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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

ACE AMERICAN INSURANCE COMPANY v. MARINEMAX EAST INCORPORATED

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:11-cv-00693 Search Pacer
ACE Group party(s): 
Opposing Party: 
Ace American Insurance Company
Court Type: 
Federal
US District Court: 
Middle District of Florida
Date Filed: 
Dec 14 2011

"COUNT I
Negligence

Plaintiff re-alleges and incorporates by reference the allegations contained in Paragraphs 1 thru 18 above, and further allege:

19. At all material times MARINE MAX knew or should have known that exhaust hoses needed to be properly constructed, measured, repaired, installed, modified and tested to allow 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 operating conditions.

21. MARINEMAX MAX breached these duties to James Depetris. MCALPIN CONROY

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

23. MARINE MAX was negligent after the manufacture and sale of the vessel including 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 manner.
d) Failing to follow up with the vessel owner following their employee'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 system aboard the vessel including, but not limited to, replacing the seawater cooling pump 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 system aboard 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 of equipment while repairing the exhaust system aboard the vessel.
k) Installing defective and/or improper parts or failing to install parts while performing repairs to the exhaust system aboard the vessel.

24. As a direct and proximate result of the neglect acts and omissions of MARINEMAX, and their employee, James Depetris suffered damage to his property.

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

COUNT II
Breach of Implied Warranty

Plaintiff 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 by MARINEMAX, 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 service work 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 boasts a "...mobile service team" predicated to induce boat purchasers to rely on and utilize their services.

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

28. Defendant owed Plaintiff an implied warranty of workmanlike performance to repair the exhaust system of the vessel in an inappropriate, safe and workmanlike manner including, 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 manner.
d) Failing to follow up with the vessel owner following their employee'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 system aboard the vessel including, but not limited to, replacing the seawater cooling pump 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 system aboard 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 of equipment while repairing the exhaust system aboard the vessel.
k) Installing defective and/or improper parts or failing to install parts while performing repairs to the exhaust system aboard the vessel.

29. Prior to this casualty, James Depetris had not experienced any problems with the starboard exhaust hose and prior to receiving the phone call from MARINEMAX, had not been sent any type of recall notice from the manufacturer MERIDIAN YACHTS, warning of potential starboard hose problems.

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

31. After the sinking, James Depetris learned that the vessel manufacturer had given recall instructions to MARINEMAX. The starboard hose had detached from the exhaust system of 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 improperly or inadequately adhered; MARINEMAX failed to follow the manufacturer's instructions in hanging the replacement hose and on information and belief the length of the hose and normal vibration caused it to disassemble or detach while under normal operation.

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

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

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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