AFTER ESTABLISHING A SUCCESSFUL MCCORPEN DEFENSE TO MAINTENANCE AND CURE, JONES ACT EMPLOYER CONVINCED DISTRICT COURT TO AWARD RESTITUTION FOR FRAUDULENTLY OBTAINED BENEFITS. FIFTH CIRCUIT COURT OF APPEALS REVERSED DISTRICT COURT’S DECISION AND HELD THAT AN EMPLOYER WHO ESTABLISHES A MCCORPEN DEFENSE TO MAINTENANCE AND CURE LIABILITY DOES NOT GAIN AN AFFIRMATIVE RIGHT TO RESTITUTION FOR BENEFITS PREVIOUSLY PAID.
Wallace BOUDREAUX, Plaintiff-Appellant v. TRANSOCEAN DEEPWATER, INC., Defendant-Appellee.
United States Court of Appeals, Fifth Circuit.
No. 12-30041. | March 14, 2013.
PROCEDURAL POSTURE:
Seaman brought action against maritime employer seeking right to further maintenance and cure for back injury allegedly sustained on the job. The United States District Court for the Eastern District of Louisiana granted employer’s motion for partial summary judgment and awarded summary judgment to employer on counterclaim to recover maintenance and cure payments it had already made to seaman. Seaman appealed.
OVERVIEW:
Wallace Boudreaux sued Transocean Deepwater, Inc. to recover maintenance and cure for a back injury allegedly sustained on the job. Transocean successfully established a defense to liability under McCorpen v. Central Gulf Steamship Corp. and counterclaimed to recover benefits it had already paid to Boudreaux. The district court awarded summary judgment to Transocean on its counterclaim, concluding that Transocean’s successful McCorpen defense automatically established its right to restitution-a right of action never before recognized in maritime law. Boudreaux began working for Transocean in January 2005. He failed to disclose serious back problems in Transocean’s pre-employment medical questionnaire, affirmatively answering “no” to several inquiries regarding any history of back trouble. Less than five months after his hire, Boudreaux claimed that he had injured his back while servicing equipment. As a consequence, Transocean paid the seaman maintenance and cure for nearly five years. Boudreaux filed suit against Transocean alleging a right to further maintenance and cure and seeking punitive damages for Transocean’s alleged mishandling of past benefits. During discovery, Transocean obtained evidence of Boudreaux’s pre-employment history of back problems. Transocean filed an unopposed motion for partial summary judgment on Boudreaux’s claim for further benefits, invoking McCorpen as a defense to maintenance and cure liability. Under McCorpen, a maritime employer does not owe maintenance and cure if it can establish that a seaman intentionally misrepresented or concealed a pre-existing medical condition that is material to the employment and is causally connected to the injury allegedly sustained. The district court granted Transocean’s unopposed motion. Thereafter, Transocean filed a counterclaim to recover the maintenance and cure payments it had already made to Boudreaux. Transocean moved for summary judgment on the counterclaim, contending that its successful McCorpen defense automatically established its right to restitution under general maritime law. Prior to the district court’s ruling on the motion, Transocean and Boudreaux reached a bracketed settlement that resolved all issues pending before the court, with the exception of Transocean’s counterclaim. Under the settlement, Boudreaux is entitled to a lesser sum of money if Transocean succeeds on its counterclaim.
Though Transocean acknowledged that its restitution-via-McCorpen theory was novel, it urged the district court to fashion a new maritime right of action based on state law principles of fraud and unjust enrichment. In a thoughtful opinion, the district court agreed and awarded summary judgment to Transocean on its counterclaim, albeit without accepting Transocean’s state-law theories. Transocean asks this Court to recognize a novel maritime cause of action, urging that an employer who establishes a McCorpen defense to maintenance and cure liability should thereby automatically gain an affirmative right to restitution for benefits previously paid. We decline the invitation. Transocean’s novel attempt to invoke the case as an affirmative right of recovery finds virtually no support, and we are not inclined to accede.
OUTCOME:
The Court of Appeals held that a seaman’s fraudulent misrepresentation of his health history in securing employment does not terminate his right to retain maintenance and cure already paid out by a maritime employer. Reversed and rendered for employee.
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DISTRICT COURT GRANTS LINE’S DAUBERT MOTION TO STRIKE SLIP AND FALL EXPERT AND MOTION FOR SUMMARY JUDGMENT
Teresita SORRELS and Joseph Sorrels, Plaintiffs, v. NCL (BAHAMAS) LTD., d/b/a Norwegian Cruise Line, Defendant.
