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Sea Trek2/16/2000
AFFIRMED
Plaintiff/appellant Sea Trek Inc. appeals a summary judgment in favor of defendant/appellee Sunderland Marine Mutual Insurance Company (Sunderland). The trial court found that an endorsement specific to fishing vessels excluded coverage for the damages claimed by Sea Trek to the fishing boat F/V Brigette Ann. We affirm.
The trial court's reasons for judgment set forth the history of the present case as follows:
Sea Trek purchased a policy of insurance, number BG0205, from [Sunderland] for its seventy-eight foot fishing vessel Brigette Ann. The paid policy was effective April 25, 1994 and provided coverage of Hill and Machinery at $250,000 and P & I at $250,000 in identical policies for both 1994-1995 and 1995-1996 policy terms.
The Hull and Machinery standard form contains an Inchmaree Clause which provides in pertinent part:
This insurance also covers loss or damage to the vessel named herein caused by...Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boiler, breakage of shafts, or any latent defect in the machinery or hull (excluding the cost and expense of replacing or repairing the defective part); Negligence of master, mariners, engineers or pilots, provided such loss or damage has not resulted from want of due diligence by the assured, the owners or managers of the vessel, or any of them.
The following type-written Special Terms and Conditions appear in "Fishing Vessels Endorsement No.1":
CLAUSE 21. MACHINERY DAMAGE CLAUSE:
WARRANTED NOT LIABLE FOR LOSS OR DAMAGE TO MAIN ENGINE AND AUXILIARY MACHINERY AND APPURTENANCES UNLESS DIRECTLY CAUSED BY STANDING, SINKING, FIRE OF COLLISION WITH ANOTHER VESSEL, EXCEPT TO THE PROPELLER AND PROPELLER SHAFT.
CLAUSE 22. ENGINE DAMAGE CLAUSE (RETRIEVAL OF NETS):
IN THE EVENT OF ENGINE DAMAGE, BREAKDOWN OR IMPAIRMENT OF OPERATION, IT IS UNDERSTOOD AND AGREED THAT ANY SUBSEQUENT DAMAGE OR AGGRAVATION OF EXISTING DAMAGE CAUSED BY CONTINUED OPERATION OF THE ENGINE TO RETRIEVE FISHING GEAR IS SPECIFICALLY EXCLUDED.
On July 4, 1994, the first of two engine failures occurred on the F/V Brigette Ann. On June 15, 1995, Sea Trek filed a Petition against Sunderland to recover costs of engine repairs and expenses associated with the July 4, 1994 accident under its policy of insurance. 24th J.D.C. No. 479-605. (After Sunderland removed this case to federal court, Judge Morey L. Sear, found no diversity jurisdiction and remanded this case back to the state court by order of July 24, 1995).
On August 25, 1995, Sunderland filed its first Motion for Summary Judgment contending that its policy of insurance as a matter of law does not provide coverage for Sea Trek's claim and that defendant did not act in an arbitrary and capricious manner in failing to pay petitioner's claim. On November 3, 1995, Sea Trek filed its Cross Motion for Summary Judgment contending that the exclusion clause 21 conflicts with the Inchmaree clause of the policy and also seeking the stipulated damage amount of $22,610.45 after subtracting the deductible. On November 28 1995, Judge pro tempore Frank V. Zaccaria, Sr. heard the motion, and on March 18, 1996 he granted Sea Trek's motion and awarded stipulated damages and costs and dismissed Sunderland's motion based on a finding that the policy was "vague and ambiguous to be construed in the manner most favorable to an insured."
On December 11, 1996, the Fifth Circuit Court of Appeal vacated summary judgment for plaintiff and remanded the case for further proceedings:
The trial court apparently conclu
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