Lozman's "Floating Home" Saga Ends at SCOTUS

April 22, 2017

Fane Lozman and his dog with floating home in foreground Picture from the Associated Press

The U.S. Supreme Court has rejected Fane Lozman's latest appeal in his landmark case involving the seizure and destruction of his floating home. The justices denied without comment Mr. Lozman's petition asking them to enforce their 2013 ruling by ordering the city of Riviera Beach to pay him about $365,000 for the home's value and legal fees. Lower courts also ruled against Mr. Lozman, and this was his last appeal.

The ruling obtained by Mr. Lozman in 2013 set a new standard for floating homes and other structures. As posted previously in this blog, the ruling meant that federal maritime law that calls for seizure under Supplemental Rule C could no longer be applied to disputes involving floating structures that have no traditional characteristics of a vessel, such as an engine, rudder or sails. As reported by such news sources as the AP, the Daily Business Review and other well known sources, the decision has affected thousands of floating homes and business owners across the U.S., including floating gambling casinos docked on rivers. In the cases currently before the courts, maritime lawyers, including our office, are taking a closer look at the right cases to evaluate whether the alleged vessel, is in fact a vessel under Mr. Lozman's precedent setting case. 

However in this latest submission to the U.S. Supreme Court, Mr. Lozman contended that the city should reimburse him the estimated $165,000 value of the floating home destroyed, plus $200,000 in legal fees. The city relied on a vessel survey expert to suggest that the amount of his vessel was worth far less than the amounts demanded by Mr. Lozman. The city also argued that it should not be forced to pay Mr. Lozman's attorney's fees because it was acting in good faith under the applicable law at the time before the Supreme Court decision. The city's view was adopted in full by the district court judge and upheld by the U.S. Court of Appeals for the Eleventh Circuit. Mr. Lozman's position before the Supreme Court is that these lower court rulings rejecting full reimbursement for his home, when what the lower courts are doing is attempting to provide a pyhrric victory by reimbursing him only for a destroyed vessel, worth considerably less. Mr. Lozman's  position is that these rulings fly in the face of the original Supreme Court decision.


If you are interested in obtaining in reading Mr. Lozman's brief to the U.S. Supreme Court, please feel free to contact me via this blog or at blog@miamimaritimelaw.co.

Florida Supreme Court Finds Concurrent Cause Must be Covered if Covered by Policy

December 04, 2016

In Sebo v. American Home Assurance Co., Case No. SC140897 (Fla. Dec. 1, 2016), the Florida Supreme Court ruled that insurance companies should not deny coverage for property damage just because it had more than one concurrent cause, as long as the policy covers one of the causes.

The opinion reverses a Second District Court of Appeal decision that instructed courts to determine the primary cause of damage and rule that an insurance claim could be denied if that primary cause was not covered by the policy. The Second DCA decision conflicted with a Miami appellate court ruling that had been the law since 1988. The 1988 decision in Wallach v. Rosenberg issued by the Third District Court of Appeal relies on the competing "concurrent cause" doctrine, which says coverage may exist if an insured risk is one of the causes of the damage, even if it is not the primary cause. The Florida Supreme Court opinion affirmed the Third DCA's logic.

Sebo's homeowners insurance company, American Home Assurance Co. Inc., denied coverage for most of his claimed property damage in 2005. Sebo's Naples home experienced water damage during summer rainstorms because of undisputed design and construction defects, and a few months later, Hurricane Wilma struck an additional blow.American Home Assurance Co. argued that since Sebo's all-risk policy specifically excluded damage caused by defective planning, the damage caused by a combination of defects, rain and wind was not covered under the policy. 

The Second DCA agreed, using the "efficient proximate cause" doctrine that the Florida Supreme Court has previously applied to cases where one peril causes another, such as a fire caused by an explosion. The theory says the insurer can deny coverage if the primary, or "efficient" cause, is excluded under the policy.

The Florida Supreme Court noted that Sebo's insurance company did not explicitly avoid applying the concurrent cause doctrine in case of negligent design, whereas other parts of the policy did specify that the doctrine could not apply.

The decision has been defined as extremely significant for any homeowner or business with an all-risk policy because concurrent causes are frequently found in Florida. For example, both wind and water caused damage to homes in North Florida during Hurricane Matthew. However, insurance companies could react to the decision by including anti-concurrent-cause language in their policies, as many already do.

Readers routinely involved in marine insurance claims will want to note that the test for coverage in such claims is the efficient proximate cause doctrine. Therefore, this case, while being considered significant, can be distinguished by the fact that it is not a marine insurance policy. However, this case will likely spur marine insureds to urge the extension of the holding in Sebo to marine insurance cases.

If you are interested in receiving a copy of this decision or wish to contact me, you may do so by writing to me via this blog or by email at blog@miamimaritimelaw.co. 

