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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE SKANSKA USA CIVIL 

SOUTHEAST INC. AND 

SKANSKA USA, INC. AS 

OWNERS OF THE BARGE KS 

5531, PRAYING FOR 

EXONERATION FROM OR 

LIMITATION OF LIABILITY 

This Pleading Relates to Civil 

Action Nos.:

3:20-CV-05980-LC-HTC

3:20-CV-05981-LC-HTC

3:20-CV-05982-LC-HTC

3:20-CV-05983-LC-HTC

ADMIRALTY RULE 9(H)

CIVIL ACTION NO.

3:20-CV-05980 

SENIOR DISTRICT JUDGE 

LACEY A. COLLIER

MAG. JUDGE HOPE THAI 

CANNON

SUR-REPLY MEMORANDUM OF CLAIMANTS IN OPPOSITION TO 

SKANSKA’S AMENDED 12(B)(6) MOTION

Echoing Fed. R. Civ. Proc. 8(a), Supplemental Rule F(5) merely requires that 

“[e]ach claim shall specify the facts upon which the claimant relies in support of the 

claim, the items thereof, and the dates on which the same accrued.” Claimants have 

far exceeded this standard, securing for Skanska requisite notice of their claims 

ahead of the upcoming trial over whether Skanska may secure exoneration or 

limitation of its liability—the core relief Skanska seeks in its Limitation of Liability 

Act Complaints. Exceeding this determination would endorse Skanska’s 

impermissible attempt to wield the Limitation of Liability Act as a sword than as a

shield as intended by Congress.

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ARGUMENT

I. The Parties Never Agreed that Skanska’s 12(B)(6) Motion Should Be 

Resolved Prior to the Limitation Trial.

Skanska conflates an agreed briefing schedule with the timing of the Court’s 

disposition of the Motion. How and when this Court rules upon Skanska’s 

Motion is up to this Court and this Court alone. A briefing schedule and oral 

argument setting does not change that fact. Claimants shared their intention with the 

Court to respond substantively to Skanska’s 12(b)(6) Motion to Dismiss while also 

requesting “that the resolution of that motion follow limitation” out of a concern that 

“deciding Robins so early would have the effect of denying these claimants their 

rights under the Savings to Suitors Clause.” ECF No. 1179, Ex. B at 30:13-31:9. 

An agreed briefing schedule merely ensures that the underlying motion is fully 

briefed before it is decided by the Court. 

Claimants have never taken a position that Skanska is entitled to a ruling on 

its Rule 12(b)(6) Motion prior to the trial intended to resolve whether Skanska is due 

exoneration or limitation of its liability. Skanska’s complaints, after all, face 

dismissal if the Court finds it lacks jurisdiction or that limitation or exoneration are 

inappropriate. As Judge Vinson stated during the parties April 29, 2021 

teleconference: 

With respect [to] the matter of law of whether all claimants who did not 

file in this limitation of liability proceeding are also barred if Skanska 

is ultimately found either to not qualify under limitation of liability 

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protection, or perhaps I don’t even have subject matter jurisdiction over 

the matter, and it’s dismissed and sent to wherever they used to be 

or everyone is free to file what they want. I think that’s pretty well 

established. 

Ex. 1, Telephonic Conference, April 29, 2021, at 18:15-24. Neither the Limitation 

of Liability Act nor Supplemental Rule F awards Skanska two layers of protection 

from liability. Yet ruling on Skanska’s Rule 12(b)(6) Motion to Dismiss prior to the 

Limitation of Liability Act trial risks securing Skanska double insulation from 

accountability at the high cost of Claimants’ statutory rights under the Savings to 

Suitors Clause should Skanska lose the September 2021 trial and the Court dismiss 

Skanska’s complaints. 

II. Neither Robins Dry Dock or East River Applies to the Facts Before the 

Court.

The Supreme Court left no room for confusion when it specifically stated in 

East River Steamship Corp v. Transamerica Deleval, Inc.:

We do not reach the issue whether a tort cause of action can ever be 

stated in admiralty when the only damages are economic.

