IN THE SUPREME COURT OF FLORIDA CASE NO.: SC03-345

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC K&M SHIPPING, INC., A FLORIDA CORPORATION, CARIBBEAN BARGE LINE, INC., A FLORIDA CORPORATION, AND SAMIR MOURRA, vs. Petitioners, SEDEN PENEL, MONA LOUIS, AND JEAN JOSEPH CALIXTE, Respondents. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT LOWER TRIBUNAL CASE NO.: 3D RESPONDENT S BRIEF ON JURISDICTION 252 MICHAEL C. BLACK, ESQ. CASSIDY & BLACK, P.A West Flagler Street, Suite 1

2 TABLE OF CONTENTS Miami, Florida Tel: (305) Fax: (305) CONTENT: PAGES: TABLE OF CONTENTS i TABLE OF AUTHORITIES ii PREFACE iii STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT Issue A THE FLORIDA SUPREME COURT DOES NOT HAVE A PROPER LEGAL BASIS TO INVOKE DISCRETIONARY REVIEW OF THIS MATTER Issue B EVEN IF THE FLORIDA SUPREME COURT HAS A PROPER LEGAL BASIS TO INVOKE DISCRETIONARY REVIEW OF THIS 2

3 MATTER, IT SHOULD NOT EXERCISE SUCH DISCRETIONARY REVIEW CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH FONT STANDARD Cases Page TABLE OF AUTHORITIES Colgate-Palmolive Co. v. S/S Dart Canada, 724 F.2d 313 (2 nd Cir. 1983) Commerce Partnership v. Equity Contracting Co., 695 So. 2d 383 (Fla. 4 th DCA 1997) Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2 nd DCA 1988) Hillman Construction Corp. v. Wainer, 636 So. 2d 576 (Fla. 4 th DCA 1994) Katz v. Intercoastal Warehouse Corp. of Louisiana, 3

4 420 So. 2d 1189 (La. Ct. App. 1982) Jones v. Compagnie Generale Maritime, 882 F.Supp (S.D. Ga. 1995) Leather s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2 nd Cir. 1971) National Resources Trading, Inc. v. Trans Freight Lines, 766 F.2d 65, 68 (2 nd Cir. 1085) Polo Ralph Lauren, L.P. v. Tropical Shipping & Construction Co., Ltd., 215 F.3d 1217 (11 th Cir. 2000) Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292 (2 nd Cir. 1990) Whitcomb v. Stevedoring Services of America, 2 F.3d 312 (9 th Cir. 1993) Wilburn Boat Company v. Fireman s Fund Ins., 348 U.S. 310 (1955) Rules of Appellate Procedure Fla. R. App. P (a)(2)(iv) Statutes 4

5 Carriage of Goods by Sea Act ( COGSA ), 46 U.S.C et seq passium PREFACE Petitioner K&M Shipping, Inc. will be referred to as K&M. Petitioner Caribbean Barge Line, Inc. will be referred to as CBL. Petitioner Samir Mourra will be referred to as Mourra. Respondent Seden Penel will be referred to as Penel. Respondent Mona Louis will be referred to as Louis. Respondent Jean Joseph Calixte will be referred to as Calixte. 5

6 STATEMENT OF THE CASE The Respondents herein, Plaintiff's at trial, Penel, Louis and Calixte, hired the Petitioner, K&M, to transport certain cargo belonging to the Respondents by ocean from Miami, Florida to Haiti on or about August 16, En route to Haiti, the Respondents' cargo as well as cargo belonging to numerous other shippers were lost overboard. After the loss, the Respondents were advised by K&M to submit insurance claims to K&M's insurance company for payment of the loss of their cargo. The Respondents submitted their insurance claims as instructed. However, the Respondents were never paid for their claims. Instead, the insurance company paid Mourra personally $328, for all of the claims. Mourra in turn deposited the funds into an account held by his newly formed company, CBL. After Mourra allegedly paid additional claims, there was $180,000 left over. Neither Mourra nor CBL ever paid any moneys to the Respondents for their claims, but rather kept the money themselves. On August 11, 1997, Penel filed the present lawsuit against all three Petitioners. On August 16, 1999, Calixte and Louis filed motions to intervene which the trial court granted. The Respondents went to trial on claims against the Petitioners for failure to pay their insurance claims, fraud and unjust enrichment. At trial, the jury found the Petitioners, CBL and Mourra liable to all three Appelles for failure to pay insurance claims and for unjust enrichment. The jury found 6

