Free Proposed Findings of Fact - District Court of Arizona - Arizona

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NEIL S. LERNER, State Bar No. 134031 JARED A. WASHKOWITZ, State Bar No. 226211 SANDS LERNER 12400 Wilshire Boulevard, Suite 1300 Los Angeles, California 90025 310-979-9144

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Attorneys for Defendants/Counter-claimants, CANYONDREAMER, INC., ELWIN E. COONTS, and MARKEL AMERICAN INSURANCE COMPANY

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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ARAMARK SPORTS AND ENTERTAINMENT, I INC.,
Plaintiff,

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CASE NO.
{PROPOSED)

CVrO3 1599PHXFJM FINDINGS OF FACT AND

CONCLUSIONS OF LAW )

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v.
CANYONDREAMER, INC., ELWIN E.
COONTS, AND MARKEL AMERICAN
I INSURANCE COMPANY,

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,. .)

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Defendants. AND RELATED COUNTERCLAIM.

Defendants/Counter-claimants COONTS; and
MARKEL
AMERICAN

CANYONDREAMER,
INSURANCE COMPANY,

INC.;

ELWIN E.

hereby

lodges Law as

their
follows:

Proposed

Findings

of

Fact

and

Conclusions

of

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21
2$
.1

[PROPOSED] FINDINGS

OF FACT AND CONCLUSIONS OF LAW

Case 2:03-cv-01599-FJM

Document 23

Filed 08/26/2005

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Case 2:03-cv-01599-FJM

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Case 2:03-cv-01599-FJM

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I

"'

F.

Markel
LC to

retained find,

Associated raise,

Diving

and
"Canyon

Marine Dreamer"

Contractors wreckage

arid remove

th.

3
4

from the bottom

of Lake Powell.
Markel

However,

the

vessel

could not be located.
18.
.. Or)

5 6
1
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September

6,

200Z,

paid

$30,000.00

t;o

Associated in

Diving

and Marine to find,

Contractors

LC for

services

rendered Dreamer"

an attempting

raise,

and remove the "Canyon

wreckage
19.

on the bottom

of Lake Powell;

On
to

November Aramark

28,
plus

2002
protest $75.00fo:r

Canyon in
full late

Dreamer,

Inc.

paid

.1~ $5,156.30

under

payment fees.

of

Aramark's

11
12"

invoice 20.

for$5,Q81.30,

Aramark in

failed light

to

exercise warnings

reasonable received Park

care

under

the
from to

.{~

circwnstances

0:£ the

by Aramark Service that

14 the Utah State
is
the salvage, the

Park Service
availability

and National of floatation

prior

devices

were not
sunk,

16 used,

the

failure
knowledge

l'
19
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~o mark the
that
Markel's of purposes

site

where

the

wreckage

Aramark's

surveyor the

intended cause in of

to

inspect
fire,

18 the
and

wreckage
Aramark's

for

determining a sunken

the

knowledge owner to fines

that

wreck

Lake Powell

would

expose
21.

its

As

a

direct

and
raise,

proximate

result Markel

of
"Canyon

Aramark's

2a
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negligence,

Canyon Dreamer Inc.
to find,

and/or

were required

to

23 expend $30,000.00
wreckage.

and remove the

Dreamer"

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22.

Aramark's

attempted

removal

of

the

"Canyon

Dreamer'

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wreckage

was a salvage.

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PROPOSED]

FINDINGS OF FACT AND CONCLUSIONSOF LAW Document 23 Filed 08/26/2005 Page 4 of 9

Case 2:03-cv-01599-FJM

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Case 2:03-cv-01599-FJM

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t~an towage,

~tco,

~~~~.

v.

Q~~ch ConstrgQt~,

19~3

AMC 2195

(~.D. N.Y.).

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4;

7.
obligate

Salvors
themselves

who Undertake

a service

to

distressed

property property

tq take

reasonable

care
for

of

the

in
they

5

~eir
inflict

charge
on that

and they may be responsible
This same kind duty the
property

damages which

6

has been defined and exercise the

as binding same degree
custody,

7 them 'to
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take

of care, property takes

at
that

diligence a prudent

in

keeping

the

placed

in

their
in

man ordinarily

and exercises

keeping

his

10 own property.'"
11.

1.92 F.2d.43..7, 440
ZO5-6
(1958).

1~61),

citing

Norris,

Law of

Salvage,

§ 120 at

12

~3

8.
others
will

Xn

determining

what

constitutes

negligence,

14 professional

salvors be held

wi.;J;l be held

to

the

standard

of

experts,

l~ 17
1.8

to the
Bentle

standard & Felton

of reasonable
Co .,

seaman.
437,

Oil 440

16 Screw Noah's Ark v.
f~961 \!:!'-

292 F.2d
salved

9.
service,

When a distinguishable

injury
of.

to

the

property a the
of

has

19 resulted
20

from the
it

negligence not only

persons in

undertaking of
award

salvage
award or

may result
forfeiture,

a diminution

21 Of a totaJ.
2~

~t
vessel
or

in

an a.f.firmative
the salvors.
II

damages
Ark

against

the

salving & felton

Oil

Screw Noah's

23 v.
24

Bentle

.,

292 F.2d
defined

437,

441 (196.1),
[emphasis

citing:

Norris,

Law of

Salvage,
injury from is

S 120 at

206

added]. from Id~

A

25 26
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"distinguishable" original peril

as "a harm distinct is being

the
at

which

the vessel

saved. "

.27 441.

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PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 2:03-cv-01599-FJM

Document 23

Filed 08/26/2005

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Case 2:03-cv-01599-FJM

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$
2. 3'

,
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IS

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Case 2:03-cv-01599-FJM

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STATE OF CALIFORNIA,

PROOF OF SERVICE

COUNTYOF LOS ANGELES

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I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to this action. My California, address is 12400 Wilshire Blvd., Suite 1300,.. Los Angeles, business 90025.

/X/ I hereby certify that on August 26, 2005, I electronically transmitted the attached document to the Clerk's 1. Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 8
9 Michael N. Poli Santin, Poli , Ball, P.L.C. 2999 North 44th Street, Suite Phoenix, Arizona 85018 Mr. Joseph J. Perrone DeOrchis & Partners, LLP 61 Broadway, 26~ Floor New York, New York 10006-2802

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500

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t$
1~

/x/

(FEDERAL)

of the
correct.

I declare United States on August 26,

under penalty of perjury under the that the foregoing is true and 2005

law

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Executed

a~~~~,
Susan Lira

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PROPOSED]

FINDINGS

OF FACT AND CONCLUSIONS OF LAW

Case 2:03-cv-01599-FJM

Document 23

Filed 08/26/2005

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