ACE AMERICAN INSURANCE COMPANY v. MARINEMAX EAST INCORPORATED Complaint

8/3/2019 ACE AMERICAN INSURANCE COMPANY v. MARINEMAX EAST INCORPORATED Complaint

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Case 2:11-cv-00693-JES-DNF Document 1 Filed 12/14/11 Page 1 of 11 PagelD 1FILED

UNITED STATES DISTRICT COURT ?n 11 nrr nMIDDLE DISTRICT OF FLORIDA UM U t L ' 4 M 8-* 32FORT MYE RS! FLOR IDA A

ACE AMERICAN INSURANCE COMPANY,a Pennsylvania Corporation as subrogee of JAMESDEPETRIS CASE NO.:Plaintiff,

vs. :iL-c^-MJ).^ MMARINEMAX EAST INCORPORATED, aDelaware Corporation.

Defendants.

COMPLAINTPlaintiff ACE AME RICAN INSURANC E COM PANY, as a subrogee of James Depetris,

by and through and undersigned counsel, hereby files this Complaint against DefendantMARINEM AX EAST INCORPORATED or ("MARINEMAX") and alleges:

Jurisdiction and Venue1. This is an action for damages in excess of $75,000.00, exclusive of interest, costs

and attorney's fees, and is otherwise within the diversity subject matter jurisdiction of thisHonorable Court, 28 USC 1332.

2. All claims set forth herein arise from the same operative facts and should bedisposed of in a single proceeding. Th e events, acts, and circumstan ces giving rise to this actionoccurred in Le e County, Florida and venu e is proper within this district.

3. This action arises from a sinking that occurred on or about A pril 9,2011 to a 20094 7' Meridian 441 Sedan Bridge Motor Yacht bearing Hull Identification Number


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MDND7008L709 and known as Livin The Dream, (hereinafter "Livin the Dream") while shewas navigating in navigable waters near Sanibel, Florida.

4 . Mr. Depetris, the vessel owner, was operating the vessel with family and friendsaboard when the bilge alarms sounded. After the alarms went off, an engine hatch was openedand upon investigation water was observed rising in the engine compartment. Mr. Depetrissubsequently navigated the vessel toward shore and drifted the vessel into the beach. Subsequentinvestigation on scene by a salvor disclosed a disconnected starboard exhaust hose.

5. At all times material, James Depetris, owned the vessel.6. At all material times, MARINEMAX EAST, INC. is a Delaware corporation

organized and existing under the laws of the State of Delaware doing business in the State ofFlorida, Lee County by selling and servicing vessels, including "Livin the Dream" at 14070McGregor Blvd. in Ft. Myers, Florida.

7. MARINEMAX EAST, INC. manufactured, distributed, sold or repaired thevessel in the State of Florida and accordingly is subject to the personal jurisdiction of the courtsof this state because it:

a) operated, conducted, engaged in or carried on a business venture in the Stateof Florida, or have an office or agent in the State of Florida;

b) committed tortious acts and other negligent conduct within the State ofFlorida as hereinafter described;

c) engaged in substantial and not isolated activity within the State of Florida;d) engaged in solicitation, advertising, marketing, or service activities within the

State of Florida;

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e) produced m aterials, or things processed, serviced or manufactured, used orconsumed within the State of Florida in the ordinary course of commerce,trade or use;

f) caused injury to persons or property within the State of Florida arising out ofan act or omission outside the State of Florida;

g) entered into contracts with and issued products designed and specificallyintended to enter the stream of commerce in the United States and, inparticular, Florida;

h) entered into contracts and performed work including warranty work pursuantto contracts with the Plaintiffs in this case, and/or otherwise

i) breached a contract in this state by failing to perform acts, or negligentlyperformed acts, required by the contract to be performed in the State ofFlorida.

8. At all times material, Plaintiff, ACE AMERICAN INSURANCE COMPANY,insured the vessel M r. Depetris owned and is a corporation organized and existing under the lawsof Pennsylvania, with its headquarters located in Philadelphia, Pennsylvania.

