Whitcomb et al v. Vetus Maxwell, Inc. et al

MOTION to dismiss for failure to state a claim as to Count I

M.D. Fla.August 9, 2016

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CASE NO.: 6:16-cv-01100-CEM-TBS DOUGLAS WHITCOMB and PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE, Plaintiffs, v. VETUS MAXWELL, INC. and FLORIDA BOW THRUSTERS, INC. Defendants. _________________________________/ DEFENDANT, FLORIDA BOW THRUSTERS, INC.’S, MOTION TO DISMISS AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Defendant, FLORIDA BOW THRUSTERS, INC. (“Florida Bow Thrusters” or “Defendant”), by and through the undersigned counsel, and pursuant to the Federal Rules of Civil Procedure, hereby moves to dismiss Count I (Strict Products Liability) and Count IV (Negligence) in Plaintiff’s Complaint [D.E. 1] and states as follows: INTRODUCTION This matter arises out of a fire that occurred on or about August 24, 2013, while Plaintiff DOUGLAS WHITCOMB (“Whitcomb”) was preparing to disembark his vessel, Quit Whit, at The Huntington Yacht Club in Halesite, New York. [D.E. 1, ¶13-¶16]. The fire caused damage to the vessel only. [D.E. 1, ¶16]. There are no allegations of personal injuries or damage to other property. Whitcomb and Plaintiff Privilege Underwriters Reciprocal Exchange, as subrogee of Whitcomb (“PURE”) (collectively referred to herein as “Plaintiffs”), filed the instant complaint against Florida Bow Thrusters and VETUS MAXWELL, INC. (“Vetus”), alleging that the fire Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 1 of 8 PageID 79 2 was caused by bow and stern thrusters that were “manufactured, marketed, distributed and sold by Vetus” [D.E. 1, ¶11], and installed on the Vessel “by Florida Bow Thrusters in or around June 2012,” fourteen months prior to the fire [D.E. 1, ¶12]. As numbered in the complaint, Plaintiffs seek damages from Florida Bow Thrusters under four separate counts: (I) Strict Productions Liability: (IV) Negligence; (V) Breach of Warranty of Workmanlike Service; (VI) Breach of Workmanlike Performance. For the reasons set forth below, Florida Bow Thrusters respectfully submits that plaintiff’s two tort claims, specifically Count I and Count IV, fail to state a claim upon which relief may be granted against Florida Bow Thrusters and therefore should be dismissed with prejudice. MEMORANDUM OF LAW I. Motion to Dismiss Standard “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,129 S. Ct. 1937 (2009). The allegations must include “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Id. Detailed factual allegations are not required, but a pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of the cause of action will not do.” Id. at 1949 (quoting Twombly, 550 U.S. at 555). A complaint's factual allegations must be enough to raise a right to relief above speculative level. Id; see also Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F. 3d 1182, 1188 (11th Cir. 2002) (holding that conclusory allegations, Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 2 of 8 PageID 80 3 unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent dismissal). When the plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570. II. The General Maritime Law Governs Plaintiff’s Tort Claims Over Florida Bow Plaintiff asserts two tort claims against Florida Bow Thrusters; Strict Products Liability (Count I) and Negligence (Count IV). These give rise to admiralty jurisdiction and are therefore subject to substantive admiralty law. Admiralty jurisdiction over tort claims arises where: (1) a tort occurs on navigable waters; and (2) the tort is connected with maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). Here, the bow and stern thrusters installed on the vessel are alleged to have caused damage to the vessel while on navigable waters; more specifically, the fire allegedly occurred while Whitcomb was in the process of disembarking after returning the vessel to its slip at The Huntington Yacht Club in Halesite, New York. [D.E. 1, ¶14-¶16], therefore satisfying the location requirement. See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 863-64 (1986); Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1545-47 (11th Cir.1994). As for the connection requirement, the incident must have “a potentially disruptive impact on maritime commerce,” and “the general character of the activity giving rise to the incident [must] show [ ] a