Kol B'Seder, Inc. v. Certain Underwriters at Lloyd's of London Subscribing to Certificate No. 154766 under Contract No. B0621MASRSWV15BND et al

Filing 100

OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT denying as moot 47 Motion in Limine; denying as moot 48 Motion in Limine; granting 66 Motion for Summary Judgment; granting 69 Motion for Summary Judgment; denying as moot 85 Motion in Limi ne; denying as moot 86 Motion in Limine. Closing Case. Motions Terminated: 85 Defendant's MOTION in Limine as to Damages filed by Certain Underwriters at Lloyd's of London Subscribing to Certificate No. 154766 under C ontract No. B0621MASRSWV15BND, 86 Defendant's MOTION in Limine as to Causation filed by Certain Underwriters at Lloyd's of London Subscribing to Certificate No. 154766 under Contract No. B0621MASRSWV15BND, 66 Defendant' s MOTION for Summary Judgment filed by Certain Underwriters at Lloyd's of London Subscribing to Certificate No. 154766 under Contract No. B0621MASRSWV15BND, 48 Plaintiff's MOTION in Limine to Exclude Opinions and Testimony of Stewart Hutcheson filed by Kol B'Seder, Inc., 69 MOTION for Summary Judgment on Plaintiff's Claims and On Count II of Counterclaim filed by Glass-Tech Corp., 47 MOTION in Limine to Exclude Opinion of David Mo rris or his Phantom Report filed by Glass-Tech Corp.. Signed by Judge Marcia G. Cooke on 5/30/2017. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-22237-Civ-COOKE/TORRES
KOL B’SEDER, INC.,
a Florida Corporation,
Plaintiff,
vs.
CERTAIN UNDERWRITERS AT
LLOYD'S OF LONDON SUBSCRIBING
TO CERTIFICATE NO.154766
UNDER CONTRACT NO.
B0621MASRSWV15BND, and
GLASS-TECH CORPORATION,
A Florida Corporation
Defendants.
_____________________________________/
OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This is an admiralty action stemming from the partial submersion of a yacht
at a boatyard on the Miami River. Plaintiff Kol B’Seder, Inc. (“Kol B’Seder”) brings
suit against Defendant Certain Underwriters at Lloyd’s of London subscribing to
Certificate

No.

154766

under

Contract

No.

B0621MASRSWV15BND

(“Underwriters”) alleging breach of insurance contract, and against Defendant GlassTech Corporation (“Glass-Tech”) alleging breach of contract, breach of warranty of
workmanlike performance, and negligence. (ECF No. 76 ¶ 1). I have jurisdiction
under 28 U.S.C. § 1333.
Pending are (1) Certain Underwriters’ Motion for Final Summary Judgment
(ECF No. 66), and (2) Glass-Tech’s Motion for Summary Judgment Against
Plaintiff & Motion for Summary Judgment Against Counter-Defendant (ECF No.
69). For the reasons that follow, I grant the Motions.
BACKGROUND
Kol B’Seder bought the M/Y Sababa, a now eighteen-year-old motor yacht, in
2002. (ECF No. 76 ¶ 2; ECF No. 53-1 at 15, 17). It did so planning eventually to
offer charters to and from the Bahamas. (ECF No. 53-1 at 43-45). In the years
1

