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

MOTION to dismiss for failure to state a claim -Motion to Dismiss Vetus Maxwell's Crossclaim

M.D. Fla.September 9, 2016

1 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 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 a/s/o DOUGLAS WHITCOMB, Plaintiffs, v. VETUS MAXWELL, INC. and FLORIDA BOW THRUSTERS, INC. Defendants. _________________________________/ DEFENDANT, FLORIDA BOW THRUSTERS, INC.’S, MOTION TO DISMISS VETUS MAXWELL’S CROSSCLAIM Defendant, FLORIDA BOW THRUSTERS, INC. (“Florida Bow Thrusters”), by and through undersigned counsel, and pursuant to the Federal Rules of Civil Procedure, hereby moves to dismiss Co-Defendant VETUS MAXWELL, INC.’s (“Vetus”) Crossclaim for common law indemnification and contribution [D.E. 32] 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 lawsuit against Florida Bow Thrusters and Vetus alleging that the fire was caused by bow and stern Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 1 of 8 PageID 126 2 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 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]. Vetus answered the complaint and asserted a two-count crossclaim against Florida Bow Thrusters for common law indemnification (Count I) and contribution (Count II) [D.E. 32]. For the reasons set forth below, Florida Bow Thrusters respectfully submits that both counts 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, the pleading 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 pleading'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, unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 2 of 8 PageID 127 3 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 dismissal). When the proponents “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 Applies The parties do not dispute that “[t]his is a case of maritime jurisdiction pursuant to 28 U.S.C. § 1333(1).” [D.E. 1, Complaint, ¶22; D.E. 32, Crossclaim, ¶3]. “With admiralty jurisdiction comes the application of substantive admiralty law.” East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986). Additionally, “the body of law establishing the indemnitee's primary liability governs his claim for indemnity or contribution against a third party.” See Marathon Pipe Line Co. v. Drilling Rig RO WAN/ODESSA, 761 F.2d 229, 235 (5th Cir.1985). Therefore, substantive admiralty law governs Vetus’ claims for indemnity and contribution. III. Vetus Has No Claim Under The General Maritime Law For Common Law Indemnity In The Absence Of A Special Relationship Giving Rise To Vicarious Liability Vetus alleges that it was not negligent and therefore is entitled to common law indemnity from Florida Bow Thrusters. More specifically, Vetus “denies that it was negligent,” or “otherwise at fault” [D.E. 32, ¶8], and further alleges that “if the injuries and damages alleged in Plaintiff’s Complaint were caused by the negligence or other fault of any defendant named therein, then they were caused by the negligence or other fault of Florida Bow Thrusters” [D.E. 32, ¶9]. Therefore, Vetus claims, “Vetus is entitled to indemnity from Florida Bow Thrusters with respect to any and all amounts found owing from Vetus to Plaintiff.” [D.E. 32, ¶10]. These allegations fail to state a cause of action for common law indemnity under maritime law. Under federal maritime law, a “vicariously liable or non-negligent tortfeasor” is entitled to common law indemnity “from a co-debtor guilty of actual fault.” Marathon Pipe Line Co. v. Drilling Rig ROWAN/ODESSA, 761 F.2d 229, 236 (5th Cir. 1985). However, “the term 'non- Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 3 of 8 PageID 128 4 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 negligent tortfeasor' [has been interpreted to apply] only to those defendants on which the law imposes responsibility even though they committed no negligent acts.” Sol v. City of Miami, 776 F.Supp.2d 1375, 1379 (S.D. Fla. 2011) (quoting Hardy v. Gulf Oil Corp., 949 F.2d 826, 829 (5th Cir. 1992)). Accordingly, “[i]n reality, the only circumstance in which the general maritime law allows a party to seek indemnification is when that party paid damages based on vicarious liability.” Sol, 776 F. Supp. 2d at 1379. Vetus does not allege that it would be vicariously liable for the negligence, if any, of Florida Bow Thrusters, and Vetus does not allege that the law would otherwise impose responsibility on Vetus for the negligence, if any, of Florida Bow Thrusters. Vetus only alleges that it was not negligent and therefore should be entitled to indemnification from Florida Bow Thrusters. Maritime law simply does not support this non-negligent indemnity theory alleged in Vetus’ crossclaim against Florida Bow Thrusters. In Hardy v. Gulf Oil Corporation, 949 F.2d 826 (5th Cir. 1992), the court gave a thorough overview of the development of indemnity theories under the general maritime law. It explained the following: General maritime law … no longer recognizes a plethora of tort indemnity theories. The availability of common law indemnity under maritime law is instead quite limited. In United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Supreme Court abandoned the archaic concept of tort indemnity and replaced it with the doctrine of comparative fault. Indemnity between liable maritime tortfeasors is now available only "where proportionate degrees of fault cannot be measured and determined on a rational basis." Id. at 405, 95 S.Ct. at 1713. * * * Only a handful of viable indemnity theories remain. This Court has determined, for instance, that a vicariously liable or non-negligent tortfeasor is entitled to indemnity "from a co-debtor guilty of actual fault". Marathon Pipe Line Co. v. Drilling Rig ROWAN/ODRESSA, 761 Fed. 229, 236 (5th Cir. 1985). See also Loose, 670 F.2d at 502 n. 18. In Marathon Pipe Line, this Court held that the user of a defective product which injured the plaintiff was entitled to recover indemnity from the manufacturer of the product. 