Factual Background9. At all material times, MA RINEM AX EAST, INC. sold, and distributed that

certain fiberglass inboard vessel, together with its engines, equipment and other property,bearing the foregoing manufacturing serial number MDND7008L709 and known as the LivinThe Dream.

10. At all material times, MARINEMAX EAST, INC. sold and distributed the vessel,together with its engines, equipment and other property, to James Depetris in September of 2009.

McALPIN CONROYA t T O * H t * S J IT L A *


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11. On or about April 1, 2011 Mr. Depetris received a phone call from MARINEMAX who advised they were going to send a technician to his house to perform a recall repair toan exhaust hose on the starboard side.

12. On April 5 , 2011 a technician arrived at Mr. Depetris' house advising that he wasthere to replace the exhaust hose. The vessel was docked behind Mr. Depetris's house.Approximately two hours later the technician advised the hose was replaced, the job wascompleted, and the vessel was ready for use.

13. On April 9, 2011 Mr. Depetris had planned to take his family and friends for acruise. In early afternoon they departed his residence, idled out to the river, and headed towardthe Gulf of Mexico. After passing through a slow speed zone he powered Livin the Dream to aplane and proceeded toward Sanibel Harbor Resort. While in a channel, the bilge alarms went offand smoke was visible. Mr. Depetris shut down the engines, and opened the enginecompartment. Water was seen flooding the engine compartment. Mr. Depetris ran back topside,started the engines and turned the yacht toward shallow water approximately one half mile fromthe Sanibel Harbor Resort. Subsequently, the incoming water shut the engines down when hewas in about six feet of water and the vessel drifted toward the beach. The vessel was immersedin salt water which caused catastrophic damage.

14. The starboard exhaust hose installed by Defendant on April 5, 2011, was eitherimproperly designed, constructed, manufactured, installed, or integrated; it was also not testedunder operating conditions or installed properly, which caused or contributed to causing thesinking at issue.

15. Prior to the sinking Defendant knew of problems identified to it by themanufacturer pertaining to manufacturing, design or construction defects associated with the

MCALPINCONROYA T T O R N I V S A T L A V


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exhaust wh ich, if not corrected, posed a potential hazard to the vessel, her owner, family andguests while being operated. This information was not shared with Mr. Depetris pre-casualty.

16. Defendant failed to correct a known defect, and what work they did ultimatelycaused or contributed to causing the casualty.

17. Pursuant to the terms of a contract of insurance between Plaintiff, ACEAMERICAN INSURANCE COMPANY and James Depetris, Plaintiff ACE AMERICANINSURANCE COMPANY paid $512,145.00 to James Depetris, for the total loss associated withthe sinking at issue in this litigation and his personal property. ACE has spent 57,983.94 forstorage, and S 20,000 for salvage to a salvor. Accordingly, Plaintiff, ACE AMERICANINSURANCE COMPANY is subrogated at law and in equity to the extent of its payment underthe policy to the interests of James Depetris.

18. Plaintiff has retained the law offices of McAlpin Conroy, P.A. to prosecute thisaction, and have agreed to pay said attorneys a reasonable fee for their services.

COUNT INegligence

Plaintiff re-alleges and incorporates by reference the allegations contained in Paragraphs1 thru 18 above, and further allege:

19. At all material times MARINE MAX knew or should have known that exhausthoses needed to be properly constructed, measured, repaired, installed, modified and tested toallow for proper operation and to prevent water incursion.

20 . MARINE MAX owed James Depetris duties to provide a suitably designed,properly constructed, properly installed exhaust hose which was tested under operatingconditions.

21 . MARINEMAX MAX breached these duties to James Depetris.MCALPIN CONROY t r a i i ' i AT L A


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22 . As a direct and proximate result of MARINEMAX's negligence and that of itsemployee operating within the course of his employment with MARINEMAX, the vessel wasdamaged on April 9, 2011 while the vessel was being operated under normal operatingconditions.

