AIG Property Casualty Company v. Bradford Marine Inc.

Filing 39

ORDER ON MOTION TO DISMISS;granting 30 Motion to Dismiss for Failure to State a Claim( Amended Complaint due by 5/26/2018.); granting 30 Motion for More Definite Statement. Signed by Judge Beth Bloom on 5/14/2018. (vmz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE No. 17-cv-62578-BLOOM/Valle
AIG PROPERTY CASUALTY COMPANY,
Plaintiff,
vs.
BRADFORD MARINE INC.,
Defendant/Third-Party Plaintiff,
vs.
FLORIDA MARINE PROPULSION CORP.
d/b/a Lauderdale Propeller Service,
Third-Party Defendant.
________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Third-Party Defendant Florida Marine
Propulsion Corp.’s (“Florida Marine”) Motion to Dismiss for Failure to State a Cause of Action
or alternatively, Motion for More Definite Statement, ECF No. [30] (“Motion”). The Court has
carefully reviewed the Motion, all opposing and supporting materials, the record in this case, the
applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is
granted.
I.

BACKGROUND
Plaintiff, AIG Property Casualty Company (“AIG”), filed this action as subrogee of its

insured Pissaro Properties, Ltd. (“Pissaro”). See ECF No. [1]. In the Complaint, AIG alleged
that Pissaro engaged Defendant/Third-Party Plaintiff, Bradford Marine, Inc. (“Bradford Marine”)
to repair the M/Y Francine, entering into a Dockage and Repair Contract. Id. at ¶ 8. Thereafter,

CASE No. 17-cv-62578-BLOOM/Valle
Bradford Marine sent the propeller to be inspected by Florida Marine, which sent an email
stating, in part, that the propeller blades were badly bent and “the propeller will never be right
again.” Id. at ¶ 9. Florida Marine stated it would scan the propeller to determine whether a
matching set can be made.

Id.

According to the Complaint, Bradford Marine thereafter

presented Pissaro with a written proposal to supply a new propeller with an approximate delivery
six weeks from the date of the order, which Pissaro accepted. Id. at ¶ 10-11. The first propeller
delivered was allegedly different from the original one and could not be used. Id. at ¶ 12. The
second replacement propeller was also allegedly of an incorrect size. Id. at ¶ 13. Finally, a third
propeller was delivered and fitted onto the vessel in December of 2016. Id. at ¶ 14. However,
Bradford Marine was allegedly required to supply the replacement vessel six months earlier in
July of 2016. Id. at ¶ 15. AIG, as subrogee, seeks to recover the amount of the claim it paid its
insured due to the delayed propeller delivery. Id. at ¶ 16.
In response to the Complaint, Bradford Marine filed an Answer and Affirmative
Defenses along with a Third-Party Complaint against Florida Marine. See ECF No. [5]. The
Third-Party Complaint alleges that it is “an action for indemnity in an amount not less than
$248,291.07 plus prejudgment interest, costs, and such other relief as is appropriate under the
circumstances.” Id. at ¶ 3. Consistent with the allegations of the Complaint, the Third-Party
Complaint alleges that, on December 30, 2016, Bradford Marine contracted with Pissaro to
repair and replace the vessel’s port-side propeller and shaft, and once these were removed from
the vessel, they were sent to Florida Marine. Id. at ¶ 5. Florida Marine thereafter reported to
Bradford Marine and Pissaro that neither the propeller nor the shaft could be repaired,
recommending they order new ones. Id. Pissaro, in turn, agreed to have a new propeller and
shaft manufactured and Florida Marine was notified of this decision. Id. at ¶ 6. The order was

2

CASE No. 17-cv-62578-BLOOM/Valle
placed and Pissaro was informed that it would take six weeks to complete the fabrication. Id. At
this point, the Third-Party Complaint alleges that Florida Marine prepared specifications for
fabrication of the new propeller and provided these to non-party CJR Propulsion (“CJR”) in the
United Kingdom. Id. Upon the delivery of the propeller and shaft, it was discovered that they
could not be used because the “cord was off and the pitch was higher than that of the damaged
propeller.” Id. at ¶ 7. According to the Third-Party Complaint, Pissaro and Florida Marine
thereafter worked directly with each other to order a second propeller based upon scans Florida
Marine provided to CJR. Id. at ¶ 8. The second propeller was not usable either, so Pissaro,
Florida Marine, and CJR agreed that CJR would fabricate a third propeller. Id. at ¶ 9. The third
one, delivered in mid-to-late November of 2016, was suitable for installation on the vessel. Id.
Based on these allegations, Bradford alleges that “if it is held liable to AIG, it is entitled
to indemnification and/or contribution from Lauderdale Propeller [Florida Marine] for its
negligence in preparing and providing the necessary specifications and other information to CJR
resulting in the fabrication of a total of three propellers and the delay attendant to the required
fabrication of them.” Id. at ¶ 10. Bradford Marine further alleges that its right to indemnity
and/or contribution arises from Florida Marine’s (1) negligence in providing proper information
to CJR resulting in the fabrication of the first propeller, (2) negligence in the preparation of scans
and specifications provided to CJR resulting in the fabrication of the second propeller, and (3)
negligence in the supervision of CJR such that two incorrect propellers were fabricated, causing
a twelve-to-fourteen-week delay to the vessel’s repair. Id. at ¶ 11.
In response to the Third-Party Complaint, Florida Marine seeks dismissal of the
indemnity and contribution claims or alternatively requests a more definite statement. See ECF

