Filed: Sep. 10, 1998
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 97-4956 _ ELEVENTH CIRCUIT 09/10/98 D. C. Docket No. 92-340-CV-EBD THOMAS K. KAHN CLERK AMERICAN DREDGING COMPANY, as owner of the tug Marco Island her engines, tackle, Plaintiff-Counter-Claimant-Appellant, versus JOSE LAMBERT, Claimant-Counter-Defendant-Appellee, MARIO PEREZ, as Personal Representative of the Estate of Vivian Perez, OLGA PEREZ, VIVIAN PEREZ, Claimants-Appellees. _ Appeal f
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 97-4956 _ ELEVENTH CIRCUIT 09/10/98 D. C. Docket No. 92-340-CV-EBD THOMAS K. KAHN CLERK AMERICAN DREDGING COMPANY, as owner of the tug Marco Island her engines, tackle, Plaintiff-Counter-Claimant-Appellant, versus JOSE LAMBERT, Claimant-Counter-Defendant-Appellee, MARIO PEREZ, as Personal Representative of the Estate of Vivian Perez, OLGA PEREZ, VIVIAN PEREZ, Claimants-Appellees. _ Appeal fr..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 97-4956
________________________ ELEVENTH CIRCUIT
09/10/98
D. C. Docket No. 92-340-CV-EBD THOMAS K. KAHN
CLERK
AMERICAN DREDGING COMPANY,
as owner of the tug Marco Island
her engines, tackle,
Plaintiff-Counter-Claimant-Appellant,
versus
JOSE LAMBERT,
Claimant-Counter-Defendant-Appellee,
MARIO PEREZ, as Personal
Representative of the Estate
of Vivian Perez, OLGA PEREZ,
VIVIAN PEREZ,
Claimants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 1998)
Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH,
Senior Circuit Judge.
BLACK, Circuit Judge:
A pleasure boat carrying four passengers collided with a floating dredgepipe for
which Appellant American Dredging Company, Inc. (American Dredging) was
responsible. Following a bench trial, the district court found American Dredging
liable to the parents and estates of two individuals killed in the accident. American
Dredging filed this appeal.
I. BACKGROUND
On November 23, 1991, Donald Pietruszka, Vivian Perez, and Juan Renteria
went to a nightclub in Miami Beach, Florida. Around 2:15 a.m., they met up with
Alejandro Lambert. Shortly thereafter, the four of them left and took a ride in a
pleasure boat operated by Lambert. After riding around for a while, Lambert piloted
the boat towards Fisherman's Channel, a navigable channel located on the south side
of Dodge and Lummus Islands.
That night, American Dredging was conducting a dredging operation in
Fisherman's Channel to deepen the waterway. Some five or six vessels, including a
dredge boat, a work boat, and three or four tugs, were working in the channel. Shortly
before Lambert navigated the boat into Fisherman’s Channel, a large barge and tug
sought access to a dock at the Port of Miami. The dredge boat and the pipeline were
blocking the dock. To permit access, one of the tugs, the Marco Island, opened the
pipeline and moved a portion of it into Fisherman's Channel, causing the dredgepipe
2
effectively to block at least 70 percent of the navigable width of the channel. The
pipeline was dark rust colored with no reflective tape or paint on it, and it was half-
submerged in the water. The pipeline was supported on the water by floating orange
trestles, but, at the time of the accident, was not lit for 300 feet in one direction and
at least 100 feet in the other direction.
When Lambert entered Fisherman's Channel, he was operating the boat at a
speed of approximately 30 mph. When the pleasure boat approached the pipeline, a
deckhand on the Marco Island waived at the boat. Lambert maintained the boat’s
course and the boat collided with the dredgepipe. All four occupants were ejected
from the boat upon impact. All died except Renteria.
American Dredging filed a petition for exoneration from or limitation of
liability. Several parties contested American Dredging's right to exoneration from or
limitation of liability and asserted claims under Florida and federal maritime law
against American Dredging, seeking damages resulting from American Dredging's
negligent operation of its vessels and equipment. On cross motions for summary
judgment, the district court held that American Dredging’s negligence precluded both
exoneration from and limitation of liability and that the decedents’ representatives
potentially could recover non-pecuniary damages in the wrongful death suit. This
Court affirmed. See American Dredging Co. v. Lambert, 81 F.3d 127, 130-31 (11th
3
Cir. 1996). On remand, the district court held a bench trial to determine (1) whether
Lambert was comparatively negligent in his operation of the vessel and (2) what
amount of damages would reasonably compensate the survivors of Lambert and
Perez.1
At trial, American Dredging tried to establish Lambert's comparative negligence
by arguing that Lambert violated statutory rules intended to prevent collisions.