23. MA RINE MAX was negligent after the manu facture and sale of the vesselincluding but not limited to:

a) Failing to warn James Depetris.b) Failing to have in place procedures for advising vessel owners of recalls of

component parts.c) Failing to provide James Depetris with information to show wh ether repairs,

recalls, modifications, and work was done in a safe m anner.d) Failing to follow up with the vessel owner following their em ploye e's work to

confirm proper testing was taken prior to operation by the ow ner.e) Failing to exercise proper care under the circumstances.f) Failing to use reasonable care while performing repairs to the exhaust systemaboard the vessel including, but not limited to, replacing the seawater coolingpum p and associated fittings.g) Failing to use and/or implement proper guidelines in the exhaust system 's repair.h) Failing to properly train personnel responsible for repairing the exhaust systemaboard the vessel.i) Failing to properly supervise personnel responsible for repairing the exhaust

system aboard the vessel.j) Failing to use reasonable care in the selection, use and/or installation ofequipment while repairing the exhaust system aboard the vessel.k) Installing defective and/or improper parts or failing to install parts whileperforming repairs to the exhaust system aboard the vessel.

MCALPIN CONROY


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24 . As a direct and proximate result of the neglect acts and omissions ofMARINEMAX, and their employee, Jam es D epetris suffered dam age to his property.

WHEREFORE Plaintiff demands pre-judgment interest, costs and damages againstdefendant and for such other and further relief as deemed just and proper by the court.

COUNT IIBreach of Implied WarrantyPlaintiff re-alleges and incorporates by reference the allegations contained in Paragraphs

1 thru 18 above and further allege:25 . Defendant MARINEMAX contacted James Depetris and undertook responsibility

for changing an exhaust hose and failed to advise James Depetris the reason for the work,whether the vessel should be inspected or tested prior to use following work performed byMARINEMAX, or any other precautions.

26. MARINEMAX is a seller of high end yachts. They impliedly warranted to Mr.

Depetris their workmanlike performance, that they were competent to do marine engine servicework and in fact hold themselves out to the public claiming in their advertising to have"unparallel boat service", "... the very best in quality boat service and boat repair..." and boastsa "...mobile service team" predicated to induce boat purchasers to rely on and utilize theirservices.

27 . MARINE MAX owed James Depetris a warranty of workmanlike performancefor the repair of the vessel which inter alia, required the Defendant to repair the vessel and toperform their various duties properly, safely and in a workmanlike manner.

MCALPIN CONROY\ I : i- : . : AT LAN


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28. Defendant owed Plaintiff an implied warranty of workmanlike performance torepair the exhaust system of the vessel in an inappropriate, safe and workmanlike mannerincluding, but not limited to:

a) Failing to warn James Depetris.b) Failing to have in place procedures for advising vessel owners of recalls of

component parts.c) Failing to provide James Depetris with information to show whether repairs,

recalls, modifications, and work was done in a safe m anner.d) Failing to follow up with the vessel owner following their em ployee's work to

confirm proper testing was taken prior to operation by the owner.e) Failing to exercise proper care under the circumstances.f) Failing to use reasonable care while performing repairs to the exhaust systemaboard the vessel including, but not limited to, replacing the seawater coolingpump and associated fittings.g) Failing to use and/or implement proper guidelines in the exhaust sy stem 's repair.h) Failing to properly train personnel responsible for repairing the exhaust systemaboard the vessel.i) Failing to properly supervise personnel responsible for repairing the exhaustsystem aboard the vessel.j) Failing to use reasonable care in the selection, use and/or installation ofequipment while repairing the exhaust system aboard the vessel.k) Installing defective and/or improper parts or failing to install parts whileperforming repairs to the exhaust system aboard the vessel.

29. Prior to this casualty, James Depetris had not experienced any problems with thestarboard exhaust hose and prior to receiving the phone call from MARINEMAX, had not been

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sent any type of recall notice from the manufacturer MERIDIAN YACHTS, warning of potentialstarboard hose problem s.

30 . James Depetris relied on MARINEMAX to properly provide safe service to hisvessel.

