$950k Wrongful Death Settlement for Small Boat Accident

The Daily Business Review reports today on the case of Smith v. Romeu, Case no: 50-2011CA006736XXXXMB before Palm Beach Circuit Judge Lucy Chernow Brown, wherein the parties settled the case of a wrongful death on the eve of trial for $948,000.00.

The facts of the case are as follows: Romeu met Smith and his sister on the night of May 8, 2010 Beach. Romeu had recently bought a 34-foot speedboat and invited the Smiths aboard for a ride. Romeu gunned the boat and accidentally struck a navigational marker in the Intracoastal Waterway. At the last moment, Romeu made a sharp turn in a failed attempt to avoid the marker. The lurch of the boat threw Smith from the boat, impaling him through the torso on the marker and sinking him to the bottom. A fire and rescue diver retrieved the body about an hour later.

Smith's father filed the civil lawsuit on behalf of his son's estate, with himself and his wife as the estate's claimants. The son was 31 when he died and left no children.

The defendant did not concede liability. It also does not appear that the vessel owner filed limitation of liability proceedings. The case was set for jury trial beginning the week of June 7, though Romeu's attorneys repeatedly tried to get continuances of the trial date. The parties announced a settlement on June 1st.

Two insurance companies — Universal Property & Casualty Insurance Co. and SkiSafe — agreed to pay a combined total of $853,000. In addition, Romeu gave Smith's parents the boat, a 2000 Donzi, and a promissory note for a combined value of about $95,000.

If you are interested in receiving a complete e-copy of the DBR article, please feel free to contact me through this blog or at miamipandi@comcast.net.

Southern District Addresses Valuation in Policy

In SUMMIT TOWERS CONDOMINIUM ASSOCIATION, INC., v. QBE INSURANCE CORPORATION, 23 Fla. L. Weekly Fed. D265a (S.D. Fla. May 29, 2012)(Seitz, D.J.), the court found that where one section of policy provides for the insured to receive “actual cash value” for a loss and another section provides for “replacement cost,” the section providing for replacement cost provides that, “[i]f shown as applicable in the Declarations, the following Optional Coverages apply separately to each item,” and the Declarations page identifies the “Value Option” as “RC,” replacement cost is the value option in force under the policy.

Given the shortness of the opinion, the entire opinion is provided below:

QUOTE

AMENDMENT TO ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

THIS MATTER is before the Court following the Court's Order [DE-153] denying Defendant QBE Insurance Corporation's Motion for Partial Summary Judgment [DE-69]. During the pretrial conference, the parties and the Court identified a legal issue of insurance policy (Commercial Property Insurance Policy (No. QF2310-08) (“Policy”)) involving Valuation and the parties agreed to brief that issue for the Court. The Court has now considered Summit Towers' brief [DE-177], QBE's response [DE-178] and Summit Towers reply [DE-179]. For the reasons set fort below, the Court will enter summary judgment in favor of QBE finding that the “Valuation” section G.3 of the Policy completely supercedes Section E.8.

The parties disagree about how QBE will determine the value of property in the event of a covered loss.1 The Policy contains two sections relevant to valuation -- one provides for Summit Towers to receive “actual cash value” for a loss (see Section E.8.a-c) while the other provides for “replacement cost” (see Section G.3.a-f). Summit Towers argues that these two sections coexist and can be read together to determine the value of a covered loss under the Policy. The Court, however, agrees with QBE that Section E.8 has been superseded by Section G.3. Section G provides that, “[i]f shown as applicable in the Declarations, the following Optional Coverages apply separately to each item.” Policy, G [DE 69-3, p. 42 of 57]. The Declarations page, in turn, identifies the “Value Option” as “RC”. Id. at p. 4 of 57. The optional coverage Summit Towers purchased, “Replacement Cost,” set out at G.3 and identified in the declarations as “RC” is therefore the value option in force under the Policy.

Summit Towers disagrees and argues that only the phrase “actual cash value” in Section E.8. has been replaced by the phrase “replacement cost” from Section G.3. This construction would allow for subsection E.8.c. to remain a part of the Policy and ostensibly allow Summit Towers to obtain glass at the cost of replacement with safety glazing materials. Summit Towers' argument, however, does not give effect to all of the provisions of the Policy and renders the subsections of G.3. superfluous. Moreover, it is not possible to harmonize all of the sections of the Policy under Summit Towers' interpretation. The subsections of E.8 provide exceptions to the payment of actual cash value to Summit Towers and identify scenarios where QBE will pay at replacement cost for covered losses. If the Court merely replaces the phrase “actual cash value” with “replacement cost” in Section E.8, that section would then provide that Summit Towers would be paid at replacement cost for a covered loss except in certain circumstances where it would still be paid at replacement cost. It is nonsensical to interpret the Policy in the manner Summit Towers suggests. The Court must reject this interpretation and concludes that Section G.3 completely replaces Section E.8 of the Policy. This construction gives effect to each provision of the Policy and comports with the plain language of that agreement. City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla. 2000) [25 Fla. L. Weekly S206a] (“All the various provisions of a contract must be so construed, if it can reasonably be done, as to give effect to each.”).

