Paradise Divers, Inc. v. Upmal
| Decision Date | 09 March 2005 |
| Docket Number | No. 04-12037.,04-12037. |
| Citation | 402 F.3d 1087 |
| Parties | PARADISE DIVERS, INC., as Owner of the 30' Island hopper M/V PARADISE DIVER IV bearing hull identification number D929003, her engines, tackle, appurtenances, etc., Petitioner, in a cause for exoneration from or limitation of liability, Plaintiff-Appellant, v. Kevin R. UPMAL, Claimant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Richard Dennis Rusak, Keith S. Brais, McAlpin & Brais, P.A., Edward A. Moss, Humberto H. Ocariz, Stephen Jerome Darmody, Law Offices of Shook, Hardy & Bacon L.L.P., Miami, FL, for Plaintiff-Appellant.
Philip D. Parrish, Philip D. Parrish, P.A., Miami, FL, Michael William McLeod, Andrew Seiden, Seiden, Alder & Matthewman, P.A., Boca Raton, FL, for Claimant-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, PRYOR and HILL, Circuit Judges.
The sole issue in this admiralty appeal is whether correspondence from Kevin Upmal, a seaman, to Paradise Divers, owner of the M/V PARADISE DIVER IV, in March and May of 2002 was sufficient written notice of a claim, under 46 App. U.S.C. section 185, to begin the running of the six-month limitation period during which a vessel owner must file an action for limitation of liability. If that correspondence triggered the running of the limitation period, then the action for limitation of liability filed by Paradise Divers on March 31, 2003, was untimely. Because the letters from Upmal to Paradise Divers, which referenced claims under the Jones Act and for unseaworthiness and maintenance and cure worth tens of thousands of dollars, were sufficient to begin the running of the limitation period, we affirm the dismissal of this limitation of liability action.
On June 29, 2000, Upmal, first mate on the M/V PARADISE DIVER IV, was seriously injured while diving near Marathon Key, Florida, in the course of his employment, and was hospitalized. Paradise Divers refused payment of Upmal's medical bills in connection with his injury. In 2002, Upmal hired counsel Michael W. McLeod. Over the course of several months, McLeod corresponded with Michelle Niemeyer, counsel for Paradise Divers, concerning Upmal's injuries.
On March 18, 2002, McLeod sent a letter to Niemeyer that complained that Upmal was entitled to maintenance and cure from Paradise Divers and Upmal owed providers of medical services tens of thousands of dollars:
Please be advised that this office has been retained by Kevin Upmal relative to his on-the-job-injury occurring on or about June 6, 2000. As you know, Mr. Upmal, as a Jones Act seaman, is entitled to receive maintenance and cure from the date of this accident to the point of maximum medical improvement without regard to liability. Notwithstanding, Mr. Upmal has advised that, to date, nearly two years after his accident, he has yet to receive any benefits from Paradise Divers, Inc. whatsoever. To make matters worse, Mr. Upmal advises that he has incurred tens of thousands of dollars in medical bills and has been forced to completely forego medical care due to Paradise Divers' failure to pay maintenance and cure benefits under the General Maritime Law of the United States.
The letter also requested information about insurance, including excess coverage, from Paradise Divers.
On May 30, 2002, after he had reviewed the insurance documents that were supplied on behalf of Paradise Divers, McLeod sent another letter to Niemeyer, in which McLeod said Upmal intended to pursue claims for negligence, under the Jones Act, and both unseaworthiness and maintenance and cure under the general maritime laws:
[W]e have reviewed the CIGNA Insurance Company "Captain and Crew Limitation Endorsement". This endorsement, in our opinion, clearly provides coverage for Kevin Upmal's accident. More specifically, the endorsement provides cover for Paradise Divers' liability to a crew member under the Jones Act or the General Maritime Law. Accordingly, the policy should respond to the Jones Act negligence, unseaworthiness, and maintenance and cure claims of Kevin Upmal.
At this point, we anticipate that a Complaint along with a formal demand for maintenance and cure will be prepared within the next week or so.... We would specifically like to address Kevin Upmal's formal maintenance and cure demand to Paradise Divers as well as any insurer that may cover the claim. We would also like to place Paradise Divers' insurers on notice that failure to provide coverage and pre-judgment security for Kevin Upmal's claim could subject Paradise Divers to the arrest of the vessel on which Kevin Upmal was employed on the date of the loss, as well as any sister vessels under the common ownership and control of Paradise Divers, Inc. Consequently, the sooner that you can confirm that the CIGNA and the Captain's policy are the only applicable policies impacted by Kevin Upmal's claim and otherwise provide the declaration page to the Captain's policy, the sooner we will be able to move forward with this matter.
On the following day, Niemeyer responded to McLeod that Paradise Divers denied liability for Jones Act negligence but was seeking a defense from its insurers:
I note your comments regarding your belief that there is coverage for Jones Act liability, as well as your intention to file a Complaint within the next week or so. As you are aware, Paradise Divers will be seeking a defense from its carriers with regard to Mr. Upmal's claims. Please keep in mind, however, that although we are happy to provide your client with the insurance information which has been requested pursuant to statute, and although we agree that a defense should be provided, as well as indemnity if such is ultimately necessary, it is Paradise Divers' position that there was no negligence on the part of either Paradise Divers or Mr. Kartman which was the cause of Mr. Upmal's shallow water blackout and his resulting injuries.
