Matthews v. Whitewater West Industries, Ltd. et al
Filing
129
ORDER denying 110 Motion for Summary Judgment; denying 111 Motion for Reconsideration. Signed by Judge Cecilia M. Altonaga on 12/3/2012. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24424-CIV-ALTONAGA/Simonton
DAVID MATTHEWS,
Plaintiff,
vs.
WHITEWATER WEST
INDUSTRIES, LTD., et al.,
Defendants.
__________________________/
ORDER
THIS CAUSE comes before the Court on Defendant, Whitewater West Industries, Ltd.’s
(“Whitewater[’s]”) Amended Motion for Reconsideration . . . (“Motion for Reconsideration” or
“MFR”) [ECF No. 111] and Amended Motion for Summary Judgment . . . (“Motion for
Summary Judgment” or “MSJ”) [ECF No. 110] (collectively, “Motions”), filed October 11,
2012. The Court has carefully considered the parties’ written submissions and applicable law.
I. BACKGROUND
Prior to addressing the legal issues raised by Whitewater’s Motions, the undersigned
summarizes the relevant background and procedural facts.
A. Whitewater’s Statements of Material Facts1
Each of Whitewater’s Motions contains a Statement of Material Facts (collectively
“Statements” or “SMFs”), each of which is nearly identical to the other.2 The facts contained in
1
2
The facts set forth in this section are undisputed.
The only difference between the two Statements is that the Statement in support of the Motion for
Summary Judgment contains additional paragraphs discussing: (1) the discharge clause contained in two
CASE NO. 11-24424-CIV-ALTONAGA/Simonton
the Statements can be divided into two categories: those that are based upon the allegations of
the Complaint [ECF No. 1], and those based upon various exhibits attached to the Motions.
i. Allegation-Based Facts
This is an action by a resort guest, David Matthews (“Matthews”), against a waterslide
manufacturer, Whitewater, among other defendants, based upon injuries the resort guest suffered
while riding a waterslide (“Waterslide”) at the Atlantis Resort (“Atlantis”) in The Bahamas. (See
SMFs ¶ 1). On December 8, 2011 Matthews filed his Complaint against Whitewater.
Matthews suffered his injury on December 11, 2009, while a guest of Atlantis. (See id. ¶
4 (citing Compl. ¶ 16)). Atlantis operates and supervises the use of the Waterslide on its
premises, encouraging guests to use it. (See id. ¶ 12 (citing Compl. ¶ 16)). The Waterslide
features two adjacent waterslides that allow guests to race to the bottom. (See id. ¶ 5 (citing
Compl. ¶ 18)).
Prior to using the Waterslide, an Atlantis employee provided Matthews
instructions regarding how to properly use it. (See id. ¶ 6 (citing Compl. ¶ 19)). At the end of
the ride, Matthews was injured when his legs hit the bottom of the pool the Waterslide emptied
into, thereby causing him to suffer a tibia plateau fracture. (See id. ¶ 7 (quoting Compl. ¶ 19)).
Whitewater was responsible for the manufacturing and/or construction and maintenance of the
Waterslide. (See id. ¶ 13 (citing Compl. ¶ 14)).
Based on his injuries, Matthews brings tort claims against various defendants, including
Whitewater. (See id. ¶ 8). Only those claims against Whitewater — Counts Four and Five of the
Complaint for strict products liability — are at issue in the present Motions. Count Four alleges
strict liability for defective design, stating that: (1) Whitewater defectively designed the
Waterslide in such a way that it was rendered unreasonably dangerous, and the Waterslide did
Releases signed by Matthews (see Exs. 1 & 2 [ECF Nos. 110-1 & 111-1]) (see id. ¶ 19); and (2) an
Affidavit [ECF No. 110-1] from Robert K. Adams (“Adams”), a Bahamian attorney (see id. ¶ 20).
