: Charles G. De Leo, Esq., Fowler, White, et al.,

Attorneys for Sanders Marine Towing, Inc., d/b/a Ft. Pierce Towing, Inc. and Larry Allen

Balanchett, 1395 Brickell Avenue, 14th Floor, Miami, Florida 33131-3302; Richard J. McAlpin,

Esq., Jonathan H. Dunleavy, Esq., McAlpin & Brais, P.A., Attorneys of Indemnity Insurance

Company of North America, 80 S.W. 8th Street, Suite 2805, Miami, Florida 33130; Neil Bayer,

Esq., Sarnoff & Bayer, P.A., Attorneys for Royal Marine Insurance Co., 3000 Shipping Avenue

Coconut Grove, Florida 33133.

STROUP & MARTIN, P.A.

Attorneys for Plaintiff
119 S.E. 12th Street
Fort Lauderdale, Florida 33316
(954) 462-8808; Fax 462-0278

By: _James W. Stroup / s /____

JAMES W. STROUP
Florida Bar No. 0842117

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