7 K&M liable to all three Respondents for fraud. A Final Judgment was entered consistent with the Jury's Verdict on the award of compensatory damages on or about June 9, The Petitioners filed an appeal to the Third District Court of Appeal and on November 6, 2002, the Third District Court of Appeal affirmed the decision. This Petition followed. SUMMARY OF THE ARGUMENT This Court does not have the power to even consider exercising jurisdiction over this matter. The decision of the Third District Court of Appeal does not conflict with any decision of another district court of appeal or of the Florida Supreme Court. All of the case law cited by the Petitioners is easily distinguishable. ARGUMENT ISSUE A: THE FLORIDA SUPREME COURT DOES NOT HAVE A PROPER LEGAL BASIS TO INVOKE DISCRETIONARY REVIEW OF THIS MATTER The Supreme Court can invoke discretionary jurisdiction only if the decision of the Third District Court of Appeal in this case expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal. Fla. R. App. P (a)(2)(iv). There simply is no express and direct conflict in this case nor have the Petitioners sufficiently alleged an express and direct conflict. The decision of the Third District Court of Appeal does not set forth a sufficient basis for 7

8 this Court to even consider invoking discretionary jurisdiction of this matter. Moreover, the Appellant's argument is fundamentally flawed. Simply put, COGSA does not apply to and cannot preempt the claims of failure to pay insurance claims, unjust enrichment and fraud. Those claims are not maritime in nature and are not governed by admiralty law. The facts giving rise to those claims begin with Samir Mourra's receipt of the insurance funds that rightfully belonged to the Respondents, proceed with the fact that Mourra retained the moneys and end with the fact that Mourra never paid the Respondents. Since these claims are outside the scope of COGSA and admiralty law, Florida State law applies. Accordingly, not only is there no conflict with Wilburn Boat Company v. Fireman s Fund Ins., 348 U.S. 310 (1955), but that case actually supports what the lower courts did in this case. It is undisputed that Mourra is not an ocean carrier. He is an individual person. By the plain terms of COGSA, the statute applies to claims for cargo damage between ocean carriers and shippers. See 46 USC 1300 et seq. (emphasis added). The ocean carrier in this matter was K&M. It is logically impossible for the Petitioners to assert that COGSA would apply to Mourra or CBL. As the Petitioners even pointed out in their brief citing to the case of Jones v. Compagnie Generale Maritime, 882 F. Supp. 1079, 1082 (S.D. Ga. 1995): "COGSA... regulates the liability of carriers on claims in both tort and contract." (emphasis added). The Petitioners also cite to the case of Polo Ralph Lauren, L.P. v. Tropical 8

9 Shipping & Construction Co., Ltd., 215 F.3d 1217 (llth Cir. 2000) for the proposition that COGSA provides an exclusive remedy in this matter. However, as the undersigned is intimately familiar with that case, that case stands for the proposition that a cargo claimant cannot bring a three count complaint against an ocean carrier under COGSA alleging bailment, negligence and breach of contract. The cargo claimant is limited to asserting one cause of action under COGSA against an ocean carrier. The Polo case had nothing to do with causes of action for failing to insure, fraud and unjust enrichment brought against a party that was not an ocean carrier. Mourra kept insurance moneys that were paid by the insurance company for claims made by cargo shippers including the Respondents. That action goes beyond the scope of COGSA which is limited to breach of contract claims between cargo interests and ocean carriers. COGSA does not and cannot apply to Mourra or CBL. The claims against Mourra and CBL, Counts II, III and IV, arose after the carriage of cargo terminated. The law is clear that an action against a noncarrier after the transportation has terminated is subject to state law and state statutes of limitations. National Resources Trading, Inc. v. Trans Freight Lines, 766 F.2d 65, 68 (2 nd Cir. 1085); Colgate-Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 317 (2 nd Cir. 1983); Katz v. Intercoastal Warehouse Corp. of Louisiana, 420 So. 2d 1189 (La. Ct. App. 1982). Whitcomb v. Stevedoring Services of America, 2 F.3d 312 (9 th Cir. 1993); Roco 9

