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AnswertoAmendedComplaint-1.pdf
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-CV-20692-KMM NICOLE WOODLEY, individually and as mother and guardian of minors K. W., M. W., and C.W., JR.; CLARICE LEE, individually; and BARRINGTON L. SIBBLIS, as personal representative of the Estate of BARBARA SIBBLIS, Plaintiffs, vs. ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant. ____________________________________/
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, ROYAL CARIBBEAN CRUISES, LTD (“RCL”), by and through undersigned
counsel, pursuant to the Federal Rules of Civil Procedure, hereby files this Answer and Affirmative
Defenses to Plaintiffs’ Second Amended Complaint [DE 71], and states as follows:
INTRODUCTION
1. Admitted.
2. Admitted that RCL sells shore excursions in various ports of call as a convenience to its
passengers. All else denied.
3. Admitted that certain Plaintiffs participated in the subject shore excursion in St. Maarten.
All else denied.
4. Denied.
5. Denied.
6. Without knowledge, therefore denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
7. Admitted.
8. Denied.
A. The Parties
9. Without knowledge, therefore denied.
10. Without knowledge, therefore denied.
11. Admitted that the Court has personal jurisdiction over RCL. All else denied.
12. Admitted that RCL operated the Adventure of the Seas on the date of the subject incident
and that RCL sold the subject shore excursion to the Plaintiffs who were passengers on the subject
cruise. All else denied.
13. Admitted that Defendant Out Island Charters (“OIC”) was the sole operator of the subject
excursion. Otherwise without knowledge, therefore denied.
C. Jurisdiction1
14. Admitted that this court has admiralty jurisdiction over this action.
15. Admitted that this court has admiralty jurisdiction over this action.
16. Admitted that certain Plaintiffs were passengers on the subject vessel which was in
navigable waters and that Barbara Sibblis died while she was off of the vessel in Philipsburg, St.
Maarten. All else denied.
17. Denied.
18. Admitted that this court has admiralty jurisdiction over this action. All else denied.
19. Without knowledge, therefore denied.
20. Denied.
1 There is no section “B” in Plaintiffs’ Complaint.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
21. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
22. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
23. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
24. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
25. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
26. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
27. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
28. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
29. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL and that venue is proper in this Court. All else denied.
30. Admitted that venue is proper in this Court and that the parties agreed by contract for venue
to be in this Court. All else denied.
31. Admitted for the purposes of this litigation that this Court has personal jurisdiction over
RCL. All else denied.
32. Admitted that OIC was the sole operator of the subject excursion. All else denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
33. Admitted that OIC was the sole operator of the subject excursion on the date alleged in the
Complaint. All else denied.
34. Admitted.
35. Admitted that RCL advertises shore excursions available to its passengers on its website
and that RCL’s passengers can purchase those excursions prior to their cruise. All else denied.
36. Admitted that RCL offers shore excursions to its passengers, including on its ships, all else
denied.
37. Admitted that RCL has shoreside employees whose job duties include entering into
contracts with independent contractor excursion providers to provide excursions to its passengers
and that shoreside employees are also involved in marketing those excursions. All else denied.
38. Admitted that OIC invoices RCL for the shore excursions it operates, and that payment is
made by wire transfer to OIC. All else denied.
39. Admitted that before offering OIC shore excursions to RCL passengers, OIC provided
information regarding the shore excursions to RCL. All else denied.
40. Denied.
41. Admitted that RCL and OIC entered into a contract concerning the subject excursion. All
else denied.
GENERAL ALLEGATIONS
42. Admitted that RCL operated the Adventure of the Seas on the date of the subject incident.
All else denied.
43. Denied.
44. Admitted OIC was the sole operator of the subject shore excursion and that it was marketed
and sold by RCL. All else denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
45. Admitted that certain Plaintiffs were paying passengers on the subject cruise. All else
denied.
46. Admitted.
47. Admitted.
48. Admitted.
49. Admitted that certain Plaintiffs purchased the subject shore excursion on the subject cruise.
All else denied.
50. Denied.
51. Without knowledge, therefore denied.
52. Denied.
53. Admitted that this is a portion of the description of the subject excursion. All else denied.
54. Denied.
55. Denied.
56. Admitted that RCL did not provide such information because it was not aware of any such
conditions that would have required it.
57. Admitted that RCL did not provide such information because it was not aware of any such
conditions that would have required it.
58. Denied.
59. Denied
60. Denied.
61. Admitted that certain Plaintiffs and Barbara Sibblis disembarked the subject cruise and
were directed to board the subject excursion by employees of OIC.
62. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
63. Denied.
64. Denied.
65. Denied.
66. Denied.
67. Denied.
68. Denied.
69. Denied.
70. Denied.
71. Denied.
72. Without knowledge, therefore denied.
73. Denied.
74. Without knowledge, therefore denied.
75. Admitted that CPR was performed on the beach until paramedics arrived. Otherwise
without knowledge, therefore denied.
76. Admitted that attempts to revive Barbara Sibblis were unsuccessful. Otherwise without
knowledge, therefore denied.
