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

ACE AMERICAN INSURANCE COMPANY v. MARINEMAX EAST INCORPORATED Complaint

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.

Embedded Scribd iPaper - Requires Javascript and Flash Player
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 1 of 11 PagelD 1
FILED
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ?n 11 tnrr 4n UM U L ' M 8-* 32
FORT MYERS! FLORIDA ° A
ACE AMERICAN INSURANCE COMPANY, a Pennsylvania Corporation as subrogee of JAMES DEPETRIS CASE NO.: Plaintiff, vs. MARINEMAX EAST INCORPORATED, a Delaware Corporation. Defendants.
: iL-c^-MJ).™^
M
COMPLAINT Plaintiff ACE AMERICAN INSURANCE COMPANY, as a subrogee of James Depetris, by and through and undersigned counsel, hereby files this Complaint against Defendant MARINEMAX EAST INCORPORATED or ("MARINEMAX") and alleges: Jurisdiction and Venue 1. 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 this Honorable Court, 28 USC §1332. 2. All claims set forth herein arise from the same operative facts and should be
disposed of in a single proceeding. The events, acts, and circumstances giving rise to this action occurred in Lee County, Florida and venue is proper within this district. 3. 47' This action arises from a sinking that occurred on or about April 9,2011 to a 2009 Number
Meridian 441 Sedan Bridge Motor Yacht bearing Hull Identification
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 2 of 11 PagelD 2
Page 2 of 10 MDND7008L709 and known as Livin The Dream, (hereinafter "Livin the Dream") while she was navigating in navigable waters near Sanibel, Florida. 4. Mr. Depetris, the vessel owner, was operating the vessel with family and friends
aboard when the bilge alarms sounded. After the alarms went off, an engine hatch was opened and upon investigation water was observed rising in the engine compartment. Mr. Depetris subsequently navigated the vessel toward shore and drifted the vessel into the beach. Subsequent investigation on scene by a salvor disclosed a disconnected starboard exhaust hose. 5. 6. At all times material, James Depetris, owned the vessel. 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 of Florida, Lee County by selling and servicing vessels, including "Livin the Dream" at 14070 McGregor Blvd. in Ft. Myers, Florida. 7. MARINEMAX EAST, INC. manufactured, distributed, sold or repaired the
vessel in the State of Florida and accordingly is subject to the personal jurisdiction of the courts of this state because it: a) operated, conducted, engaged in or carried on a business venture in the State of Florida, or have an office or agent in the State of Florida; b) committed tortious acts and other negligent conduct within the State of Florida 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;
MCALPINCONROV
ATTOKMKTS AT LAW
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 3 of 11 PagelD 3 Page 3 of 10
e) produced materials, or things processed, serviced or manufactured, used or consumed 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 of an act or omission outside the State of Florida; g) entered into contracts with and issued products designed and specifically intended to enter the stream of commerce in the United States and, in particular, Florida; h) entered into contracts and performed work including warranty work pursuant to contracts with the Plaintiffs in this case, and/or otherwise i) breached a contract in this state by failing to perform acts, or negligently performed acts, required by the contract to be performed in the State of Florida. 8. At all times material, Plaintiff, ACE AMERICAN INSURANCE COMPANY,
insured the vessel Mr. Depetris owned and is a corporation organized and existing under the laws of Pennsylvania, with its headquarters located in Philadelphia, Pennsylvania. Factual Background 9. At all material times, MARINEMAX 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 Livin The 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 CONROY
A t T O * H t *S JIT LA*
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 4 of 11 PagelD 4
Page 4 of 10 11. On or about April 1, 2011 Mr. Depetris received a phone call from MARINE
MAX who advised they were going to send a technician to his house to perform a recall repair to an exhaust hose on the starboard side. 12. On April 5, 2011 a technician arrived at Mr. Depetris' house advising that he was
