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1 Volume 32 Number 3 SUMMER 2013 INSIDE: Defining a Vessel Legal Ethics in a Digital Era Pre-Service Removal When Did the Occurrence Occur? and Annual Trial Essentials Pull-out: Future Earnings in Personal Injury Actions Using Requests for Admission to Determine the Amount in Controversy Education. Information. Professionalism. A Publication of the florida defense lawyers association

2 IN THIS ISSUE President s Message By Jeffrey E. Bigman Executive Director s Message By Linda L. Jude Henry Burnett Trial Advocacy Award Editorial Plural s and Possessive s... 4 By Barbara Busharis Recent Legal Developments By Esther E. Galicia All That Floats is not a Boat: The Supreme Court s Lozman Decision Makes Waves Impacting Multiple Areas of Law By Raul J. Chacon Jr. and Adam T. Ferguson Trial Essentials The Plaintiff is Asking for How Much? Using Census Data To Give The Jury a Reliable Number Regarding Future Earnings in Personal Injury Actions By Richard Snyder and Brian Todd Dunmire Requests for Admissions: Establishing the Amount in Controversy in Personal Injury Lawsuits By Michael L. Forte Staying Out of Trouble: Legal Ethics in a Digital Era By Thomas Newcomb Hyde Joined and Served: Pre-Service Removal and the Forum Defendant Rule By Matthew J. Lavisky When Did the Occurrence Occur? By Nicole Fluet 17th Annual Florida Liability Claims Conference New Members FDLA Application for Membership FLORIDA DEFENSE LAWYERS ASSOCIATION THE TRIAL ADVOCATE QUARTERLY PRESIDENT Jeffrey E. Bigman PRESIDENT-ELECT Daniel J. Santaniello SECRETARY-TREASURER Dale J. Paleschic IMMEDIATE PAST PRESIDENT L. Johnson Sarber, III EXECUTIVE DIRECTOR Linda L. Jude DIRECTORS Michael D. McCoy Douglas P. Jones Jeffrey M. Adams Andrew S. Bolin Douglas J. Chumbley Sally H. Seltzer Christopher B. Hopkins Jeffrey W. Johnson J. Charles Ingram David A. Corso Traci T. McKee EDITORIAL BOARD MEMBERS Matthew J. Lavisky, Chair Kelly Bittick Joseph E. Brooks Edward J. Carbone Esther Galicia Betsy Gallagher Christopher B. Hopkins Traci T. McKee Elizabeth Collins Plummer Miguel R. Roura Robert Weill EDITOR Barbara J. Busharis The Trial Advocate Quarterly is published four times a year by FDLA. Subscriptions are part of the membership benefits. Others wishing subscriptions should contact the Florida Defense Lawyers Association. The opinions and materials contained in the Trial Advocate Quarterly are those of the authors and do not necessarily reflect the policy or opinions of the Florida Defense Lawyers Association or of the Editorial Board and staff of the Trial Advocate Quarterly. No guarantee is made as to the accuracy of the articles; attorneys are cautioned that our materials must be cross-checked and updated, as must all legal materials. Submit articles or query letters to: Barbara Busharis, TAQ Editor, in care of the Florida Defense Lawyers Association, P.O. Box , Tampa, Florida All materials in this publication are copyrighted by The Florida Defense Lawyers Association, July All rights protected.

3 PRESIDENT S MESSAGE Progress? By Jeffrey E. Bigman Our society is moving further and further away from personal contact. , texting, video conferencing, telecommuting, social networking (via computers), conference calls, remote access, smart phones, tablets (no not Bayer aspirin) these are all things that didn t exist when I started practicing law in I make use of all of these and certainly don t plan on stopping anytime soon, but with the advances come many dangers. The biggest danger is that all of these conveniences lessen the face-to-face interactions we used to have. Even when we have face-toface interactions, it s not unusual for people to have their smart phones at the ready. Karin and I actually felt it necessary to make our own rule to keep the Iphones away from our meals. I ve seen families eating together at restaurants while each family member is using an electronic device. Direct personal contact adds to our humanity. Yahoo CEO, Marissa Mayer, even went so far as to ban telecommuting. The immediacy of and texting often leads to harsher tones than when people have face to face, telephone and even letter exchanges. I ve seen people put attitude in texts and s that they wouldn t even consider using in the other methods of communicating. It s almost as if they believe s and texts don t matter or are anonymous. These methods need a good filter perhaps an app reminding us to think before you text or the way our mothers used to remind us think before you speak and if you don t have anything good to say, don t say anything at all. In the past, when I would write what I considered a letter with bite to it, I would always sleep on it for a day and usually show a draft to one or two of my partners before actually mailing it. Many times such a letter would allow me to vent but then end up in the circular file while a more civil one got a stamp on it. I get the impression similar patience and editing is not occurring with s and texts. One of the things I treasure about the FDLA is the face-to-face interaction with excellent defense lawyers throughout the state at our three meetings annually. It s so much easier to maintain personal relationships once you ve put face to name or voice. I encourage you all to attend as many of our events as possible. As my year as President comes to an end, I would be remiss not to thank the Board, the Executive Board and the Committee Chairs for all of their efforts throughout the year. I especially want to thank our Executive Director, Linda Jude, for her tireless efforts on behalf of the FDLA. She is the glue that makes this organization run. She is coming up on 15 years in her role, and that history gives her the ability to guide each President and Board on the path of what needs to be done throughout the year. Thank you Linda! - 1 -

4 EXECUTIVE DIRECTOR S MESSAGE By Linda L. Jude It s hard to believe I ve been with FDLA for nearly 15 years, arriving in sunny Florida in February 1999 from wintry Minnesota. And that s why I refused to attend my first couple of FDLA Winter Meetings. At times, it feels like I ve been here forever; at other times I feel like a novice especially when faced with new and different situations. It has been my privilege to work with many outstanding officers, directors, committee chairs and of course, members. Each year the officers (and some directors) of FDLA change. Some have been easier to work with than others as is true in all occupations. All the officers and directors have always been concerned about FDLA and what is in the best interests of the members of the association. Over the past years there have been many changes at FDLA. Many of the changes have been technological expansion and revising of the FDLA website; increased use of s for communication; information sharing via ; webinars. Technology will continue to change the way things are done more information and communication will be electronic. More and more FDLA members rely on electronic devices to communicate with clients, receive documents, read newspapers and magazines. The Trial Advocate Quarterly has been revised; a PDF version is now available in the Member area of the FDLA website, and more changes will probably occur. FDLA adopted a new logo and tag line Education. Information. Professionalism. These three words succinctly describe FDLA s purposes. FDLA has continued with its outstanding defense-oriented seminars at the Winter Meeting, the Annual Meeting and the annual Florida Liability Claims Conference. The Board continues to discuss ways to improve the seminars and to increase attendance. Not all the changes have been positive. There is concern about the future of FDLA membership numbers and the number of active members have decreased. The economic climate, business demands, competition from other associations, family obligations these all influence the time and ability to contribute to FDLA. Periodically I have to step back and remind myself that this is not my association it s yours. FDLA belongs to the members. My role is to help the association make FDLA what you want and need it to be. FDLA needs to know what you value about FDLA and what you would like from it. Please let us know

5 William Gower III Recipient of the 2013 FDLA Henry Burnett Trial Advocacy Award Andrew Bolin, William Gower III (recipient), Christopher M. Pietruszkiewicz, Dean and Professor of Law at Stetson University College of Law. In June 2006 the FDLA Board of Directors unanimously approved the creation of the FDLA Henry Burnett Trial Advocacy Award at Stetson University College of Law. Nominations for the award are submitted by Stetson s Center for Excellence in Advocacy and confirmed by the College s Honors and Awards Committee. The scholarship is awarded annually to a law student excelling in Trial Advocacy at Stetson University College of Law. The award, named for Henry Burnett, first President of the Florida Defense Lawyers Association, is in recognition of the indelible impression made by Mr. Burnett on the defense practice throughout the State of Florida. FDLA is delighted to report that William Gower III is the 2013 recipient of the Henry Burnett Trial Advocacy Award. William is from Brandon, Florida and is an alumnus of the University of Florida, where he received a BA in Economics. He is a candidate for an Advocacy Concentration Certificate from Stetson University College of Law. William has volunteered over 100 hours of legal Pro Bono service for the Public Defender s Office and has worked as a law clerk at Banker Lopez Gassler PA, a civil defense firm. While at Stetson he was a semi-finalist at the National Civil Trial Competition, named Best Advocate at the Florida Trial Lawyers section annual Chester Bedell Mock Trial Tournament, and was Champion at the AAJ Regional Mock Trial Competition. William has accepted a position at Banker Lopez Gassler PA, in the firm s General Trial Practice Group, after graduation. The award was presented at the Stetson University College of Law Honors and Awards Ceremony on Friday, May 17, Andrew S. Bolin (Beytin McLaughlin McLaughlin O Hara & Bolin PA), District 2 FDLA Director, represented FDLA at the ceremony and presented the award. Andy is also a graduate of Stetson University College of Law

