May 26, 2015
N.M., by and through his wife and guardian, K.M v. RESORT SPORTS LIMITED a/k/a RESORT SPORTS LTD.
Complaint
This is a Complaint filed by the maritime attorneys at Lipcon, Margulies & Winkleman, P.A. involving the personal injury claims of a Jones Act seaman, who was employed as a boat operator. The seaman was injured when the boat that he was working on exploded, causing him to suffer severe burns to 87% of the total surface of his body and further suffer internal inhalation burns and burns to the corneas of his eyes.
IN THE CIRCUIT COURT OF THE
11th JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.
N.M., by and through his
wife and guardian, K.M.
Plaintiff,
v.
RESORT SPORTS LIMITED a/k/a
RESORT SPORTS LTD.
Defendant /
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff (N.M., by and through his wife and guardian, K.M.) sues Defendant (RESORT SPORTS LIMITED) and alleges:
1.This is an action seeking damages in excess of $15,000.00.
2. Defendant, at all times material hereto, personally or through an agent;
a. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county; and/or
b. Were engaged in substantial activity within this state; and/or
c. Operated vessels in the waters of this state; and/or
d. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193; and/or
e. Consented to jurisdiction and venue in this Court; and/or
f.The acts of Defendant set out in this Complaint occurred in whole or in part in this county and/or state.
3. Defendant is subject to the jurisdiction of the Courts of this state.
4. The causes of action asserted in this Complaint arise under the Jones Act, 46 U.S.C. Section 688, and the General Maritime Law of the United States.
5. At all times material hereto, Defendant owned, operated, managed, maintained and/or controlled a fleet of vessels, including but not limited to the vessel, The Galleon (hereinafter “the vessel”).
6. At all times material hereto, Defendant was Plaintiff’s employer.
7. At all times material hereto, Plaintiff was in the service of Defendant’s vessel as a seaman.
COUNT I – JONES ACT NEGLIGENCE
8. Plaintiff re-alleges, incorporates by reference, and adopts paragraphs one (1) through seven (7) as though they were originally alleged herein.
9. On or about February 28, 2015, Plaintiff was employed by Defendant as a seaman and was a member of the vessel’s crew. The vessel was in navigable waters.
10. It was the duty of Defendant to provide Plaintiff with a reasonably safe place to work.
11. On or about February 28, 2015, Plaintiff was injured as a result of an explosion and fire aboard the vessel.
12. Plaintiff’s injuries are due to the fault and negligence of Defendant, and/or its agents, servants, and/or employees as follows:
a. Failure to properly inspect the subject vessel; and/or
b. Failure to properly maintain the subject vessel; and/or
c. Failure to maintain proper and adequate equipment aboard the subject vessel; and/or
d. Failure to promulgate and/or enforce adequate policies and procedures to prevent explosion and fire aboard vessels; and/or
e. Failure to promulgate and/or enforce adequate training and/or supervision to prevent explosion and fire aboard vessels; and/or
f. Failure to promulgate and/or enforce adequate inspection and/or maintenance to prevent explosion and fire aboard vessels; and/or
g. Failure to provide proper safety equipment aboard the subject vessel; and/or
h. Failure to provide proper safety equipment to the Plaintiff; and/or
i. Failure to prevent dangerous conditions leading to the subject explosion and fire; and/or
j. Failure to prevent explosion and/or fire; and/or
k. Failure to prevent dangerous conditions leading to explosion and/or fire; and/or
l. Failure to warn Plaintiff of dangerous conditions leading to explosion and/or fire; and/or
m. Failure to warn Plaintiff of dangers of explosion and/or fire; and/or
n. Failure to provide adequate assistance to Plaintiff; and/or
o. Failure to provide adequate training to Plaintiff; and/or
p. Failure to provide adequate supervision of Plaintiff; and/or
q. Failure to provide adequate crew aboard vessel; and/or
r. Failure to provide adequate crew to inspect and/or maintain and/or service Defendant’s vessels;
All of which caused the Plaintiff severe injury when he was exposed to an explosion and fire aboard the subject vessel.
13. Defendant knew of the foregoing conditions causing Plaintiff’s incident accident and did not correct them, or the conditions existed for a sufficient length of time so that Defendant in the exercise of reasonable care should have learned of them and corrected them.
14. As a result of the negligence of Defendant, the Plaintiff was severely injured about his body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and his working ability and earning capacity has been impaired. The injuries and damages are permanent and continuing in nature, and Plaintiff will continue to suffer the losses and impairments in the future. In addition plaintiff in the past and in the future has lost the fringe benefits that come with plaintiff’s job, including but not limited to found, food, shelter, medical care, etc.
WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.
COUNT II – UNSEAWORTHINESS
15. Plaintiff re-alleges, incorporates by reference, and adopts paragraphs one (1) through seven (7) as though they were originally alleged herein.
16. On or about February 28, 2015, Plaintiff was a seaman and a member of the crew of Defendant’s vessel, which was in navigable waters.
