Terry v. Carnival Corp.

• Decision Date: 16 January 2014
• Docket Number: Case No. 13–20571–CIV.
• Parties: Cassie TERRY, et al., Plaintiffs, v. CARNIVAL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

3 F.Supp.3d 1363

Cassie TERRY, et al., Plaintiffs,

v.CARNIVAL CORPORATION, Defendant.

Case No. 13–20571–CIV.

United States District Court, S.D. Florida.

Signed Jan. 16, 2014.

Brenton J. Allison, Douglas T. Gilman, Gilman & Allison, LLP, Pearland, TX, Francis I. Spagnoletti, Marc Evan Kutner, Megan A. Whitlock, Marcus Raymond Spagnoletti, David S. Toy, Spagnoletti & Co., Houston, TX, for Plaintiffs.

Curtis Jay Mase, Richard David Lara, Cameron Wayne Eubanks, Christine Marie Dimitriou, Thomas Dennis Alan Briggs, Valentina M. Tejera, Mase, Lara, Eversole P.A., Adam Michael Schachter, Daniel S. Gelber, Gerald Edward Greenberg, Gelber Schachter & Greenberg, P.A., Miami, FL, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

DONALD L. GRAHAM, United States Magistrate Judge.

THIS CAUSE comes before the Court on Defendant's Motion for Summary Judgment on Plaintiffs Pamela Morris, Larry Poret, and R.P. [D.E. 113], Plaintiff's Motion for Partial Summary Judgment [D.E. 122], and Defendant's Omnibus Motion for Summary Judgment [D.E. 127].

THE COURT has considered the motions, the relevant portions of the record, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiffs brought this suit in connection with their claims of injury while aboard the Carnival Triumph, during a cruise that departed on February 7, 2013, from Galveston, Texas, and which was scheduled to return on February 11, 2013. As a result of a fire, however, the Triumph's voyage was interrupted when the vessel became disabled while en route back to Galveston from Cozumel. Plaintiffs now seek compensatory and punitive damages on claims of breach of contract, negligence and gross negligence, negligent misrepresentation, and fraud.

II. LAW & DISCUSSION

A. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). The moving party has the burden of production. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

At the summary judgment stage, the judge's function is not to “weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the Court must decide which issues are material. A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

The Court must also determine whether the dispute about a material fact is indeed genuine. “Where the record taken as a whole would not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’ ” and the court may grant the motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). If however, reasonable minds could disagree on the inferences arising from the material facts, then the Court must deny the motion for summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In other words, is the “evidence ... such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. See Marine Coatings of Alabama, Inc. v. United States, 932 F.2d 1370, 1375 (11th Cir.1991) (dispute of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party).

This action is controlled by United States general maritime law. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982); Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.1990); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

Additionally, “[i]n this circuit, whether a party was negligent constitutes a question of fact.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989).

B. Legal Analysis

1. Plaintiffs Morris, Poret and R.P.'s Motion for Summary Judgment

Plaintiffs Pamela Morris (“Morris”), Larry Poret (“Poret”), and his daughter, R.P. (“R.P.”), brought this action against Carnival to recover for their “injuries” stemming from the incident onboard the Triumph. Plaintiffs allege in their Fourth Amended Complaint that they suffered “serious physical and emotional injuries.” Defendants move for summary judgment asserting that despite Plaintiffs' claims, they suffered no injuries while on the Triumph. Specifically, Defendant contends that Plaintiffs have suffered no physical injury, no emotional injury, no financial injury, no property damage, nor any other provable injury. [D.E. 113].

a. Pamela Morris

Pamela Morris (“Morris”) was a passenger onboard the Carnival Triumph during the cruise that is the subject of this litigation. Prior to boarding the Triumph, Morris acknowledged and agreed to the terms of the cruise ticket contract. Morris suffered no physical injuries onboard the Triumph. However she claims to have suffered emotional injuries. Morris claims that she continues to have “[a]nxiety, sleeplessness, dreams or nightmares....” [D.E. 113–1, Depo. of P. Morris, p. 71]. She has never reported her emotional injures to anyone and has sought no treatment for her purported emotional injuries. [D.E. 113–1, Depo. of P. Morris, pp. 71, 77]. Morris suffered no property damage as a result of the incident onboard the Triumph. [D.E. 113–1, Depo. of P. Morris, p. 79;]. Morris suffered no lost wages or financial losses as a result of the incident onboard the Triumph. [D.E. 113–1, Depo. of P. Morris, pp. 87, 91].

b. Larry Poret and R.P.

