NO CLAIM UNDER JONES ACT IN THE ABSENCE OF A PHYSICAL INJURY.
TONI MARTINEZ, Plaintiff-Appellant, VERSUS BALLY’SLOUISIANA, INC., doing business as Bally’s Casino Lakeshore Resort, doingbusiness as Belle of Orleans, LLC, Defendant-Appellee
No. 00-30119
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2001 U.S. App. LEXIS 4556
March 26, 2001, Decided
PROCEDURAL POSTURE:
Plaintiff employee appealed from the decision of the United States District Court for the Eastern District of Louisiana granting summary judgment in favor defendant employer in plaintiff’s action filed under the Jones Act, 46 U.S.C.S. ß 688.
OVERVIEW:
Plaintiff sued her employer claiming sexual harassment, vilification and infliction of mental distress by her supervisor. Defendant filed a motion for summary judgment on the ground that plaintiff had no available remedy under the Jones Act because her claim stated purely emotional, non-physical injury and that such claims, unaccompanied by claims for physical injury, were not viable under the Jones Act. The district court granted defendant’s motion for summary judgment. Plaintiff appealed and the appellate court affirmed. In evaluating the evidence, the district court judge properly held that plaintiff failed to claim any physical injury, and no evidence on the record demonstrated such injury. Plaintiff’s affidavit regarding her physical manifestations of her alleged emotional injury was properly denied consideration as a contradiction of her attorney’s judicial admission. She provided no other evidence that she suffered any physical injuries. Therefore, it was proper for the district court to conclude that she failed to allege and adduce any evidence on an essential element of her case under the Jones Act.
OUTCOME:
The appellate court affirmed the decision of the district court finding it did not err in holding that plaintiff failed to raise a material issue of physical injury and thus could not recover for physical injury under the Jones Act, and plaintiff could not recover for her alleged emotional injuries in the absence of physical manifestations.
————————————–//—————————————-
TWO YEAR STATUTE OF LIMITATION UNDER SUITS IN ADMIRALTY ACT REQUIRES STRICT COMPLIANCE
D’ARTGNAN MCGLOTHEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Case Number: C-00-1052-SC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2001 U.S. Dist. LEXIS 3190
March 21, 2001, Decided
March 21, 2001, Filed, Entered in Civil Docket
PROCEDURAL POSTURE:
Plaintiff seaman filed an action in admiralty for damages from defendant United States of America for personal injuries sustained while employed as a seaman and crewmember on defendant’s vessel. Defendant filed a motion to dismiss with prejudice, arguing plaintiff’s complaint was not filed within the two-year period of 46 U.S.C.S. ß 745, and, thus, the court lacked subject matter jurisdiction over the action under the Suits in Admiralty Act.
OVERVIEW:
The court found the evidence showed plaintiff was injured while following orders to secure loose gear, stow materials, and wash the deck. Plaintiff’s complaint and deposition testimony stated the injury occurred while the vessel was approaching the Panama Canal, which was March 21, 1998, and an accident report indicated the date of the incident as March 21, 1998. Plaintiff’s deposition testimony was that he was hurt at sea before the vessel reached the Panama Canal. It was undisputed that the vessel reached the Canal on March 21, 1998. Plaintiff contended the accident actually happened on March 27, but submitted no evidence. He merely noted that at his deposition he testified that March 27 was the date of injury. Plaintiff submitted no objections or responses to defendant’s evidentiary submissions. The court found plaintiff sustained his injury on or before March 21, 1998, prior to arrival at the Canal’s western terminus. Plaintiff’s action was filed March 27, 2000. Although plaintiff exhausted his administrative remedies under the Clarification Act, his suit was not brought within the required two years. 46 U.S.C.S. ß 745 had to be strictly complied with. Defendant was immune.
OUTCOME:
Defendants’ motion to dismiss for lack of subject matter jurisdiction was granted. Plaintiff’s suit was not brought within the two-year period required under the Suits in Admiralty Act. Defendant United States was immune from the suit and the court did not have jurisdiction.
————————————–//—————————————-
STAIRWELL ON SHIP WITHOUT NON SKID STEPS AND NON SKID HANDRAIL RENDERED VESSEL UNSEAWORHTY
VICTOR CAMERON v. UNITED STATES OF AMERICA and APEX MARINECREW MANAGEMENT CO., LTD.
