White v. Sabatino
| Decision Date | 09 February 2006 |
| Docket Number | No. 04-00500 (ACK/LEK).,No. 05-00025(ACK)(LEK).,04-00500 (ACK/LEK).,05-00025(ACK)(LEK). |
| Citation | 415 F.Supp.2d 1163 |
| Parties | Sarah C. WHITE, Individually and as Special Administrator of the Estate of Stefan Bournakel, Deceased, and as Next Friend of Nicos Robert Bournakel, a minor, Plaintiff, v. Carol Ann SABATINO, Bob's Maui Dive Shop, Inc. dba Maui Dive Shop, a Hawaii Corporation; 3090 Incorporated, a Hawaii Corporation; Ronald E. Wallach; John Does 1-20; Jane Does 1-20; Doe Corporations 1-20; Doe Partnerships 1-20; Doe Associates 1-20; Doe Governmental Agencies 1-20; and Other Entities 1-20, in personam and M/V Alii Nui O.N. 567359 in rem Defendants. Ronald E. Wallach, Cross-Claimant, v. Carol Ann Sabatino, Bob's Maui Dive Shop, Inc. dba Maui Dive Shop, a Hawaii Corporation; and 3090 Incorporated, a Hawaii Corporation, Cross-Defendants. In the Matter of the Complaint of 3090, Incorporated, a Hawaii Corporation as owners of the M/V Alii Nui O.N. 567359, for Exoneration from and/or Limitation of Liability. |
| Court | U.S. District Court — District of Hawaii |
Denise M. Hevicon, Michael Jay Green, Honolulu, HI, Eve M. Green, Law Office of Eve M. Green, Wailuku, HI, for Plaintiffs.
Jacqueline E. Thurston, Jason P. Healey, Terrance Matthew Revere, Motooka Yamamoto & Revere LLLC, Honolulu, HI, Jeana Sciarappa Schott, Richard A. Lesser, Steven M. McGuire, Emily A. Gardner, Lesser & Associates PLC, Redondo Beach, CA, for Defendants/Alii Nui O.N. 567359 MN in the Matter of the Complaint of 3090 Incorporated, A Hawaii Corporation as Owner of the M/V Alii Nui O.N. 567359, for Exoneration from and/or Limitation of Liability.
ORDER DENYING DEFENDANT WALLACH'S MOTION FOR SUMMARY JUDGMENT; DENYING LIMITATION PLAINTIFF 3090, INC.'S CLAIM THAT PLAINTIFF WHITE LACKS STANDING TO FILE A MOTION FOR PARTIAL SUMMARY JUDGMENT; AND GRANTING PLAINTIFF WHITE'S MOTION FOR PARTIAL SUMMARY JUDGMENT
On July 15, 2004, Sarah C. White, Individually and as Special Administrator of the Estate of Stefan Bournakel, Deceased, and as Next Friend of Nicos Robert Bournakel, ("Plaintiff') filed a Complaint in the Circuit Court of the Second Circuit of the State of Hawaii against Carol Ann Sabatino ("Sabatino"); Bob's Maui Dive Shop, Inc. dba Maui Dive Shop ("Maui Dive Shop"); John Does 1-5; John Doe Corporations 1-5; Roe Non-Profit Organizations 1-5; and Roe Governmental Agencies 1-5 for all damages and costs that allegedly resulted from the February 13, 2004 automobile accident between Carol Ann Sabatino and Stefan Bournakel ("Bournakel").
On August 16, 2004, the case was removed to Federal Court pursuant to 28 U.S.C. § 1441(b) from the Circuit Court of the Second Circuit State of Hawaii. This case was docketed CV No. 04-0500 (ACK/LEK).
On November 9, 2004, Plaintiff filed the Second Amended Complaint adding Defendants 3090, Incorporated ("3090, Inc."), Ronald Wallach ("Wallach"); John Does 1-20; Jane Does 1-20; Doe Corporations 1-20; Doe Associates 1-20; Doe Governmental Agencies 1-20; and Other Entities 1-20 in personam and MN Alii Nui, O.N. 567359 in rem ("Alii Nui").
On December 8, 2004, Maui Dive Shop, 3090, Inc. in personam, and Alii Nui in rem filed their Answer and affirmative defenses to Plaintiffs Second Amended Complaint.
On January 4, 2005, the Court issued an Order adopting the Magistrate's report and recommendation granting Plaintiffs Motion for Good Faith Settlement. Defendant Sabatino was terminated as a party at that time.
On January 12, 2005, Defendant 3090, Inc. filed a Complaint for Exoneration from and/or Limitation of Liability as a Limitation Plaintiff ("Limitation Compl.") pursuant to 46 U.S.C. App. § 183. This case was docketed CV No. 05-0025 (ACK/LEK).
On February 16, 2005, the parties stipulated to the Partial Dismissal with prejudice of all claims against Sabatino.
On March 7, 2005, Plaintiff filed an Answer to Limitation Plaintiffs Complaint.
On April 15, 2005, the parties stipulated to Consolidate CV No. 04-0500 (ACK/LEK) and CV No. 05-0025 (ACK/LEK) as Two Related Actions Pending Before the Court.
On May 26, 2005, Plaintiff filed a Motion for Leave to File a Third Amended Complaint.
On June 16, 2005, Defendant Ronald Wallach answered the Second Amended Complaint and filed a Cross-claim against Sabatino, Maui Dive Shop, and 3090, Inc.
On June 22, 2005, the Court issued an Order acknowledging compliance with Rule F(1) and F(2) of the Supplemental Rules for Certain Admiralty and Maritime Claims.
