Beruflich Dokumente
Kultur Dokumente
IN ADMIRALTY
VS.
KATHLEEN RAMSAY,
Defendant/Counter Plaintiff.
COMES NOW the defendant/counter plaintiff, Kathleen Ramsay, by and through her
Federal Rules of Civil Procedure 12(b)(6). Rule 12(b)(6) is a Motion to Dismiss for a
failure to state a claim upon which relief can be granted and tests the overall sufficiency
of the claim. The Motion is not utilized for the purposes of resolving factual issues.
There must be showing beyond any doubt that the plaintiff cannot prove any set of facts
that would entitle the plaintiff, or in this case, the defendant/counter plaintiff, to relief.
recognized under the law and provides a contractual responsibility. The counsel for the
contract but the basic fact is that in a cure and maintenance situation the ship owner has
medical cure until the seaman reaches a point of maximum medical improvement. This is
an obligation, it is interpreted as a contract and when one party does not perform that
contract it is considered to be a breach. The maintenance and cure obligation is not based
provide the subject benefits in the event that a seaman is injured or becomes ill in the
course of his employment for the vessel, and is in service of the vessel. In the case of
Alguilar v. Standarti Oil Co. of New Jersey, 318 U.S. 724, 63 S.C. 930, 87 LED 1007
(1943) and Tare v. American Tugs, Inc., 634 F.2d 869 (5th Circuit 1981), the court
clearly recognized it as being a contractual relationship that some courts have given an
interpretation of quasi contract or unwritten contract which does not change the fact that
cure and maintenance is a contractual relationship. This particular argument is not overly
relevant in view of the fact that the defendant/counter plaintiff is making an argument that
there is an independent tort for the actions of the plaintiff/counter defendant in the
The contractual argument is largely based upon the fact that it is expected that the
plaintifffcounter defendant would raise an objection, much as has been done, that in a
on breach of contract. Thus, the independent tort in this instance is still argued by the
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defendant/counter plaintiff as being based on an original contractual relationship, but not
having a contractual relationship does not change the fact as to the outrageous conduct
which created the independent tort on the part of the plaintiff/counter defendant. As set
wrote letters and provideA guarantees to the defendant/counter plaintiff that if she
dropped claims under the Longshore & Harbor Workers’ Compensation Act and any
other legal action, that the plaintiff/counter defendant would provide coverage under the
Jones Act, unseaworthiness and would provide cure maintenanc~ and, in fact, the
plaintiff/counter defendant did provide some cure and maintenance benefits. Then
suddenly, the plaintiff/counter defendant moves for a declaratory judgment after making
defendant/counter plaintiff dropped all of her claims in any other forum that the
plaintiff/counter defendant would accept jurisdiction with the claimant being accepted as
a seaman.
There is certainly sufficient facts here of outrageous conduct on the part of the
plaintiff/counter defendant. The facts in this case support the essential elements of the
claim that there is an independent tort as to the conduct of the plaintiff/counter defendant
in their actions in this claim. This is not based upon the maritime cause of action but is
an additional action that originated after the maritime accident and becomes an
independent tort recognized under Florida law. Dismissals under Federal Rules of Civil
Procedure 12(b)(6) are not favored by the Federal court and the Federal courts have a
liberal pleading policy under the Federal Rules of Civil Procedure that should further
prevent the court from dismissing the claim. The standards under the Federal Rules of
Civil Procedure, Rule 12(b)(6) are very stringent and the court rarely encounters
circumstances that justify granting such a motion. See Mahone)’ v. Addieks Utility
Dist. 836 F.2d 921,926 5’h Cir. (1988). Quoting from the court on page 926:
independent tort for a breach of contract. This independent tort allows for obtaining both
MEMORANDUM OF LAW
Interpretations in the Federal and the state court are ripe with decisions allowing
pertinent case is that of Serinn v. Albertson’s, Inc. 744 F.2d Supp., Middle District of
Florida (1990). This was a case decided on summary judgment by Judge Kovacovich
Kovacovich found:
"The general rule in Florida is that punitive damages are not recoverable
for a breach of contract claim unless the acts constituting a breach of
contract also amount to a cause of action in tort."
"The First District Court of Appeal of Florida stated, Florida has long
since joined the majority view in the United States in holding that
recovery for purely economic losses under a negligent tort theory is
normally not allowed absent a claim for personal injuries or property
damage."