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not perform as safely as an ordinary customer would expect, although it was being used in a
reasonably foreseeable manner (see id. ¶ 11 (citing Compl. ¶¶ 53–57)); and (2) the defective
design of the Waterslide was the direct and proximate cause of Matthews’ injury (see id. ¶ 10
(citing Compl. ¶ 58)). Count Five alleges a failure to warn claim, stating that: (1) Whitewater
failed to place sufficient or adequate warnings on the Waterslide, which rendered it unreasonably
dangerous in a manner that was not readily apparent (see id. ¶ 11 (citing Compl. ¶¶ 61–66)); and
(2) the failure to warn defect was the direct and proximate cause of Matthews’ injury (see id. ¶ 1
(citing Compl. ¶ 67)).
ii. Exhibit-Based Facts
Having outlined the foregoing allegations, Whitewater discusses two Releases, attached
to each of the Motions, which are signed by Matthews. (See id. ¶¶ 15–17). The Releases are
newly-discovered evidence, received by Atlantis in July 2012. (See id. ¶ 18). The first Release
is dated December 9, 2009 — prior to the accident and during the same stay during which
Matthews was injured — while the second Release is dated December 8, 2010 — approximately
one year after the accident and during a subsequent stay at Atlantis by Matthews. (See id. ¶¶ 15–
17).
The Releases state:
I agree, on behalf of myself and the members of my traveling party listed below,
to assume all risks incidental to participation in the Activities (which risks may
include, among other things, muscle injuries and broken bones, drowning,
seasickness, sea-creature attack, or death) and, on my own behalf and on behalf of
the members of my traveling party and on behalf of my and their heirs, executors
and administrators, to release and forever discharge the “Resort Parties” (defined
below) of and from all liabilities, claims, actions, damages, costs or expenses, of
any nature arising out of or in anyway connected with our participation in the
Activities, and further agree to indemnify and hold each of the Resort Parties
harmless against any and all such liabilities, claims, actions, damages, costs or
expenses, including but not limited to, all attorney’s fees and disbursements.
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(Releases 1). The Releases define the “Resort Parties” as
Kerzner International Holdings Limited, Kerzner International Limited, Kerzner
International Bahamas Limited, Atlantis Holdings (Bahamas) Limited, Ocean
Club Holdings Limited, Paradise Island Holdings Limited, Paradise Island
Limited, Island Hotel Company Limited, and Paradise Enterprises Limited,
Harborside at Atlantis Development Limited and Harborside at Atlantis
Management Limited, along with their parent, related and affiliated companies at
every tier, and the officers, directors, employees, agents, representatives,
successors and assigns of each of the foregoing entities.
(Id.). The Releases contain the following forum selection and choice of law clause:
I agree that any claims I may have against the Resort Parties resulting from any
events occurring in The Bahamas shall be governed by and constructed in
accordance with the laws of the Commonwealth of The Bahamas, and further, I
irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue
for any such proceedings whatsoever.
(Id.).
The Statement in support of the Motion for Reconsideration concludes with a discussion
of the Releases. (See MFR-SMF ¶ 20). The Statement in support of the Motion for Summary
Judgment, however, discusses one additional exhibit that is only attached to that Motion: the
Adams Affidavit. (See MSJ-SMF ¶ 22). Adams, an attorney who has been licensed to practice
law in The Bahamas since 1994, is a partner of “one of the oldest and most respected law firms”
in The Bahamas. (Adams Aff. ¶ 3).
Adams offers two points for the Court’s consideration.
The first is included in
Whitewater’s Statement:
Under Bahamian law, Strict Product [sic] Liability is not recognized as a cause of
action and, [sic] Defendant [], would not be held liable to the Plaintiff in respect
of the claims for damages for Strict Products Liability, pleaded in this action,
under Bahamian law.
(MSJ-SMF ¶ 22 (quoting Adams Aff. ¶ 4) (internal quotation marks omitted)). The second
point, which is left out of the Statement, clarifies that
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CASE NO. 11-24424-CIV-ALTONAGA/Simonton
[w]hile, [sic] the Strict Products Liability claims pleaded in this action are not
recognized causes of action under Bahamian law, the same allegations of fact
could be properly advanced in support of a different liability theory in tort that
would give rise to a recognized cause of action under Bahamian law.
(Adams Aff. ¶ 5).