31 . After the sinking, James Depetris learned that the vessel manufacturer had givenrecall instructions to MARINEMAX. The starboard hose had detached from the exhaust systemof the boat while being operated by James Depetris on the first use after MARINEMAX's work.The replacement hose was inspected and found to be of insufficient length, and was improperlyor inadequately adhered; MARINEMAX failed to follow the manufacturer's instructions inhanging the replacement hose and on information and belief the length of the hose and normalvibration caused it to disassemb le or detach while under normal operation.

32 . The repairs and hose replacement work done by MARINEMAX was not done inaccordance with work manlike manners or methods and, failed of its essential purpose in eithermaterials furnished by MARINEMAX, or Defendant breached its duty of work manlikeperformance workmanship, either of which, or both, were defective and which cause damage toMr. Depetris' vessel and personal property.

WHEREFORE, Plaintiff demands judgment for damages, attorney's fees and costs andaccrued interest on liquidated damages against MARINEMAX EAST, INC., and for such otherand further relief as deemed just and proper by this Court; Plaintiff demands trial by jury.

McALPIN CONROYA l I O R H i r * AT LAW


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RESPECTFULLY SUBMITTED,McALPIN CONROY, P.A.80 SW 8lh Street, Suite 2805liami, Florida 33130

MICHAEL E. CONROYFlorida Bar No.: 845434MConrov(ajMcAlpinConroy.comJONATHAN H. DUNLEAVYFlorida Bar No.: [email protected]

M C A L P I N C O N R O Y
mailto:[email protected]:[email protected]


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f ' " ' '


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Case 2:11-cv-00693-JES-DNF Document 1-1 Filed 12/14/11 Page 1 of 1 PagelD 12&JS44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and tlie information contained herein neither replace nor supplement tliefilingand service ofplcadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference ol the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF TH E FORM.)I. (a) PLA INT IFFS

Insurance Co.(b) County of Residence of First Listed Plaintiff P e n n sy l v an ia

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorney's (Firm Name, Address, and Telephone Number)E. Conrov, McAlpinConroy.P.A. 80 S.W. 8Street,Ste#2805i ami , Florida 33130

DEFENDANTSMarineMax East Inc.

County of Residence of First Listed Defendant L e e Co un t y, Fl.(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THELAND INVOLVED.

Attorneys (i f Known)

II. BASIS OF JURISDICT ION (Place an "X" in One Box Only)O I US. Government

Plnintiff

0 2 U.S. GovernmentDefendant

O 3 Federal Question(U.S. Government Not a Party)

$ A Diversity(Indicate Citizenship of Parties in Item III)

III. CIT IZ ENSHI P O F PRI NCI PA L PARTIES(Placc an'' X" in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

ITF DEF PTF DEFCitizen of Tin's Stale d 1 O 1 Incorporated or Principal Place D 4 D4

of Business In This StateCitizen of Another Stale

Citizen or Suhject of aForeign Country

2 Incorporated and Principal Placeof Business In Another StateO 3 O 3 Foreign Nation

M 5 H 5

a 6 a 6IV . NATURE OF SUICONTRACT3 110 InsuranceO 120 Marine3 130 Miller Act3 MO Negotiable InstrumentO 150 Recovery of Overpayment

& Enforcement of JudgmentO 151 Medicare ActO 152 Recovery of Defaulted

Student Loans(Excl. Veterans)

O 153 Recovery ofOverpaymemof Veteran's Benefits 160 Stockholders'SuitsO 190 Other Contract3 195 Contract Product Liabilityfl 196 f-[aiichi.se

REAL PROPERTYO 210 Land Condemnation3 220 ForeclosureO 230 Rent Lease & Ejectment 240 Torts to Land3 245 Tort Product Liability3 290 All Other Real Property

r (Place an "X" in One Box Only)TORTSDaaaa0a

PERSONAL INJURY310 Airplane315 Airplane Product

Liability320 Assault, Libel &

Slander330 Federal Employers'

