Case 2:12-cv-00053-JES-DNF Document 1

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DONALD COLEMAN for use and benefit of ACE AMERICAN INSURANCE COMPANY, a Pennsylvania Corporation, Plaintiff,
vs.

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Case No.:

AQUA TOY STORE, INC., a Florida Corporation, Defendant.

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COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, ACE AMERICAN INSURANCE COMPANY ("ACE"), as subrogee to the rights of DONALD COLEMAN ("Mr. Coleman"), by and through its undersigned counsel, files this Complaint against Defendant, AQUA TOY STORE, INC. ("AQUA") and states: JURISDICTION AND VENUE 1. This is an action for damages in excess of $75,000, exclusive of interest,

costs, and attorney's fees, and is otherwise within the diversity subject matter jurisdiction of this Court. 2. All claims set forth herein arise from the same operative facts and should

be disposed of in a single proceeding. The events, acts, and circumstances givingriseto

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this action occurred in Collier County, Florida, and venue is otherwise proper within this District and Division. 3. This action arises from a partial submersion that occurred on or about

April 21, 2010 to a 2009 38' Fountain Express Cruiser bearing Hull Identification Number FGQ8E124D809 (the "Vessel") while it was docked at the Island Marina in Naples, Florida. 4. The Vessel, which is the subject of this action, is currently situated in Fort

Myers, Florida. 5. 6. At all material times, Mr. Coleman owned the Vessel. As a result of Mr. Coleman's loss and pursuant to the terms of a contract

of insurance between ACE and Mr. Coleman, ACE has paid $200,000.00 to Mr. Coleman for the loss associated with the sinking at issue in this litigation. ACE is subrogated at law and in equity to the rights of Mr. Coleman. ACE is therefore the real party in interest in this matter. 7. At all material times, ACE insured the Vessel and was and remains a

corporation organized and existing under the laws of Pennsylvania, with its headquarters located in Philadelphia, Pennsylvania. 8. AQUA is a Florida corporation that maintains its principal place of

business in Pompano Beach, Florida. GENERAL ALLEGATIONS 9. On or about June 11, 2008, AQUA sold and distributed the Vessel,

together with its engines and equipment, to Mr. Coleman.

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10.

Between June 11, 2008 and February 23, 2009, Mr. Coleman requested

that AQUA furnish and install a custom-built hydraulic folding swim platform on the Vessel. 11. When Mr. Coleman requested that AQUA custom-build and install the

swim platform on the Vessel, Mr. Coleman relied on AQUA's skill, expertise, and judgment that the swim platform would be suitable for the Vessel. 12. AQUA knew or should have known that Mr. Coleman relied on its skill,

expertise, and judgment when Mr. Coleman contracted with it to custom-build and install the swim platform on the Vessel. 13. On or about February 23, 2009, Mr. Coleman entered into a contract with

AQUA whereby AQUA constructed, furnished, and installed the swim platform on the Vessel for $39,220.00. 14. The swim platform that was chosen and installed by AQUA added

considerable weight to the Vessel, which caused the Vessel's stem to sit lower in the water. 15. After the negligent design and installation of the swim platform, AQUA

became aware that the Vessel's stern sat lower in the water and that the swim platform caused the Vessel's exhaust pipes to be submerged. Following the negligent installation of the swim platform AQUA attempted to modify the stock exhaust system to "prevent[ ] water back flush into engine caused by addition of swim platform." 16. In an attempt to correct the negligent design and installation of the swim

platform AQUA negligently modified and/or installed the exhaust system resulting in a

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continuous flow of water entering the Vessel. 17. On or about April 21, 2010, the Vessel sank in its slip at the Island Marina

in Naples, Florida; subsequently, the Vessel was salvaged and placed in storage. 18. As a result of Mr. Coleman's loss and pursuant to the terms of a contract

of insurance between ACE and Mr. Coleman, ACE has paid $200,000.00 to COLEMAN for the loss associated with the sinking, plus interest, and additional expenses related to this loss including storage and salvage efforts totaling $13,358.33. COUNT INEGLIGENCE 19. AQUA owed COLEMAN a duty to use reasonable care when custom-

building and installing the swim platform on the Vessel and modifying and installing the exhaust system. 20. AQUA breached its duty by: a) Failing to provide a suitably designed swim platform; b) Failing to properly construct the swim platform; c) Failing to properly install the swim platform; d) Failing to properly install the exhaust system; e) Failing to properly warn Mr. Coleman of the potential risk of submersion; f) Failing to adequately remedy the swim platform even though it knew the swim platform was improper for the Vessel; g) Failing to follow up with Mr. Coleman to confirm the installation of the swim platform was proper.

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21.