6 EDITORIAL Plural s and Possessive s By Barbara Busharis The Fourth District Court of Appeal recently issued an opinion that was especially heartening for those of us who are doomed to go through life noticing punctuation errors. 1 In Bradshaw v. Boynton-JCP Associates, Ltd., 2 the court reversed an award of attorney s fees because misplaced apostrophes in the original offer of judgment made the offer unclear. The court succinctly explained: The offer was apostrophechallenged, creating ambiguities as to whether the drafter intended references to singular or plural defendants or plaintiffs. The offer, entitled Defendant s Joint Proposal for Settlement, also appears to have been adopted from a form without sufficient editing; it requires Plaintiff (s) to execute a stipulation, and Plaintiff(s) to execute a general release of Defendant(s). The use of apostrophes in what is clearly intended to be a plural form is often merely amusing. When I get a holiday card from The Stoner s, for example, I immediately try to fill in the missing object to which The Stoner refers. But, as Bradshaw shows, the consequences of carelessly wielding apostrophes can be more serious. Some of the confusion may stem from punctuation rules that, not surprisingly, vary from one style manual to the next. We learn that an apostrophe is used in some plural forms, and so, when in doubt, we toss one in. However, the safer approach is when in doubt, leave it out. Reserve the apostrophe for showing possession: the plaintiff s allegations refers to allegations made by one plaintiff, while the plaintiffs allegations refers to allegations made by multiple plaintiffs. A confession: I always hesitate when writing the plural of a period of years, as in I m going to a 1970s theme party. At one time I was either taught, or read, that 1970s required an apostrophe. According to most current style manuals, it does not. 3 Neither does DVD ( we watched DVDs all weekend ), no matter what your spell-checker tells you. Some cases are even more straightforward. Pluralizing a family name never requires an apostrophe; nor does pluralizing nouns in general. The plural of plaintiff is always plaintiffs. The plural of Stoner is always Stoners. 4 Even numbers used as nouns can be made plural simply by adding an s : I have always flown 747s. The only time an apostrophe is reliably part of a plural form is when pluralizing a single letter (or number), as in she got all A s on her report card. Many style guides still recommend them with abbreviations that include periods, such as C.P.A. s. In other situations, they can safely be omitted. Join me in ending apostrophe abuse, and avoid that awkward moment when an award of attorney s fees is reversed. A special note on this issue: we were happy to receive contributions from two Stetson law students, Caitlein Jammo and Andrew Graf, who wrote brief comments on two cases from the Recent Developments column. We hope to invite similar contributions in the future. Suggestions for authors are welcome. This issue also includes the annual Trial Essentials center section. Although this year s section deviates from the format of previous years, we hope it will be a useful addition to your trial notebook. Please feel free to address ideas for future Trial Essentials features to Matt Lavisky at or to me at 1 If you are among those for whom an out-ofplace apostrophe is like a slap in the face, by the way, I apologize for the title, and I hope you feel better soon Fla. L. Weekly D823 (Fla. 4th DCA Apr. 10, 2013). 3 For shortcuts to numerous examples on this topic, try the English Language & Usage Stack Exchange, and in particular the questions and answers available at questions/55970/plurals-of-acronyms-lettersnumbers-use-an- apostrophe-or-not. The Oxford Dictionaries Online also has a helpful page on this topic at com/words/apostrophe. 4 The card I get from the Stoners next December (if they don t read this column) will be the Stoners holiday card

7 Recent Legal Developments By Esther E. Galicia SUPREME COURT DECISIONS 1. Does a plaintiff s fraud on the court confer the trial court with jurisdiction to vacate the plaintiff s subsequent voluntary dismissal? The Florida Supreme Court in Pino v. Bank of New York, 38 Fla. L. Weekly S78 (Fla. Feb. 7, 2013), stated that a trial court does not have jurisdiction to vacate a plaintiff s voluntary dismissal or to reinstate the dismissed action where the fraud on the court which plaintiff allegedly perpetrated did not, if proven, result in plaintiff securing affirmative relief to defendant s detriment. In other words, where a plaintiff does not obtain affirmative relief from the alleged fraud on the court before voluntarily dismissing his action, the trial court does not have the authority via Rule 1.540(b)(3) or its inherent authority to strike the voluntary dismissal. 2. Are the heirs and estate of a deceased nursing home patient bound by the arbitration agreement the decedent executed? In Laizure v. Avante At Leesburg, Inc., 109 So. 3d 752 (Fla. 2013), the Florida Supreme Court held that a validly executed nursing home arbitration agreement binds the patient s estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of the otherwise valid arbitration agreement. The court reasoned that a wrongful death cause of action in Florida is derivative of the decedent s right of action, and the decedent s estate and heirs are thus bound by the decedent s agreement to arbitrate. 3. When does the litigation privilege provide absolute versus qualified immunity to an attorney? Florida s Supreme Court in Delmonico v. Traynor, 38 Fla. L. Weekly S106 (Fla. Feb. 14, 2013), found that the litigation privilege does not provide absolute immunity from liability to an attorney for alleged defamatory statements made by the attorney during ex parte, outof-court questioning of a potential, non-party witness in the course of investigating a pending lawsuit. A qualified privilege does, nevertheless, apply to such ex parte statements as long as they bear some relation to or connection with the subject of inquiry in the underlying lawsuit. If the statements do not bear any relation to or connection with the underlying lawsuit, then the defendant attorney is not entitled to the benefit of any privilege. 4. Does the federal Graves Amendment preempt a long-term lessor s vicarious liability under Florida s dangerous instrumentality doctrine? Florida s Supreme Court in Rosado v. DaimlerChrysler Financial Services Trust, 38 Fla. L. Weekly S217 (Fla. Apr. 4, 2013), held that section (9)(b)(1), Florida Statutes, which creates a process by which long-term lessors of motor vehicles can avoid the default financial responsibility imposed by Florida s dangerous instrumentality doctrine, is preempted by the federal Graves Amendment. The Graves Amendment provides that the owner of a leased or rented vehicle is not vicariously liable for its negligent operation during the rental or lease term. 5. May a court invalidate a class action waiver as against public policy? The Florida Supreme Court in McKenzie Check Advance of Florida, LLC v. Betts, 38 Fla. L. Weekly S223 (Fla. Apr. 11, 2013), concluded that the Federal Arbitration Act preempts the invalidation of a class action waiver on the basis that it is void as against Florida s public policy. In other words, the Supreme Court held that it was without authority to invalidate the class action waiver as against public policy because federal law and the authoritative decision of the United State Supreme Court in AT&T Mobility, LLC v. Conception, 131 S. Ct. 1740, 1744 (2011), precludes the court from doing so. ABOUT THE AUTHOR ESTHER E. GALICIA is a shareholder with Fowler White Burnett P.A. in Miami. Ms. Galicia specializes in civil litigation support and civil appeals at all levels. She is a member of The Florida Bar and is licensed to practice before the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the United States District Court for the Southern and Middle Districts of Florida. She is also a member of the Appellate Practice and Advocacy Section and Civil Appellate Practice Committee of The Florida Bar, the Dade and Broward County Bar Associations, the Defense Research Institute, and the FDLA. A long-time member of the Trial Advocate Quarterly Editorial Board, Ms. Galicia is a member of the Cuban American Bar Association and the Broward County Hispanic Bar Association. Ms. Galicia is AV-rated by Martindale-Hubbell

8 Does the Economic Loss Rule Bar an Insured s Suit against an Insurance Broker Where the Parties are in Contractual Privity with One Another and the Damages Sought Are Solely for Economic Losses? The Florida Supreme Court in Tiara Condominium Association, Inc. v. Marsh & McLennan Cos. recently determined that the economic loss rule does not bar a suit against an insurance broker for economic losses, holding that the application of the economic loss rule is limited solely to products liability cases. In so holding, the Supreme Court receded from decades of prior case law. 1 Facts and Procedural History Tiara Condominium Association ( Tiara ) retained Marsh & McLennan Companies ( Broker ) as its insurance broker. 2 Among its responsibilities, the Broker was tasked with securing condominium insurance coverage. The Broker obtained windstorm coverage through Citizens Property Insurance Corporation, which issued an insurance policy with a loss limit of approximately $50 million. Tiara suffered extensive damage in September 2004 as a result of Hurricanes Frances and Jeanne. Following the storms, Tiara began the process of loss remediation. The Broker assured Tiara that its policy limits were per occurrence, rather than in the aggregate i.e., that Tiara was entitled to $100 million rather than $50 million in coverage. Based on this representation, Tiara proceeded with more expensive remediation efforts, spending more than $100 million. When Tiara sought payment for the remediation efforts from Citizens, Citizens claimed that the loss limit was $50 million in the aggregate, not per occurrence. Tiara and Citizens settled for $89 million, and then Tiara filed suit against the Broker in federal court. 3 In the lawsuit against the Broker, Tiara alleged the following five counts: (1) breach of contract; (2) negligent misrepresentation; (3) breach of the implied covenant of good faith; (4) negligence; and (5) breach of fiduciary duty. 4 The federal trial court granted summary judgment in favor of the Broker as to all claims. Tiara appealed to the Eleventh Circuit, which agreed that summary judgment was appropriate for the breach of contract, negligent misrepresentation, and breach of implied covenant claims. 5 The two remaining claims for negligence and breach of fiduciary duty were based upon Tiara s allegations that the Broker was either negligent or breached its fiduciary duty by failing to advise of its complete insurance needs and by failing to advise Tiara of its belief that Tiara was underinsured. 6 With respect to these two claims, the Eleventh Circuit certified a question to the Florida Supreme Court to determine whether the economic loss rule prohibits recovery, or whether an insurance broker falls within the professional services exception that would allow Tiara to proceeds with the claims against the Broker. 7 Analysis The court initially noted that the economic loss rule originated in product liability cases. The goal of the rule was to address attempts to apply tort remedies to traditional contract law damages. 8 As the court stated, Simply FIRST DISTRICT DECISIONS 6. Under what circumstances is the permanent injury issue for the jury s resolution? The First District in Duclos v. Richardson, 38 Fla. L. Weekly D878 (Fla. 1st DCA Apr. 22, 2013), held that the trial court erred in granting the plaintiff s motion for a judgment notwithstanding the verdict as to the issue of permanent injury. The parties presented conflicting expert testimony on whether the plaintiff sustained a permanent injury in a car accident and the defense expert s testimony was not, contrary to the trial court s finding, so confusing or contradictory as to lack any probative value. Based on the evidence presented, a reasonable jury could have concluded that the accident did not cause the plaintiff to suffer a permanent neck injury and thus plaintiff should not recover future medical expenses. SECOND DISTRICT DECISIONS 7. Should a trial court permit the only remaining defendant to file a third party claim against the dismissed codefendants? In Fish Tale Sales & Service, Inc. v. Nice, 106 So. 3d 57 (Fla. 2d DCA 2013), the Second District held that the trial court departed from the essential requirements of law in denying the defendant retailer s motion to file a third party complaint for indemnity and contribution against the dropped manufacturer defendants in an action alleging strict liability and negligence. Certiorari review was appropriate because the trial court s ruling resulted in material and irreparable harm to the retailer who, unless permitted to implead the dropped defendants, might be exposed to an inconsistent outcome in any independent action against those parties. Furthermore, the retailer did not need to wait until it had actually paid damages to the plaintiffs in order to seek indemnity or contribution from the third-party defendants. 8. When should further pleading be allowed in order to determine whether the medical malpractice pre-suit requirements apply? The Second District in Lakeland Regional Medical Center, Inc. v. Pilgrim, 107 So. 3d 505 (Fla. 2d DCA 2013), concluded that the trial court should have granted the defendant hospital s motion to dismiss the plaintiff s medical malpractice complaint with leave to amend. Plaintiff s allegations that a piece of medical equipment broke during an endoscopy procedure required a factual determination beyond the allegations as to the applicability of the medical malpractice pre-suit requirements. On remand, the plaintiff was to be given an opportunity to amend the complaint to allege compliance with Chapter 766 or to reallege the negligence theory in greater factual detail to demonstrate that the matter involved was only one of ordinary negligence. 9. Do notices of dismissal attached to proposals for settlement render the proposals ambiguous? The district court in Tran v. Anvil Iron Works, Inc., 110 So. 3d 923 (Fla. 2d DCA 2013), found that the trial court did not err in denying plaintiff s motion for attorney s fees pursuant to - 6 -