Specifically, American Dredging attempted to prove that Lambert violated the law by
being legally intoxicated, failing to operate the boat at a safe speed, and failing to
maintain a proper lookout. The district court rejected American Dredging’s statutory
violation theories and further concluded that Lambert was not comparatively negligent
because the pipe could not have been seen in time to avoid the accident.2 In its final
judgment, the district court awarded damages for past and future emotional pain and
suffering to Lambert’s and Perez’s parents.3 The district court further awarded
1
Renteria and Pietruszka’s personal representative and survivors resolved their claims with
American Dredging prior to trial.
2
American Dredging asserts that the district court did not conclude that Lambert was not
intoxicated at the time of the accident. We disagree. The toxicology report was the primary
evidence relied on by American Dredging to establish Lambert’s intoxication on the night of the
accident. The district court expressly ruled that the toxicology report was unreliable and that the
alcohol concentrations indicated in the toxicology report did not accurately reflect Lambert's blood-
alcohol level at the time of the accident. (District Court Order at ¶¶ 11, 16)
3
Specifically, the district court awarded $300,000 to Lambert’s mother, $300,000 to
Lambert’s father, $300,000 to Perez’s mother, and $300,000 to Perez’s father for past emotional pain
and suffering and $200,000 to Lambert's mother , $150,000 to Lambert’s father, $200,000 to Perez’s
4
prejudgment interest on the damage awards for past emotional pain and suffering from
the date of death to the date of the judgment.
III. ANALYSIS
American Dredging argues that the district court erred by: (1) holding that
Lambert was not comparatively negligent; (2) awarding damages for emotional pain
and suffering to the surviving parents of Lambert and Perez (Claimants) even though
they were not dependent on their deceased children; and (3) awarding prejudgment
interest on the damages for past emotional pain and suffering from the date of death
to the date of the district court’s judgment.
A. Standard of Review
In an action tried without a jury, the district court’s findings of fact “shall not
be set aside unless clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge of the credibility of the witnesses.” Fed. R. Civ. P. 52(a).
We will not hold a factual finding to be clearly erroneous unless “after assessing the
evidence, [we are] left with a definite and firm conviction that a mistake has been
committed.” Worthington v. United States, 21 F.3d 399, 400 (11th Cir. 1994)
(internal quotations and citations omitted). We review the district court’s findings on
mother, and $150,000 to Perez’s father for future emotional pain and suffering. The district court
also awarded $4,066 and $2,581 for funeral expenses to the estates of Lambert and Perez,
respectively.
5
the question of proximate cause and on the ultimate question of negligence under the
clearly erroneous standard. Id. We review the district court’s conclusions of law de
novo.
Id.
B. Comparative Negligence
American Dredging contests the district court’s conclusion that Lambert was
not comparatively negligent. More specifically, American Dredging argues that the
evidence clearly showed that Lambert violated three statutes designed to avoid
precisely the type of accident that occurred in this case4 and that, under federal
maritime law, the burden shifted to Claimants to prove that Lambert's statutory
violations could not have been a cause of the collision.5 Claimants respond that the
evidence supports the district court's findings that Lambert did not violate any of the
statutory rules relied upon by American Dredging. We agree with Claimants. The
district court’s conclusions that Lambert was not legally intoxicated, not operating at
an unsafe speed, and not failing to keep a proper lookout are not clearly erroneous.
4
American Dredging relies upon: (1) Fla. Stat. ch. 327.35 and ch. 327.351 (prohibiting the
operation of a vessel on the waters of Florida while under the influence of alcohol) (ch. 327.351 was
repealed in 1996); (2) 33 U.S.C. § 2006 (requiring vessels to proceed at a safe speed for “the
prevailing circumstances and conditions”); and (3) 33 U.S.C. § 2005 (requiring vessels to maintain
a proper look-out).
5
See, e.g., Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1554-55 (11th Cir. 1987)
(discussing application of the rule set out in The Pennsylvania, 86 U.S. (Wall.) 125 (1874), that
“when a ship involved in a collision is in violation of a statutory rule designed to prevent collisions,
the burden shifts to that ship to disprove that the violation was a contributing cause of the
collision”).
