Jeffrey Herman v. C.G. v. 63’ Hatters Motor Yacht “SANDY SUN”

Lipcon, Margulies, Alsina & Winkleman, P.A

September 11, 2014

Jeffrey Herman v. C.G. v. 63’ Hatters Motor Yacht “SANDY SUN”

COMPLAINT OF JEFFREY M. HERMAN,
As Owner of the 2001, 63’ Hatteras Motor
Yacht “SANDY SUN”, Hull I.D. No.
HATGP301B101, FOR EXONERATION
FROM OR LIMITATION OF LIABILITY,
Petitioner/Counter-Defendant,

v.

C.G.,
Respondent/Counter-Claimant/Third-Party Plaintiff (“Claimant”),
HATTERAS YACHTS, BRUNSWICK CORPORATION,
YACHT MANAGEMENT SOUTH FLORIDA, INC.,
TERRA NOVA II INVESTMENT INC., MATTHEW D. HAGANS,
KATHERINE J. HAGANS, YACHT SALES CONSULTANTS INC.,
JOHN DOE, XYZ CORP.,
Third-Party Defendants,

v.

63’ Hatters Motor Yacht “SANDY SUN”
Hull I.D. No. HATGP301B101,
Third-Party Defendant In Rem.

____________________________________/

RESPONDENT/COUNTER-CLAIMANT/THIRD-PARTY PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT AS TO LIABILITY ONLY AGAINST THIRD-PARTY DEFENDANT, YACHT SALES CONSULTANTS INC.

The Respondent/Counter-Claimant/Third-Party Plaintiff, C.G. (“Claimant”), by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 55 as well as the Clerk’s Entry of Default on August 14, 2014 [D.E. 106], hereby files the instant Motion for Entry of Final Judgment as to Liability Only against Third-Party Defendant, YACHT SALES CONSULTANTS INC.  In support thereof, the Claimant states as follows:

1. Introduction

The instant matter arises out of the severe personal injuries the Claimant sustained aboard the vessel, SANDY SUN, on or about February 6, 2013.  Specifically, on that date, the Claimant was employed for the purpose of cleaning and maintaining the vessel. [D.E. 31, ¶12].  Throughout the course of doing so, the Claimant was walking down steps that he alleges were unreasonably dangerous, and he slipped. [Id. at ¶13-14].  Upon slipping, the Claimant reached overhead and held onto the hatch door in an effort to prevent himself from falling. [Id. at ¶15].  Unbeknownst to the Claimant, however, the hatch door had been modified and did not contain any safety edging. [Id.]  As a result, the Claimant’s little finger in his right hand was severed and approximately 18 inches of his tendon was pulled out. [Id.]

Thereafter, on or about August 9, 2013, the owner of the vessel at the time of the incident, JEFFREY M. HERMAN, filed this action seeking to exonerate or limit any liability assessed against him for the Claimant’s accident and injuries to the value of the subject vessel. [D.E. 1].  In response, the Claimant filed his Answer and Counterclaim against JEFFREY M. HERMAN, alleging Negligence (Count I); (Sieracki) Jones Act Negligence (Count II); and (Sieracki) Unseaworthiness (Count III). [D.E. 31].  The Claimant also filed a Third-Party Complaint, alleging Jones Act Negligence, Failure to Pay Maintenance and Cure and Failure to Treat against one of the Claimant’s employers, YACHT MANAGEMENT OF SOUTH FLORIDA, INC. (Counts I, II and III, respectively); Negligence and Unseaworthiness against the Vessel, Sandy Sun (Counts IV and V, respectively); Negligence against all prior owners of the vessel TERRA NOVA II INVESTMENT INC., MATTHEW D. HAGANS, KATHERINE J. HAGANS, and YACHT SALES CONSULTANTS INC. (Count VI); and Products Liability, Defective Design and Negligence against the manufacturers of the vessel, HATTERAS YACHTS and BRUNSWICK CORPORATION (Count VII) [Id.].

