The US Court of Appeals for the Fifth Circuit affirmed the award of attorney fees of almost $300,000 to the prevailing plaintiff in an allision case. In the case of Moench v. Marquette Transportation decided by the 5th Circuit on September 29, 2016, the trial court had found that the defendant tug and barge owner acted in bad faith and for oppressive reasons in its defense of the case. In so finding, the American Rule, where each party is to bear its own costs, was not followed. Instead, the trial court found and the appeals court affirmed the award of fees and costs because: (i) the tug and barge allided with a moored fiberglass hulled EKWATA; (ii) the damages were so extensive that the EKWATA was declared a constructive total loss by all the expert surveyors; (iii) defendant Marquette contested liability throughout trial although its captain admitted to the facts of the allision; and (iv) the advocacy of the defendant was not an aggressive litigation posture, but instead abusive of the judicial process and in bad faith through the attempt to use expert testimony that was unreliable and based on “glaringly” incorrect information.
For a copy of the full decision, go to: http://www.ca5.uscourts.gov/opinions/pub/15/15-31105-CV0.pdf.