Opinion
CASE NO. 1:17-CV-21036-JLK
04-16-2019
Dana TERRY & Tyrone Terry, Plaintiffs, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Felix Herrera, M.D., Defendants.
David W. Singer, Peter G. Walsh, David W. Singer & Associates PA, Hollywood, FL, Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiffs. Andrew Garrett Tuttle, Fowler White Burnett PA, West Palm Beach, FL, Stephen Fraser Coxhead, Charles Paul Gourlis, Jr., Christine Margaret Walker, Christopher Edson Knight, John Michael Pennekamp, Marc J. Schleier, Fowler White Burnett, PA, Amanda Altman Kessler, United States Attorney's Office, Miami, FL, Katina M. Hardee, Fowler White Burnett, P.A., Fort Lauderdale, FL, for Defendants.
David W. Singer, Peter G. Walsh, David W. Singer & Associates PA, Hollywood, FL, Eduardo Jesus Hernandez, Eduardo J. Hernandez, LLC, Miami, FL, for Plaintiffs.
Andrew Garrett Tuttle, Fowler White Burnett PA, West Palm Beach, FL, Stephen Fraser Coxhead, Charles Paul Gourlis, Jr., Christine Margaret Walker, Christopher Edson Knight, John Michael Pennekamp, Marc J. Schleier, Fowler White Burnett, PA, Amanda Altman Kessler, United States Attorney's Office, Miami, FL, Katina M. Hardee, Fowler White Burnett, P.A., Fort Lauderdale, FL, for Defendants.
ORDER DENYING PARTIAL SUMMARY JUDGMENT FOR PLAINTIFF ON ACTUAL AGENCY AND GRANTING PARTIAL SUMMARY JUDGMENT FOR DEFENDANT ON APPARENT AGENCY AND JOINT VENTURE
JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court upon Defendant Carnival Corporation's ("Carnival") Amended Motion for Partial Summary Judgment (D.E. 173), and Plaintiff Dana Terry's Renewed Motion for Summary Judgment on Claims of Actual Agency and Apparent Agency (D.E. 181), both filed February 4, 2019.
The Court has also considered the parties' Responses in Opposition (D.E. 200; D.E. 201), filed February 22, 2019; and the parties' Replies (D.E. 211; D.E. 212), filed March 5, 2019.
I. BACKGROUND
This negligence action arises out of a stroke Plaintiff Dana Terry suffered while aboard Carnival's ship Carnival Pride on December 25 and 26, 2015 (D.E. 1, ¶¶ 20–23). On December 24, Terry stumbled when walking to dinner, and a man walking behind her helped stabilize her so that she did not fall to the floor (see D.E. 177, at 168–83). On December 25 at 3:00 a.m., Terry woke up because her "legs felt funny" (D.E. 178, at 222), then around 5:30 or 6:00 a.m., she tried to get up out of the bed but fell due to leg weakness (id. at 223:16–224:14) and had "excruciating pain" in her legs (id. at 225:23–226:5). At the ship's medical center, she told the doctor her symptoms (including inability to stand or walk and severe pain) and related to the doctor that she had stumbled the night before while walking to dinner (id. at 239–45). After several tests, the doctor told Terry she was suffering from a "TIA" (trans-ischemic attack), but she told him "it wasn't a TIA. It was a stroke," and he replied "No, it's not a stroke, Ms. Terry" and "it's not that serious and it will resolve itself in 24 hours" (id. at 247:6-25). The medical staff then gave Terry an IV drug and more blood tests and sent her back to her cabin with her husband with instructions to return later (id. at 248:3-14). She returned in the afternoon, by which time her symptoms had not improved (id. at 254:19-25), and the doctor checked her blood pressure and gave her medication for anxiety (see id. at 255–56). The doctor said, "As soon as you get back, you need to go to an emergency room," and Terry requested the medical staff to have the ship arrange for an ambulance (id. at 262:5-18). Terry spent the rest of the day and the next morning in bed in "excruciating pain" (see id. at 268–70). On the morning of December 26, the ship arrived in Baltimore where Terry was ambulanced to the emergency room of Harbor Hospital (id. 274–78). As of her July 18, 2018 deposition, Terry continues to suffer from weakness and paralysis of her left side (id. at 306–11).