CIVIL ACTION NO. G-99-511
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON
2001 U.S. Dist. LEXIS 3316
March 20, 2001, Decided
PROCEDURAL POSTURE:
Plaintiff seaman sued defendants, a ship owner and its principal, alleging under maritime law that the unseaworthiness of defendants’ vessel, and defendants’ negligence, caused plaintiff to fall and sustain injuries while employed aboard the vessel. The court conducted a trial without a jury.
OVERVIEW:
While plaintiff was attempting to begin cleanup of a fuel oil spill in the vessel’s engine room, plaintiff slipped and fell down a stairwell. Plaintiff alleged that the stairwell was unsafe, and that he sustained injuries to his wrist and neck. The court first held that defendant principal was the proper party defendant, and that defendant principal was liable to plaintiff for his injuries. The stairwell was unseaworthy since the steps and handrails lacked any substance to prevent plaintiff from slipping, and were covered with a thick enamel paint. Plaintiff was not negligent for failing to begin cleaning at the top of the stairwell, since defendants directed plaintiff to go below to assess the damage, which was also where cleaning supplies were located, and the stairwell was the only access. However, plaintiff was partially responsible for failing to take special precautions when he knew the stairs were covered with oil. Finally, the medical evidence indicated that plaintiffs’ injuries were caused by the fall, and defendant principal was thus proportionately liable for past and future damages for lost wages, pain and suffering, unpaid cure, and medical expenses.
OUTCOME:
Judgment was entered in favor of plaintiff and against defendant principal. The unsafe, and thus unseaworthy, stairwell on defendants’ vessel was the primary cause of plaintiff’s fall and injuries, although plaintiff was partially responsible for failing to take proper precautions on the oil-covered stairs.
————————————–//—————————————-
A)BURDEN OF PROVING CAUSATION UNDER JONES ACT IS LIGHTER. B)SET OFF FOR EMPLOYER PROVIDED HEALTH INSURANCE BENEFITS AGAINST MAINTENANCE AND CURE ALLOWED TO EXTENT PLAINTIFF NOT REQUIRED TO PROVIDE REIMBURSEMENT TO HEALTH INSUROR.
DONNA BAVARO, Plaintiff, v. GRAND VICTORIA CASINO, Defendant.
Case No. 97 C 7921
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 3091
March 14, 2001, Decided
March 15, 2001, Docketed
OVERVIEW:
Plaintiff Donna Bavaro (Bavaro) brought suit against her employer, defendant Grand Victoria Casino (Grand Victoria), under the Jones Act, 46 U.S.C. ß 688, and general maritime law alleging that she suffered personal injury as a result of Grand Victoria’s negligence and the unseaworthiness of its riverboat casino vessel, and that Grand Victoria willfully breached its obligation to pay her maintenance and cure, giving rise to a duty to compensate her for medical expenses incurred and for emotional distress caused by its failure[*2] to pay, as well as punitive damages. Grand Victoria filed two motions for summary judgment: one regarding Bavaro’s Jones Act negligence and unseaworthiness claims, and the other regarding Bavaro’s claim for maintenance and cure.
OUTCOME:
Grand Victoria’s motion for summary judgment on Jones Act negligence and unseaworthiness is denied as to Bavaro’s negligence claim arising from her slip and fall; it is granted as to Bavaro’s claim for unseaworthiness and for emotional damages arising from Grand Victoria’s negligent failure to pay maintenance and cure. Grand Victoria’s motion[*23] for summary judgment on issues of maintenance and cure is denied as to the issue of whether Bavaro was in the service of her ship at the time of her accident, and granted as to Grand Victoria’s right to a set-off of maintenance and cure benefits for payments made to Bavaro under Grand Victoria’s health insurance plan (to the extent Bavaro would otherwise realize a double recovery for those expenses.