2013 WL 6271522 United States District Court, S.D. Florida.
No. 13–21413–CIV. | Dec. 4, 2013.
PROCEDURAL POSTURE:
Cruise ship passengers Sorrels and her husband filed action against Norwegian Cruise Line. Plaintiffs allege that Sorrels’s fall and resulting injuries were caused by Norwegian’s negligence. Norwegian filed a Motion to Strike and Motion for Summary Judgment. In the Motion to Strike, Norwegian asked the Court to exclude the proposed expert testimony of Dr. Ronald Zollo. In its Motion for Summary Judgment, Norwegian asserted that Plaintiffs’ claims fail because no substantial evidence shows that Norwegian acted negligently in connection with Sorrels’s fall.
OVERVIEW:
On April 13, 2012, Plaintiff Teresita Sorrels boarded as a passenger on the Norwegian Sky, a cruise ship owned and operated by Defendant NCL. It had rained before and after Sorrels boarded the ship that day. In the early morning of April 14, 2012, Sorrels walked across the wooden pool deck. After walking about 100 feet, she slipped and fell, landing in a sitting position and hurt her right wrist. Sorrels suffered a severe fracture to her wrist as a result of the fall. A security video of the incident shows that most, if not all, of the deck was wet. For multiple reasons, the Court concluded that expert, Zollo’s, testimony must be excluded because it was not based on reliable methods. First, Zollo’s central theory was that the Norwegian Sky’s pool deck gives individuals a false sense of security based on the wide range of friction resistance along the walkway. The Court concluded that Zollo tested no points along Sorrels’s path to determine whether the slip resistances there were adequate or whether the coefficient of friction readings at those points varied significantly from each other or from the area where Sorrels fell. Second, Zollo conducted his slip-resistance tests nearly a year and a half after Sorrels’s accident. But Plaintiffs did not show that the same conditions existed on the deck at the time Sorrels fell. Third, Plaintiffs did not show that the COF standards relied on by Zollo apply to the Norwegian Sky’s pool deck. Also, Norwegian contends that the record fails to establish a triable issue of fact about whether a dangerous condition existed on the Norwegian Sky‘s pool deck at the time of Sorrels’s accident. Aside from Zollo’s excluded testimony, Plaintiffs relied on two pieces of evidence to show that Norwegian created a dangerous condition on the deck by failing to properly maintain it. First, Plaintiffs claim that numerous “substantially similar” accidents occurred aboard the ship. Second, Plaintiffs assert that a ship employee’s testimony proves that Norwegian recognized the alleged hazardous condition. Court found that given the many factual differences between the prior accidents and Sorrels’, Plaintiffs did not show that “conditions substantially similar to” Sorrels’s fall also “caused the prior accidents.” Plaintiffs also relied on the testimony of Solange Winifred, who worked at a restaurant on the Norwegian Sky. Her testimony, however, failed to show that a dangerous condition existed on the pool deck. Winifred stated that she would post a warning sign when something was spilled on the restaurant floor. And though Winifred further testified that the deck department would post signs warning that the decks could be slippery when wet, she admitted that she did not actually know whether those signs were posted because she worked in the restaurant. In sum, court held Plaintiffs produced no substantial evidence that Norwegian created a dangerous condition on its ship and thereby breached its duty of reasonable care.
OUTCOME:
Court granted Defendant’s Motion to Exclude Expert testimony and Motion for Summary judgment. The matter is presently on appeal.
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FOURTH CIRCUIT COURT OF APPEALS AFFIRMED SIGNIFICANT JURY VERDICT IN FAVOR OF CHIEF ENGINEER SERIOUSLY BURNED BY AN ENGINE FAILURE WHICH CAUSED AN EXPLOSION AND FIRE.
Kelsey Lane COOPER, Jr. and Grace Yvonne Cooper v. BOUCHARD TRANSPORTATION, et. Al.
Court of Appeal of Louisiana, Fourth Circuit.
March 27, 2013.