As a direct and proximate result of AQUA's negligence, the Vessel

suffered extensive damage. 22. ACE, as subrogee to Mr. Coleman's rights, has suffered damages because

of AQUA's negligence. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IIPOST SALE FAILURE TO WARN 23. After the installation of the swim platform, AQUA became aware of the

fact that the Vessel's stern sat lower in the water and could potentially take on water. 24. 25. AQUA negligently failed to warn Mr. Coleman of this defect. Consequently, Mr. Coleman was not aware of the defect i.e. water

intrusion through the exhaust system. 26. As a result of AQUA's failure to warn Mr. Coleman, Plaintiff ACE has

suffered damage, to wit: a catastrophic submersion of the Vessel. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IIIPOST SALE NEGLIGENCE AGAINST AQUA 27. At all material times, AQUA knew that the VESSEL'S stem sat lower in

the water and was taking on water through the exhaust system.

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28.

AQUA was negligent after the installation of the swim platform and

exhaust system including but not limited to the following: a) Failing to properly correct the known danger of water intrusion through the exhaust system; b) Failing to warn Mr. Coleman that the VESSEL sat lower in the water due to the installation of the swim platform; c) Failing to warn Mr. Coleman directly of the known danger of water intrusion via the exhaust system; d) Failing to have in place proper procedures for advising vessel owners, such as Mr. Coleman, of known dangers. 29. As a result of AQUA's negligence, Plaintiff ACE has suffered damage, to

wit: a catastrophic submersion of the Vessel. WHEREFORE, ACE demands relief in the form of damages, including pre- and post-judgment interest; costs; and any other such relief in law or equity this Court deems proper. COUNT IVBREACH OF IMPLIED WARRANTY OF WORKMANLIKE PERFORMANCE 30. AQUA undertook responsibility for designing and installing the swim

platform and for modifying the exhaust system. 31. AQUA is a seller and modifier of high end vessels. They impliedly

warranted to Mr. Coleman that they were competent to design and install the proper swim platform and modify the exhaust system. 32. AQUA owed Mr. Coleman a warranty of workmanlike performance for

the design and installation of the swim platform and the modification of the exhaust

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system which inter alia, required AQUA to perform their various duties properly, safely and in a workmanlike manner. 33. limited to: a) b) c) d) e) f) g) h) i) 34. 35. Failing to follow up with the vessel owner to confirm work was done properly. Failing to exercise proper care under the circumstances. Failing to use and/or implement proper guidelines. Failing to properly train personnel. Failing to properly supervise personnel. Failing to use reasonable care in the selection, use and/or installation of the swim platform and exhaust system. Installing improper parts or failing to install parts. Failing to properly design the swim platform and exhaust system, Failing to properly modify the exhaust system. Mr. Coleman relied on AQUA to properly provide safe service to his vessel. The design and installation of the swim platform and modification of the AQUA failed to perform in a workmanlike manner including, but not

exhaust system was not done in accordance with workmanlike manners or methods. Defendant breached its duty of workmanlike performance workmanship, either of which, or both, were defective and which cause damage to Mr. Coleman's vessel and personal property.

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WHEREFORE, Plaintiff demands a judgment for damages, attorney's fees, costs and pre/post judgment interest against AQUA, and for such other and further relief as deemed just and proper by this Court. DEMAND FOR JURY TRIAL ACE hereby demands a trial by jury on all issues so triable. DATED this 26day of January, 2012 RESPECTFULLY SUBMITTED, McALPIN CONROY, P.A. 80 SW 8th Street, Suite 2805 Miami, Florida 33130 Telephone: 305-810-5400 Facsimile! 305-810-5401

J. McALPIN No. pAlpin@,McAlpinConrov.com JONATHAN H. DUNLEAVY Florida Bar No.: 459666 JDunleaw@McAlpinConrov.com

Case 2:12-cv-00053-JES-DNF Document 1-1

<JS44 (Rev. 12/07)

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CIVIL COVER SHEET

DEFENDANTS AQUA TOY STORE, INC., a Florida Corporation
County of Residence of First Listed Defendant P a l m B e a c h , Florida (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE LAND INVOLVED. Attorneys (If Known)

The JS 44 civil cover sheet and the information contained herein neitherreplacenor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference ofthe United Slates in September 1974, is required for the use ofthe Clerk of Court for the purpose of initiating Ihe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS

DONALD COLEMAN for use and benefit of ACE AMERICAN INSURANCE COMPANY, a Pennsylvania Corporation.
(b) County of Residence of First Listed Plaintiff Pennsylvania (EXCEPT IN U.S. PLAINTIFF CASES)

(C) Attorney's (Firm Name, Address, and Telephone Number)

