Pucci v. Carnival Corp.

• Decision Date: 16 February 2016
• Docket Number: CASE NO. 15-22241-CIV-ALTONAGA/O'Sullivan
• Citation: Pucci v. Carnival Corp., 160 F.Supp.3d 1329 (S.D. Fla. 2016)
• Parties: Alfred Pucci, et al., Plaintiffs, v. Carnival Corporation, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

160 F.Supp.3d 1329

Alfred Pucci, et al., Plaintiffs,

v.Carnival Corporation, et al., Defendants.

CASE NO. 15-22241-CIV-ALTONAGA/O'Sullivan

United States District Court, S.D. Florida.

Signed February 16, 2016

Michael Evan Levine, Stephen F. Cain, Stewart Tilghman Fox Bianchi & Cain, PA, Miami, FL, for Plaintiffs.

Jeffrey Eric Foreman, Noah Daniel Silverman, Rachael Mitchell Fagenson, Foreman Friedman, PA, Miami, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendant, Cruise Ship Excursions, Inc.'s (“CSE['s]”)Motion to Strike and/or DismissPlaintiffs' Prayer for Relief (“Motion”)[ECF No. 50], filed on December 14, 2015.Plaintiffs, Alfred Pucci(“Alfred”) and Michael W. Pucci(“Michael”)(collectively, “Plaintiffs”) filed a Response...(“Response”)[ECF No. 52] on December 30, 2015; CSE filed a Reply...(“Reply”)[ECF No. 53] on January 11, 2016.The Court has carefully reviewed the parties' written submissions, the record, and applicable law.

I.BACKGROUND

On August 17, 2014, Judith Pucci(“Judith”) boarded a ship owned by Defendant, Carnival Corporation(“Carnival”) named The Valor , for a seven-night cruise from Puerto Rico to the Virgin Islands.(See Second Amended Complaint (“SAC”)[ECF No. 45]¶ 12).She was traveling with her son, Michael, his wife, and their three children.(Seeid. ).While aboard The Valor , on August 17 or 18, 2014, Judith inquired into participating in a snorkeling excursion promoted by Carnival and operated by CSE,¹ called the Champagne Catamaran Sail and Snorkel (“Champagne Excursion”).(Seeid.¶¶ 14–15, 21).

Carnival was informed Judith was not a good swimmer,² but Carnival employees, agents and/or personnel assured Judith the Champagne Excursion was safe and appropriate for her, despite her limited abilities and advanced age.(Seeid.¶ 21).On August 18, 2014, Judith boarded CSE's vessel, The Adventuress , to embark on the Champagne Excursion.(Seeid.¶¶ 7, 43).The Champagne Excursion involved sailing in the U.S. Virgin Islands from St. Thomas to St. John, and snorkeling off Honeymoon Beach, which has been the site of several snorkeler and swimmer drownings.(Seeid.¶¶ 19–20).Plaintiffs assert Defendants knew or should have known the snorkeling portion of the Champagne Excursion was not appropriate for all passengers and posed an increased risk of injury and death to inexperienced passengers.(Seeid.¶ 20).

Personnel aboard the Champagne Excursion encouraged and allowed Judith to enter the water without sufficient education, training, and instruction, despite her lack of snorkeling experience and limited swimming abilities.(Seeid.¶ 26).Plaintiffs claim Defendants failed to have sufficient personnel available or assigned to monitor the snorkeling participants, such as by looking out for, recognizing, and responding to dangers presented by the water conditions or the actions/inactions of snorkeling participants.(Seeid.¶ 30).Personnel further failed to implement a “buddy system” for snorkeling; thus, Judith snorkeled alone without proper training or monitoring, and became separated from the other snorkelers.(Seeid.¶¶ 29, 44).

Eventually, personnel “aboard the excursion” noticed Judith floating face down near a reef, in an area inappropriate for snorkeling.(Id.¶ 31).By the time Defendants' agents, servants, and/or employees responded to Judith's aid, she was unresponsive.(Seeid.¶ 32).Personnel pulled Judith from the water, took her ashore onto Honeymoon Beach, and attempted resuscitation, but Judith passed away.(Seeid.¶ 33).A subsequent autopsy determined drowning as the cause of death.(Seeid. ).

Following Judith's death, Alfred (Judith's husband) and Michael filed this lawsuit against Defendants.(See generallyCompl.[ECF No. 1] ).In the Second Amended Complaint, Plaintiffs bring two claims against CSE: (1) negligence, and (2) negligence for joint venture.(See generally SAC).Plaintiffs also seek damages under the Virgin Islands' wrongful death statute, 5 V.I.C. section 76, asserting Judith's death occurred in the territorial waters of the U.S. Virgin Islands.(Seeid.¶ 94).In particular, Michael and Alfred both seek to recover for mental pain and suffering; and Alfred additionally seeks to recover the value of lost support, services, companionship, and protection.(Seeid. ).In its Motion, CSE argues the Court should strike these requests for emotional damages.(See generally Mot.).