PROCEDURAL POSTURE:
Chief engineer of tug vessel who was severely injured by engine explosion and fire aboard vessel brought negligence action against vessel’s owner and operator, entity that serviced vessel’s engine, and supplier of parts used to service engine. Vessel owner filed cross-claims against engine servicer and parts supplier, seeking compensation for damage to vessel. Following trial on the merits, the Civil District Court, dismissed all claims against parts supplier, entered judgment on jury verdict in favor of engineer, apportioning equal fault for his injuries between vessel owner and engine servicer, and entered jury verdict in favor of vessel owner on its cross-claim against engine servicer. Engine servicer appealed, and vessel owner and engineer cross appealed.
OVERVIEW:
This appeal arises from a jury verdict in favor of the plaintiff, Kelsey Cooper, for injuries he sustained while working aboard the M/V ROBERT J. BOUCHARD. The jury found Marine Systems, Inc. (MSI) and Bouchard Coastwise Management Corp., Bouchard Transportation Co., Inc., Tug Robert J. Bouchard, Inc. and Interested Hull Underwriters (collectively Bouchard) equally liable for Mr. Cooper’s damages. MSI and Bouchard appealed the judgment and the plaintiffs filed an answer and cross appeal. Mr. Cooper was the chief engineer aboard the ocean-going tug ROBERT J. BOUCHARD when the main engine failed causing an explosion and fire in the engine room. As a result of the explosion, Mr. Cooper suffered third degree burns to 32% of his body and second degree burns to 4% of his body. The severity of Mr. Cooper’s injuries required approximately 28 surgeries and extensive physical therapy. Bouchard was the owner and operator of the ROBERT J. BOUCHARD at the time of the explosion. The failed engine, which caused the explosion, had been overhauled and serviced by MSI using remanufactured parts supplied by WRI. Subsequent to the original overhaul, MSI serviced the engine in April and November of 2004. The November 2004 service occurred just three months before the explosion. Following the explosion, suit was filed against Bouchard, MSI, and WRI. Additionally, Bouchard filed cross claims against MSI and WRI for damages to its tug. During trial, several theories were presented to establish the cause of the engine failure: 1) Bouchard’s failure to properly maintain and service the engine; 2) MSI’s failure to properly assemble and test the engine; and/or 3) WRI’s failure to properly remanufacture the engine parts in keeping with specifications. When the trial on the merits concluded, all claims against WRI were dismissed with prejudice. Judgment was rendered in favor of Mr. Cooper and against MSI and Bouchard for $7,248,935. There was also judgment in favor of Bouchard on the cross claim against MSI. Appeals and cross-appeals were filed by Bouchard and MSI, and the plaintiffs answered MSI’s appeal. On appeal, MSI asserts two assignments of error for this Court to review: 1) the jury’s finding that MSI was liable for the explosion was contrary to both the law and the evidence; and 2) the jury’s award of $648,935 in future medical expenses to Mr. Cooper was not supported by the record and should be reversed. Bouchard asserts that 1) the jury’s 50% fault to Bouchard was not supported by the record; and 2) the jury erred in failing to award Bouchard reimbursement of the maintenance and cure paid for its injured employee.
OUTCOME:
The Court of Appeal held that the evidence was sufficient to support finding that vessel owner and engine servicer were equally liable in negligence for failing to identify vessel’s engine problems; that the testimony of qualified experts in life care planning and forensic accounting supported damages award of $648,935 for future medical care to engineer; and that the vessel owner was entitled to reimbursement from engine servicer for 50% of the total sum expended by vessel owner on maintenance and cure. Affirmed in part, reversed in part.
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SOUTHERN DISTRICT OF FLORIDA FINDS PERSONAL JURISDICTION OVER FOREIGN SHORE EXCURSION OPERATOR BASED ON ITS RELATIONSHIP WITH FLORIDA BASED CARNIVAL CORPORATION
Michael MEYER, Plaintiff, v. CARNIVAL CORPORATION, et al., Defendants.
United States District Court, S.D. Florida.
No. 12-20321-CIV-ZLOCH. | March 28, 2013.
PROCEDURAL POSTURE:
THIS MATTER is before the Court upon Defendant Cox & Company, Ltd .’s, Motion To Dismiss Plaintiff’s Amended Complaint (DE 68). The Court held an evidentiary Hearing on the instant Motion (DE 68) on December 3, 2012. The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.