9 put, the economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses. The court noted that a tort action under the economic loss rule is generally barred when contract damages are available: [w]here damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort. 9 The economic loss rule originated in products liability cases in order to protect manufacturers from liability for economic damages provided by warranty law. 10 The court traced the economic loss rule to two cases, Seely v. White Motor Co. 11 and East River Steamship Corporation v. Transamerica Delaval, Inc., 12 which both utilized the economic loss rule in products liability cases. The court noted that the Florida Supreme Court first adopted the economic loss doctrine in 1987 in Florida Power & Light Co. v. Westinghouse Electric Corporation. 13 The court then discussed how the economic loss rule has been expanded beyond products liability cases, addressing what it referred to as a legacy of unprincipled expansion and an over-expansion of the economic loss rule. 14 Although in previous decisions the court had expressed an interest in limiting the rule, the court acknowledged that it had allowed a number of exceptions to stand. 15 The court decided to follow through on this goal of limiting the rule. After this analysis, the Florida Supreme Court receded from previous case law and limited the situations in which the economic loss rule could be applied: Significance Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. 16 The significance of this decision cannot be overstated. As Chief Justice Polston and Justice Canady commented in their dissents, this decision seriously undermine[s] Florida s contract law. 17 Following the Tiara decision, defendants face the prospect of every breach of contract claim being accompanied by a tort claim. 18 Although a very recent decision, courts situated in Florida have already relied upon this groundbreaking decision to reject arguments by defendants that tort claims are barred by the economic loss doctrine Tiara Condo. Ass n, Inc. v. Marsh & McLennan Co., 110 So. 3d 399, 400 (Fla. 2013) See id. at at at 400 (restating certified question as does the economic loss rule bar an insured s suit against an insurance broken where the parties are in contractual privity with one another and the damages sought are solely for economic losses? ). proposals for settlement served separately on the defendant employer and defendant employee. The separate proposals stated that if they were accepted by the individual named defendant, plaintiff would dismiss all claims against that one named defendant; but the attached notices of voluntary dismissal indicated the plaintiff would dismiss all claims against the defendants. This created ambiguity in the proposals. 10. When is the medical malpractice statute of repose triggered? The Second District in Woodward v. Olson, 107 So. 3d 540 (Fla. 2d DCA 2013), stated that it is the discrete incident of malpractice which triggers the running of the medical malpractice statute of repose. Thus, where the defendant physician was alleged to have failed to order recommended follow-up testing after receipt of the reports of plaintiff s 2002, 2005 and 2008 chest X-rays, and the action was filed in 2010, the four-year statute of repose barred the action as to the 2002 and 2005 failures but not as to the 2008 omission. The district court also noted that the continuing tort doctrine does not apply to the medical malpractice statute of repose. 11. What improper but unpreserved argument by defense counsel does not warrant a new trial? In Carnival Corp. v. Jimenez, 112 So. 3d 513 (Fla. 2d DCA 2013), the Second District held that the trial court erred in awarding plaintiff a new trial based on defense counsel s unpreserved improper argument which did not otherwise meet the fundamental error standard. While it was improper for defense counsel to insinuate that plaintiff s counsel had taken advantage of his friendship with the physician who treated plaintiff by scripting the physician s trial testimony, there was no showing that defense counsel s conduct and comments were harmful or incurable. 12. Is the co-owner of a vehicle entitled to cap his liability when the negligent permissive user to whom the vehicle was loaned is the other co-owner of the vehicle? The Second District in Ortiz v. Regalado, 113 So. 3d 57 (Fla. 2d DCA), found that the trial court did not err in denying an automobile owner the benefit of section (9)(b), which places a cap on damages arising out of the operation of the vehicle by a permissive user to whom the owner has loaned the vehicle, where the negligent operator of the vehicle was a co-owner of the vehicle. The district court also certified the following question to the Florida Supreme Court as one of great public importance: Does Section (9)(3) apply to limit the amount of damages one co-owner of a vehicle must pay when the other co-owner operates their jointly owned vehicle negligently and incurs damages payable to a third party? 13. Does Frye apply to the causation testimony of an expert biomechanical engineer? The district court in State Farm Mutual Automobile Insurance Co. v. Thorne, 110 So. 3d 66 (Fla. 2d DCA 2013), determined that the trial court erred in precluding the U.M. insurer s biomechanical engineer from testifying that in his opinion plaintiff was not wearing a seatbelt at the time of the - 7 -

10 9 Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994). 10 Tiara Condo. Ass n, 110 So. 3d at Cal. 2d 9 (Cal. 1965) U.S. 858 (1986). 13 Fla. Power & Light Co. v. Westinghouse Elec. Corp., 510 So. 2d 899 (Fla. 1987). 14 Tiara Condo. Ass n, 110 So. 3d at at at at 411, at See Fed l Deposit Ins. Corp. v. Pearl, 2013 WL at * 5 (M.D. Fla. Apr. 8, 2013) (denying a motion to dismiss claim for negligent misrepresentation, stating the Florida Supreme Court has drastically curtailed the application of the economic loss rule in its recent decision ); Wiand v. Wells Fargo Bank, N.A., 2013 WL at *6 (M.D. Fla. Apr. 5, 2013) (stating that the economic loss rule argument must be rejected in light of the Florida Supreme Court s recent decision that the economic loss rule applied only to products liability claims ); In re Mouttet, 2013 WL at *13 n. 45 (S.D. Fla. Bankr. 2013) (noting that the argument that the claims of fraud are barred by the economic loss rule are no longer valid in light of the recent ruling week by the Florida Supreme Court that the economic loss rule does not apply to actions in which the parties are in privity, but only to product liability cases ). Caitlein J. Jammo, Stetson University College of Law (J. D. 2013) Do Florida Schools Have a Duty to Use Defibrillators? In Limones v. School District of Lee County, 1 the Second District Court of Appeal answered this question in the negative. The decision establishes that neither the common law, nor Florida statutory law, requires a school s use of an automated external defibrillator (AED) on student athletes. Furthermore, the Second DCA determined the School Board was entitled to immunity under the Cardiac Arrest Survival Act. Facts and Procedural History On November 13, 2008, Abel Limones, Jr. collapsed while playing soccer for his high school, East Lee County. Within a few minutes Abel was unconscious, had stopped breathing, and had no discernible pulse. A School Board employee called 911 within three minutes of his collapse. Both Abel s coach and a nurse attending the game attempted CPR, yet Abel remained unresponsive for at least twenty-three minutes before emergency personnel revived him through the combined use of medication and an AED. Abel entered a vegetative state due to his injuries and will require twenty-four hour care for the rest of his life. Abel s parents, Abel Limones, Sr. and Sanjuana Castillo, retained an expert who opined that Abel would not have suffered such severe injuries had an AED been utilized one to two minutes after he stopped breathing. Heartbreakingly, an AED that sat in a golf cart near the end of accident. Biomechanics is not a new or novel science, and Frye v. United States does not apply to testimony of a causal link between trauma and injury. 14. May an insured file a first-party bad faith action against its insurer after obtaining an appraisal award? In Hunt v. State Farm Florida Insurance Co., 112 So. 3d 547 (Fla. 2d DCA 2013), the Second District found that the trial court erred in entering summary judgment in favor of the insurer in a first-party bad faith action on the ground that the insured could not maintain such a claim without a breach of contract judgment against the insurer. The appraisal award entered in the insured s favor constituted a sufficient resolution to satisfy the judgment condition precedent to bring a bad faith action. THIRD DISTRICT DECISIONS 15. Must an insured provide an insurer with notice of a potential claim before the full extent of damages are known? In 1500 Coral Towers Condominium Association, Inc. v. Citizens Property Insurance Corp., 112 So. 3d 541 (Fla. 3d DCA 2013), the district court found that the trial court properly entered a summary judgment in favor of the insurer where the insured condominium association s notice of hurricane-related property damage five years after Hurricane Wilma was not timely notice of loss and the insurer was prejudiced. If an insurance policy requires prompt notice of loss, the insured must give notice that implicates a potential claim without waiting for the full extent of damages to become apparent. 16. When is an additional insured entitled to reimbursement of defense attorney s fees and costs from the insurer? The Third District in University of Miami v. Great American Assurance Co., 112 So. 3d 504 (Fla. 3d DCA 2013), held that the University of Miami, as an additional named insured on a policy issued to a company which operated a summer swim camp for children using the University s pool, was entitled to be indemnified for the attorney s fees and costs incurred in hiring its own attorney. The University retained separate counsel to defend an action alleging that both the company which ran the camp and the University were directly negligent in causing the plaintiff s injuries after the insurer only retained one law firm to represent both defendants. Where both the named insured and additional insured have been sued and the allegations are that each is directly negligent, a conflict between the named insured and the additional insured exists which requires the insurer to provide separate and independent counsel for each. 17. Is a default judgment proper where the complaint fails to state any cause of action? The district court in Mauna Loa Investments, LLC v. Santiago, 38 Fla. L. Weekly D658 (Fla. 3d DCA Mar. 20, 2013), held that the trial court erred in entering a default judgment against the defendant where the complaint wholly failed to state a cause of action

