IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

IN ADMIRALTY

STERLING CASINO LINES, L.P.

Plaintiff/Counter Defendant CASE NO.: 6:01-CV-276-ORL-19-JGG

VS.

KATHLEEN RAMSAY,
Defendant/Counter Plaintiff.

DEFENDANT/COUNTER PLAINTIFF’S RESPONSE TO

PLAINTIFF/COUNTER DEFENDANT’S MOTION TO DISMISS

COMES NOW the defendant/counter plaintiff, Kathleen Ramsay, by and through her

undersigned attorney, and responds to plaintiff/counter defendant’s Motion to Dismiss as

to the fourth count of the Amended Complaint submitted by the defendant/counter

plaintiff‘and would state.

The plaintiff/counter defendant moves for a Motion to Dismiss primarily on

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.

See Garrett v. Mortgage Company 938 F.2d 591.

The elements of the claim submitted by the defendant/counter plaintiff in the

Amended Complaint provide for recognition of a contractual relationship between the

plaintiff/counter defendant and the defendant/counter plaintiff. This relationship is

recognized under the law and provides a contractual responsibility. The counsel for the

plaintiff/counter defendant can try to apply semantic interpretations to the meaning of

contract but the basic fact is that in a cure and maintenance situation the ship owner has

an absolute responsibility to the injured seaman to provide maintenance benefits and

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

upon fault, it is not affected by contributory negligence, but is an outright obligation to

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

treatment of the defendant/counter plaintiff with or without a contract.

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

contractual relationship there is no availability for punitive damages or emotional distress

on breach of contract. Thus, the independent tort in this instance is still argued by the

2
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

forth in the defendant/counter plaintiff’s amended Count IV, it will be proven, or

evidence will be submitted to indicate that the plaintiff/counter defendant previously

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

previous representations as to coverage as a seaman for a declaration that in fact the

defendant/counter plaintiff is not a seaman. This is in contradiction to the

plaintiff/counter defendant’s previous representations, promises and obligations that if the

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:

"We begin by recognizing that motions to dismiss for failure to state a

claim are disfavored in the law and, therefore, that a court will only rarely
encounter circumstances which justify granting such a motion."

What is being argued is that Florida law provides for recognition of an

independent tort for a breach of contract. This independent tort allows for obtaining both

damages for physical and mental injury.

MEMORANDUM OF LAW

Interpretations in the Federal and the state court are ripe with decisions allowing

for punitive damages in a breach of a responsibility or a contractual relationship. A

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

regarding a claim by an individual as to payments for bonuses. On page 115 Judge

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."

Judge Kovacovich then on page 117 of the decision stated:

"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."

Obviously the defendant/counter plaintiff in this claim has alleged physical as

well as mental injury as a result of the conduct of plaintiff/counter defendant. In the

Serina case, supra, the court recognized there can be an interlacing of the facts between

the breach of contract and the tort action.

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

plaintiff/counter defendant in failing to responsibly perform their obligation, and more

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

employer/carder in promising to provide benefits under cure and maintenance and

general maritime law, and then filing for a declaratory judgment to absolve them of their

5
own representations and also in not investigating, not making any effort to pay these cure

and maintenance benefits. It is alleged this is the independent tort.

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

mental damage. In determining whether or not there is the availability of punitive

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

Publishing, Volume 5 (1964 original edition) edition of Corbin on Contracts, and in

Volume 5, § 1077, in the discussion pertaining to the availability of punitive damages for

breach of contract, the following rendition from the text is submitted:

"There is a great deal of confusion and insufficient analysis in the cases

(and other authorities for that matter) regarding just when punitive
damages ought to be available in a contract action. Much of the problem
seems to rest in the generalized abolition of formal pleading in favor of the
modem, notice-pleading approach. Courts often struggle with the dividing
line between contract and tort causes of action, seldom recognizing that
Professor Corbin has already provided a solution to the problem in his
suggestion in this section of the treatise that it should be inquired whether
punitive damages are recoverable in contract actions when the conduct of
the defendant rises to the level of a tort. Notice that this statement
acknowledges the rejection of rigid pleading forms, but at the same time
preserves the analytical distinction between injury and contract wrong. It
may be inferred from Professor Corbin’s approach that the inquiry ought
to have a factual element within which there are issues to be resolved by
the jury. The correct analysis may be summarized as follows:

A plaintiff may recover punitive damages in an action that alleges

wrongs by the defendant arising out of a contractual relationship between
the parties if the defendant’s wrong may correctly be characterized on the
findings of fact as intentionally tortious or grossly negligent.

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.

This concept is grounded on age-old concepts protecting maritime employees. However,

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

theory and files for declaratory action.

This probably is even aggravated further by the plaintiff/counter defendant now

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.

7
 In the case of Kirkse~, v. Jernigan 45 So.2d 188 (1950), the Florida Supreme

Court gave consideration to the utilization of an independent tort as well as punitive

damages involving breach of contract and breach of duty. On page 189 of the decision,

the court stated:

"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

independent tort regarding a duty, obligation, or a contractual relationship.

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

plaintiff/counter defendant’s callous disregard, intentional actions or gross negligence

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.

If at some later time, as already mentioned, the plaintiff/counter defendant wishes

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

to the defendant/counter plaintiff’s counter claim.

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,

Melbourne, Florida 32902.

RES~PECTFULLY SUBMITTED: /~

..]ffO, Id[l~ M. S~3~IWARTZ, ESQ~RE

gLUMENTHAL, SCHV~’~I’Z,
GAmbOL, & ~N~A, P.A.
Florida Bar No. 158245
Post Office Box 1657
Ti~sville, FL 32781-1657
(321) 267-8613
Aaomey for the Def~d~Count~ Plaintiff