FLORIDA APPELLATE COURT RULES THAT FLORIDA’S OFFER OF JUDGMENT / PROPOSAL FOR SETTLEMENT STATUTE CONFLICTS WITH FEDERAL MARITIME LAW AND THUS A SEAFARER CANNOT RECOVERY ATTORNEY’S FEES BASED ON THAT STATUTE.
ROYAL CARIBBEAN CRUISES, LTD., Appellant,
v. Byron COX, Appellee.
2014 WL 1385885
District Court of Appeal of Florida, Third District.
No. 3D09-2712. | April 9, 2014.
Seaman brought action against cruise line employer, asserting claims for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness. The Circuit Court, entered judgment on jury verdict for seaman and awarded attorney fees based on offer of judgment. Employer appealed award of attorney fees. The District Court of Appeal affirmed. On rehearing en banc, the District Court of Appeal, held that Florida’s offer of judgment statute conflicted with federal maritime law, and thus seaman could not recover attorney fees based on that statute.
Royal Caribbean Cruises, Ltd. (“RCCL”) appeals an order awarding seaman Byron Cox attorney’s fees pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes (1997), following a jury verdict in his favor in an admiralty case. On August 22, 2012, we affirmed the order awarding fees, relying on Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992). RCCL seeks rehearing en banc, requesting that this Court recede from Modesto. We grant RCCL’s motion for rehearing en banc, withdraw our prior opinion and substitute the following in its place. Cox filed the underlying action against RCCL to recover for injuries he sustained while employed aboard an RCCL vessel. He asserted claims for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness. Cox served an offer of judgment on RCCL pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79. RCCL moved to strike the offer of judgment, arguing that section 768.79 was inapplicable in this case because it conflicted with federal maritime law. In response, Cox cited Modesto, 614 So.2d at 520, which holds that there is no conflict between section 768.79 and federal maritime law. Following trial, the jury found in favor of Cox and he sought attorney’s fees based on the offer of judgment. The trial court agreed with Cox’s position, denied RCCL’s motion to strike, and found that Cox was entitled to attorney’s fees and costs. The trial court awarded Cox $245,856.87 in fees and costs, and appeal ensued. On appeal, RCCL argued, as it did in the trial court, that the attorney’s fee award is impermissible as such award pursuant to Florida’s offer of judgment statute conflicts with maritime law. Recognizing that Modesto is on point, and that the prior panel was bound to follow it, RCCL requests that this Court recede from Modesto en banc and follow federal maritime law, which holds that attorney’s fees may not be awarded pursuant to state fee-shifting statutes in an admiralty case. After discussing a number of cases regarding the issue, the en banc court agreed that Florida’s offer of judgment statute conflicts with the general rule of federal maritime law that parties pay their own fees absent an exception, not applicable here.
The en banc panel reversed the portion of the trial court’s order awarding Cox attorney’s fees.
IN PASSENGER SLIP AND FALL ACTION ABOARD HOLLAND AMERICA VESSEL, COURT DENIED CRUISE LINE’S MOTION FOR SUMMARY JUDGMENT AND HELD THAT THE ROUGH WEATHER CONDITIONS THAT ALLEGEDLY CAUSED AND/OR CONTRIBUTED TO THE FALL WERE UNIQUE MARITIME CONDITIONS AND THEREBY HELD THE CRUISE LINE TO A HEIGHTENED STANDARD OF CARE.,
Diane WEISS v. HOLLAND AMERICA LINE INC., a Washington Corporation, Holland America Line N.V., a Curacao Corporation, and Hal Antillen N.V., a Curacao Corporation, Defendants.
2014 WL 1569204
Only the Westlaw citation is currently available.
United States District Court, W.D. Washington.
No. C12-2105 RSM. | Signed April 18, 2014.
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No. C12-2105 RSM. | Signed April 18, 2014.
THIS MATTER came before the Court on Motion for Summary Judgment by Defendants Holland America Line, Inc., Holland America Line N.V., and HAL Antillen N.V. Dkt. # 15. Plaintiff was a passenger aboard one of Defendants’ cruises when she suffered an injury from a fall during an organized charity walk. Defendants move for dismissal of Plaintiff’s sole claim for negligence.