11 the soccer field went unused during the incident. Abel s parents sued the School Board of Lee County for negligence, asserting that the School Board (1) had a common law duty to maintain reasonably safe conditions for Abel, and failed to do so, and (2) failed to abide by section , Florida Statutes, which mandates how AEDs are to be maintained on school campuses. The circuit court granted the School Board's motion for summary judgment, concluding that (1) schools do not have a common law duty to make available, diagnose the need for, or use an AED, and (2) section does not provide a negligence cause of action. 2 Further, even if a duty existed, the circuit court reasoned that the School Board would be immune under section , Florida Statutes the Cardiac Arrest Survival Act. The parents appealed. Analysis The Second District affirmed the lower court s order granting summary judgment to the School Board. Beginning with the parents argument that the school had a common law duty to use an AED, the court acknowledged that, when caring for injured student athletes, schools have a duty to take appropriate action to prevent further injury aggravation. The court equated this standard with the ubiquitous reasonably prudent person standard, which requires that individuals act in the same way that a reasonably prudent person would under the same circumstances. The question then, according to the court, was whether the reasonable person standard required a school to make available, diagnose the need for, or use an AED. No Florida cases had yet addressed a school s duties regarding AEDs. Instead, the court looked to L.A. Fitness International, LLC. v. Mayer, 3 a decision that reviewed a business owner s duty to utilize AEDs on behalf of business invitees. 4 Reviewing this case, the court noted that proprietors (and schools by analogy) owed a duty of ordinary care, which meant that first aid should be reasonably administered. The court further noted that reasonable first aid did not include the use of an AED, and might not even include employing CPR techniques. Because it was unable to distinguish L.A. Fitness from Limones, the court concluded that the School Board was under no common law duty to make available, diagnose the need for, or use an AED. The court also rejected the parents alternative common law argument, which was based on the undertaker s doctrine. This doctrine subjects a person to liability for any physical harm caused to another while furnishing protective services, if the harm resulted from a failure to exercise reasonable care and (a) the failure to exercise reasonable care increased the risk of harm, or (b) the harm occurred because the injured person relied on the care. 5 The court dismissed this argument because the parents did not establish that the School Board had a duty to use its AED, that its possession of the AED increased Abel s risk of harm, or that the presence of the AED led Abel to detrimentally rely on its existence. Next, the court addressed the parents argument that the School Board failed to adhere to the requirements of section This statute requires that (1) any public school with membership in the Florida High School Athletic Association have an AED on school grounds, (2) each of these schools provide reasonable training to any 18. When is a defendant entitled to a second medical examination of the plaintiff? In Gomez v. Rendon, 38 Fla. L. Weekly D727 (Fla. 3d DCA Apr. 3, 2013), the Third District granted certiorari review where the trial court had permitted defendant to conduct an independent medical examination of the plaintiff after the first surgery but denied defendant s motion for a medical examination after plaintiff s second surgery. The second procedure led to a substantial change in plaintiff s physical condition and thereby provided good cause for granting a second physical examination. 19. How should loss of earning capacity damages be calculated? The Third District in Estrada v. Mercy Hospital, Inc., 38 Fla. L. Weekly D824 (Fla. 3d DCA Apr. 10, 2013), found that the arbitration panel in a medical malpractice voluntary binding arbitration erred in measuring plaintiff s loss of future earning capacity by her post-injury life expectancy. The district court stated that the arbitration panel should award the plaintiff damages for loss of earning capacity based upon her pre-injury life expectancy. FOURTH DISTRICT DECISIONS 20. May negligent hiring and retention claims concerning co-defendant surgeons be bifurcated? The Fourth District in Johansen v. Vuocolo, 38 Fla. L. Weekly D252 (Fla. 4th DCA Jan. 31, 2013), determined that the trial court properly exercised its discretion in bifurcating claims of medical malpractice and negligent hiring and retention of the primary surgeon from claims of negligent hiring and retention of the assistant surgeon, who had an extensive malpractice history. Evidence of the assistant surgeon s malpractice history, which was relevant to the issue of whether the assistant surgeon was negligently hired and retained, could irreparably damage the jury s ability to fairly decide the issue of whether the primary surgeon acted within the applicable standard of care in treating the decedent. 21. When does a release of physicians not include the vicarious liability of the hospital for the negligence of those physicians? The district court in Moody v. Lawnwood Medical Center, Inc., 38 Fla. L. Weekly D560 (Fla. 4th DCA Mar. 6, 2013), held that the trial court erred in determining that the releases of two physicians who treated the plaintiff s minor child also released the defendant hospital from vicarious liability for those physicians acts. The clear language in the settlement agreement stated that the corresponding releases did not release the hospital from any claim that was or could have been asserted in plaintiff s suit. 22. Is an insurer ever entitled to an award of attorney s fees pursuant to section ? In Indiana Lumbermens Mutual Insurance Co. v. Pennsylvania Lumbermens Mutual Insurance Co., 38 Fla. L

12 employees or volunteers who might be expected to use an AED, and (3) the location of AEDs be registered with the director of local medical services. Finding that the School Board satisfied these three subsections, the court declined to decide whether any of the requirements created a negligence cause of action. Instead, the court focused on the final subsection in the statute, which stated that AED use would be covered under the Good Samaritan Act 6 and Cardiac Arrest Survival Act. 7 The Good Samaritan Act affords immunity from civil liability, in certain circumstances, where individuals provide good-faith-emergency services. The Cardiac Arrest Survival Act affords similar immunity to individuals that maintain or use AEDs in the service of others. While both afford immunity, the court pointed out that neither statute explicitly creates a negligence cause of action. The court explained that, under the tenants of statutory construction, a legislature must evince a clear intent to create a private cause of action. Because neither statute indicated that the legislature had this intent, the court dismissed the statutory argument. Finally, the court addressed the School Board s possible immunity under the Cardiac Arrest Survival Act. The Parents argued that the School Board did not meet the Act's definition of a person and that the School Board did not qualify for immunity because it failed to make its AED available for use. The appellate court rejected the first argument, noting that Florida Statutes includes an expansive definition of person encompassing virtually any individual, business, or group. 8 Likewise, the court dismissed the second argument, reasoning that the School Board made the AED available by placing it in the golf cart at the end of the soccer field. Accordingly, even if the School Board had been liable for negligence, it would have been immune under the Cardiac Arrest Survival Act. Significance Limones establishes that under most circumstances, schools do not have an affirmative duty to use the AEDs they are required to maintain. At least for now, any school that complies with the requirements of section should remain immune from civil liability. However, school boards should be wary in the future, as the Limones court itself warns that a School Board s duty to studentathletes is not a stagnant proposition and may vary depending upon the sport or athlete involved, or may change with further evolution in the law. Andrew Graf, Stetson University College of Law (J. D. 2013) WL (Fla. 2d DCA Feb. 6, 2013). 2 at * So. 2d 550 (Fla. 4th DCA 2008). 4 The court conceded that the sources of a school and business owner s legal duties were different; however, the court found the analogy appropriate because the circumstances of the two cases were similar. 5 See Restatement (Second) of Torts 323 (1965) , Fla. Stat. (2008) , Fla. Stat. (2008) (3), Fla. Stat. (2008). Weekly D562 (Fla. 4th DCA March 6, 2013), the Fourth District stated that an insurer is not precluded as a matter of law from seeking attorney s fees under section , Florida Statutes. The plaintiff insurer was thus entitled to an award of attorney s fees against a defendant insurer who failed to fulfill its duty to defend and indemnify the insured in the property damage claims which arose during the defendant carrier s policy period. 23. Should a judge who ejects a party from the courtroom, strikes that party s testimony and comments on the party s demeanor disqualify himself from the case? The district court in Martinez v. Cramer, 111 So. 3d 206 (Fla. 4th DCA 2013), concluded that the trial judge should have granted the plaintiff s motion to disqualify the judge. The trial judge s act of ejecting the plaintiff from the courtroom, striking her testimony based on a perceived insult to the judge, and commenting on the plaintiff s demeanor, including a comment that her face, her voice, her sound, may be unpleasant to everyone else, would lead a reasonably prudent person to fear that she would not receive a fair hearing before the judge. 24. Is an apostrophe-challenged proposal for settlement enforceable? The Fourth District in Bradshaw v. Boyton-JCP Associates, Ltd., 38 Fla. L. Weekly D823 (Fla. 4th DCA Apr. 10, 2013), held that an offer of judgment was unenforceable as ambiguous where it was entitled Defendant s Joint Proposal for Settlement and used the terms Plaintiff (s), Plaintiff(s) and Defendant(s). The proposal was apostrophe-challenged and created ambiguities as to whether the drafter intended references to singular or plural defendants or plaintiffs. FIFTH DISTRICT DECISIONS 25. When is an employer not required to produce its employee s personnel files? Additionally, under what circumstances does the employer have standing to oppose production of employment records? The Fifth District in Walker v. Ruot, 111 So. 3d 294 (Fla. 5th DCA 2013), found that the trial court departed from the essential requirements of law by ordering the defendant employer to produce the entire personnel record of the employee, who was driving the employer s vehicle when he rear-ended the plaintiff s car. The trial court should have first conducted an in camera review of the employee s personnel file. Additionally, the employer had standing to oppose production of private information within the file on the ground that the information was not relevant to the litigation, even though the employer lacked standing to assert the employee s privacy rights