Based on the forgoing, it is

ORDERED that this Order shall amend the Court's Order [DE-153] denying Defendant QBE Insurance Corporation's Motion for Partial Summary Judgment [DE-69]. Summary Judgment is hereby GRANTED in favor of QBE on the policy interpretation issue addressed herein such that Section G.3 of the Policy completely supercedes Section E.8.

__________________

1Generally, under Florida law, “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]; see also Fla. Stat. § 627.419(1) (“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy.”). Policy terms are given their plain and ordinary meaning and read in light of the skill and experience of ordinary people. Anderson, 756 So.2d at 34; see also Vencor Hosps., Inc. v. Blue Cross Blue Shield of R.I., 284 F.3d 1174, 1180-81 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C315a].

* * *

UNQUOTE

If you have any questions regarding this decision, please feel free to send them to me via this blog or at miamipandi@comcast.net.  

Concordia Survivors File Lawsuit in Fort Lauderdale

The Sun-Sentinel reports that six months after the Costa Concordia cruise ship tragedy, another lawsuit has been filed against Carnival Corp. & PLC, owner of the ill-fated ship, along with subsidiary Costa Crociere (Cruises). The July 13 suit, filed in Fort Lauderdale in the U.S. District Court, alleges several charges against Carnival and Costa, including fraudulent misrepresentation, maritime negligence and intentional infliction of emotional distress. Plaintiffs Amanda, Adrian and Brandon Warrick were among the more than 4,000 passengers and crew aboard the Concordia when it hit submerged rocks and capsized near a Tuscan island on Jan. 13. Miami attorney Gabrielle Lyn D'Alemberte, who represents the Warricks, said Wednesday the Warricks have a right to file a lawsuit here and not in Italy as the cruise ticket contract dictates, because they purchased their cruises on Costa's U.S. website. It also would be prejudicial to take it to Italy as they'd be barred from litigation there since there's no contingency for personal injury in this case, she noted.

The full Sun-Sentinel article can be found here =>
CONCORDIA SURVIVORS FILE LAWSUIT IN FORT LAUDERDALE-- Sun-Sentinel, http://www.sun-sentinel.com, July 19, 2012.

However, Ms. D'Alemberte's statements that it would be prejudicial to take the plaintiffs' cases to Italy because they would be barred from litigating there has been disputed by a number of Italian sources. Amongst these sources includes Italian lawyer and local maritime law professor, Attilio Costabel, who presented at the Maritime Law Association joint meeting of the Cruise Lines and Passenger Ships and Maritime Torts and Casualties Committee. Mr. Costabel made clear in his presentation in May 2012 that there were various remedies available to plaintiffs in Italy. It will be interesting to see which lawyer is proven correct.

If you are interested in contacting me, please feel free to do so at miamipandi@comcast.net or mov@chaloslaw.com.  

FL Sup. Ct. Rule Changes Affect All Florida Attorneys

The Florida Supreme Court recently issued an opinion which makes MAJOR changes to the way pleadings and papers are served.  You need to familiarize yourself and your staff with these changes ASAP since the rules will take effect as of September 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases.  The provisions in the rules are mandatory.

The short version is that ALL pleadings and papers must be served via email. This opinion significantly changes the way pleadings are served in Florida state court cases. 

The opinion is 208 pages long, so this blog post is not intended to serve as an exhaustive list of all of the changes. However, I will start with two quick quotes from the opinion regarding implementation of these changes.

First, e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on September 1, 2012.

Second, when the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions [footnote omitted] of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013, at 12:01 a.m. (the date on which electronic filing will be mandatory in these divisions).

Those quotes probably got your attention. If so, read on.

This blog post summarizes some of the changes by quoting the significant amendment provisions, but you really need to read the opinion to understand the full impact of all of the changes.

The main change is that the Florida Supreme Court created a new Florida Rule of Judicial Administration 2.516 - Service of Pleadings and Papers which will control service of pleadings and papers (after the initial pleading) in various judicial divisions. This rule was modeled after current Florida Rule of Civil Procedure 1.080 "Service of Pleadings and Papers" and includes many of the same provisions and requirements for service.

However, new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) "Service by Electronic Mail 'e-mail'”, upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office.Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service. Additionally, applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice are not required to comply with rule 2.516.

Subdivision (b)(1) also includes provisions addressing the time and format for e-mail service. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.

As noted, the other subdivisions in rule 2.516 closely track the language in rule 1.080, modified to reflect the move to e-mail service. Subdivision (c) "Service; Numerous Defendants" describes procedures for service when the parties are “unusually numerous”; subdivision (d) "Filing" requires that all original documents must be filed with the court either before service on the opposing party or immediately thereafter; and subdivision (e) "Filing Defined" states that documents are deemed “filed” when they are filed with the clerk of court. Subdivisions (g) "Service by Clerk" and (h) "Service of Orders" address service of notices or other such documents by the clerk, and service of orders or judgments entered by the court, respectively. These subdivisions authorize, but do not require, the clerks and the courts to utilize e-mail service if they are equipped to do so. 