476 U.S. 858 at 871, n. 6 (1986). Both Robins Dry Dock and East River, by their 

own terms, do not apply to the facts before this Court. Accordingly, Skanska’s 

arguments fail on this point as well. 

III. While Claimants Have Alleged an Intentional Tort and Have Put 

Skanska on Notice of the Same, Justice Favors Granting Claimants Leave 

to Amend to Set Forth Their Intentional Tort Claim as a Separate, 

Labeled Count if Deemed Necessary by the Court. 

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a. Claimants have Alleged an Intentional Tort.

While Claimants expressly set forth negligence and gross negligence counts, 

Claimants were careful to methodically incorporate allegations of Skanska’s 

intentional conduct to support not only their gross negligence count but also their 

prayer for punitive damages. See ECF 1171 No. 1171 at paras. 16-18. This more 

than sufficiently meets not only the requirement of Supplemental Rule F(5) that 

“[e]ach claim shall specify the facts upon which the claimant relies in support of the 

claim, the items thereof, and the dates on which the same accrued,” but also both 

Fed. R. Civ. P. 8 and 12(b)(6) standards, as well—to the extent the Court deems 

them applicable to Supp. Rule F(5) claims.

1 Having set forth the factual basis and 

elements of an intentional tort, Skanska cannot now deny that claimants afforded it

fair notice of their claims and the grounds upon which each rests.

However, should the Court find that an intentional tort cannot be stated 

without setting it forth as a labeled count separate from the gross negligence count, 

Claimants respectfully request the opportunity to amend their master claims

accordingly. If permitted, Claimants would do so expeditiously. After all, Fed. Rule 

of Civ. Proc. 15(a)(2) declares that “[t]he court should freely give leave [to amend] 

 

1 While few courts have discussed whether the sufficiency of a claim under Supp. 

Rule F(5), several courts have found Rule 8 and 12(b)(6) standards applicable. See 

Matter of Horizon Dive Adventures, Inc. v. Sotis, 17-100050, 2018 WL 6978636 at 

*4, n. 4. (S.D. Fla. Nov. 28, 2018). 

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when justice so requires.” “[T]his mandate is to be heeded.” Foman v. Davis, 371 

U.S. 178, 182 (1962). As stated in Garcia v. McNeil, 

This policy of rule 15(a) in liberally permitting amendments to facilitate 

determination of claims on the merits circumscribes the exercise of the 

district court's discretion; thus, unless a substantial reason exists to deny 

leave to amend, the discretion of the district court is not broad enough 

to permit denial.

No. 4:07CV474-SPM/WCS, 2010 WL 4823370, at *1 (N.D. Fla. Aug. 12, 2010), 

report and recommendation adopted, No. 4:07-CV-474-SPM WCS, 2010 WL 

4818067 (N.D. Fla. Nov. 22, 2010) (citing Shipner v. Eastern Air Lines, Inc., 868 

F.2d 401, 407 (11th Cir. 1989)). 

In Dunham-Price Group, L.L.C. v. Port Aggregates, Inc., a district court 

unequivocally stated that “where the plaintiff asserts an intentional tort, the 

plaintiff’s claim is taken ‘out of Robins Dry Dock parameters,’” but Skanska

wrongly claims that courts only recognize a limited exception to Robins Dry Dock

for intentional interference with a contract. ECF No. 1179 at 9 (discussing DunhamPrice, No. 05-cv-2214, 2010 WL 2112953 (W.D. La. July 26, 2006). The DunhamPrice court found that the plaintiff had not yet pled an “intentional tort,” despite 

asserting one in its briefing. Observing that Federal Rules of Civil Procedure 9(h) 

and 15 provide for liberal amendment of pleadings, the court permitted the plaintiff 

to amend the complaint to assert an intentional tort. 