Dr. Felix Herrera was the shipboard doctor at the time of Plaintiff's cruise (D.E. 124, ¶ 12; D.E. 200, ¶ 12).
Plaintiffs Dana Terry and her husband Tyrone Terry filed this action on March 20, 2017 and listed five causes of action. On August 10, 2017, the Court dismissed with prejudice Count V by then-Plaintiff Tyrone Terry for loss of consortium (D.E. 21) noting that "it is well established that general maritime law does not recognize recovery for loss of consortium in personal injury cases" (id. at 2). On March 12, 2018, the Court dismissed Count I for Dr. Herrera's own negligence due to the Court's lack of personal jurisdiction over Dr. Herrera (D.E. 59), leaving Carnival as the sole defendant. The remaining counts each allege Carnival's liability for the negligence of its medical personnel under a different theory: Count II through actual agency; Count III through apparent agency and vicarious liability; and Count IV through a joint venture.
Specifically, Terry alleges Dr. Herrera was negligent where he breached his duty "to provide prompt, proper and appropriate medical care ... and to further supervise the medical and treatment rendered by the nurses and other medical personnel under his authority" (id. ¶ 25). In addition, she alleges that Dr. Herrera failed to "evacuate Dana Terry from the vessel for further shoreside care in a timely manner" or "have the vessel speed up and/or to divert its course in order to more quickly arrive at a port where she could receive the necessary medical care," and that he failed "to make advance arrangements for and to facilitate the transfer of Dana Terry to be immediately taken to appropriate shoreside medical facilities" (id. ¶ 26).
Following the close of all discovery on January 30, 2019, Dana Terry and Carnival each filed motions for partial summary judgment (D.E. 173; D.E. 181). Terry's motion requests a ruling that Dr. Herrera was an "actual agent[ ] and/or apparent agent[ ]" of Carnival (D.E. 181, at 23). Plaintiff also requests summary judgment that three nurses on the ship, Bryan Daulo, Laura Bahamon, and Penelope Cape, were actual and apparent agents of Carnival (DE 181, at 23). Carnival's motion requests summary judgment in its favor as to Count III (apparent agency) and Count IV (joint venture) (D.E. 173, at 14, 18).
II. DISCUSSION
A. Legal Standard on Summary Judgment
Summary judgment is appropriate where there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 742 (11th Cir. 1996). A fact is material if it may affect the outcome of the case under the applicable substantive law. Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997). If a reasonable fact finder could draw more than one inference from the facts, creating a genuine issue of material fact, summary judgment should not be granted. Samples ex rel. Samples v. City of Atlanta , 846 F.2d 1328, 1330 (11th Cir. 1988). The moving party has the burden of establishing both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
B. Whether Dr. Herrera Was Actual Agent of Carnival Is Issue of Fact for Jury
Regarding the ship's nurses, "Defendant admits that it employs its Ship's Nurses" (D.E. 181, ¶ 7; accord D.E. 202, ¶ 7). Indeed, the testimony of Carnival's corporate representative, Dr. Adriana Yates, states that "the nurses are employees" (D.E. 180, at 129, 165). However, as Defendant points out (D.E. 211, at 9), this admission does not address Carnival's Affirmative Defense E, which claims that its nurses were operating as "borrowed servants" at the time relevant to the action. Therefore, the Court cannot at this time grant summary judgment for Plaintiff that Nurses Daulo, Bahamon, and Cape were Carnival's actual agents, rather than Dr. Herrera's "borrowed servants," where that question presents a genuine issue of fact for the jury. See Martins v. Royal Caribbean Cruises Ltd. , 216 F. Supp. 3d 1347, 1363–64 (S.D. Fla. 2016) (Goodman, M.J.).
Actual agency requires "(1) the principal to acknowledge that the agent will act for it; (2) the agent to manifest an acceptance of the undertaking; and (3) control by the principal over the actions of the agent." Franza v. Royal Caribbean Cruises Ltd. , 772 F.3d 1225, 1236 (11th Cir. 2014) (Marcus, J.) (internal quotation marks omitted). Actual agency between a ship and medical team is not a "categorical exception" from traditional "fact-intensive treatment of agency questions." Id.
Defendant Carnival does not move for summary judgment on this issue, but only opposes Plaintiff's Motion for Partial Summary Judgment.
