1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE SKANSKA USA CIVIL §

SOUTHEAST INC. AND § ADMIRALTY RULE 9(H)

SKANSKA USA, INC. AS §

OWNERS OF THE BARGE KS § CIVIL ACTION NO.

5331, PRAYING FOR § 3:20-CV-05980 – RV/MJF

EXONERATION §

FROM OR LIMITATION § SENIOR DISTRICT JUDGE

OF LIABILITY §

§ ROGER VINSON

This Pleading Relates to Civil Action Nos.:

3:20-CV-05980-RV/MJF

3:20-CV-05981-RV/MJF

3:20-CV-05982-RV/MJF

3:20-CV-05983-RV/MJF

MEMORANDUM OF SKANSKA USA CIVIL 

SOUTHEAST INC. AND SKANSKA USA, INC. IN OPPOSITION 

TO ALLOWING LATE FILING OF “COMMUTE ONLY” CLAIMS

The four matters referenced above relate to barges that allegedly damaged 

the Pensacola Bay Bridge. On December 14, 2020 this Court issued an order 

requiring that all claims in these cases be filed and served no later than May 3, 

2021. Under the Court’s order, anyone claiming only economic loss resulting from 

damage to property in which the claimant did not have a proprietary interest is thus 

required to file a claim in these proceedings by May 3. This would include anyone 

who has incurred economic loss in the form of increased commuting expenses. 

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 1 of 12
2

Claimants’ counsel suggest a “practical solution to preserve the rights of 

commute-only claimants,” is either: (a) filing a class action within the limitation 

proceeding, or (b) modifying the Court’s requirement that all claims be brought by 

the deadline set forth in the Court’s order of December 14 to allow commute-only 

claimants to wait until there is a determination of whether the Court has subject 

matter jurisdiction and whether Skanska is entitled to limit its liability. Claimants’ 

counsel’s request is procedurally inappropriate, and neither of the two suggested 

approaches is permitted by the Limitation of Liability Act and Supplemental Rule 

F.

1. The request for relief via letter is procedurally inappropriate.

First, application by letter for something of this nature is procedurally 

inappropriate. If claimants’ counsel represent “commute only” clients who for 

some reason cannot file their claims by May 3, the proper procedure would be to 

file a motion seeking to extend the time for those named individual clients to file 

their claims, explaining why additional time is necessary. And if claimants’ 

counsel are making this request on behalf of persons who have not yet retained 

them and are merely individuals that they hope to eventually represent as clients, 

they have no standing to make such a request. Moreover, seeking relief for 

persons that a lawyer does not represent is highly irregular.

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 2 of 12
3

2. A class action cannot be filed in a limitation of liability proceeding.

In Lloyd’s Leasing, Ltd. v. Bates, 902 F.2d 368 (5th Cir. 1990), the court held 

that a class action is incompatible with a limitation of liability proceeding:

First, the class action interferes with the concursus contemplated by 

the limitation of liability proceeding. Under Rule F, all claims must 

be filed within the monition period or they are barred. A judgment 

in a limitation proceeding binds the entire world. The notice 

provisions of Supplemental Rule F are designed to warn potential 

claimants that they must file their claims within the monition period 

or lose them. In a class action, on the other hand, an individual may 

opt out of the class and not be bound by the judgment. The notice 

provisions of Fed.R.Civ.P. 23 are designed to warn 

the class members that if they wish not to be bound by the 

judgment, they must opt out of the class. If the litigants in 

a limitation proceeding were allowed to opt out and not be bound 

by the judgment, it would destroy the concursus. Second, the notice 

requirements of the limitation proceeding are more restrictive than 

the notice requirements of the class action. Fed.R.Civ.P.

23(c)(2) requires “individual notice to all members who can be 

identified” and the “best notice practicable under the 

circumstances” as to all others. Supplemental Rule F(4) also 

requires individual notice to all “persons asserting claims” but 

mandates notice by publication as to all others. Third, the entire 

thrust of Supplemental Rule F is that each claimant must appear 

individually and this is obviously inconsistent with the class 

action. Staring, Limitation Practice and Procedure, 53 Tul.L.Rev.

1134, 1150 (1979). In short, “the two rules are incompatible, 

and class representation in the sense of Rule 23 should therefore not 

be allowed in limitation proceedings.” Id. 

Id. at 370 (emphasis added). Lloyd’s Leasing has been consistently followed, and 

there are no cases holding that a class action is permissible in a limitation of 

liability proceeding. Gabarick v. Laurin Mar. (America), Inc., 2009 U.S. Dist. 

LEXIS 27180 (E.D. La., January 12, 2009); In re Ingram Barge Co., 2006 U.S.

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 3 of 12
4

Dist. LEXIS 79403, 2006 WL 5377855, at *1 (E.D. La. Oct. 19, 2006) (striking 

class allegations pursuant to Lloyd's Leasing); In re River City Towing Servs., Inc.,

204 F.R.D. 94, 97 (E.D. La. 2001) (same); Humphreys v. Antillen, N.V., 14, 1994 

AMC 1794, 1994 WL 682811, at *3 (E.D. La. Jan. 31, 1994).

