December 05, 2011
Giovanna Settimi Caraffa vs. Carnival Corp. – Continued
Response to Motion for Summary Judgment
In this case of a seaman injured by exposure to asbestos. Defendant Carnival moved for summary judgment claiming that the decedents lawsuit was barred by the statute of limitations. In this response, the Plaintiff goes through the applicable law and the evidence demonstrating that the decedents claim is not time barred.
IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 06 – 00964 CA21
GIOVANNA SETTIMI CARAFFA,
Individually and as personal representative
of the estate of BENEDETTO EMANUELE
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING STATUTE OF LIMITATIONS
COMES NOW, the Plaintiff, GIOVANNA SETTIMI CARAFFA, by and through undersigned counsel, and hereby files this Response in Opposition to Defendant’s Motion for Summary Judgment Regarding Statute of Limitations and for good cause relies on the following:
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING A STATUTE OF LIMITATIONS AFFIRMATIVE DEFENSE IS NOT SUPPORTED BY THE FACTS OR THE LAW. PLAINTIFF’S CLAIM FOR WRONGFUL DEATH DID NOT ACCRUE UNTIL HER HUSBAND’S DEATH IN FEBRUARY OF 2005, LESS THAN ONE YEAR PRIOR TO THE FILING OF THE INSTANT LAWSUIT. FURTHERMORE, IT IS UNDISPUTED THAT THE ‘DISCOVERY RULE’ APPLIES TO PLAINTIFF’S JONES ACT AND UNSEAWORTHINESS CLAIMS, AND YET CARNIVAL POINTS TO NO EVIDENCE IN THEIR MOTION THAT DEMONSTRATES THAT MR. CARAFFA KNEW OR SHOULD HAVE KNOWN THAT HIS CANCER WAS CAUSED BY EXPOSURE TO ASBESTOS BEFORE JANUARY 17, 2003 (THREE YEARS PRIOR TO THE FILING OF THE INSTANT LAWSUIT). AS SUCH, CARNIVAL’S MOTION IS WITHOUT MERIT.
Benedetto Caraffa was an Italian Seaman who worked on Carnival Vessels for approximately 15 years (1985-2000). The Plaintiff alleges that throughout this time period, Carnival exposed Mr. Caraffa to asbestos, which ultimately caused pulmonary cancer and led to his untimely death. Asbestos claims are the classic latent injury claims which are governed by the ‘discovery rule.’ As such, despite the fact that the alleged tortious conduct began decades ago, the uniform position under the General Maritime Law is that “a cause of action “accrues” when the plaintiff knew or should have known of his injury and its cause.” White v. Mercury Marine, 129 F. 3d 1428, 1435 (11th Cir. 1997). Herein, there is not a single piece of evidence that indicates that Mr. Caraffa knew or should have known of the cause of his injury outside of the applicable 3 year statute of limitations.
Nonetheless, on October 17, 2011, Carnival filed its Motion for Summary Judgment regarding its Affirmative Defense of Statute of Limitations. Simply put, for the purposes of this motion, Carnival has the burden to prove that it is an undisputed fact that Mr. Caraffa knew or should have known that he had an asbestos related illness that was caused by asbestos on Carnival’s ships, prior to January 17, 2003 (three years prior to the filing of the instant lawsuit). Carnival cannot meet this significant burden because there are no record facts which show Mr. Caraffa knew or should have known his cancer was caused by asbestos on Carnival’s ships prior to January 17, 2003.
One simple question to Carnival disposes of the instant motion: Where is a single piece of evidence which shows that Mr. Caraffa knew his cancer was caused by asbestos prior to January 17, 2003? The answer is: there is none.
Furthermore, Carnival’s reliance of Pennsylvania law for the proposition that the burden is shifted to the plaintiff to prove a negative (that Mr. Caraffa did not know that his cancer was caused by asbestos on Carnival’s ships) is both misplaced and absurd.