1. Carnival's Acknowledgment and Dr. Herrera's Acceptance of Agency Relationship
In Franza , the plaintiff's complaint was held to "plausibly establish[ ]" the ship's acknowledgement and the doctor's acceptance of an agency relationship where it alleged (a) the doctor was "employed" by the ship and "acting within the scope of his employment;" (b) the ship directly paid the doctor; (c) the medical facility was "created, owned, and operated by [the ship]" with the ship's marketing materials describing it in proprietary language; (d) the ship provided, and the doctor wore, uniforms with the ship's name and logo; and (e) the ship represented to immigration authorities and passengers that the doctor was a "member[ ] of the ship's crew" and "one of the ship's Officers." Id. The Eleventh Circuit then stated: "Taken as true, these allegations are more than enough to satisfy the first two elements of actual agency liability." Id.
Here, we are at summary judgment reviewing the record after the completion of all discovery. Dr. Herrera was working on the Carnival Pride in December 2015 pursuant to Carnival's "Independent Contractor Agreement Shipboard Physician Services" (hereinafter "employment agreement") (D.E. 124, ¶ 13; D.E. 200, ¶ 13; see also D.E. 181-7). This agreement, in which Dr. Herrera agrees to provide shipboard services for the six-month period commencing November 19, 2015 (D.E. 181-7, ¶ 2), refers to Dr. Herrera as "CONTRACTOR" throughout (see generally id. ).
Dr. Herrera was first hired by Carnival in 2014 (D.E. 180, at 89:21-24) and he did over seven contracts with Carnival in total, at a rate of about two per year (see id. at 95:3–96:9).
The employment agreement provides for direct payment to Dr. Herrera every two weeks (id. ¶ 3). Moreover, Carnival's corporate representative confirmed in her testimony that the contracts for doctors "contain a wage grievance and a general grievance procedure" "[j]ust like any other crewmember" (D.E. 180, at 134:11-17; see also D.E. 181-6). Regarding uniforms, a provision in the employment agreement states that "[Carnival] shall provide CONTRACTOR a Physician's uniform which shall remain the property of [Carnival] at all times and upon termination" (D.E. 181-7, ¶ 4b).
As for the proprietary nature of the medical facility, Carnival's corporate representative, Dr. Adriana Yates (who is also the Fleet Medical Director), testified:
Q. You'd agree that your company is involved in designing and building the medical departments ... how you guys want it, right?
A. Yes.
(D.E. 180, at 112:16-18). She further testified regarding Carnival's online marketing materials:
Q. [Y]ou're familiar with [ ] Carnival's website, right?
A. Yes.
Q. Okay. There are sections in the website that deal with the shipboard infirmary, shipboard medical departments, right?
A. Yes.
...
Q. And your website advertises that you have medical services available for passengers right?
...
A. Yes.
Q. Okay. And this was the case back in 2015, right?
A. Yes.
...
Q. Okay. What is that?
A. This is part of Carnival's website related to medical services.
Q. All right. And you see towards the bottom there I've highlighted a passage that starts with the word "our," right?
A. Yes.
Q. "Our medical centers."
A. Correct.
...
Q. And the same wording is used again on the second page, twice, "our medical centers," right?
A. Correct.
...
Q. All right. And it says, in fact, that "our medical centers carry some of the latest in medical technology, including thrombolytic therapy." Right?
A. Yes.
(id. at 105:4–107:24) (emphasis added). However, Carnival's position is that any proprietary language was added to the website after December 2015, citing to "screenshots" of the website that were attached by Plaintiff (D.E. 202, ¶ 13; see also D.E. 181-8). "[C]ourts should initially look to the agreement between the parties, if there is one, and honor that agreement, unless other provisions of the agreement, or the parties' actual practice, demonstrate that this is not a valid indicator of status." Carlson v. FedEx Ground Package Sys., Inc. , 787 F.3d 1313, 1319 (11th Cir. 2015) (internal quotation marks omitted). Here, therefore, the Court concludes there is evidence in the record to support that Carnival acknowledged, and Dr. Herrera accepted, an agency relationship, but there is also evidence to support the opposite conclusion.