substantial relationship to traditional maritime activity.” Jerome B. Grubart, 513 U.S. at 534 (internal quotation marks omitted). The first connection requirement is satisfied, as the fire could have spread to nearby vessels or caused the vessel to sink, posing a hazard for navigation. See Sisson v. Ruby, 497 U.S. 358, 362-63 (1990). The second connection requirement is satisfied because the fire broke out while the vessel was being docked at a marina on navigable waters, a traditional maritime activity. Id. at 367 (“[S]toring and maintaining a vessel at a marina on a navigable waterway is substantially related Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 3 of 8 PageID 81 4 to traditional maritime activity.”). Additionally, Plaintiffs allege that “[t]his is a case of maritime jurisdiction pursuant to 28 U.S.C. § 1333(1).” [D.E. 1, ¶22]. Therefore, Plaintiff’s torts claims fall within federal admiralty jurisdiction. See e.g. Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 876-77 (1997) (exercising admiralty jurisdiction over products liability claims which alleged that defective design caused engine room fire). “With admiralty jurisdiction comes the application of substantive admiralty law.” East River, 476 U.S. at 864 (U.S. 1986). III. The Economic Loss Rule Prohibits Tort Recovery When A Product Damages Itself, Causing Economic Loss, But Does Not Cause Personal Injury Or Damage To Other Property Substantive admiralty law recognizes products liability principles, including the economic loss rule. East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858 (1986). The economic loss rule prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to other property. Id.; Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 876-877 (1997) (“An admiralty tort plaintiff cannot recover for the physical damage the defective product causes to the product itself; but the plaintiff can recover for physical damage the product causes to ‘other property.’”). Where a product damages itself, but does not cause personal injury or damage to other property, the purchaser’s right to recover is limited to a contract/warranty action. East River, 476 U.S. at 872 (“Damage to a product itself is most naturally understood as a warranty claim.”) and at 876 (“whether stated in negligence or strict liability, no products liability claim lies in admiralty when the only injury claimed is economic loss.”); see also Sea-Land Serv. v. GE, 134 F.3d 149, 155 (3d Cir. 1998) (“The Court in East River enunciated an unconditional bar of all tort recovery for economic loss arising out of a defective product.”). Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 4 of 8 PageID 82 5 For purposes of the economic loss rule, the “product itself” constitutes the entire vessel placed in the stream of commerce by the manufacturer and distributors, not the particular component parts which were incorporated in the vessel before its sale to the consumer. Saratoga Fishing, 520 U.S. at 883-84; Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925 (5th Cir. 1987) (holding that in the context of a tort claim for economic loss, the “product” means “the finished product bargained for by the buyer” rather than the individual components of the product); Federal Ins. Co. v. Lazzara Yachts of North America, Inc., 2010 WL 1223126, *3 n.3 (M.D. Fla. 2010) (“A party which manufactured or installed an individual component part receives no less protection from East River than the primary manufacturer.”). Component parts that are integrated and installed subsequent to the purchase also become the “product itself” for purposes of the economic loss rule. See Sea-Land Serv. v. GE, 134 F.3d 149, 155 (3d Cir. 1998) (holding that where the parties bargained for a vessel’s engine, every component of the engine, including subsequently installed parts, became integrated into the product and did not constitute other property; accordingly, tort law was not applicable as a basis to recover for economic loss, even when the loss was caused by the subsequently installed parts). IV. Plaintiff’s Tort Claims Against Florida Bow, Negligence and Strict Liability, Are Barred By The East River Economic Loss Rule Based on the allegations in the complaint, the instant matter calls for a straight forward application of the economic loss rule to bar the tort theories alleged against Florida Bow Thrusters in Count I and Count IV. Plaintiffs allege that the fire caused property damage to the vessel only. No allegations of damage to other property or personal injury are alleged. Plaintiffs also allege that the fire was caused by the bow and stern thrusters that were manufactured, Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 5 of 8 PageID 83 6 marketed, distributed and sold by Vetus, and installed on the vessel by Florida Bow Thrusters. 