Opinion
CASE NO. 22-14330-CIV-CANNON
2023-02-06
In the Matter of, FERREIRA CONSTRUCTION CO., INC., as owner of the 40 × 90 Flexi Floats Barge, its tackle, appurtenances, equipment, etc., in a cause of exoneration from or limitation of liability, Petitioner, v. Cebrone D. ATKINS, Respondent.
Jules Victor Massee, Brandon Bushway, Hamilton Miller & Birthisel LLP, Tampa, FL, for Petitioner. Colby Phillip Connell, Colby Connell, PA, Tampa, FL, Joseph Borden Tennant, Pro Hac Vice, VB Attorneys, Houston, TX, for Respondent.
Jules Victor Massee, Brandon Bushway, Hamilton Miller & Birthisel LLP, Tampa, FL, for Petitioner. Colby Phillip Connell, Colby Connell, PA, Tampa, FL, Joseph Borden Tennant, Pro Hac Vice, VB Attorneys, Houston, TX, for Respondent. ORDER DENYING MOTION TO DISMISS PETITION AILEEN M. CANNON, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court upon Respondent, Cebrone D. Atkins's Motion to Dismiss Petitioner's Exoneration from or Limitation of Liability Complaint (the "Motion") [ECF No. 13], filed on December 1, 2022. The Court has reviewed the Motion [ECF No. 13], Petitioner's Response in Opposition [ECF No. 19], Respondent's Reply in Support [ECF No. 22], and the full record. The court also held a hearing on the Motion on January 25, 2023 [ECF No. 29] and is otherwise fully advised in the premises. For the reasons below, the Motion [ECF No. 13] is DENIED.
BACKGROUND
The Petition in this case, brought under the Shipowner's Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq., arises out of an incident that occurred on September 8, 2021, in the territorial waters of Martin County, Florida [ECF No. 1 ¶ 6]. That day, Respondent, who was working for Petitioner as a crane operator on Petitioner's barge, suffered a heat stroke requiring transport to a hospital for treatment [ECF No. 13 p. 2; ECF No. 13-1]. A provider note from that day indicates that Respondent got "very hot" inside of the control booth of the crane, thought he was going to faint, exited the booth, laid down on the barge in a dizzy state and "may have passed out," after which his coworkers found him and gave him water [ECF No. 13-1]. The note also indicates that Respondent "had a weekend where he drank a significant amount of alcohol"; "symptoms are moderate"; and "improved with IV fluids and being cooled" [ECF No. 13-1]. The hospital note contains no reference to falling off a crane or related accident.
Almost five months later, on January 27, 2022, Respondent's lawyers faxed a letter on firm letterhead ("VB Attorneys") (the "January 2022 Letter") to Petitioner, indicating Respondent's intent to initiate litigation [ECF No. 13-3]. The content of the letter is relevant to the instant Motion and therefore is reproduced in full below:
Re: Cebrone Atkins
To Whom It May Concern,
Please be advised we have been retained by Cebrone Atkins concerning his injury that occurred on the job with you on or about mid-August 2021 (the "Incident") and have been assigned an undivided interest in the claims. Please do not communicate with Mr. Atkins in any way, but direct all communications through our firm.
As you know, Mr. Atkins was a Jones Act seaman and the Jones Act law applies to his claim. As a Jones Act seaman, Mr. Atkins is entitled to maintenance and cure benefits including medical care related to his on the job injury.
Mr. Atkins has outstanding bills at Cleveland Clinic for care he received as a result of the injuries he sustained during the Incident. Please contact the clinic immediately and make arrangements for payment of past and future care. The bill is attached.
In addition, Mr. Atkins has been prescribed medications due to the injuries he received as a result of the Incident. Please make arrangement to pay for his medication.
Mr. Atkins was referred to his primary care physician to neurologist Dr. Sonia Canavez-Nunez at Neurocare Consultants in Jupiter, Florida. Dr. Canavez-Nunez has since referred Mr. Atkins to get neuropsychological testing for injuries he sustained in the Incident. Please contact Dr. Jeff Hirsch in Palm Beach Gardens, Florida at 561-775-3234 to make payment arrangements for the testing mentioned above.
Obviously, Mr. Atkins is not at MMI [Maximum Medical Improvement] as that is defined per the Jones Act law. Please ensure that from now on you provide the healthcare Mr. Atkins' requires as a result of the injuries he sustained in the Incident. Mr. Atkins has the right to receive treatment from physicians of his choosing.
