Barone v. Scandinavian World Cruises (Bahamas), Ltd., 87-2031

• Decision Date: 04 October 1988
• Docket Number: No. 87-2031,87-2031
• Citation: 531 So.2d 1036,13 Fla. L. Weekly 2282
• Parties: 13 Fla. L. Weekly 2282 Josephine BARONE, Appellant, v. SCANDINAVIAN WORLD CRUISES (BAHAMAS), LTD., a Bahamian corporation, and Trans-American Services, Ltd., a foreign corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1036

531 So.2d 1036

13 Fla. L. Weekly 2282

Josephine BARONE, Appellant, v. SCANDINAVIAN WORLD CRUISES (BAHAMAS), LTD., a Bahamian corporation, and Trans-American Services, Ltd., a foreign corporation, Appellees.

No. 87-2031.

District Court of Appeal of Florida Third District.

Oct. 4, 1988.

Barbara Green, Miami, Casuso & Trompeter, South Miami, for appellant.

Mitchell, Harris, Horr & Associates and David J. Horr, Miami and Jonathan W. Skipp, Coconut Grove, for appellees.

Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from a summary judgment entered for the defendants, Scandinavian World Cruises (Bahamas), Ltd., a Bahamanian corporation, which owns the M/V Scandinavia, and Trans-American Services, Ltd., a foreign corporation, which provides food and beverage to the vessel. The judgment was based upon a finding that the plaintiff, Josephine Barone, a passenger for hire on the vessel, failed to file her lawsuit against these defendants within one year of her injury aboard the vessel as required by the terms of the passage contract ticket. We reverse upon holdings that (1) the plaintiff effectively sued Scandinavian World Cruises (Bahamas), Ltd. [hereafter Bahamas] when it timely sued two misnamed defendants, to-wit: Scandinavian World Cruises, Inc. and Scandinavian World Cruises Ltd., Inc., and that this mere misnomer of the proper defendant was correctable by an amendment relating back to the time the action was commenced against the misnamed defendants; and (2) there is a genuine issue of material fact as to whether Trans-American, as it urges, was acting as an agent of Bahamas and was thus covered by the reduced limitation period set forth in the passage contract ticket or, as the appellant urges, was an independent contractor subject to the ordinary three-year limitation period for maritime torts. ¹

I.

The original complaint was filed on behalf of the plaintiff on July 24, 1984, one day less than a year after her injury, and named two defendants, Scandinavian World Cruises, Inc., and Scandinavian World Cruises Ltd., Inc. The complaint alleged that both defendants owned and operated the M/V Scandinavia and were engaged in the business of common carriage of passengers for hire and that the plaintiff was a passenger on the vessel. In three counts, the complaint alleged that the plaintiff was injured as a result of defendants' negligence, breach of their contract to transport the plaintiff in a safe manner, and negligence under the general maritime law of the United States.

Service of the complaint, together with interrogatories and a notice to produce, was accepted for both named defendants by "Ms. Diane Okis [Dana Okins], Ins. Department." The returns show that Scandinavian World Cruises, Ltd., Inc. was served on October 9, 1984, and Scandinavian World Cruises, Inc. was served on October 11, 1984. On the return of service for Scandinavian World Cruises, Inc. appears the notation, "auth to accept."

The named defendants moved to dismiss. At the time of the filing of this motion, the movants knew that Scandinavian World Cruises, Inc. did not own the M/V Scandinavia and that Scandinavian World Cruises Ltd., Inc. did not even exist. Nonetheless, their motion began with the words "[c]ome now the Defendants, SCANDINAVIAN WORLD CRUISES, INC., a Florida corp., and SCANDINAVIAN WORLD CRUISES, LTD., INC., a Foreign corp." As grounds, the motion asserted, in boilerplate language, insufficiency of service of process, insufficiency of process, and lack of jurisdiction over the person; failure to state a cause of action; insufficient allegations of venue; insufficient allegations of the contract and failure to attach a copy; and vagueness and ambiguity. Consistent with their disingenuous identification of themselves in their motion to dismiss, the defendants served with the motion a notice to produce that identified them as "the defendants, SCANDINAVIAN WORLD CRUISES etc." Nothing in the motion or notice suggested to the plaintiff that the defendants contended that plaintiff was suing the wrong entities or had misnamed them, or that one of the named entities did not exist.