————————————–//—————————————-
18 MONTH TIME PERIOD BETWEEN ACCIDENT AND FIRING OF FERRY CAPTAIN DID NOT ESTABLISH A CAUSAL CONNECTION TO SUPPORT RETALIATORY DISCHARGE CLAIM
WILLIAM SCHUPPMAN, Plaintiff, -against- PORT IMPERIAL FERRYCORPORATION and NEW YORK WATERWAY, Defendants
99 Civ. 3597 (SWK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 2682
March 14, 2001, Decided
March 15, 2001, Filed
PROCEDURAL POSTURE:
Plaintiff ferry captain filed a complaint for a personal injury claim alleging unseaworthiness and negligence under the Jones Act, 46 U.S.C.S. ß 688 and a retaliatory disciplinary action claim. Defendant moved for partial summary judgment, for the retaliatory discharge, under Fed. R. Civ. P. 56.
OVERVIEW:
Plaintiff, a ferry captain employed by the defendant slipped and fell down a ladder on a ferry boat and injured his knee. A letter was sent informing the defendant of the personal injury claim before the claim was filed. Defendant moved to dismiss the retaliatory disciplinary claim. The court granted the motion. The eighteen months between defendant’s knowledge of the claim and plaintiffs termination did not establish a causal connection for a retaliatory discharge claim. There was no evidence of temporal proximity or disparate treatment and no rational trier of fact could find that the discharge was motivated by the claim. Defendant had legitimate reasons for termination when plaintiff crashed into another vessel and failed to report the incident, left passengers on the dock, and ran out of fuel on the river.
OUTCOME:
Summary judgment was granted on the retaliatory discharge claim.
————————————–//—————————————-
COAST GUARD LIABLE FOR NEGLIGENT RESCUE WHEN THEY FAILED TO CONDUCT A SEARCH AND RELIED ON REPORTS FROM A PRIVATE BOAT.
DEIRDRE LYNN HURD, as Personal Representative of the Estate of Bobby Lee Hurd, Jr., deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of Michael Paul Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of Michael Wayne Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of James Daniel Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
CIVIL ACTION NO.: 2:99-0240-18, CIVIL ACTION NO.:2:99-0241-18, CIVIL ACTION NO.: 2:99-0242-18, CIVIL ACTION NO.: 2:99-0243-18
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTHCAROLINA, CHARLESTON DIVISION
2001 U.S. Dist. LEXIS 3032
March 8, 2001, Decided; March 8, 2001, Filed
DISPOSITION:
[*1] Judgment entered for DEIRDRE LYNN HURD AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BOBBY LEE HURD, JR., DECEASED, against Defendant, under the Survival Action in this matter, in the sum of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death Act, in the sum of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0240-18). Judgment entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL PAUL CORNETT, DECEASED, against Defendant, under the Survival Action in this matter, in the sum of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death, in the sum of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0241-18 & 2:99-0243-18). Judgment entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES DANIEL CORNETT, DECEASED, against Defendant, under the Survival Action in this matter, in the amount of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death, in the amount of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0241-18 & 2:99-0243-18). Judgment entered for MARY E. MOORE [*2]CORNETT, against Defendant in the amount of Fifty-Seven Thousand, Five Hundred Sixty-Three and 89/100ths ($57,563.89) Dollars for her pecuniary loss (2:99-0241-18 & 2:99-0243-18). Judgment entered for the UNITED STATES OF AMERICA in Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Wayne Cornett, deceased v. United States of America (2:99-0242-18).
PROCEDURAL POSTURE:
Plaintiffs sued defendant under the Federal Tort Claims Act, 28 U.S.C.S. ßß 1346(b), 2671 et seq., and alternatively as a claim in admiralty with jurisdiction under general maritime law, 28 U.S.C.S. ß 1333, the Suits in Admiralty Act, 48 U.S.C.S. ßß 741-752, and the Public Vessels Acts, 46 U.S.C.S. ßß 781-790, for wrongful death arising out of defendant’s negligence in attempting to rescue the decedents.
OVERVIEW:
A father, son and cousins went for a sailboat ride. During the night the father was knocked overboard. One of the children radioed a distress call to the coast guard and a passing boat radioed that they thought they heard screaming from the water. The cost guard ignored the distress call from the child, thinking it was a prank. The private boat went to investigate the screams they heard, but the defendant coast guard did nothing further after a private boat reported back that they could not find anything. All the parties drowned. Plaintiffs brought wrongful death suits. The court found that the coast guard had initiated a rescue when it instructed the private boat to investigate the screams, and was negligent in calling off the search after no one was initially located. The coast guard’s actions were reckless and wanton, and worsened the position of the children by inducing the private boat to cease their efforts. The defendant’s actions did not fall within the scope of the discretionary function exception to the Suits in Admiralty Act, 46 U.S.C.S. ßß 741-752. The court further found that the children did not exacerbate their condition or hinder their rescue.