following the purchase, Kol B’Seder’s principal owner, Noreen Sablotsky, docked
the yacht at her waterfront home (Id. at 62-63) and operated it in and around
Biscayne Bay, the Miami River and, occasionally, the Bahamas. (Id. at 16). During
the period relevant to this lawsuit, Kol B’Seder insured the vessel through
Underwriters.1 (ECF No. 79-1).
Prior to the Sababa’s partial submersion, Sablotsky did not know how often a
vessel should undergo routine maintenance or be hauled out of the water for repairs.2
(Id. at 170-74). But she claims that someone checked the Sababa’s engines and bilge
systems weekly (Id. at 19, 116, 119), and that a scuba diver cleaned the yacht’s hull
monthly.3 (Id. at 33). Despite those efforts, the passage of time was not kind to the
Sababa. In 2008, she had engine trouble that took two years to fix. (Id. at 39). Also in
2008, the vessel required work on its rudder. (Id. at 132-34; ECF No. 68-2 at 16-18).
In 2012, the vessel again had engine problems that required extensive repair work.
(ECF No. 53-1 at 41, 135-40). It had repairs to its hull in April 2013 (Id. at 34-43;
135-40),4 and in August 2015, Sablotsky’s diver told his boss the yacht needed a haulout. (ECF No. 68-4 at 17-18, 38).
Then, in March 2016, Sablotsky claims the Sababa touched bottom in a
channel leading to Biscayne Bay. (Id. at 63). Sablotsky says she did not feel an
impact sufficient to suspect damage, and surmised that the vessel’s propellers had
simply kicked up mud. (Id. at 23-26, 63, 69, 71-72). She therefore did not stop to
determine whether touching bottom affected the integrity of the hull. (Id. at 70-71).
She also did not inform Underwriters of the incident. (ECF No. 66 ¶¶ 28, 30).
Sablotsky testified that by that point, the Sababa had mechanical problems
1

The Underwriters policy at issue – The SeaWave Yacht Insurance Policy
[Certificate 154766] (the “Policy”) – was effective during the period from January
23, 2016 to January 23, 2017. (ECF No. 79-1).
2

Sablotsky came to learn that the recommended period between haul-outs is twelve
to eighteen months. (ECF No. 53-1 at 174).
3

Sablotsky kept few maintenance records or logbooks for the vessel. (ECF 53-1 at
19, 33).
4

This haul-out was the last time the vessel had a visual inspection or any bottom
work done before its partial submersion. (ECF No. 53-1 at 34-43, 135-40).
2

nearly every time she took it out. (ECF No. 53-1 at 43-47, 144-46). “Something kept
– kept going wrong” (Id. at 45), “it just was never ending.” (Id. at 144-46). In her
view, the vessel was not seaworthy to travel in the open seas: “And the boat, if you
look at the – was seaworthy to the point of getting – I got insurance and it was safe in
that it wasn’t going to sink. But it was – it wasn’t seaworthy to go anywhere, to the
Bahamas. So I had a long list of things to do.” (Id. at 43).
Sablotsky wanted the Sababa ready for trips to the Bahamas (Id. at 81-82), so
she finally arranged to take it to Glass-Tech for a haul-out. (Id. 85-86). On April 29,
2016, a Friday, Sablotsky left the dock at her home and piloted the vessel to GlassTech’s boatyard. (Id. at 153-58). On the way, she sent Glass-Tech owner Nelson
Fernandez a text message asking if it was “[s]till ok to bring boat today?” (ECF No.
71-1 at 1). Fernandez texted back that she could “bring it over.” (Id.). She asked,
“can we be there at like 1:30?” (Id.). Fernandez responded, “Yes. That’s fine. I may
not be able to haul till Monday. But it will at least be there and so we can haul it
Monday. So bring it over when u can.”5 (Id.).
The Sababa arrived at the boatyard early that afternoon. (ECF No. 68-2 at 6768). Sablotsky pulled alongside another vessel already tied to the dock (Id. at 158),
and two boatyard employees caught and tied her lines to the other vessel. (Id. at 15862). Sablotsky confirmed the work she wanted performed, gathered her belongings,
and left. (Id.).
By her own admission, Sablotsky did not:
•

Advise Glass-Tech that the Sababa had not been hauled out
for bottom maintenance in more than three years (Id. at 8485);

•

Advise Glass-Tech of the poor condition of the vessel (Id.);

•

Advise Glass-Tech that she believed the vessel had run
aground a month earlier (Id.);

•

Instruct anyone at the boatyard to plug the vessel into shore
power (Id.); or

•

Plug the vessel into shore power herself. (Id.).

