Filed: Jul. 28, 2017
Latest Update: Jul. 28, 2017
Summary: COMPLAINT CAROL MIRANDO , Magistrate Judge . COMES NOW, Plaintiff, RELIABLE MARINE TOWING AND SALVAGE LLC, Successor in interest to CHERYL SMITH d/b/a RELIABLE MARINE SALVAGE & TOWING, by and through the undersigned attorney, hereby files its Complaint against Defendants, JOHN THOMAS, in personam, and, STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation, in an action for non-payment of salvage services rendered to JOHN THOMAS' vessel, and Plaintiff states that: JURISDICTION AND V
Summary: COMPLAINT CAROL MIRANDO , Magistrate Judge . COMES NOW, Plaintiff, RELIABLE MARINE TOWING AND SALVAGE LLC, Successor in interest to CHERYL SMITH d/b/a RELIABLE MARINE SALVAGE & TOWING, by and through the undersigned attorney, hereby files its Complaint against Defendants, JOHN THOMAS, in personam, and, STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation, in an action for non-payment of salvage services rendered to JOHN THOMAS' vessel, and Plaintiff states that: JURISDICTION AND VE..
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COMPLAINT
CAROL MIRANDO, Magistrate Judge.
COMES NOW, Plaintiff, RELIABLE MARINE TOWING AND SALVAGE LLC, Successor in interest to CHERYL SMITH d/b/a RELIABLE MARINE SALVAGE & TOWING, by and through the undersigned attorney, hereby files its Complaint against Defendants, JOHN THOMAS, in personam, and, STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation, in an action for non-payment of salvage services rendered to JOHN THOMAS' vessel, and Plaintiff states that:
JURISDICTION AND VENUE
1. This is a maritime claim under Admiralty and Maritime jurisdiction within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure and Supplemental Admiralty Rules C as hereinafter more fully appears. This Court has original jurisdiction through Article III, Section 2, of the United States Constitution.
THE PARTIES
2. Plaintiff, RELIABLE MARINE TOWING AND SALVAGE LLC, Successor in interest to CHERYL SMITH d/b/a RELIABLE MARINE SALVAGE & TOWING is an entity, conducting business in the State of Florida, with its principal place of business in Bokeelia, Florida, engaged in the business of marine salvage and towing.
3. The vessel at issue is a 17' 1992 OSBORNE, its engines, tackle, equipment, apparel, appurtenances.
4. Defendant, JOHN THOMAS (hereinafter `THOMAS'), is the owner of the vessel and is a resident of Florida within the Middle District with his homestead at 4480 Winderlakes Drive, Orlando, Orange County, FL 32835.
5. Defendant, STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation (hereinafter `STATE FARM'), at all times material, was and is conducting business in the State of Florida.
GENERAL ALLEGATIONS
6. On or about August 1, 2015, Plaintiff, observed Defendant's vessel, a 17' 1992 OSBORNE, off the coast of North Captiva Island, Florida, near Foster Point. Defendant, THOMAS' vessel was sunken.
7. Defendant THOMAS verbally requested assistance from Plaintiff to salvage his boat from its sunken position. Defendant THOMAS stated to Plaintiff that his vessel was covered by State Farm Boat Insurance. Plaintiff agreed to provide maritime services to Defendant THOMAS and vessel.
8. The raising of Defendant vessel took approximately two hours and forty-eight minutes.
9. Plaintiff's personnel raised and refloated the vessel such that the vessel could be taken for repairs.
10. Upon being refloated, Defendant's vessel was able to make it to a safe removal point under its own power, due to the timeliness and expedience of the salvage operation services provided.
11. The conditions at the scene were dangerous being in very close proximity to other boating traffic in an area where the boats were transiting.
12. The signed contract between Defendant, THOMAS, and Plaintiff reflected a salvage billing of $3,109.84 that included of $150 per vessel foot charge ($2,550.00) and a runtime of one boat for two hours and forty-eight minutes charge ($559.84). (See Attached Exhibit `A').
13. At all times material, Defendant, THOMAS accepted the services of Plaintiff who were under no prior obligation to render assistance.
COUNT I: SALVAGE
14. Plaintiff readopts and realleges each and every allegation contained in paragraphs one (1) through thirteen (13) as though fully set forth herein.
15. Plaintiff, in undertaking the rescue of the vessel took risk to its equipment and personnel, inter alia, in that Plaintiff's personnel worked alongside the sunken vessel in a trafficked area.
16. Plaintiff's effort and experience saved Defendant, THOMAS', vessel from further extensive damage and saved the marine environment from further damage from Defendant, THOMAS' sunken vessel. Plaintiff successfully removed the vessel from the marine peril from which it was subject.
17. Given the nature of the marine peril performed under the circumstances, the expertise of Plaintiff, the successful result achieved by Plaintiff, the exposure of Plaintiff to harm, that Plaintiff had no prior duty to assist Defendant THOMAS, and risk of Plaintiff's equipment, Plaintiff, RELIABLE SALVAGE AND TOWING is entitled to a Salvage award based upon the contract agreed to and executed by Defendant THOMAS.
18. Though demand has been made to the Defendant THOMAS to pay Plaintiff pursuant to the contract, Defendant THOMAS has paid nothing to Plaintiff.
