Miami Shipping Law

In   Miele v. Certain Underwriters at Lloyd’s of London , Case No. 13-14166 (11 th Cir. Mar. 17, 2014), the Eleventh Circuit in another unpublished decision has found that exclusion for: " The cost of repairs or replacing any part of Your Boat by reason of wear and tear, gradual deterioration, osmosis, wet or dry rot, corrosion, weathering, marring, scratching, denting, vermin, pets or marine life, or electrolytic or galvanic action" is not ambiguous. In Miele , an insured’s 32-foot vessel sank while docked because water entered through what a surveyor concluded was a “degraded and rotten” air conditioning hose, which cause was not disputed.  Underwriters denied coverage under the insured’s yacht insurance policy based upon the exclusion. In the insured’s suit against the insurers, the United States District Court for the Southern District of Florida granted summary judgment to the insurers.   On appeal, the insured argued that the exclusion ...

Under Florida law, the duty to defend determination is made by looking only at the terms within the  insurance policy and the allegations within the complaint.  Generally, extrinsic evidence may not be considered.  However, in the case of Composite Structures, Inc. v. Continental Insurance Co ., Case No. 12-15866 (11th Cir. Mar. 20, 2014) (unpublished), the United States Court of Appeals for the Eleventh Circuit (applying Florida state law) recognized an important exception to this general rule. When an insurer’s coverage denial is based on factual issues that ordinarily would not be alleged in the complaint, the insurer may consider extrinsic evidence outside of the complaint. The underlying lawsuit was brought by two seamen who sustained carbon monoxide poisoning while aboard a boat.  The seamen sued the insured boat manufacturer for negligence and strict liability, and the insured tendered its defense to its insurer. The insurer disclaim...

Today, I had the pleasure of being part of a Maritime Panel at my alma mater , St. Thomas University School of Law. Joining me on the Panel were other St. Thomas alumni, Christine M. Dimitriou of Mase Lara Eversole and Kerry A. Nierenberg of Lipcon, Marguiles, Alsina and Winkleman. Photo of Carnival Triumph The topics discussed were Class Actions against cruise lines, the operational realities of a Costa Concordia tragedy occurring in the U.S., exclusions in marine insurance policies, unseaworthiness and the current status of punitive damages for unseaworthiness and other maritime claims. However the topic which garnered the most lively discussion was the current state of the law regarding ship owner liability for negligence of ships' doctors and medical staff. Under Mascolo v. Costa Crociere, S.p.A ., 726 F. Supp. 1285 (S.D. Fla. 1989), a ship operator has no vicarious liability for negligence of a ship's doctor on the ground that it has no control over the physic...

This week is an active one for the Florida Supreme Court. The first case up for discussion is State Farm Mut. Auto. Ins. Co. v. Curran , SC12-157 (Fla. Mar. 13, 2014). After the Plaintiff was rear-ended by an underinsured motorist (UM), Plaintiff requested her $100,000 UM policy limits from State Farm. Plaintiff indicated that her damages were estimated to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome. State Farm responded that Plaintiff must schedule a compulsory medical examination (CME) pursuant to the terms of the policy. Plaintiff refused to attend a CME and instead filed suit against State Farm. The trial court entered judgment against State Farm for the UM policy limits. The court of appeal affirmed, holding (1) Plaintiff breached the contract when she failed to attend the CME; but (2) State Farm must plead and prove prejudice to avoid liability based on noncompliance with the CME clause, and State Farm failed to meet its burde...

On October 9, I blogged on the case of  McBride v. Estis Well Service , No. 12-30714 (5th Cir. Oct. 2, 2013),    where  a panel of the U.S. Court of Appeals for the Fifth Circuit ruled that seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.  The court found that previous decisions, to the extent that they denied recovery of punitive damages for maritime liability sounding in unseaworthiness, read too much into prior Supreme Court and appellate court rulings on related, but different, issues. You can find my discussion on that case here=>   McBride Discussion . At that time I noted that this was a potentially a major decision, likely to be appealed and certainly to generate discussion. Now, a majority of the circuit judges have voted in favor of granting the defendant's petition for rehearing en banc. You can find the en banc order here=...

In Offshore of Palm Beaches, Inc. v. Lynch , No. 13-11092 (11th Cir. Feb. 3, 2014), Offshore appealed the district court's order permitting a lone claimant to pursue personal injury claims in state court after Offshore had invoked the Limitation of Liability Act (Limitation Act), 46 U.S.C. sec. 30501. The court concluded that the district court did not abuse its considerable discretion in determining that the claimant could proceed first in state court with her tort claim before the district court adjudicated the boat owner's efforts to limit its liability to the value of the vessel. Accordingly, the court affirmed the judgment of the district court. While the holding of the case is not of itself earth-shattering, the case provides an excellent summary of appellate jurisdiction over admiralty matters involving injunctions. If you or your client are considering whether an admiralty matter is appealable, this decision may be of importance to you. If you are interested i...

In  Embroidme.Com, Inc. v. Travelers Prop. Cas. Co. of Am ., 2014 U.S. Dist. LEXIS 7715 (S.D. Fla. Jan. 23, 2014) (Marra, J.), the United States District Court for the Southern District of Florida considered an insurer’s obligation to reimburse its insured for pre-tender defense costs under Florida law and whether its letter disclaiming such costs is governed by Florida Claims Administration Statute, Fla. Stat. § 627.426(2). The facts are as follows: Travelers insured Embroidme.com under a general liability policy with web site injury protection.  Embroidme.com was named as a defendant in an underlying copyright infringement lawsuit in April 2010.  On June 28, 2010, Embroidme.com retained counsel to defend it in the lawsuit.  However Embroidme.com did not tender the suit to Travelers until October 2011.  Travelers subsequently agreed to provide its insured with a defense, but disclaimed any coverage obligation with respect to Embroidme.com’s pre-t...