Cortes Molina v. Tl Dallas (Special Risks) Ltd., Civil No. 06-1359 (DRD).

• Decision Date: 31 March 2008
• Docket Number: Civil No. 06-1359 (DRD).
• Citation: 547 F.Supp.2d 102
• Parties: Carlos CORTES MOLINA, et als., Plaintiffs v. TL DALLAS (SPECIAL RISKS) LTD.; Hamburger Versicherungs, Defendants.
• Court: U.S. District Court — District of Puerto Rico

547 F.Supp.2d 102

Carlos CORTES MOLINA, et als., Plaintiffs v. TL DALLAS (SPECIAL RISKS) LTD.; Hamburger Versicherungs, Defendants.

Civil No. 06-1359 (DRD).

United States District Court, D. Puerto Rico.

March 31, 2008.

Robert Marquez-Sanchez, Roberto Marquez Law Office, San Juan, PR, for Plaintiffs.

Manolo T. Rodriguez-Bird, jimenez, Graffam & Lausell, San Juan, PR, for Defendants.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court is Defendants', TL Dallas (Special Risks) Ltd., and Hambruger Versicherungs AG, Motion for Summary Judgment (Docket Nos. 20, 21, 22). There being no opposition from Plaintiffs, the Court will treat Defendant's Statement of Uncontested Material Facts (Docket No.22), as admited and use them as basis for the disposition of the motion for summary judgment. See Mercado-Alicea v. Puerto Rico Tourism Co., 396 F.3d 46 (1st Cir.2005); see also Torres Rosado v. Rotger Sabat, 204 F.Supp.2d 252 (D.P.R. 2002).

Pursuant to Local Rule 56(e), of United States District Court for the District of Puerto Rico,

[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page of paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.

(Emphasis ours).

In Morales v. A.C. Orssleffs EFTF, 246 F.3d 32, 33 (1st Cir.2001), the First Circuit Court stated "that `failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies deeming the facts presented in the movant's statement of undisputed facts admitted.'" (Quoting Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000)). "This `anti-ferret' rule aims to make the parties organize the evidence rather than leaving the burden upon the district judge." See Alsina-Ortiz v. Zoe Laboy, 400 F.3d 77. 80 (1st Cir.2005).

We encouraged district courts to adopt "anti-ferreting" rules, which warn parties opposing summary judgment that, to preclude judgment as a matter of law they must identify factual issues buttressed by record citations. "[0]nce so warned," we added, "a party's failure to comply would, where appropriate, be grounds for judgment against that party."

See AC. Orssleffs EFTF, 246 F.3d at 33 quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir.1983)).

For the reasons stated below, Defendants', TL Dallas (Special Risks) Ltd., and Hamburger Versicherungs AG, Motion for Summary Judgment (Docket Nos. 20, 21, 22), is hereby GRANTED.

I. UNCONTESTED FACTS

Since Plaintiffs failed to properly oppose Defendant's statement of uncontested facts in support of its motion for summary judgment, the Court hereby accepts, as admitted, and incorporates in toto to the instant Opinion and Order, the following facts as presented by the Defendants (See Docket No. 22):

1. Co-defendant TL Dallas (Special Risks) Ltd. (hereinafter "TL Dallas") is a business entity organized and existing by virtue of the laws of England, where it also has its principal office and principal place of business. See Exhibit 1 of this Statement, Verified Statement from Mr. Alexander Mark Thomas Director of TL Dallas, at parag. 3. See also plaintiffs' Amended Complaint, Docket No. 5, at parag. 3, and defendants' Answer, Docket No. 6 at parag. 3.

2. Co-defendant Hamburger Versicherungs is a marine insurer (underwriter) with principal office and principal place of business in Germany. See Amended Complaint, Docket No. 5, at parag. 4, and Defendants' Answer, Docket No. 6, at parag. 4.

3. TL Dallas is not an insurance company. TL Dallas is engaged in business as a marine underwriting agency, and claims manager, for several marine insurers throughout the world, including the co-defendant in the instant action, Hamburger Versicherungs AG (hereinafter "Hamburger"). See Exhibit 1 at parag. 4.

4. TL Dallas has never been an insurer and is not authorized to conduct business as an insurer anywhere in the world. This is a matter of public record with the records maintained by the government in England for the benefit of the public at the Registrar of Companies and the Financial Services Agency. Exhibit 1, at parag. 4; See also Letterhead of Cover Note issued by TL Dallas (included as part of Exhibit B of the Verified Statement of Mr. Thomas) which describes it as "Insurance Brokers, Marine Underwriting Agents, Credit Insurance Specialists, Independent Financial Advisors".

5. Neither the underwriter, Hamburger, or its underwriting claims agent, TL Dallas, have any agents in Puerto Rico. Exhibit 1, at parag. 5.