OVERVIEW:
The above-styled cause arises out of a cruise taken by Plaintiff Michael Meyer (“Meyer”) and operated by Defendant Carnival Corporation (“Carnival”) in March of 2011. See DE 57. While on said cruise, Plaintiff Meyer took an excursion to the Pitons, the eroded remnants of two volcanic formations on the southwestern coast of the island of Saint Lucia, and a popular destination for tourists to the island. Said excursion was operated by Defendant Cox & Company, Ltd. (“Cox”), a Saint Lucian company. Plaintiff alleges that while on the excursion, he sustained injuries. By the instant Motion (DE 68), Defendant Cox argues, inter alia, that the Court cannot exercise personal jurisdiction over it. Court first rejected Plaintiff’s arguments regarding jurisdiction based on the passenger ticket contract and the contract between Carnival and the Shore excursion operators. Nonetheless, when reviewing the foreign shore excursion operators contacts with Florida, the Court found that while Cox asserts that it is a Saint Lucian business with minimal ties to Florida, Cox’s web page has on its front page, a phone number with a 305 area code, corresponding to Miami-Dade County. The company also uses this phone number in its outgoing emails. Furthermore, Carnival and Cox have had a business relationship since May 1, 2003. Carnival has also helped Defendant Cox in maintaining its position as a leading provider of shore excursions in Saint Lucia. Over the past five years, for example, Defendant Cox has competed with numerous other shore excursion operators in Saint Lucia. One way that Carnival helps promote Cox’s business is by recommending to guests that they not engage in excursions, tours, or activities outside of those specifically marketed and sold by Carnival, such as Cox’s Catamaran Cruise to the Pitons. Carnival also helps promote Cox’s business by advertising Cox’s excursions on its website, on board through a presentation made by the cruise director, through fliers aboard the vessel, and televised in the guests’ staterooms. Cox also maintained a relationship with other Florida based, cruise lines. First, Cox has maintained a relationship with the other leading cruise line in Florida, Royal Carribean, since 2001. Since 2005, the two have maintained formal written contracts by which Cox would provide shore excursions and tours to Royal Carribean guests exclusively in Saint Lucia. As part of this agreement, Royal Carribean marketed and sold tickets for Cox’s shore excursions on its website, over the phone, and aboard the Royal Carribean vessels. Until two years ago, Cox had a business relationship with Florida-based Norwegian Cruise Lines, and has had an ongoing excursion agreement with Prestige Cruise Lines in Miami for the past six years. The record reveals that officials from Cox have affirmatively fostered these relationships with Florida-based cruise lines, such as by traveling to Miami to attend cruise line conferences, or meeting with Carnival officials at its Doral headquarters. During these meetings, Cox and Carnival officials have spoken about the existing tours, potential new tours, costs paid by Carnival to Cox, and components of the excursions. Cox has also been able to maintain its business relationships with Florida-based cruise lines through its membership in the Florida Carribean Cruise Association (“FCCA”). Based on, inter alia, the foregoing facts, the Court found that Defendant Cox has “engaged in substantial and not isolated activity within this state” under the “General Jurisdiction” section of Florida’s long-arm statute. Fla. Stat. § 48.193(2). The Court also finds that in the aggregate, Cox’s business activities in the state of Florida establish general jurisdiction and that “[w]hile any of these activities alone may not be deemed sufficient, considered collectively, they establish personal jurisdiction.” Woods, 739 So.2d at 621.
OUTCOME:
The district court denied the motion to dismiss for lack of personal jurisdiction.
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WHERE CRUISE SHIP PASSENGER WAS ALLEGEDLY OVERSERVED ALCOHOL AND THEN FELL OVERBOARD AND WAS NEVER FOUND, COURT GRANTED IN PART AND DENIED IN PART CRUISE LINE’S MOTION TO DISMISS.
Margarita TELLO, M.D., as personal representative of the Estate of Jose Miguel Pietri Tello, her deceased son, for the benefit of the Estate’s beneficiaries, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD.
United States District Court, S.D. Florida.
No. 11-24503-CV. | March 30, 2013.
PROCEDURAL POSTURE:
Cruise ship passenger, whose son fell overboard and presumably drowned after bartenders served him multiple drinks, sued cruise line operator for negligence under the Death on the High Seas Act (DOHSA), and also made claims for negligent hiring and retention, negligent and intentional infliction of emotional distress, and respondeat superior or agency liability. Cruise line operator moved to dismiss.