OUTCOME:
The court awarded damages in the wrongful death and survivor suits.
————————————–//—————————————-
STUCK LOADING VALVE RENDERED VESSEL UNSEAWORTHY. SEAMAN 50% AT FAULT
In the Matter of the Complaint of HYGRADE OPERATORS, INC. and SPENTONBUSH/RED STAR COMPANIES, INC., Owner and Operator of the barge ETHELH, for Exoneration from or Limitation of Liability.
99 Civ. 3851 (VM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2001 U.S. Dist. LEXIS 2277
March 2, 2001, Decided; March 6, 2001, Filed
DISPOSITION:
[*1] Judgment entered in favor of Claimant James Davis in amount of One Hundred Nine Thousand Five Hundred Seventy Five Dollars ($109,575.00).
PROCEDURAL POSTURE:
Claimant injured his knee while working for plaintiffs on their vessel. Plaintiffs filed the instant lawsuit seeking exoneration from or limitation of liability for claimant’s injuries based on the Jones Act, 46 U.S.C.S. app. ß 183 et seq. The court conducted a bench trial on the matter and, in the instant decision and order, issued its findings of fact, conclusions of law, and order.
OVERVIEW:
Claimant injured his knee in 1997 when he fell backward after forcing a stuck loading valve closed. In 1998, he re-injured the knee. After both injuries, he underwent surgery on the knee. In 1999, he returned to work, performing light duties, but was not offered that work on a full time basis. When he did not return to that position, his employment was terminated. Later still, he sought medical treatment for back pain he claimed was related to his 1997 accident. The court found that claimant did not prove his injury resulted from any negligence on plaintiffs’ part. However, the stuck loading valve did make plaintiffs’ vessel unseaworthy, and that unseaworthiness caused claimant’s injury. Thus, claimant was entitled to compensation for the damages he sustained as a result of the injury. However, the court found that claimant’s own negligence contributed to 50 percent of the accident, and that claimant failed to mitigate his damages by seeking other employment. Claimant did not prove that his back injury was the result of his 1997 injury and, thus, the court denied all damages associated with the back injury. The court also found claimant’s other damages requests excessive.
OUTCOME:
The court granted judgment to claimant, but awarded considerably less in damages than claimant requested. A stuck loading valve made plaintiffs’ vessel unseaworthy, and that unseaworthiness caused claimant’s injury. However, claimant’s own negligence contributed to the accident, he failed to mitigate damages, he did not prove his back injury was related to that accident, and his damages requests were excessive.
————————————–//—————————————-
JUDGES PRIOR COMMENTS ABOUT CRUISE LINES TACTICS IN SEXUAL ASSAULT CASES DID NOT DISQUALIFY HER FROM HEARING NON SEXUAL ASSAULT CASES AGAINST THE CRUISE LINES
CARNIVAL CORPORATION, Petitioner, vs. ARIEL S. VELCHEZ,Respondent.
CASE NO. 3D01-288
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2493; 26 Fla. L. Weekly D 663
March 7, 2001, Opinion Filed
OVERVIEW:
Carnival Corporation petitions for a writ of prohibition contending that the trial judge should have disqualified herself.
OUTCOME:
We disagree and deny the petition.
————————————–//—————————————-
A) MUST PLEAD PUNITIVE DAMAGES IF BEING SOUGHT. B)MAINTENANCE RATE OF $8 UNDER COLLECTIVE BARGAINING AGREEMENT UPHELD.
Santiago Paris, Plaintiff-Appellant, v. Waterman SteamshipCorporation, Defendant-Respondent.
Case Number 3406
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRSTDEPARTMENT
2001 N.Y. App. Div. LEXIS 1951
March 1, 2001, Decided
PROCEDURAL POSTURE:
Plaintiff seaman sued defendant ship owner for personal injuries. Plaintiff moved to amend the complaint so as to allege failure to treat and to seek consequential and punitive damages therefor. The Supreme Court, New York County (New York) denied plaintiff’s motion. Plaintiff appealed the decision.
