GIOVANNI COCO, Plaintiff, vs. CARNIVAL CORPORATION, Defendant.

Lipcon, Margulies & Winkleman, P.A

October 20, 2015

IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.
GIOVANNI COCO,
Plaintiff,
vs.
CARNIVAL CORPORATION,
Defendant.
                                                            /
COMPLAINT WITH DEMAND FOR JURY TRIAL
Plaintiff sues Defendant and alleges:
1. This is an action seeking damages in excess of $15,000.

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.
b. Was engaged in substantial activity within this state.
c. Operated vessels in the waters of this state.
d. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193.
e. 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 Florida.

4. The causes of action asserted in this Complaint arise under the Jones Act, 46 U.S.C.
Filing # 33431392 E-Filed 10/20/2015 10:31:49 AM
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Section 688; the Doctrine of Unseaworthiness under the General Maritime Law of the United States.

5. Plaintiff Giovanni Coco was employed by Defendant from 1972 to 1979. At all times material, Plaintiff was a Jones Act seafarer.

6. At various times, Plaintiff lived and worked aboard the Defendant’s vessels including the Carnivale and Mardi Gras. Plaintiff worked as an engineer/supervisor. The vessels were all in navigable waters at the time plaintiff worked on them.

7. Throughout Plaintiff’s career while working as a Jones Act Seafarer with Carnival, Plaintiff was routinely exposed to asbestos in a friable form.

8. As a result of this frequent and prolonged exposure, Plaintiff developed mesothelioma. 9. Plaintiff was diagnosed with mesothelioma on or about April of 2015, and given only months to live.

10. Pursuant to the delayed discovery rule, the statute of limitations for Plaintiff’s claims does not begin to run until the date of this diagnosis. Despite the fact that the alleged tortious conduct began decades ago, the uniform position under the General Maritime Law is that “a cause of action “accrues” when the plaintiff knew or should have known of his injury and its cause.” White v. Mercury Marine, 129 F. 3d 1428, 1435 (11th Cir. 1997). This Complaint is filed within the three
years after the date that the plaintiff both discovered that he had mesothelioma and discovered the cancer was caused by exposure to asbestos on Defendant’s vessels.

11. At all times material hereto, Defendant owned, operated, managed, maintained and/or controlled the vessels aboard which the Plaintiff worked.

12. “Asbestos and/or asbestos- containing products” as used in this Complaint means
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asbestos as well as any and all materials, products, supplies, and/or goods containing or including asbestos in whole or in any mixture (including contaminant) with other materials.

COUNT I
JONES ACT NEGLIGENCE

Plaintiff adopts the allegations contained in paragraphs one through twelve as if set out in full herein and alleges:
13. It was the duty of the Defendant to provide Plaintiff with a reasonably safe place to work.

14. Plaintiff has been seriously and permanently injured due to the fault and negligence of the Defendant, and or its agents, servants, and/or employees as follows:
a. Failure to use reasonable care to provide and maintain a safe place to work for Plaintiff, fit with proper and adequate machinery, crew and equipment.
b. Failure to use reasonable care to provide Plaintiff a safe place to work.
c. Failure to promulgate and enforce reasonable rules and regulations to insure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on said vessel.
d. Failure to use reasonable care to provide Plaintiff with a safe place to work by reason of the following:

1) Exposing plaintiff to asbestos and/or asbestos containing products on board Defendant’s vessels; and/or

2) Failing to take reasonable precautions or to exercise reasonable care to adequately or sufficiently warn plaintiff and other persons similarly situated, of the

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risks, dangers and harm, to-wit: death and/or contracting of the diseases of asbestosis, mesothelioma and other forms of cancers, to which they were exposed by working with, contact with, use, handling and exposure to asbestos and/or asbestos containing products and the inhalation of the asbestos dust and fibers resulting from the ordinary and foreseeable use of said asbestos and/or asbestos containing products; and/or

3) Failing to use substitute materials for asbestos known to Defendant and unknown to the Plaintiff and/or plaintiff which could have been used on board Defendant’s vessels; and/or

4) Failing to adequately warn plaintiff of the dangerous characteristics of asbestos and/or asbestos containing products in that Defendant failed to warn plaintiff that he could develop fatal injuries including, but not limited to, asbestosis, mesothelioma and/or other forms of cancer, as a result of being exposed to asbestos and/or asbestos related product on Defendant’s vessels; and/or

5) Failing to provide plaintiff with information as to what would be reasonably safe and sufficient wearing apparel and proper protective equipment and appliances, if in truth there were any, to protect plaintiff from being harmed, disabled and killed by exposure to asbestos and/or asbestos materials on board Defendant’s vessels; and/or