3. “Commute-only” claimants, like all other claimants, are required to file 

their claims within the time allowed by the Court’s order.

The notion that a certain class of claimants can be exempted from complying

with the Court’s order is substantively incompatible with the procedure that has 

been established by Congress in passing the Limitation Act and by the Supreme 

Court in promulgating the Supplemental Admiralty Rules. 

Supplemental Rule F(4) requires a vessel owner seeking limitation of 

liability to issue a “notice to all persons asserting claims,” and to publish that 

notice “once a week for four weeks prior to the deadline for filing of claims.” On 

December 14, 2020, the Court entered an order requiring Skanska to publish a 

copy of the notice in the Pensacola News-Journal once a week until the expiration 

of the time for submission of claims. As per the Court’s order, the News-Journal 

has published the Notice once a week since that time, thus providing notice greatly 

in excess of what is required by Supplemental Rule F(4).

The notice that has been published once a week for the last four months 

admonishes “[a]ny person having a claim . . . is hereby given notice that all such 

claims must be filed with the Clerk of this Court no later than . . . May 3, 2021.” 

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 4 of 12
5

(Emphasis added). It further warns that “[a]ny person failing to file a claim as set 

forth above will be forever barred and permanently enjoined from making and 

filing any such claims.” (Emphasis added). The order could scarcely be clearer—

anyone that has a claim has to file that claim by May 3 or be forever barred from 

asserting it. As the court stated in Pickle v. Char Lee Seafood, Inc., 174 F.3d 444, 

449 (4th Cir. 1999),

Under the procedures established both by statute and rule, when the 

shipowner files a complaint in admiralty to limit its liability for 

claims arising in connection with its ship and deposits with the 

court an amount equal to its “interest in the vessel and freight,” all 

claims, except the limitation action, shall “cease,” and claimants are 

required to file their claims in the limitation action.

The Supreme Court addressed the purpose of the notice provisions in

Maryland Casualty Co. v. Cushing, 347 U.S. 409, 417 (1954):

Moreover, it is important to bear in mind that the concursus is not 

solely for the benefit of the shipowner. The elaborate notice 

provisions of the Admiralty Rules are designed to protect injured 

claimants. They ensure that all claimants, not just a favored few, 

will come in on an equal footing to obtain a pro rata share of their 

damages.

 Not only have potential claimants been given more than ample formal 

notice that there was a deadline for filing claims, but only a modern day Rip Van 

Winkle who has been asleep since Hurricane Sally would not be aware that other 

people were making claims against Skanska for damage to the Pensacola Bay 

Bridge, and that there were lawyers actively soliciting representation of anyone 

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 5 of 12
6

who had a similar claim. There have been airplanes flying attorney’s advertising 

banners over beaches and the community. There have been town hall meetings 

promoted or sponsored by claimant’s lawyers. There have been lawyer’s ads on 

social media, television, and print. Furthermore, the alternate route along State 

Highway 98 and Interstate I-10 has been populated with billboards advertising 

legal services for people allegedly damaged as a result of the Bay Bridge 

outage. Accordingly, it is inconceivable that anyone in the greater Pensacola area 

could not be aware of the right to assert a claim against Skanska.

This is especially true for the “commute only” potential claimants, since the 

alternate route from Gulf Breeze to Pensacola taken by these individuals passes

lawyer billboard ads reminding people that they need to file claims and offering 

their services to assist in this process, some of which highlight the filing deadline. 

Supplemental Rule F(4) provides that the time to file may be enlarged “for cause 

shown,” but it is impossible to imagine a group of claimants less able to show 

cause why they should be allowed to file a belated claim in a limitation proceeding 

and less deserving of the Court’s sympathy than a group of commuters who for 

months have twice a day driven by billboards reminding them that they needed to 

file their claims by the submissions date set by this Court.

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 6 of 12
7

Indeed, as of the date of the filing of this Opposition, at least 47 claims have 

been filed for increased commuting expenses.1 These claimants obviously knew 

that they needed to make a claim to preserve their rights. Potential claimants who 

do not file a timely claim have no basis for arguing that they were unaware of what 

was required of them.

Supplemental Rule F(5) provides that “[i]f a claimant desires to contest 

either the right to exoneration from or the right to limitation of liability the 

claimant shall file and serve an answer to the complaint unless the claim has 

included an answer.” The plain language of this rule requires a claimant who 

opposes the vessel owner’s exoneration to file an answer. Accordingly, if a 

claimant files a claim in the limitation proceeding but does not file an answer, the 

vessel owner is entitled to a default judgment against that claimant, and that default 

judgment would not be subject to attack ex post facto if the court later finds that 

the vessel owner was liable to other claimants. Someone who flouted the court’s 

order and never even filed a claim (such as the putative commute-only claimants 

proposed by counsel) should not be able to claim greater rights than a claimant 

who at least filed a claim.