OVERVIEW:
In January 2011, Plaintiff Margarita Tello and son Jose Miguel Pietri Tello were passengers aboard Defendant’s cruise ship, “The Liberty of the Seas.” Jose had recently turned twenty-one. On the night of January 4, 2011, Jose and his friends went to the cruise ship’s bar/dance club. Bartenders served Jose multiple alcoholic beverages, and Jose became intoxicated. Jose said goodnight to his friends and left the club at around 3 a.m. He proceeded to walk around the cruise ship in an inebriated and disoriented state. At around 3:30 a.m., Jose encountered a crewmember who was cleaning the game room at one of the ship’s ocean decks. Jose appeared intoxicated to the crewmember, and the crewmember could sense that “something was wrong.” Nonetheless, the crewmember did nothing to assist Jose. Jose exited the game room and proceeded to walk around the ocean deck. He attempted to reenter the interior of the ship twice, but the doors that he tried to open were locked. Jose then approached a service ladder and began climbing the outside railing, apparently hoping to get down to a lower deck and find access to reenter the ship. He fell overboard and presumably drowned. When Jose fell overboard, the ship was approaching Belize. At some point Margarita discovered that Jose had not returned to their cabin. She went walking around the ship to look for him and notified cruise employees that she was looking for her son. At around 7 a.m., an unidentified crewmember told Margarita that her son was likely sleeping in someone else’s cabin. Margarita insisted that Jose would not act that way and requested that a search be conducted. Belize Coast Guard officers were not notified until 11 a.m. that a passenger from ship had fallen overboard. The ship allegedly maintained 800 closed circuit television cameras on board. At the time of Jose’s fall, however, no one was manning the surveillance room. Following review of video footage showing Jose’s fall, the ship’s captain or someone in similar uniform told Margarita that her son had committed suicide. Margarita is a devout Catholic, and in the theology of the Catholic Church, death by suicide is allegedly a “grave or serious sin, preventing the sinner’s soul from eternal life.” Margarita thus concluded that Jose’s “soul [was] not at rest,” that she would “not meet [Jose] again in the afterlife,” and that Jose had “gone to hell.” Margarita filed suit against RCCL alleging numerous claims. Royal Caribbean moves to dismiss the Amended Complaint in its entirety. Royal Caribbean argues in relevant part that: (a) Count I asserts nonexistent legal duties and otherwise fails to allege sufficient factual matter to state a negligence claim; (b) Counts II and V are non-actionable to the extent they seek damages that are not allowed under the Death on the High Seas Act; and (c) the Amended Complaint fails to adequately allege negligent, hiring, retention, training, or supervision, negligent infliction of emotional distress, intentional infliction of emotional distress. Court held that Plaintiff adequately pled a cause of action for negligence in her Amended Complaint insofar as the facts alleged support a plausible claim that Royal Caribbean failed to exercise “reasonable care under the circumstances” in several respects-e.g., over-serving Jose, failing to assist him, failing to initiate a prompt search-and-rescue, etc.-and that Royal Caribbean’s acts or omissions precipitated Jose’s death. As to the Negligent Hiring/retention count, the Court found Plaintiff’s allegations insufficient to state a claim that Royal Caribbean negligently hired or retained any crewmembers. The Amended Complaint avers only, in relevant part, that Royal Caribbean failed “to properly screen, investigate, interview, and otherwise hire crewmembers, employees, and/or agents.” Plaintiff alleges no facts indicating that Royal Caribbean’s crewmembers were unfit for employment and that Royal Caribbean knew or should have known of their unfitness. As to the Negligent Infliction of Emotional distress count, the Court held that the captain’s communication to Margarita that her son had committed suicide-involved no physical impact to Margarita. To sustain her claim, therefore, Margarita must allege some manifestation of physical injury beyond mere mental distress. As Margarita suffered no impact and alleges no physical injury resulting from the conduct at issue, the Court finds that Margarita has pled insufficient factual matter to sustain her negligent-infliction-of-emotional-distress claim. As to the intentional infliction of emotional distress claim, the Court found that Plaintiff’s allegations were insufficient to state a claim for intentional infliction of emotional distress because “One cannot say that the captain’s allegedly tortious conduct-i.e., informing Margarita that Jose had committed suicide-was ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.'”
OUTCOME:
The district court granted the Motion to Dismiss in part, and denied the motion in part.
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WHERE SEVENTEEN YEAR OLD CRUISE SHIP PASSENGER ALLEGED SHE WAS IMPROPERLY STRIP SEARCHED BY CARNIVAL CREWMEMBERS, DISTRICT COURT DENIED CARNIVAL’S MOTION FOR SUMMARY JUDGMENT AS TO THE CLAIM FOR PUNITIVE DAMAGES.