We reserve all rights concerning Mr. Atkins' claims that you unreasonably, willfully and wantonly cut off his maintenance and cure benefits, leaving him with no means to support himself or to receive needed medical care which will result in his sustaining additional injuries and needlessly deteriorating.
[ECF No. 13-3].Lastly, please be advised we have filed a lawsuit on behalf of Mr. Atkins. We look forward to hearing from you as soon as possible.
The only attachment to the January 27, 2022 letter is a hospital bill for $4,076.56, which again makes no reference to Respondent falling off a crane or to being involved in a collision or accident [ECF No. 19-1]. Additionally, while the letter states, in the past tense, that Respondent's lawyers "have filed a lawsuit" on Respondent's behalf, all parties agree that no such lawsuit had been filed as of the date of the letter [ECF No. 19 p. 6 n. 4].
On February 22, 2022, Respondent filed a negligence lawsuit in the Eleventh Judicial Circuit in and for Dade County, Florida, alleging that Petitioner was negligent and caused Respondent's heat stroke by not having proper ventilation inside the crane [ECF No. 13-6 ("On or about Mid-August, 2021 [the "Incident" actually happened September 8, 2021], while working for Defendant, Mr. Atkins suffered a heat stroke while working inside a crane on a barge that did not have proper ventilation. After being out for close to an hour he went to the hospital and was later released from employment.")]. Respondent served Petitioner with the complaint on March 31, 2022 [ECF No. 13-5].
Less than six months after Respondent served Petitioner in the state lawsuit, Petitioner filed the instant Petition seeking a limitation of liability for the September 8, 2021 incident [ECF No. 1]. Petitioner requests that its liability be limited to $320,000, the value of the barge on which Respondent was working when he suffered a heat stroke [ECF No. 1 ¶ 11].
The state lawsuit was served on Petitioner on March 31, 2022 [ECF No. 13-6]. Petitioner initiated this federal suit on September 16, 2022, approximately five and a half months later [ECF No. 1].
Respondent now moves to dismiss the Petition on one ground: the Petition is untimely under the six-month filing provision of the Limitation of Liability Act, 46 U.S.C. § 30511(a), because the Petition was filed more than six months after Respondent's lawyers faxed Petitioner the above January 27, 2022 letter [ECF No. 13 pp. 2-6]. Respondent attaches to the Motion, among other exhibits, the Medical Provider Note from September 8, 2021 (the "September 2021 Provider Note") described above [ECF No. 13-1], as well as a Medical Provider Note from January 11, 2022 (the "January 2022 Provider Note") [ECF No. 13-2]. Neither the September 2021 Provider Note nor the January 2022 Provider Note are referenced in the January 2022 Letter, see [ECF No. 13-3], and Respondent does not dispute that Petitioner did not receive the January 2022 Provider Note until July 2022 [ECF No. 19 p. 7; see ECF No. 22].
Respondent raised two subsidiary arguments in the Motion, neither of which he maintained at the hearing as a basis to dismiss at this juncture [see ECF No. 13 pp. 2, 6-8, 10 (asserting a fact-based argument related to the shipowner's "privity or knowledge" about the incident, see 46 U.S.C. § 30505(b), and a secondary argument under the "single-claimant rule" to proceed in the state action)]. The Court does not address those additional arguments in this Order.
Petitioner opposes the present Motion, arguing that its filing of this Limitation Action was timely, because the January 2022 Letter did not reveal a "reasonable possibility" that Respondent's claims would exceed $320,000, the total value of the barge [ECF No. 19 pp. 4-8]. See Orion Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1331 (11th Cir. 2019) (adopting "reasonable possibility" test to determine what suffices as "written notice of a claim" under 46 U.S.C. § 30511(a)). Petitioner argues that the January 2022 Letter simply constitutes a demand for medical care and benefits under the no-fault maritime doctrine of maintenance and cure, which is not a claim subject to a 46 U.S.C. § 30505 action [ECF No. 19 p. 5]. As Petitioner explains, the January 2022 Letter "could not have triggered the six-month deadline" given the Letter's content, Petitioner's knowledge of the incident, and the value of the barge [ECF No. 19 p. 8].