5

Sablotsky admits that she understood that Glass-Tech might not haul the boat out
until after the weekend. (ECF No. 53-1 at 89-90).
3

As Fernandez had anticipated, Glass-Tech did not end up hauling the Sababa
out on April 29, 2016. (ECF No. 76 ¶ 10). Two days later, on Sunday, a boatyard
security guard discovered the vessel partially submerged. (ECF No. 68-2 at 30).
Glass-Tech informed Sablotsky (ECF No. 53-1 at 91, 164 & Ex. O at 89), lifted the
vessel out of the water, and took measures to preserve her equipment and machinery.
(Id. at 180). At that point, Sablotsky told Fernandez via text message that the yacht
“may have hit the bottom on the way out of the canal” a month before, that it
“basically felt like it just touched the bottom,” and that she just “kept going.” (ECF
No. 71-1 at 19).
Kol B’Seder filed an insurance claim with Underwriters that day. (ECF No.
53-1 at 92; ECF No. 71-1 at 10). Agnes Henderson of York Risk Services Group
(“York”), the Underwriters’ Third Party Administrator, handled the claim. (ECF 511 at 4.). Henderson called Sablotsky to find out if there had been an incident leading
to the Sababa’s partial submersion, and Sablotsky told her that she did not remember
grounding the vessel. (Id. at 14). Sablotsky later said the same thing to York’s
surveyor, Stuart Hutchinson.6 (ECF No. 68-3 at 20-21; ECF No. 68-6 at 1).
Hutchinson surveyed the vessel on May 3, 2016. (ECF No. 68-6). He
concluded, inter alia, the following:
Firstly, the design and installation of external rudder logs is
poor.
This is not an uncommon failure.
It is my professional opinion that the external rudder and
rudder log have been subjected to hydraulic forces over time,
which contributed to or caused the tabbing holding the
starboard rudder log to progressively fracture. Fastener
penetrations and plumbing penetrations contributed to the
transom becoming overly saturated.
Some of the repairs performed in 2008 failed, when the rudder
log came adrift and moved aft causing transferred fatigue to
tabbing on the inside rudder shelf.

6

Hutchinson testified that “[t]he characteristics, the nature of the patterns didn’t
support [a grounding]. So if she told me she heard grounding, I would have been very
skeptical of that because there was no evidence of a grounding, nothing consistent
with a grounding, no nicks in the rudder.” (ECF No. 68-3 at 68-69).
4

It is my professional opinion that water had been ingressing the
bilges in the engine space for some time thru the starboard
rudder log and penetrations for the trim tab hydraulic
plumbing.
The bilge pumps have in the past dewatered the vessel because
the vessel was plugged into shore power and the battery bank
feeding power to such pumps was constant.
When the vessel was delivered to [Glass-Tech], the vessel was
not plugged into shore power and the ingression of water
overcame the available battery charge and rendered the pumps
useless.
The steady ingression of water continued unimpeded and
finally partially flooded the vessel.
Despite the above, it is possible that sometime in the past the
vessel rested on the bottom and the rudders may have been in
the mud. The weight of the vessel may have cause the starboard
rudder log tabbing to start fracturing. Then, over time, the salt
water weeping into the underlying laminates weakened the
laminates further and the water pressure pulled the rudder log
backwards.
The fractured laminates certainly did not happen suddenly or
whilst the vessel was at [Glass-Tech].
The stained condition of the rudder shelf and corroded
hydraulic pumping fixtures as well as water stains around the
inside rudder log on the rudder shelf was open and obvious and
a prudent owner should have attended to this immediately.
The fact that the interior tabbing around the port rudder is
starting to let go and the transom laminates show a high
moisture reading is also an indication that the port side log is
about to fail.
(Id. at 7-8).
Based in part on Hutchinson’s survey report, Underwriters denied Kol
B’Seder’s claim. (ECF No. 54-1 at 10). Henderson testified that “we usually look for
coverage on claims, but on this loss, there were three to four areas that had specific
exclusions on, and I couldn’t see the offering coverage on it. So my recommendation
was to deny the claim.” (ECF No. 51-1 at 23). Paul Marks, another adjustor who
worked on the claim, likewise testified, “we are looking for positive coverage offered
by the policy is for direct accidental physical loss of damage during the period of
insurance. So we reviewed the survey report for evidence of that accidental physical
5