Liability340 Marine345 Marine Product

Liability350 Motor Vehicle355 Motor Vehicle

Product Liability360 Other Personal

InjuryCIVIL RIGHTSaa3

3333

441 Voting442 Employment443 Housing/

Accommodations444 Welfare445 Aincr. w/Disabilities -

Employment446 Amer. w/Disabilities -

Other440 Other Civil Rights

PERSONAL INJURY 362 Personal Injury -Med. Malpractice 365 Personal Injury -Product Liability

3 368 Asbestos PersonalInjury ProductLiability

PERSONAL PROPERTY3 370 Other Fraud3 371 Truth in LendingB 380 Other Personal

Property Damage 385 Property DamageProduct Liability

PRISONER PLTITIONSO 510 Motions to Vacate

SentenceHabeas Corpus:

530 GeneralO 535 Death PenaltyO 540 Mandamus & OtherO 550 Civil Rights3 555 Prison Condition

FORFEITURE/PENALTYO 610 AgricultureO 620 Olher Food & DrugO 625 Drug Related Seizure

ofProperty21 USC 881O 630 Liquor Laws3 640 R.R.& TruckD 650 Airline Regs.3 660 Occupational

Safety/HealthO 690 Other

I,A DOR3 710 Fair Labor Standards

Acl3 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Rcporting

& Disclosure Act3 740 Railway Labor Act3 790 Other Labor Litigation 791 Empl. Ret. Inc.

Security ActIMMIGRATION

3 462 Naturalization Application3 463 Habeas Corpus -

Alien Detainee3 465 Other Immigration

Actions

BANKRUPTCYO 422 Appeal 28 USC 158O 423 Withdrawal

28 USC 157PROPERTY RIGHTS

3 820 Copyrightsa 830 Patent3 840 Trademark

SOCIAL SECURITYa 861 HIA(1395fflD 862 Black Lung (923)O 863 D1WC/DI WW(405(g))O 864 SSID Title XVI3 865 RSI (405(g))

FEDERAL TAX SUITSO 870 Taxes (U.S. Plaintiff

or Defendant) (

OTHER STATUTES3 400 State ReapportionmentO 410 Antitrust3 430 Banks and Banking3 450 Commerce3 460 Deportation3 470 Racketeer Influenced and

Corrupt Organizalions3 480 Consumer CreditD 490 Cable/Sat TVCI 810 Selective Service 850 Securities/Commodities/Exchange 875 Customer Challenge

12 USC 3410 890 Other Statutory Actions3 891 Agricultural ActsD-'B92 Economic Stabilization ActQCT393 EnvimiuTiciital MattersE)-~89Encrg^2llocationAct

O 871 IRSThird Party 9 rspSjFrcedflHyif Informatioa 26 USC 7609

rcrc

, ; o - Act ngt/BOOAppeaToTFcc Determinatiojj'j^Unilrr Fqiml Access3 -'; . to Jusjjpe(XiaSQ Constitutionalityof .'. ' 1 ( State-Ja/utes

- r i O 5" ^ ,-npi[r-ig coV. ORIGIN53 1 OriginalProceeding

(Place an "X" in One Box Only)d 2 Removed from O

Slate CourtRemanded fromAppellate Court a 4 Reinstated orReopened

5 __7\ppeal to Districtn , Transferred from n < Multidistrict n 7 ' W f r o mu 5 another district u e fSS2 or Magistrate

(specify) L ' t l g a t ' 0 " Judgment

VI. CAUS E OF ACTIONCite the U.S. Civil Statute under which you are filNonstatutory claims (negligence aning (Do not citeJurisdictional statutes unless diversity):cfTjreacn or implied warranty)Brief description of cause:

VII. R E Q U E S T E D IN CHECK IF THIS IS A CLASS ACTIONCOMPLAINT: UNDER F.R.C.P. 23

DEMAND S CHECK YES only if demanded in complaint:JURY DEMAND: Sf Yes No

VIII. RELAT ED CASE(S) (See instructions): JUDGE DOCKET NUMBERDATE
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ACE AMERICAN INSURANCE COMPANY v. MARINEMAX EAST INCORPORATED Complaint