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Justice would certainly require leave to amend Claimants’ Supp. Rule F(5) 

claims should the Court find it necessary that Claimants set forth their intentional 

tort claim as a separate, labeled count. It bears emphasis that the sole amendment to 

the Master Bridge Impact Claim to date was limited to incorporate reference to the 

fifth construction barge that impacted the Pensacola Bay Bridge and that was not 

disclosed by Skanska until after the claim deadline (and before it responded to

discovery), despite Claimants’ repeated inquiries. See ECF. No. 1134 (describing 

the need to amend based on Skanska providing Claimants’ counsel “with 

information sufficient to establish that construction barge 450020 impacted the 

Pensacola Bay Bridge” on May 3, 2021). While Claimants are confident that they 

have asserted factual support for an intentional tort, should this Court disagree, it 

should, like the Dunham-Price court, permit Claimants to amend their Complaint. 

Doing so would serve the interests of justice would facilitate the determination of 

claims on the merits. 

IV. As Claimants Allege, Any Reasonable Company in Skanska's Shoes 

Would Understand that the Bridge Outage was Substantially Certain to 

Arise from its Conduct.2

a. Skanska Misstates Florida Law to Invent a Subjective Standard for 

Intentional Torts, where an Objective Standard Applies.

 2 Inexplicably, Skanska cited not to the Amended Master Claim of Bridge Impact 

Claimants, ECF. No. 1138, filed prior to the filing of the instant Motion to Dismiss 

but instead to the original Master Claim, ECF. No. 60.

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Skanska misstates the standard applicable to substantial certainty of 

intentional torts as a subjective test, rather than the objective standard long adopted 

by Florida courts to determine if the conduct at issue was substantially certain to 

result in the injury. To support its position, Skanska cites to a single Georgia state 

intermediate appellate court opinion from 1992. ECF No. 1179 at p. 5-6. Whether 

admiralty jurisdiction is found to exist or not, the Court may need to look to state 

law to determine the sufficiency of intentional tort allegations. See ECF. No. 1171 

at 15. Skanska provides the Court no reason to supplant the Florida Supreme Court’s 

adoption of an objective, reasonable person standard with a discussion taken from 

a Georgia appellate court’s opinion.

b. Claimants Adequately Pled that Skanska’s Intentional Conduct 

was Substantially Certain to Result in the Bridge’s Closure and 

Injury to Claimants.

When viewed in the light most favorable to Claimants, the Bridge Impact 

Master Claim contains more than adequate allegations to establish that Skanska’s 

conduct was substantially certain to result in the Pensacola Bay Bridge’s Closure 

and Claimants’ having incurred their damages. The Court need only look beyond 

the allegations from the Bridge Impact Master Claim that Skanska cherry-picked to 

make its point. ECF No. 1179 at p. 6-7. 

For example, Claimants pled that Skanska acted with a “conscious disregard 

of the consequences” having known (or reasonably should have known), that the 

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approaching storm that became Hurricane Sally constituted an “imminent or clear 

and present danger amounting to more than normal or usual peril.” ECF No. 1138 

at paras. 132-133. In doing so, Skanska “knowingly disregarded readily available 

information and its own policies.” Id. at para. 8. Claimants went further, alleging 

that Skanska violated its Hurricane Plan by deliberately choosing to leave its 

construction equipment in the vicinity of the Pensacola Bay Bridge rather than 

moving it to “safe harbor.” Id. at paras. 66 and 70. After all, “[a]ny 

reasonable design-build firm in Skanska’s shoes would have foreseen the 

consequences of a Pensacola Bay Bridge outage if the Hurricane Preparedness Plan 

was not followed.” Id. at para. 38. “Skanska knew or should have known of the 

crucial need to remove and secure Skanska construction barges so as to not 

jeopardize the bridge itself and surrounding property.” Id. at para. 78. “Skanska 

fully understood the disruption that would follow an outage severing the central 

artery connecting Pensacola with Gulf Breeze and Pensacola Beach.” Id. at para. 46. 

In sum, Skanska knew the stakes of damage and closure to the bridge. It also

understood and accepted the obligation to protect the site and surrounding 

community as served by compliance with its Hurricane Plan, which included the

requirement to move construction barges to safe harbor, which Skanska understood 

was necessary to prevent storm-driven construction barges from impacting and 

damaging the Pensacola Bay Bridge’s spans. 

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V. Skanska Misses the Most Applicable Takeaways from the Cases 

Claimants Cite.

a. Skanska only furthers Claimants’ Arguments by Distinguishing 

Claimants’ Supporting Case Law on Unrelated Grounds. 

