Case: 18-12427 Date Filed: 01/23/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12427
Non-Argument Calendar
________________________
D.C. Docket No. 0:16-cv-62467-CMM
TRI-LADY MARINE, LTD.,
a Marshal Island Company,
d.b.a. Triumphant Lady,
Plaintiff - Appellant,
versus
AQUA-AIR MANUFACTURING,
a division of James D. Hall Co, a Florida Company,
Defendant - Cross Defendant - Appellee,
ELITE MARINE YACHT SERVICES, LLC,
Defendant - Cross Claimant - Appellee,
BISHOP MECHANICAL SERVICES, LLC,
Defendant.
Case: 18-12427 Date Filed: 01/23/2019 Page: 2 of 8
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 23, 2019)
Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.
PER CURIAM:
Tri-Lady Marine, Ltd., appeals the summary judgment against its amended
complaint alleging a breach of an implied warranty of merchantability by Aqua-Air
Manufacturing and Elite Marine Yacht Services, LLC. Tri-Lady does not challenge
the entry of summary judgment against its claims of breach of the express warranty
of merchantability and of breach of contract, so we deem those claims abandoned.
See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.
2012). The district court ruled that Tri-Lady failed to prove that the installation of
an improperly-sized low pressure switch in a marine chiller unit manufactured by
Aqua-Air and sold by Elite Marine caused water damage to the Triumphant Lady,
a yacht Tri-Lady owned. We affirm.
I. BACKGROUND
Triumphant Lady used a chilled water system to control its ambient
temperature. The system required several chilling units that contained evaporator
heat exchangers that were attached to a water inlet hose and a water outlet hose.
2
Case: 18-12427 Date Filed: 01/23/2019 Page: 3 of 8
Water that warmed while circulating through the air system for the yacht entered
the evaporator heat exchanger, which cooled and recirculated the water.
In the summer of 2015, Tri-Lady purchased an Aqua-Air chilling unit from
Elite Marine and had it installed on the yacht by Bishop Mechanical Services,
LLC. In October 2015, the Aqua-Air chilling unit failed. Water inside the
evaporator heat exchanger froze, which caused leaking in the chilled water piping
throughout the yacht.
Tri-Lady filed a complaint in a Florida court against Aqua-Air, Elite Marine,
and Bishop Mechanical. After Bishop Mechanical removed the action to the
district court, see 28 U.S.C. §§ 1441, 1446, Lloyd’s of London intervened as a
subrogee of Tri-Lady and filed a complaint against Aqua-Air, Elite Marine, and
Bishop Mechanical.
Lloyd’s and Tri-Lady relied on a report prepared by Charles Volk III of
SEA, Ltd., that identified two potential causes of the chiller unit failure. First, Volk
reported that “Aqua Air installed a low pressure switch to control the temperature
range of the evaporator” heat exchanger with settings “lower than recommended
by the compressor manufacturer, [Emerson Climate Technologies,] creating a
condition in which the evaporator could freeze and breach, resulting in a chiller
failure.” Volk explained that the low pressure switch was pre-set to operate
between 43.5 pounds per square inch and 23.5 pounds per square inch, but
3
Case: 18-12427 Date Filed: 01/23/2019 Page: 4 of 8
Emerson Technologies recommended that the heat evaporation heat exchanger
maintain a temperature between 45 to 35 degrees Fahrenheit, which equated to
“operating between 70 psi and 56 psi.” Second, Volk reported that reversed water
hoses “resulted in chilled water reaching its coldest temperature at the top of the
evaporator, on the opposite end of the freeze protection switch,” and “resulted in a
condition in which the evaporator could freeze and breach.” Volk explained that
the reversed connections resulted in the freeze protection switch “measuring [the
warmer] water returning from the vessel air handlers and not chilled water as it
exited the evaporator.”
Aqua-Air and Elite Marine moved separately for summary judgment. Both
companies argued that the improper installation of the chiller unit caused the
damage to the Triumphant Lady. Elite Marine also argued that, even if the low
pressure switch was defective, it could not be the proximate cause of the property
damage because the switch served to “trigger a shutdown of the compressor if
there is a loss of refrigerant,” not to “prevent[] freezing of the evaporator.”