On December 11, 2011, Plaintiff, Diane Weiss, and her husband embarked on a seven day cruise aboard a Holland America Line (“HAL”) vessel. Ms. Weiss, a then 69-year old resident of Delray Beach, Florida, is a veteran cruiser, having taken approximately 20 cruises over the past 20 years. During each of the first five mornings of the instant cruise, Ms. Weiss walked with a friend for half an hour on the Westerdam’s upper deck walking track. During the first five days of the cruise, the Westerdam experienced generally calm seas and low swell with relatively little vessel motion. On December 16, 2011, Ms. Weiss, a breast cancer survivor, signed up to participate in a walk-for-charity event, On Deck for the Cure, in support of the Susan G. Komen Foundation. During the walk, Ms. Weiss reportedly felt the Westerdam starting “to rock a little.” As she rounded the stern and turned right toward the bow, the ship allegedly gave “one big surge,” at which point she lost her balance on the dry deck and hit her wrist against a metal support structure as she instinctively sought to brace her fall. She suffered a fracture to her wrist, which resulted in three surgeries, including a wrist replacement. An hourly recording by bridge crew in the Westerdam’s NAPA log indicated that at the start of the race, the wind was at 31.5 knots (nautical miles per hour), described as “near gale” conditions. The swell was described as moderate, with a sea force of 5 to 6 on the Beaufort scale, and the vessel state as “pitching and rolling.” The accident report recorded for Ms. Weiss’ injury describes this pitching as “slight[ ]” and rolling as “gentle.”
Defendant sought summary judgment on Plaintiff’s negligence claim. Court found that HAL should be held to a heightened standard of care because the weather conditions at sea are unique to maritime travel. Court also found that HAL had a duty to reasonably foresee risks that might ordinarily attend weather-related circumstances, including the risks of injury to participants in an on-deck charity walk. Court held that a fact-intensive inquiry was necessary to gauge the foreseeability of injury and the reasonable course of action in light of the weather conditions during the charity walk. Defendants further claimed that they had no duty to warn Plaintiff of risks she might encounter during the walk related to vessel motion because the sea condition would have been open and obvious to her. The Court cannot find as a matter of law that the risk of injury from the Westerdam’s motion would have been open and obvious to Plaintiff. The risk to event participants was not that posed during ordinary perambulation but rather that created by vessel motion resulting from rough sea conditions. The question thus becomes whether risk of sudden vessel movement would have been clearly apparent to event participants. Plaintiff admittedly observed slightly “choppy” conditions on the day of the event, with “some whitecaps” and more wind than during previous cruising days. At the same time, the extent of risk was not clearly obvious to an on-deck walker, experiencing wind at only 20 knots as opposed to the actual wind speed of 31.5 knots. Nor would it have been obvious to a passenger that the Westerdam could surge, as Mr. Petrich declares is foreseeable during moderate swell conditions. Taking the facts in the light most favorable to the non-moving party, the Court likewise cannot ascertain as a matter of law that the risk of injury resulting from the sea conditions would have been obvious to Plaintiff.
Plaintiff adduced sufficient evidence to create genuine issues of fact on multiple elements of her negligence claim and for the reasons stated herein, the Court hereby ORDERS that Defendants’ Motion for Summary Judgment is DENIED.
IN PASSENGER SLIP AND FALL ACTION, SOUTHERN DISTRICT OF FLORIDA GRANTS SUMMARY JUDGMENT BASED ON THREE INDEPENDENT BASES. THIS CASE IS A MUST READ CAUTIONARY TALE.
Thomas FRASCA, Plaintiff,
v. NCL (BAHAMAS) LTD., et al., Defendants.
2014 WL 1385806
Only the Westlaw citation is currently available.
United States District Court, S.D. Florida,
No. 12-20662-CIV. | Signed April 9, 2014.
In passenger slip and fall action aboard NCL cruise ship, NCL moved for summary judgment.
On March 19, 2011, plaintiff Thomas Frasca (“Frasca”) slipped and fell while walking on the deck of defendants NCL (Bahamas) Ltd., Norwegian Cruise Lines, and NCL America’s (collectively, “NCL”) cruise ship the Pride of America. A fare-paying passenger on the ship, Frasca filed this personal injury lawsuit against NCL. NCL has now moved for summary judgment. The Court granted the motion on three independent bases, each one of which is sufficient to justify summary judgment in NCL’s favor. First, Frasca alleges in his complaint that he slipped “in an accumulation of liquid on the deck” which had “leaked from the ceiling.” He alleged no other facts or theories in the complaint. There is, however, absolutely no evidence that the liquid Frasca slipped on had leaked from a ceiling. Rather, as Frasca now concedes, he slipped and fell on water that had accumulated on the deck from rain or mist. The court held that the law is clear that Frasca may not amend his complaint through summary judgment briefing. Second, while he never amended his complaint alleging only a leak-from-the-ceiling claim, Frasca testified that he slipped on the deck which was wet from rainwater or mist. Frasca, however, saw that the deck was wet before he slipped, and NCL is under no duty to warn him of such an open and obvious condition. Third, court found there was insufficient evidence that NCL had notice of prior similar accidents or that the deck was unreasonably slippery due to NCL’s negligence in designing, installing, constructing, or selecting the deck material.
The Court grants summary judgment in NCL’s favor.