LEGAL STANDARD
Pursuant to the Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq., a shipowner can limit its liability for certain claims involving its vessel. See Orion Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1325 (11th Cir. 2019) ("The Act establishes a procedure by which a shipowner can limit its liability for certain claims involving one of its vessels to the value of the vessel plus its then-pending freight."). Claims subject to liability "are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner." 46 U.S.C. § 30505(b) ("Claims Subject to Limitation"). This general limit of liability restricts liability to "the value of the vessel and pending freight." Id. § 30505(a).
To get the benefit of the Act's limitation on liability, a shipowner must file its petition for exoneration within a six-month statutory deadline set forth in Section 30511(a). 46 U.S.C. § 30511(a). That provision, which acts as a non-jurisdictional claim-processing rule, see Orion, 918 F.3d at 1338, permits the owner of a vessel to bring a civil action in federal district court for "limitation of liability under this chapter," but "[t]he action must be brought within 6 months after a claimant gives the owner written notice of a claim," 46 U.S.C. § 30511(a) (emphasis added). As clarified by the Eleventh Circuit, to trigger the six-month filing period, a claimant must provide the shipowner or its agent with "written notice" that reveals a "reasonable possibility" of a claim that will exceed the value of the vessel at issue. Orion, 918 F.3d at 1338.
Neither party disputes that the current state lawsuit for negligence under the Jones Act [ECF No. 13-6] qualifies as a claim covered by the general limit of liability in Section 30505.
DISCUSSION
The question here is whether Petitioner, by virtue of having received the faxed letter from Respondent's lawyers on January 27, 2022, had "written notice" under Section 30511(a) sufficient to bar Petitioner's limitation of liability action. Respondent says yes because the January 2022 Letter stated "the Jones Act law applies to his claim" [ECF No. 22 p. 1; ECF No. 13-3]; the letter references Petitioner being referred to a neurologist; and Petitioner was aware of the circumstances surrounding the September 8, 2021, incident [ECF No. 13 p. 6]. Petitioner says no because the January 2022 Letter was merely a demand for medical benefits under the no-fault doctrine of maintenance and cure and did not allege any fault as to Petitioner regarding the September 8, 2021, incident [ECF No. 19 pp. 4-7].
The Eleventh Circuit in Orion established the relevant test to evaluate claims under Section 30511(a). 918 F.3d at 1330-31. As explained in that decision, the relevant question is whether a written notice of a claim reveals a "reasonable possibility" that the claim exceeds the value of the vessel. Id. at 1332. Although the notice does not need to include a specific demand for damages—and although "the vessel owner bears the burden of 'uncertainty' and 'doubt' as to the amount of alleged damages"—the claimant's notice still must reveal a "reasonable possibility" that the claim may exceed the vessel's value and is subject to limitation. Id. at 1330-31, 1337-38. Only when the notice reveals such a reasonable possibility does a vessel owner's duty to investigate arise. Id.
Applying that standard, and acknowledging the parties' competing positions, the Court concludes that Respondent's January 2022 Letter failed to reveal a reasonable possibility of a claim that would exceed $320,000, the undisputed value of the barge.
***
First, the January 2022 Letter, read fully, does not indicate that Petitioner is liable or at fault for Respondent's injury or that Respondent seeks to bring a cause of action subject to limitation under the Limitation of Liability Act [ECF No. 13-3]. The only connection in the Letter between Petitioner and Respondent's "job injury" is a statement that counsel has been retained by Respondent "concerning his injury that occurred on the job with [Petitioner] on or about mid-August 2021" [ECF No. 13-3 p. 1]. The Letter references "the Incident" and a "job injury" in cryptic terms, with no further information, and without reference to a collision or other serious injury on the vessel [ECF No. 13-3 pp. 2-3]. The Letter makes repeated references to Respondent's entitlement to "maintenance and cure," which is not a claim subject to limitation of liability in admiralty. See In re RJF Int'l Corp. for Exoneration from or Limitation of Liab., 354 F.3d 104, 107 (1st Cir. 2004) (citing to Brister v. A.W.I., Inc., 946 F.2d 350, 350-61 (5th Cir. 1991)). The Letter asks Petitioner to arrange for payment of Respondent's medical care and to arrange for medical testing [ECF No. 13-3 pp. 2-3]. And the Letter accuses Petitioner of "unreasonably, willfully and wantonly cut[ting] off his maintenance and cure benefits, leaving him with no means to support himself or to receive needed medical care" [ECF No. 13-3 pp. 2-3]. But nowhere does the Letter say that Petitioner is at fault for Respondent's injuries. Nor does it provide information on the severity of Respondent's injuries or allege unseaworthiness as to the vessel [ECF No. 13-3 pp. 2-3].