13 All That Floats is not a Boat: The Supreme Court s Lozman Decision Makes Waves Impacting Multiple Areas of Law By Raul J. Chacon Jr., and Adam T. Ferguson If a vessel is involved in a dispute, the resolution will likely depend on the law of admiralty. But is anything that floats a vessel? The Supreme Court recently answered this question with reference to whether a reasonable observer would believe the floating contrivance was designed to carry goods or people over water. The authors explain why the Court s approach is a departure from the long-standing definition of a vessel, and the practical effects the decision is likely to have. Three men in a tub 1 ; Jonah inside the whale 2 ; A garage door 3 Is everything that floats a vessel? The common sense answer to that question would seem to be no. However, for the purposes of 1 U.S.C. 3, and for the better part of 200 years, federal courts around the country have been applying different variations of a very inclusive standard for determining when a particular contrivance was in fact a vessel sufficient to confer the application of admiralty jurisdiction and maritime law to a given legal dispute. This area of admiralty jurisprudence was generally thought to be relatively well-settled until February 21, 2012, when the United States Supreme Court granted certiorari on an appeal from the Eleventh Circuit Court of Appeals concerning an oddly-shaped structure, known as That Certain Unnamed Gray, Two Story Vessel Approximately Fifty-Seven Feet In Length. Introduction On January 15, 2013 the United States Supreme Court decided the case of Lozman v. The City of Riviera Beach, 4 which, unless you closely follow the practice of admiralty and maritime law, probably went largely unnoticed, as many esoteric Supreme Court opinions do. However, taxes are calculated, insurance is procured, and business is generally conducted on the assumption that a thing is today, and will be tomorrow, what it was yesterday. As discussed in more depth below, the ruling in this case has the potential to shake up these assumptions almost immediately. For that reason, this article looks to shed some light on what the average practitioner should know about this archaic, yet apparently evolving area of admiralty and maritime law. Lozman created a buzz amongst admiralty practitioners, scholars, and marine-based employers as to how the Court was going to navigate its way out of a narrow channel, so to speak. Lozman, at its core, is about the analysis a federal court would undertake to determine whether a particular contrivance used on the water constitutes a vessel for the purpose of conferring admiralty jurisdiction and, therefore, the application of substantive maritime law to a given matter. The Supreme Court is often called upon to settle or address divergence between the Federal Circuit Courts of Appeal; Lozman was no different. The test for vessel status as utilized by the Eleventh Circuit 5 contains very broad language to be used in classifying whether a particular contrivance was a vessel; other federal circuits utilized slightly more restrictive language tending to narrow the scope of the classification. What made this case so important and surprising is that the foundations of law in question are as old as the Court itself. Both par- ABOUT THE AUTHORS... RAUL J. CHACON JR. is a partner at The Chartwell Law Offices, LLP, in Miami, Florida. His practice focuses on Admiralty/Maritime Law, Products Liability, Property & Casualty, Insurance Defense and Commercial Litigation. Mr. Chacon is Board Certified in Admiralty and Maritime Law and holds a Standards Certification from the American Boat & Yacht Council. Mr. Chacon is Co-Chair of FDLA s Maritime Law Committee, and serves on FDLA s Product Liability Committee and the Florida Bar s Admiralty Law and Admiralty & Maritime Law Certification Committees. He has served on the Board of Directors (in executive and member capacities) for the Cuban American Bar Association, League of Prosecutors and the University of Miami College of Engineering Alumni Association. He is AV rated by Martindale-Hubbell and has been recognized as a Super Lawyer, Top Rated Lawyer and Top Lawyer. Mr. Chacon received a BSEE and JD from the University of Miami, College of Engineering and School of Law. Adam T. Ferguson is an associate attorney with at The Chartwell Law Offices, LLP, in Miami, Florida. His practice is primarily concentrated in maritime insurance defense, products liability, and insurer subrogation work. He received his J.D. from the University of Miami School of Law, graduating magna cum laude in 2012, where he also held the position of Executive Editor on the University of Miami Business Law Review. He enjoys volunteering his time with the Marine Industries Association of South Florida and the Miami Chapter of the Surfrider Foundation. Mr. Ferguson is currently admitted to practice in the Southern District of Florida

14 ties, supporting amici, and the Court itself found themselves reviewing and citing to cases written as far back as the 1800s, which still represent good law today. What made this case so critical were the potentially stark changes that could arise from it by implication. What is a Vessel? The Rules of Construction Act in 1 U. S. C. 3 defines a vessel as including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. This is admittedly a broad basis upon which to decide whether something floating upon the water constitutes a vessel. In over 200 years, there have been a variety of interpretations of this definition, but most if not all stick to the text of the statute, which by its every description of... artificial contrivance begs the question: [D]oes everything that floats constitute a vessel? Outside of the obvious examples, this question has bedeviled the courts for some time, typically in the form of floating docks, work platforms, and similar non-self propelled contrivances that, from time to time, have the ability to float and/or travel with goods or persons aboard. The Supreme Court recently spoke to the issue of vessel status in Stewart v. Dutra, 6 holding that a vessel is any watercraft or contrivance practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment. Of prime importance to the Supreme Court in adjudicating that case was whether the contrivance at issue was practically capable of transportation, as opposed to merely theoretical. 7 However, other issues, such as permanent attachment or connection to land, 8 have often seemed to distract federal courts from a purely objective inquiry as to whether a vessel meets the statutory definition as laid out in 1 U.S.C. 3. This inquiry, whether something that was once concededly a vessel remains a vessel after actions taken to indefinitely secure it to the shore, appears to be an ancillary question as to whether something remains a vessel after certain actions have been taken to presumptively strip it of that status. This of course is wholly separate from the issue of whether a contrivance that was designed, and spends its entire existence, with such attachments to land qualifies as a vessel merely because it could theoretically travel with goods and passengers over water. An example of the latter would be a floating dock used for construction that is permanently moored to a shore-side structure and has never traveled with persons or goods aboard, though perhaps it could if towed. Somewhere at the confluence of these myriad inquires arrived a Certain Unnamed Gray, Two Story Vessel Approximately Fifty-Seven Feet In Length owned by Fane Lozman. Fane Lozman Versus The City of Riviera Beach, Florida While the complete back story of this case is unnecessary to this article s purpose, some explanation of the facts will help set the context for the Court s decision and its likely consequences. Fane Lozman owned what is typically referred to as a floating house, not to be confused with a house boat. 9 Mr. Lozman s floating house 10 was described in its petition for arrest as That Certain Unnamed Gray, Two Story Vessel Approximately Fifty-Seven Feet In Length ; this is not all that unusual, as vessels are typically described by their given name, length, make, and often have included other aspects of its personage, including engines, tackles, equipment, etc., when serving as an in rem defendant in admiralty. What makes the name in this case ironic is that the vessel, in maritime terms, essentially defied articulate description. According to the records used at the various proceedings, Lozman s floating house was a rectangular structure on pontoons that could be towed and, indeed, was towed on several occasions over many miles; the floating structure also carried his goods from place to place when it was so towed. It was outfitted to be towed, but remained for the most part tethered to the shore by electrical hookups and water hose pipes. The origins of the controversy will probably never be resolved to satisfaction of the parties involved, but suffice it to say the City of Riviera Beach was apparently less than thrilled with Mr. Lozman s structure being moored at its city-owned marina. After various disputes between the city and Mr. Lozman, resulting in protracted and unsuccessful efforts to evict him from the marina, the city brought a federal admiralty lawsuit in rem against the floating home on the basis of a maritime lien for unpaid dockage fees and damages for trespass. 11 As an incident to a vessel arrest under admiralty and maritime law, the vessel was seized by the United States Marshal s Office and held pursuant to an order of the court. Lozman, acting pro se, asked the district court to dismiss the suit on the ground that the court lacked admiralty jurisdiction, based on the fact that, according to Lozman, his house was not a vessel under the applicable test. After summary judgment proceedings, the court found that the floating home was a vessel and concluded that admiralty jurisdiction was consequently proper. 12 The judge then conducted a bench trial on the merits and awarded the city $3, for dockage along with $1 in nominal damages for trespass. Prior to the judicial sale, the district court ordered the city to post a $25,000 bond to secure Mr. Lozman s value in the vessel, ensuring that he could obtain monetary relief if he ultimately prevailed in his appeal. The city purchased the floating structure at auction, subsequently ordering it destroyed. Mr. Lozman appealed the ruling to the Eleventh Circuit Court of Appeals. Based on the factual findings of the trial court, and considering itself to be following binding precedent, the Eleventh Circuir affirmed the district court s finding that it had subject matter over Lozman s case, as the floating structure was property termed a vessel. 13 Lozman sought to present several bases in support of his assertion that his structure was not legally a vessel; unfortunately, all were equally unavailing to the Eleventh Circuit, which cited to the craft s practical capacity for maritime transport in its determination of whether a contrivance is a vessel. 14 This specific application of the Eleventh Circuit s test is the genesis of the everything that floats pejorative description of