1 Having been installed and permanently affixed onto the vessel, the bow and stern thrusters became integrated into the “product itself” for purposes of the economic loss rule. As stated above, the economic loss rule prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to other property. Since the bow and stern thrusters allegedly caused economic loss only the product itself, consistent with the rationale underlying the economic loss rule, the Plaintiffs’ remedies, if any, should be limited to their warranty claims. See Great Am. Ins. Co. v. Miller Marine Yacht Servs., 2006 U.S. Dist. LEXIS 49989, *17 (N.D. Fla. 2006) ("the rationale underlying the economic loss rule is that parties should protect against the risk of economic loss during contract negotiations through warranty provisions and price adjustments rather than attempt to recover under tort law after the loss occurs.") (quoting Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60 F.3d 734, 739-40 (11th Cir. 1995)). Therefore, to the extent that Plaintiffs seek recovery against Florida Bow Thrusters for damages to the vessel under tort theories of negligence and strict products liability, these claims are barred by the economic loss rule and should be dismissed with prejudice. CONCLUSION For the reasons set forth above, Florida Bow Thrusters respectfully submits that Count I (Strict Products Liability) and Count IV (Negligence) alleged against Florida Bow Thrusters fail to state a claim upon which relief may be granted and therefore should be dismissed. 1 More specifically, Plaintiffs allege in Count I (Strict Products Liability) that the thrusters were placed into the stream of commerce in a defective condition, rendering them unreasonably dangerous [D.E. 1, ¶25], and that the defective nature of the thrusters were the proximate cause of the fire [D.E. 1, ¶31]. Plaintiffs allege in Count IV (Negligence) that Florida Bow Thrusters negligently installed the thrusters, among other things [D.E. 1, ¶43(a)-(m)], and that these acts or omissions caused the fire [D.E. 1, ¶44]. Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 6 of 8 PageID 84 7 WHEREFORE, Defendant Florida Bow Thrusters respectfully submits that Plaintiffs’ negligence and strict liability claims should be dismissed with prejudice because they are barred by the economic loss rule. Dated: August 9, 2016 Miami, Florida Respectfully submitted, McALPIN CONROY, PA BY: /s/ Tyler J. Tanner Richard J. McAlpin, Esq. RMcAlpin@McAlpinConroy.com Tyler J. Tanner, Esq. TTanner@McAlpinConroy.com 80 SW 8th Street, Suite 2805 Miami, FL 33130 Phone: 305-810-5400 Fax: 305-810-5401 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 9, 2016, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing. BY: /s/ Tyler J. Tanner Tyler J. Tanner, Esq. Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 7 of 8 PageID 85 8 SERVICE LIST CASE NO.: 6:16-cv-01100-CEM-TBS Erick J. Kirker ekirker@cozen.com Cozen O'Connor 1650 Market Street Floor 28 Philadelphia, PA 19103 Phone: (215) 665-2172 Attorney for Plaintiff Joseph Frank Rich jrich@cozen.com Cozen O'Connor Southeast Financial Center 200 S Biscayne Blvd Ste 4410 Miami, FL 33131 Phone: (265) 665-7285 Attorney for Plaintiff Laurence Leavitt LLeavitt@MLLlaw.com McCoy Leavitt Laskey S.C. Suite 3 P.O. Box 1280 50 Forest Falls Road Yarmouth, ME 04096 Phone: (207) 847-0015 Attorney for Vetus Maxwell, Inc. Richard J. McAlpin, Esq. RMcAlpin@McAlpinConroy.com Tyler J. Tanner, Esq. TTanner@ McAlpinConroy.com McAlpin Conroy, P.A. 80 SW 8th Street, Suite 2805 Miami, FL 33130 Phone: 305-810-5400 Fax: 305-810-5401 Attorneys for Florida Bow Thrusters Carlos Antonio Garcia cagarcia@wickersmith.com Steven Y. Leinicke syleinicke@wickersmith.com Wicker, Smith, O'Hara, McCoy & Ford, PA 515 E Las Olas Blvd - Ste 1400 P.O. Box 14460 Ft Lauderdale, FL 33301 Phone: (954) 467-6405 Fax: (954) 760-9353 Attorneys for Vetus Maxwell, Inc. Case 6:16-cv-01100-CEM-TBS Document 26 Filed 08/09/16 Page 8 of 8 PageID 86