loss of damage first, and when we cannot find any, as we couldn’t in this particular
case, we then begin to review the exclusions which state that a loss caused directly or
indirectly by one of these exclusions is not covered.” (ECF No. 54-1 at 47).
On May 12, 2016, Henderson informed Kol B’Seder of Underwriters’
decision.7 (ECF No. 51-2). She cited, and Underwriters now relies on, four Policy
exclusions to justify the determination:
We do not provide coverage under Section 1 (Hull) for losses or
damages arising directly or indirectly from:
....
C. Wear and tear, gradual deterioration, osmosis, wet or dry
rot, corrosion. Weathering, marring, scratching, denting,
vermin, pets or marine life, or electrolytics or galvanic
action;
D. Manufacturer’s defects or defects in design;
....
K. Any claims caused by or arising out of the
unseaworthiness or lack of repair of Your Boat caused by
the lack of reasonable care and due diligence in the
safeguard or maintenance of Your Boat by You or any other
party in control of Your Boat with Your Authority;
....
T. Negligence or breach of contract in respect of any repair
or alteration work carried out for Your account or in respect
of the maintenance of Your Boat.
(Id. at 3-4).
Kol B’Seder filed suit against Underwriters and Glass-Tech on June 16, 2016.
(ECF No. 1). Against Underwriters, it presses a claim for breach of contract. (ECF
No. 76 ¶¶ 15-18). Against Glass Tech, it presses claims for breach of contract (Id. ¶¶
19-21), breach of the warranty of workmanlike performance (Id. ¶¶ 22-24), and
negligence (Id. ¶¶ 25-27).
Glass-Tech countersued Kol B’Seder for negligence (ECF No. 17 ¶¶ 53-62)
7

Upon learning that Underwriters was denying the claim, Sablotsky told Fernandez
via text message that she was “so pissed” that the “boat is going to be there for a long
time,” and that “I should fix the rudder . . . [t]ake it out and run it aground” so she
could file another claim. (ECF No. 71-1 at 60-61).
6

and breach of contract (Id. ¶¶ 63-69).8 It bases its claims on its repair contract, which
contemplated that Glass-Tech could recover from Kol B’Seder for damage caused by
its negligence:
8. Liability of Owner: The Owner agrees to protect, indemnify,
and hold harmless Glass-Tech, its agents and employees from
and against any and all claims, demands, damages, suits,
losses, attorney fees, liability, awards, judgments and expenses
of any nature for damage to property or for injury to any
person or persons resulting from or in any way arising out of
the negligent acts or omission of the Owner or his agents while
on the premises of Glass-Tech and Glass-Tech is hereby given a
lien on the vessel for such costs.
(ECF No. 17-1 at 4 ¶ 8).
STANDARD OF REVIEW
Summary judgment “shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir.
1997) (quoting Fed. R. Civ. P. 56(c)) (internal quotations omitted); Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). Thus, the entry of
summary judgment is appropriate “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
“The moving party bears the initial burden to show the district court, by
reference to materials on file, that there are no genuine issues of material fact that
should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). “Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” Id.
8

The yacht remained in Glass-Tech’s boatyard for weeks accumulating charges.
(ECF Nos. 68-7, 71-1 at 72-73). Glass-Tech calculates those charges to total
$70,111.92 through January 2017. (ECF No. 68-7 at 2).

7

Rule 56 “requires the nonmoving party to go beyond the pleadings and by her
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324. Thus, the nonmoving party “may not rest upon the mere allegations
or denials of his pleadings, but must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(internal quotation marks omitted).
“A factual dispute is genuine if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Damon, 196 F.3d at 1358. “A mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there
must be enough of a showing that the jury could reasonably find for that party.”
Abbes v. Embraer Servs., Inc., 195 F. App’x 898, 899-900 (11th Cir. 2006) (quoting
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).
When deciding whether summary judgment is appropriate, “the evidence,
and all inferences drawn from the facts, must be viewed in the light most favorable
to the non-moving party.” Bush v. Houston County Commission, 414 F. App’x 264, 266
(11th Cir. 2011).
DISCUSSION
As noted, both Underwriters and Glass-Tech have filed Motions for
Summary Judgment. (ECF Nos. 66, 69). I address each in turn.
A. Underwriters
Kol B’Seder alleges Underwriters breached the Policy by denying its claim.
The interpretation of insurance policies, like the interpretation of all
contracts, is generally a question of law. Lawyers Title Ins. Corp. v. JDC (Am.) Corp., 52
F.3d 1575, 1580 (11th Cir. 1995). When interpreting an insurance policy, Florida
courts “start with the plain language of the policy, as bargained for by the parties.”
State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (quoting
Auto–Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000)). The “Florida
Supreme Court has made clear that the language of the policy is the most important
factor. Under Florida law, insurance contracts are construed according to their plain
meaning.” James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274–75

