Judge sets Mitchell Aquatic Center pool judgment aside [The Daily Republic, Mitchell, S.D.]

Jan. 18--The company ordered to pay about $50,000 to the Mitchell Aquatic Club's insurance provider got that order set aside Tuesday morning at the Davison County Courthouse in Mitchell.

District Judge Tim Bjorkman had ordered Seaman Corp., of Wooster, Ohio, to pay Nautilus Insurance Co., of Scottsdale, Ariz., about $50,000 on Nov. 22 for damages caused by the collapse of a portable indoor lap pool at the MAC's North Main Street facility in 2010.

Seaman's role in the manufacturing of the pool was limited to the liner on the walls of the pool, according to the company.

The judgment was issued after Seaman Corp. failed to file any of the required court documents in response to a complaint filed last fall by Nautilus Insurance.

But Bjorkman set aside that judgment now that Seaman Corp. has involved itself in the case.

Attorneys for Artistic Coverings Inc., of Cerritos, Calif., and EZ Pool Products Inc., of California, also attended the hearing.

Artistic Coverings claims it only printed a line on the liner of the pool. EZ Pool manufactured and sold the pool to the MAC for $50,000.

Artistic Coverings requested this fall to be dismissed from the case, claiming South Dakota does not have jurisdiction and the company's work on the pool did not contribute to the pool's collapse.

Bjorkman said he will issue a ruling on whether to dismiss Artistic Coverings from the lawsuit at a later date.

Tuesday's proceedings all related to a complaint filed by Nautilus Insurance after it paid the MAC $40,405.70 for damages caused by the collapse of the portable indoor pool, which sent 85,000 gallons of water into neighboring businesses.

The attorney for Seaman Corp., Richard Casey, said confusion between Seaman Corp. and its insurance provider was the reason it filed no response to the original lawsuit.

Casey said Seaman Corp. had assumed its insurer would hire defense counsel on its behalf.

"Unfortunately, it assumed wrong," he told Judge Bjorkman on Tuesday. "We need to vigorously defend this case, because it is not our fabric that is at fault."

Seaman Corp. claims it only manufactured the liner for the sides of the pool and should not be liable to pay any damages caused by the pool's collapse.

Casey said an inspection of the pool in March 2010 blamed its collapse on five welding defects on the bottom of the pool.

Nautilus said in court that it has not determined a definitive cause of the pool collapse.

Attorney Kelsey Bunkers, appearing Tuesday for Nautilus Insurance via telephone from Bozeman, Mont., argued Seaman Corp. had ignored letters from Nautilus Insurance regarding the lawsuit before any judgment was made.

"Seaman Corp. was required to abide by the rules, and it did not," she said. "That is why the default judgment should remain."

After listening to arguments from both attorneys, Judge Bjorkman granted Seaman Corp.'s motion to set aside the Nov. 22</chron> judgment.

The motion was granted with terms allowing Nautilus Insurance to submit a claim for any additional attorney's fees or storage costs it incurred because of the delay caused by Seaman Corp.

The court then turned to Artistic Coverings' request to be dismissed from the lawsuit.

Justin Clarke, attorney for Artistic Coverings, said the company should be dismissed from the suit because it only printed a line on the liner for the MAC's pool and was not involved in manufacturing the pool.

He added because all the company's activities in the case occurred in California and it had no knowledge where the finished pool would be shipped, a South Dakota court has no jurisdiction over it.

Attorney Bunkers argued that Artistic Coverings knew, or should have known, that EZ Pool would sell its product in South Dakota.

Bunkers also disputed Artistic Coverings' purported role in the production of the pool's liner.

"We think (Artistic Coverings) provided more than just the printing," she said. "We think they provided the liner."

Clarke denied Artistic Coverings provided the liner for the MAC's pool.

The court then heard EZ Pool's cross claim against Artistic Coverings, in which EZ Pool is seeking to keep Artistic Coverings as a co-defendant in the suit

Attorney for EZ Pool, Shawn Nichols, said Artistic Coverings should remain part of the lawsuit because it is possible the damage to the vinyl liner could have happened while the liner was in Artistic Coverings' possession.

___

(c)2012 The Daily Republic (Mitchell, S.D.)

Visit The Daily Republic (Mitchell, S.D.) at www.mitchellrepublic.com

Distributed by MCT Information Services