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CARNIVAL CORPORATION v. OPERADORA AVIOMAR S.A. DE C.V. et al 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.

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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 1 of 12
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: ________________
CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Plaintiff, vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN INSURANCE COMPANY d/b/a ACE USA, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, JOHN DOE 5, JOHN DOE 6, JOHN DOE 7, JOHN DOE 8, JOHN DOE 9, and JOHN DOE 10, Defendants. _______________________________________/ COMPLAINT
COMES NOW, Plaintiff CARNIVAL CORPORATION, d/b/a CARNIVAL CRUISE LINES (“CARNIVAL”), and for its causes of action against defendant OPERADORA AVIOMAR S.A. de C.V. (“AVIOMAR”), ACE AMERICAN INSURANCE COMPANY, d/b/a ACE USA (“ACE AMERICAN”) and JOHN DOES 1-10, and each of them, alleges as follows: GENERAL ALLEGATIONS 1. Subject matter jurisdiction is based on 28 U.S.C. Sections 1331 and 1333, in that
this is an admiralty or maritime claim within the meaning of Fed. R. Civ. P. 9(h) and 14(c). The claims underlying this matter are based upon the Jones Act, 46 U.S.C. 688, and general maritime laws of maintenance and cure and unseaworthiness as detailed below. 2. The parties are citizens of a state and citizens or subjects of a foreign state, but
Mase, Lara, Eversole
Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 2 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
none of the defendants are citizens of the same state as the plaintiff, and the amount in controversy exceeds $75,000, exclusive of costs, interest and attorneys’ fees. 3. Plaintiff CARNIVAL is a corporation organized pursuant to the laws of Panama,
with its principal place of business in Miami, Florida. 4. Plaintiff is informed and believes defendant AVIOMAR is a foreign company
with its principal place of business located in Yucatan, Mexico. 5. Plaintiff is informed and believes defendant ACE AMERICAN is a Pennsylvania
corporation licensed to transact business in the State of Florida and with its principal place of business in Philadelphia, Pennsylvania. 6. Plaintiff is ignorant of the true names and capacities, whether individual,
associates, corporation, partnership or otherwise, of the defendants, JOHN DOES 1 through 10 (individually referred to as “DOES 1 through 10” and collectively referred to as “Doe Defendants”), and therefore sues said Doe Defendants by such fictitious names; that when the true names and capacities of said Doe Defendants are ascertained, Plaintiff will amend this Complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each of said Doe Defendants fictitiously designated herein were negligent and/or otherwise responsible in some manner for the occurrences alleged herein. 7. Venue lies within the Southern District of Florida pursuant to 28 U.S.C. Section
1391(b)(2)-(3) and (d) in that at all relevant times the contractual agreement between CARNIVAL and AVIOMAR contained a forum selection provision, designating the Southern District of Florida as the appropriate forum for disputes among the parties, including the claims alleged by CARNIVAL herein.
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 3 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
8.
Plaintiff owns and operates the vessel CARNIVAL SPIRIT (“Vessel”) which is
used for purposes of passenger cruises. On February 29, 2008, CARNIVAL employed MARIA JAVIER (“Javier”) as a crewmember of the Vessel. 9. On February 29, 2008, while the Vessel was docked in the port of Acapulco,
Mexico, Javier claims she sustained personal injuries in the course of her employment during an ATV tour excursion owned, conducted, operated and controlled exclusively by AVIOMAR (“Incident”) and offered by CARNIVAL as part of their cruise. 10. Plaintiff believes and alleges Omar Hernandez Paredes, an employee or agent of
AVIOMAR, was the driver of the subject ATV at the time of the Incident. 11. In connection with the excursion, AVIOMAR obtained liability coverage under
the International Advantage Commercial Insurance Policy, policy number PHFD36896784 (“Insurance Policy”), from ACE AMERICAN. The Insurance Policy provides liability insurance for, among other things, damages resulting from incidents such as the Incident involving Javier. The Insurance Policy was in effect on the date of the Incident. See Insurance Policy attached hereto as Exhibit “A.” 12. Further, CARNIVAL, as an additional insured under the Insurance Policy, also