77. Without knowledge, therefore denied.
78. Denied.
79. Denied.
80. Denied.
81. Denied.
82. Denied.
83. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
84. Denied.
85. Denied.
86. Denied.
87. Denied.
88. Denied.
RIGHTS AND REMEDIES
Maritime Wrongful Death
89. Admitted that this action arises under the Death on the High Seas Act. All else denied,
including all sub-sections.
Maritime Personal Injury
90. Admitted that this action arises under the general maritime law of the United States. All
else denied.
ADDITIONAL ALLEGATIONS
91. Admitted.
92. Admitted that RCL offers shore excursions to its passengers. All else denied.
93. Denied.
94. Admitted that RCL offers advertises and sells shore excursions to its passengers. All else
denied.
95. Admitted that RCL offers shore excursions to its passengers. All else denied.
96. Admitted that RCL derives profit from the sale of shore excursions. All else denied.
97. Admitted that RCL has employees who market and sell shore excursions. All else denied.
98. Admitted that RCL has employees who market and sell shore excursions. All else denied.
99. Admitted that RCL has employees who market and sell shore excursions. All else denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
100. Admitted that RCL derives income from shore excursions run by independent contractor
tour providers. All else denied.
101. Admitted that RCL provides descriptions of the shore excursions available to its
passengers. All else denied.
102. Denied.
103. Denied.
104. Denied.
105. Denied.
106. Denied, including all sub-sections.
107. Denied.
FIRST CAUSE OF ACTION FOR NEGLIGENCE, CARELESSNESS, WANTONNESS, and RECKLESSNESS
AGAINST DEFENDANT ROYAL CARIBBEAN 108. RCL incorporates by reference paragraphs 1-107.
109. Denied.
110. Denied.
111. Denied.
112. Denied.
113. Denied.
114. Denied including all sub-sections.
115. Denied.
116. Denied.
117. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
118. Denied.
SECOND CAUSE OF ACTION FOR NEGLIGENT SELECTION AND RETENTION
AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES 119. RCL incorporates by references paragraphs 1-107.
120. Admitted that RCL and OIC entered into a contract for OIC to operate the subject
excursion. All else denied.
121. Denied.
122. Denied.
123. Denied as an incomplete statement of the law.
124. Denied as an incomplete statement of the law.
125. Denied.
126. Denied.
127. Denied.
128. Denied.
129. Denied.
130. Denied.
131. Denied.
132. Denied.
133. Denied.
134. Denied including all sub-sections.
135. Denied.
136. Denied.
137. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
138. Denied.
THIRD CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION
AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES
139. RCL incorporates by references paragraphs 1-107.
140. Denied.
141. Denied.
142. Denied.
143. Denied.
144. Denied including all sub-sections.
145. Denied.
146. Denied.
147. Denied.
148. Denied.
149. Denied.
150. Denied.
151. Denied.
FOURTH CAUSE OF ACTION FOR VICARIOUS LIABILITY –
OSTENSIBLE AGENCY (APPARENT AGENCY) AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES
152. RCL incorporates by references paragraphs 1-107.
153. Denied including all sub-sections.
154. Denied.
155. Denied.
156. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
157. Denied.
158. Denied.
159. Denied.
160. Denied as an improper statement of the law.
161. Without knowledge, therefore denied.
162. Without knowledge, therefore denied.
163. Without knowledge, therefore denied including all sub-sections.
164. Denied.
165. Denied.
166. Denied.
167. Denied.
FIFTH CAUSE OF ACTION PLAINTIFF NICOLE WOODLEY, individually and as mother and guardian of minors
K.W., M.W.; and C.W., JR.’s CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
168. RCL incorporates by references paragraphs 1-107.
169. Denied.
170. Denied.
171. Denied.
172. Denied.
173. Denied.
SIXTH CAUSE OF ACTION PLAINTIFF CLARICE LEE’S CLAIM FOR NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS
174. RCL incorporates by references paragraphs 1-107.
175. Denied.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
176. Denied.
177. Denied.
178. Denied.
179. Denied.
AFFIRMATIVE DEFENSES
As separate, complete, and affirmative defenses to Plaintiff’s Complaint and each of its
purported causes of action, based upon information and belief, RCL states as follows:
FIRST AFFIRMATIVE DEFENSE
RCL alleges federal maritime law, to the exclusion of state law, controls this action, and that
any recovery is limited by same.
SECOND AFFIRMATIVE DEFENSE
RCL alleges that this action is governed by, and subject to, the terms, limitations, and
conditions contained within the Plaintiffs’ passenger ticket contract. RCL adopts and incorporates
all of the terms, limitations, and conditions contained in the passenger ticket contract in its entirety
into its Answer by reference.
THIRD AFFIRMATIVE DEFENSE
The Death on the High Seas Act (DOHSA), 46 USC §30301 et seq., is the exclusive remedy
to the exclusion of state law and general maritime law of the Estate of Barbara Sibblis.
