Who Decides Damages in a Seaman's Personal Injury Action

In Clausen v. Icicle Seafoods, Inc., Case No. 85200-6 (Mar. 15, 2012) (en banc), the Washington Supreme Court was asked to decide on an appeal involving a maritime claim for maintenance and cure whether, under federal maritime law, a judge, instead of a jury, awards attorney's fees following the jury award of compensatory and punitive damages in favor of an injured seaman against the employer for willful failure to pay maintenance and cure. Respondent Dana Clausen worked on board Appellant Icicle Seafoods' Bering Star as second engineer when he sustained injuries. Respondent encountered persistent difficulties in getting Icicle and its adjuster Spartan, to meet its obligation to pay him maintenance and cure during his recovery. Icicle paid Respondent $20 per day to cover lodging, utilities, and meals. Respondent resorted to living in a recreational vehicle with a leaking roof and with no heat, air conditioning, running water, or toilet facilities. Additionally, Icicle delayed or refused to pay for treatment that Respondent's doctors recommended. In a report to Icicle, Spartan confirmed that Respondent's injuries were likely career-ending. Icicle filed suit in federal court against Respondent to terminate Respondent's right to maintenance and cure. Respondent filed the present action and Icicle's suit in federal court was dismissed. Respondent sought damages for Icicle's negligence under the Jones Act (46 U.S.C. 30104), unseaworthiness of the Bering Star, and wrongful withholding of maintenance and cure. The jury found Icicle negligent under the Jones Act, and that Icicle was callous or willful and wanton in its failure to pay maintenance and cure. Upon review, the entire Washington Supreme Court concluded that under federal maritime law, the trial court calculates an attorney's fee award related to a maintenance and cure action, and the punitive damages award as determined by the jury here, based on the callous or willful and wanton withholding of maintenance and cure, was proper.

A link to the complete Clausen decision can be found here: => http://law.justia.com/cases/washington/supreme-court/2012/85200-6-0.html

If for some reason, you are unable to utilize the link to this decision, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com and I would be more than happy to send you a copy of the decision.

Non-Resident Defendants Subject to Personal Jurisdiction in Florida

In KITROSER v. HURT,  37 Fla. L. Weekly S237a (Fla. Mar. 22, 2012), the Fourth District Court of Appeals (50 So. 3d 62 (Fla. 4th DCA 2010)) issued an application for review of its decision certifying an issue of great public importance to the Florida Supreme Court, to wit,

WHERE AN INDIVIDUAL, NON-RESIDENT DEFENDANT COMMITS NEGLIGENT ACTS IN FLORIDA ON BEHALF OF HIS CORPORATE EMPLOYER, DOES THE CORPORATE SHIELD DOCTRINE OPERATE AS A BAR TO PERSONAL JURISDICTION IN FLORIDA OVER THE INDIVIDUAL DEFENDANT?

The Florida Supreme Court  held that "[w]here an individual, nonresident defendant commits negligent acts in Florida, whether on behalf of a corporate employer or not, the corporate shield doctrine does not operate as a bar to personal jurisdiction in Florida over the individual defendant." The Supreme Court noted that the plaintiff alleged without controversion that while the defendant's employees were personally in Florida, each engaged in some form of negligent conduct, either by training or supervision which contributed to a death. The defendant's employees did not contest that they were in Florida, nor did they contest that they engaged in some form of conduct, training, or supervision of another employee in Florida. As a result, the Florida Supreme Court that "[t]he corporate shield doctrine, therefore, is inapplicable and does not exclude the [defendant's] employees from the exercise of personal jurisdiction by Florida courts."

This decision is important, as there are various decisions in Florida which suggest "that nonresident corporate defendants will not be subject to Florida's long-arm statute despite acting tortiously in Florida because their acts were performed on behalf of corporate employers." These decisions include Radcliffe v. Gyves, 902 So. 2d 968 (Fla. 4th DCA 2005), and Snibbe v. Napoleonic Society of America, 682 So. 2d 568 (Fla. 2d DCA 1996). The Florida Supreme Court specifically disapproved these decision to the extent they may so suggest.

If you are interested in receiving a complete copy of this decision, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com.

Derecktor Shipyard Improvements Coming by October 2012

I have received the latest information from Doug Morrison, Business Development Manager for Derecktor of Florida. He has advised that Derecktor has some onsite improvements/new travel lift (820 ton) that should be up and running around the Ft Lauderdale Boat Show. The city has also started dredging the Dania Cut to 17’ for completion around February of next year. Below is a brief bit of the Derecktor Florida yard which includes background, services & current capabilities.