obtained liability coverage from ACE AMERICAN. The Insurance Policy provides liability insurance for, among other things, damages resulting from incidents such as the Incident involving Javier. The Insurance Policy was in effect on the date of the Incident. See Exhibit A. 13. As a result of Javier’s alleged injuries, through no fault of its own, CARNIVAL
has paid and/or continues to pay Javier maintenance, cure, and unearned wages (“Maintenance and Cure”) as required under federal maritime law, in excess of $400,000 to date and continuing. 14. In addition to seeking and obtaining Maintenance and Cure, Javier filed suit
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 4 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
against CARNIVAL and others in the United States District Court, Southern District of California, Case No. 09 CV2003LAB WMC, for her alleged injuries claiming a violation of the Jones Act, 46 U.S.C. 688, including claims for Jones Act Negligence and Unseaworthiness and Maintenance and Cure. Said lawsuit was dismissed as against CARNIVAL on grounds that plaintiff’s claims against CARNIVAL were subject to binding arbitration in Panama to be decided in accordance with U.S. (maritime) law. AVIOMAR remains liable to CARNIVAL for any settlement, award, or judgment resulting from any claim by Javier. Case No. 09 CV2003LAB WMC remains pending as to plaintiff’s claims against other defendants. 15. At all times relevant herein, AVIOMAR was an independent contractor to
CARNIVAL and subject to the terms of the “Standard Shore Excursion Independent Contractor Agreement” executed by CARNIVAL and AVIOMAR on or about October 7, 2004, (“Indemnity Agreement”) wherein AVIOMAR expressly agreed: (a) under paragraph 9 to procure and maintain liability insurance against any and all injuries related to its shore excursions and to include CARNIVAL as an additional insured for the same; and (b) under paragraph 10 to indemnify, save, protect and defend and hold harmless CARNIVAL (and its agents and employees) for all losses, claims, liabilities, damages, causes of action, legal fees, and costs and expenses which may arise or be claimed against CARNIVAL related to, in connection with, as a consequence of or arising from the business or operations of AVIOMAR and/or services provided to CARNIVAL and its guests, as well as any breach of the Indemnity Agreement. AVIOMAR expressly agreed to be fully liable for acts of any of its employees, officers, representatives, subcontractors or agents, relating to, in connection with or otherwise arising as a consequence of any of its shore excursions. See Indemnity Agreement attached hereto as Exhibit “B.”
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 5 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
16.
The Incident occurred in the course of a shore excursion subject to and within the
terms of the Indemnity Agreement. 17. CARNIVAL has tendered its defense and sought reimbursement and indemnity
for all past and future damages, claims, expenses and/or judgments incurred by CARNIVAL on behalf of Javier, or as a result of Javier’s injuries as described above, from AVIOMAR to no avail and continues to request and seek the same herein. 18. Through its timely claim for insurance coverage, CARNIVAL has also sought
reimbursement and indemnity for all past and future damages, claims, expenses and/or judgments incurred by CARNIVAL on behalf of Javier, or as a result of Javier’s injuries as described above, from ACE AMERICAN, who wrongfully denied CARNIVAL’s claim. 19. CARNIVAL alleges AVIOMAR is wholly or partially liable to Javier and/or
CARNIVAL for remedy over, contribution, or otherwise on account of the Incident. 20. All conditions precedent to the bringing of this action have occurred, been
discharged, waived or performed. FIRST CAUSE OF ACTION (Breach of Contract against AVIOMAR) 21. 22. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. Javier claims to have been injured during a shore excursion operated and
controlled exclusively by AVIOMAR as set forth above. 23. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL
and has filed suit as set forth above as a result of the Incident. 24. forth above. The shore excursion and Incident are subject to the Indemnity Agreement as set
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 6 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
25.