B. Previously-Filed Motions
Approximately six weeks after Matthews filed the Complaint, Whitewater filed a Motion
to Dismiss for Forum Non Conveniens (“Motion to Dismiss”) [ECF No. 33]. In the Motion,
Whitewater maintained the Complaint should be dismissed because the accident occurred in The
Bahamas; Atlantis was not a party to the lawsuit; Matthews was not a Florida resident;
Whitewater was a foreign corporation with its principal place of business in Canada; the liability
and damages witnesses resided outside of Florida; and Matthews had added additional
defendants who have no relationship to the Waterslide or its maintenance in an effort to create
the appearance that Florida was an appropriate forum, when it is not. (See generally Mot. to
Dism.). Matthews opposed the Motion, arguing the strong federal interest in affording U.S.
citizens the right to choose an American forum for bringing suit, the balance of the private and
public interest factors weighed in his favor, and because a dismissal would leave him trying two
cases in two different countries inasmuch as the other defendants in the case had not moved to
dismiss the suit. (See generally Resp. to Mot. to Dism. [ECF No. 51]). On May 8, 2012, the
Court issued an Order [ECF No. 76] denying Whitewater’s Motion to Dismiss.
Thereafter, on July 17, 2012, Whitewater filed a Motion for Judgment on the Pleadings
(“Motion for Judgment”) [ECF No. 97].
Whitewater maintained it was entitled to judgment
because Matthews’ strict liability claims had to be dismissed under Bahamian and Florida law.
Specifically, Whitewater argued that Bahamian law did not recognize a cause of action for strict
products liability. Whitewater further maintained it was entitled to judgment under Florida law
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CASE NO. 11-24424-CIV-ALTONAGA/Simonton
because “‘[p]rinciples of strict products liability do not apply to structural improvements to real
property,’” and the Waterslide constitutes a structural improvement to real property. (Id. 4
(quoting Craft v. Wet ‘N Wild, Inc., 489 So. 2d 1221, 1222 (Fla. 5th DCA 1986)). Matthews
responded that Whitewater had failed to establish that Bahamian law did not recognize a cause of
action for strict products liability, and, moreover, the Waterslide was not a structural
improvement to real property under Florida law. (See generally Resp. to Mot. for Judg. [ECF
No. 105]). Matthews also argued judgment was inappropriate because Whitewater had “failed to
show based on the pleadings that no material issues of fact exist.” (Id. 4). On August 28, 2012,
the Court issued an Order [ECF No. 107] denying the Motion for Judgment on the basis that
Whitewater had failed to establish that either Bahamian law or Florida law would not recognize
Matthews’ claims. The Court explained that the parties’ failure to brief the choice of law issue
underlying the lawsuit required the undersigned to dispose of the Motion for Judgment under
both jurisdictions’ laws.
Approximately six weeks later, on October 11, 2012, Whitewater filed the present
Motions. Whitewater’s Motion for Reconsideration seeks reconsideration of the May 8, 2012
Order, while the Motion for Summary Judgment seeks to re-litigate many of the same issues
addressed in the August 28, 2012 Order. On November 8, 2012, Matthews filed Responses to
the Motions (see Resp. to MFR [ECF No. 119]; Resp. to MSJ [ECF No. 120]). Matthews does
not take issue with any of the factual allegations contained in the Motions; he only disputes their
legal implications. On November 19, 2012, Whitewater filed its Replies (see MFR Repl. [ECF
No. 124]; MSJ Repl. [ECF No. 123]). The Court addresses the parties’ legal arguments below.
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II. LEGAL STANDARDS
A. Motion for Reconsideration
“The purpose of a motion for reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence.” Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp.
1561, 1563 (S.D. Fla. 1992) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985),
cert. denied, 476 U.S. 1171 (1986)). “Courts have distilled three major grounds justifying
reconsideration: (1) an intervening change in controlling law; (2) the availability of new
evidence; and (3) the need to correct clear error or manifest injustice.” Instituto de Prevision
Militar v. Lehman Bros., Inc., 485 F. Supp. 2d 1340, 1342 (S.D. Fla. 2007) (quoting Cover v.
Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993)) (internal quotation marks
omitted). The reconsideration decision is granted only in extraordinary circumstances and is
“committed to the sound discretion of the district judge.” Tristar Lodging, Inc. v. Arch Specialty
Ins. Co., 434 F. Supp. 2d 1286, 1301 (M.D. Fla. 2006) (quoting Am. Home Assur. Co. v. Glenn
Estess & Assocs., Inc., 763 F.2d 1237, 1238–39 (11th Cir. 1985)) (internal quotation marks
omitted).
B. Motion for Summary Judgment
Summary judgment shall be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). In
making this determination, “the court must view all evidence and make all reasonable inferences
in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012,
1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.
