Free Memorandum - District Court of Arizona - Arizona

JOSEPH J. PERRONE, ESO.
BENNETT, GIULIANO, McDONNELL & PERRONE, LLP
225 West 34"‘ Street, Suite 402
New York, New York 10122
TeI.: (646) 328-0120
- and —
JODY BUZICKY, ESQ.
POLI & BALL, P.L.C.
Suite 500
2999 N. 44th Street
Phoenix, AZ 85018
Tel.: (602) 840-1400
Attorneys for Plaintiff I
Aramark Leisure Services, Inc. I
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
------------------------- - —........-----................. X
ARAMARK LEISURE SERVICES, INC.,
Piaintiff, Docket N0.: 03-CV—1599(PHX)(FJIVI)
- against-
CANYON DREAMER, INC., ELWIN E.
COONTS, AND MARKEL AMERICAN
INSURANCE COMPANY, _.
Defendants.
.... a~... - ...................................---------- »»—--X
PLAlNTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION
FOR MODIFICATION OF THIS COURT’S NOVEMBER 4, 2005 DECISION .
AND ORDER ENTERED ON THE DOCKET ON NOVEMBER 8, 2005
Joseph J. Perrone, Esq.
Of Counsel 5
Case 2:03-cv-01599-FJM Document 43 Filed 11/23/2005 Page 1 of 4

STATEMENT OF THE CASE
This matter was tried to the Court without jury on two issues: First, whether the
services provided by Aramark Leisure Services, Inc. (hereinafter "Aramark") were
salvage or towage; and Second, whether Aramark was negligent in performing its
sen/ices such that it was liable to defendant Canyon Dreamer Inc., et al. (hereinafter
"Canyon Dreamer") on some or all of their counterclaims. This Court issued its decision
on November 4, 2005, which was entered by the C|erk’s Office on November 8, 2005.
Plaintiff Aramark now moves pursuant to Federal Rules of Civil Procedure 59 and 60for
this Court to reconsider that portion of the award against Aramark in the amount of five
thousand one hundred and fifty~six dollars and thirty cents ($5,156.30) on the basis that
it is inconsistent with the Courts decision and holding. _
STATEMENT OF RELEVANT FACTS
This Court at page 3 of the decision, on a factual basis held, "this oral contract _
between Aramark and Canyon Dreamer constituted a towage contract." Your Honor
determined, and Aramark believes correctly so, that the CANYON DREAMER was not .
subiected to a marine peril because it had already had been completety destroyed by
the fire and was thus valuelessg and second, Aramark did not volunteer it services since
Canyon Dreamer had requested and received a price quote for the vessel wreckage
removal prior to Aramark beginning its services. The Court goes on to state "therefore,
l defendant can not avoid compensating Aramark based upon the law of salvage". ld.
Case 2:03-cv-01599-FJM Document 43 Filed 11/23/2005 Page 2 of 4

LEGAL ARGUNIENT
This Court having concluded in its opinion at page 3, that defendant can not
avoid compensating Aramark based upon the law of salvage, and in conflict of that
holding then, on Page 5, states: “we conclude that Aramark’s negligence in towing the
wreckage proximately caused the defendants to suffer the costs of the tow ...... and
awarded the defendants five thousand one hundred fifty—six dollars and thirty cents
($5,156.30) that Aramark was paid under the tovvage contract. It is submitted, that this
was not the Court's intent based upon the decision on the issue of towage and is
improper since (1) it results in a double recovery to Canyon Dreamer; and (2) because
the towage was earned as it was billed on a time and material basis for work actually
done, and not dependant upon success it should not be returned.
As regards to the first argument, double recovery, Aramark was hired on a time _
and materials basis to remove the wreckage of the CANYON DRI-EAI)/IER from the
beach. it did so successfully, in that the wreckage is no longer on the beach at the
Escalante Arm of Lake Powell. During the course of the Aramark tow, the vessel sank. __
Allegedly, after the sinking at mile 92, ll/larkel, Canyon Dreamer’s insurer, hired
Associated Diving and Marine Contractors, at a suggested cost of thirty thousand
($30,000) dollars to find the wreckage and remove it from the lake. Since the Court has
awarded those costs, to find the sunken wreckage, also refunding the cost of Aramark’s
services in wreckage removal and towing, amounts to a windfall to Canyon Dreamer in
that it was responsibie for removing the wreckage from shore after the fire — something
l Aramark did do successfully. l l l l l
Case 2:03-cv-01599-FJIVI Documenf 43 Filed 11/23/2005 Page 3 of 4

The second argument is much simpler. The Court found the agreement between
Aramark and Canyon Dreamer was a contract for towage, not dependant upon success
—— and thus not what is called no-cure, no-pay. Canyon Dreamer's assertion at trial was
that Aramark was not entitled to be paid because the services it rendered were salvage;
it has never contended in its papers or during the trial that if the services were as
L Aramark asserts, and this Court found, towage, that it did not have to pay Aramark for
that towage.
Aramark maintains that it is entitled to be paid for its towing services in the
amount of five thousand one hundred fifty—six dollars and thirty cents ($5,156.30). That
this Court, in error awarded that towage refund to Canyon Dreamer and this Court
I should modify its decision and the judgment to remove that portion of the award.
CONCLUSION
For the reasons advanced herein, the Court should, pursuant to Fed. R. Civ. P.
59 and 60, correct the decision to vacate the award refunding the towage and amend _Q
the judgment to reflect an award to Canyon Dreamer in the total amount of thirty
thousand dollars ($30,000).
Dated: New York, New York
November 23, 2005
Respectfuliy submitted,
· · Bennett, Giuliano, McDonnell & Perrone, LLP
Attorneys mar P a iff Aramark Leisure Services
By: .1: /
Jgzisep sw errone
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