Simple Sailing Charters, LLC

Filing 30

ORDER denying 28 motion to dismiss. Signed by Judge Susan C Bucklew on 3/10/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN THE MATTER OF:
THE COMPLAINT OF SIMPLE SAILING
CHARTERS, LLC, AS OWNER OF BOAT #3
(hull identification number DFFL0009E313),
ITS ENGINES, TACKLE, APPURTENANCES,
EQUIPMENT, ETC., IN A CAUSE OF
EXONERATION FROM OR LIMITATION OF
LIABILITY,

Case No. 8:16-cv-2972-T-24- AEP

Petitioner/Third-Party Plaintiff,
v.
GLADYMARI FELICIANO,
Third-Party Defendant.
_____________________________________/
ORDER
This cause comes before the Court on Gladymari Feliciano’s Motion to Dismiss Counts I
and II. (Doc. No. 28). Simple Sailing Charters, LLC opposes the motion. (Doc. No. 29). As
explained below, the motion is denied.
I. Standard of Review
In deciding a motion to dismiss, the district court is required to view the complaint in the
light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp., 208 F.3d 959,
962 (11th Cir. 2000)(citing Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999)). The
Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon
which he bases his claim. Instead, Rule 8(a)(2) requires a short and plain statement of the claim
showing that the pleader is entitled to relief in order to give the defendant fair notice of what the
claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)(citation omitted). As such, a plaintiff is required to allege “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
(citation omitted). While the Court must assume that all of the allegations in the complaint are
true, dismissal is appropriate if the allegations do not “raise [the plaintiff’s] right to relief above
the speculative level.” Id. (citation omitted). The standard on a 12(b)(6) motion is not whether
the plaintiff will ultimately prevail in his or her theories, but whether the allegations are
sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. See
Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986).
II. Background
On September 5, 2016, Gladymari Feliciano chartered a vessel from Simple Sailing
Charters, LLC (“Simple Sailing”) and took eight passengers on a recreational cruise. (Doc. No.
1, ¶ 9). According to Simple Sailing, the vessel “dragged anchor and allided with the dock or a
nearby seawall causing substantial damage” to the vessel and dock. (Doc. No. 1, ¶ 9). One of
the passengers, Lisa Merriweather, sent a demand to Simple Sailing, in which she claimed to
have suffered personal injuries from the cruise. (Doc. No. 1, ¶ 9). Thereafter, Simple Sailing
filed a complaint for exoneration from or limitation of liability. (Doc. No. 1).
In response to Simple Sailing’s complaint for exoneration from or limitation of liability,
Merriweather filed a claim against Simple Sailing. Merriweather alleges that after the cruise
began, the weather conditions deteriorated, including heavy rains and high winds. (Doc. No. 9,
¶ 24). Merriweather further alleges that the weather caused the vessel to slam into a seawall and
throw about the passengers and a table inside the vessel. (Doc. No. 9, ¶ 26). The table hit
Merriweather and injured her. (Doc. No. 9, ¶ 26). As a result, Merriweather claims that Simple

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Sailing is liable to her, because it was negligent in the rental of the vessel, and the vessel was
unseaworthy. (Doc. No. 9, ¶ 27).
Simple Sailing then filed a third-party complaint against Feliciano asserting four claims:
(1) breach of contract, (2) remedy over (contractual indemnity), (3) contribution, and (4) tender.
(Doc. No. 13). Simple Sailing attached the charter contract to its third-party complaint, which
provides, in pertinent part, the following:
1.

4.

7.

By renting this vessel you acknowledge that boating poses
various hazards, which can cause serious injury, death, or
property damage.
AT ALL TIMES:
1.
You must remain aware of weather visibility, tides[,]
current, wind and other factors which may affect your
ability to navigate the vessel safely
2.
You must adhere to all applicable nautical rules of the
road.
3.
You must take reasonable measures to avoid risk of
collision with other vessels, docks[,] buoys[,]
swimmers or other objects or things, whether fed or
floating
4.
You must give the right of way to vessels under sail
*
*
*
. . . Further, you must operate the vessel in Tampa Bay only.
You may not operate the vessel outside the area indicated on
the map, or take the vessel out in the open ocean. . . .
*
*
*
[Feliciano] shall defend indemnify and hold harmless Simple
Sailing Charters, LLC . . . from and against any damage, loss,
theft, or destruction of any equipment or property and against
all accidents and losses, liability and property or personal
damages, injuries, claims, demands, actions, causes, litigation
or lawsuits costs and expenses of every kind and nature
whether or not covered by insurance, including legal fees and
disbursements, arising out of and in connection with the use,
condition or operation of the vessel. [Feliciano] assumes all
responsibility.