Lloyd’s filed a declaration of Volk to establish that the installation of the
improperly-sized low pressure switch caused the water damage. Volk declared that
“[e]ven with Bishop Mechanical’s reversed chilled water connections, had Aqua
Air installed a properly-sized low pressure switch matching the compressor
manufacturer’s recommendations, the evaporator would not have frozen.” Volk
4
Case: 18-12427 Date Filed: 01/23/2019 Page: 5 of 8
quoted from an engineering bulletin issued by Emerson Technologies in April of
2014 that “[t]he low pressure cut out setting will depend on the application type
and minimum expected evaporating temperature” and “should be selected to
prevent . . . system failure modes, such as . . . frozen heat exchangers in chiller
systems.”
When the parties later deposed Volk, he testified that the chiller unit failed
because of freezing caused by the reversal of the water hoses. Volk stated that the
low pressure refrigerant switch “was sized allowing refrigerant temperatures to be
below freezing, which indicat[ed] to [him] it was not considered as a freeze
protection device for the evaporator.” Volk explained that “[t]he low pressure
switch operates on the refrigerant side of the [chiller] system” “to protect the
compressor,” and he “didn’t find any evidence to suggest the compressor was
damaged.” Volk explained that the low pressure switch and freeze protection
switch were “independent devices, and . . . connected in series.” Based on the
construction of the chiller unit, Volk stated that “[t]he primary protection device[]
of the evaporator would be the freeze protection switch” and the “switch in the
chiller that was manufactured by Aqua-Air presented the only fail-safe in that unit
to prevent it from freezing.” Volk stated that the freeze protection switch “opened
at a temperature” around “40 degrees,” but because “the [water] lines were
switched, the freeze protection switch . . . measur[ed] the warm water coming in
5
Case: 18-12427 Date Filed: 01/23/2019 Page: 6 of 8
from the vessel” instead of “measuring water in the coldest location and shutting
down the chiller before a temperature below 38 degrees could be reached.” Volk
testified that, but for the reversed water hoses, “[t]he freeze protection switch
would have sent a signal to the control panel to shut down that chiller when it
measured a temperature of approximately 40 degrees.” He responded “correct” to
the question whether the freeze protection switch “would have sent that signal
regardless of the condition of the low pressure switch.”
After Lloyd’s settled with Aqua-Air, Elite Marine, and Bishop Mechanical,
the district court entered summary judgment in favor of Aqua-Air and Elite Marine
and against Tri-Lady. The district court found that Volk’s declaration was “the
only evidence” that the installation of an improperly-sized low pressure switch
caused the evaporator heat exchanger to fail. The district court acknowledged that
it could have, but declined to, “disregard the statements in Mr. Volk’s declaration”
because he later “contradicted his declaration” during his deposition. Because Volk
“abandoned . . . the opportunity at his deposition to support” his opinion that the
low pressure switch caused the chiller unit to fail, the district court determined that
Volk’s declaration presented “at best a ‘mere scintilla of evidence’ which [could
not] defeat Aqua-Air’s and Elite’s motions for summary judgment.”
6
Case: 18-12427 Date Filed: 01/23/2019 Page: 7 of 8
II. STANDARD OF REVIEW
We review de novo a summary judgment. Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th Cir. 2014). Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Tri-Lady argues that the inconsistencies in Volk’s declaration, report, and
deposition create a material factual dispute about whether the low pressure switch
installed by Aqua-Air caused its evaporator heat exchanger to freeze. Aqua-Air
and Elite Marine respond that the district court correctly credited Volk’s later
deposition testimony as having “abandoned” his earlier declaration. We agree with
Aqua-Air and Elite Marine.
The district court did not err. Tri-Lady failed to prove that a dispute of
material fact existed that the damage to its yacht was proximately caused by Aqua-
Air and Elite Marine. See Kohler v. Medline Indus., Inc., 453 So. 2d 908, 909 (Fla.
Dist. Ct. App. 1984). Undisputed evidence established that the water hoses for the
chilling unit were plumbed in reverse, and Volk testified that the reversed
connections resulted in outflowing cold water bypassing the freeze protection
switch and causing the evaporator heat exchanger to freeze, a process that the low
pressure switch did not regulate. In contrast with his earlier declaration, Volk’s
7
Case: 18-12427 Date Filed: 01/23/2019 Page: 8 of 8
deposition testimony clarified that, of the two factors that he earlier reported
“could” have caused the damage, the reversed water connections alone made the
evaporator heat exchanger freeze and breach. Volk abandoned his declaration that
“the evaporator would not have frozen . . . had Aqua Air installed a properly-sized
low pressure switch.” In the light of Volk’s later deposition testimony, Tri-Lady
lacked “sufficient evidence favoring [it] for a jury to return a verdict” in its favor.
See Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Aqua-Air and Elite
Marine.
8