761 F.2d at 236. BOS argues that Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 4 of 8 PageID 129 5 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 it was not negligent, and therefore is entitled to indemnity under Marathon Pipe Line. This argument construes that opinion too broadly. Certainly, the Marathon Pipe Line theory of indemnity applies equally to "non-negligent tortfeasors" as well as to vicariously liable tortfeasors. Id. at 236. However, the term "non- negligent tortfeasor," as used in Marathon Pipe Line, applies only to those defendants on which the law imposes responsibility even though they committed no negligent acts. Id. BOS is an ordinary defendant that owes the plaintiff damages only if the jury agrees that it was negligent. An ordinary defendant, such as BOS, is adequately protected under the comparative negligence system. If the jury determines that an ordinary defendant is not negligent, then the defendant does not owe the plaintiff damages and has no need to pursue an indemnity action against a third party defendant. If the jury determines that the defendant is negligent, and the defendant believes that the evidence does not support this determination, then the defendant can appeal the judgment in favor of the plaintiff. In either event, the general maritime law does not authorize an action for tort indemnity against a third-party defendant. Hardy, 949 F.2d at 833-34 (underlining added); Sol, 776 F. Supp. 2d at 1379 (“Under Hardy and Marathon Pipe Line, a ‘non-negligent tortfeasor’ equates with a party upon whom ‘the law imposes responsibility even though [that party] committed no negligent acts.’”). The 11th Circuit is in accord. See Self v. Great Lakes Dredge & Dock Company, 832 F.2d 1540 (11th Cir. 1987) (rejecting the active-passive negligence indemnification rule in favor of an assessment of the relative degrees of fault through a contribution remedy). As presently alleged, under no circumstances would Vetus be legally responsible for Florida Bow Thrusters’ negligence. Just like BOS in the Hardy case, and just like Fritzler in the Sol case, Vetus is an ordinary defendant adequately protected under the comparative negligence system. Vetus is not vicariously liable for the actions of Florida Bow Thrusters. Therefore, Vetus has no cause of action for common law indemnity against the Florida Bow Thrusters under the general maritime law and this claim should be dismissed with prejudice. Vetus would have its remedy, if properly pled and applicable, in contribution. Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 5 of 8 PageID 130 6 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 IV. Vetus Failed To State A Cause Of Action For Contribution In order to state a cause of action for contribution under the general maritime law, the tortfeasor seeking contribution must allege that it shares a "common legal liability" with the party from whom contribution is sought. Simeon v. T. Smith and Son, 852 F.2d 1421, 1434 (5th Cir. 1988) (“there can be no contribution between concurrent tortfeasors unless they share a ‘common legal liability’ toward the plaintiff.”). Vetus did not allege that it shares a common legal liability with Florida Bow Thrusters. Rather, Vetus “denies that it was negligent,” or “otherwise at fault” [D.E. 32, ¶12], and further alleges that “if the injuries and damages alleged in Plaintiff’s Complaint were caused by the negligence or other fault of any defendant named therein, then they were caused by the negligence or other fault of Florida Bow Thrusters” [D.E. 32, ¶13]. Ultimately, Vetus claims, if it is found liable, “then Vetus is entitled to contribution from Florida Bow Thrusters.” [D.E. 32, ¶13]. Florida Bow Thrusters respectfully submits that these allegations fail to state a cause of action for contribution under maritime law because Vetus failed to allege that it shares a "common legal liability" with Florida Bow Thrusters. Consequently, Vetus’ claim for contribution must be dismissed for failure to allege the necessary elements of contribution claim under the general maritime law. CONCLUSION For the reasons set forth above, Florida Bow Thrusters respectfully submits that Count I (Common Law Indemnification) and Count II (Contribution) of Vetus’ crossclaim fail to state a claim upon which relief may be granted and therefore should be dismissed. WHEREFORE, Defendant Florida Bow Thrusters respectfully submits that Plaintiffs’ indemnity and contribution claims should be dismissed with prejudice. Case 6:16-cv-01100-CEM-TBS Document 33 Filed 09/09/16 Page 6 of 8 PageID 131 7 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 Dated: September 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 September 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 33 Filed 09/09/16 Page 7 of 8 PageID 132 8 McALPIN CONROY, P. A. 80 SOUTHWEST 8 TH STREET, SUITE 2805, MIAMI, FLORIDA 33130 * TEL (305) 810-5400 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 33 Filed 09/09/16 Page 8 of 8 PageID 133