19. Plaintiff has been required to employ the services of the undersigned attorney, is obligated to pay a fee thereto, and is entitled to an award of attorney's fees. Defendant, THOMAS signed a contract with Plaintiff which provided for an award of fees if collection became necessary. (Exhibit `A', incorporated herein).
20. Collection has become necessary.
21. Pursuant to Local Admiralty Rule 7.05(a), there are no unliquidated claims, but Plaintiff claims entitlement to attorney's fees that are of an undetermined amount. Pursuant to Local Admiralty Rule 7.05(c), the value of any hull, cargo, freight, and property salvaged is unknown; the amount claimed is $3,109.84, and the principal salvor is RELIABLE MARINE TOWING AND SALVAGE LLC, SUCCESSOR IN INTEREST TO CHERYL SMITH D/B/A RELIABLE MARINE SALVAGE & TOWING.
22. The names of all salvors appear within this Complaint, but have been paid by Plaintiff for their services. All salvors entitled to claim, do so through Plaintiff. There is no written agreement between Plaintiff and its employees listed herein.
WHEREFORE, the above premises considered, Plaintiff prays for the following:
A. Defendant, THOMAS pay Plaintiff for the salvage of Defendant's vessel, a 17' 1992 OSBORNE, its engines, tackle, equipment, apparel, appurtenances, etc., plus interest, costs, and attorney's fees pursuant to Florida Statutes the agreement and contract of the Parties.
B. Any other relief this Honorable Court deems fair and equitable.
COUNT II: BREACH OF CONTRACT FOR PAYMENTS
23. Plaintiff, readopts and realleges each and every allegation contained in paragraphs one (1) through thirteen (13) as though fully set forth herein.
24. On or before August 1, 2015, Defendant, STATE FARM, issued a policy of insurance (the `Policy') which upon information and belief, included Sue and Labor coverage that provided coverage for rescue and salvage expenses incurred as a result of marine peril of the covered vessel, a 17' 1992 OSBORNE, its engines, tackle, equipment, apparel, appurtenances, Lee County, Florida as alleged in this Complaint.
25. Upon information and belief, the subject Policy was in full force and effect as to Plaintiff on the date of the August 1, 2015, casualty as alleged above in the preceding paragraphs.
26. Defendant, STATE FARM, has not provided Plaintiff with a copy of the aforementioned Policy.
27. As a result of the fact that Plaintiff provided Defendant rescue and salvage services for Defendant's vessel when the vessel was in marine peril and in a sunken condition, Plaintiff was and is, a third-party beneficiary of the stated insurance policy.
28. State Farm knew of the existence of Plaintiff's claim, and Defendant, STATE FARM was aware of the work performed by Plaintiff for STATE FARM's insured, THOMAS.
29. Prior to filing this Complaint, Plaintiff made demand upon Defendant, STATE FARM, to pay sue and labor benefits pursuant to the Policy under claim number: 596W15629, to no avail.
30. Despite Plaintiff's demand that Defendant, STATE FARM, pay sue and labor benefits pursuant to the Policy, Defendant, STATE FARM, refused to pay anything to Plaintiff, in breach of its contract of insurance.
31. Plaintiff complied with all conditions precedent to bringing this action, or STATE FARM has waived it.
32. Plaintiff furnished Defendant, STATE FARM, with proper notice of its damages, including providing Defendant with Plaintiff's Invoice for Services (Exhibit "A") as a result of the incident described above and Plaintiff has otherwise performed all conditions precedent to entitle it to recover under the sue and labor provisions in the subject Policy, but Defendant has refused to pay for Plaintiff's covered losses.
33. As a result of Defendant's, STATE FARM, breach of the terms of the sue and labor coverage under the subject Policy, Plaintiff has suffered damages including Plaintiff's unpaid invoice, interest upon unpaid costs of rescue and salvage of the covered vessel.
34. Because of Defendant's refusal to pay Plaintiff's invoice, (Defendant's, THOMAS, sue and labor expenses arising out of the subject incident), it has become necessary that Plaintiff retain the services of the undersigned attorney. Plaintiff is obligated to pay its attorney a reasonable attorney's fee and costs for the attorney's services in bringing this action.
35. Plaintiff retained the undersigned counsel to represent Plaintiff in this cause, and Plaintiff has incurred reasonable attorney's fees and costs.
36. Pursuant to Fla. Stat. § 627.428, Plaintiff is entitled to recover its reasonable attorney's fees and costs in bringing this action as a third-party beneficiary under the policy of insurance.
WHEREFORE, the above premises considered, Plaintiff, RELIABLE MARINE TOWING AND SALVAGE LLC, Successor in interest to CHERYL SMITH d/b/a RELIABLE MARINE SALVAGE & TOWING, prays that this Honorable Court order:
A. Defendant, STATE FARM pay Plaintiff its invoice for the sue and labor charges of its covered vessel, the 17' 1992 OSBORNE, its engines, tackle, equipment, apparel, appurtenances, etc. for damages, plus interest, costs and attorney's fees pursuant to Florida Statutes § 627.428, Florida Statutes § 92.231 and Florida Statute § 57.041.
B. Any other relief this Honorable Court deems fair and equitable.
EXHIBIT A