Larry Poret (“Poret”), and his daughter, R.P., were also passengers onboard the Triumph. Prior to boarding the Triumph, Poret acknowledged and agreed to the terms of the cruise ticket contract on behalf of himself and his daughter, R.P. Poret and R.P. suffered no physical injuries onboard the Triumph. They claim to have suffered the exact same emotional injuries. Poret and R.P. contend that they continue to suffer from “anxiety, stress, and nightmares.” [D.E. 113–6, Supplemental Answers to Interrogatories, No. 6]. Poret and R.P. have not sought any treatment for their alleged emotional injuries, and their emotional injuries have gotten better with time. [D.E. 113–4, Depo. Of L. Poret, pp. 81–82]. Poret and R.P. suffered no property damage as a result of the incident onboard the Triumph. [D.E. 113–4, Depo. of L. Poret, p. 86; D.E. 113–6, Supplemental Answers to Interrogatories, No. 16]. Poret suffered no lost wages as a result of the incident onboard the Triumph. [D.E. 113–4, Depo. of L. Poret, p. 86; D.E. 113–6, Supplemental Answers to Interrogatories, No. 11, 12].

Defendant asserts that it is entitled to summary judgment on Plaintiffs' breach of contract claim (Count I) because the parties did not agree to any provision guaranteeing safe passage, a seaworthy vessel, adequate and wholesome food, and sanitary and safe living conditions. The Court agrees.

The general rule of admiralty law is that a ship's passengers are not covered by the warranty of seaworthiness, a term that imposes absolute liability on a sea vessel for the carriage of cargo and seamen's injuries. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir.1984) (holding that passenger's claims could not be based on unseaworthiness); Jackson v. Carnival Cruise Lines, Inc., 203 F.Supp.2d 1367, 1377 (S.D.Fla.2002). The only exception to this rule is if there is an executed contractual provision that expressly guarantees safe passage. Jackson at 1377; See also Hass v. Carnival Cruise Lines, 1986 WL 10154, No. 86–33–CIV (S.D.Fla. Mar. 20, 1986); Doe v. Celebrity Cruises, 145 F.Supp.2d 1337, 1346 (S.D.Fla.2001). Here, it is undisputed that Plaintiffs Morris, Poret and R.P. acknowledged and agreed to the terms of the cruise ticket contract. [See Cruise Ticket Contract Acceptance Report, D.E. 113–2 and 113–5]. The contract ticket makes no express guarantee for safe passage, a seaworthy vessel, adequate and wholesome food, and sanitary and safe living conditions. [See D.E. 24–1]. Instead, the relevant provisions read:

The Vessel shall be entitled ... to return to or enter any port at the Master's discretion and for any purpose, and to deviate in any direction or for any purpose from the direct or usual course, and to omit or change any or all port calls, arrival or departure times, with or without notice, for any reason whatsoever, including but not limited to safety, security, ..., mechanical breakdowns, ... all such deviations being considered as forming part of and included in the proposed voyage. Carnival shall have no liability for any compensation or other damages in such circumstances other than as provided by Carnival's change of itinerary policy at the time Guest or his agent acknowledges receipt and acceptance of the terms and conditions of the cruise ticket contract[.]

If the performance of the proposed voyage is hindered or prevented (or in the opinion of Carnival or the Master is likely to be hindered or prevented) by ... breakdown of the Vessel, ... or any other cause whatsoever or if Carnival or the Master...