In re Brizo, LLC

• Decision Date: 30 January 2020
• Docket Number: CASE NO. 18-CV-80855-ROSENBERG/REINHART
• Citation: 437 F.Supp.3d 1212
• Parties: In the MATTER OF: the Complaint of BRIZO, LLC, as Owner of the M/V Honey, 2007 163 Foot Twin Engine Yacht (on 739735), in a Cause of Exoneration From or Limitation of Liability, Petitioner.
• Court: U.S. District Court — Southern District of Florida

437 F.Supp.3d 1212

In the MATTER OF: the Complaint of BRIZO, LLC, as Owner of the M/V Honey, 2007 163 Foot Twin Engine Yacht (on 739735), in a Cause of Exoneration From or Limitation of Liability, Petitioner.

CASE NO. 18-CV-80855-ROSENBERG/REINHART

United States District Court, S.D. Florida.

Signed January 30, 2020

Filed January 31, 2020

Gregory William Coleman, Critton Luttier & Coleman, LLP, John Alexander Caracuzzo, Keller & Keroff, West Palm Beach, FL, Jules Victor Massee, Robert B. Birthisel, Whittni Marie Hodges, Hamilton Miller & Birthisel LLP, Tampa, FL, for Petitioner.

OMNIBUS ORDER GRANTING ALL PENDING MOTIONS FOR SUMMARY JUDGMENT

ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on three Motions for Summary Judgment. DE 128, 140, and 144. The Motions are fully briefed. For the reasons set forth below, each of the Motions is granted. This case concerns a tragic accident involving a scuba diver and an underwater propeller. Although the law requires the Court to enter summary judgment adversely to the decedent scuba diver, the Court conveys its sincere condolences to the family of the decedent.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States , 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505 ). A fact is material if "it would affect the outcome of the suit under the governing law." Id. (citing Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505 ).

In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams , 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta , 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.

II. FACTS¹

The Petitioner in this admiralty limitation of liability case, Brizo, is the owner of a 164-foot yacht. Brizo contracted with a commercial diver company ("Eastern") to clean its hull. In June of 2017, Eastern sent an e-mail to crew on the yacht stating that the hull cleaning would occur sometime around June 26th. The June 26th date was referred to, by Eastern, as "a rough approximation." An exact date and time were never coordinated or communicated to Brizo. Eastern selected a Claimant in this case, Luis Gorgonio-Ixba ("Ixba"),² to be the diver to clean the yacht. On June 27th, Ixba arrived to clean the yacht. At the time of Ixba's arrival, all crew members were inside the yacht. Ixba approached the yacht without identifying himself or notifying the crew members on the yacht. Ixba similarly entered the water without notifying anyone of his presence. Ixba did not use a diver flag to mark his presence in the water. Not too long thereafter, a crew member began the process of activating a thruster on the yacht. Before activating the thruster, the crew member looked into the water—he saw no bubbles. The crew member activated the thruster, and the thruster killed Mr. Ixba. Prior to this incident, the customary protocol between Eastern and Brizo was that Eastern's divers would notify crewmembers of their presence before commencing work.³

Brizo initiated this action to limit its liability in connection with the accident. Ixba appeared as a potential claimant, having previously filed a negligence lawsuit against Brizo in state court. Brizo filed a third-party complaint against several Defendants including Old Port Cove Association (the marina gatehouse) and Old Port Cove Holdings (the marina), seeking indemnity and contribution. Brizo, the Old Port Cove Association, and Old Port Cove Holdings have each filed Motions for Summary Judgment seeking summary adjudication on their respective liability in connection with the accident.

III. LEGAL ANALYSIS AND DISCUSSION

The Court first addresses (A) Brizo's Motion for Summary Judgment. The Court then addresses (B) a discovery-based argument raised by Ixba that is common to each of the Motions for Summary Judgment before turning to (C) Old Port Cove Association's Motion for Summary Judgment and (D) Old Port Cove Holdings' Motion for Summary Judgment.

A. Brizo's Motion for Summary Judgment

Brizo argues that it cannot be held liable for Ixba's death for several reasons, however, the bulk of Brizo's argument focuses on two points. First, Brizo argues that the evidence in this case establishes that Brizo cannot be held liable as a matter of law. Second, Brizo argues that it owed no legal duty to Ixba. Each argument is considered in turn.