II. THE RECORD FACTS
Carnival’s Motion sets out its list of allegedly “undisputed facts.” Notably, not a single fact set out by Carnival shows that Mr. Caraffa knew his cancer was caused by asbestos prior to January 17, 2003. Nonetheless, Plaintiff disputes Carnival’s claimed undisputed fact #6, which states:
“On April 2, 2003, Lloyd Triestino responded to Decedent’s request providing Decedent with a declaration of the vessels upon which Decedent worked where Decedent was exposed to asbestos. Subsequent to receiving this letter, Decedent sent the declaration of benefits to INAIL for recognition of risk of exposure to asbestos in order to obtain increased pension benefits. INAIL stamped the document as received on January 22, 2004.”
Plaintiff disputes this because Lloyd Triestino’s response only lists the ships on which Mr. Caraffa worked while in their employ. The letter says nothing regarding exposure to asbestos.
III. TIMELINE OF RELEVANT EVENTS
For clarity’s sake, Plaintiff sets out the applicable timeline of events, to show this Honorable Court that Carnival’s instant Motion for Summary Judgment is baseless.
After a fifteen year career with Carnival, on December 14, 2000, Mr. Caraffa signed off the Carnival Fantasy due to illness related to his eyes. On February 21, 2001, Mr. Caraffa went to the hospital in his hometown of Genoa, Italy, due to symptoms with his lungs. No medical records generated during Mr. Caraffa’s hospital stay mention asbestos. In May of 2001 Mr. Caraffa underwent a biopsy and radiology tests. He was subsequently diagnosed with lung cancer. No mention of asbestos is made in any of these medical records.
On November 19, 2001, Enterprise Shipping Agency notified Mr. Caraffa that Carnival would be discontinuing medical benefits for Mr. Caraffa. And on December 7, 2001, Mr. Caraffa contacted Carnival asking for assistance with his medical costs because of his health condition. Copy attached as exhibit 1. No mention of asbestos is made in any of these records.
On March 21, 2002 Mr. Caraffa received a declaration of invalidity from the Italian Social Security Administration. Copy attached as exhibit 2. No mention of asbestos is made in this document.
The firstmention of asbestos comes from an undated letter written by Mr. Caraffa to his former employer Lloyd Triestino. Copy attached as Exhibit 3. In that letter Mr. Caraffa asks for a list of all the ships he had worked on for the purpose of obtaining increased social security benefits by reason of risk of asbestos exposure. The response to this letter came from Lloyd Triestino on April 2, 2003, listing the ships Mr. Caraffa worked on, but the response letter makes no mention of asbestos. Copy attached as Exhibit 4.
Next, there is a May 16, 2003, letter from Mr. Caraffa’s Italian lawyer, Francisco de Sanctis, to Carnival. This letter states that Mr. Caraffa contacted de Sanctis indicating that he had an occupational disease. Copy attached as Exhibit 5. Thereafter, Mr. Caraffa and his Italian lawyer attempted to obtain increased pension benefits from INAIL, the Italian governmental organization that handles employee benefits.
In furtherance of this effort, Mr. Caraffa visited Dr. Bruno Bogetti, who examined Mr. Caraffa in May of 2004, and issued a report citing asbestos as the cause of his cancer. Copy attached as Exhibit 6. Mr. Caraffa then presented to Dr. Gustavo Mari, a medical legal expert, based on his examination and the medical documents, Dr. Mari published his report on July 12, 2004. This report indicated Mr. Caraffa’s cancer was caused by asbestos exposure on ships. Copy attached as Exhibit 7.
Notably, on November 19, 2004, in response to Attorney de Sanctis, Carnival denied any responsibility for Mr. Caraffa’s illness and stated “I would like to point out that in relation to your client’s pulmonary neoplasia, there is absolutely no diagnosis of asbestos.” Copy attached as Exhibit 8.
On February 6, 2005, Mr. Caraffa passed away. The autopsy performed on February 17, 2005, by Dr. Maria Sironi, who confirmed the presence of asbestos in Mr. Caraffa’s lungs. Copy attached as Exhibit 9.
On January 17, 2006 Ms. Caraffa filed the instant lawsuit.
A brief review of the record facts shows that there are simply no facts which support Carnival’s argument that the statute of limitations has expired. The earliest record facts which show when Mr. Caraffa first suspected his illness was work related are roughly around April of 2003. Plaintiff filed her case on January 17, 2006. Accordingly, nothing indicates Mr. Caraffa knew or should have known more than three years prior to the filing of this lawsuit that he had cancer caused by exposure to asbestos.