6
Furthermore, the district court’s ultimate conclusion that Lambert was not
comparatively negligent is not clearly erroneous.
1. Intoxication.
At trial, the parties presented conflicting scientific evidence on the issue of
Lambert’s alleged intoxication at the time of the accident. Lambert's body was in the
sea water for between 56 and 59 hours after the accident. It was not until about 78
hours after the accident that forensic studies were conducted using samples of
Lambert’s chest fluid and bile. The test results indicated that Lambert had a blood
alcohol level of .22. To rebut the blood alcohol level test results, Claimants presented
expert testimony from Dr. Richard Jensen that chest fluid and bile are terrible samples
to analyze for alcohol content because they can contain contaminants. Dr. Jensen
further testified about studies in which decomposition alone accounted for blood
alcohol readings as high as .20.6 Dr. Jensen explained the .22 blood alcohol test result
in this case as “a result of either one or a combination of the processes that we have
talked about; that is, either post mortem decomposition or post mortem diffusion of
alcohol, if indeed, [Lambert] consumed just priority [sic] getting on the craft.”
Although American Dredging’s experts disputed the degree to which the factors
6
There also was evidence at trial pertaining to studies in which a blood alcohol reading as
high as .22 resulted from decomposition.
7
identified by Dr. Jensen could skew the test results, they acknowledged that the factors
could have some effect.7
The eyewitness testimony on the issue of Lambert’s alleged intoxication is
virtually uniform in its support for the conclusion that Lambert was not intoxicated
at the time of the accident. Peter Ghaleb, a close friend of Lambert since the third
grade, testified that he had seen Lambert intoxicated on prior occasions and therefore
knew the symptoms Lambert exhibited when intoxicated, including slurred speech,
red eyes, and stumbling. Ghaleb testified that he saw Lambert at a friend’s birthday
party around midnight on the night of the accident. Ghaleb testified that he did not
see Lambert drink any alcoholic beverages at the party and that Lambert did not
display any signs of intoxication that night.
Renteria, the sole survivor of the accident, also testified that Lambert did not
exhibit any signs of intoxication on the night of the accident. Renteria said that
Lambert did not slur his words, have bloodshot eyes, or have any trouble walking.
7
Dr. William L. Hearn, the director of the Dade County Medical Examiner Department's
toxicology laboratory and the individual who prepared the toxicology report in this case, testified
that Lambert's actual blood alcohol level was probably about .20 to .21 to account for testing chest
fluid instead of whole blood. Another American Dredging expert, Dr. John D. Charlesworth,
testified that at the time he performed the autopsy, there was evidence of decomposition in
Lambert’s body. Dr. Charlesworth further testified that ethyl alcohol, the type of alcohol for which
the toxicology laboratory tested, is produced by decomposition where certain microbiological
organisms are involved, but stated that he could not be sure if such decomposition had occurred in
this case. Dr. Charlesworth surmised that decomposition could inflate a blood alcohol reading by
as much as .05.
8
Renteria did testify that Lambert ordered one beer at the nightclub, but said that
Lambert did not finish it. He further testified that Lambert neither operated the boat
erratically nor acted in any other way so as to create any cause for concern as to his
ability to operate the boat.
2. Excessive Speed.
Lieutenant Eugene Morgan, the Marine Patrol officer who authored the Marine
Patrol investigative report on the accident, testified that 30 mph was an unsafe speed
because of the work going on and the number of boats in Fisherman’s Channel.8
However, Lieutenant Morgan also testified that had there been no obstruction, or had
the vessels been lit properly, there would have been nothing wrong with going 30 mph
in the channel. Lieutenant Morgan further testified that the chief causes of the
accident were the dredgepipe blocking the waterway and the lack of lights.
3. Proper Lookout.
Renteria testified that Lambert faced forward and looked straight ahead while
operating the boat. He also testified that Lambert had no problems negotiating the
boat down a canal to an island and under two bridges before entering the channel
where the collision occurred. Lieutenant Morgan’s investigation also shows that
8
Lieutenant Morgan’s report identified four factors that contributed to the accident: (1) the
presumed impaired condition of Lambert (due to the .22 blood alcohol test result); (2) the speed of
the pleasure boat; (3) the lack of required lights on the pipeline; and (4) the interference to
navigation caused by the pipeline extending into the channel.
9
Lambert operated the boat in other areas with markers and properly lit obstructions
without problems.