8

(11th Cir. 2008) (internal citations and quotations omitted) (quoting Taurus Holdings,
Inc. v. United States Fid. and Guar. Co., 913 So.2d 528, 537 (Fla. 2005)).
Thus, a court interprets policy language according to its “‘everyday meaning’
as it is ‘understandable to the layperson.’” Ohio Cas. Ins. Co. v. Cont'l Cas. Co., 279 F.
Supp. 2d 1281, 1283 (S.D. Fla. 2003) (quoting Hrynkiw v. Allstate Floridian Ins. Co.,
844 So. 2d 739, 741 (Fla. Ct. App. 2003)). If “the language used in an insurance
policy is plain and unambiguous, a court must interpret the policy in accordance
with the plain meaning of the language used so as to give effect to the policy as
written.” Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 785 (Fla. 2004); see also
Steinberg, 393 F.3d at 1230 (court must read policy as a whole and give every
provision its full meaning and operative effect). This maxim applies equally to
exclusions – if an exclusionary provision is unambiguous, a court must apply the
exclusion as written. Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711
So. 2d 1135, 1139 (Fla. 1998) (“[A] court cannot place limitations upon the plain
language of a policy exclusion.”); see Steinberg, 393 F.3d at 1230 (“If [the policy]
language is unambiguous, it governs.”).
Consistent with the “guiding principle” that “insurance contracts must be
construed in accordance with the plain language of the policy,” only when the
relevant policy language is “susceptible to more than one reasonable interpretation,
one providing coverage and the other limiting coverage” will the language be
considered ambiguous and, thus, construed in favor of coverage. Swire Pac. Holdings,
Inc. v. Zurich Ins. Co., 845 So. 2d 161, 165 (Fla.2003). For this principle to apply,
there must be a “genuine inconsistency, uncertainty, or ambiguity in meaning”; the
principle does “not allow courts to rewrite contracts, add meaning that is not
present, or otherwise reach results contrary to the intentions of the parties.” Id. at
165; see also Jefferson Ins. Co. of New York v. Sea World of Florida, Inc., 586 So. 2d 95, 97
(Fla. Ct. App. 1991) (courts are not authorized “to put a strained and unnatural
construction on the terms of a policy in order to create an uncertainty or
ambiguity”).
Here, the four policy exclusions on which Underwriters relies plainly state
that the Policy provided no coverage for the kind of “losses or damages” Kol B’Seder