3

CASE No. 17-cv-62578-BLOOM/Valle
No. [30]. Bradford Marine’s Memorandum of Law in Opposition and Florida Marine’s Reply
timely followed. See ECF Nos. [33] and [35]. The Motion is now ripe for adjudication.
II.

LEGAL STANDARD
a. Motion to Dismiss
A pleading in a civil action must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint
“does not need detailed factual allegations,” it must provide “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557
(alteration in original)).
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the
factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental

4

CASE No. 17-cv-62578-BLOOM/Valle
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A
court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint
and attached exhibits, including documents referred to in the complaint that are central to the
claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc.
v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four
corners of the complaint may still be considered if it is central to the plaintiff’s claims and is
undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.
2002)).
b. Motion for a More Definite Statement
Under Rule 12(e) of the Federal Rules of Civil Procedure, “a party may move for a more
definite statement of a pleading to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). Since
courts have liberally construed the pleading standard under Rule 8(a), “a short and plain
statement” will be enough, unless upon motion it is shown that the pleading “is so ambiguous
that a party cannot reasonably” respond. Betancourt v. Marine Cargo Mgm’t, Inc., 930 F. Supp.
606, 608 (S.D. Fla. 1996). “Most courts disfavor the use of Rule 12(e),” and “motions for a more
definite statement should not be used as a means of discovery.” Royal Shell Vacations, Inc. v.
Scheyndel, 233 F.R.D 629, 630 (M.D. Fla. 2005).
III.

DISCUSSION
Florida Marine seeks to dismiss the Third-Party Complaint for indemnity and

contribution under Florida law. See ECF No. [30]. More specifically, Florida Marine argues
that, under Florida law, a common-law claim for indemnity requires allegations establishing that
(1) the plaintiff is wholly without fault while the defendant is at fault for the underlying claim of
negligence and (2) that a special relationship exists between the plaintiff and the defendant. Id.
5

CASE No. 17-cv-62578-BLOOM/Valle
at 4-5. Because the Third-Party Complaint does not contain such allegations, Florida Marine
seeks dismissal. Id. As to contribution, Florida Marine argues that, under Florida law, a party
may not file a claim for contribution unless it has paid more than its pro rata share of common
liability or has had judgment entered against it – neither of which are alleged here. Id. at 7.
In response, Bradford Marine argues that Florida law does not apply to the claims
asserted in the Third-Party Complaint because “[t]he action pending before this court is an action
sounding within the court’s admiralty and maritime jurisdiction, 28 U.S.C. § 1333. . .” ECF No.
[33] at 2. In further support of its argument, Bradford Marine states that “[s]ince this case
involves maritime contracts, a written one between AIG’s insured and [Bradford Marine] and
oral one between [Bradford Marine] and [Florida Marine], substantive maritime law applies to
this action.” Id. Under maritime law, it is Bradford Marine’s position that the oral contract
between Bradford Marine and Florida Marine contains an implied promise by Florida Marine to
perform the work in a diligent and workmanlike manner and it is the breach of this promise that
gives rise to a claim for indemnity. Id. at 4. In its Reply, Florida Marine does not dispute that
the claims may be subject to maritime law but instead expresses confusion as to whether
Bradford Marine is asserting claims for indemnity, contribution, breach of contract, negligence
or breach of implied warranty of workmanlike performance. See ECF No. [35] at 3. For that
reason, it asks the Court to dismiss the Third-Party Complaint without prejudice or to require a
more definite statement that clearly articulates the claims are at issue with facts supporting each
individual claim. Id. at 3-4.
The Court agrees that dismissal with leave to amend is warranted as Bradford Marine has
failed to state a claim. Starting with Bradford Marine’s position that this action arises under the
Court’s admiralty and maritime jurisdiction, nowhere in the Third-Party Complaint does