Under the express terms of the Indemnity Agreement, CARNIVAL is entitled to
be indemnified, defended, insured, and held harmless by AVIOMAR with respect to any and all claims or judgments by or on behalf of Javier, including Maintenance and Cure, and any other claims or expenses related to the Incident as set forth above. 26. AVIOMAR has breached the Indemnity Agreement by failing to indemnify
CARNIVAL in accordance with the terms thereof. 27. AVIOMAR has breached the Indemnity Agreement by failing to defend
CARNIVAL in accordance with the terms thereof. 28. In spite of timely and reasonable demand therefore, AVIOMAR has refused and
continues to refuse to indemnify, defend, insure, hold harmless, or reimburse CARNIVAL in accordance with the terms of the Indemnity Agreement. 29. As a direct and proximate result of AVIOMAR’s breach of the Indemnity
Agreement, Plaintiff has suffered substantial damages. WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,
AVIOMAR, for damages, pre-judgment and post-judgment interest to the extent allowed by law, costs, attorneys’ fees pursuant to the Indemnity Agreement, and for any further relief the Court deems just and proper. SECOND CAUSE OF ACTION (Breach of Contract against ACE AMERICAN) 30. 31. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. Javier claims to have been injured during a shore excursion operated and
controlled exclusively by AVIOMAR as set forth above. 32. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL
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Case 1:11-cv-20687-JLK Document 1
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CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
and has filed suit as set forth above as a result of the Incident. 33. Under the express terms of the Insurance Policy, ACE AMERICAN is obligated
to pay CARNIVAL “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which (the) insurance applies.” See Exhibit A. 34. In spite of timely and reasonable demand therefore, ACE AMERICAN has
breached the Insurance Policy by refusing to pay CARNIVAL for the aforementioned damages in accordance with the terms of the Insurance Policy. 35. As a direct and proximate result of ACE AMERICAN’s breach of the Insurance
Policy, Plaintiff has suffered substantial damages. WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant, ACE AMERICAN, for damages, pre-judgment and post-judgment interest to the extent allowed by law, costs, attorneys’ fees pursuant to the Insurance Policy, and for any further relief the Court deems just and proper. THIRD CAUSE OF ACTION (Equitable Indemnity against AVIOMAR) 36. 37. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. Javier claims to have been injured during a shore excursion operated and
controlled exclusively by Defendants as set forth above. 38. Javier has sought and continues to seek Maintenance and Cure from CARNIVAL
and has filed suit as set forth above as a result of the Incident. 39. CARNIVAL is informed and believes Javier alleges AVIOMAR and its
employees and agents were negligent in their operation of the subject shore excursion or are in
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 8 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
some other actionable manner legally responsible for the Incident and for proximately causing the injuries to and/or damage allegedly incurred by Javier. 40. CARNIVAL herein denies it is in any way responsible for the events or
occurrences or damages (current or future) claimed by or injuries allegedly sustained by Javier as a result of the Incident, or for proximately causing the same. However, if CARNIVAL is held responsible to Javier for any of the matters set forth above, it is entitled to total equitable indemnity from the Defendants for any loss suffered or expense incurred or judgment paid, including any costs, attorneys’ fees, Maintenance and Cure, and other expenses which have been, or in the future may be, incurred in that CARNIVAL’s liability will be based (if at all) on only passive or secondary negligence arising as a legal result of the active and primary negligence of the Defendants. WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,
AVIOMAR, indemnifying CARNIVAL for any liability attributed to it as a result of AVIOMAR’s acts or omissions, and for any further relief the Court deems just and proper. FOURTH CAUSE OF ACTION (Contribution against AVIOMAR) 41. 42. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. CARNIVAL denies it either caused or contributed to the Incident or damages
alleged or claimed by Javier as set forth above. In the event, however, CARNIVAL is held liable for the alleged Incident, claims or damages incurred by Javier, which liability is specifically denied, CARNIVAL is entitled to indemnity and contribution from AVIOMAR’s corresponding to their respective fault, negligence, carelessness or willful misconduct. WHEREFORE, Plaintiff, CARNIVAL, demands judgment against Defendant,
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 9 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
AVIOMAR, requiring that it be responsible to CARNIVAL for AVIOMAR’s pro rata share of liability, and for any further relief the Court deems just and proper. FIFTH CAUSE OF ACTION (Declaratory Relief against AVIOMAR) 43. 44. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. As a result of AVIOMAR’s actions, an actual controversy has arisen and now
exists between CARNIVAL and AVIOMAR concerning their respective rights, duties and/or financial obligations with respect to the Incident and the injuries or damages alleged to have been suffered by Javier. CARNIVAL asserts and has asserted that in the event and to the extent it is subject to any liability to Javier in any action, including arbitration or otherwise, or for any claim or expense related to the Incident, including past and future payment of Maintenance and Cure, it is entitled to be indemnified by AVIOMAR for the full amount of any loss suffered or judgment or expense paid by CARNIVAL to Javier, if any, including all costs, reasonable attorneys fees and other expenses which have been, and in the future may be incurred. CARNIVAL is informed and believes that AVIOMAR disputes this contention and denies liability to Javier and to CARNIVAL arising out of the facts and circumstances set forth herein. 45. CARNIVAL desires a judicial determination of its respective rights and duty of
AVIOMAR with respect to the damages, claims and other relief sought by Javier as set forth above. In particular, CARNIVAL desires a declaration of the respective liabilities of
CARNIVAL and AVIOMAR for damages, Maintenance and Cure obligations, and other claims or expenses (if any) and a declaration that AVIOMAR is obligated to insure, defend and hold harmless CARNIVAL by virtue of the express terms of the Indemnity Agreement.