IV. SUMMARY JUDGMENT STANDARD
To obtain a summary judgment Carnival must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the Plaintiff. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977).
In this case of latent injury, to obtain summary judgment based on the statute of limitations, Carnival must show conclusively that Mr. Caraffa knew or should have known that his Cancer was related to his work on Carnival vessels prior to January 17, 2003. See Urie v. Thompson, 337 U.S. 163 (1949) and United States v. Kubrick, 444 U.S. 111 (1979). The facts must be so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So.2d 94 (Fla. 1957).
If any of the evidence raises any issue of material fact, if it is conflicting, if it allows for different reasonable inferences, or if it tends to prove the issues, then the question should be submitted to the jury as a question of fact. Williams v. Lake City, 62 So.2d 723 (Fla. 1953). Controlling precedent makes clear that this is particularly appropriate when dealing with the statute of limitations affirmative defense because such questions are, “generally treated as [a] fact question for a jury to resolve, and therefore inappropriate for resolution on summary judgment or directed verdict.” Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984).
A party moving for summary judgment bears an even more onerous burden in Jones Act Cases. See Trochez v. Holland-American Cruise Lines, 353 So.2d 864 (Fla. 3d DCA 1977). The Third DCA has held that there must be a complete absence of probative facts to support a claim of negligence before the court can grant summary judgment. See Dos Santos v. Ajax Nav. Corp., 531 So.2d 231 (Fla. 3d DCA 1988).
V. CARNIVAL KNOWS FULL WELL THAT PLAINTIFF’S CLAIM FOR WRONGFUL DEATH IS NOT BARRED BY THE STATUTE OF LIMITATION BECAUSE THE WRONGFUL DEATH DID NOT ACCRUE UNTIL THE DATE OF MR. CARAFFA’S DEATH, AND PLAINTIFF FILED THE INSTANT LAWSUIT LESS THAN A YEAR LATER.
It is black letter law that a claim from wrongful death does not accrue until the date of death. Gaudet v. Sea-Land Services, Inc., 463 F.2d 1331, 1334 (5th Cir. 1972) aff’d, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974); Walker v. Beach Aircraft Corp., 320 So.2d 418 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976). Mr. Caraffa passed away on February 6, 2005. Neither party disagrees there is a 3 year statute of limitation for the maritime causes of action herein. Therefore, Ms. Caraffa’s claim for wrongful death would only be barred were it filed after February 2, 2008. However, Plaintiff’s lawsuit was filed less than a year after Mr. Caraffa’s untimely death (on January 17, 2006). Without a doubt, Mrs. Caraffa filed the wrongful death claim well within the three year statute of limitations. Carnival failed to even mention this fact. This, in and of itself, should be grounds for sanctions.
VI. COUNSEL FOR CARNIVAL, WHICH HANDLES HUNDREDS OF CRUISE SHIP CLAIMS, KNOWS TOO WELL THAT THE APPLICABLE LAW IS GENERAL MARITIME LAW, NOT PENNSYLVANIA LAW.
Counsel for Carnival, Foreman Friedman, P.A., handles cruise ship maritime claims all the time. Carnival and its counsel know full well that the applicable law is General Maritime Law. Remarkably, in the other Motion for Summary Judgment filed by Carnival, they highlight in a header: “B. This Action is Governed by General Maritime Law.” Carnival’s Motion for Summary Judgment regarding Exposure, p. 7. (emphasis supplied in original). Nonetheless, the crux of Carnival’s Motion for Summary Judgment regarding Statute of Limitations is predicated on Pennsylvania law. This is either intentionally done, or negligently done. In either case, sanctions should be entered for such a facially frivolous filing.
First, Carnival cites to em>Van Buskirk v. Cary Canadian Mines, Ltd., 760 F. 2d 481 (3d Cir. 1984), a case which expressly states: “it is conceded that Pennsylvania law applies.” Id. at 485 (emphasis added). Tellingly, Carnival’s motion makes no mention as to how or why Pennsylvania law would even be remotely applicable to this action.
That’s because Pennsylvania law is irrelevant.