1995)). “An issue of fact is material if it is a legal element of the claim under the applicable
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substantive law which might affect the outcome of the case.” Burgos v. Chertoff, 274 F. App’x
839, 841 (11th Cir. 2008) (quoting Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(internal quotation marks omitted). A factual dispute is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Channa Imps., Inc. v. Hybur,
Ltd., No. 07-21516-CIV, 2008 WL 2914977, at *2 (S.D. Fla. Jul. 25, 2008) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
III. DISCUSSION
Whitewater’s Motion for Reconsideration argues that the Releases’ forum selection
clause requires dismissal in favor of The Bahamas. The Motion for Summary Judgment argues
that the Releases’ choice of law clause requires the application of Bahamian law, which does not
recognize a cause of action for strict products liability; or, alternatively, that Matthews cannot
maintain a cause of action for his injury because the Releases contain a discharge of liability
clause.
A. Whitewater’s Motion for Reconsideration
According to Whitewater, the forum selection clause constitutes newly-discovered
evidence, effects a change in controlling law, and evidences that manifest injustice will occur
unless the Court dismisses the lawsuit. (See Mot. for Recons. 1). These arguments turn upon
Whitewater’s view that it “qualifies as an employee, agent and representative of The Resort
Parties,” such that the forum selection clause contained in Releases should apply to Matthews’
claims. (MFR 8 (footnote call number omitted); see MFR Repl. 2–3).
Matthews does not dispute that the Releases constitute newly-discovered evidence or that
the Court can properly consider them on a motion for reconsideration. (See generally Resp. to
MFR). Matthews disagrees, however, that the Releases are enforceable because Whitewater has
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not presented any evidence that: (1) Matthews signed the Releases with knowledge of their
contents; (2) Matthews had prior notice he would have to sign the Releases; or (3) the Releases
were reasonably communicated. (See id. 2–3). Mathews further maintains that the Releases are
not applicable to Whitewater, as Whitewater “fail[s] to provide a shred of proof that it is a
‘Resort Party’ as contemplated by the plain language of the Kerzner forum selection clause.”
(Id. 2).
The parties’ arguments raise two overarching issues: first, are the Releases enforceable,
and second, do they apply to Whitewater? As to the first, the Court agrees with Whitewater that
the forum selection clause is enforceable. Under Eleventh Circuit precedent, “[f]orum-selection
clauses are presumptively valid and enforceable unless the plaintiff makes a strong showing that
enforcement would be unfair or unreasonable under the circumstances.” Krenkel v. Kerzner Int’l
Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (internal quotation marks and citations
omitted). Further, courts in this Circuit routinely uphold forum selection clauses just like the
forum selection clause at issue here. See, e.g., id.; Miyoung Son v. Kerzner Int’l Resorts, Inc.,
07-61171-CIV, 2008 WL 4186979, *7 (S.D. Fla. Sept. 5, 2008). It is therefore incumbent upon
Matthews to explain why enforcement under the particular circumstances of this case would be
unreasonable. Yet Matthews takes precisely the opposite position in his Response, arguing the
Motion for Reconsideration should be denied because Whitewater has failed to present evidence
as to why the forum selection clause is enforceable. (See Resp. 2–3). Matthews thus fails to
present any argument or evidence as to why enforcement would be unfair or unreasonable under
the circumstances. Because Matthews fails to make the requisite “strong showing,” Krenkel, 579
F.3d at 1281, the Court assumes, for purposes of the instant Motion, that the forum selection
clause is enforceable.
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The next issue is whether Whitewater is entitled to the protection of the forum selection
clause. To justify reconsideration and obtain dismissal under the forum selection clause, the
Releases must apply to Whitewater. This is less than clear, however, because the Releases only
apply to the “Resort Parties,” and it is not obvious from the definition offered in the Releases that
Whitewater is, in fact, a Resort Party. Again, the Releases define the Resort Parties as the
“officers, directors, employees, agents, representatives, successors and assigns” — as well as the
“parent, related and affiliated companies” — of the following entities (“Entities”):
Kerzner International Holdings Limited, Kerzner International Limited, Kerzner
International Bahamas Limited, Atlantis Holdings (Bahamas) Limited, Ocean
Club Holdings Limited, Paradise Island Holdings Limited, Paradise Island
Limited, Island Hotel Company Limited, and Paradise Enterprises Limited,
Harborside at Atlantis Development Limited and Harborside at Atlantis
Management Limited . . . .
(Releases 1).