On July 1, 2005, the Court issued an Order compelling the Limitation Plaintiff to come forward and inform the Court when it would be, prepared to Publish Notice. The Court issued an Order permitting a Third Amended Complaint to be filed by July 19, 2005.
On July 7, 2005, Cross-Defendants, Maui Dive Shop, 3090, Inc., and Alii Nui, filed their Answer and affirmative defenses to the Wallach's Cross-claims.
On July 18, 2005, Plaintiff filed the Third Amended Complaint ("Compl.").
On August 17, 2005, Defendant Wallach filed an Answer to the Third Amended Complaint and Cross-claims against Maui Dive Shop, 3090, Inc., and Sabatino.
On September 2, 2005, Defendants Maui Dive Shop, 3090, Inc., and Alii Nui filed an Answer and affirmative defenses to the Third Amended Complaint.
On September 2, 2005, the Limitation Plaintiff, 3090, Inc., filed a Notice of Readiness.
On September 9, 2005, Cross-Defendants, Maui Dive Shop, 3090, Inc., and Alii Nui, filed their Answer and affirmative defenses to Wallach's Cross-claims.
On September 12, 2005, the Court held a hearing for the Limitation Plaintiff to Show Cause why its case should not be dismissed. The Court did not dismiss the claim.
On October 3, 2005, the Court issued an Order directing issuance of notice, publication thereof and granting an injunction to restrain and stay all other claims against Limitation Plaintiff in other courts regarding the February 13, 2004 incident.
On October 25, 2005, Wallach filed a Motion for Summary Judgment against Plaintiff's claims ("Motion 1").
On December 14, 2005, Plaintiff filed a Motion for Partial Summary Judgment regarding the Limitation Plaintiff's Complaint ("Motion 2"). Defendant Wallach joined this motion on December 19, 2005.
On January 5, 2006, Plaintiff filed a Statement of No Position to Motion 1. Limitation Plaintiff 3090, Inc. filed a Memorandum of Points and Authorities in response to Motion 2 ("Opposition to Motion 2"). Cross-Defendants, Maui Dive Shop and 3090, Inc., filed a Memorandum of Points and Authorities to Oppose Motion 1 ("Opposition to Motion 1").
On January 12, 2006, Wallach filed a Reply Memorandum supporting Motion 1 ("Reply to Motion 1").
On January 13, 2006, Plaintiff filed a Reply Memorandum supporting Motion 2 ("Reply to Motion 2").
The Court addresses two motions in this Order stemming from the tragic automobile accident that occurred on February 13, 2004 at approximately 1:35 p.m., between motorists Carol Ann Sabatino and Stefan Bournakel. Bournakel suffered traumatic injuries and died as a result of this accident. Sabatino was intoxicated at the time of the accident.
Prior to the accident, Sabatino was a passenger on a cruise vessel named the Alii Nui. Defendant 3090, Inc. owns the Defendant MN Alii Nui. (Motion 2, Concise Statement of Facts ("CSF") 1; Opposition to Motion 2, Concise Statement of Facts 1). Defendant Maui Dive Shop owns Defendant 3090, Inc. (Motion 2, CSF 1; Opposition to Motion 2, CSF 1). On February 13, 2004, Bob Chambers, President, Sandra Chambers, Vice President and Jeff Strahn ("Strahn") were officers of 3090, Inc. (Motion 2, CSF 2; Opposition to Motion 2, CSF 2). Strahn, the Vice President and General Manager of Maui Dive Shop, supervised the Alii Nui operations. (Motion 2, CSF 2; Opposition to Motion 2, CSF 2). Prior to Maui Dive Shop's purchase of 3090, Inc. and the Alii Nui in October 2003, Strahn attended the Alii Nui morning cruise as part of his due diligence regarding the operation of the Alii Nui and the type of cruises it offered. (Motion 2, CSF 6; Opposition to Motion 2, CSF 6). Chris Dennis ("Dennis") is a manager of 3090, Inc. and the Captain of the Alii Nui. (Motion 2, CSF 4; Opposition to Motion 2, CSF 4). Dennis captained the Alii Nui on the morning of February 13, 2004. (Motion 1, CSF 2; Opposition to Motion 1, CSF 2). Diane Mulkey ("Mulkey"), a former police officer, served as a crew member on the Alii Nui on February 13, 2004. (Opposition to Motion 2, CSF 18).
On February, 13, 2004, Defendant Dr. Ronald Wallach, his wife, his brother-in-law, and his sister-in-law all attended the morning snorkeling cruise on the Alii Nui. Defendants 3090, Inc. and Maui Dive Shop allege Dennis believed that Sabatino arrived at the dock with the Wallach party. (Opposition to Motion 2, CSF 9). They allege that Dennis thought that Sabatino came with the Wallach party because Wallach told Dennis that he had brought along Sabatino as an extra when they all first met. (Opposition to Motion 1, CSF 9). Defendant Wallach does not contest this allegation.
The Alii Nui, primarily a snorkeling cruise, included the service of unlimited food and alcohol with the ticket. (Motion 2, CSF 7; Opposition to Motion 2, CSF 7). There was no prohibition on the amount of alcohol that a passenger could consume, unless the crew stopped serving him. Id. Plaintiff alleges that it was advertised that the Alii Nui cruise had an "open bar." (Motion 2, CSF 7). 3090, Inc. disagrees that the cruise was advertised as "open bar" or "all you can drink". (Opposition to Motion 2, CSF 7). Defendants 3090, Inc. and Maui Dive Shop allege that an inspector from the Maui County Liquor Commission informed Strahn that "the practice of including liquor within the price of a ticket aboard the vessel" did not violate the Maui County Liquor Rules. Strahn Decl. ¶ 3.
Plaintiff alleges that there were no written beverage training materials and that the crew was not properly...
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