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Case 1:11-cv-20687-JLK Document 1
Entered on FLSD Docket 02/28/2011 Page 10 of 12
CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
46.
Such a declaration is necessary and proper at this time in order that CARNIVAL
may ascertain its rights and duties with respect to the claims of Javier as set forth above including past and future liability for Maintenance and Cure, any judgment resulting from the case filed by Javier in United States District Court, Southern District of California, and/or any subsequent arbitration award or judgment in this or any other court or forum. WHEREFORE, Defendant, CARNIVAL, demands declaratory judgment that
AVIOMAR is obligated to (1) indemnify CARNIVAL for the full amount of any Maintenance and Cure paid by CARNIVAL to Javier as a result of the Incident, including all past and any future payment of the same, and (2) defend CARNIVAL in any action or arbitration by Javier against CARNIVAL related to the Incident and indemnify CARNIVAL for the full amount of any loss suffered and judgment paid by it as a result of the same and for the full amount of such costs, attorneys’ fees and other expenses CARNIVAL may be required to incur in the conduct of the defense of such action or arbitration, and for any further relief the Court deems just and proper. SIXTH CAUSE OF ACTION (Declaratory Relief against ACE AMERICAN) 47. 48. CARNIVAL incorporates herein by reference the allegations of paragraphs 1-20. As a result of ACE AMERICAN’s actions, an actual controversy has arisen and
now exists between CARNIVAL and ACE AMERICAN concerning their respective rights, duties and/or financial obligations with respect to the Incident and the injuries or damages alleged to have been suffered by Javier. CARNIVAL asserts and has asserted that in the event and to the extent it is subject to any liability to Javier in any action, including arbitration or otherwise, or for any claim or expense related to the Incident, including past and future payment
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Case 1:11-cv-20687-JLK Document 1
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CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
of Maintenance and Cure, it is entitled to be indemnified by AVIOMAR for the full amount of any loss suffered or judgment or expense paid by CARNIVAL to Javier, if any, including all costs, reasonable attorneys fees and other expenses which have been, and in the future may be incurred. CARNIVAL is informed and believes that ACE AMERICAN disputes this contention and denies liability to CARNIVAL arising out of the facts and circumstances set forth herein. 49. CARNIVAL desires a judicial determination of its respective rights and duty of
ACE AMERICAN with respect to the damages, claims and other relief sought by Javier as set forth above. In particular, CARNIVAL desires a declaration of the respective liabilities of CARNIVAL and ACE AMERICAN for damages, Maintenance and Cure obligations, and other claims or expenses (if any) and a declaration that ACE AMERICAN is obligated to insure CARNIVAL by virtue of the express terms of the Insurance Policy. 50. Such a declaration is necessary and proper at this time in order that CARNIVAL
may ascertain its rights and duties with respect to the claims of Javier as set forth above including past and future liability for Maintenance and Cure, any judgment resulting from the case filed by Javier in United States District Court, Southern District of California, and/or any subsequent arbitration award or judgment in this or any other court or forum. WHEREFORE, Defendant, CARNIVAL, demands declaratory judgment that ACE AMERICAN is obligated to (1) indemnify CARNIVAL for the full amount of any Maintenance and Cure paid by CARNIVAL to Javier as a result of the Incident, including all past and any future payment of the same, and (2) defend CARNIVAL in any action or arbitration by Javier against CARNIVAL related to the Incident and indemnify CARNIVAL for the full amount of any loss suffered and judgment paid by it as a result of the same and for the full amount of such costs, attorneys’ fees and other expenses CARNIVAL may be required to incur in the conduct of
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Case 1:11-cv-20687-JLK Document 1
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CARNIVAL CORPORATION vs. OPERADORA AVIOMAR S.A. de C.V., ACE AMERICAN, et al.
the defense of such action or arbitration, and for any further relief the Court deems just and proper. Dated: February 28, 2011 Respectfully submitted, MASE LARA EVERSOLE, P.A. Attorneys for Plaintiff 2601 South Bayshore Drive Suite 800 Miami, Florida 33133 Telephone: (305) 377-3770 Facsimile: (305) 377-0080
By:
/s/ Richard Greiffenstein CURTIS J. MASE Florida Bar No.: 478083 cmase@mletrial.com RICHARD GREIFFENSTEIN Florida Bar No. 0058948 rgreiffenstein@mletrial.com
18110/CP#24v2
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