15 the analysis assailed by both the majority and dissenting opinions in Lozman v. The City of Riviera Beach. Many thought the United States Supreme Court would deny certiorari based on the fact that the matter of what constitutes a vessel recently had been addressed in Stewart v. Dutra Const. Co. 15 Others thought the fact that the structure had been destroyed made the question moot and improper for resolution at that level. The Court did neither and accepted the case for review with the following question presented: Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a vessel under 1 U.S.C. 3, thus triggering federal maritime jurisdiction. 16 Provided with this instruction, many scholars, commentators, and practitioners noted the presence of a term within the question presented not otherwise found in the statute cited; the intended use of the vessel was about to become an issue before the Court. The Perspective of a Reasonable Observer: An Additional Level of Analysis into the Inquiry of Vessel Status The Supreme Court concluded after much debate, in a 7-2 opinion, that Lozman s floating structure was not a vessel. In other words, the district court should not have allowed it to be arrested under the applicable Local Rules for Admiralty and Maritime Claims and subsequently sold at auction. Somewhat more importantly, the ruling indicated that the Supreme Court disapproved of the test or analysis utilized by the Eleventh Circuit Court of Appeals in determining whether Lozman s structure was indeed a vessel, such that it conferred the benefits and rules associated with admiralty jurisdiction. It is this facet of the case that is drawing attention and potentially creating turmoil in the admiralty and maritime world. The new test arising from Lozman could be formulated along the following lines: A particular vessel, structure, or contrivance will be determined to meet 1 U.S.C. 3 s requirement of being capable of being used as a means of transportation on water if a reasonable observer, looking to structure s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. 17 To the astute observer, gone is the practically capable, not merely theoretical language of Stewart v. Dutra, 18 which has apparently been replaced with an inquiry by the reasonable observer as to whether it thinks that, based on its design characteristics and past history of activities, the structure was designed to a practical degree to be capable of carrying people or things over water. The immediate take-away from this holding is that it will introduce a measure of uncertainty into this analysis. While implicating the reasonable person test, admittedly an objective standard of sorts, this new analysis requires the observer to look to the physical attributes and behavior of the structure as objective manifestations of any relevant purpose, without consideration of the subjective intentions of the owner, in determining whether it was intended to carry people or things over water. Despite the introduction of the seemingly novel reasonable observer standard into the test for vessel status, the Supreme Court in Lozman sought to demonstrate how its newly-worded analysis drew support from its previous opinions. It primarily focused its discussion on two cases that had served as guideposts in the oral arguments. In Evansville & Bowling Green Packing Co v. Chero Cola Bottling Co., 19 the Court held that a wharf boat that was positioned floating next to a dock, used to transfer cargo, and towed to harbor each winter was not a vessel for the purposes of 1 U.S.C Conversely, in Stewart v. Dutra, the Court found that an otherwise immobile dredge used to remove silt from the ocean floor, which carried a captain and crew and could be navigated only by manipulating anchors and cables or by being towed, was a vessel. 21 Writing for the majority, Justice Breyer stated that: the basic difference, we believe, is that the dredge in Dutra was regularly, but not primarily, used (and designed in part to be used) to transport workers and equipment over water while the wharf boat in Evansville was not designed (to any practical degree) to serve a transportation function and did not do so. 22 In that vein of reasoning, the Court developed its eventual holding that the objective design characteristics, combined with what types of activities the particular contrivance had previously and currently engaged, had always played a role in determining vessel status. Why Lozman Matters: Changes on the Horizon? So a floating rectangular structure is not a vessel for the purposes of admiralty and maritime jurisdiction, unless a reasonable observer perceives that it was designed in such a way to be practically capable of carrying persons or things over water. The overarching reason why Lozman matters is that where a vessel is involved in a particular incident, there is a very good chance that the substantive law of admiralty will be applied to the dispute. 23 This body of law can be strikingly dissimilar from its terrestrial counterparts; many aspects of admiralty substantive law may have no cognate under state law at all. The particular facts of this case were admittedly strange; the record before the Court apparently reflected that at the early stages of the case, a surveyor was unable to find any comparable craft for sale in the state of Florida with which to compare Lozman s floating home. 24 Oddlydesigned and shabbily constructed floating structures, however, are not the only contrivances now facing closer scrutiny under this revised

16 analysis for vessel status under 1 U.S.C. 3; the owners of a variety of other structures located upon the water are now looking at their particular contrivances and asking, is this thing a vessel, or not? As a popular example, Casino Boats that spend much or all of their time securely moored to the shore, but are still very much designed to and most certainly capable of transporting things over water, will merit another look from the courts. While the legal discussion of these structures will likely continue to focus on the degree to which they are tethered to land or permanently attached to the shore, 25 some models of the these structure types may be nothing more than faux-boats, large blocks of floating concrete with an outer façade meant to resemble river boats of old. To the extent these structure s design characteristics are interpreted as rendering the structure capable of transporting passengers and goods across navigable waters, this seems to be one particular area where the reasonable man s interpretation of a vessel s design characteristics may turn out to be patently inadequate without some accounting for the actual seaworthiness of such a structure. Another area to be watched closely will be the myriad variety of floating docks, dumb barges, and floating platforms. The same structure in different settings could arguably be judged in a dissimilar matter. A flatbottomed, working barge may seem perfectly fitted to transport goods and persons in a flat water riverine environment requiring short trips on an infrequent basis; however, that same structure is grossly inadequate to take on the perils of the open seas. While the two structures could have been designed in precisely the same way, despite genuine attempts to the contrary, it is likely that external and environmental factors will play a role in whether the reasonable observer thinks the vessel, when considering its design, believed it to be capable of transporting passengers and goods across navigable waters based at least in part on how the structure is intended to be used. Finally, as noted by the Lozman dissent, 26 floating homes and houseboats are going to require a closer look as to whether they retain or perhaps lose their status as vessels following this opinion. It goes without saying that not all houseboats or floating houses are built alike. Using this deceptively simple dichotomy likely belies the complexity in design differences between what the Court has chosen to call a house boat versus a floating home. Theoretically, very few after-market design modifications would be required to render a floating house capable of its own locomotion and therefore, potentially, crossing over into a designation as a vessel. To say confidently that all floating houses are not vessels would be a risky proposition on which to base a defense strategy. These are some of the types of structures that could possibly be affected by this holding. In the following section, this article will discuss why it matters. In and Out of the Water: Why the Application of Maritime Law Matters The law of admiralty has a long and venerable past. Its roots easily predate almost any existing legal system still in operation today, with scholars potentially identifying a specialized and differentiated set of rules for ocean-based trade as far back as the high times of the Greeks and Romans. 27 Both these civilizations had special rules for trade and commerce over the seas. These special sets of laws later infiltrated in the Anglo Saxon and other Western legal systems as those burgeoning societies began their ascent in global exploration. Much of the past history of admiralty is still in play today. The law of admiralty is still applied in special courts in Great Britain sitting for that purpose. In the United States, admiralty and maritime matters are generally heard before federal district courts sitting in admiralty by designation and implication of Federal Rule of Civil Procedure 9(h), although even absent that designation a federal court will apply maritime and admiralty law where it governs. State courts may also apply admiralty and maritime law in certain situations under the Savings to Suitors clause, which provides for state courts to apply a remedy where they are otherwise competent to do so. 28 What does all this mean? Admiralty and maritime law is persistently interwoven into both contract and personal injury/tort law of the states and the federal courts where there is a maritime flavor. To demonstrate the potential effect of this decision, provided below is a hypothetical scenario presenting a set of facts and circumstances which, following the Lozman decision, will have a dispositive effect on defense strategy and practice depending on whether the contrivance at issue is determined to be a vessel or not. Following the hypothetical are a few examples, though not an exhaustive list, of idiosyncrasies of maritime law that tend to serve important roles in determining the strategy and outcomes of admiralty and maritime cases. While the Lozman opinion does not affect the law in this area, to the extent that borderline structures such as floating houses, barges, and other things that float are involved in a dispute, the holding in Lozman may bring the following aspects of admiralty and maritime law into and out of the defense practitioners strategy. Fire at The Marina Consider the following contrivance: a floating platform built in a very similar fashion to Lozman s floating house. For the purposes of this exercise, it helps if the structure is as close to the dividing line as to a vessel/non-vessel designation under Lozman. Now, consider the following event: the contrivance is moored by way of its two port (left) side cleats to a seawall within a marina. A marinegrade power cord attached to a dock post on land powers portable electronic devices on board. A temporary gangway is placed across the space between the seawall and the contrivance. A grill is mounted on the contrivance and, while a guest aboard is trying to light the grill, the guest accidentally creates a fireball that sets the contrivance ablaze. Everyone is able to exit the contrivance but, before the fire can be put out, it spreads to a neighboring vessel and finger pier, causing substantial damage to both before the fire is finally extinguished. The owners of the marina and the affected vessel are both preparing to turn to the owner of the platform seeking recovery for