2. Carnival's Control Over Dr. Herrera's Actions
"[C]ontrol is the fulcrum of respondeat superior." Franza , 772 F.3d at 1236. Evidence probative of control in the maritime context includes "( [i] ) direct evidence of the principal's right to or actual exercise of control; ( [ii] ) the method of payment for an agent's services, whether by time or by the job; ( [iii] ) whether or not the equipment necessary to perform the work is furnished by the principal; and ( [iv] ) whether the principal had the right to fire the agent." Id. at 1236–37.
Regarding direct evidence of control, the Eleventh Circuit in Franza emphasized "evidence that the cruise line put the ship's physician and nurse under the command of the ship's superior officers." Franza , 772 F.3d at 1237 (internal quotation marks omitted). The record indeed supports that, while on the ship, Dr. Herrera was integrated within the chain-of-command of the crew:
Q. When they're on board, your ships' doctors ... are considered part of the ship's crew, part of the ships' complement, right?
...
A. The doctors are independent contractors ... and they are treated as crew.
...
Q. Your ships' doctors are considered senior officers, right?
A. Yes.
Q. Which means they have control over lower ranking officers, right?
A. Yes.
(D.E. 180, at 133:24–134:7, 137:12-17). Another example of evidence of control is the dress code to which all doctors on Carnival's ships, including Dr. Herrera, must conform:
Q. So formal night, the doctor needs to be in a navy blue uniform, right?
A. Yes.
Q. Other than formal night, nighttime attire for a doctor in a public area is the officer's white uniform, right?
A. Yes.
Q. And then during the day when on call, they wear white scrubs with a Carnival medical logo and white long pants, right?
A. Yes.
...
Q. Okay. There's reference to this Carnival look here. Your doctors ... need to adhere to that, right?
A. Yes.
(id. at 246:3-23).
In addition, payment by time, and not by the job, is probative of an agency relationship. Franza , 772 F.3d at 1237. Carnival's representative confirmed that the doctors are paid a salary by Carnival that is not dependent on what they bring in, and that Carnival sets their work hours (see D.E. 180, at 128:11-25). Moreover:
Q. [I]t's Carnival that sets the fees for the services that are provided in your medical departments, right?
A. Yes.
...
Q. Okay. And through these charges that are charged to passengers, Carnival earns a revenue from this, right?
A. Yes.
...
Q. [I]t's Carnival that bills the passengers for medical care, not the nurse, not the doctor on the ship, right?
A. It's ... the nurse basically just processes the charges.
Q. Right. But ... the money the passenger is paying for medical care on one of your ships—and this all holds true in 2015, right—goes to Carnival? It doesn't go to the nurse, it doesn't go to the doctor.
A. Correct.
(id. at 124:14-17, 126:5-8, 127:24–128:10). Therefore, there is evidence that "the cruise line exercises complete control over any funds that might otherwise have flowed directly from the passengers to the medical professionals in consideration of treatment rendered." Franza , 772 F.3d at 1237.
Moreover, Carnival, and no one else, furnishes the equipment that Dr. Herrera uses while on the job:
Q. Okay. And you'd agree that it's your company that procures the equipment for your medical departments, right?
A. Yes.
Q. You'd agree that it's your company that procures and stocks the medications that medical departments carry, right?
A. Yes.
Q. Nobody else is doing it, right?
A. Yes.
Q. All right ... [I]s this done through the regular purchasing department shore side or is there a different procurement department for medical departments?
A. The regular.
(D.E. 180, at 112:19–113:13).
Finally, it is undisputed that Carnival has the right to fire its doctors (see D.E. 181, ¶ 12; D.E. 202, ¶ 12 (citing to 08/31/18 Yates Deposition, at 131:24–132:1)). In fact, Carnival fired Dr. Herrera himself years after the events of this case, in April 2018 (D.E. 181, ¶ 12 n.4).
Accordingly, there is abundant evidence in the record probative of Carnival's control over Dr. Herrera raised by Plaintiff to support a theory of actual agency.
* * *
Throughout its pleadings, Carnival objects to characterizing Dr. Herrera as its agent because its documents state, and its corporate representative repeatedly testified, that the ship's doctors are independent contractors and not employees (D.E. 202, ¶¶ 12, 28, 31). However, the Eleventh Circuit has spoken on that point: "[W]e would not consider the ... doctor to be [an] independent contractor[ ] simply because that is what the cruise line calls [him]." Franza , 772 F.3d at 1238.