On October 24, 2002, Upmal filed an action against Paradise Divers for Jones Act negligence, unseaworthiness, and maintenance and cure. On March 31, 2003, Paradise Divers filed a limitation of liability action under 46 App. U.S.C. section 185 in the United States District Court for the Southern District of Florida. Upmal moved the district court to dismiss the action as untimely.
The district court adopted the report and recommendation of the magistrate judge, to whom the case had been referred, and dismissed the limitation action as untimely. The district court found that McLeod's letter dated May 31, 2002, in conjunction with his letter dated March 18, 2002, provided sufficient notice to Paradise Divers of Upmal's claims for Jones Act negligence and unseaworthiness. Paradise Divers appealed.
"We review a dismissal pursuant to Rule 12(b)(6) de novo, applying the same standard as the district court did." Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.2002). In reviewing the complaint, we "must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff." Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir.1998) (citation and internal quotation marks omitted). We will not affirm the dismissal of a suit on the pleadings alone "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim." Id. (citation and internal quotation marks omitted).
More than a century and a half ago, Congress enacted the Limitation of Liability Act, 46 App. U.S.C. Sections 181-96, to encourage American ship-building:
Congress passed the Act in 1851 in an effort to provide American shipowners with benefits equal to those of their foreign competitors. The Act was primarily patterned after the English limitation act, 26 Geo. 3, ch. 86 (1786). Under the Act, a vessel owner, American or foreign, can restrict its liability, resulting from any occurrence for which the vessel is liable, to the value of the vessel and its pending freight.
Vatican Shrimp Co., Inc. v. Solis, 820 F.2d 674, 677 (5th Cir.1987). We have noted the modern criticisms of the Act, Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1228 (11th Cir.1990), and more than forty-five years ago, Judge Learned Hand wrote, "[I]t is at least doubtful whether the motives that originally lay behind the limitation are not now obsolete." In re United States Dredging Corporation, 264 F.2d 339, 341 (2d Cir.1959). This appeal involves an amendment of the Act that restricts the generous benefit long afforded vessel owners.
In 1936 Congress amended ...
To continue reading
Request your trial
-
Definitive Marine Surveys Inc. v. Tran
...to act promptly in asserting the right to limit his liability." Id. at 607 (quoted authority omitted); accord Paradise Divers, Inc. v. Upmal , 402 F.3d 1087, 1090 (11th Cir. 2005).IV. AnalysisNeither the Supreme Court nor the Eleventh Circuit (nor the former Fifth Circuit) has addressed whe......
-
Franza v. Royal Caribbean Cruises, Ltd.
...§ 30505(b) (2012) (capping certain maritime liability where shipowner lacks “privity or knowledge”); Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089–90 (11th Cir.2005) (per curiam) (explaining Congress's policy rationale for § 30505 limitation). As we have observed, however, no such leg......
-
Franza v. Royal Caribbean Cruises, Ltd.
...§ 30505(b) (2012) (capping certain maritime liability where shipowner lacks “privity or knowledge”); Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089–90 (11th Cir.2005) (per curiam) (explaining Congress's policy rationale for § 30505 limitation). As we have observed, however, no such leg......
-
Kind Operations, Inc. v. Cadence Bank, N.A. (In re Pa Co-Man, Inc.), Bankruptcy No. 20-20422-JAD
...is that the Court takes as true KIND's allegations as set forth in the Consolidated Amended Complaint. See Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005) (in ruling on a motion to dismiss, courts must accept the well pleaded facts as true and resolve them in the light ......
-
Resolved: Is 46 U.S.C. [section] 30501(a) a Jurisdictional Statute of Limitations or a Mandatory Claims Processing Rule?
...(72) Id. (73) See In re Eckstein, 672 F.3d 310 (5th Cir. 2012); see also Orion, 918 F.3d at 1331 (citing Paradise Divers Inc. v. Upmal, 402 F.3d 1087 (11th Cir. (74) Orion, 918 F.3d at 1331. (75) Id. at 1329. (citing Musacchio v. U.S., 136 S. Ct. 709, 716-717 (2016)); See also U.S. v. Kwai ......
-
Admiralty - Robert S. Glenn, Jr., Colin A. Mcrae, and Jessica L. Mcclellan
...Id. (emphasis added) (citing Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1133 (11th Cir. 1994)). 74. Id. at 1342-43. 75. 402 F.3d 1087 (11th Cir. 2005). 76. Id. at 1088; 46 U.S.C. App. Sec. 181(a) (2000). The Limitation of Liability Act (often referred to as the "Limitation Act") a......
-
Admiralty - Robert S. Glenn, Jr., Colin A. Mcrae, and Jessica L. Mcclellan
...at 1142. 72. Id. at 1142-43. 73. Id. (citing 46 U.S.C. app. Sec. 185). 74. Id. at 1143. 75. Id. (quoting Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1090 (11th Cir. 2005)). 76. Id. (quoting Paradise Divers, 402 F.3d at 1090). 77. Id. 78. Id. at 1143-44. 79. Id. 80. Id. at 1145. 81. 445 F......