UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DONALD COLEMAN for use and benefit of ACE AMERICAN INSURANCE COMPANY, a Pennsylvania Corporation, Plaintiff,
vs.
Case No.:
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COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, ACE AMERICAN INSURANCE COMPANY ("ACE"), as subrogee to the rights of DONALD COLEMAN ("Mr. Coleman"), by and through its undersigned counsel, files this Complaint against Defendant, AQUA TOY STORE, INC. ("AQUA") and states: JURISDICTION AND VENUE 1. This is an action for damages in excess of $75,000, exclusive of interest,
costs, and attorney's fees, and is otherwise within the diversity subject matter jurisdiction of this Court. 2. All claims set forth herein arise from the same operative facts and should
this action occurred in Collier County, Florida, and venue is otherwise proper within this District and Division. 3. This action arises from a partial submersion that occurred on or about
April 21, 2010 to a 2009 38' Fountain Express Cruiser bearing Hull Identification Number FGQ8E124D809 (the "Vessel") while it was docked at the Island Marina in Naples, Florida. 4. The Vessel, which is the subject of this action, is currently situated in Fort
Myers, Florida. 5. 6. At all material times, Mr. Coleman owned the Vessel. As a result of Mr. Coleman's loss and pursuant to the terms of a contract
of insurance between ACE and Mr. Coleman, ACE has paid $200,000.00 to Mr. Coleman for the loss associated with the sinking at issue in this litigation. ACE is subrogated at law and in equity to the rights of Mr. Coleman. ACE is therefore the real party in interest in this matter. 7. At all material times, ACE insured the Vessel and was and remains a
corporation organized and existing under the laws of Pennsylvania, with its headquarters located in Philadelphia, Pennsylvania. 8. AQUA is a Florida corporation that maintains its principal place of
business in Pompano Beach, Florida. GENERAL ALLEGATIONS 9. On or about June 11, 2008, AQUA sold and distributed the Vessel,
10.
Between June 11, 2008 and February 23, 2009, Mr. Coleman requested
that AQUA furnish and install a custom-built hydraulic folding swim platform on the Vessel. 11. When Mr. Coleman requested that AQUA custom-build and install the
swim platform on the Vessel, Mr. Coleman relied on AQUA's skill, expertise, and judgment that the swim platform would be suitable for the Vessel. 12. AQUA knew or should have known that Mr. Coleman relied on its skill,
expertise, and judgment when Mr. Coleman contracted with it to custom-build and install the swim platform on the Vessel. 13. On or about February 23, 2009, Mr. Coleman entered into a contract with
AQUA whereby AQUA constructed, furnished, and installed the swim platform on the Vessel for $39,220.00. 14. The swim platform that was chosen and installed by AQUA added
considerable weight to the Vessel, which caused the Vessel's stem to sit lower in the water. 15. After the negligent design and installation of the swim platform, AQUA
became aware that the Vessel's stern sat lower in the water and that the swim platform caused the Vessel's exhaust pipes to be submerged. Following the negligent installation of the swim platform AQUA attempted to modify the stock exhaust system to "prevent[ ] water back flush into engine caused by addition of swim platform." 16. In an attempt to correct the negligent design and installation of the swim
platform AQUA negligently modified and/or installed the exhaust system resulting in a
continuous flow of water entering the Vessel. 17. On or about April 21, 2010, the Vessel sank in its slip at the Island Marina
in Naples, Florida; subsequently, the Vessel was salvaged and placed in storage. 18. As a result of Mr. Coleman's loss and pursuant to the terms of a contract
of insurance between ACE and Mr. Coleman, ACE has paid $200,000.00 to COLEMAN for the loss associated with the sinking, plus interest, and additional expenses related to this loss including storage and salvage efforts totaling $13,358.33. COUNT INEGLIGENCE 19. AQUA owed COLEMAN a duty to use reasonable care when custom-
building and installing the swim platform on the Vessel and modifying and installing the exhaust system. 20. AQUA breached its duty by: a) Failing to provide a suitably designed swim platform; b) Failing to properly construct the swim platform; c) Failing to properly install the swim platform; d) Failing to properly install the exhaust system; e) Failing to properly warn Mr. Coleman of the potential risk of submersion; f) Failing to adequately remedy the swim platform even though it knew the swim platform was improper for the Vessel; g) Failing to follow up with Mr. Coleman to confirm the installation of the swim platform was proper.
21.
suffered extensive damage. 22. ACE, as subrogee to Mr. Coleman's rights, has suffered damages because
of AQUA's negligence. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IIPOST SALE FAILURE TO WARN 23. After the installation of the swim platform, AQUA became aware of the
fact that the Vessel's stern sat lower in the water and could potentially take on water. 24. 25. AQUA negligently failed to warn Mr. Coleman of this defect. Consequently, Mr. Coleman was not aware of the defect i.e. water
intrusion through the exhaust system. 26. As a result of AQUA's failure to warn Mr. Coleman, Plaintiff ACE has
suffered damage, to wit: a catastrophic submersion of the Vessel. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IIIPOST SALE NEGLIGENCE AGAINST AQUA 27. At all material times, AQUA knew that the VESSEL'S stem sat lower in
the water and was taking on water through the exhaust system.
28.