All parties agree that "the Incident" took place on September 8, 2021 [ECF No. 13-1].
Second, although the Letter mentions "the Jones Act" and also notes Respondent's referral for "neuropsychological testing," neither reference tips the scales in favor of finding reasonable notice on the record presented. As to the first issue, the Letter refers to Respondent being referred to "neuropsychological testing for injuries he sustained in the Incident" [ECF No. 13-3 p. 2], but even that reference—potentially serious when read in the abstract—provides no indication that Petitioner faces a claim subject to liability under the Limitation Act, much less a claim exceeding the value of the vessel in this case ($320,000). On the second issue, the Letter states: "As you know, Mr. Atkins was a Jones Act seaman and the Jones Act law applies to his claim. As a Jones Act seaman, Mr. Atkins is entitled to maintenance and cure benefits including medical care related to his on the job injury" [ECF No. 13-3 p. 2]. That paragraph, Respondent claims, put Petitioner on notice that it faced a claim subject to limitation that could exceed $320,000. Yet Respondent's theory proves too much. Read in context, that paragraph again focuses the reader explicitly on what is preeminent throughout the letter, which is Respondent's entitlement to maintenance and cure benefits and Petitioner's alleged withholding of such benefits. Simply referencing the Jones Act, or the "Jones Act applie[d] to his claim," without more, is not enough to trigger a reasonable possibility that a shipowner will face a negligence suit exceeding $320,000.
As noted, the only attachment to the Letter was a $4,076.56 emergency room bill generally listing charges [ECF No. 19-1].
Third, and relatedly, Petitioner's subjective knowledge about "the Incident" and Respondent's "injuries," as of January 27, 2022, still would not reveal a "reasonable possibility" that Respondent's claim could exceed $320,000. All Petitioner had as of January 27, 2022, was (1) the September 2021 Provider Note [ECF No. 13-1]; (2) the $4,076.56 bill for that visit [ECF No. 19-1]; and (3) a note stating that Respondent could return to work the same day of the incident [ECF No. 19-2]. So, even accepting Respondent's position that Plaintiff knew the facts as described in the September 2021 Provider Note still would not reveal a reasonable possibility that Respondent's claim would exceed $320,000. The September 2021 Provider Note indicated that Respondent was 53 years-old, became overheated and dizzy, laid down on the barge, might have passed out after laying down, was helped to shade and given water, was taken to the hospital via ambulance, and was treated for moderate symptoms that improved with IV fluids and being cooled down [ECF No. 13-1]. It was not until July 2022 that Petitioner received any indication that the September 8, 2021, incident might be more serious than what was described in the September 2021 Provider Note [ECF No. 19 p. 7]. Further, it was not until July 2022 that Respondent's counsel sent Petitioner the January 2022 Provider Note, which indicated for the first time that Respondent apparently "fell down 8 feet, hit his head, was unconscious for 1 1/12 [hours], [and] was found with [his] hands blue" [ECF No. 13-2]. This factual presentation is starkly different from the September 2021 Provider Note where Respondent indicated to his healthcare provider that he felt dizzy, left the crane, and laid down on the barge before potentially passing out [ECF No. 13-1].
In the end, on balance, the January 2022 Letter (plus attachment) on which Respondent bases its timeliness Motion is not enough. For the reasons described, the Letter concerns a demand that Petitioner resume payment of Respondent's maintenance and cure benefits. To accept Respondent's position simply requires too many extrapolations and inferences to lead the Court to find the requisite reasonable possibility. Of course, the "reasonable possibility" standard is not stringent, but neither is it toothless. In re Eckstein Marine Serv. L.L.C., 672 F.3d 310, 317 (5th Cir. 2012). And here, based on a full reading of the letter and the record, the Court determines that Petitioner's claim is not time-barred under Section 30511(a). Petitioner filed this Limitation of Liability Action on September 16, 2022 [ECF No. 1]—within six months of being served with the state court lawsuit on March 31, 2022 [ECF No. 13-5].
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. Respondent's Motion to Dismiss the Petition [ECF No. 13] is DENIED.
2. The parties are required to submit a Joint Scheduling Report in accordance with the Court's Order Requiring a Joint Scheduling Report and Certificates of Interest Parties filed contemporaneously with this Order.
DONE AND ORDERED in Chambers at Fort Pierce, Florida this 6th day of February 2023.