The following is a description of a personal injury case we have filed. This is a case involving a personal injury in a parking garage of Dadeland Mall, a property owned by Simon Property Group, Inc.

Dadeland Shopping Mall in Miami-Dade County, Florida is a large shopping complex anchored by high-end retailers and over 185 specialty stores. As such, Dadeland Mall has thousands of shoppers in and around it at any given time carrying money and leaving stores with packages. This provides would be robbers with a large group of targets who are made even more vulnerable by carrying bags and goods in their hands and arms.

Simon Property Group, Inc. knows that because of these circumstances, there is a high number of criminal incidents in which criminals prey on the customers and employees of the stores at the Mall. The rate and number of incidents of these crimes, including assault, battery, robbery, sexual assault, rape, and other crimes against persons are known to Simon Property Group, Inc., managers, owners and security providers of Dadeland Mall, and especially in the parking areas of the mall.

Simon Property Group, Inc. as owners, managers, and security providers are advised by the various tenants, especially anchor tenants and large retailers such as JC Penney, about the changes in rules and regulations of the retailers for the parking of the retailers’ employees.

Dadeland Mall provides for these shoppers parking garages with various degrees of lighting, security patrol and visual security monitoring.

JC Penney had requested that its employees park in a certain level of the parking adjacent to JC Penney and owned, managed and secured by Simon Property Group, Inc.. This level of the parking garage adjacent to JC Penney at Dadeland Mall and owned, managed and secured by Simon Property Group, Inc. had a low and improper lighting level, lack of security cameras, lack of security patrols, and places for assailants to hide in and wait for patrons. Simon Property Group, Inc. knew or should have known of the movements and the activities of the employees of the retailers. Despite the fact Simon Property Group, Inc. knew or should have known of the failure and problems in regard to the less populated levels of the parking garage adjacent to JC Penney, Simon Property Group, Inc. did nothing to rectify the lighting, lack of surveillance, lack of security patrols, architectural details, and other security measures.

As a result of the failures of Simon Property Group, Inc. on February 6, 2007, our client went to JC Penney as an employee and paying customer and while she was in the parking garage adjacent to JC Penney and owned, managed and secured by Simon Property Group, Inc. to drop off her merchandise in her vehicle she was assaulted, battered, and robbed and thrown to the ground. During this assault, our client was struck in the face. Accordingly, as a result of the negligence of Simon Property Group, Inc., our client has suffered and will continue to suffer serious, debilitating, and permanent injuries.

BEVILL v. NORWEGIAN CRUISE LINE

The following is a description of a personal injury case we have filed. This is a case involving a personal injury aboard the Norwegian Gem, a ship owned by Norwegian Cruise Line.

The cruise line installed and failed to maintain sliding glass doors on the outside cabins onboard its cruise ship, the Norwegian Gem. Those sliding glass doors, during the cruise on which our client sailed, and before, were chronically broken. The cruise line, on the subject cruise, was warned and advised at the beginning or toward the beginning of the cruise that these sliding glass doors were broken, and that they would not lock in any open or closed position. Accordingly, the doors were a hazard when the ship was out at sea. In that case, the doors would open and close unexpectedly, creating a hazardous situation for any passengers.

The cruise was advised about the broken door by the passengers, including our client. After that advice, a mechanic or carpenter from the cruise line came to the cabin of our client and attempted to “fix” the door by placing a piece of wood, an approximately 14 inch x 1 ¼ inch wooden stick wedged into the lever controlling the door. This “fix” did not hold the door, and was not appropriate to fix this dangerous condition or to prevent the door from sliding back and forth with the rough seas. After the “fix”, the door slammed shut on the hand of our client. This door and the negligence of Norwegian Cruise Line caused serious, debilitating, and permanent injuries to the hand and body of our client. This, in turn, has caused our client to undergo surgery, and may require surgery or medical care or treatment in the future.

The cause of the boating accident that killed real estate mogul, Steven Posner, and businessman, Clive Warwick, last Monday on Biscyane Bay is still unknown.

The accident occurred about 1 p.m. Monday, when Warwick, Posner and Posner’s cousin Stuart — all riding on Steven Posner’s high-performance boat — collided with a nearly identical vessel on Biscayne Bay, a mile or two east of Matheson Hammock Marina.