The Sufficiency of the Evidence

The Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq. , provides the exclusive remedy in negligence for longshoremen and harbor workers against a vessel. 33 U.S.C. § 905(b). For the Act to apply, a plaintiff must qualify as a "covered worker" engaged in maritime employment as defined in the LHWCA. See Brockington v. Certified Elec., Inc. , 903 F.2d 1523, 1527-28 (11th Cir. 1990). Typical activities covered under the LHWCA include ship repair and maintenance, 33 U.S.C. §§ 902(3) - 905(b), but it is "beyond question" that a hull-scrubbing scuba diver falls within the ambit of the LHWCA. Roach v. M/V Aqua Grace , 857 F.2d 1575, 1579 (11th Cir. 1988) ("It is beyond question that [the scuba-diver party] was an employee ... within the meaning of the LHWCA."); Casaceli v. Martech Int'l, Inc. , 774 F.2d 1322, 1326 (5th Cir. 1985). For these reasons, Ixba's claim for negligence against Brizo is governed exclusively by federal maritime law.

Deeply ensconced in federal maritime law is the Rule of the Pennsylvania (the "Rule"). 86 U.S. 19 Wall. 125, 136, 22 L.Ed. 148 (1873). Under the Rule, a party who fails to observe a safety regulation has the burden of showing "not merely that [its] fault might not have been one of the causes [of the loss], or that it probably was not, but that it could not have been. " Id. (emphasis added). Although the Rule originally applied only to collisions between vessels, the Rule was subsequently expanded. See U.S. v. Nassau Marine Corp. , 778 F.2d 1111, 1116 (5th Cir. 1985). The Rule applies to a variety of maritime accidents and to parties other than vessels. Id. ; Pennzoil Producing Co. v. Offshore Exp., Inc. , 943 F.2d 1465, 1472 (5th Cir. 1991) ; Pettis v. Bosarge Diving, Inc. , 751 F. Supp. 2d 1222, 1239-40 (S.D. Ala. 2010) ; Lanza v. Schriefer , No. 09-CV-20834, 2010 WL 2754327, at *4 (S.D. Fla. July 12, 2010). The Rule re-allocates the burden of proof—it places a heavy burden on the party who has violated a statute or regulation intended to protect against the type of injury that occurred. E.g. , MacDonald v. Kahikolu, Ltd. , 581 F.3d 970, 975 n.7 (9th Cir. 2009). The Supreme Court created the Rule because maritime safety statutes and regulations must be strictly obeyed. See Pennsylvania , 86 U.S. at 135-36. In summary, when a party has violated a safety statute or safety regulation, that party must show by clear and convincing evidence that the violation "could not have been a proximate cause of the accident." Cliffs-Neddrill v. M/T Rich Duke , 947 F.2d 83, 86 (3d Cir. 1991).

Here, there is no dispute of fact that Ixba violated two important safety provisions. First, pursuant to Florida Statute section 327.331, "[a]ll divers must prominently display a divers-down flag in the area in which diving occurs." Second, under 29 C.F.R. § 1910.421 (which governs commercial diving operations), "When diving from surfaces other than vessels ... a rigid replica of the internal code flag "A" ... shall be displayed at the dive location which allows all-around visibility."

Ixba cites to no evidence and makes no legal argument that his failure to use a dive flag could not have been a proximate cause of the accident. Instead of proffering evidence, Ixba attempts to refute the application of the Rule by arguing that he is exempt from the LHWCA. Ixba argues that the LHWCA does not apply to workers servicing recreational vessels and thus he does not fall within the ambit of the Act. See 20 C.F.R. § 701.302(c)(6). While an exemption for recreational vessels does exist, Ixba omits any discussion of a key part of the exemption. The exemption only applies when the worker or accident at issue is covered by a state worker's compensation law. 33 U.S.C. § 902(3)(F). Ixba's argument also omits case law that confirms the limited scope of the exemption: "If the state law does not cover such workers for any reason , they would remain under the coverage of the Longshore Act." Peru v. Sharpshooter Spectrum , 493 F.3d 1058, 1067 (9th Cir. 2007). To support the contention that state worker's compensation applies to the accident in this case, Ixba cites to no evidence. In contrast, there is record evidence (cited by Brizo) that worker's compensation does not apply. DE 151-39, 151-38. In any event, Florida law expressly disavows insurance coverage for accidents under the LHWCA : "Benefits are not payable with respect to the disability or death of any employee covered by the ... LHWCA." Fla. Stat. § 440.09(2).

For all of the foregoing reasons, the Court concludes that pursuant to the Rule and Ixba's complete lack of evidence to counter the application of the Rule, Brizo is entitled to summary judgment. E.g. , United States v....