Moreover, Carnival's argument (D.E. 202, ¶¶ 14, 30, 32) that it does not direct the medical care itself, but the physicians use their own medical judgment, is not controlling because that would be true of any doctor with an actual agent relationship with a cruise ship such as the one the Eleventh Circuit in Franza found to be plausible. See Franza , 772 F.3d at 1240 ("[A]n obligation to maintain control of their medical judgment does not prevent a physician ... from becoming an employee.") (internal citation and quotation marks omitted). Nor is it controlling that "[m]edical services are not part of [Carnival's] regular business" (D.E. 201, at 7). See Franza , 772 F.3d at 1244. Overall, the Court concludes that, especially given the first two requirements for actual agency of acknowledgement by the principal and acceptance by the agent, a reasonable jury could find either that Dr. Herrera was Carnival's employee or an independent contractor. Compare Martins v. Royal Caribbean Cruises Ltd. , 216 F. Supp. 3d 1347, 1363 (S.D. Fla. 2016) (Goodman, M.J.). Therefore, summary judgment on the issue of actual agency (upon which Count II depends) is not warranted.
C. The Record Does Not Support That Plaintiff Reasonably Relied on Any Representation by Carnival That It Employs Its Doctor or Nurses
An entirely different theory of liability, apparent agency, is also propounded by Plaintiff. Apparent agency requires (1) "a representation by the principal to the plaintiff, [ (2) which] causes the plaintiff reasonably to believe that the alleged agent is authorized to act for the principal's benefit, and [ (3) ] induces the plaintiff's detrimental, justifiable reliance upon the appearance of agency." Franza , 772 F.3d at 1252. In a case on maritime negligence of medical personnel, detrimental, justifiable reliance means that the plaintiff "would not have blindly trusted the advice of unknown medical personnel ... [if they] had not borne the imprimatur of a well-known and trusted cruise line." Id. at 1253.
1. Dana Terry Did Not Book the Cruise in Reliance on Any Representation by Carnival that it Employs Its Doctor or Nurses
Defendant argues that Plaintiff could not have reasonably believed Dr. Herrera was an employee because the Ticket Contract, under a section titled "Independent Contractors, Shore Excursions and Other Services," states that "[g]uest acknowledges that ... the ship's physician," along with "all Shore excursions/tours," "airline flights and ground transportation," and "on board concessions," "are either operated by or are independent contractors" (D.E. 173-4, at 10). The Ticket Contract goes on to state that "[i]ndependent contractors ... are not agents, servants or employees of Carnival and have no authority to act on behalf of Carnival" (id. at 11). Defendant attaches an affidavit of Carnival's Director of Guest Claims (D.E. 173-1), who testifies:
Since at least 2015, guests (regardless of how they booked) have been required to accept the Cruise Ticket Contract as part of the check-in process for their cruise ... Before a guest completes the check-in process, he or she must certify that each member of the guest's party agrees to the Ticket Contract.
(id. ¶ 9). Plaintiff contends that "she never completed a ticket acknowledgement" and the only email Defendant had for the booking was for her husband Tyrone Terry, which itself was spelled incorrectly ("verizin.net" instead of "verizon.net") (D.E. 211, ¶ 40 (citing D.E. 173-3, at 7)). Carnival rebuts that "the ticket acknowledgment occurred during the Online Check-in Process, not through an e-mail sent to Plaintiff and her husband" (D.E. 212, at 4 n.1), and booking records attached by Carnival "reflect that both Plaintiff and her husband electronically confirmed acceptance of the terms of the Ticket Contract at 9:23 a.m. on November 1, 2015 when completing Online Check-In" (id. at 4 (citing D.E. 173-3)).
Regardless of whether Dana Terry received Carnival's representation that the ship's physician is an independent contractor, there is no evidence in the record that Terry received any representations prior to her cruise that the ship's physician is Carnival's employee . Plaintiff testified at her deposition on whether Carnival provided her information about medical care before the cruise:
Q. [W]hoever answered the phone at Carnival to book your trip ...
...
Q. Did anybody on the phone say anything about the medical care on the ship?
A. No.
...