17 their losses. For purposes of this example, it should be assumed that the owner of the contrivance had it insured as a vessel with both first party property damage and third party liability coverage intact. However, the limits are clearly going to be exceeded by the total amount of claims. As demonstrated below, the potential for the application of the substantive maritime law, versus the otherwise applicable state law, would almost certainly be outcome determinative for the parties involved. Petition for Exoneration from or Limitation of Liability One of the first procedural steps in the defense of an admiralty claim similar to the one above is to file a petition for exoneration from, or limitation of, liability on behalf of the vessel and the owner. The admiralty and maritime law of the United States provides for the owner of a ship, in certain cases of loss or damage, to completely exonerate himself from liability arising from a maritime accident/incident. In the alternative, if certain conditions are not met, the owner may still be able to limit any liability for the same to the postaccident value of the owner s interest in the vessel and pending freight, provided that the accident occurred without the knowledge and privity of the owner. 29 Such is the case even where there are insurance proceeds otherwise available to cover damages arising from the accident. The impetus for this protection was based in a desire to promote investment in shipping, primarily ownership and managing of sea going vessels, in an age where a successful trip across the pond was far less certain than it is today. While damage to property can be distinguished from personal injury and death, the Limitation of Liability Act 30 ( LOLA ) and the Petition for Limitation provide an indelible defense strategy to owners of both commercial and recreational vessels. LOLA essentially provides for a vessel owner to force all claims against him for a particular incident to be brought against him in a single forum. 31 If the claimant(s) cannot prove that an act of negligence or an unseaworthy condition caused the loss, the shipowner must be exonerated from liability. 32 If the claimants can prove negligence or an unseaworthy condition, then the burden switches to the vessel owner to show that the condition complained of was outside of his privity and knowledge. 33 If the vessel owner can so prove, the owner is allowed to limit his liability to the post-casualty value of the vessel. 34 Where the owner cannot, the owner is not afforded the protection of LOLA. 35 Applied to the factual scenario above, whether or not the contrivance is going to be deemed a vessel will be crucial to the owner. If the contrivance is deemed to be a vessel, the owner will at least be given the opportunity to initiate the limitation proceedings, force all claimants to join in a single proceeding, and place the initial burden on the claimants to show negligence or an unseaworthy condition. The protection of LOLA will allow the owner to limit any losses, if the vessel is found responsible for the loss, but that such negligence or unseaworthy condition occurred without his privity and knowledge, irrespective of available insurance limits. Depending on the extent of damage to the vessel, its post-casualty value may be negligible; in many cases, this will leave claimants with little to nothing in the limitation fund. For this reason, the injured parties will certainly contest vessel status for the contrivance, as without that designation, the owner loses the ability to file the limitation petition. State procedural rules will govern the manner in which the parties can file their claims against the owner. More importantly, the owner is going to be liable for all the damages for which the owner is deemed responsible. Insurance may, depending on the cause of the loss in relation to the policy language, provide defense and coverage up to the policy limits, but where losses exceed coverage amounts, the owner of the contrivance will be liable for those amounts. The difference in overall exposure can be staggering and can result in personal and professional consequences of an extreme nature. Joint and Several Liability After several years of progression, Florida law now provides that absent certain statutory and common-law based exceptions, in the case of joint tortfeasors, liability will be apportioned on the basis of such party s percentage of fault and not on the basis of the doctrine of joint and several liability. 36 Having the protection of the Florida Comparative Fault Statute, defense counsel can focus on establishing its client s role, if any, in causing plaintiff s damages without undue regard or worry about getting left holding the bag for a co-party with little to no assets or ability to pay. Comparative fault also guides plaintiff s strategy in naming parties as defendants and its overall strategy for putting forth its case for recovery. Since the 2006 amendments to section , Florida Statutes, this framework has guided the prosecution of civil suits in Florida with a welcomed degree of predictability. Unfortunately, the general maritime law as interpreted by the United States Supreme Court does not take the same position as the state of Florida on joint and several liability. Despite the application of comparative fault in a joint tortfeasor setting, 37 as well as the use of principles of comparative fault to reduce a negligent plaintiff s recovery, 38 the United States Supreme Court has said that the inclusion of this doctrine into the general maritime law in no way limits the general right to joint and several liability from all tortfeasors. 39 The substantive law of admiralty provides that an injured party can obtain the entire amount from any one party, leaving the defendants, through the doctrines of contribution and indemnity, to equitably re-apportion any inequities as to relative degrees of responsibility to the plaintiff remaining as a result of it paying more than its fair share. 40 Therefore, where the substantive law of admiralty applies, so too will the doctrine of joint and several liability, regardless of what the Florida Legislature and Florida courts have said about it. The hypothetical example above requires only minor tweaking in order to accommodate a contingency where joint and several liability becomes an essential moving part

18 to a defense strategy. Consider the following: suppose a third party was transporting fuel on the docks, negligently spilling gasoline on the docks and the water surrounding the soonto-be damaged vessel and finger pier. Now, the fireball originating from the contrivance interacts with the spilled gas to damage both the finger pier and the adjacent vessel. The third party and the vessel owner are now almost certainly joint tortfeasors as to the injured parties and, depending on which body of law applies to the dispute, each defendant, at least potentially, could be liable for the entire amount of each plaintiff s damages. Assuming for the moment that the contrivance is determined to be a vessel and the owner was unable to limit his liability to the post-casualty value of the contrivance, the owner and the third-party, under the application of substantive maritime law, would be jointly and severally liable for each plaintiff s damages. How each plaintiff goes about collecting the judgment is up to them individually; again, under the general maritime law each plaintiff is entitled to seek the entire amount of damages from one of several joint tortfeasors, regardless of any apportionment of fault by the court. Where one codefendant is seen to have deeper pockets than another, that defendant may be treated as the initial target, ultimately being forced to bring a contribution action against the remaining co-defendants. State law in this instance would be more favorable to the contrivance owner. Absent the operation of a statutory exclusion or a finding that the two offending parties are initial and subsequent (as opposed to joint) tortfeasors, liability in this case is going to be apportioned according the relative degrees of fault as determined by the court. Where the court issues a final adjudication concerning apportioned responsibility for the incident, no claim for contribution by any party should be permitted. Vessel Arrest and In Rem Proceedings The hypothetical above could again be altered slightly to demonstrate the effect of another procedural device unique to the general maritime law. If the offending contrivance was not destroyed in the fire as depicted above and was deemed to be classified as a vessel, either of the offending parties could move to have the vessel arrested on the basis of a maritime tort lien based upon the negligence of the contrivance in starting the fire. 41 One of the most recognizable features of admiralty and maritime law is the ability of an offended party to take action directly against the vessel itself, known as an in rem proceeding, where the vessel has played some part in a dispute involving the injured party. 42 Such a dispute could involve the breach of a maritime contract, such as dockage, fuel, marine necessaries, or wages, giving rise to a maritime lien; the in rem proceeding is also available to claimants that have been injured by the ship in a way that would confer admiralty subject matter jurisdiction to the incident (as is the case in the hypothetical). 43 What makes the in rem proceeding so unique is that the vessel itself is named as a party in the complaint and to the lawsuit. The owner and/or master of the vessel may not be named as a party at all, though he or she may elect to appear to protect his or her interests in the vessel. 44 In addition to being named as a party, the vessel is actually arrested, or repossessed by order of a federal district court, prior to any adjudication of liability. This concept has its roots in the fact that traditionally an ocean-going vessel might call on a particular port no more than once or twice in its existence; especially in the world of sailing ships and Norwegian Steam -powered traders, courts sitting in admiralty elected not to force the injured party to chase a particular vessel across the globe to settle debts or force accountability for liability arising from negligent acts committed by the ship and its crew. Therefore, the body of admiralty and maritime law has developed and retained the vessel arrest procedure to allow an injured party to have a vessel arrested where they find it, exercising the ability to settle the particular dispute in that location. A combination of statutory 45 and judicially developed law 46 governs the order and priority in which claims are paid, both as to between and within a given type of claim. Claims are paid out according to this hierarchy, with a given category of claims being fully satisfied before dropping down to the next level of claim. 47 The application of the in rem proceeding to the hypothetical scenario presents a variation of the situation in Lozman. Instead of a maritime lien for necessaries (or dockage in Lozman s case), the maritime lien would be described as a maritime tort and the damage suffered by the arresting parties against the vessel itself. Without the application of maritime law, the injured parties would be left to pursue an in personam action against the two individuals, with state law governing the principles of liability and apportionment of damage. The contrivance owner retains his property (in terms of the contrivance) for now, with the potential for a writ of execution to be levied against him for real and personal property as provided by state law. The relative importance of vessel status in the context of vessel arrest cannot be understated. This issue was at the heart of the Lozman decision. Fane Lozman argued that his structure should have never been arrested as it was not a vessel for the purposes of conferring subject matter jurisdiction, and hence the in rem proceeding, used to arrest, sell, and destroy his floating home. Absent vessel status, the City of Riviera Beach would have surely been forced to take more detailed and time-consuming steps to either condemn the structure or otherwise force Mr. Lozman to move his floating house. Regardless, the city would not have been entitled to the summary nature of the in rem vessel arrest procedures which were in fact designed to ensure quick summary resolution of these types of disputes. A Sea of Examples The three aspects of admiralty and maritime law discussed are but just a few of the issues a defense practitioner needs to be familiar with in the wake of the Lozman decision s potentially unsettling of the vessel status test to be used across the country. The effects, however, are not limited to defense strategy and jurisdictional practice; the consequence of such uncertainty as to vessel status