Doug's message goes on to explain: "Derecktor Florida has 40 years of experience with service, repair and refit work. The location covers more than 17 acres along the Dania Cut Off Canal, less than 1 mile from the Port Everglades entrance. As South Florida’s most complete marine repair facility, Derecktor Florida caters mainly to power, sail and sportfish yachts and acts as a pole of attraction in the busy Florida waters for a large fleet of cruising and racing yachts in need of repairs or major refits.

Services Include:

- Propulsion/Auxiliary: service and repair, all makes

- Shaft & Prop: Alignment, repair, ABS approved, stainless steel clad welding of shafts

- Custom metal fabrication: Aluminum, stainless steel, titanium, bronze, ABS certified welders

- Custom Joinery work: Award-winning cabinetry shop, all interior, teak decking, all woods

- Composite work: Carbon fiber, epoxy, polyester, vacuum-bagging, high-tech cores

- Paint/Finish: Brightwork, topsides, superstructure, non-skid, bottom paint, US Paint (Awlgrip), International, Ameron, Pettit, and Dupont (Imron)

- Rigging: Standard, Running and Hardware

Facility Site:	17+ acres
Out-of-water shed space:	40,000 sq. ft. (3,720m)
Dockage space:	4,000 ft. (1,220m)
Slips/Dockage:	26 covered slips 23 uncovered slips 46 storage garages
Power:	480 volt 3 phase 208 volt single and 3 phase 110 volt single phase
Lifts:	600-ton elevator platform w/rail transfer system 150-ton Travelift 60-ton Travelift
Cranes:	35 ton crane
Vessel length:	185' maximum
Vessel beam:	34' maximum (10.4m)
Draft:	14' maximum (4.3m)
Height:	Power lines over Dania Cutoff Canal at 120' (36.6m)"

If you want more information, you can reach Doug at mobile: 954 319 6650, office: 954 920 5756 x 116 or by email at morrisond@derecktor-florida.com or you can read more on Derecktor's website at www.derecktor.com.

Mispresentation Case Defended on Misrepresentation Made in Good Faith

In the case of Borgen v. A&M Motors, Inc., the Alaska Supreme Court considered a consumer law case that will be of interest to those involved in the buying and selling of vessels and other transportation goods.

 

The issue presented to the Supreme Court in this case was whether under the Unfair Trade Practices and Consumer Protection Act, a misrepresentation by a seller of a used motor home is subject to a defense that the misrepresentation was made in good faith. The Plaintiff, Robert Borgen, bought a used Travelaire motor home from A&M Motors, Inc. in 2004. The motor home had previously been owned by Thom and Linda Janidlo; the Janidlos traded in the vehicle to A&M Motors about two weeks before Borgen bought it. When the Janidlos traded in the motor home, they indicated that it was a 2002 model. At some point, someone changed the model year to 2003 on the documents at A&M Motors. The title from the State of Alaska showed that the motor home was a 2003 model, but the vehicle identification number (VIN) indicated that the motor home was a 2002 model. Both trial experts testified that the tenth digit of a VIN of a chassis indicates the model year of the chassis, but their testimony as to whether the same holds true for the VIN of a coach was unclear. The VIN on the chassis is the VIN on the vehicle’s title, but a motor home’s model year is determined by the model year of the coach. A&M Motors sold the Travelaire to Borgen as a 2003 model. In August 2005, Borgen discovered documents in the motor home indicating the motor home was actually a 2002 model. He contacted A&M Motors to complain; the only compensation they offered him was a $1,000 service contract.

Borgen sued A&M Motors, pleading three causes of action: (1) misrepresentation, (2) violation of the Unfair Trade Practices and Consumer Protection Act (UTPA), and (3) breach of contract. Borgen moved for summary judgment on his UTPA claim in February 2008. The trial court denied that motion, and a jury ultimately decided that A&M Motors had not engaged in an unfair or deceptive act in its dealings with Borgen. Finding that the trial court did not err by finding the UTPA implied an unknowing affirmative misrepresentation of material fact would not give rise to liability, the Supreme Court affirmed the trial court's judgment with respect to Borgen's UTPA claims, but remanded for further proceedings on treble damages.

If you are interested in receiving the full decision, please click this link => http://law.justia.com/cases/alaska/supreme-court/2012/s-14073.html. If for some reason you are unable to access this decision, please feel free to contact me to obtain a copy by writing me at miamipandi@comcast.net or mov@chaloslaw.com.

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