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Showing posts from June, 2011

2d DCA Rules that Comprehensive Liability Exclusion for Injuries to Children Ambiguous

InNORTH POINTE CASUALTY INSURANCE COMPANY v. M & S TRACTOR SERVICES, INC., 36 Fla. L. Weekly D1365a (Fla. 2d DCA June 24, 2011), the Second District Court of Appeals of Florida has found that insurance policy which states that it does not apply to “ ‘Bodily Injury' sustained by the spouse, child, parent, brother or sister of any employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of ‘bodily injury' to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured” was properly found by trial court to be ambiguous. The court further found that the trial court properly found that coverage was not excluded for injuries to the son of an employee of the named insured who was injured when he fell from a tractor being operated by the employee in the course and scope of his employment with the named insured.

North Pointe issued this policy r…

Ex-port Commissioner Ralph Kennedy Pleads Guilty to Corruption Charges

The Florida Today reports that Ralph Kennedy, a former Canaveral Port Authority commissioner, pleaded guilty on June 21, 2011 to two felony counts of public corruption as part of an agreement with prosecutors. Brevard County Judge Robert Burger sentenced the 55-year-old Kennedy, owner of a Merritt Island construction company, to four years probation and ordered him to pay $3,059 to Florida’s Office of Statewide Prosecution to cover expenses. The plea followed months of negotiations between the Office of Statewide Prosecution and Kennedy’s attorney, Brian Onek, and ends a 20-month legal saga that ended Kennedy’s 19-year stint as a port commissioner.
The Florida Department of Law Enforcement arrested Kennedy in November, charging him with unlawful compensation or reward for official behavior and conspiracy to commit unlawful compensation or reward for official behavior, both felonies. Investigators said Kennedy used his position as a public official to advance business projects of friends…

U.S. Supreme Court Rules that Carrier Negligence Does Not Incorporate Proximate Cause Standard

In CSX TRANSPORTATION, INC. v. MCBRIDE, 22 Fla. L. Weekly Fed. S1197a (Jun. 23, 2011), the U.S. Supreme Court has held that the Federal Employers' Liability Act, which the Jones Act incorporates, does not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions. The Court also held that it is not error in FELA cases to refuse a jury instruction charge embracing stock proximate cause terminology and that the proper jury charge in FELA cases simply tracks language Congress employed, informing juries that a defendant railroad caused or contributed to a railroad employee's injury if railroad's negligence played any part in bringing about the injury.

In summary,Respondent McBride, a locomotive engineer with petitioner CSX Transportation, Inc., an interstate railroad, sustained a debilitating hand injury while switching railroad cars. He filed suit under the Federal Employers' Liability Act (FELA), which holds railroads liable for employees…

Norwegian Cruise Line Passenger Rescued After Going Overboard

The Maritime Executive reports today that a passenger aboard NORWEGIAN SPIRIT went overboard near New Orleans in the Plaquemines Parish on Sunday night, and was rescued by a NCL rescue boat immediately. In a statement from Norwegian Cruise Line, they stated that the incident took place at approximately 20:00 hours while travelling down the Mississippi River towards the Gulf of Mexico.  The 2,018-passenger ship had just embarked on a seven-night voyage bound for the Western Caribbean three hours prior before discovering a passenger had gone overboard.  The overboard male passenger is currently unidentified and NCL did not indicate the cause for the plunge off the vessel, however they did disclose that he was injured in the incident. Feel free to contact me at, or via LinkedIn at

Federal Judge Reduces Award to Carnival by Nearly $9M

U.S. District Judge Patricia Seitz has slashed nearly $9 million from a jury's verdict awarding $24.8 million to Carnival in a dispute with Rolls-Royce over a defective podded propulsion system for the QE2. The judge reduced the award after finding there was no evidence to support a finding by the jury last January of a breach of warranty of workmanlike performance. She said Carnival had to replace the bearing on the pod propulsion system on the QE2 because of a design flaw, not the bearing themselves.

The award, which now stands at $16.7 million, will now be the subject of an appeal to the U.S. Circuit Court of Appeals for the Eleventh Circuit.