U.S. Crewmember Required to Arbitrate Claims Applying Norwegian Law

August 30, 2016

In Alberts v. Royal Caribbean Cruises, Ltd., No. 15-14775 (11th Cir. Aug. 23, 2016), the U.S. Court of Appeals for the Eleventh Circuit held that a U.S. citizen, working aboard a Royal Caribbean cruise ship is required to arbitrate his claims against Royal Caribbean.

Plaintiff, a United States citizen, worked as the lead trumpeter on a passenger Royal Caribbean cruise ship. The ship is a Bahamian flagged vessel with a home port in Fort Lauderdale, Florida. Royal Caribbean, the operator of the vessel, is a Liberian corporation with its principal place of business in Florida. After plaintiff became ill while working for Royal Caribbean, he filed suit alleging unseaworthiness, negligence, negligence under the Jones Act, maintenance and cure, and seaman’s wages and penalties.

Royal Caribbean moved to compel arbitration, and the district court granted the motion. This appeal presented an issue of first impression: Whether a seaman’s work in international waters on a cruise ship that calls on foreign ports constitutes “performance . . . abroad” under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. section 202. The Convention makes enforceable an arbitration agreement between United States citizens if their contractual relationship “envisages performance . . . abroad.”

The appellate court affirmed the order compelling arbitration of the dispute because it found that a seaman works abroad when traveling in international waters to or from a foreign state. What the appellate court's opinion failed to note was that the arbitration would be required to apply Norwegian law.

If you are interested in receiving a copy of the Eleventh Circuit's opinion or a copy of the employment contract at issue or just wish to contact me, you may do so by writing to me at blog@miamimaritimelaw.co.

Lozman Case Revisited in Miami?

March 14, 2016

In Hoefling v. City of Miami, Case no.: 14-12482 (11th Cir. Jan. 25, 2016), the U.S. Court of Appeals for the Eleventh Circuit revived almost all of Hoefling's claims. You ask, "Who is Hoefling?" Hoefling  lived on his sailboat Metis O moored off Dinner Key for nearly a decade—until the day he came home and it was gone. About three months earlier, an officer from the Miami Police Department's Marine Patrol Detail tagged Hoefling's vessel for lacking a sanitary device and a working anchor light. He had a deal to use the facilities at the nearby marina but quickly went out and reportedly bought what he needed to comply. Three months later while he was on a business trip, the City of Miami seized and destroyed his boat and all his belongings. As a result, he was homeless. He sued under § 1983, maritime law, and state law. He stated a claim under the Fourth Amendment for seizure and destruction without notice or cause and a “taking.”

Judge Adalberto Jordan U.S. Court of Appeals for the Eleventh Circuit

At the U.S. District Court level, the case was before Judge Joan Lenard. Judge Lenard dismissed the case before discovery with prejudice. Some reports suggested she tried to "trash" Hoefling's lawsuit. For example, the DBR suggested that Judge Lenard was familiar with the city side of civil rights suits, since her husband, Howard Lenard, former city attorney for North Miami Beach, is general counsel to the Miami-Dade County League of Cities. Miami is one of its 34 municipal members. Nevertheless, in her May 6, 2014, order granting defendants' motion to dismiss, Lenard relied heavily on the incident reports filed by the two Marine Patrol officers or on their behalf. Judge Lenard accused the Plaintiff of "attempt[ing] to pull the wool over the court's eyes" by dropping Marine Patrol incident reports she found credible but Hoefling said were fabricated.

Hoefling appealed. The opinion of the U.S. Court of Appeals for the Eleventh Circuit was written by Judge Adalberto Jordan. Judge Jordan found that "[a]fter a review of the record, and with the benefit of oral argument, we conclude that the district court got some things right and some things wrong." The appellate court remanded the case to the trial court and directed the trial court to avoid "accepting as true the contents of the incident reports."

This case is reminiscent of the case of Lozman v. The City of Riviera Beach. Lozman kept his floating home in a marina in the City of Riviera Beach, where he signed a lease with the city, moored the floating home to the dock, and affixed the home to land based utilities. Later, the city council passed a revised dockage agreement and accompanying Marina Rules--some argued--to force Lozman and other "undesirables" out of the marina. Pursuant to these rules, the city informed Lozman it would revoke his permission to remain on the marina unless he executed a new agreement and complied with the new regulations. Lozman did not execute a new agreement and continued to remain at the marina. The city first filed a lawsuit in state court, which failed. The city then filed an in remsuit in federal court for trespass under federal maritime law and ultimately, destroyed Lozman's floating home. 

The question becomes, "Are cities utilizing their police powers and/or the general maritime laws of the U.S. to remove what they consider derelict and unconforming vessels and other items floating in their waters?" You be the judge.  Some say these are two clear examples of this.

If you are interested in receiving a copy of the Hoefling decision or wish to contact me, you may do so by writing to me at blog@miamimaritimelaw.co.