Carnival’s sanction-worthy conduct continues as it attempts to disguise Pennsylvania law by citing to a Jones Act case. This time Carnival cites to a district court case from Pennsylvania, Souders v. Atlantic Richfield Co., 746 F. Supp. 570 (E.D. Pa. 1990), which states “The burden is on plaintiffs to prove that the discovery rule applies and that the action was timely filed. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir. 1985).” Souders cites to Van Buskirk; thus, Souders argument is also based on Pennsylvania law.
The remainder of Defendant’s authority is equally baseless. Kelleher v. Lumber, 152 N.H. 813, 824 (N.H. 2005) was cited by Carnival for the proposition that Plaintiff has to prove the discovery rule applies. However, Defendant fails to note that this is a New Hampshire state case, interpreting a statutory discovery rule codified in New Hampshire’s state code at RSA 508:4, I.
Carnival cites to these irrelevant, inapplicable cases and argues, “to meet her burden in the present case, Plaintiff must prove that she filed her complaint not more than three (3) years after the time that decedent discovered, or reasonably should have discovered, both that (1) he had suffered an injury and (2) the cause of said injury.” Carnival’s Motion p. 9-10. In short, it is Carnival’s position that, according to Pennsylvania law, it is Plaintiff’s burden of proof on the issue of statute of limitations, not Carnival’s. This argument is easily shown to be untrue.
Turning to the law that actually applies, the uniform position under the General Maritime Law is that “a cause of action “accrues” for the purposes of 46 U.S.C. App. § 763a when the plaintiff knew or should have known of his injury and its cause.” White v. Mercury Marine, 129 F. 3d 1428, 1435 (11th Cir. 1997). This uniform position was recently (and succinctly) described by the Fifth Circuit Court of Appeals in Pretus v. Diamond Offshore Drilling Inc., 571 F. 3d 478, 481 (5th Cir. 2009), as follows:
“A cause of action under the Jones Act and general maritime law accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.” Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991) (citing Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984)). One of the early cases establishing the framework for this rule is Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), where a worker inhaled silica dust over the course of thirty years of work but became aware of an injury–a related occupational disease, silicosis–only after his symptoms became so severe he became unable to work and was diagnosed with silicosis. Id. at 165-66. His employer tried to defend under FELA’s three year statute of limitations, but the court rejected the defense, saying that the statute of limitations was not meant to apply to facts that were “unknown and inherently unknowable.” Id. at 169. This rule, that the statute of limitations is not triggered under certain conditions when the employee does not know of his injury or illness, came to be known as the discovery rule.
Pretus, 571 F. 3d at 481-82, citing Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228-29 (5th Cir. 1984).
Accordingly, it is well settled the discovery rule applies in this Asbestos action.
Turning to the issue of who has the burden of proof regarding the statute of limitations defense, it is first important to further clarify the applicable law. As stated above, it is well established that general maritime law generally applies to lawsuits arising from torts on navigable waters. See Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488 (Fla. 3d DCA 1986), review denied, 508 So. 2d 15 (Fla. 1987); Hallman v. Carnival Cruise Lines, Inc., 459 So. 2d 378 (Fla. 3d DCA 1984); Roundtree v. A. P. Moller S.S. Co., 218 So. 2d 771 (Fla. 1st DCA 1969). However, a state court may apply state law to a maritime action so long as there is no conflict with federal maritime law. See Southworth Mach. Co., Inc. v. F/V Corey Pride, 994 F.2d 37 (1st. Cir. 1993); Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409 (9th Cir. 1990); see also Coastal Fuels Marketing, Inc. v. Florida Exp. Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir. 2000) (“when neither statutory nor judicially created maritime principles provide an answer to a specific legal question, courts may apply state law provided that the application of state law does not frustrate national interests in having uniformity in admiralty law.”) Accordingly, where general maritime law is silent as to who has the burden (as it appears to be here), then this Honorable Court looks to Florida law (not Pennsylvania or New Hampshire law) for guidance.