Whitewater’s position on the issue is that the allegations in the Complaint demonstrate
Whitewater qualifies as a Resort Party. To make its case, Whitewater first notes that Matthews
“alleges that at all times material Whitewater was responsible for the manufacturing and/or
construction and maintenance of [the] Waterslide.” (SMF ¶ 13 (citing Compl. ¶ 14)) (footnote
call number omitted). In the next paragraph, Whitewater essentially reiterates the same point:
Plaintiff alleges that Whitewater was responsible for the manufacturing and/or
construction and maintenance of The Challenger Waterslide, which was operated
and supervised by the Atlantis Resort upon the Atlantis Resort’s premises, and
which guests were encouraged to ride. . . . Essentially, Plaintiff has alleged that
Whitewater has an agency relationship with the Atlantis Resort.
(Id. ¶ 14 (citing Compl. ¶¶ 14, 16) (footnote call number and internal citations omitted)).3
3
Whitewater adds in a footnote that although it “refutes” Matthews’
allegations as it pertains to maintenance [of the Waterslide], in assessing these facts, the
Court “must view all the evidence and all factual inferences reasonably drawn from the
evidence in the light most favorable to the nonmoving party,” Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997), and “must
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There are, to be sure, a variety of problems with Whitewater’s argument. Whitewater, as
the party moving for reconsideration of an earlier order, has the burden to establish the facts that
support its Motion. See Moten v. Broward County, Fla., No. 10-62398-CIV, 2012 WL 664241,
at *1 (S.D. Fla. Feb. 28, 2012) (quoting Reyher v. Equitable Life Assur. Soc. of U.S., 900 F.
Supp. 428, 430 (M.D. Fla. 1995)) (noting that the moving party on a motion for reconsideration
must “demonstrate why the court should reconsider its prior decision and set forth facts or law of
a strongly convincing nature to induce the court to reverse its prior decision.”) (internal quotation
marks omitted). Yet Whitewater has presented no actual facts that pertain to the relationship
between Whitewater and the Entities; it only points out what Matthews alleges in the Complaint
as to that relationship. Thus, Whitewater’s Statement does not actually assert facts bearing on
the resolution of who the Resort Parties are.
For this reason alone, the Motion for
Reconsideration might be denied.
Even assuming the Court was to accept Whitewater’s characterization of the allegations
as “facts,” the Motion for Reconsideration still fails.
Whitewater states that, according to
Matthews’ allegations, Whitewater qualifies as an “employee, agent and representative of The
Resort Parties.” (MFR 8 (footnote call number omitted); see also MFR Repl. 2–3). Such
allegations are nowhere to be found in the Complaint. Matthews only alleges that Whitewater
resolve all reasonable doubts about the facts in favor of the non-movant.” United of
Omaha Life Ins. Co. v. Sun Life Ins. Co. of America, 894 F.2d 1555, 1558 (11th Cir.
1990).
(SMFs ¶ 13 n.1; see SMFs ¶ 14 n.2). This argument is incoherent. On the one hand, Whitewater asserts
that Matthews alleges Whitewater is responsible for maintenance of the Waterslide. On the other hand,
Whitewater asserts it is not actually responsible for maintenance of the Waterslide. Notwithstanding both
of these assertions, Whitewater argues the Court should accept as a material fact that Whitewater is
responsible for maintenance of the Waterslide because of the summary judgment standard. Under the
summary judgment standard, however, the Court can only conclude this fact is disputed, because
Whitewater itself “refutes” it.
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was responsible for “designing, selecting parts and materials for, developing, manufacturing,
assembling, packaging, testing, advertising, marketing and selling” the Waterslide, “which was
part of the water park facilities of the Atlantis Resort . . . .” (Compl. ¶ 51). These allegations do
not establish, by their own terms, the relevant classification of Whitewater’s relationship with the
Entities as it pertains to the sale of the Waterslide. Nor does Whitewater offer any legal
argument to clarify the issue, instead providing the Court with mere conclusory statements and
bald assertions. (See, e.g., MFR 8 (“Defendant Whitewater qualifies as an employee, agent and
representative of The Resort Parties and the choice of law and venue provision should apply to
this proceeding.”) (footnote call number omitted)); (MFR Repl. 2 (“The plain language of the
Releases speak for themselves and are rather broad. Whitewater at minimum qualifies as an
agent or affiliated company.”)). Thus, Matthews is correct that Whitewater simply
points to a single boilerplate line [sic] the forum selection clause and is asking the
Court to make the legal determination that it is in fact an agent or representative
of the Kerzner companies. W[hitewater] is asking the Court to extend the forum
selection clause to protect them, when there is no evidence that the forum
selection clause was meant [sic] contemplates W[hitewater] or any other entity
not in the Kerzner family of companies.