9

suffered when the Sababa partially submerged. (ECF No. 51-2 at 3). Exclusion “C”
excludes from coverage “[w]ear and tear, gradual deterioration, osmosis, wet or dry
rot, corrosion. Weathering, marring, scratching, denting, vermin, pets or marine life,
or electrolytics or galvanic action.” (Id. at 4). The evidence shows the vessel’s
problems arose, at least in part, from: (1) hydraulic forces the external rudder and
rudder log underwent “over time” (ECF No. 68-6 at 7); (2) “water [that] had been
ingressing the bilges in the engine space for some time thru the starboard rudder log
and penetrations for the trim tab hydraulic plumbing” (Id.); (3) water weeping into
the underlying laminates “over time” (Id. at 8); and (4) fractured laminates that
“certainly did not happen suddenly or whilst the vessel was at [Glass-Tech].” (Id.).
Exclusion “D” excludes from coverage “[m]anufacturer’s defects or defects in
design.” (ECF No. 51-2 at 4). The evidence shows that vessel’s problems arose, at
least in part, from “the design and installation of external rudder logs.” (ECF No.
68-6 at 7).
Exclusion “K” excludes from coverage “[a]ny claims caused by or arising out
of the unseaworthiness or lack of repair of Your Boat caused by the lack of
reasonable care and due diligence in the safeguard or maintenance of Your Boat by
You or any other party in control of Your Boat with Your Authority.” (ECF No. 512 at 4). The evidence shows the vessel’s problems arose, at least in part, from: (1) Kol
B’Seder’s failure to attend to “open and obvious” signs that the Sababa was in
deteriorating condition (ECF No. 68-6 at 8); (2) Kol B’Seder’s failure to have the
Sababa hauled out and repaired on a timely basis (ECF No. 53-1 at 34-43, 135-40);
and (3) Sablotsky’s’s failure to ensure that the vessel was plugged into shore power
when she left it at the Glass-Tech boatyard (ECF No. 68-2 at 84-85).
Exclusion “T” excludes from coverage “[n]egligence or breach of contract in
respect of any repair or alteration work carried out for Your account or in respect of
the maintenance of Your Boat.” (ECF No. 5-1 at 4). The evidence shows the vessel’s
problems arose, at least in part, from: (1) Kol B’Seder’s failure to have the Sababa
hauled out and repaired on a timely basis (ECF No. 53-1 at 34-43, 135-40); and (2)
failure of repairs performed in 2008 (ECF No. 68-6 at 8).
Kol B’Seder tries to circumvent these exclusions by arguing that there remains

10

a question of fact as to the actual cause of the Sababa’s partial submersion.
Specifically, Kol B’Seder asserts that the vessel’s problems may have resulted from
its alleged grounding a month earlier. But the evidence that the yacht grounded is
weak. Sablotsky changed her account of the incident over time, telling Fernandez
one thing and Underwriters another. More importantly, she admitted to Fernandez
that she does not really know whether the Sababa grounded, telling him only that it
“may have hit the bottom.” (ECF No. 71-1 at 19). She also testified that she thought
she just “kicked up some mud” (ECF 53-1 at 69), and so made no effort to determine
whether she had damaged the vessel. (Id. at 70-71). The fact that Hutchinson found
no evidence of grounding (ECF No. 68-3 at 68-69) supports Sablotsky’s
contemporaneous judgment that she had merely “lightly touched” the bottom, if at
all. (ECF No. 53-1 at 63).
In sum, the evidence is overwhelming that the Sababa’s partial submersion
arose from causes falling within the scope of the Policy exclusions on which
Underwriters relies. No reasonable jury could find otherwise. See Damon, 196 F.3d at
1358. Summary judgment in Underwriters’ favor is therefore appropriate.
B. Glass-Tech
Kol B’Seder also asserts claims against Glass-Tech for breach of contract,
breach of the warranty of workmanlike performance, and negligence.
“To make out a prima facie case of maritime negligence, a plaintiff must
establish that the defendant owed a duty to the plaintiff ‘under the law to conform to
a particular standard of conduct in order to protect others against an unreasonable
risk of harm,’ that the defendant breached such duty, and that the breach harmed
plaintiff in a manner that the duty of reasonable care seeks to prevent. Stuart Cay
Marina v. M/V Special Delivery, 510 F. Supp. 2d 1063, 1070-71 (S.D. Fla. 2007). The
implied warranty of workmanlike performance parallels a negligence standard. La
Esperanza de P.R., Inc. v. Perez y Cia. de Puerto Rico, Inc., 124 F.3d 10, 16 (1st Cir.
1997)). Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (citing Daigle
v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). Thus, Kol B’Seder must
prove that: (1) Glass-Tech owed it a duty to protect against a particular harm; (2)
Glass-Tech breached that duty; (3) the breach actually and proximately caused the