At issue herein is the default against one of the prior owners of the vessel, YACHT SALES CONSULTANTS INC. (“Yacht Sales”) [D.E. 106] for which the Claimant hereby seeks the entry of Final Judgment as to Liability Only against it.

2. Procedural History and the Clerk’s Entry of Default against Yacht Sales

On March 24, 2014, the Claimant filed his Third-Party Complaint against, inter alia, Yacht Sales. [D.E. 31].  On June 6, 2014, Yacht Sales was served with the Third-Party Complaint and Summons through its registered agent, Matthew P. Lavin. [D.E. 95]; see also Exhibit 1, listing Matthew P. Lavin as the Registered Agent in the website for the Florida Department of State, Division of Corporations.

Despite the aforementioned service, however, Yacht Sales failed to serve a responsive pleading.  Accordingly, on August 13, 2014, the Claimant moved for the Clerk’s entry of default against Yacht Sales. [D.E. 105].  As stated in his Motion for Default, Federal Rule of Civil Procedure 4 provides that a corporation may be served “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process”. Fed. R. Civ. P. 4(h)(1)(B). Yacht Sales was therefore properly served under Rule 4 and, pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i), it was required to serve a responsive pleading or motion on or before June 27, 2014 (21 days after it received the Third-Party Complaint and Summons on June 6, 2014).

Based on the foregoing facts and law, on August 14, 2014, the Clerk declared Yacht Sales in default “for failure to appear, answer or otherwise plead to the complaint filed herein within the time required by law.” [D.E. 106].  On August 14, 2014, the Claimant sent Yacht Sales a copy of the Claimant’s Motion for Default as well as the Clerk’s Order of Default via U.S. Certified Mail. (See signed receipt attached hereto as Exhibit 2.)  Nevertheless, to date, Yacht Sales has not sought to vacate the default or otherwise appear and defend this action.

This Honorable Court should enter Final Judgment against Yacht Sales.

Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter a default judgment against a properly served defendant, who, like Yacht Sales here, failed to file a timely responsive pleading. “If the Court determines that the defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975))[1]; see also Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987); PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1217 (S.D. Fla. 2004).

“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established.” Crowley, supra (citing Nishimatsu, supra). Moreover, “[a] default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.” Id.; see also Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (“It is nearly axiomatic that when a default judgment is entered, facts alleged in the complaint may not be later contested.”).

Accordingly, by virtue of its default, Yacht Sales has admitted the well-pled allegations of Negligence (Count VI) in the Complaint. [D.E. 31].

Specifically, in order to satisfy the burden of proof in a negligence action, the Claimant must show that: 1) the defendant owed plaintiff a duty; 2) the defendant breached that duty; 3) the breach was the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

As to the first element, in the context of admiralty torts, “duty” was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). In Kermarec, the Supreme Court held that the owner of a ship owes the duty of exercising reasonable care under the circumstances of each case.  Herein, the Claimant succinctly alleged in paragraph 7 of the Third-Party Complaint that Yacht Sales is the former owner of the vessel Sandy Sun, previously named Queen Nevine / Amajen. [D.E. 31, ¶7].  Therefore, as an owner of the vessel, Yacht Sales owed a duty of exercising reasonable care under the circumstances.

The applicable standard of reasonable care also “requires, as a prerequisite to imposing liability, that the carrier had actual or constructive notice of the risk creating condition.” Keefe v. Bahama Cruise Line., Inc., 867 F. 2d 1318 (11th Cir. 1989). Constructive notice may be established through evidence which shows 1) that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the defendant should have known of the condition; or 2) that the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000).  Herein, the Claimant also pled such constructive notice in Paragraph 62 of the Third-Party Complaint: “Third Party Defendants [including Yacht Sales] knew of the foregoing conditions causing Third Party Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Third Party Defendant in the exercise of reasonable care under the circumstances should have learned of them and corrected them.” [D.E. 31, 62] (emphasis added).