OVERVIEW:
The court held plaintiff’s motion to amend the complaint was properly denied on the basis of law of the case established by a prior order of the court reversing a judgment in plaintiff’s favor, and dismissing plaintiff’s claims for consequential and punitive damages and maintenance and cure predicated on mental illness, and remanding for a new trial solely on plaintiff’s claim for maintenance and cure predicated upon findings that he was unfit for duty. The prior order specifically rejected plaintiff’s claims for consequential and punitive damages not only as unpleaded but also on the merits, and there was nothing new about plaintiff’s claim of failure to treat, which closely tracked claims that had already been dismissed. The court also held plaintiff’s claim that the $8 a day rate for maintenance and cure set forth in his union’s collective bargaining agreement was unconscionably inadequate and should not be enforced was improperly raised for the first time on appeal, and the court declined to review the claim.
OUTCOME:
The court affirmed the decision, because a prior order of the court specifically rejected plaintiff’s claims for consequential and punitive damages not only as unpleaded but also on the merits, and there was nothing new about plaintiff’s claim of failure to treat, and the claim was therefore barred by law of the case.
————————————–//—————————————-
AFFIDAVIT OF MARINE EXPERT EXCLUDED BASED ON EXPERT’S FAILURE TO RELY ON SUFFICIENT FACTS RELATED TO INCIDENT EVEN THOUGH EXPERT WAS QUALIFIED IN THE MARINE FIELD
MARJORIE HOLESAPPLE, Plaintiff-Appellant, v. DANIEL BARRETT,III, Defendant-Appellee.
No. 00-1537
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 3128
January 26, 2001, Argued; March 2, 2001, Decided
PROCEDURAL POSTURE:
Plaintiff sued defendant in admiralty for negligence. The United States District Court for the District of Maryland, at Baltimore, entered summary judgment in favor of defendant. Plaintiff appealed.
OVERVIEW:
Plaintiff alleged that defendant, her son-in-law, was negligent in the operation of his small power boat during a family outing, causing plaintiff’s injuries. Plaintiff appealed the district court’s refusal to consider plaintiff’s expert’s affidavit and entry of summary judgment for defendant. The present court affirmed. The district court did not abuse its discretion in holding that the expert’s opinion in the present matter was unreliable. The expert’s opinion did not rely on any of the standard indicia associated with the incident in question. There was no mention of weather reports, wave height, or complaints from other vessels in the immediate area. Without the expert opinion, the only evidence of defendant’s negligence was plaintiff’s testimony that defendant (1) should have gotten her consent before entering the ocean, (2) was operating at an excessive speed, (3) failed to keep a proper lookout, and (4) failed to warn. There was insufficient evidence from which to establish a standard of care against which to measure defendant’s conduct.
OUTCOME:
Judgment was affirmed. There was no showing of the appropriate standard of care, the assertions of lack of due care come entirely from the opinion of plaintiff, and plaintiff presented no more than, at best, a mere scintilla, or less, of evidence of defendant’s negligence.
————————————–//—————————————-
SHIPOWNER GRANTED SUMMARY JUDGMENT WHERE PLAINTIFFS FAIL TO HAVE AFFIDAVIT OF EXPERT ON CAUSATION OF RESPIRATORY DISEASE FOR NUMEROUS PASSENGERS IN SPITE OF STATISTICALLY LARGE NUMBER OF PASSENGERS THAT CAME DOWN WITH THE DISEASE
D’ARTGNAN MCGLOTHEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Case Number: C-00-1052-SC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2001 U.S. Dist. LEXIS 3190
March 21, 2001, Decided
OVERVIEW:
According to the Galaxy’s medical logs, during the Holiday Cruise — from 2 p.m. on December 20 through 2 p.m. on December 27 — a total of 64 passengers, including members of the Petitt and Hirschhorn Groups, and a total of 14 crew members visited the ship’s medical facility and were diagnosed by ship doctors with cold or URTI symptoms. The 64 passengers represent 3.3 percent of[*22] the 1,934 passengers on the Holiday Cruise. The 14 crew members represent 1.6 percent of the approximately 880 crew members on the Holiday Cruise.