19 under 1 U.S.C. 3 go far beyond the practicing attorney s desk. How will marinas and state/local governments deal with the issue of floating houses? Operating under a general, though possibly short-sighted assumption, that these structures will consistently be held not to be vessels, how do business and governmental units interacting with these structures adequately prepare themselves to regulate their use and how/ where they are positioned? Insurance for these structures, as well as other types of floating, non-traditional contrivances, may similarly be thrust into flux. The loss of the ability to limit liability, as well as confusion over the appropriate policies and coverages to provide to such structures, will certainly cause headaches for that particular industry. Though not discussed here, thought should also be given to the marine industry employment issues that may arise as a result of the shift in determining vessel status. Where individuals contribute to the mission of a vessel in navigation and where that connection is substantial in both its duration and nature 48, those employees are seamen for the purpose of the Jones Act, the set of statutory provisions governing the maritime commerce in the United States. 49 This designation brings with it insurance and medical provisioning requirements which must be maintained by the employers of seamen. Where a floating structure serves as the basis for marine construction activities, do the owners/employers of this structure gamble and assume they do not need Jones Act coverage for individuals working only on this contrivance? 50 Even the effects on third parties are not beyond the realm of possibility. Will maritime salvors change their behavior in light of the fact that they may not be entitled to the summary salvage award proceedings provided by the in rem proceeding of maritime law? Though admittedly far-fetched (and assuming no lives at risk), a salvor is more likely to be paid for his work for recovering a sunken non-vessel as opposed to performing salving services traditionally rewarded under the general maritime law. Will mechanics and other contactors refuse to work on/with these structures outside of additional, burdensome, contractual wrangling over rights to recovery and uncollected fees, again dangerously assuming for the moment that not everything that floats is a vessel? Conclusion: Make Fast Your Practice It is more likely than not that there will be fewer odd-looking structures being classified as vessels than the opposite; the holding in Lozman was no doubt intended, if only indirectly, to reduce the scope of what could be considered a vessel for the purposes of admiralty and maritime law. At the very least, controversy will almost certainly follow where these types of structures are found. Although the United States Supreme Court determined Mr. Lozman s home was a vessel, the reasonable observer is going to be making the call concerning other vessels in the future. 51 Where the potential for the application of admiralty and maritime law exists, the practicing attorney needs be prepared to determine quickly and conclusively how to fight its jurisdiction where it does not apply and to prepare to wield appropriate defenses where the law will be applied. The marine and insurance industries will also need to be keenly aware of how subsequent interpretations of Lozman will come down, waiting for the seas to once again settle in the realm of admiralty and maritime law as it applies to vessel status determinations. 1 No doubt the three men in a tub would also fit within our definition... Lozman v. City of Riviera Beach, 133 S. Ct. 735, 740 (2013) (Breyer, J., writing for the majority). 2 [O]ne probably could make a convincing case for Jonah inside the whale. (Breyer, J., writing for the majority). 3 How about a garage door? Justice Sotomayor was quoted as asking Counsel for Respondent (City of Riviera Beach) David C. Fredrick. Transcript of Oral Arguments, p. 32 ln Lozman 133 S. Ct. 735, 184 L. Ed. 2d Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty- Seven Feet in Length, 649 F.3d 1259 (2011), rev d sub nom. Lozman v. City of Riviera Beach, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013) U.S. 481, 497, 125 S. Ct. 1118, 1129,160 L. Ed. 2d 932 (2005). 7 8 In a pair of cases, the Court held that a drydock, Cope v. Vallette Dry Dock Co., 119 U.S. 625, 630, 7 S. Ct. 336, 30 L. Ed. 501 (1887), and a wharfboat attached to the mainland, Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 22, 46 S. Ct. 379, 70 L. Ed. 805 (1926), were not vessels under Section 3, because they were not practically capable of being used to transport people, freight, or cargo from place to place. Later cases such as Dutra, supra note 5, suggest that these holdings did not actually narrow the definition of Section 3 s vessel status, but merely drew attention to the distinction drawn by the general maritime law between watercraft temporarily stationed in a particular location and those permanently affixed to shore or resting on the ocean floor. See Stewart v. Dutra Constr. Co., 543 U.S. 481, ,125 S. Ct. 1118, 1127, 160 L. Ed. 2d 932 (2005). 9 Houseboat means a motorized vessel... designed primarily for multi-purpose accommodation spaces with low freeboard and little or no foredeck or cockpit. (emphasis added). Lozman, 133 S. Ct. at The home consisted of a house-like plywood structure with French doors on three sides. It contained a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space. An empty bilge space underneath the main floor kept it afloat. Lozman, 133 S. Ct. at For an additional explanation of the referenced cause of action, see Federal Maritime Lien Act, 46 U.S.C (authorizing federal maritime lien against vessel to collect debts owed for the provision of necessaries to a vessel ); 28 U.S.C. 1333(1) (civil admiralty jurisdiction); see also Leon v. Galceran, 11 Wall. 185, 20 L.Ed. 74 (1871); The Rock Island Bridge, 6 Wall. 213, 215, 18 L.Ed. 753 (1867). 12 Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty- Seven Feet in Length, CIV, 2009 WL (S.D. Fla. Nov. 19, 2009), aff d, 649 F.3d 1259 (11th Cir. 2011), rev d sub nom. Lozman v. City of Riviera Beach, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013). 13 Riviera Beach v. That Certain Unnamed Gray, Two Story Vessel Approximately Fifty- Seven Feet In Length, 649 F.3d 1259, 1269 (11th Cir. 2011), 132 S. Ct. 1543, 182 L. Ed. 2d 160 (2012) and rev d sub nom. Lozman v. City of Riviera Beach, 133 S. Ct. 735, 184 L. Ed. 2d 604 (2013) See note 5, supra. 16 See Supreme Court Reporter version of opinion available at: briefs/2011/3mer/1ami/ mer.ami. pdf. 17 Lozman, 133 S. Ct. at 741 (emphasis added). 18 See note 5, supra U.S Lozman, 133 S. Ct. at Lozman, 133 S. Ct. at There are exceptions to when state law would be applied in an admiralty context, but those doctrines are beyond the scope of this article. In the context of the role of state law in Marine Insurance, see Wilburn Boat Co. v. Fireman s Fund Ins. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); For a discussion of the Maritime but Local doctrine, see Brockington v. Certified Elec.,

20 Inc., 903 F.2d 1523, 1533 (11th Cir. 1990). 24 Lozman, 133 S. Ct. at Lozman, 133 S. Ct. at 740 (citing De La Rosa v. St. Charles Gaming Co., 474 F.3d 185, 187 (5th Cir. 2006) (concluding that a structure is not a vessel where physically, but only theoretical[ly], capable of sailing, and the owner intends to moor it indefinitely as a floating casino). But see Board of Comm rs of Orleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299, (11th Cir. 2008) (holding that a structure is a vessel where it is capable of moving over water under tow, albeit to her detriment, despite intent to moor indefinitely). 26 Lozman, 133 S. Ct (Sotomayor, J., dissenting). 27 See, e.g., The Lottawanna, 88 U.S. 558, 565, 22 L. Ed. 654 (1874). 28 See 28 U.S.C (2006) ( The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled ). 29 See 46 U.S.C (2006). 30 See generally id U.S.C 30511(c); Supplemental Rule for Admiralty and Maritime Claims F(3). 32 Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032 (11th Cir. 1996). 33 Hercules Carriers, Inc. v. State of Florida, Dep t of Transp., 768 F.2d 1558, 1564 (11th Cir. 1985); Colman v. Jahncke Serv., Inc., 341 F.2d 956, 958 (5th Cir. 1965). 34 Hercules, 768 F.2d at (3), Fla. Stat. (2012). 37 See United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct 1708, 44 L. Ed 251, on remand 522 F.2d 1381 (2d Cir. 1975). 38 See Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069 (11th Cir. 1985). 39 See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753, 61 L. Ed. 521 (1979). 40 See generally Francis J. Gorman, Indemnity and Contribution Under Maritime Law, 55 Tul. L. Rev (1981). 41 See generally Supplemental Rule for Admiralty and Maritime Claims C [Action In Rem] and E [Actions In Rem and Quasi In Rem: General Provisions]; see also Sea Legs Marina, Inc. v. Sayre, 106 F. Supp. 2d 1287, 1289 (S.D. Fla. 2000) (discussing the role of Rule C as a prerequisite to vessel arrest under admiralty law). 42 Supplemental Rule for Admiralty and Maritime Claims C [Action In Rem] and E [Actions In Rem and Quasi In Rem: General Provisions] See 46 U.S.C (2006). 46 See generally The St. Jago de Cuba, 22 U.S. 409, 6 L. Ed. 122 (1824) See Chandris, Inc. v. Latsis, 515 U.S. 347, 370, 115 S. Ct. 2172, 2191, 132 L. Ed. 2d 314 (1995) U.S.C (2006). 50 As an aside, this statement oversimplifies the nature of determining insurance coverage for employers whose activities might implicate the necessity to obtain either federal Jones Act or Longshore and Harbor Workers Compensation Act (LHWCA) coverage for their employees. Selecting amounts and layers of coverage must be done by a thorough review of all employment related activities and done according regulations and administrative guidance in force at the time. 51 The test for vessel status as announced in Lozman is currently being vetted as this article goes into publication. See, e.g., Dune Energy, Inc. v. FROGCO Amphibious Equip., LLC, CIV.A , 2013 WL (E.D. La. Apr. 30, 2013); Warrior Energy Servs. Corp. v. ATP TITAN, CIV.A , 2013 WL (E.D. La. Apr. 22, 2013); Mooney v. W & T Offshore, Inc., CIV.A , 2013 WL (E.D. La. Mar. 6, 2013); Sea Vill. Marina, LLC v. A 1980 CARLCRAFT HOUSEBOAT, HULL ID No. LMG37164M80D, CIV.A JBS, 2013 WL (D.N.J. Apr. 11, 2013); Armstrong v. Manhattan Yacht Club, Inc., 12-CV-4242 DLI JMA, 2013 WL (E.D.N.Y. Apr. 30, 2013); Fireman s Fund Ins. Co. v. Great Am. Ins. Co. of New York, 10 CIV JPO, 2013 WL (S.D.N.Y. Jan. 25, 2013); Catlin (Syndicate 2003) at Lloyd s v. San Juan Towing & Marine Servs., Inc., CIV FAB, 2013 WL (D.P.R. May 13, 2013); State v. Davis, 110 So. 3d 27, (Fla. 2d DCA 2013). It takes a rare combination of talent and experience to discover true value in complex situations. That s why legal professionals call upon RGL financial forensic experts from 22 office on 4 continents. RGL professionals have the experience to unravel the evidence to define true financial value. Eric M. Sherman CPA/CFF One Financial Plaza 100 SE 3rd Avenue, Suite 1515 Ft Lauderdale, FL Trust the expert in the field. rgl.com

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