The plaintiff attempted to serve the defendants anew. With no information in the defendants' motion to dismiss to alert her, plaintiff again addressed the summons to Scandinavian World Cruises, Inc. On June 18, 1985, Dana Okins accepted service of this summons as "Administrative Assistant Marine Operations Authorized to Accept." On August 13, 1985, an alias summons was served on Scandinavian World Cruises, Inc. and accepted by "Julie Klick corporate secretary authorize[d] to accept service for Mr. Niels Eric Lund."

In response to the new attempts at service, the defendants filed a renewed motion to dismiss. Like their first motion, it began with the words, "[c]ome now the Defendants, SCANDINAVIAN WORLD CRUISES, INC., a Florida corporation and SCANDINAVIAN WORLD CRUISES, LTD., INC., a foreign corporation." Again, using similar boilerplate language, the motion raised insufficiency of process, service, and personal jurisdiction; failure to state a cause of action, and vagueness. And again, nothing in the motion hinted that the defendants would subsequently contend that plaintiff was suing the wrong corporations and that one of the named defendants did not even exist.

The defendants' responses to the interrogatories served with the initial complaint were much the same. The interrogatories asked for, among other things, the name of the owner and charterer of the ship. The defendants, first identifying themselves as "SCANDINAVIAN WORLD CRUISES, etc., et al.," answered that the owner was United Steamship Co. (Bahamas) Limited, and the charterer was Scandinavian World Cruises (Bahamas), Ltd.; they did nothing to clarify the relationship between those entities and "Scandinavian World Cruises, etc., et al.," the answerer of the interrogatories, or Scandinavian World Cruises Ltd., Inc., the filer of the motion to dismiss.

Having learned through discovery that the correct name of the corporate entity that owned and operated the M/V Scandinavia on the date of her injury was Scandinavian World Cruises (Bahamas), Ltd., the plaintiff moved to amend her complaint by interlineation, that is, to substitute Scandinavian World Cruises (Bahamas) Ltd. where the names of the named defendants appeared, requesting that the amendment relate back to the date the complaint was filed. The motion pointed out that Dana Okins, an agent of Scandinavian World Cruises (Bahamas), Ltd., did in fact accept service of the complaint and that Scandinavian World Cruises (Bahamas), Ltd. had notice of the claim at the time it was served on Okins and would not be prejudiced by the amendment. The plaintiff also noted that Okins had testified on deposition that Scandinavian World Cruises Ltd., Inc. does not exist; that Scandinavian World Cruises, Inc. existed only as an inactive corporation with a board of directors; that the correct name of the corporate entity that owned and operated the M/V Scandinavia at the time plaintiff was injured was Scandinavian World Cruises (Bahamas), Ltd.; and, most significantly, that the complaint had been served on Okins, who was an agent of Scandinavian World Cruises (Bahamas), Ltd. ²

In January 1986, the trial court denied the motion to amend by interlineation ³ and entered summary judgment for Scandinavian World Cruises, Inc. and Scandinavian World Cruises, Ltd., Inc., the nonexistent entity.

Two weeks later--about a year and a half after the expiration of the ticket's one-year limitation, but well within the three-year federal statutory limitation--the plaintiff moved for leave to file an amended complaint. In addition to alleging that she had learned through discovery that the correct name of the corporate entity operating the vessel was Scandinavian World Cruises (Bahamas), Ltd., the plaintiff alleged that she had also learned that the dining area where the accident occurred was operated by a subcontractor, Trans-American Services, Ltd. With leave of court, the amended complaint, now naming as defendants Scandinavian World Cruises (Bahamas), Ltd. and Trans-American Services, Ltd., was filed on March 7, 1986.

The "...