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Karbel v. Comerica Bank7/31/2001
ff's claim for non-economic damages should be dismissed because the DOHSA precluded the recovery of such damages.
The trial court essentially agreed with defendants' arguments and, concluding that the DOHSA applied under the circumstances, granted defendants' motion for summary disposition. Plaintiff now appeals.
II.
As a preliminary matter, we reject plaintiff's contention that the trial court erred when it ruled that plaintiff had the burden of proving that the sinking occurred within three miles of shore. Plaintiff filed a three-count complaint that alleged, in part, that decedents' deaths occurred within one marine league from shore, thereby entitling plaintiff to bring a wrongful death action under general maritime law. "Each party has the burden to prove its own cause of action." League General Ins Co v Catastrophic Claims Ass'n, 165 Mich App 278, 293; 418 NW2d 708 (1987), rev'd on other grounds 435 Mich 338; 458 NW2d 632 (1990). Moreover, the DOHSA does not change the burden of proof with regard to tort claims. In re Marine Sulphur Queen, 460 F2d 89, 101, n 2 (1972). Because plaintiff's cause of action was based in part on an allegation that the deaths occurred within three miles of shore, we conclude that the trial court did not err in determining that plaintiff had the burden of establishing that allegation.
Plaintiff's related argument that a wrongful death action under general maritime law is not limited to coastal waters and defendant therefore has the burden of establishing the applicability of the DOHSA is likewise meritless. See Moragne v State Marine Lines, Inc, 398 US 375; 90 S Ct 1772; 26 L Ed 2d 339 (1970). Cf. Miles v Apex Marine Corp, 498 US 19; 111 S Ct 317; 112 L Ed 2d 275 (1990); Offshore Logistics, Inc v Tallentire, 477 US 207; 106 S Ct 2485; 91 L Ed 2d 174 (1986) (the DOHSA cannot be supplemented with state law remedies); Mobil Oil Corp v Higginbotham, 436 US 618, 625; 98 S Ct 2010; 56 L Ed 2d 581 (1978).
III.
The essence of plaintiff's appeal is his contention that the trial court erred in concluding there was no genuine issue of material fact regarding the location of the sailboat when it sank. We disagree.
On appeal, this Court reviews de novo a trial court's decision regarding a summary disposition motion. Henderson v State Farm Fire & Casualty Co, 460 Mich 348, 353; 596 NW2d 190 (1999). "A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim." Libralter Plastics, Inc v Chubb Group of Ins Co, 199 Mich App 482, 485; 502 NW2d 742 (1993). The standard to be used in reviewing such a motion is set forth in Quinto v Cross & Peters Co, 451 Mich 358, 361-363; 547 NW2d 314 (1996):
MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways.
"First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 US 331 (citations omitted).]"
In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadin
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