6) Failing to place adequate warnings in the areas of asbestos and/or asbestos containing materials on board Defendant’s vessels; and/or

7) Failing to warn plaintiff of the dangers to his health of coming in contact with

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said asbestos and/or asbestos containing materials and of the gravity of the risk and extent of danger that plaintiff was exposing himself by working with and being exposed to said asbestos on board Defendant’s vessels; and/or

8) Failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce a safety plan and a safe method of handling and working near or with asbestos and/or asbestos containing materials on Defendant’s vessels; and/or

9) Failing to utilize a substitute material to eliminate asbestos fibers on Defendant’s vessels; and/or

10) Failing to utilize the available substitute materials for asbestos fibers on Defendant’s vessels; and/or

11) Failing to remove all of said asbestos and/or asbestos containing products from Defendant’s vessels upon ascertaining that said asbestos and/or asbestos containing products would cause asbestosis, scarred lungs, respiratory disorders, and various forms of cancer, some or all of which are permanent and fatal; and/or

12) Failing to adequately inspect Defendant’s vessels for asbestos and/or asbestos containing products before allowing plaintiff to work and live in areas with exposure to said asbestos and/or asbestos containing products; and/or

13) Failing to advise plaintiff, knowing that he had been exposed to the inhalation of the asbestos dust and fibers, to cease all future exposure to the inhalation of all types of other fumes, smoke, dust and fibers, to keep dust and fibers on work clothes and tools away from his living environment, to be examined by a lung specialist to determine the nature and the extent of any and all disease caused by such exposure

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and inhalation and to receive any available medical treatment for such diseases; and/or

14) Failing to minimize or remove the risk of asbestos exposure to plaintiff on board Defendant’s vessels.
e. Failure to use reasonable care to make reasonable and periodic inspections of the vessel and its equipment.
f. Failure to provide adequate training, instruction, and supervision to crew members and Plaintiff.
g. Failure to have proper and adequate procedures in effect with respect to providing medical care to crew members and plaintiff.
h. Failure to ascertain the cause of prior similar incidents so as to take measures to prevent their re-occurrence, and more particularly Plaintiff’s death.
i. Failure to follow sound management practices with the goal of providing Plaintiff a safe place to work. Prior to Plaintiff’s death, Defendant failed to investigate the hazards to crew members and then take the necessary steps to eliminate the hazards, minimize the hazard or warn Plaintiff of the danger from the hazard.

15. Defendant knew of the foregoing conditions causing Plaintiff’s death 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.

16. As a result of the negligence of Defendant, their agents and/or employee, the Plaintiff was exposed to and did inhale asbestos fibers of asbestos and/or asbestos containing products on board Defendant’s vessels. Said exposures directly and proximately caused plaintiff

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to develop mesothelioma in addition to other related physical conditions which have resulted in and directly caused plaintiff to suffer bodily injuries and imminent death. Plaintiff has suffered physical pain, mental anguish, bodily injury, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions therefrom, suffered physical handicap, lost wages and his working ability was impaired.
WHEREFORE, Plaintiff demands judgement for all damages recoverable under the law against the Defendant and demands trial by jury.

COUNT II
UNSEAWORTHINESS

The Plaintiff adopts paragraphs one through twelve as if set out in full herein.

17. The unseaworthiness of Defendant’s vessel occurred in whole or in part in Miami, Florida, within the territorial waters of this State, and within a marine league from shores of this state.

18. At all times material hereto, the subject vessel(s) was owned, managed, operated and/or controlled by Defendant.

19. Defendant had the absolute non-delegable duty to provide Plaintiff with a seaworthy vessel and to provide him with proper medical care.

20. On or about the previously stated date the unseaworthiness of Defendant’s vessels which were not reasonably fit for its intended use, was the legal cause of injury and damage to Plaintiff by reason of the following:
a. Failure to use reasonable care to provide and maintain a safe place to work for Plaintiff, fit with proper and adequate machinery, crew and equipment.
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b. Failure to use reasonable care to provide Plaintiff a safe place to work.
c. Failure to promulgate and enforce reasonable rules and regulations to insure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on said vessel.
d. Failure to use reasonable care to provide Plaintiff with a safe place to work by reason of the following:

1) Exposing plaintiff to asbestos and/or asbestos containing products on board Defendant’s vessels; and/or