there 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 was completed, and the vessel was ready for use. 13. On April 9, 2011 Mr. Depetris had planned to take his family and friends for a
cruise. In early afternoon they departed his residence, idled out to the river, and headed toward the Gulf of Mexico. After passing through a slow speed zone he powered Livin the Dream to a plane and proceeded toward Sanibel Harbor Resort. While in a channel, the bilge alarms went off and smoke was visible. Mr. Depetris shut down the engines, and opened the engine compartment. 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 from the Sanibel Harbor Resort. Subsequently, the incoming water shut the engines down when he was in about six feet of water and the vessel drifted toward the beach. The vessel was immersed in salt water which caused catastrophic damage. 14. The starboard exhaust hose installed by Defendant on April 5, 2011, was either
improperly designed, constructed, manufactured, installed, or integrated; it was also not tested under operating conditions or installed properly, which caused or contributed to causing the sinking at issue. 15. Prior to the sinking Defendant knew of problems identified to it by the
manufacturer pertaining to manufacturing, design or construction defects associated with the
MCALPINCONROY
ATTORNIVS AT LAV
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 5 of 11 PagelD 5 Page5ofl0
exhaust which, if not corrected, posed a potential hazard to the vessel, her owner, family and guests 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 ultimately
caused or contributed to causing the casualty. 17. Pursuant to the terms of a contract of insurance between Plaintiff, ACE
AMERICAN INSURANCE COMPANY and James Depetris, Plaintiff ACE AMERICAN INSURANCE COMPANY paid $512,145.00 to James Depetris, for the total loss associated with the sinking at issue in this litigation and his personal property. ACE has spent 57,983.94 for storage, and S 20,000 for salvage to a salvor. Accordingly, Plaintiff, ACE AMERICAN INSURANCE COMPANY is subrogated at law and in equity to the extent of its payment under the policy to the interests of James Depetris. 18. Plaintiff has retained the law offices of McAlpin Conroy, P.A. to prosecute this
action, and have agreed to pay said attorneys a reasonable fee for their services. 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
»tra»ii'i AT LA
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 6 of 11 PagelD 6 Page 6 of 10
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.
MCALPIN CONROY
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 7 of 11 PagelD 7 Page 7 of 10
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.
MCALPIN CONROY
\ I : i- • : •. • : A LN T A
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 8 of 11 PagelD 8
Page 8 of 10 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
MCALPINCONROY
AiToanE** AT L»W
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 9 of 11 PagelD 9 Page 9 of 10
sent any type of recall notice from the manufacturer MERIDIAN YACHTS, warning of potential starboard hose problems. 30. vessel. 31. After the sinking, James Depetris learned that the vessel manufacturer had given James Depetris relied on MARINEMAX to properly provide safe service to his
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.
McALPIN CONROY
AlIORHir* AT LAW
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 10 of 11 PagelD 10 Page 10 of 10
RESPECTFULLY SUBMITTED, McALPIN CONROY, P.A. 80 SW 8lh Street, Suite 2805 liami, Florida 33130
MICHAEL E. CONROY Florida Bar No.: 845434 MConrov(ajMcAlpinConroy.com JONATHAN H. DUNLEAVY Florida Bar No.: 459666 JDunleavy@McAlpinConrov.com
MCALPIN CONROY
Case 2:11-cv-00693-JES-DNF Document 1
Filed 12/14/11 Page 11 of 11 PagelD 11
f
'"'
'
Case 2:11-cv-00693-JES-DNF Document 1-1
«&JS44 (Rev. 12/07)
Filed 12/14/11 Page 1 of 1 PagelD 12
CIVIL COVER SHEET
The 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 provided by 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 initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS
ACE American Insurance Co.
(b) County of Residence of First Listed Plaintiff Pennsylvania
MarineMax East Inc.
