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Perez v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida, Miami Division

November 7, 2017

JOSE R. PEREZ, as Personal Representative of the Estate of HORTENSIA SANTOS, Deceased; MARIANO SANTOS (son); and HORTENSIA SANTOS (daughter), Plaintiffs,



         THIS CAUSE came before the Court upon Defendant's Motion to Dismiss Complaint (D.E. 8), filed on August 8, 2017.

         THE COURT has considered the motion, the response in opposition, the reply, pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the motion is DENIED.

         I. Background

         This tragic case arises out of the death Hortensia Santos, a passenger onboard the Defendant's cruise ship, the Getaway. This suit is brought by Jose R. Perez, as Personal Representative of the Estate of Ms. Santos; Mariano Santos, son of Ms. Santos; and Hortensia Santos, daughter of Ms. Santos. Plaintiffs allege that on May 31, 2016, Ms. Santos was injured while the ship was in U.S. territorial waters. Specifically, Plaintiffs allege that Ms. Santos was seated in the ship's dining area when another passenger, who was being escorted in a wheelchair by a Norwegian employee, slammed into Ms. Santos, pinning her torso against the table she was seated at. Shortly thereafter, Ms. Santos was escorted to her cabin where she subsequently began vomiting. Ms. Santos was then taken to the ship's clinic where she was intubated. Norwegian's onboard physician recommended that Ms. Santos undergo hemoglobin testing every six hours and that an endoscopy should be performed at the nearest hospital when the ship docked at Costa Maya, Mexico, the next port of call.

         Upon arrival in Costa Maya, Norwegian's medical staff and crew directed Ms. Santos to a local hospital. The attending physician at the hospital ordered a sonogram, but neither the sonogram, nor the endoscopy urged by the onboard physician were performed. Ms. Santos's relative informed the attending physician that Ms. Santos would be flying back to Miami immediately. Thereafter, Ms. Santos was discharged and boarded a plane to Miami where her condition deteriorated while on the flight. Upon arrival, Ms. Santos was taken to the hospital where she was ultimately pronounced dead.

         Plaintiffs' Complaint includes two counts. Count I is a wrongful death claim under the Florida Wrongful Death Act, Fla. Stat. § 768.16-26, if the incident on the ship that led to Ms. Santos's death took place in U.S. territorial waters. Plaintiffs plead Count II, a wrongful death claim under the Death on the High Seas Act, 46 U.S.C. §§ 30301-8, in the alternative, in the event that the ship was outside of U.S. territorial waters. Norwegian moves to dismiss Count I because the Death on the High Seas Act, rather than Florida law, should apply. Norwegian moves to dismiss Count II for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court has maritime jurisdiction pursuant to 28 U.S.C. § 1333. II. Legal Standard "A pleading that states a claim for relief 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). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir. 1986). To survive a motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."7' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed factual allegations are not required, but a pleading must offer more than "labels and conclusions" or "a formulaic recitation of the elements of the cause of action." Twombly, 550 U.S. at 555; Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1263 (11th Cir. 2004) ("To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims."). In short, the complaint must not merely allege misconduct, but must demonstrate that the pleader is "entitled to relief." Iqbal, 556 U.S. at 677-78.

         III. Analysis

         A. Death on the High Seas Act and Florida's Wrongful Death Act

         The parties quibble with whether Florida's Wrongful Death Act or the Death on the High Seas Act applies. The Complaint asserts Count I under Florida law, and alternatively, Count II under federal law. The Death on the High Seas Act provides a cause of action "whenever the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States . . ." 46 U.S.C. § 30302. By its terms, the Death on the High Seas Act does not cover deaths resulting from incidents occurring within state territorial waters - up to three miles off a State's shore. The distinction is crucial because recovery under the Death on the High Seas Act is limited to pecuniary loss, while claims for non-pecuniary loss are barred. Smith v. Carnival Corp., No. 07-23363-CIV, 2008 WL 2704459, at *1 (S.D. Fla. June 24, 2008). In comparison, Florida law is more generous as it permits recovery of pecuniary loss. See Fla. Stat. 768.21(2) ("The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.").

         Norwegian's position is that Count I should be dismissed because the death occurred in international waters and thus, Florida law is inapplicable. In support, Norwegian relies on the affidavit of Brett Berman, the Director of Passenger and Crew Claims, which states that at the time of the incident that resulted in Ms. Santos's death, the ship was in international waters, thereby resulting in the application of the Death on the High Seas Act. The general rule is that at the motion to dismiss stage, the Court's review is limited to the four corners of the complaint and may not consider matters outside the pleadings without converting the defendant's motion into one for summary judgment. Crowell v. Morgan Stanley Dean Witter Servs., Co., Inc., 87 F.Supp.2d 1287, 1290 (S.D. Fla. 2000). Norwegian cites Bickley v. Caremark RX, Inc., 461 F.3d 1325 (11th Cir. 2006), for the proposition that "documents which are central to Plaintiffs' claim may be considered when ruling on the motion to dismiss." To that end, Norwegian urges the Court to rely on Mr. Berman's affidavit to dismiss Count I. However, Norwegian misconstrues Bickley's holding. In Bickley, the Eleventh Circuit held that:

[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiffs claim, then the Court may consider the documents part of the pleading for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment.

461 F.3d at 1330 n.7 (citing Brooks v. Blue Cross & Blue Shield, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)) (emphasis added).

         This Court could rely on Mr. Berman's affidavit if Plaintiffs had referenced it in their Complaint, but they did not. See also Franza v. Royal Caribbean Cruises, Ltd.,772 F.3d 1225, 1237-38 (11th Cir. 2014) (refusing to consider the passenger ticket contract the defendant attached to its motion to dismiss because the plaintiff did not attach ...

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