(Doc. No. 13-1).

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Relevant to the instant motion are Counts I and II of Simple Sailing’s third-party
complaint. In Count I, Simple Sailing alleges that Feliciano breached the obligation in the
charter contract that she act non-negligently. Specifically, Simple Sailing alleges that Feliciano
breached the charter contract by: (1) operating the vessel outside of the boundaries specified; (2)
failing to remain aware of weather visibility, tides, current, wind and other factors that affected
her ability to navigate the vessel safely; and (3) failing to take reasonable measures to avoid risk
of collision with docks and other objects.
In Count II, Simple Sailing alleges that Merriweather’s claim against Simple Sailing
results from Feliciano’s acts or omissions for which Feliciano should be directly liable. As a
result, Simple Sailing contends that it is entitled to indemnification by Feliciano and that
Feliciano should defend Simple Sailing in this action.
III. Motion to Dismiss
Feliciano moves to dismiss Counts I and II of Simple Sailing’s third-party complaint.
Accordingly, the Court will analyze her arguments with respect to each count.
A. Breach of Contract
In Count I, Simple Sailing contends that Feliciano owed it a duty to act non-negligently
when operating the vessel and that she breached that duty by negligently operating the vessel.
Feliciano moves to dismiss this claim, arguing that Simple Sailing is attempting to assert a
negligence claim that is not independent of a breach of the contract. The Court disagrees with
Feliciano.
The charter contract specifically states that at all time, Feliciano must: (1) remain aware
of weather visibility, tides, current, wind and other factors that may affect her ability to navigate

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the vessel safely; (2) adhere to all applicable nautical rules of the road; (3) take reasonable
measures to avoid risk of collision with docks and other things; and (4) operate the vessel in
Tampa Bay only. In its third-party complaint, Simple Sailing is merely characterizing these
obligations as a duty to act non-negligently by specifically doing the things the charter contract
requires. Simple Sailing is not asserting a general negligence claim. The only “negligence” that
is relevant to this claim is Feliciano’s failure to comply with the safety obligations set forth in
the contract. Accordingly, the Court denies Feliciano’s motion to dismiss this claim.
B. Indemnification
In Count II, Simple Sailing asserts an indemnification claim, arguing that Merriweather’s
claim against Simple Sailing results from Feliciano’s acts or omissions for which Feliciano
should be directly liable. Feliciano moves to dismiss this claim, arguing that the allegations set
forth within Merriweather’s claim against Simple Sailing do not assert any negligence on the
part of Feliciano.
Simple Sailing responds by pointing out that Federal Rule of Civil Procedure 14(c)
provides that if a plaintiff [Merriweather] asserts an admiralty or maritime claim, the defendant
[Simple Sailing] may, as a third-party plaintiff, bring in a third-party defendant [Feliciano] who
may be wholly or partly liable—either to Merriweather or to Simple Sailing—for indemnity.
That is what Simple Sailing did in this case. In asserting its indemnity claim, Simple Sailing is
not constrained by Merriweather’s theory as to the cause of her injuries (i.e., that Merriweather’s
injuries were caused by Simple Sailing’s negligence). See Burke v. Quick Lift, Inc., 464 F.
Supp.2d 150, 161 (E.D.N.Y. 2006). Instead, Simple Sailing asserts that it was Feliciano’s
conduct, not its own, that caused Merriweather’s injuries. If it is later found that Feliciano’s

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conduct caused Merriweather’s injuries, then Simple Sailing’s indemnity claim will be
successful. Thus, at this early stage of the proceedings—when the cause of Merriweather’s
injuries have not yet been determined—Feliciano’s motion to dismiss Simple Sailing’s
indemnity claim must be denied.1
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Feliciano’s Motion to Dismiss
Counts I and II (Doc. No. 28) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 10th day of March, 2017.

Copies to:
Counsel of Record

1

At this time, the Court need not reach Feliciano’s argument that the indemnity provision
does not require Feliciano to indemnify Simple Sailing if it is determined that Simple Sailing’s
negligence caused Merriweather’s injuries. Feliciano is correct that if it is determined that
Simple Sailing’s negligence caused Merriweather’s injuries, Simple Sailing will have to show
that the charter contract clearly manifests the parties’ intent to have Feliciano indemnify Simple
Sailing for Simple Sailing’s own negligence. See U.S. v. Seckinger, 397 U.S. 203, 212–13
(1970). After discovery, the parties may file dispositive motions on this issue.
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