6. TL Dallas has bound and delivered marine insuring agreements to residents of Puerto Rico but only through inquiries or applications for insurance received through the insurance agents or brokers of these residents of Puerto Rico. Exhibit 1, at parag. 6.

7. Neither of the brokers or insurance agents mentioned by the plaintiff in the Complaint filed in this action, Joe Carn Jr., and/or Joseph Carn and/or Prime Life Partners a/k/a Prime Quality Marine P & C (hereinafter "Carn") or Benjamin Hernandez Alvarado a/k/a Benjamin Hernandez Insurance Broker (hereinafter "Benjamin Hernandez") are agents, representatives, or employees of Hamburger or TL Dallas. See Exhibit 1, at parag. 7; see also Exhibit 2, pages 14-15 of co-plaintiff Carlos Cortes Molina's deposition, where he indicates that Benjamin Hernandez was his insurance broker.

8. Carn and/or Benjamin Hernandez are insurance agents or brokers in Puerto Rico, who acted on Cortes Molina's behalf to obtain insurance for his boat, the M/V BRAMELA, a 44 foot Wellcraft built in 1999. See Exhibit 1, at parag. 8; plaintiffs' Amended Complaint, Docket No. 5, at parag. 5, and defendants' Answer, Docket No. 6, at parag. 5. See also Exhibits 3, copy of page 1 (only) of the Complaint filed by the plaintiffs against Benjamin Hernandez in the Puerto Rico Superior Court, San Juan Section, under Civil No. KAC-06-2079; Exhibit 4, copy of Benjamin Hernandez' Answer to plaintiffs' Complaint against him in the local Superior Court, Affirmative Defense No. 3, where he identifies himself as Insurance Agent, and Exhibit 5, copy of page 1 (parag. 4), and page 8 of Cam's Second Answer to plaintiffs' Complaint against him in the local Superior Court, Affirmative Defense No. 21 and 23, where he identifies himself as an excess or surplus line broker.

9. Benjamin Hernandez did not have any direct communications with TL Dallas in connection with the application or the issuance of the policy of insurance for the M/V BRAMELA during the time period relevant to this case. See Exhibit 1 at parag. 9.

10. Carn was the broker that communicated directly with TL Dallas on behalf of Carlos Cortes Molina to obtain insurance for the M/V BRAMELA. Carn has also sought quotes for marine insurance and obtained marine insurance through TL Dallas for other residents of Puerto Rico. See Exhibit 1 at parag. 10.

11. TL Dallas took Cam's insurance application or inquiry regarding the M/V BRAMELA, and quoted for coverage, and eventually bound cover in relation to the subject vessel, solely for Carlos Cortes through Policy No. 200/533/31901 for the period April 11, 2001-April 11, 2002. See Exhibit 1 at parag. 11 (and the Exhibits to the Verified Statement referred to in same) See also Exhibit 6, copy of Application Form in name of Carlos Cortes sent by Carn to TL Dallas, with hand written notation, in copy of Policy Endorsement.

12. TL Dallas was never asked to obtain or quote for insurance cover for coplaintiff. Elsa I. Ortiz Collazo, and her name was not included in Cortes Molina's application form. Ortiz Collazo is not, nor ever has been, a party to the policy of insurance issued by Hamburger. See Exhibit 1, at parag. 11 (and the Exhibits to the Verified Statement referred to in same).

13. TL Dallas was not the insurance company that issued the policy of insurance that was in effect during the time period relevant to this case in relation to the M.V BRAMELA (insurance policy no. 200/533/31901). TL Dallas was the marine underwriting agency that represented Hamburger and was authorized to issue the subject policy upon behalf of Hamburger. See Exhibit 1, at parag. 4, 11 and 12.

14. At all relevant times TL Dallas disclosed the identity of its principal Hamburger. The subject policy, itself, was signed by TL Dallas, "[f]or and on behalf of participating underwriters". In addition, the subject policy specifically refers to "[s]ecurity as approved and agreed by you: 100% Hamburger Versicherungs AG See Exhibit 1, at parag. 12. See also copy of the Cover Note (at the second page) included as the Exhibit B of the Verified Statement of Mr. Thomas.

15. TL Dallas does not vest, or delegate Carn. or any other insurance brokers in Puerto Rico, with the authority to bind the marine insurance companies it represents, or with the authority to process, adjust, or otherwise, settle or pay insurance claims. Such authority remains with TL Dallas as claims agent and manager for the marine insurers it represents. See Exhibit 1, at parag. 13.

16. On July 29, 2001 the M/V BRAMELA was involved in an allision incident with an anchored boat in Dakiti Bay in Culebra, Puerto Rico, the S/V QUICK STEP, owned by Jo Ellen Blanchard. See Amended Complaint, Docket No. 5, at parag. 7; Exhibit 2, pages 23-24 of Cortes Molina's deposition; and Exhibit 1, at parag. 14.

17. Specifically, the weather conditions deteriorated and there were strong gusts of winds in Dakiti Bay....