II.ANALYSIS

Pursuant to Federal Rule of Civil Procedure 12(f), the Court“may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”FED. R. CIV. P. 12(f).“[A]motion to strike is the appropriate mechanism to pursue removal of the prayer for... damages in the Complaint.”Hutchings v. Fed. Ins. Co. , No. 6:08–CV–305–ORL–19KR, 2008 WL 4186994, at *2(M.D.Fla.Sept. 8, 2008)(alterations added).CSE argues the Court should strike Plaintiffs' request for emotional damages under Rule 12(f) because: (1) these damages are not recoverable under general maritime law; (2) general maritime law takes precedence over state law (here, the law of the Virgin Islands) to the extent the two laws conflict; and (3)Plaintiffs cannot recover for “mental anguish” under general maritime law, because they do not satisfy the “zone of danger” test.(See generally Mot.).In response, Plaintiffs assert state remedies like those under the Virgin Islands wrongful-death statute apply to deaths within territorial waters³ and are not supplanted by general maritime law; and the “zone of danger” rule is irrelevant because Plaintiffs are not claiming negligent infliction of emotional distress.(See generally Resp.).The Court addresses these issues in turn.

A.Emotional Damages Under General Maritime Law

CSE argues emotional damages—such as damages for mental pain, suffering, and loss of support—are prohibited under general maritime law.(SeeMot. 3–4).The Court agrees with CSE general maritime law does not allow plaintiffs in a wrongful-death action brought on behalf of a nonseafarer,⁴ such as Judith, to seek emotional damages.The case law surrounding this issue merits some explanation.

In Moragne,the Supreme Court created a wrongful death action under general maritime law for deaths occurring in state territorial waters, noting Congress had enacted legislation to cover some, but not all types of maritime wrongful deaths.SeeMoragne v. States Marine Lines, Inc. , 398 U.S. 375, 408–09, 90 S.Ct. 1772, 26 L.Ed.2d 339(1970);see alsoIn re Amtrak , 121 F.3d 1421, 1428(11th Cir.1997)(noting“Moragne...for the first time gave an admiralty common law right of action for wrongful death of non-seamen in state territorial waters”(alteration added)).Specifically, the Death on the High Seas Act, 46 U.S.C. section 761 et seq.(“DOHSA”), only created a wrongful death action for persons killed on the high seas ; and the Jones Act, 46 U.S.C. section 688, only provided seamen a right of recovery against their employers for negligence resulting in injury or death.SeeTucker v. Fearn , 333 F.3d 1216, 1219(11th Cir.2003).To promote uniformity, the Moragne Court created a general maritime wrongful death action applicable in all waters, including state territorial waters; however, it did not set forth the scope of remedies available in such an action.SeeMoragne , 398 U.S. at 401–02, 408, 90 S.Ct. 1772.The Moragne Court purposefully declined to define the scope of this new cause of action, believing “final resolution should await further sifting through the lower courts in future litigation,” and suggesting the lower courts look for guidance to the DOHSA and the “numerous state wrongful death acts,” in dealing with “particular questions of the measure of damages.”Id. at 408, 90 S.Ct. 1772.

Subsequent court decisions have addressed the scope of remedies available for a wrongful death action under general maritime law.In Sea–Land Services, Inc. v. Gaudet , the Supreme Court held that mental anguish and grief are not compensable in a maritime wrongful-death action, but loss of society is compensable.See414 U.S. 573, 585 n.17, 587–88, 94 S.Ct. 806, 39 L.Ed.2d 9(1974).In Miles, the Supreme Court, looking to the Jones Act for policy guidance, limited Gaudet to its facts, holding longshoremen in territorial waters could recover damages for loss of society, but seamen could not.See generallyMiles v. Apex Marine Corp. , 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275(1990).In Tucker, however, the Eleventh Circuit expanded the Miles opinion, holding “nondependent survivors, such as [the plaintiff], of nonseamen, such as [the decedent]...cannot recover loss of society damages in a wrongful death action under general maritime law.”333 F.3d at 1221–22(alterations added).Courts have also held loss-of-consortium claims are not recoverable under general maritime law.SeeAlbertelli v. NCL Corp., Ltd. , No. 08–21418–CIV, 2008 WL 2949513, at *1(S.D.Fla.July 29, 2008)(“A claim for loss of consortium is not permitted under general maritime law, and therefore must be dismissed”);see alsoGandhi v. Carnival Corp. , No. 13–24509–CIV, 2014 WL 1028940, at *4(S.D.Fla.Mar. 14, 2014)(collecting cases).

Plaintiffs argue in Lobegeiger v. Celebrity Cruises, Inc., the Court found emotional (or “non-pecuniary”) damages are available under maritime law.(See Resp. 8 (citingNo. 11–21620–CIV, 2012 A.M.C. 202, 211(S.D.Fla.Aug. 23, 2011)(“[I]t is incorrect to say that in maritime personal injury and death cases only pecuniary damages may be recovered.”(alteration added)))).This portion of the Lobegeiger opinion came from a treatise—Robert Force and Martin J. Norris's The Law of Maritime Personal Injuries —which, read in its entirety, makes clear general maritime law provides non-pecuniary remedies for personal injurycases, but not necessarily for wrongful deathcases:

Miles was a death case.In

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