As Skanska implies, the facts before this Court differ largely from most cases 

that construe Robins Dry Dock. This case, after all, centers on a Florida-based 

construction firm hired by the State of Florida and paid with Florida citizens’ tax 

dollars to build a roadway and bridge in Florida, involving its alleged failure to 

secure its construction site that resulted in massive losses to Floridian municipalities, 

businesses, and employees. On this basis alone, Skanska could distinguish nearly 

all cases construing Robins Dry Dock. Still, these cases provide important direction 

on why Robins Dry Dock does not apply to the facts before this Court.

For example, Skanska cites to Ferromet Resources, Inc. v. Chemoil Corp., 

suggesting that the court recognized the “intentional interference exception 

recognized in Robins.” ECF. No. 1179 at p.9 (discussing Ferromet, No. 91-4310, 

1992 WL 142411 (E.D. La. June 9, 1992)). Yet, the Ferromet court, like the 

Dunham-Price court discussed above, went beyond recognizing a narrow intentional 

interference exception, saying “however they might be characterized, Defendants’ 

actions were not acts of negligence; they were acts of intent, intended to exert 

sufficient pressure to influence Plaintiffs to do things their way." Id. at *1. Skanska 

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also overlooks the unequivocal direction provided by the court in Showa Line, Ltd. 

V. Diversified Fuels, Inc., which stated that “fraud and an intentional tort by the P & 

C Interests have been alleged, taking the claims out of the Robins Dry Dock 

parameters as well. ECF. No. 1179 at p. 9 (citing Civ. A. Nos. 88-2421, 1991 WL 

211527 at *1 (E.D. La. Oct. 1, 1991)). Courts do not apply Robins Dry Dock to 

cases alleging intentional maritime torts, whether or not it contains an intentional 

interference with a contract count.3

Skanska also misses an important takeaway from Sekco Energy, Inc. v. M/V 

Margaret Chouest, 820 F.Supp. 1008 (E.D. La. 1993) by focusing on Sekco’s 

ownership of an oil platform. Crucially, the Sekco court rejected the defendants’ 

attempt to “straightjacket” it with an overly strict reading of Robins Dry Dock that 

would deny any recovery based on the absence of any physical injury to the 

claimant’s property interest. Id. at 1011. This Court should similarly deny 

 3 Claimants mistakenly cited Kingston Shipping Co., Inc. v. Roberts, 667 F. 2d 34 

(11th Cir. 1982) as having made clear “its position that Robins applied to 

‘unintentional maritime torts.’” ECF. N. 1171 at p. 13. The quoted portion should 

have been attributed to In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of 

Mexico, 970 F. Supp. 2d 524, 528 (E.D. La. 2013), aff'd sub nom. In re Deepwater 

Horizon, 784 F.3d 1019 (5th Cir. 2015) (“The Mexican States are correct that 

Testbank's holding was limited to cases of unintentional maritime tort.”) (citing State 

of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1020, n.1 (5th Cir. 1985)). 

Kingston Shipping Co., however, did refer to “negligent acts causing economic loss”

as the underlying claim was couched in negligence. 667 F. 2d at 35.

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Skanska’s attempt to “straightjacket” it with a strict reading of Robins Dry Dock that 

premises Claimants’ recovery on whether they own the Pensacola Bay Bridge. 

Venore Transp. Co. v. M/V STRUMA involved a ship charterer seeking 

recovery of damages arising from the loss of use of a ship damaged in a collision 

with another ship. 583 F.2d 708, 710 (4th Cir. 1978). While distinguishable on this 

basis, Skanska overlooks the crucial similarity of the facts to those in Venore. Like 

the Venore ship-owner, Skanska seeks to escape all liability to municipalities, 

businesses, and employees who suffered losses due to the bridge outage caused by 

Skanska. As in Venore ̧ this Court should be similarly guided by the equities and 

that, while there is no risk of double recovery for claimants, there is a very real risk 

that Skanska escapes liability even if denied exoneration or limitation of its liability 

should the Court grant Skanska’s Motion to Dismiss nearly 1000 claims of directly 

impacted entrepreneurs, businesses, and individuals.

b. Skanska only rejects strict application of Robins Dry Dock if doing 

so advances its interest. 