2) Failing to take reasonable precautions or to exercise reasonable care to adequately or sufficiently warn plaintiff and other persons similarly situated, of the risks, dangers and harm, to-wit: death and/or contracting of the diseases of asbestosis, mesothelioma and other forms of cancers, to which they were exposed by working with, contact with, use, handling and exposure to asbestos and/or asbestos containing products and the inhalation of the asbestos dust and fibers resulting from the ordinary and foreseeable use of said asbestos and/or asbestos containing products; and/or

3) Failing to use substitute materials for asbestos known to Defendant and unknown to the Plaintiff and/or plaintiff which could have been used on board Defendant’s vessels; and/or

4) Failing to adequately warn plaintiff of the dangerous characteristics of asbestos and/or asbestos containing products in that Defendant failed to warn plaintiff that he could develop fatal injuries including, but not limited to, asbestosis, mesothelioma and/or other forms of cancer, as a result of being exposed to asbestos and/or asbestos

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related product on Defendant’s vessels; and/or

5) Failing to provide plaintiff with information as to what would be reasonably safe and sufficient wearing apparel and proper protective equipment and appliances, if in truth there were any, to protect plaintiff from being harmed, disabled and killed by exposure to asbestos and/or asbestos materials on board Defendant’s vessels; and/or

6) Failing to place adequate warnings in the areas of asbestos and/or asbestos containing materials on board Defendant’s vessels; and/or

7) Failing to warn plaintiff of the dangers to his health of coming in contact with said asbestos and/or asbestos containing materials and of the gravity of the risk and extent of danger that plaintiff was exposing himself by working with and being exposed to said asbestos on board Defendant’s vessels; and/or

8) Failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce a safety plan and a safe method of handling and working near or with asbestos and/or asbestos containing materials on Defendant’s vessels; and/or

9) Failing to utilize a substitute material to eliminate asbestos fibers on Defendant’s vessels; and/or

10) Failing to utilize the available substitute materials for asbestos fibers on Defendant’s vessels; and/or

11) Failing to remove all of said asbestos and/or asbestos containing products from Defendant’s vessels upon ascertaining that said asbestos and/or asbestos containing products would cause asbestosis, scarred lungs, respiratory disorders, and various

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forms of cancer, some or all of which are permanent and fatal; and/or

12) Failing to adequately inspect Defendant’s vessels for asbestos and/or asbestos containing products before allowing plaintiff to work and live in areas with exposure to said asbestos and/or asbestos containing products; and/or

13) Failing to advise plaintiff, knowing that he had been exposed to the inhalation of the asbestos dust and fibers, to cease all future exposure to the inhalation of all types of other fumes, smoke, dust and fibers, to keep dust and fibers on work clothes and tools away from his living environment, to be examined by a lung specialist to determine the nature and the extent of any and all disease caused by such exposure and inhalation and to receive any available medical treatment for such diseases; and/or

14) Failing to minimize or remove the risk of asbestos exposure to plaintiff on board Defendant’s vessels.
e. Failure to use reasonable care to make reasonable and periodic inspections of the vessel and its equipment.
f. Failure to provide adequate training, instruction, and supervision to crew members and Plaintiff.
g. Failure to have proper and adequate procedures in effect with respect to providing medical care to crew members and plaintiff.
h. Failure to ascertain the cause of prior similar incidents so as to take measures to prevent their re-occurrence, and more particularly Plaintiff’s death.
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i. Failure to follow sound management practices with the goal of providing Plaintiff a safe place to work. Prior to Plaintiff’s death, Defendant failed to investigate the hazards to crew members and then take the necessary steps to eliminate the hazards, minimize the hazard or warn Plaintiff of the danger from the hazard.

21. As a result of the unseaworthiness of the vessel, Plaintiff was exposed to and did inhale asbestos fibers of asbestos and/or asbestos containing products on board Defendant’s vessels. Said exposures directly and proximately caused plaintiff to develop injuries including but not limited to, asbestosis, mesothelioma, and/or other forms of cancer in addition to other related physical conditions which have resulted in and directly caused plaintiff to suffer bodily injuries and imminent death. Plaintiff has suffered physical pain, mental anguish, bodily injury, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions therefrom, suffered physical handicap, lost wages and his working ability was impaired.

WHEREFORE, Plaintiff demands judgement for all damages recoverable under the law against the Defendant and demands trial by jury.
DATED October 20, 2015

LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
Miami, Florida 33131
Telephone: (305) 373 – 3016
Facsimile: (305) 373 – 6204
By: /s/ Michael Winkleman
Michael A. Winkleman
Florida Bar No. 36719