The Claimant also pled the second element of Yacht Sales’ breach in multiple paragraphs throughout the Third-Party Complaint.  First, the Claimant alleged that the vessel was not reasonably fit for its intended purpose as a result of Yacht Sales’ actions, and the Claimant went on to plead such actions with sufficient factual matter as follows:

1. Having an unreasonably dangerous hatch door; and/or

2. Failing to protect against the dangers of the hatch door; and/or

3. Failing to warn of the hazard of the hatch door; and/or

4. Replacing the original hatch door with an unreasonably dangerous hatch door; and/or

5. Failing to have adequate handrails and/or handgrabs and/or handholds in the vicinity of the stairs adjacent to the hatch door; and/or

6. Failing to have a reasonably safe set of stairs adjacent to the hatch door; and/or

7. Failing to have adequate non slip or non-skid surface on stairs adjacent to the hatch door; and/or

8. Failing to warn of the dangers of the stairs adjacent to the hatch door; and/or

9. Failing to warn of the hazard of not having adequate handrails and/or handgrabs and/or handholds in the vicinity of the stairs adjacent to the hatch door; and/or

10. Failing to promulgate and/or enforce adequate policies and/or procedures regarding use of the stairs adjacent to the hatch door; and/or

11. Failing to keep the stairs adjacent to the hatch door in a clean and/or dry condition; and/or

12. Failing to adequately warn of dangers aboard the vessel; and/or

13. Failing to adequately warn of latent defects aboard the vessel; and/or

14. Creating a dangerous condition aboard the vessel; and/or

15. Failing to adequately train and/or supervise crew aboard the vessel

[D.E. 31, 59(a)-(o)].

The Claimant also pled that Yacht Sales negligently failed to determine the hazards on the vessel, failed to eliminate the hazard, failed to modify the hazard and failed to properly warn the Claimant of the hazard. [D.E. 31, ¶61].

It remains black-letter law today that a complaint need not provide detailed factual allegations. As the Supreme Court explained, Rule “8(a)(2) requires only a short and plain statement of the claim showing that a pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S. Ct. 1955, 1959, 167 L. Ed. 2d 929 (2007).  The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (citing Twombly, supra).

Accordingly, the Claimant set forth in succinct, enumerated statements Yacht Sales’ negligence with sufficient particularity to give Yacht Sales notice of what the claim is and the grounds upon which it rests in accordance with Federal Rule of Civil Procedure 8(a) and the Supreme Court’s cases in Erickson, and Twombly.  Moreover, these facts are sufficient to draw a reasonable inference of negligence against Yacht Sales. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

As to the third and fourth elements of proximate causation and damages, the Claimant alleged in paragraph 57 of the Third-Party Complaint that “[a]s a direct and proximate result of modifying and/or replacing the equipment aboard the vessel including, but not limited, to replacing the hatch door, the Third Party Plaintiff [Claimant] was severely injured.” [D.E. 31, ¶57].  The Claimant went on to plead the damages in detail in Paragraph 63 as follows: “As a result of the negligence of [Yacht Sales] the Third Party Plaintiff [Claimant] was injured about Claimant’s body and extremities, suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement…” [D.E. 31, ¶63].  Accordingly, the Claimant correctly pled that the breach was the proximate cause of the Claimant’s injury and that the Claimant suffered damages.

On these grounds and as a result of its default, Yacht Sales admitted the Claimant’s well-pled allegations of fact supporting negligence (Count VI), is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established. See Crowley Liner Services, Inc. v. Transtainer Corp., 0621995CIVOSULLIVAN, 2007 WL 1526955 (S.D. Fla. May 24, 2007) (citing Nishimatsu Constr. Co., Ltd., v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

WHEREFORE, based on the foregoing, the Claimant respectfully requests that this Honorable Court enter a Final Judgment as to liability against Third-Party Defendant, YACHT SALES CONSULTANTS INC.

RESPECTFULLY SUBMITTED
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Claimant
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Jacqueline Garcell                          
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

[1] Pursuant to Bonner v. City of Pritchard, Ala., 661 F. 2d 1206, 1207 (11th Cir. 1981), decisions rendered by the former Fifth Circuit prior to October 1, 1981 are binding precedent in the Eleventh Circuit.