6

CASE No. 17-cv-62578-BLOOM/Valle
Bradford Marine assert the basis for the Court’s subject-matter jurisdiction over the indemnity
and contribution claims, much less any affirmative assertion that maritime law applies. See ECF
No. [5]. Further, although AIG’s Complaint alleges in paragraph 3 that the Court has admiralty
jurisdiction pursuant to 28 U.S.C. § 1333, Bradford Marine denied this allegation in its Answer
and Affirmative Defenses and Third-Party Complaint. See ECF No. [1] at ¶ 3; ECF No. [5] at
1. 1 This pleading, therefore, fails to provide notice of Bradford Marine’s invocation of the
Court’s admiralty jurisdiction or maritime law.
In addition, Bradford Marine states that its claim for indemnity and contribution is
premised upon an oral contract between itself and Florida Marine. In support of this argument, it
correctly argues that “[a] contract to repair a vessel invokes admiralty jurisdiction” and that oral
contracts are regarded as valid under maritime law.

Diesel "Repower", Inc. v. Islander

Investments Ltd., 271 F.3d 1318, 1322–23 (11th Cir. 2001); Kossick v. United Fruit Co., 365
U.S. 731, 734 (1961). However, within the four corners of the Third-Party Complaint, there is no
information about the nature of the relationship between these two entities, much less an
allegation that they entered into an oral contract or what that oral contract entailed. In making
this argument, Bradford Marine assumes un-pled facts. The Court cannot go outside the four
corners of the Third-Party Complaint on a motion to dismiss.
Bradford Marine then argues that, within the unpled oral agreement, there was an implied
promise by Florida Marine to perform the contracted work in a diligent and workmanlike
manner. Bradford Marine is again correct in stating that a repair contract includes an implied
warranty that such work will be performed in a workmanlike manner and that a breach of this

1

In its Answer, Bradford Marine admitted paragraphs 2, 5, 6, 7, 8, 9, 12, 13, and 14 and stated it is without
knowledge as to the allegations in paragraphs 2 and 4. See ECF No. [5]. According to the Answer, “[a]ll allegations
of the three count Complaint not specifically admitted herein are denied.” Id. Because paragraph 3 of the
Complaint invoking admiralty jurisdiction was not specifically admitted, Bradford Marine denied it.

7

CASE No. 17-cv-62578-BLOOM/Valle
warranty gives rise to a claim for indemnity. See Am. Exp. Lines v. Norfolk Shipbuilding &
Drydock Corp., 336 F.2d 525, 526 (4th Cir. 1964). However, this argument again assumes that
Bradford Marine pled the existence of such a repair contract, the existence of such an implied
warranty, or the breach of such an implied warranty. None of these facts are pled. Apparently
recognizing this shortcoming, Bradford Marine argues that paragraph 10 of the Third-Party
Complaint sets out the breach of the warranty of workmanlike performance claim and that “the
use of the work ‘negligence’ in paragraph 10 does not change the fact that the gravamen of the
Third Party Complaint is breach of the warranty of workmanlike performance on the part of
[Florida Marine].” ECF No. [33] at 5. Again, paragraph 10 makes no mention of a contract, the
implied warranty, the breach of the warranty, or that the right to indemnity stems from this
alleged breach. For these reasons, Bradford Marine will be required to file an amended pleading
that properly pleads the elements of an indemnity claim under maritime law arising from the
breach of the warranty of workmanlike performance.
With regard to the claim for contribution, the Court cannot discern the basis for this
claim as it appears to be pled interchangeably with the claim for indemnity even though the two
are distinct. See ECF No. [5] at ¶ 10 (Bradford Marine “is entitled to indemnification and/or
contribution . . .”); ¶ 11 (“Bradford is entitled to indemnity and/or contribution from Third Party
Defendant . . .”). In its response, Bradford Marine does not address its contribution claim other
than to say that Florida Marine’s reliance on Florida contribution law is misplaced. See ECF No.
[33] at 5. To the extent that Bradford Marine seeks to allege a separate claim for contribution
under maritime law in its amended pleading, it shall separately plead that claim along with the

8

CASE No. 17-cv-62578-BLOOM/Valle
facts supporting its claim for contribution. See Fed. R. Civ. P. 8(a). Bradford Marine’s ThirdParty Complaint is, therefore, due to be dismissed without prejudice. 2
IV.

CONCLUSION

For the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Third-Party Defendant Florida Marine Propulsion Corp.’s Motion to Dismiss for
Failure to State a Cause of Action, or alternatively, Motion for More Definite
Statement, ECF No. [30], is GRANTED.
2. The Third-Party Complaint, ECF No. [5], is DISMISSED WITHOUT
PREJUDICE.
3. Third-Party Plaintiff Bradford Marine, Inc. shall file its Amended Third-Party
Complaint no later than May 26, 2018.
DONE AND ORDERED in Miami, Florida, this 14th day of May, 2018.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

2

Because the Court has granted the Motion to Dismiss, it need not reach the alternative request for a more definite
statement.

9