Both men died from blunt force trauma to the head, according to the Miami-Dade medical examiner’s office. The deaths were ruled accidental.

The medical examiner’s office determined that Warwick was thrown from the boat into the water at the time of the crash. Steven Posner’s cousin, Stewart, remains in critical condition at Ryder Trauma Center in Miami, FL.

The boats involved in the crash were “go fast” boats capable of flying through the water at speeds of over 100 mph. These racing catamarans are so powerful that they require two people to drive them – one individual to steer and one to control the speed.

Both boats were heading north at a “high rate of speed,” said Officer Jorge Pino, a wildlife commission spokesman. GPS records will help authorities determine just how fast the boats were going when they collided.

Posner’s boat was to the right of Mixed Emotions when the Posner boat made a turn to the left, striking the right side of the other boat, Pino said.

“We don’t know why, but we know the vessel veered,” Pino said.

Authorities are still trying to determine who the throttle man was on the Posner boat.

Primary Sources: http://www.palmbeachpost.com/news/second-victim-of-speedboat-crash-in-biscayne-bay-1088148.html

FACTS.
On Monday, November 29, 2010, approximately 1 mile East of Matheson Hammock Park/Marina, two catamaran “go fast” boats collided. The result of this collision was two men are dead and one is in critical condition at Jackson Memorial Hospital. The two men who died include Steven Posner, 67 years old, a well known Miami Beach real estate mogul. Mr. Posner was the eldest son of corporate raider Victor Posner, formerly of Miami Beach. The other deceased include Clive Warwick, 60 years old, who was also on Mr. Posner’s boat. The two recreational boats apparently collided at a high rate of speed. This accident is under investigation by the Florida Fish and Wildlife Conservation Commission. The Conservation Commission is investigating whether the boat owners and/or operators knew each other and whether they were racing or engaged in horse play. “They may have side swiped each other,” says Jorge Pino, Florida Fish and Wildlife Conservation Commission spokesman.

Others onboard these boats may have suffered personal injuries. The 27 year old, Friedrich Eigelfhoven, was on the boat adjacent to Posner’s boat. Mr. Eigelfhoven was taken to Mercy Hospital and treated for injuries there. Mr. Posner’s cousin, Stuart Posner, was onboard Posner’s boat and airlifted to Jackson Memorial Hospital. He is listed in critical condition. He suffered personal injuries.

THE AREA.
I am a boater and know this area of Biscayne Bay extremely well. When I was growing up in Miami, we used to go out on boats around Matheson Hammock. This area is basically the middle of Biscayne Bay. It is an area that is approximately 3 to 15 feet deep. It sometimes does have a slight chop. It is also an area popular with “go fast” boats because it is right off land and there are stretches where you would not come into contact with either land or other boats.

RIGHTS AND REMEDIES UNDER THE MARITIME LAW.
As a maritime lawyer who has practiced law for 30 years, I can analyze the remedies available to the families of the deceased and to the injured individuals. First, maritime law does apply to this accident and to the damages recoverable. If I were advising the families of the deceased or the injured individuals, I would urge them to retain a maritime lawyer. Whether you call myself or someone else to represent you, again, you absolutely should retain a maritime lawyer. That is because maritime law, also known as admiralty law, applies. It takes a seasoned admiralty or maritime lawyer to understand the ins and outs of this law, not only as it applies to liability, that is, who is at fault, but also as it applies to damages.

In regard to liability, the rules of the road for recreational boats apply. There are rules as to which vessel is to give way to the other vessel. That is the same concept as yielding to the right of way on land.

In regard to damages, because this accident happened within 12 miles from shore, the Florida Wrongful Death law would apply. The Death on the High Seas Act, a federal statute limiting damages severely in certain maritime actions, would not apply. There are other aspects of admiralty or maritime law which would apply. For example, the law of collateral sources under admiralty law is different than in state law. For example, in admiralty or maritime law, all medical expenses come into evidence. Under the state law on collateral sources, all of the expenses do not necessarily come into evidence.

