United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court without a hearing on the Motion
to Dismiss (Doc. 41) filed by the Defendant, Florida Bow
Thrusters, Inc. (“Florida Bow Thrusters”), and
the response in opposition (Doc. 48) filed by the Plaintiff,
Ace American Insurance Company (“Ace”).
to the allegations of the Amended Complaint (Doc. 36), which
are taken in pertinent part as true for purposes of this
motion, this case arises from a fire that severely damaged a
vessel named the “E=Mc2”. (Doc. 36 at 2). At the
time of the fire, that vessel was owned by Eric Slifka and
insured by the Plaintiff. (Doc. 36 at 2). Regulator Marine,
Inc. (“Regulator”) had built the vessel, and
Oyster Harbors, Inc. (“Oyster Harbors”) had sold
it to Slifka. (Doc. 36 at 2). (Coincidentally, Ace American
also insured Regulator during the relevant period. (Doc. 36
at 2 n.1). When Slifka bought the vessel, it included a bow
thruster that had been manufactured by Vetus
Maxwell, Inc. (“Vetus”) and installed by Florida
Bow Thrusters. (Doc. 36 at 4).
the fire, Ace paid Slifka for the property damage and brought
suit (as Slifka's subrogee) against Oyster Harbors in
Massachusetts federal court, asserting claims for breach of
warranty, negligence, and strict liability. (Doc. 36 at 2).
Oyster Harbors filed a third-party complaint against
Regulator, alleging that Regulator might be liable to Oyster
Harbors for the claims being asserted by Ace. (Doc. 36 at 2).
Sometime thereafter, an expert retained by Ace determined
that the bow thruster was likely the source of the fire.
(Doc. 36 at 3-4). Regulator then filed a fourth-party
complaint against Vetus and Florida Bow Thrusters. (Doc. 36
at 5). However, due to a choice-of-venue provision in the
contract between Regulator and Florida Bow Thrusters,
Regulator dismissed Florida Bow Thrusters as a defendant in
the Massachusetts case and filed the instant suit, which was
stayed pending resolution of the Massachusetts action. (Doc.
36 at 5-6).
September 9, 2019, Ace notified this court that the
Massachusetts action had been settled. (Doc. 32). As
Regulator's subrogee, Ace was then substituted into this
action. On October 11, 2019, Ace filed the Amended Complaint,
asserting claims for negligence (Count I), common law
indemnification (Count II), and contribution (Count III).
Florida Bow Thrusters now seeks dismissal of all claims
asserted in that pleading.
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other
grounds, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule
12(b)(6) motion to dismiss for failure to state a claim
merely tests the sufficiency of the complaint; it does not
decide the merits of the case. Milburn v. United
States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on
a motion to dismiss, the Court must accept the factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. SEC v. ESM Group,
Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must
also limit its consideration to the pleadings and any
exhibits attached thereto. Fed.R.Civ.P. 10(c); see also
GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to
indicate the presence of the required elements, Watts v.
Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.
2007). Conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), the Supreme Court explained that a
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. at 1949
(internal citations and quotations omitted). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - ‘that
the plaintiff is entitled to relief.'” Id.
at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
Bow Thrusters makes two arguments based on Rule 8. It first
argues that the Amended Complaint does not satisfy the
plausibility requirement of Twombly and
Iqbal, in that its counts are “replete with
legal conclusions” and “devoid of the requisite
factual allegations”. (Doc. 41 at 8). But Florida Bow
Thrusters does not provide any examples of these legal
conclusions or of areas where the required factual
allegations are lacking. Florida Bow Thrusters also contends
that the Amended Complaint is a shotgun pleading, in that
each count incorporates all of the paragraphs that precede
it. (Doc. 41 at 8-10). See, e.g., Anderson v. Dist. Bd.
of Trs. of Cent. Florida Cmty Coll., 77 F.3d 364, 366
(11th Cir. 1996) (describing, as a type of shotgun pleading,
a complaint in which “each count … adopts the
allegations of all preceding counts” resulting in a
situation in which “it is virtually impossible to know
which allegations of fact are intended to support which
claims for relief.”). But this is an eight-page
pleading, asserting three claims against a single defendant.
Each count is only two or three paragraphs long. While Ace
could have been more meticulous in drafting the Amended
Complaint, Florida Bow Thrusters cannot seriously argue that
it, like the defendant in Anderson, is unable to
figure out which allegations of fact are intended to support
which claims for relief.
Bow Thrusters next contends that the maritime economic loss
rule bars Ace's claims. The maritime economic loss rule
provides that a tort action may not lie where the basis for
liability arises from a contract. R/V Beacon, LLC v.
Underwater Archeology & Exploration Corp., 2014 WL
4930645, at *5 (S.D. Fla. Oct. 1, 2014) (citations omitted).
The rule has its origins in East River S.S. Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 871 (1986), in
which the Supreme Court held that a manufacturer in a
commercial relationship “has no duty under either a
negligence or a products-liability theory to prevent a
product from injuring itself.”). In this case, however,
Ace alleges that the bow thruster caused a fire that damaged
the rest of the vessel, not merely the bow thruster itself.
For example, Ace's expert opined that the fire
“developed in the bow thruster compartment and
spread up and out through the helm.” (Doc. 36 at
4) (emphasis added). Therefore, the maritime economic loss
rule does not apply.
Bow Thrusters seeks dismissal of Ace's claims for
contribution and indemnity on the grounds that a settling
defendant cannot seek contribution from a nonsettling
tortfeasor who was not released from liability. (Doc. 41 at
14-16). Florida Bow Thrusters is correct as to the general
rule. See, e.g., Murphy v. Florida Keys Elec. Co-op.
Ass'n, Inc., 329 F.3d 1311, 1315 (11th Cir. 2003)
(“No suit for contribution will lie against a
nonsettling defendant who is not released from liability,
because that defendant remains liable for its proportionate
share of damages regardless of the terms of the settlement
the other defendant made.”). However, Ace argues that
it did obtain a release of the claims against Florida Bow
Thrusters, and the language of the ...