J.G., Plaintiff, v. CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Inc., Defendant.
United States District Court, S.D. Florida.
No. 12-21089-CIV. | March 4, 2013.
PROCEDURAL POSTURE:
Cruise ship passenger filed negligence claims against Carnival Corp., including claim for punitive damages. This matter is before the Court upon Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claim for Punitive Damages. After careful consideration of the pending Motion, all filings and exhibits in support thereof and in opposition thereto, and the record in this case, and being otherwise duly advised in the premises, the Court denies Defendant’s motion for summary judgment on the punitive damages claims.
OVERVIEW:
Plaintiff J.G. brings this action against Defendant Carnival Corporation based on events that allegedly took place while Plaintiff was a seventeen-year-old passenger on Defendant’s cruise ship Sensation in April 2011. Specifically, Plaintiff brings negligence and direct liability claims against Carnival for an interrogation and search, including an alleged strip search, of Plaintiff, in response to accusations that Plaintiff illicitly brought marijuana onboard the vessel. Plaintiff alleges liability based on Carnival’s own negligence, as well as based on the conduct of Carnival’s employees. Plaintiff seeks “any and all damages allowable under the law,” including punitive damages. Defendant’s summary judgment motion challenges only Plaintiff’s entitlement to punitive damages. Although many of the facts of this incident are in dispute, the parties’ statements of material facts do reveal certain undisputed facts. Plaintiff, who was a minor at the time of the cruise, allegedly dropped a container of what appeared to one of the ship’s security officers to be marijuana. The security officer, Mayank Thapa, picked up the container. Thapa later advised his supervisor, Assistant Chief Security Officer Manuel Depositario, of the incident; Depositario, in turn, informed his supervisor, Chief Security Officer Rajendra Negi. Negi directed Depositario to perform a search of Plaintiff’s cabin for any other illegal substances and to obtain a statement from Plaintiff. Thereafter, Depositario, Thapa, security officer Leticia Juanino, and Assistant Housekeeping Manager Redentor Yuzon conducted a search of Plaintiff’s cabin. One or more of the three security personnel also took statements from Plaintiff. The parties dispute which of the security personnel were located inside or near the cabin at various points during the course of taking Plaintiff’s statement and conducting the search, but for the purposes of this Motion, these disputes are immaterial. Carnival has set forth an internal security policy that “statement[s] should not be taken from a person under the age of 18 years unless in the presence of their parents or legal guardians.” Plaintiff’s mother was not present for the taking of Plaintiff’s statement. Although Plaintiff’s aunt was there for a portion of the events, the parties dispute whether the aunt was present when information was first taken from Plaintiff or when the search began. During the cabin search, Depositario instructed Juanino to conduct a “pat down” search of Plaintiff, during which time Juanino touched Plaintiff on her breasts, hips, and in between her legs. After the pat down, the disputed strip searched occurred. It is undisputed, however, that, whether of her own volition or at the behest of Juanino, Plaintiff lifted her dress and removed her underwear and a tampon. There is no evidence on the record that Juanino was expressly directed by anyone to perform a strip search of Plaintiff. During the course of discovery in this case, Plaintiff propounded the following requests for admission to Defendant: “Admit that your contract does not give you the right to perform a strip search of a passenger,” and “Admit that your policy guidelines do not permit you to strip search passengers.” Defendant denied both requests without further comment. “[A] plaintiff may recover punitive damages under general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s ‘wanton, willful, or outrageous conduct.’ The character of conduct that will support an award of punitive damages “must be of ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects.'” Boney v. Carnival Corp., No. 08-22299-CIV, 2009 WL 4039886, at *2 (S.D.Fla. Nov.20, 2009) (quoting Chrysler Corp. v. Wolmer, 499 So.2d 823, 824 (Fla.1986)). Court found that there are material disputes in this case as to whether Defendant’s employees conducted a strip search, including a cavity search, of a seventeen-year-old passenger and whether Defendant’s policies permit such a search. If Defendant’s employees performed such a search, the Court cannot conclude that Defendant’s policies permitting the strip search of a minor, if supported by the facts at trial, do not rise to the type of “gross and flagrant” conduct that would support the award of punitive damages.
OUTCOME:
ORDERED and ADJUDGED that Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claim for Punitive Damages is DENIED.