AQUA was negligent after the installation of the swim platform and
exhaust system including but not limited to the following: a) Failing to properly correct the known danger of water intrusion through the exhaust system; b) Failing to warn Mr. Coleman that the VESSEL sat lower in the water due to the installation of the swim platform; c) Failing to warn Mr. Coleman directly of the known danger of water intrusion via the exhaust system; d) Failing to have in place proper procedures for advising vessel owners, such as Mr. Coleman, of known dangers. 29. As a result of AQUA's negligence, Plaintiff ACE has suffered damage, to
wit: a catastrophic submersion of the Vessel. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IVBREACH OF IMPLIED WARRANTY OF WORKMANLIKE PERFORMANCE 30. AQUA undertook responsibility for designing and installing the swim
platform and for modifying the exhaust system. 31. AQUA is a seller and modifier of high end vessels. They impliedly
warranted to Mr. Coleman that they were competent to design and install the proper swim platform and modify the exhaust system. 32. AQUA owed Mr. Coleman a warranty of workmanlike performance for
the design and installation of the swim platform and the modification of the exhaust
system which inter alia, required AQUA to perform their various duties properly, safely and in a workmanlike manner. 33. limited to: a) b) c) d) e) f) g) h) i) 34. 35. Failing to follow up with the vessel owner to confirm work was done properly. Failing to exercise proper care under the circumstances. Failing to use and/or implement proper guidelines. Failing to properly train personnel. Failing to properly supervise personnel. Failing to use reasonable care in the selection, use and/or installation of the swim platform and exhaust system. Installing improper parts or failing to install parts. Failing to properly design the swim platform and exhaust system, Failing to properly modify the exhaust system. Mr. Coleman relied on AQUA to properly provide safe service to his vessel. The design and installation of the swim platform and modification of the AQUA failed to perform in a workmanlike manner including, but not
exhaust system was not done in accordance with workmanlike manners or methods. Defendant breached its duty of workmanlike performance workmanship, either of which, or both, were defective and which cause damage to Mr. Coleman's vessel and personal property.
WHEREFORE, Plaintiff demands a judgment for damages, attorney's fees, costs and pre/post judgment interest against AQUA, and for such other and further relief as deemed just and proper by this Court. DEMAND FOR JURY TRIAL ACE hereby demands a trial by jury on all issues so triable. DATED this 26day of January, 2012 RESPECTFULLY SUBMITTED, McALPIN CONROY, P.A. 80 SW 8th Street, Suite 2805 Miami, Florida 33130 Telephone: 305-810-5400 Facsimile! 305-810-5401
J. McALPIN No. pAlpin@,McAlpinConrov.com JONATHAN H. DUNLEAVY Florida Bar No.: 459666 JDunleaw@McAlpinConrov.com
The JS 44 civil cover sheet and the information contained herein neitherreplacenor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference ofthe United Slates in September 1974, is required for the use ofthe Clerk of Court for the purpose of initiating Ihe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS
DONALD COLEMAN for use and benefit of ACE AMERICAN INSURANCE COMPANY, a Pennsylvania Corporation.
(b) County of Residence of First Listed Plaintiff Pennsylvania (EXCEPT IN U.S. PLAINTIFF CASES)
Richard J. McAlpin, Jonathan Dunleavy, McAlpin Conroy, P.A., 80 S.W. 8th Street. Suite 2805, Miami FL 33130 (305)810-5400 nl
II. B A S I S O F J U R I S D I C T I O N O I U.S. Government Plaintiff (Place an"X" in One Box Only) III. 3 Federal Question (U.S. Government Not a Party) a 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen or Subject of a Foreign Country 3 3 3 3 C I T I Z E N S H I P O F P R I N C I P A L PARTIES(Place an ^ " m One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State 3 I CI 1 Incorporated or Principal Place 3 4 34 4 of Business In This State Citizen of Another Stale 3 2 3 2 Incoiporated and Principal Place of Business In Another Stale Foreign Nation
02
a 5
3 6
as
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(Place an "X" in One Box Only) TORTS PERSONAL INJURY 3IOAiiplane 315 Airplane Product Liability 320 Assault. Libel & Slander 330 Federal Employers' Liability 340 Marine 34S Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amcr. w/Disabilities Employment 446 Amcr. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 3 362 Pcisonal Injury Med. Malpractice 3 365 Personal Injury Product Liability 3 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 3 370 Other Fraud 3 371 Tnnh in Lending 8 380 Other Personal Property Damage 3 385 Property Damage Product Liability PRISONER PETmONS 3 510 Motions to Vacate Sentence Habeas Corpus: 3 530 General 3 535 Death Penally 3 540 Mandamus & Other 3 550 Civil Rights 3 555 Prison Condition
BANKRUPTCY 3 3 3 3 3 3
OTHER STATUTES
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3 3 3 3 3 1 3 3 3 3 0 O
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3 3 3 3 3 O 3
400 Suite Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce PROPERTY RIGHTS 460 Deportation 470 Racketeer Influenced and 820 Copyrights Corrupt Organizations 830 Patent 840 Trademark 3 480 Consumer Credit 3 490 Cable/Sat TV 3 810 Selective Service SOCIAL SECURITY 3 850 Securities/Commodities/ 86IHIA(139Sff) Exchange 3 875 Customer Challenge 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 12 USC 3410 864 SSID Title XVI 3 890 Oilier Statutory Actions 865 RSI (405(g)) 3 891 Agricultural Acts 3 892 Economic Stabilization Act FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff z 3 893 Environmental Maners or Defendant) . .;. 3 894 Energy Allocation Act 871 IRS-Third Party , 3 995 Freedom of Information 26 USC 7609 Afc; 3 . 900Appeal of Fee Determination Unlet Equal Access ".- ".. to JUatcc O ' 950 Coffitltutionality of V _ State Statutes
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V. O R I G I N 0 1 Original Proceeding (Place an "X" in One Box Only) O 2 Removed from O 3 Slate Court *>':>"' 0 6 Multidistricto O 7 Litigation 3*
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4 Reinstated or Reopened
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Cite the LIS. Civil Statute under whichyou are filing IDo not cite Jurisdictional statutes .unless diversity):
JUDGE
DOCKET NUMBER
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JUDGE
MAG. JUDGE
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