Serina case, supra, the court recognized there can be an interlacing of the facts between
In the instant case what is argued is that the obligation under the contract is to pay
the individual for cure and maintenance benefits. It is an absolute obligation to be paid in
a timely manner. The independent tort in this is the bad faith on the part of the
importantly, they have breached this contract in an intentional way such that they had
convinced the defendant/counter plaintiff to dismiss all other claims in order to pursue
her claim under the maritime law, that the plaintiff/counter defendant promised to provide
benefits under the cure and maintenance provisions and then filed a declaratory judgment
once the defendant/counter plaintiff had abandoned all other actions. This borders on
some other type of intentional act such as fraud or bad faith. The plaintiff/counter
defendant would allege this is similar to the punitive damage claim springing out of cure
and maintenance. As previously mentioned by this court, that particular type of claim is
only recognized by two or three circuit courts and is legally questioned at the present
time. But, this independent action is not based simply on the failure to pay and the failure
to provide cure benefits, but the absolutely outrageous action on the part of the
general maritime law, and then filing for a declaratory judgment to absolve them of their
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own representations and also in not investigating, not making any effort to pay these cure
Florida cases are ripe with claims allowing for punitive damages and other
compensatory type of damages when there is a breach of contract and physical and
damages in a case such as the instant case, reference is made to the works of the well
known author on contracts, Corbin, in his 2001 Spring Cumulative Supplement, Lexis
Volume 5, § 1077, in the discussion pertaining to the availability of punitive damages for
The findings must answer inquiries posed by the evidence concerning the
intent of the transgressing party and the nature of the injury caused (e.g.,
breach of contract as opposed to breach of a duty arising parallel to the
contractual relationship)."
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In the instant case, the failure to pay cure and maintenance benefits in and of itself
may provide for attorney’s fees under the cure and maintenance and further may provide
for punitive damages, a matter to be determined by the United States Supreme Court.
However, what is being argued here is that when the situation is such that an independent
tort has been created by either the intentional wrongdoing of, or the grossly negligent
conduct of, the defendant. In other words, what is being argued is that when it is obvious
and without opposition that cure and maintenance benefits are due, that this becomes an
intentional act or a grossly negligent act upon the actor for having done nothing to
provide the individual who is in dire straits without medical care or maintenance benefits.
the instant case, as already argued, takes on a much more nefarious character by the fact
that the plaintiff/counter defendant has provided guarantees to the availability of maritime
relief and then, to the detriment of the defendant/counter plaintiff, changes it’s entire
alleging, or at least placing in interrogatories and admissions that they are not sure
whether or not the defendant/counter plaintiff comes under the Longshore Act or general
maritime law. In other words, in every maritime case in the future, the injured maritime
employee will be hung out to dry until some court action determines the applicability of a
particular law. Certainly, at the very least the plaintiff/counter defendant could have
taken the position the defendant/counter plaintiff comes under the Longshore Act and
provided some benefits to the defendant/counter plaintiff, which probably would have
obviated the availability of the independent tort being argued in this case.
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In the case of Kirkse~, v. Jernigan 45 So.2d 188 (1950), the Florida Supreme
damages involving breach of contract and breach of duty. On page 189 of the decision,
"This court is committed to the rule, and we re-affirm it herein, that there
can be no recovery for mental pain and anguish unconnected to physical
injury in an action arising out of a negligent breach of contract whereby
simple negligence is involved, but we do feel constrained to extend this
rule to cases founded purely in tort where the wrongful act is such as to
reasonably imply malice or where from the entire want of care of attention
to duty or great indifference to the persons, property, or rights of others,
such malice will be imputed as would justify the assessment of exemplary
or punitive damages."
In the case of Griffith v. Shamrock Village 94 So.2d 854 (1957), the Florida
Supreme Court again considered the issue pertaining to the obtaining of exemplary or
punitive damages regarding a breach of contract. Quoting from the court on page 858:
"The general rule is that punitive damages are not recoverable for breach
of contract irrespective of the motive of the defendant, but where the acts
constituting a breach of contract also amount to a cause of action in tort,
there may be recovery of exemplary damages upon proper allegations of
proof. In order to permit a recovery, however, the breach must be attended
by some intentional wrong, insult, abuse or gross negligence which
amounts to an independent tort.
In the case of The City ofSebring v. Avant, 1928 95 Fla. 960, 117 So. 383
and other related cases this court has defined gross negligence as a want of
slight care."
Numerous other cases have fully and continually recognized this right to an
While it may be possible for the plaintiff/counter defendant to argue at some later
time based on facts, that there should be a summary judgment or directed verdict when
utilizing the facts, in the instant case. The only question raised is whether or not there
exists a cause of action allowing the claim for an independent tort as a result of the
regarding the defendant/counter plaintiff’s receipt of cure and maintenance benefits. This
is a fully recognized independent tort and at the very least the court should deny their
Motion to Dismiss since the action exists and as mentioned, since it is not favored for the
court to grant a Motion to Dismiss based on 12(b) of the Federal Rules of Civil
Procedure.
to apply for a summary judgment since the fact exist that do not allow for a basis of the
independent tort, then the court may utilize the appropriate remedy. In any event, if for
some reason this honorable court is inclined to dismiss Count IV of the defendant/counter
plaintiff’s counter claim, it is requested this honorable court will allow for an amendment
I HEREBY CERTIFY that a copy of the foregoing has been furnished by certified
U.S. Mail on this 14th day of September 2001 to Ted Shinkle, Esquire, P. O. Box 1870,
RES~PECTFULLY SUBMITTED: /~