To this point, controlling Florida law holds that it is Defendant’s burden of proof on the statute of limitations defense. As the Third District Court of Appeal has held, the burden falls on the defendant to demonstrate the nonexistence of a fact material to the case as to whether the plaintiff discovered his or her cause of action more than four years before the filing of the complaint. Brown v. Armstrong World Indus., 441 So. 2d. 1098 (Fla. 3d DCA 1983). And the Eleventh Circuit Court of Appeals recently held “[a] defendant’s argument that a claim is barred by the statute of limitations raises an affirmative defense, and it is beyond dispute that the defendants have the burden of proof in establishing the elements of the affirmative defense of the statute of limitations.” Steward v. Int’l Longshoreman’s Ass’n, Local No. 1408, 306 Fed. Appx. 527 (11th Cir. Fla. 2009) citing Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1292 (11th Cir. 2005)(emphasis added); see also Harrison v. Thompson, 447 F.2d 459, 460 (5th Cir. Tex. 1971)(Rule 8(c), Federal Rules of Civil Procedure, characterizes the expiration of the statute of limitations as an affirmative defense. The burden of proof was therefore on appellee to plead such defense affirmatively and to establish it by proof.); Elmore v. Fla. Power & Light Co., 895 So. 2d 475, 478 (Fla. 4th DCA 2005) citing Town of Miami Springs v. Lawrence, 102 So. 2d 143, 146 (Fla. 1958)(The pleader has the burden to prove the statute of limitations affirmative defense.)See also Green v. Roberts, 2011 WL 4915231 (S.D. Ala. Oct. 14, 2011) citing La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (“A statute of limitations bar is an affirmative defense and … plaintiffs are not required to negate an affirmative defense in their complaint.”). Accordingly, two things are clear: i) Florida law succinctly holds that a defendant has the burden of proof regarding the Affirmative Defense of statute of limitations; and ii) Carnival’s Motion for Summary Judgment has no basis under the law.
VII. IN ADDITION TO CARNIVAL’S BASELESS LEGAL ARGUMENTS REGARDING PENNSYLVANIA LAW, CARNIVAL ALSO FAILS TO PROVIDE ANY RECORD FACT WHICH SHOWS THAT MR. CARAFFA KNEW OR SHOULD HAVE KNOWN BEFORE JANUARY 17, 2003, THAT HIS CANCER WAS CAUSED BY EXPOSURE TO ASBESTOS.
Having straightened out Carnival’s sanction worthy attempts to misguide this Honorable Court regarding the burden of proof, the record facts set forth above succinctly show that Carnival’s Motion is devoid of merit. The earliest record facts which show when Mr. Caraffa first suspected his illness was work related are roughly around April of 2003. Plaintiff filed her case on January 17, 2006. Accordingly, nothing in the record indicates Mr. Caraffa knew or should have known more than three years prior to the filing of this lawsuit that he had cancer caused by exposure to asbestos on Carnival vessels. In fact, all of the record evidence, including all of the records attached to Defendant’s Motion for Summary Judgment, show that Mr. Caraffa first became aware, or suspicious at least, of the link between his cancer and asbestos exposure, sometime around April of 2004. Accordingly, Plaintiff’s filing of this lawsuit on January 17, 2006 was timely.
VII. Lastly, Carnival ignores the wealth of case law which holds that Carnival’s Statute of Limitations argument is a question of fact for a jury.
At worst, Carnival’s argument regarding the statute of limitations is a question of fact for a jury. The case law is clear that the issue of the plaintiff’s diligence in commencing suit is normally a question of fact to be determined by the jury. Byington v. A.H. Robins Co., Inc., 580 F. Supp. 1513 (S.D. Fla. 1984); see Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 939 (Fla. 2000) (question of when statute of limitations began to run in case of latent or “creeping disease” is question of fact); Celotex Corp. v. Copeland, 471 So. 2d 533 (Fla. 1985); Brown v. Armstrong World Indus., 441 So. 2d 1098 (Fla. 3d DCA 1983). Accordingly, the affirmative defense raised by Carnival is a question of fact for the jury.
Defendant’s Motion for Summary Judgment has no basis in fact or law. It is purely an attempt to twist facts, logic, and law in an effort to pull the wool over the eyes of the court and take questions of fact away from the Jury. Any defense based on the statute of limitation is necessarily a question to be resolved by the Jury, and Carnival filed their motion for summary judgment knowing it was frivolous.
 Construing all reasonable inference in favor of the Plaintiff (the non moving party), at worst, the earliest date of possible knowledge regarding the link between asbestos and his lung cancer would be one month prior to the April 2, 2003, letter from Lloyd’s Triestino.