(Resp. to MFR 3).
Because Whitewater has failed to meet its burden of “set[ting] forth facts or law of a
strongly convincing nature to induce the court to reverse its prior decision,” Moten, 2012 WL
664241, at *1 (quoting Reyher, 900 F. Supp. at 430) (internal quotation marks omitted),
reconsideration is not warranted.
B. Motion for Summary Judgment
At the heart of Whitewater’s Motion for Summary Judgment are two similar Release-based
arguments.
Whitewater asserts it is entitled to judgment because the Releases require the
application of Bahamian law, which does not recognize a cause of action for strict products
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liability. Whitewater further contends that the Releases discharge Whitewater of any and all
liability. Like Whitewater’s Motion for Reconsideration, each of these arguments turns upon
whether Whitewater qualifies as a Resort Party.
A district court can only grant summary judgment if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c). In making this determination, the Court must view all evidence and make all reasonable
inferences in favor of the non-movant. See Chapman, 229 F.3d at 1023 (citation omitted).
Applying these principles to the instant Motion, Whitewater’s argument that it qualifies as a
Resort Party must be rejected here for the exact reason it was previously rejected: there is a lack
of evidence as to Whitewater’s relationship with the Entities and the absence of any explanation
as to why Whitewater qualifies as an agent, employee, or representative under the Releases.
Thus, “resolv[ing] all reasonable doubts about the facts in favor of the non-movant,” United of
Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir. 1990) (citations
omitted), the Court cannot conclude, for purposes of the instant Motion, that Whitewater
qualifies as a Resort Party, thereby precluding the application of the choice-of-law and discharge
of liability clauses contained in the Releases.
Having reached this conclusion, Whitewater’s second argument — that it is entitled to
summary judgment because the Releases discharge Whitewater of all liability — necessarily
fails. So, too, does Whitewater’s first argument, although it requires a bit more analysis.
Whitewater’s first argument rests upon two prongs: (1) that “[t]he mandatory choice of law
provision require[s] Bahamian law be applied,” and because (2) “Bahamian Law does not
recognize a cause of action [for] strict products liability.”
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(MSJ 9).
The first prong of
CASE NO. 11-24424-CIV-ALTONAGA/Simonton
Whitewater’s argument clearly is no longer tenable, as it has not been established that the
Releases apply to Whitewater. But this raises the question as to whether the second prong —
that Bahamian law does not recognize a cause of action for strict products liability — could, if
true, enable Whitewater to prevail on its Motion.
The Court previously addressed this issue in its August 28, 2012 Order, explaining that:
(1) it was unclear under choice of law principles whether Bahamian law or Florida law was
applicable to Matthews’ claims; (2) without briefing on the issue — given the multi-factor nature
of the choice of law analysis in Florida — the Court would not resolve it for the parties; and (3)
this meant that in order for Whitewater to prevail on its Motion for Judgment on the Pleadings,
Whitewater would need to prove that both Florida and Bahamian law would not recognize
Matthews’ claims. (See Id. 4–5). Incredibly, once again Whitewater has failed to address the
outstanding choice of law issue, having relied upon the choice of law clause contained in the
Releases to establish the applicability of Bahamian law rather than the significant relationships
test applied in Florida. See Chierchia v. Treasure Cay Services, 738 F. Supp. 1386, 1389 (S.D.
Fla. 1990) (citing Bishop v. Florida Specialty Paint Co., 389 So. 2d 999 (Fla. 1980)). This
oversight defeats the second prong of Whitewater’s first argument for purposes of resolving the
Motion for Summary Judgment; even assuming Bahamian law does not recognize Matthews’
claims, it is unknown whether Bahamian law applies to the lawsuit. Whitewater’s assertion
based upon Bahamian law thus fails to persuade.
Accordingly, summary judgment is not appropriate.
IV. CONCLUSION
For the foregoing reasons, it is
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ORDERED AND ADJUDGED that Whitewater’s Motion for Reconsideration [ECF
No. 111] and Motion for Summary Judgment [ECF No. 110] are DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 3rd day of December,
2012.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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