If you have any questions concerning this decision or the history on the failings of the pod propulsion systems for cruise ships, please feel free to contact me at, or via LinkedIn at

Steering Defect to Blame in $25 Million WaveRunner Verdict

The Daily Business Review reports in the case of Perez v. Yamaha Motor Corp. that a Palm Beach jury awarded two victims of a WaveRunner accident $25 Million against Yamaha Motor Corp, claiming product liability. On Easter weekend 2005, Jaysell Perez, 14 and her best friend, Samantha Archer, 15, borrowed a Yamaha WaveRunner scooter from a family friend. Archer approached a boat in the Intracoastal Waterway near Currie Park in West Palm Beach and took her hand off the throttle to begin a turn but instead of turning, the WaveRunner collided with the 30-foot boat. Perez died in the collision and Archer suffered severe injuries. The families filed separate lawsuits and the cases were combined for a single trial.

The plaintiffs claimed that Yamaha knew of steering problems but failed to provide a proper warning or redesign. From 1986-2000, owner's manuals warned beginners were likely to release the throttle when headed toward an obstacle. In 2001, the warning was removed--the girls rod…

ATHOS I and the Reported Dilemma

On June 9, 2011, Tradewinds reported that Tsakos and the UK Club face a "dilemma" on whether or not to stick with the US government in the long-running pollution case of the ‘Athos I’. As reported by Tradewinds:

"The UK Protection-and-Indemnity (P&I) Club and Greece’s Tsakos Shipping & Trading are faced with a $177m decision in Philadelphia — whether to stick with the US government against oil major Citgo or try to turn against the US and force it to remunerate Tsakos in the costly pollution case of the 60,900-dwt Athos I (built 1983, sold and renamed Gazelle, scrapped 2008). Final appeals are due on Monday in what could shape up as a three-way fight among oil-terminal owner Citgo Asphalt Refining Co, the US government’s Oil Spill Liability Trust Fund (OSLTF) and Tsakos along with the UK Club. So far Tsakos and its P&I insurer have fought as a team alongside the US Department of Justice (DOJ) in a seven-year fight against Citgo. But they lost this first round…

Reinsurance claims harder to collect

The Daily Business Review is reporting that the eathquake and tsunami in Japan and other catastrophic events around the world could make reinsurance harder to collect if a hurricane hits Florida. Credit rating agency Fitch reported that natural disasters around the world have raised questions about the capital adequacy of reinsurance companies, which bear much of Florida's insured risk for windstorm damage. Reinsurance companies could try to offset the cost of surging disaster claims abroad by raising premiums, but their pricing power may be limited. Some leaders of reinsurance companies have been alluding to the possibility of double-digit pricing improvement on U.S. wind exposures for which many treaty renewals will be renegotiated. But expectations of dramatically improved pricing conditions in the reinsurance market may be overstated. Michael H. Braun, president and chief executive officer of 21st Century Holding Co. which insures homes in South Florida and other markets has s…

New arbitration case -- be careful in drafting arbitration clauses in Florida

BGT GROUP, INC. v. TRADEWINDS ENGINE SERVICES, LLC, 36 Fla. L. Weekly D1207a (Fla. 4th DCA Jun. 8, 2011). Contracts -- Sales -- Arbitration -- No error in denying motion to compel arbitration of dispute between seller and purchaser where arbitration clause was contained in seller's “Terms and Conditions,” which were referenced in quotation and purchase order, but not specifically described in or attached to those documents -- Reasonable view is that seller, as drafter of documents, did not intend to incorporate any “terms and conditions” where it did not provide specific description of them or attach them to quote and purchase order . If you would like a copy of this decision, please feel free to reach me at or through LinkedIn--my public profile can be found at .

Insured Loses on "Sole Negligence" Language

In Barden Mississippi Gaming LLC v. Great Northern Ins. Co., 2011 WL 1262264 (5th Cir. Apr. 6, 2011), the U.S. Court of Appeals for the Fifth Circuit held that an insurer did not have a duty to indemnify an additional insured because the policy provided coverage only for the named insured's "sole negligence" and the named insured was only found 50% negligent in the underlying action. In a previous appeal in the same matter, the Court held that the insurer had a duty to defend because it was possible that the additional insured could be found 100% liable. The court, however, also concluded that the question of indemnification was premature as the underlying case had not yet reached a verdict. Ultimately, the jury in the underlying action found the additional insured 50% negligent and the insured 50% negligent. As a result, the Fifth Circuit ruled that the insurer was not obligated to indemnify the additional insured for the judgment in the underlying case because the addi…