County of Residence of First Listed Defendant L e e C o u n t y , Fl.
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. Attorneys (if Known)
(c)
Attorney's (Firm Name, Address, and Telephone Number)
Michael E. Conrov, McAlpinConroy.P.A. 80 S.W. 8Street,Ste#2805 Miami, Florida 33130
II. BASIS O F J U R I S D I C T I O N O I U.S. Government Plnintiff (Place an "X" in One Box Only) O 3 Federal Question (U.S. Government Not a Party) $£ A Diversity (Indicate Citizenship of Parties in Item III) Citizen or Suhject of a Foreign Country O 3 O 3 I I I . C I T I Z E N S H I P O F P R I N C I P A L PARTIES(Placc an''X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) ITF DEF PTF DEF Citizen of Tin's Stale d 1 O 1 Incorporated or Principal Place D 4 D4 of Business In This State Citizen of Another Stale
02
U.S. Government Defendant
• 2
Incorporated and Principal Place of Business In Another State Foreign Nation
M 5
H 5
a 6 a 6
OTHER STATUTES 3 O 3 3 3 3
IV. NATURE OF SUI r
CONTRACT 3 O 3 3 O O O 110 Insurance 120 Marine 130 Miller Act MO Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery ofOverpaymem of Veteran's Benefits 160 Stockholders'Suits 190 Other Contract 195 Contract Product Liability 196 f-[aiichi.se REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property D
(Place an "X" in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Aincr. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY • 362 Personal Injury Med. Malpractice • 365 Personal Injury Product Liability 3 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 3 370 Other Fraud 3 371 Truth in Lending B 380 Other Personal Property Damage • 385 Property Damage Product Liability PRISONER PLTITIONS O 510 Motions to Vacate Sentence Habeas Corpus: • 530 General O 535 Death Penalty O 540 Mandamus & Other O 550 Civil Rights 3 555 Prison Condition
FORFEITURE/PENALTY O 610 Agriculture O 620 Olher Food & Drug O 625 Drug Related Seizure ofProperty21 USC 881 O 630 Liquor Laws 3 640 R.R.& Truck D 650 Airline Regs. 3 660 Occupational Safety/Health O 690 Other I,A DOR 3 710 Fair Labor Standards Acl 3 720 Labor/Mgmt. Relations • 730 Labor/Mgmt.Rcporting & Disclosure Act 3 740 Railway Labor Act 3 790 Other Labor Litigation • 791 Empl. Ret. Inc. Security Act IMMIGRATION 3 462 Naturalization Application 3 463 Habeas Corpus Alien Detainee 3 465 Other Immigration Actions
BANKRUPTCY O 422 Appeal 28 USC 158 O 423 Withdrawal 28 USC 157
a a a a 0 a
• • a
3 a 3
O • O 3 fl O 3 O • 3 3
a D O O 3 O O
a 3
3 3 3 3
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce PROPERTY RIGHTS 460 Deportation 470 Racketeer Influenced and 820 Copyrights 830 Patent Corrupt Organizalions 840 Trademark 3 480 Consumer Credit D 490 Cable/Sat TV CI 810 Selective Service SOCIAL SECURITY • 850 Securities/Commodities/ Exchange 861 HIA(1395ffl 862 Black Lung (923) • 875 Customer Challenge 863 D1WC/DI WW (405(g)) 12 USC 3410 864 SSID Title XVI • 890 Other Statutory Actions 865 RSI (405(g)) 3 891 Agricultural Acts D-'B92 Economic Stabilization Act FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff QCT393 EnvimiuTiciital Matters or Defendant) ( E)-~89£Encrg^2llocation Act 871 IRS—Third Party 9 rspSjFrcedflHyif Informatioa • • 26 USC 7609 ,;o- Act n Determination, gt/BOOAppeaToTFcc r jj—'j^Unilrr Fqiml Access 3 -';• • . to Jusjjpe c (XiaSQ Constitutionality of .'. ' • 1 ( j — • State-§Ja/utes — —5" ^» r -riO
c ,-npi [r-ig
co
7 __7\ppeal to District 'Wfrom Magistrate Judgment
V. ORIGIN 53 1 Original Proceeding
d
(Place an "X" in One Box Only) 2 Removed from O Slate Court
5 Transferred from u e< Multidistrict n n another district f S S 2 or L tlgat 0 (specify) ' ' " Cite the U.S. Civil Statute under which you are fil ing (Do not cite Jurisdictional statutes unless diversity): Remanded from Appellate Court
a 4
Reinstated or Reopened
n u
5
,
VI. C A U S E O F A C T I O N
Nonstatutory claims (negligence ancfTjreacn or implied warranty)
Brief description of cause: • CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): DEMAND S CHECK YES only if demanded in complaint: JURY DEMAND: DOCKET NUMBER Sf Yes • No
VII. R E Q U E S T E D IN COMPLAINT: VIII. R E L A T E D C A S E ( S )
JUDGE
DATE
MAitdMlf
C$:llwtscttM4lbA

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
Ace American Insurance Company v. Marinemax East Incorporated Complaint.pdf3.75 MB

Like us on facebook!