Richard J. McAlpin, Jonathan Dunleavy, McAlpin Conroy, P.A., 80 S.W. 8th Street. Suite 2805, Miami FL 33130 (305)810-5400 nl
II. B A S I S O F J U R I S D I C T I O N O I U.S. Government Plaintiff (Place an"X" in One Box Only) III. 3 Federal Question (U.S. Government Not a Party) a 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen or Subject of a Foreign Country 3 3 3 3 C I T I Z E N S H I P O F P R I N C I P A L PARTIES(Place an ^ " m One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State 3 I CI 1 Incorporated or Principal Place 3 4 34 4 of Business In This State Citizen of Another Stale 3 2 3 2 Incoiporated and Principal Place of Business In Another Stale Foreign Nation

02

U.S. Government Defendant

a 5
3 6

as
3 6

IV. NATURE OF SUIT

1 3 3 3 3 3 3 3 CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument ISO Recovery of Oveipayment & Enforcement of Judgment 151 Medicare Act 152 Recovciy of Defaulted Student Loans (ExcL Veterans) 153 Recovciy of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property 3 3 3 3 3 3 3 3 3

(Place an "X" in One Box Only) TORTS PERSONAL INJURY 3IOAiiplane 315 Airplane Product Liability 320 Assault. Libel & Slander 330 Federal Employers' Liability 340 Marine 34S Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amcr. w/Disabilities Employment 446 Amcr. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 3 362 Pcisonal Injury Med. Malpractice 3 365 Personal Injury Product Liability 3 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 3 370 Other Fraud 3 371 Tnnh in Lending 8 380 Other Personal Property Damage 3 385 Property Damage Product Liability PRISONER PETmONS 3 510 Motions to Vacate Sentence Habeas Corpus: 3 530 General 3 535 Death Penally 3 540 Mandamus & Other 3 550 Civil Rights 3 555 Prison Condition

i muiauu ;i n it>J.\ tn.'fl

3 610 Agriculture 3 620 Other Food & Drug 3 625 Drag Related Seizure ofPropeny21USC88l 3 630 Liquor Laws 3 640R.R.&Tmck 3 650 Airline Regs. 3 660 Occupational Safety/Health 3 690 Other LABOR 3 710 Fair Labor Standards Act 3 720 Labor/Mgmt. Relations 3 730 Labor/Mgmt.Reponing & Disclosure Act 3 740 Railway Labor Act 3 790 Other Labor Litigation 3 791 Empl. Ret. Inc. Security Act IMMIGRATION 3 462 Naturalization Application 3 463 Habeas Corpus Alien Detainee 3 465 Other Immigration Actions

BANKRUPTCY 3 3 3 3 3 3

OTHER STATUTES

3 422 Appeal 28 USC 158 3 423 Withdrawal 28 USC 157

3 3 3

3 3 3 3 3 1 3 3 3 3 0 O

3 3 3 3 3 3 3

3 3 3 3 3 O 3

400 Suite Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce PROPERTY RIGHTS 460 Deportation 470 Racketeer Influenced and 820 Copyrights Corrupt Organizations 830 Patent 840 Trademark 3 480 Consumer Credit 3 490 Cable/Sat TV 3 810 Selective Service SOCIAL SECURITY 3 850 Securities/Commodities/ 86IHIA(139Sff) Exchange 3 875 Customer Challenge 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 12 USC 3410 864 SSID Title XVI 3 890 Oilier Statutory Actions 865 RSI (405(g)) 3 891 Agricultural Acts 3 892 Economic Stabilization Act FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff z 3 893 Environmental Maners or Defendant) . .;. 3 894 Energy Allocation Act 871 IRS-Third Party , 3 995 Freedom of Information 26 USC 7609 Afc; 3 . 900Appeal of Fee Determination Unlet Equal Access ".- ".. to JUatcc O ' 950 Coffitltutionality of V _ State Statutes

'
V. O R I G I N 0 1 Original Proceeding (Place an "X" in One Box Only) O 2 Removed from O 3 Slate Court *>':>"' 0 6 Multidistricto O 7 Litigation 3*

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, _..

Remanded from Appellate Court

4 Reinstated or Reopened

5 T^i?I^,,1:m JWHI?

Appeal to District JrffJ m Magistrate Judgment

Cite the LIS. Civil Statute under whichyou are filing IDo not cite Jurisdictional statutes .unless diversity):

VI. CAUSE OF ACTION

VII. R E Q U E S T E D IN COMPLAINT:

Non-statutory claims (negligence ana breach or Implied; warranty)

Brief description of cause: D CHECK IF THIS IS A C L A S S A C T I O N UNDER F.R.C.P. 23 (See instructions): DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND: 8f Yes a No

VIII. RELATED CASE(S) IF ANY

JUDGE

DOCKET NUMBER

RECEIPT fl

JUDGE

MAG. JUDGE

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