FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Tonya B.
B. Feltman, of Alvarez, Feltman & Da Silva, PL, Coral
Gables, for Appellant.
Richard J. McAlpin and Kassandra Doyle Taylor, of McAlpin
Conroy, P.A., Miami, for Appellee.
HIGBEE, H.L., ASSOCIATE JUDGE.
Grazette ("Grazette") appeals the final summary
judgment entered in favor of Magical Cruise Company Limited,
d/b/a Disney Cruise Line ("Disney"), based on
Disney's statute of limitations defense. For the
following reasons, we reverse the judgment as to one aspect
of Grazette's claim but otherwise affirm.
worked aboard Disney's cruise ships as a custodial
hostess from October 2011 through January 2015. During this
time, she worked four contracts and was medically debarked
during her fifth. Two months into her first contract, aboard
the Disney Wonder, Grazette bent over to lift heavy
luggage and felt a "pop" in her lower back. She
experienced an immediate sharp pain, but the pain went away
after she sat down for a few minutes. She was able to finish
out the rest of her shift and did not report the incident or
go to the medical center.
the next two weeks, Grazette continuously worked, pain-free,
until December 29, 2011, when she went to the ship's
medical center and told the doctor that she bent over while
vacuuming and could not stand upright afterward. She informed
the doctor about the pop in her back two weeks prior, and the
doctor diagnosed her with mechanical back pain in the coccyx
region. She was debarked, and her contract aboard the
Disney Wonder ended shortly thereafter. After
debarking, she went home to Trinidad and received and
completed treatment. Grazette said she was pain-free at that
time and thought she could return to work without any
her second, third, and fourth contracts, Grazette went to the
ships' medical centers on numerous occasions, sometimes
for back pain and other times for medical issues unrelated to
back pain. On November 22, 2014, during her fifth contract,
Grazette went to the medical center after she fell and hit
her back against a ladder by her bunk bed. She had multiple
follow up visits and went shoreside for an MRI on January 17,
2015, which revealed that she had an L5-S1 disc herniation.
She was medically debarked on January 20, 2015, and never
worked onboard a Disney ship again.
Grazette returned home in January 2015, she received
chiropractic treatment until September 2015, when Disney
referred her to a neurosurgeon where she underwent a
conservative treatment plan. This plan included rest,
medication, physical therapy, and injections. By December
2016, she still had not reached maximum medical improvement
October 2016, two months prior to her final visit with the
neurosurgeon, Grazette filed a four-count complaint against
Disney, asserting: (1) Jones Act negligence; (2)
unseaworthiness; (3) failure to provide maintenance and cure;
and (4) failure to provide prompt, proper, and adequate
medical treatment. She alleged that, while working on the
Disney Wonder, she felt pain in her lower back but
was continuously sent back to work in the same job with the
same job requirements and without a proper diagnosis or
treatment, and that she did not receive a proper diagnosis
until January 17, 2015.
Grazette alleged that her injuries accrued while she was
working on the Disney Wonder, but the complaint was
not filed until October 2016, Disney asserted in its answer
that all four claims were thus time-barred by maritime tort
law's three-year statute of limitations. After conducting
discovery, Disney then moved for summary judgment. In her
response in opposition, Grazette argued that there were
genuine issues of material fact and that the claims were not
time-barred. She argued that the statute of limitations
did not begin to run until there was notice of a medical
injury and a relationship between the injury and the job, and
she asserted that the earliest it began to run would have
been January 17, 2015.
statute of limitations for maritime torts is governed by 46
U.S.C. § 30106," which holds that "'a
civil action for damages for personal injury or death arising
out of a maritime tort must be brought within 3 years after
the cause of action arose.'" Pretus v. Diamond
Offshore Drilling, Inc., 571 F.3d 478, 481 (5th Cir.
2009). "The Jones Act, 46 U.S.C. § 30104 . . .,
adopts the same statute of limitations applicable to suits
under the Federal Employees' Liability Act
('FELA'), 45 U.S.C. § 56, which is three
years." Id. Here, there is no dispute that the
federal maritime law applies and that the statute of
limitations is three years. Instead, the dispute is when the
causes of action actually accrued.
complaint specifically stated that she was injured aboard the
Disney Wonder, on which she had not worked since
2012, and she testified during her deposition that there was
a specific incident when she hurt her back in 2011. At the
summary judgment hearing, Grazette argued under a continuing
tort theory and an aggravation theory that the claim did not
accrue until her 2015 diagnosis. Grazette, however, admitted
that the incident that started ...