The insurance companies for the boaters will retain maritime or admiralty lawyers for this marine accident. Maritime lawyers on the defense are well known in this community. I used to represent insurance companies and P&I clubs in such accidents. In going against seasoned, experienced maritime lawyers, you need a maritime plaintiff’s attorney.

WRONGFUL DEATH LAW.
Again, the wrongful death law in Florida applies. That law can be found at Fla. Stat. Sec. 768.16 et seq. That is also referred to as the “Florida Wrongful Death Act.” Under that Act, “survivors” are entitled to benefits. It is the personal representative of the estate of the decedent who actually can act as the plaintiff in a lawsuit.

The “survivors” include “the decedents spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives or adoptive brothers or sisters. It includes the child born out of wedlock of the mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” (Fla. Stat. Sec. 768.18(1).)

Under the Florida Wrongful Death Act, “minor children” means a child less than 25 years of age, notwithstanding the age of majority. In other words, any child who is under 25 years of age can be entitled to benefits as a “survivor.”

“Support” under that statute is defined as contributions in kind as well as money. That means that a blood relative that received in kind contributions is a “survivor.” In kind contributions would include picking someone up and taking them to the grocery store, for example. That is a contribution that is not money but it is a contribution nonetheless.

“Services” is defined in the Florida Wrongful Death Act as “tasks, usually of a household nature, regularly performed by the decedent that would be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.”

The estate is entitled to the “net accumulations.” That means “the part of the decedents expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. Net business or salary income is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contribution in kind.”

Damages which are recoverable for each survivor vary according to the type of survivor. Under the statute, “each survivor may recover the value of lost support and services from the date of the decedent’s injury to his or her death, with interest, and future loss of support and services from the date of the death and reduced to present value.”

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. Minor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.

Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.

The personal representative may also recover for the estate loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest.

The people injured in this recreational boating accident or marine accident can recover for what is called economic and non economic damages. Economic damages include medical expenses both past and future. Economic damages also include lost wages or income in the past as well as the loss of ability to earn income in the future.

The injured, as in any personal injury lawsuit, can recover for non economic damages. These include under the maritime law and under Florida law pain and suffering, mental anguish, loss of enjoyment of life, disability, disfigurement, and scarring, both past and future.

LIMITATION OF LIABILITY.
You may have heard about the Limitation of Liability Act. The Limitation of Liability Act is federal law located at 46 USC Sec. 183. This is a draconian, outdated federal statue which limits the liability of a boat owner to the value of the vessel.

The most common limitation or exception to the Limitation of Liability Act is the privity or knowledge of the owner. In other words, under section 183 (a), if the owner of the vessel had knowledge or participation in the negligence which caused the accident, the limitation will not apply.

In this case, it appears that the owners of the vessels certainly had knowledge of what was going on. If the owner of the other vessel was not on the vessel at the time of the accident, he or she may have liability without a limitation of liability if they negligently entrusted their boat to someone else.

Last summer, the American Association for Justice (AAJ) and the Admiralty Law Section of AAJ, of which I am chair, and many others, attempted to get through Congress a change to the Limitation of Liability Act as well as the Death on the High Seas Act. The push for these changes came about as a result of the gulf oil spill. In the gulf oil spill, as you may recall, the Deep Water Horizon, an oil platform which is considered a vessel, exploded and killed 11 men. It would be unjust for BP or any of the other defendants to hide behind the Limitation of Liability Act and to have to pay to the families of those 11 men only up to the value of that “vessel,” that is, the oil platform. Unfortunately, Congress did not change either the Death on the High Seas Act or the Limitation of Liability Act. It appears that the newly elected Congress may not pass these changes as well.

The Limitation of Liability Act allows the ship owner to file an action in federal court. Under the procedures of the Act, the federal court assumes or takes jurisdiction of not only the claim of the ship owner that it is entitled to “limitation,” but also the personal injury action itself. This is called concursus. This also is an antiquated, outdated procedure. In any event, under these procedures, the personal injury action filed in state court against the owners is automatically stayed.

In this case, the cruise line raised limitation of liability because the accident happened on a jet ski. They say that the damages are limited to the value of the jet ski. The injuries are of a permanent nature and, thus, the value of these injuries far exceeds the value of the jet ski. However, the so called fleet doctrine says that if the person injured on the vessel was actually part of or worked on a fleet of vessels, the limitation of liability would not apply.