Q. Did any of those documents that Carnival sent you after you booked have any information about the medical care that would be provided on the ship?
A. No.
(D.E. 177, at 132:16-23, 133:21-25). Moreover, as Defendant points out, "[t]here is no testimony in the record that Plaintiff or her husband spoke to [anyone at Carnival] regarding Dr. Herrera's employment or agency status" (D.E. 201, at 9).
Plaintiff testifies in an affidavit: "I chose to take the Carnival cruise, in part, because of this belief that Carnival's ships had adequate infirmaries staffed by doctors and nurses employed by Carnival. Had I known otherwise before my cruise, I would not have taken the cruise on the Carnival Pride" (D.E. 181-14, ¶ 6). Plaintiff essentially argues that in the absence of any representation by Carnival to the contrary, she assumed that Carnival's doctors and nurses were employees and she would not have taken the cruise if she had thought they were independent contractors (D.E. 211, ¶ 34; see also D.E. 181, at 21–22). But, the binding standard from Franza is detrimental reliance on a representation by the principal, not detrimental reliance on the plaintiff's own assumption. See also Whetstone Candy Co. v. Kraft Foods, Inc. , 351 F.3d 1067, 1078 (11th Cir. 2003) (holding that "remaining silent and failing to object to [a] Settlement Agreement" did not "reasonably create[ ] the appearance of [the agent's] authority to act for [the principal]").
Regardless, as Defendant points out (D.E. 202, ¶ 34; D.E. 201, at 17–18), Plaintiff's own deposition testimony contradicts her entire theory:
Q. And before this cruise had you ever done any research into what medical care would be like on the ship?
A. No.
Q. Okay. Was it something you ever considered before this cruise?
A. No.
(D.E. 177, at 83:21–84:2) (emphasis added). Accordingly, the Court finds that Dana Terry did not book the cruise in reliance on any belief about the employment status of the ship's doctor or nurses, where she did not even consider the issue of medical care on the ship.
2. The Record Does Not Reflect That, In the Medical Center, Plaintiff Relied on Any Representation by Carnival that the Doctor and Nurses Were Its Employees
Plaintiff testifies in her affidavit that "[she] relied on Carnival's doctor and nurses' care, treatment, and recommendations because [she] believed them to be employed by Carnival" (D.E. 181-14, ¶ 12). This means that she detrimentally relied on (i.e. , changed her position based on) representations by Carnival that the doctor and nurses are its employees. Plaintiff testifies in her affidavit on the representations:
Carnival's doctor and nurses had on uniforms similar to other crewmembers I had seen during the cruise. On their uniforms, the doctor and nurses had name tags with Carnival's logo on it. I also recall seeing Carnival's logo somewhere inside the infirmary.
(id. ¶ 10). Through these statements, Plaintiff is positing that she changed her position at the point of care based on representations like the uniforms of the medical personnel.
In Franza , "an elderly cruise ship passenger ... was docked at port in Bermuda ... [and] was wheeled back onto the ship, where he sought treatment [for a head injury ] from the onboard medical staff." Franza , 772 F.3d at 1227. Here, in contrast, Plaintiff began experiencing symptoms on a ship at sea and had no way to receive urgent in-person medical care for her inability to walk and excruciating pain (D.E. 178, at 225:23–226:5) other than the ship's onboard medical staff. There is no evidence in the record that Plaintiff changed her position in reliance on the belief that the doctor and nurses were employees rather than independent contractors. Instead, her deposition testimony reflects that her thoughts were dominated by "severe pain":
Q. Was your husband present in the medical center with you ... all of this time in the morning?
A. I cannot answer that.
Q. Why not?
A. Because, first of all, I was in severe pain. That's the first thing.
Q. Anything else?
A. No.
Q. Okay. You don't remember if your husband was by your side encouraging you or consoling you?
A. I cannot honestly answer that question.
(id. at 245:1-14). Absent from her deposition testimony regarding her first visit to the ship's medical center (id. at 236–51) is any statement reflecting that she even thought about the doctor or nurses' status as either employees or independent contractors. Dana Terry had no other option to seek treatment for her pain and inability to walk, and there is inadequate evidence in the record to support that given these circumstances she would have left the medical center if the uniforms were different or if Carnival's logo was not present in the medical center.