American Dredging relies primarily on statements made by Renteria four days
after the accident and at trial that he observed the dredgepipe three to four seconds
before impact, which American Dredging argues would have given Lambert adequate
time to avoid the collision had he been keeping a proper lookout. However, Renteria
also testified at trial that he saw the dredgepipe less than a second before impact and
that he could not differentiate with certainty between three and four seconds on the
one hand and less than one second on the other.
Florida Marine Patrol Officer Vincent Peterson, the first police official to arrive
at the scene of the accident, testified that he likely would have hit the dredgepipe as
he approached the accident scene had a tug not shone its spotlight on the dredgepipe.
Peterson testified that the dredgepipe effectively blocked the entire navigable width
of Fisherman's Channel at the time of the accident and that the “channel seemed
clear . . . until they hit the spotlight on the pipe.”9
9
In concluding that the dredgepipe was difficult to see, the district court also relied on a
videotape of the scene taken shortly after the accident.
10
4. Conclusion.
Based upon the evidence presented at trial, we hold that the district court’s
factual findings that Lambert did not violate the statutory rules relied upon by
American Dredging are not clearly erroneous and therefore reject American
Dredging’s argument that the district court erred in failing to shift the burden of proof
to Claimants to establish that Lambert was not comparatively negligent. Moreover,
we hold that the evidence supports the district court’s conclusion that Lambert was not
comparatively negligent.
B. Damages For Emotional Pain and Suffering
American Dredging argues that the district court’s award of non-pecuniary
damages to Claimants under the Florida Wrongful Death Act conflicts with the
longstanding maritime rule that such damages are not available to non-dependent
parents of adult children and that the award therefore should be vacated.
In American Dredging’s first appeal, another panel of this Court concluded that
Claimants could recover the non-pecuniary damages available under Florida law.
American Dredging, 81 F.3d at 130-31. American Dredging has put forth no grounds
on which we may reconsider that decision.
11
C. Prejudgment Interest on Damages For Past Emotional Pain and Suffering
American Dredging contends that the district court erred by ordering it to pay
prejudgment interest to Claimants on the damage awards for past emotional pain and
suffering. We agree.
Because Florida law provides the basis for recovery of damages for emotional
pain and suffering, Florida law must be applied to determine whether the prejudgment
interest award is proper. Cf. Royster Co. v. Union Carbide Corp., 737 F.2d 941, 948
(11th Cir. 1984) (“In a diversity case we follow the state law governing the award of
interest.” (citation omitted)).
Under Florida law, “a claim becomes liquidated and susceptible of prejudgment
interest when a verdict has the effect of fixing damages as of a prior date.” Argonaut
Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214 (Fla. 1985); see also Alvarado v.
Rice,
614 So. 2d 498, 499 (Fla. 1993) (“a plaintiff is entitled to prejudgment interest
when it is determined that the plaintiff has suffered an actual, out-of-pocket loss at
some date prior to the entry of judgment”). “Personal injury plaintiffs are generally
not entitled to prejudgment interest because the damages are uncertain and are not
liquidated until determined by the jury.” Griefer v. DiPietro,
708 So. 2d 666, 673 (Fla.
Dist. Ct. App. 1998); see also Lumbermens Mut. Cas. Co. v. Percefull,
653 So. 2d 389,
390 (Fla. 1995) (“[T]ort claims are generally excepted from the rule allowing
12
prejudgment interest, primarily because tort damages are generally too speculative to
liquidate before final judgment.”); Argonaut Ins. Co., 474 So. 2d at 214 n.1 (“We are
mindful that this Court has ruled that prejudgment interest is not recoverable on
awards for personal injury.” (citations omitted)).
Claimants in this case are analogous to personal injury plaintiffs – their
damages were uncertain and unliquidated until determined by the district court. The
district court divided the awards for emotional pain and suffering into two categories
– one for past emotional pain and suffering and one for future emotional pain and
suffering. This division demonstrates that damages for emotional pain and suffering
compensate for injury suffered over time, not injury suffered as of a certain date. We
therefore hold that the district erred in awarding prejudgment interest on the damage
awards for past emotional pain and suffering.
III. CONCLUSION
We affirm the district court’s conclusion that Lambert was not comparatively
negligent and the district court’s award of damages to Claimants for emotional pain
and suffering. We reverse and vacate the award of prejudgment interest on the
damage awards for past emotional pain and suffering.
AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.
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