Beiswenger Enterprises Corp. v. Carletta

Decision Date13 November 1991
Docket NumberNo. 91-149-CIV-T-17.,91-149-CIV-T-17.
Citation779 F. Supp. 160
PartiesMatter of Petition of BEISWENGER ENTERPRISES CORP., Plaintiff, v. Kathleen CARLETTA, et al., Defendants.
CourtU.S. District Court — Middle District of Florida

Christopher Rogers Fertig, Fertig & Gramling, Fort Lauderdale, Fla., James E. Ross, James E. Ross & Associates, Houston, Tex., for plaintiff.

Gary D. Fox, Stewart, Tilghman, Fox & Bianchi, P.A., Miami, Fla., Robert Henry Dillinger, St. Petersburg, Fla., for defendants.

ORDER

KOVACHEVICH, District Judge.

This cause is before the court on the following:

I. STANDARD OF REVIEW

Motions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered "time wasters", and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla. 1978), citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962). In evaluating a motion to strike, the court must treat all well pleaded facts as admitted, and cannot consider matters beyond the pleadings. U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957, 959 (E.D.Wis.1981).

II. FACTS

Allegedly, on December 4, 1990, George Myers ("Myers") and Kathleen Carletta ("Carletta") were paying passengers and parasail riders on the M/V Skyrider Express, a vessel owned and operated by Beiswenger Enterprises Corp. ("Beiswenger"), a Florida corporation. Dkt. 1 at 3. While Myers and Carletta were aloft, the tow line to the parasail gondola was severed to allow the gondola and passengers to settle into the water. Dkt. 1 at 2. Before the vessel retrieved Myers and Carletta from the water, the tow line wrapped around one of Myers' ankles. Subsequently, the canopy filled with a gust of wind and arose from the water, lifting Myers from the water and eventually dragging him over and through objects on land. Myers sustained bodily injuries from which he died on December 18, 1990.

Petitioner, Beiswenger, subsequently filed a Complaint, seeking to contest liability or, if adjudged liable, to limit liability to $40,090, the value of the vessel and its freight on the aforementioned voyage, as provided by 46 U.S.C.App., sections 183-85, 188. Dkt. 1 at 4.

Carletta claims to have sustained injuries resulting from the above incident. Pursuant to Supplemental Rule F(5), Federal Rules of Civil Procedure, Claimant, Carletta, asserted personal physical and emotional injuries against Beiswenger. Dkt. 10. The claim also alleged that at the time of the incident, the Petitioner had an insurance policy in full force and effect. The insurance policy was attached as Exhibit "A". Dkt. 10 at paragraph 9.

Pursuant to Supplemental Rule F(5), Federal Rules of Civil Procedure, Claimants, Estate of George Myers; Pauline Walls, as next friend and mother of Shante Myers; and Yolanda Williams, as next friend and mother of Julian Myers, asserted a claim against the Petitioner. Dkt. 12. The claim alleges that the decedent, George Myers, was a resident of New York, and asserted that the laws of the State of New York should apply. Dkt. 12 at paragraph 9. In addition, Claimants made the same allegation of insurance as in Carletta's claim, Dkt. 10, paragraph 9. Dkt. 12 at paragraph 10.

Pursuant to Rule 12(f), Federal Rules of Civil Procedure, Petitioner filed a Motion to Strike the allegations of insurance from both of the above claims. Dkt. 17. Petitioner also filed a Motion to Strike paragraph 9 of the Claim of the Estate of George Myers, alleging that the laws of the State of New York apply. Dkt. 16.

III. ISSUES

1. WHETHER ALLEGATIONS OF INSURANCE ARE IMMATERIAL.

The insurance company is not a party to the action. Claimants must recover on the basis of liability, not upon the extent of insurance coverage. The attachment of the insurance policy as exhibit and its incorporation as part of the allegation is not essential to the claims against Petitioner.

The Court should not determine questions of insurance coverage and liability for indemnification, when the contingencies giving rise to them may never occur. The Fifth Circuit has stated that "it is not the function of a United States District Court to sit in judgment on these nice and intriguing questions which today may readily be imagined, but may never come to pass." American F. & C. Co. v. Pennsylvania T. & F. Mut. Cas. Ins. Co., 280 F.2d 453 (5th Cir.1960). To do so would amount to an advisory opinion, which this Court cannot give. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1910).