* * *
For these reasons, the Court finds that Carnival is entitled to judgment as a matter of law that it is not liable to Plaintiff for its doctor and nurses' actions according to a theory of apparent agency.
D. The Record Does Not Support a Joint Venture Between Carnival and Dr. Herrera
A joint venture requires (1) the parties' intent to create a joint venture; (2) joint right to control; (3) joint interest in the subject matter; (4) the right to share profits; and (5) the duty to share losses. Ceithaml v. Celebrity Cruises, Inc. , 207 F. Supp. 3d 1345, 1354 (S.D. Fla. 2016) (citing Sasportes v. M/V Sol de Copacabana , 581 F.2d 1204, 1208 (5th Cir. 1978) ).
Defendant is correct that Plaintiff has put forth no evidence to plausibly support the fourth and fifth elements of a joint venture, that Dr. Herrera had a right to share in Carnival's profits or a duty to share in Carnival's losses (D.E. 173, at 18). It is undisputed that nothing in the employment agreement between Carnival and Dr. Herrera (D.E. 181-7) provides a right to share in profits or losses (D.E. 124, ¶¶ 15–16; D.E. 200, ¶¶ 15–16). Moreover, Carnival's corporate representative Dr. Yates testified:
Count IV was allowed to proceed at the motion to dismiss stage only because, as Magistrate Judge Simonton found, "the Complaint provides enough factual material to raise the right to relief above the speculative level," where "factors indicating a joint venture [did] not need to be met point for point" (D.E. 12, at 10).
--------
Q. The charges that you charge passengers for medical care onboard ship, they're collected by Carnival, right?
A. Yes.
Q. Are any of those profits shared with the ship's physician?
A. No.
Q. Does the ship's physician have a straight salary that never deviates?
A. Yes.
Q. Does he ever get bonuses?
A. No.
Q. Does he ever get incentive pay for anything?
A. No.
Q. If he does a miraculous job, saves a life, you'll tell him good job, but do you ever give him anything like a bonus?
A. No.
Q. Or a week's vacation?
A. No.
(D.E. 179, at 72:8–73:2).
Plaintiff argues that it is only necessary for the parties to have "profited in some manner from the arrangement," citing Fla. Tomato Packers, Inc. v. Wilson , 296 So. 2d 536, 539 (Fla. 3d Dist. Ct. App. 1974) ("[W]here one party supplies the labor, experience and skill, and the other the necessary capital ... in the event of a loss, the party supplying the knowhow would have exercised his skill in vain and the party supplying the capital investment would have suffered a diminishment thereof.") (D.E. 200, at 23). However, Defendant distinguishes Wilson where there the parties agreed to divide the profits evenly, and the Court inferred sharing of losses (D.E. 212, at 10–11).
In addition, Plaintiff argues that the circumstances of arrangement can indicate that profit from the enterprise was a motive for both parties, citing Fulcher's Point Pride Seafood, Inc. v. M/V Theodora Maria , 935 F.2d 208 (11th Cir. 1991) (D.E. 200, at 23). Defendant argues that the separate earning of money from a contractual relationship cannot alone be a motive of profit-sharing, or "every entity/independent contractor, employer/employee, and principal/agent relationship would satisfy these elements" (D.E. 212, at 11).
Therefore, the Court finds that Plaintiff's joint venture theory, upon which Count IV depends, is due to be dismissed with prejudice.
III. CONCLUSION
Because a jury could conclude that Dr. Herrera was Carnival's independent contractor or Carnival's employee, Plaintiff is not entitled to judgment as a matter of law on that point. However, Carnival is entitled to judgment as a matter of law as to its liability for its doctor and nurses' negligence according to theories of apparent agency or joint venture. Accordingly, it is ORDERED, ADJUDGED, and DECREED that Plaintiff's Renewed Motion for Summary Judgment on Claims of Actual Agency and Apparent Agency (D.E. 181) is hereby DENIED ; Defendant's Amended Motion for Partial Summary Judgment (D.E. 173) is hereby GRANTED ; and Counts III and IV of Plaintiff's Complaint (D.E. 1) are hereby DISMISSED with prejudice . The case as to Count II will proceed to trial according to the Court's operative Scheduling Order (D.E. 219).
DONE and ORDERED in Chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida this 16th day of April, 2019.