FOURTH AFFIRMATIVE DEFENSE
RCL alleges that it has fulfilled its duty of reasonable care to Plaintiffs and as such, Plaintiffs
are unable to recover.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
FIFTH AFFIRMATIVE DEFENSE
RCL alleges that it had no notice, actual, constructive, or otherwise of any dangerous condition
which Plaintiffs allege were the proximate cause of Plaintiffs and/or Decedent’s injuries and as
such, RCL is not liable to Plaintiffs based on a theory of negligence and Plaintiffs are unable to
recover.
SIXTH AFFIRMATIVE DEFENSE
RCL alleges that it did not create any dangerous or defective condition, at any time during
Plaintiffs’ cruise, if ever.
SEVENTH AFFIRMATIVE DEFENSE
RCL alleges Plaintiffs knew of the existence of any alleged danger complained of in their
Complaint, realized and appreciated the possibility of injury as a result of the danger, and, having
a reasonable opportunity to avoid it, voluntarily exposed themselves to same.
EIGHTH AFFIRMATIVE DEFENSE
RCL alleges Plaintiffs’ and Decedent’s injuries were proximately caused by the conduct of
third parties, not subject to the control, supervision or direction of RCL, thereby precluding or
diminishing Plaintiffs’ recovery.
NINTH AFFIRMATIVE DEFENSE
RCL alleges that Plaintiffs’ and Decedent’s injuries were the result of superseding, intervening,
and/or unforeseeable causes, thereby precluding or diminishing Plaintiffs’ recovery.
TENTH AFFIRMATIVE DEFENSE
RCL alleges that, to the extent that the Plaintiffs’ Complaint alleges that a dangerous condition
existed, any such condition, was an open and obvious condition and that Plaintiffs and/or Decedent
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
did or should have observed and comprehend. As such, any recovery of the Plaintiffs is herein is
barred or should be reduced accordingly.
ELEVENTH AFFIRMATIVE DEFENSE
RCL alleges that Plaintiffs have failed to mitigate their damages, if any, thus precluding or
diminishing Plaintiffs’ recovery herein to the extent such mitigation would have diminished or
avoided Plaintiffs’ alleged losses or injuries.
TWELFTH AFFIRMATIVE DEFENSE
RCL alleges that Plaintiffs’ and Decedent’s injuries are the result of a pre-existing injury or
condition which was not aggravated by the alleged accident claimed herein. Alternatively, if any
pre-existing injury or condition was aggravated by any alleged injuries herein, Plaintiffs are only
entitled to reimbursement for the degree of aggravation, and any recovery must be limited to the
percentage of aggravation suffered as a result of the incidents alleged herein.
THIRTEENTH AFFIRMATIVE DEFENSE
RCL alleges, without admitting liability, that in the event that Plaintiffs should recover on their
claims, RCL would be entitled to a set-off, off-set, and/or reduction for any and all collateral source
benefits, wither paid or payable to Plaintiffs. Plaintiffs are not entitled to a windfall recovery based
on the difference between what was billed and what was actually paid by them or an insurer.
FOURTEENTH AFFIRMATIVE DEFENSE
RCL alleges that Plaintiffs’ Complaint, and each purported cause of action therein, fails to state
facts sufficient to constitute a cause of action against RCL.
WHEREFORE, Defendant, ROYAL CARIBBEAN CRUISES, LTD., having answered
Plaintiffs’ Complaint and having raised affirmative defenses, respectfully requests judgment in its
favor, and such other relief as this Court deems appropriate.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
Dated: February 19, 2021 Miami, Florida
Respectfully submitted,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 19, 2021, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF
or in some other authorized manner for those counsel or parties who are not authorized to
electronically receive Notices of Electronic Filing.
BY: /s/ Noah D. Silverman Noah D. Silverman, Esq.
By: /s/ Noah D. Silverman Jeffrey E. Foreman, Esq. (FBN 0240310) [email protected] Noah Silverman, Esq. (FBN 401277) [email protected] Lauren Rose, Esq. (FBN 115743) [email protected] FOREMAN FRIEDMAN, P.A. One Biscayne Tower, Suite 2300 2 South Biscayne Boulevard Miami, Florida 33131 Tel: (305) 358-6555 Fax: (305) 374-9077 Attorneys for Royal Caribbean Cruises, Ltd.
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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077
SERVICE LIST
Tonya J. Meister, Esq. MEISTER LAW LLC Courthouse Tower, Suite 750 44 West Flagler Street Miami, Florida 33130 E-mail: [email protected] Counsel for Plaintiff Elizabeth K. Russo, Esq. Paolo R. Lima, Esq. RUSSO APPELLATE FIRM, P.A. [email protected] 7300 North Kendall Drive, Suite 600 Miami, Florida 33156 Telephone: (305) 666-4660 Facsimile: (305) 666-4470 Counsel for Plaintiff
Jeffrey E. Foreman, Esq. [email protected] [email protected] Noah D. Silverman, Esq. [email protected] [email protected] Lauren Rose, Esq. [email protected] [email protected] Foreman Friedman, PA One Biscayne Tower, Suite 2300 2 South Biscayne Boulevard Miami, FL 33131 Phone: 305-358-6555 Fax: 305-374-9077 Attorneys for Royal Caribbean Cruises, Ltd.
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