For the purposes of the summary judgment motion only, Celebrity concedes the first two elements of the test, namely that it failed to clean and/or sanitize its passenger cabins adequately and permitted certain of its crew members to remain on active duty despite being sick with URTIs, without isolating them or requiring that[*35] they visit a doctor. (Memorandum of Law in Support of Celebrity’s Motion for Summary Judgment (“Def. Mem.”) at 2-3.) Celebrity then argues that plaintiffs’ negligence claim must be dismissed as a matter of law because plaintiffs are unable to establish that their injuries were caused by Celebrity’s misconduct. (Id. at 24, 12-16.) Plaintiffs acknowledge that they “cannot prove that Celebrity’s negligence was the only potential cause of [their] illnesses.” (Plaintiffs’ Memorandum of Law in Opposition to Celebrity’s Motion for Summary Judgment (“Pl. Mem.”) at 19.) However, they nevertheless assert that “on the balance of probabilities it seems a reasonable inference that Celebrity’s negligence was the proximate cause.” (Id. at 24.)
OUTCOME:
The Court disagrees. The Court finds, as Dr. Gwaltney concludes, that based on the record, a reasonable jury could not conclude that Celebrity’s alleged misconduct was the proximate cause of plaintiffs’ illnesses.
————————————–//—————————————-
IN ACTION AGAINST CRUISE LINE, SEXUALLY ASSAULTED INCOMPETENT HAD THREE YEARS FROM THE DATE OF THE ASSAULT TO HAVE A GUARDIAN APPOINTED AND THE STATUTE OF LIMITATIONS RAN FROM THE DATE OF APPOINTMENT OF THE GUARDIAN
VIVIAN L. BOEHNEN, etc., et al., Appellants, vs. CARNIVAL CRUISE LINES, INC., et al., Appellees.
CASE NO. 3D99-2001
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2487; 26 Fla. L. Weekly D 666
March 7, 2001, Opinion Filed
PROCEDURAL POSTURE:
Appellant mentally handicapped daughter sued appellee cruise line for breach of contract of carriage and vicarious liability for sexual assault and battery. Appellants challenged the judgment of the Circuit Court for Miami-Dade County (Florida) dismissing their original and their amended complaints against appellee.
OVERVIEW:
Appellant mentally handicapped daughter accompanied appellant mother on a cruise aboard appellee cruise line. During the cruise, appellee’s entertainer sexually assaulted appellant daughter. As a result, appellant daughter became pregnant and gave birth to a boy. Appellant daughter brought suit against appellee, in her own capacity, alleging breach of contract of carriage and vicarious liability for sexual assault and battery. The court held that appellee could not shorten the statute of limitations period in 46 U.S.C.S. ß 763a for appellant daughter’s maritime injury action because she was a mentally incompetent person without a legal guardian. The court concluded that 46 U.S.C.S. ß 183b(c) allowed a mentally incompetent person without a legal guardian, like appellant daughter, to bring an action up to three years from the date of appointment of guardian that was appointed within 3 years. Thus, appellant daughter timely filed her original complaint within three years and the trial court improperly dismissed her complaint.
OUTCOME:
Judgment reversed and remanded; appellant daughter was mentally handicapped; thus, appellee cruise line could not limit the statute of limitations for her to file her complaint alleging breach of contract of carriage and vicarious liability for sexual assault and battery. Thus, trial court improperly dismissed appellant daughter’s complaint.
————————————–//—————————————-
STAY GRANTED BY APPEALS COURT FOR PREMIER BANKRUPTCY EVEN THOUGH SHIPPING COMPANY WAS THE APPELLANT
CRUISE HOLDINGS, LTD., Appellant, vs. MORTEN MATHIESEN,Appellee.
CASE NO. 3D00-925
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2495; 26 Fla. L. Weekly D 663
March 7, 2001, Opinion Filed
OVERVIEW:
Cruise Holdings, Ltd. moves for a stay of this appeal on account of pending bankruptcy proceedings. We grant the stay.
Cruise Holdings suffered an adverse judgment in the trial court and appealed to this court.
OUTCOME:
Premier Operations, Ltd. is the successor in interest to Cruise Holdings, Ltd. Premier is a Bermuda company.