17. At all times material hereto, the vessel was owned, managed, operated andor controlled by Defendant.
18. Defendant had the absolute nondelegable duty to provide Plaintiff with a seaworthy vessel.
19. On or about the previously stated date the unseaworthiness of Defendant’s vessel was a legal cause of injury and damage to the Plaintiff by reason of the following:
a. There was an explosion and fire aboard the subject vessel;
b. The subject vessel was not adequately inspected; and/or
c. The subject vessel was not adequately maintained; and/or
d. There was a failure to maintain proper and adequate equipment aboard the subject vessel; and/or
e. There was a failure to promulgate and/or enforce adequate policies and procedures to prevent explosion and fire aboard vessels; and/or
f. There was a failure to promulgate and/or enforce adequate training and/or supervision to prevent explosion and fire aboard vessels; and/or
g. There was a failure to promulgate and/or enforce adequate inspection and/or maintenance to prevent explosion and fire aboard vessels; and/or
h. There was a failure to provide proper safety equipment aboard the subject vessel; and/or
i. There was a failure to provide proper safety equipment to the Plaintiff; and/or
j. There was a failure to prevent dangerous conditions leading to the subject explosion and fire; and/or
k. There was a failure to prevent explosion and/or fire; and/or
l. There was a failure to prevent dangerous conditions leading to explosion and/or fire; and/or
m. There was a failure to warn Plaintiff of dangerous conditions leading to explosion and/or fire; and/or
n. There was a failure to warn Plaintiff of dangers of explosion and/or fire; and/or
o. There was a failure to provide adequate assistance to Plaintiff; and/or
p. There was a failure to provide adequate training to Plaintiff; and/or
q. There was a failure to provide adequate supervision of Plaintiff; and/or
r. There was a failure to provide adequate crew aboard vessel; and/or
s. There was a failure to provide adequate crew to inspect and/or maintain and/or service Defendant’s vessels; and/or
t. The subject vessel was unfit for its intended purpose; and/or
u. There was a failure to take the subject vessel out of service in a timely manner;
All of which caused the Plaintiff severe injury when he was exposed to an explosion and fire aboard the subject vessel.
20. As a result of the unseaworthiness of Defendant’s vessel, the Plaintiff was severely injured about his body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and his working ability and earning capacity has been impaired. The injuries and damages are permanent and continuing in nature, and Plaintiff will continue to suffer the losses and impairments in the future. In addition plaintiff in the past and in the future has lost the fringe benefits that come with plaintiff’s job, including but not limited to found, food, shelter, medical care, etc.
WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.
COUNT III – FAILURE TO PROVIDE MAINTENANCE AND CURE
21. Plaintiff re-alleges, incorporates by reference, and adopts paragraphs one (1) through seven (7) as though they were originally alleged herein.
22. On or about February 28, 2015, Plaintiff while in the service of the subject vessel as a crew member was injured.
23. Under the General Maritime Law, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendant until Plaintiff is unequivocally declared to have reached maximum possible medical cure.
a. The maintenance to which Plaintiff is entitled to recover includes, but is not limited to advance payment for: food and shelter; medical care and treatment (including psychological care and treatment); and sick wages (including salary and tips which were reasonably anticipated to the end of the contract).
24. Defendant willfully and callously delayed, failed andor refused to pay Plaintiff’s entire maintenance and delayed providing the Plaintiff the level of cure that the Plaintiff requires so that Plaintiff has become obligated to pay the undersigned a reasonable attorney’s fee.
25. Defendant’s failure to pay Plaintiff’s entire maintenance and cure is willful, arbitrary, capricious, and in callous disregard for Plaintiff’s rights as a seaman. As such, Plaintiff would be entitled to attorney’s fees under the General Maritime Law of the United States.
26. Further, Defendant unreasonably failed to pay or provide Plaintiff with maintenance and cure which aggravated his condition and caused Plaintiff to suffer additional compensatory damages including but not limited to the aggravation of Plaintiff’s physical condition, mental condition, disability, pain and suffering, reasonable fear of developing future physical and medical problems, mental anguish, loss of enjoyment of life, feelings of economic insecurity as well as lost earnings or earning capacity, and medical and hospital expenses in the past and into the future.
WHEREFORE, Plaintiff demands all damages entitled by law, including attorneys fees, and demands jury trial of all issues so triable.
COUNT IV – FAILURE TO TREAT
27. Plaintiff re-alleges, incorporates by reference, and adopts paragraphs one (1) through seven (7) as though they were originally alleged herein.
28. On or about February 28, 2015, Plaintiff was employed by Defendant as a seaman and was a member of the vessel’s crew. The vessel was in navigable waters.
29. It was the duty of Defendant to provide Plaintiff with prompt, proper and adequate medical care.
30. Defendants negligently failed to provide Plaintiff with prompt, proper, adequate, and complete medical care. This conduct includes, but is not limited to:
a. Defendant not giving Plaintiff medical care in a timely manner after his initial injury; and/or
b. Defendant attempting to transfer Plaintiff’s medical care to a location which has substandard medical care, equipment, and training, to adequately provide medical care for Plaintiff’s severe and complicated physical and mental conditions.
31. As a direct and proximate result of Defendant’s failure to provide Plaintiff with prompt, proper and adequate medical treatment, Plaintiff suffered additional pain, disability andor Plaintiff’s recovery was prolonged. In addition, the Plaintiff was severely injured about his body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and his working ability and earning capacity has been impaired. The injuries and damages are permanent and continuing in nature, and Plaintiff will continue to suffer the losses and impairments in the future. In addition plaintiff in the past and in the future has lost the fringe benefits that come with plaintiff’s job, including but not limited to found, food, shelter, medical care, etc.
32. This Count is alleged separately from Jones Act Negligence pursuant to Joyce v. Atlantic Richfield Company, 651 F.2d 676 (10th Cir. 1981) which states, in part, “Negligent failure to provide prompt medical attention to a seriously injured seaman gives rise to a separate claim for relief [for which separate damages are awardable].”
WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 S. Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
By: /s/ Jason R. Margulies
JASON R. MARGULIES
FLORIDA BAR NO. 057916