11

Kol B’Seder’s injury; and (4) Kol B’Seder suffered actual harm. Id. (citing Zivojinovich
v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)).
The elements of a breach of contract claim under Florida law and admiralty
law are the same: existence of a valid contract, a material breach, and damages. See
Sulkin v. All Fla. Pain Mgm't Inc., 932 So. 2d 485, 486 (Fla. 4th DC A 2006); Sweet Pea
Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir. 2005). Before an
action for breach of contract can be sustained, there must be an enforceable
contract." Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So. 3d 693, 695 (Fla.
Ct. App. 2010). "[A] meeting of the minds of the parties on all essential elements is a
prerequisite to the existence of an enforceable contract." Acosta v. Dist. Bd. of Trustees
of Miami-Dade Cmty. Coll., 905 So. 2d 226, 228 (Fla. Ct. App. 2005) (internal
quotation marks omitted).
Here, Kol B’Seder alleges Glass-Tech was negligent and/or breached its
repair contract in two respects: (1) it failed to haul the Sababa out of the water on
April 29, 2017, as purportedly agreed; and (2) it failed to connect the Sababa to shore
power, which rendered the bilge pumps ineffective to combat the steady ingress of
water that partially submerged the vessel. Both allegations are baseless.
The evidence is clear that Sablotsky was aware of and agreed to Glass-Tech’s
plan to haul out the Sababa on the Monday following Sablotsky’s delivery of the
vessel to the Glass-Tech boatyard. Fernandez made that plan clear in his text
messages to Sablotsky, stating, “I may not be able to haul till Monday. But it will at
least be there and so we can haul it Monday.” He further explained, “u also have
other boats [we’re] moving so it depends how it falls in the sequence. This is like a
big jig saw puzzle. Fitting the boats.” (ECF No. 71-1 at 2). Sablotsky could not
reasonably have understood Fernandez’s messages to mean he promised to haul out
the yacht before the weekend. Indeed, Sablotsky herself admits that was not her
understanding: “I was trying to get it hauled on that day. And the text messages are
clear. [Fernandez] said he was going to try, and then if I got there before a certain
time, it was – he would – he thought he’d be able to do it. But he said he may not be
able to do it until Monday.” (ECF 53-1 at 89) (emphasis added).
The evidence is equally clear that Glass-Tech never assumed responsibility for

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plugging the Sababa into shore power. Nothing in Glass-Tech’s repair contract with
Kol B’Seder required it to do so, Sablotsky never asked Glass-Tech to do so, and
Glass-Tech never said that it would do so. Even if Glass-Tech was somehow obliged
to connect the Sababa to shore power that weekend, it is not clear from the record
that a lack of power to the bilge pumps actually caused the vessel partially to
submerge. Hutchinson’s survey report details several mechanical problems that
afflicted the Sababa, all of which contributed to its fate. (ECF No. 68-6). Underlying
each of those problems is the salient fact that Sablotsky had not hauled the vessel out
for repairs for more than three years before taking it to Glass-Tech, even though its
problems should have been “open and obvious” to “a prudent owner.” (Id. at 8).
In short, the evidence leaves no doubt that the Sababa’s partial submersion
resulted from Sablotsky’s neglect, not from any failure on Glass-Tech’s part. That
conclusion compels me to grant Glass-Tech’s Motion as to Kol B’Seder’s claims
against it, and also to grant Glass-Tech’s Motion as to its counterclaim. The repair
contract allows Glass-Tech to recover from Kol B’Seder for damage caused by its
negligence. (ECF No. 17-1 at 4 ¶ 8). According to Glass-Tech, Kol B’Seder has
accumulated $70,111.92 in charges through January 2017 as a result of the partial
submersion, haul-out, and salvage of the Sababa. (ECF No. 68-7 at 2). Glass-Tech is
entitled to compensation in that amount, plus any additional charges it can
document.
CONCLUSION
It is, therefore, ORDERED and ADJUDGED that (1) Certain Underwriters’
Motion for Final Summary Judgment (ECF No. 66), and (2) Glass-Tech’s Motion
for Summary Judgment Against Plaintiff & Motion for Summary Judgment Against
Counter-Defendant (ECF No. 69) are GRANTED. The Clerk shall CLOSE this
case. All pending motions, if any, are DENIED as moot.

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DONE and ORDERED in chambers at Miami, Florida, this 30th day of May
2017.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record

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