The only time Skanska rejected a strict reading of Robins Dry Dock is when 

doing so would run against its interest. For example, Skanska claims Pennzoil 

Producing Co. v. Offshore Exp., Inc, prohibits recovery for economic losses arising 

from the closure of the Pensacola Bay Bridge (ECF No. 1179 at p. 13-14), despite

the fact that Claimant UMB (representing the interests of the Garcon Point Bridge 

bond holders) alleges that it unequivocally suffered physical damage to the Garcon 

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Point Bridge—in which it maintains a property interest—as a direct result of the 

same misconduct alleged of Skanska during the same storm. ECF No. 1171 at paras. 

27-28.

The same is true of Skanska’s position with regard to “work zone” claimants. 

These claimants allege an impaired property interest existing within the same, 

contiguous project site as the catastrophically damaged Pensacola Bay Bridge. See 

ECF. No. 1171 at p. 29. Skanska claims “there is no authority that would support 

these claims,” ECF No. 1179 at 14, despite having spent the bulk of its briefing to 

argue that Robins Dry Dock requires bridge impact claimants to have alleged that 

they suffered a direct impact with a property interest—just as “work zone” claimants 

have done in this case. Skanska, then, has twisted Robins Dry Dock beyond any 

semblance of its original meaning and interpretation to stand for the wrongheaded 

proposition that it entitles Skanska to immunity from any responsibility to bridge 

impact claimants, no matter how egregious its conduct and substantially certain the

resulting destruction. 

CONCLUSION

In Skanska’s haste to elude responsibility for the undeniable harm it has 

caused the claimants it seeks to dismiss—largely entrepreneurs and employees—it 

never once cites to Supplemental Rule F(5), which merely requires that “[e]ach 

claim shall specify the facts upon which the claimant relies in support of the claim, 

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the items thereof, and the dates upon which the same accrued.” Claimants have far 

exceeded this standard, setting forth the Bridge Impact claimants’ claims with 

granularity, including the damages each sustained as a result not only of negligence 

and gross negligence, but also intentional conduct. Claimants therefore, respectfully 

request the Court determine first its jurisdiction over Skanska’s Limitation of 

Liability Complaints before next deciding whether Skanska is able to secure 

exoneration or limitation of its liability. Claimants seek leave to amend their Bridge 

Impact Master Claim expeditiously if the Court finds the Bridge Impact Claims 

suffer from a curable pleading defect. 

/s/ E. Samuel Geisler

E. SAMUEL GEISLER, FL Bar # 83817

BRYAN F. AYLSTOCK, FL Bar # 78263

Aylstock, Witkin, Kreis & Overholtz, PLLC

17 East Main Street, Second floor

Pensacola, Florida 32502

Office: (850) 202-1010

Fax: (850) 916-7449

sgeisler@awkolaw.com

baylstock@awkolaw.com

sallyteam@awkolaw.com

and 

/s/ Thomas F. Gonzalez 

THOMAS F. GONZALEZ, FL Bar #173878 

J. NIXON DANIEL, III, FL Bar # 228761

Beggs & Lane, RLLP

501 Commendencia Street 

Pensacola, Florida 32502

Office: (850) 432-2451

tfg@beggslane.com

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jnd@beggslane.com

and

/s/ Brian H. Barr

BRIAN H. BARR, FL Bar 493041

EMMANUELLA J. PAULOS, FL Bar 99010

Levin Papantonio Rafferty Proctor 

Buchanan O’Brien Barr & Mougey, P.A.

316 S. Baylen Street, Suite 600

Pensacola, FL 32502

Office: (850) 435-7000

bbarr@levinlaw.com

epaulos@levinlaw.com

Attorneys for Claimants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 11th day of June, 2021, I electronically 

filed the foregoing with the Clerk of Court by using the CM/ECF system which will 

send a notice of electronic filing to all attorneys of record. 

/s/ E. Samuel Geisler

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