10 Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292 (2 nd Cir. 1990); Leather s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2 nd Cir. 1971). For the foregoing reasons, Petitioner s claim of an alleged conflict with other decisions simply cannot be supported and this Court must deny discretionary jurisdiction. ISSUE B: EVEN IF THIS COURT HAS A PROPER LEGAL BASIS TO INVOKE DISCRETIONARY REVIEW OF THIS MATTER, IT SHOULD NOT EXERCISE SUCH DISCRETIONARY REVIEW Even if the Court were to determine that it had the power to consider whether or not to invoke discretionary review of this case, the Respondents urge the Court not to invoke such discretionary review on the basis that the facts and circumstances of this case are unusual and limited in nature. The circumstances of this case focus almost entirely on the unjust enrichment of the Petitioners when they retained insurance moneys that did not belong to them. The Respondents produced evidence of unjust enrichment sufficient to create a jury question and the jury found for Respondents. Furthermore, evidence of insurance was the focal point of the Respondents case for unjust enrichment. 1. Unjust Enrichment The elements of a cause of action for unjust enrichment are: 1) that Plaintiff has conferred a benefit on the defendant who has knowledge thereof; 2) that the defendant voluntarily accepts and retains the benefit conferred; and 3) that the circumstances are such that it would be inequitable for the defendant to retain the 10

11 benefit without paying the value thereof to the plaintiff. Hillman Construction Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4 th DCA 1994), citing to Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2 nd DCA 1988). Despite the Petitioner s argument that the Third District Court of Appeal ignored the burdens of proof as set forth in Commerce Partnership v. Equity Contracting Co., Inc., 695 So. 2d 383 (Fla. 4 th DCA 1997), Respondents clearly conferred a benefit on Petitioners Mourra and CBL. The Respondents were advised to submit their insurance claims to the insurer of the Petitioners with the obvious intention of being paid their claims. The submission of all of the shippers' claims resulted in a negotiated settlement between Mourra and his insurance company to pay Mourra $600,000. Mourra made the decision not to pay the Respondents claims out of those proceeds and instead kept the money himself. Equity mandates that Mourra should not be allowed to profit at the expense of the Respondents. The Petitioners argument that the Respondents did not prove that the Petitioners failed to give consideration for the benefit is difficult to follow. The evidence clearly established that the Petitioners advised the Respondents to submit claims to the Petitioners' insurance company, then the Petitioners kept the insurance proceeds which rightfully belonged to the Respondents. The Petitioners did not receive any consideration from the Respondents for keeping the insurance money. 11

12 The Respondents cannot imagine a more clear case of unjust enrichment. 2. Evidence of Insurance It certainly would have benefited the Petitioners had the Court not allowed evidence of insurance, the invitation to the Respondents to submit insurance claims, and the fact that the insurance company paid the Petitioners. However, that was the Respondents entire case and the basis of the unjust enrichment, failure to pay insurance, and fraud claims. As the Petitioners themselves pointed out in the case law they cited, the reasoning behind the general rule of disallowing evidence of insurance is the belief that a jury may be led to believe that the financial burden would not be born by the defendant. In this case, the insurance evidence concerned moneys already paid by the insurance company for the Respondents' cargo claims. It did not have to do with whether or not a potential judgment against Mourra, CBL, or K&M in the present case would be paid by an insurance company. The unique facts of this case are therefore clearly distinguishable from the cases cited by the Petitioners. CONCLUSION For the reasons stated above, the Respondents respectfully request that this Honorable Court deny discretionary review over this matter and for whatever other relief this Court deems just and proper. Respectfully submitted, 12

13 CASSIDY & BLACK, P.A West Flagler Street, Suite 252 Miami, Florida Tel: (305) Fax: (305) By: MICHAEL C. BLACK, ESQ. Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this day of March, 2003 to: Robert A. Ader, Esquire, and Elizabeth B. Hitt, Esquire LAW OFFICES OF ROBERT A. ADER, Suite 3550, 100 S.E. 2 nd Street, Miami, Florida CASSIDY & BLACK, P.A. Attorney for Respondents 8370 W. Flagler Street, Suite 252 Miami, Florida Tel.: (305) Fax: (305) By: 13

14 MICHAEL C. BLACK, ESQUIRE Florida Bar No CERTIFICATE OF COMPLIANCE WITH FONT STANDARD Undersigned counsel certifies that the size and font style used in this Answer Brief is 14 pt, Times New Roman, in compliance with Fla. R. App. P By: MICHAEL C. BLACK, ESQUIRE Florida Bar No

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