There is also merit to Petitioner's contention that reference to insurance may be prejudicial. Therefore, Petitioner's Motion to Strike allegations of insurance will be granted.

2. WHETHER THE ALLEGATION THAT NEW YORK LAW SHOULD APPLY ON THE BASIS OF THE DECEASED'S RESIDENCY IS CONTRARY TO ESTABLISHED LAW.

In 28 U.S.C. Section 1333(1), Congress granted federal district courts with original and exclusive jurisdiction over "any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." As a general proposition, all torts occurring on vessels on the high seas, or upon inland or territorial navigable waters are considered within admiralty subject matter jurisdiction. The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1865). However, as noted by the Eleventh Circuit in Harville v. Johns-Manville Products Corp., 731 F.2d 775, 780 (11th Cir.1984), "Because exercise of admiralty jurisdiction and invocation of substantive maritime law may tend to pre-empt state regulation of matters traditionally within the ambit of local control, the courts have preferred to read congressional grants of admiralty jurisdiction restrictively."

Prior to 1972, many federal courts employed a strict "location-only" test to determine whether a tort claim was subject to maritime jurisdiction. Harville v. Johns-Manville Products Corp., 731 F.2d at 780, citing Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 158, 66 L.Ed. 321 (1922); Weinstein v. Eastern Airlines, 316 F.2d 758, 765 (3d Cir.1963). However, in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court rejected the "location-only" test. The Court stated that in addition to the traditional location requirement, the wrong must bear a "significant relationship to traditional maritime activity." 409 U.S. at 268, 93 S.Ct. at 504. Although the Court limited its holding to aviation claims, its rationale has been applied to other tort cases. See, e.g., Kelly v. Smith, 485 F.2d 520 (5th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).

As noted by the Eleventh Circuit Court, the nexus test did not replace the location test, but merely supplemented it. Harville v. Johns-Manville Products Corp., 731 F.2d at 781-82, citing Boudloche v. Conoco Oil Corp., 615 F.2d 687 (5th Cir.1980) (claim of plaintiff standing on shore when struck by a boat being removed from the water not within admiralty jurisdiction because situs requirement not met). Thus, the tort still must occur at a maritime situs.

Under the locality test, the tort occurs "where the alleged negligence took effect," rather than where the negligent act was done. Harville v. Johns-Manville Products Corp., 731 F.2d at 782, citing Executive Jet, 409 U.S. at 266, 93 S.Ct. at 504; The Plymouth, 70 U.S. (3 Wall.) at 34-35; In re Dearborn Marine Service, Inc., 499 F.2d 263, 274 (5th Cir.1974), cert. dismissed, 423 U.S. 886, 96 S.Ct. 163, 46 L.Ed.2d 118 (1975).

Regarding Carletta's Claim, both the allegedly negligent act and its alleged effect would have necessarily occurred in navigable waters. However, regarding Myers' Claim, although the alleged negligent act may have occurred in navigable waters, its alleged effect took place both in navigable waters and on shore. Such incidents are covered by the Admiralty Extension Act, 46 U.S.C.App., section 740, which extends admiralty jurisdiction to cover claims for on-shore injuries caused by a vessel on navigable waters. Thus, the requirements of the location test have been met.

Since the Supreme Court established the nexus requirement in Executive Jet Aviation, Inc. v. City of Cleveland, federal courts have struggled to find a meaningful test for determining what constitutes traditional maritime activity. The Fifth Circuit Court identified four factors as relevant in analyzing the nexus between a given claim and traditional maritime activity: "the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law." Kelly v. Smith, 485 F.2d at 525.

Applying this nexus test in Harville v. Johns-Manville Products Corp, 731 F.2d at 783-787, the Eleventh Circuit Court noted that five other Courts of Appeals have demonstrated little agreement about those factors that are critical to the "nexus" analysis. Id. at 783. Analyzing all four factors, the court added that "exclusive focus on any single aspect of the plaintiffs' claims produces a mechanistic analysis not entirely consistent with the thrust of Executive Jet." Id. at 784.

The function and role of Beiswenger was to provide a commercial recreational service to interested persons. In Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-75, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982), the Supreme Court rejected determination on the basis of commercial versus private activity. The Court explained that the tortious activity involved, whether commercial or private, must...

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