In addition to new rule 2.516, the Court also amended the rules of procedure to delete existing provisions in the rules describing service, and add new language referencing rule 2.516.

There’s also a change to Rule 2.515 of the Rules of Judicial Administration to provide that the signature blocks on pleadings must now also include a primary email address and an optional second email address.

These rules will be in effect before you know it and thus, if you have not already done so, its time to train staff on these new requirements, be prepared to revise pleading forms to reflect the new signature block and “certificate of service” requirements, implement new procedures for service in accordance with rules, and file notices of email addresses in all pending cases.

Good luck in meeting these new requirements. A copy of the Florida Supreme Court's decision can be found here => http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf. If you are interested in contacting me, you may do so at miamipandi@comcast.net or mov@chaloslaw.com.  

Jury Finds Overwork of Crew Recoverable Under Jones Act

In Skye v. Maersk Line, 11-21589-CIV-ALTONAGA, a Miami federal court jury decided that extreme, compulsory overwork of a ship's crew member impaired his physical health and amounted to a shipboard condition for which the Jones Act is applicable.

On May 16, the case resulted in a significant jury award against a worldwide cargo shipping company. Although the $2.36 million award was reduced to $590,000 because of comparative negligence, this case of first impression may minimize the distinction between physical and nonphysical injuries established by Consolidated Rail Corp. v. Gottshall , 512 U.S. 532 (1994).

In Gottshall, the plaintiff, a Conrail employee, watched a fellow worker die of a heart attack while on duty. Gottshall's boss put off seeking medical treatment when the worker was stricken, kept the crew working and left the body at the work site for the rest of the day. Shortly thereafter, Gottshall entered a psychiatric facility. He sued Conrail under the Federal Employers' Liability Act ("FELA"), claiming the distress that Conrail's managers put him through caused his illness. Jones Act cases follow the case law interpretations under FELA.

The trial court dismissed the case. However, the U.S. Court of Appeals for the Third Circuit reversed, finding Gottshall's injuries were "genuine and severe" and could be pursued under FELA's liberal policy for on-the-job injury. The U.S. Supreme Court took a different view. Rejecting the Third Circuit's application of FELA, Justice Clarence Thomas wrote for a 7-2 court majority that adopted from common law the "zone of danger" test. This test limits relief to employees who are physically injured as the result of emotional stress caused by employer negligence.

In this recent case, William Skye, a chief mate aboard cargo vessels operated by Maersk Lines, had to retire 10 years early after he developed left ventricular hypertrophy. This condition makes it difficult for the heart to pump blood and sharply increases the risk of a heart attack. Skye alleged and proved that his cardiac problem resulted from intentionally being overworked by Maersk, to the point where he slept fewer than six hours a night for four years, and had shifts of almost 16 hours.

Skye sued under the Jones Act, which was enacted to provide a remedy to seamen injured in the course of their duties. The Jones Act gives crew members a remedy for intentionally or negligently caused injuries as well as injuries caused by a vessel's unseaworthy condition. It is the seamen's equivalent of FELA for railway employees, and courts have consistently held that case law under each statute is applicable to the other.

In Skye, Maersk Lines sought summary judgment based in part on the Gottshall distinction between physical and nonphysical injuries. U.S. District Judge Cecilia Altonaga let the case go to the jury. She refused to conclude as a matter of law that Gottshall was dispositive. The judge acknowledged the jury could decide injuries such as heart attacks may result from nonphysical stress and fall within the Gottshall rule.

Altonaga found that the evidence in Skye created a genuine issue of material fact. In testimony, Skye's cardiologist tied his patient's physical ailment directly to his working conditions. According to the plaintiff's case, extreme and persistent sleep deprivation, such as the deprivation Skye suffered, can amount to a physical condition; it is not a mere emotional stresser.

Apparently, the jury was satisfied by the proof that a direct causal relationship existed between Skye's overexertion and his cardiac condition. The jury found that Maersk was negligent and its negligence was the legal cause of Skye's injuries.

This case is currently being fought in post-trial motions. Regardless of what occurs in Skye post trial, it is expected that unless the parties are willing to settle for reasonable amounts, the case will be appealed as it is one potentially opening shipowner liability for physically damaging "overwork" of crewmembers and setting the stage for what the Daily Business Review reports in their article of June 14, 2012 as "discourag[ing] ship owners from the irresponsible practice of maximizing profits without regard for crew well-being even if it jeopardizes health."  

If you are interested in receiving a copy of the jury's verdict in Skye or you have any questions regarding this case,  please feel free to contact me to obtain a copy at either miamipandi@comcast.net or mov@chaloslaw.com.