Claimants’ counsel attempt to rely on Moore-McCormack Lines, Inc. v. 

Richardson, 295 F.2d 583 (2d Cir. 1961) for the proposition that claimants who 

 

1 Since the spreadsheet attached as Exhibit “A” was prepared, additional 

“commute-only” claims have been filed. 

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 7 of 12
8

disregard this Court’s order and do not file claims in these limitation proceedings 

will not be precluded from filing claims in the future if limitation is denied. This 

reliance is misplaced, since Moore-McCormack Lines was incorrectly decided. 

In Lloyd’s Leasing, in distinguishing a limitation proceeding from a class 

action, the Fifth Circuit pointed out that

A judgment in a limitation proceeding binds the entire world. The 

notice provisions of Supplemental Rule F are designed to warn 

potential claimants that they must file their claims within the 

monition period or lose them.

902 F.2d at 370. The court did not distinguish between claimants who had filed 

claims and those who had not, or between instances where limitation was granted 

and where limitation was denied. The traditional view that all potential claimants 

are bound by the judgment in a limitation proceeding, whatever the result of that 

proceeding, is supported by the scholarly literature. See, e.g., Staring, 

Limitation Practice and Procedure, 53 Tul. L. Rev. 1134, 1182 (1979) (“[T]he 

final judgment should, in any event, contain a perpetual injunction against the 

assertion of claims in relation to the incident or voyage . . . by any person who did 

not file his claim in the proceeding and consequently did not have it expressly 

adjudicated in the judgment.”); Bender, Matthew, Benedict on Admiralty, § 8.01(3) 

(7th ed. 2007) (“After the deadline established by the court . . . has passed, it is 

customary for the plaintiff to enter a default, and then judgement on the default, as 

to all parties who may have claims which have not been asserted in the limitation 

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 8 of 12
9

action. This procedure will protect the vessel owner from additional, late filed 

claims . . ..).

Any other rule would be inequitable. Claimants’ counsel suggest that 

“commute-only” claimants should be allowed to stay on the sidelines and wait and 

see if limitation is granted, and then argue that the limitation petitioner is bound 

by an adverse judgment if the court denies the right to limit. In short, they are 

asking that they be given even greater rights than a class action plaintiff who has 

opted out of the class. Lloyd’s Leasing makes it clear that the judgment in a 

limitation proceeding “binds the entire world,” including potential claimants that 

have not filed claims. Having been given abundant notice, these potential 

claimants should be treated like all other claimants, and be required to file their 

claims or be forever barred, whatever the outcome.

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 9 of 12
10

/s/ Derek A. Walker 

DEREK A. WALKER

Admitted Pro Hac Vice

KENNETH H. TRIBUCH

Florida Bar No. 986887

Harold. K. Watson, Esq.

Derek A. Walker, Esq.

Charles P. Blanchard, Esq. 

Jon W. Wise, Esq.

CHAFFE MCCALL, LLP

801 Travis, Suite 1910

Houston, Texas 77002

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

and

SCOTT A. REMINGTON

Florida Bar No. 122483

JEREMY C. BRANNING

Florida Bar No. 507016

CLARK PARTINGTON

P.O. Box 13010

Pensacola, FL 32591-3010 

Telephone: (850) 434-9200

Facsimile: (850) 432-7340

Attorneys for Skanska USA Civil Southeast 

Inc. and Skanska USA, Inc.

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 10 of 12
11

CERTIFICATE OF COMPLIANCE AS TO WORD COUNT

I hereby certify that, as required by Local Rule 7.1(F), this Memorandum

contains 2,151 words, counted as provided in Local Rule 7.1(F).

/s/Jeremy C. Branning

JEREMY C. BRANNING

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 11 of 12
12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to the 

following through the Court’s CM/ECF electronic filing system on this 28th day of 

April, 2021:

Brian Barr, Esq.

Christopher Paulos, Esq.

Levin, Papantonio, Thomas, Mitchell, 

Rafferty & Proctor, P.A. 

316 South Baylen Street

Pensacola, FL 32502

Bryan F. Aylstock, Esq.

Justin G. Witkin, Esq.

Douglass A. Kreis, Esq.

Neil D. Overholtz, Esq.

Nathan C. Bess, Esq.

Bobby J. Bradford, Esq.

Stephen H. Echsner, Esq.

E. Samuel Geisler, Esq.

Aylstock, Witkin, Kreis & Overholtz, PLLC

17 East Main Street, Second Floor

Pensacola, FL 32502

Service E-Mail: Sgeisler@awkolaw.com

 nbess@awkolaw.com

 sallyteam@awkolaw.com

Thomas F. Gonzalez, Esq.

J. Nixon Daniel, III, Esq. Beggs & Lane, RLLP

501 Commendencia Street

Pensacola, Florida 32502

Service Email: jnd@beggslane.com

 tfg@beggslane.com

Attorneys for Claimants 

/s/Jeremy C. Branning

JEREMY C. BRANNING

Case 3:20-cv-05980-MW-MJF Document 529 Filed 04/28/21 Page 12 of 12