The procedures for filing a limitation action are contained in Rule F of the Federal Rules of Civil Procedure, supplemental rules for certain admiralty and maritime claims. Rule F also contains venue provision which govern in which court the action may be commenced. The limitation action must be commenced within 6 months of the date of which the ship owner received written notice of a claim arising out of the incident. The case will be dismissed if it is not filed in a timely basis. If the action is filed initially in state court and no limitation action is filed, the limitation defense is not available to the defendant. If the action is filed in federal court, the limitation is available as an affirmative defense.

What we have done in the past is to enter into a stipulation such as in the Ziegler vs. Royal Caribbean Cruise Line, in which we can pursue the state action. The following is that stipulation:

1. That the Petitioner, ROYAL CARIBBEAN CRUISES, LTD., has the right to litigate the issue of whether it is entitled to limit its liability under the provisions of the Limitation of Liability Act, 46 U.S.C. §30501 et. seq., in this Court, and this Court has exclusive jurisdiction to determine those issues.
2. That the Petitioner has the right to have this Court determine the value of the vessels identified in its petition immediate following the incident at issue, and this court has exclusive jurisdiction to determine that issue.
3. That the Respondent/Claimant will not seek a determination of the issues set forth in paragraphs (1) and (2) above in any other court, and consents to waive any res judicata or issue preclusion effect which the decisions, ruling, or judgments of any other court might have on those issues.
4. The Respondent/Claimant will not seek to enforce any judgments rendered in any other court, whether against the Petitioner or any other person or entity that would be entitled to seek indemnity or contribution from the Petitioner, by way of cross-claim or otherwise, that would expose the Petitioner to liability in excess of $6,950 (or such amount as this Court ultimately determines is the value of the vessels involved) until such time as this Court has adjudicated the Petitioner’s right to limit that liability.

WE RECOMMEND.
We recommend that you retain an admiralty or maritime attorney who is experienced on the plaintiff’s side. That is, admiralty or maritime attorneys who represent boat owners, insurance companies, P&I clubs, and/or cruise lines are not appropriate to represent plaintiffs in such actions (plaintiffs are the injured parties). The reason for that is that there can be direct or indirect conflicts of interest. When an attorney also represents insurance companies or even boat owners in other cases, they may not represent plaintiffs in this kind of case with the same zeal which they should.

We are uniquely qualified to represent individuals in this or any other recreational boating accident, maritime accident, or marine accident in regard to personal injuries or wrongful death. I am a maritime attorney and have been for 30 years. I started out by representing the defense interests. This includes insurance companies, P&I clubs, and cruise lines. Approximately 13 years ago, I switched sides. I absolutely do not represent insurance companies, P&I clubs, ship owners, boat owners, or cruise lines. I am Chair of the Admiralty Law Section of the American Association for Justice. I am past Chair of the Admiralty Law Committee of The Florida Bar.

Further, I grew up on Biscayne Bay. I was on boats and diving in and around Biscayne Bay and have operated motor and sail boats since the age of 13.

Whether you retain us or someone else, we urge you to retain a lawyer who is both a trial lawyer and a maritime lawyer. You need both qualifications in one lawyer. (Certainly there are other qualifications and experience you should look for as well). I am Board Certified as a Trial Lawyer by both The Florida Bar and the National Board of Trial Advocates. I am also Chair of the Admiralty Law Section of the American Association for Justice, and am a Past Chair of the Admiralty Law Section of The Florida Bar. See my website and by biography on that site: www.hickeylawfirm.com.

We now have 3 highly qualified lawyers. The combined experience level of the lawyers in this firm is 58 years. We all have a maritime background and know maritime law. Call us for a FREE CONSULTATION: 305.371.8000 or TOLL FREE: 1.800.215.7117.

In order to contact us, you can call us or email us. Call us at (305) 371-8000 in Miami. Email us at newcase@hickeylawfirm.com. When you call, ask for myself or Laurel Chernoby. We will be glad to help you in any way we can.

1401 Brickell Avenue, Suite 510
Miami, FL 33131
T: 305.371.8000
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Toll Free: 1.800.215.7117
Website: www.hickeylawfirm.com