Third District Court of Appeal
State of Florida
Opinion filed August 17, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0338
Lower Tribunal No. 18-13783
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D-I Davit International-Hische GMBH,
Appellant,
vs.
Jelen Carpio, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Valerie R. Manno Schurr, Judge.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, and Steven C.
Jones and Anthony P. Strasius, for appellant.
Lipcon, Margulies, Alsina & Winkleman, P.A., and Michael A.
Winkleman and Carol L. Finklehoffe, for appellee Jelen Carpio.
Before LOGUE, LINDSEY, and BOKOR, JJ.
BOKOR, J.
Jelen Carpio brought this action as personal representative of the
estate of her late husband, Diogenes Carpio, who died during lifeboat/rescue
boat drills aboard a Norwegian Cruise Lines vessel, the Norwegian
Breakaway. In this appeal, we address two claims against D-I Davit
International-Hische GmbH (Davit DE): a tort claim for products liability under
a theory of strict liability and a claim for breach of implied warranty of fitness
for merchantability and fitness for a particular purpose. 1 Davit DE moved to
dismiss both state law claims for lack of personal jurisdiction and appeals
the trial court’s denial of such motion. 2 As further explained below, we agree
with Davit DE that Ms. Carpio failed to establish Florida’s general or specific
jurisdiction as it pertains to the claims at issue.
BACKGROUND
Mr. Carpio worked for NCL (Bahamas) Ltd. as a seaman with the rank
of second officer. 3 On July 20, 2016, Mr. Carpio was working aboard the
Norwegian Breakaway in the navigable waters around Bermuda. On that
day, Mr. Carpio was assigned to participate in several lifeboat/rescue boat
1
We recognize the extensive procedural history of this case and the
existence of multiple claims not addressed in this appeal. However, this
appeal only addresses Ms. Carpio’s state law claims against Davit DE in
counts VI and VII of the amended complaint.
2
We have jurisdiction. Fla. App. R. 9.130(a)(3)(C)(i).
3
Mr. Carpio was a Filipino citizen, not a resident of Florida, at the time of the
accident resulting in his fatal injury.
2
drills. During one such drill, Mr. Carpio entered a rescue boat on Deck 7 of
the vessel. Once inside the rescue boat, a wire on the davit supporting the
rescue boat snapped, causing Mr. Carpio to fall nearly six stories into the
water on top of other seamen participating in the drill. Mr. Carpio passed
away from his injuries. This fatal accident gave rise to the action against the
defendants below.
Davit DE, a German corporation, manufactures and sells davits,
which are crane-like devices used to support, hoist, and lower equipment
including lifeboats. Davit DE is the parent company of D-I Davit International,
Inc. (Davit US). The amended complaint alleges that Davit DE does
business in Florida through its agent or representative, Davit US. Davit US
is a foreign, for-profit corporation registered to do business in Florida.
The amended complaint alleges that Davit DE manufactured “and/or”
sold the davits for the lifeboat system used aboard the Norwegian
Breakaway when Mr. Carpio passed away and that Davit US “and/or” Davit
DE “provided aftersales customer support to Defendant NCL, as to all
aspects of the davits and lifeboat systems, including but not limited to annual
and periodic inspections . . . as well as maintenance, repairs, technical help
and crew training.” The amended complaint relies primarily on these after-
3
sales inspection contracts, solicited in Florida, as the basis for personal
jurisdiction over Davit DE.
ANALYSIS
We review de novo a trial court’s order denying a motion to dismiss for
lack of jurisdiction. Fincantieri-Cantieri Navali Italiani S.p.A. v. Yuzwa, 241
So. 3d 938, 941 (Fla. 3d DCA 2018). General jurisdiction over a non-resident
defendant requires “substantial and not isolated activity within this state.” §
48.193(2), Fla. Stat. (2016). 4 That is, a plaintiff must show that a defendant
engaged in “‘continuous and systematic general business contact’ with the
state.” Banco de los Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1134
(Fla. 3d DCA 2018) (citing Vos, B.V. v. Payen, 15 So. 3d 734, 736 (Fla. 3d
DCA 2009)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011) (explaining that a court may assert general
jurisdiction over a foreign corporation when “their affiliations with the State
are so ‘continuous and systematic’ as to render them essentially at home in
the forum State”) (citations omitted). Here, Ms. Carpio alleges that Davit DE
is a foreign for-profit corporation “doing business in Florida through its agent
4
Section 48.193(2), Florida Statutes, reads: “A defendant who is engaged in
substantial and not isolated activity within this state, whether such activity is
wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the
courts of this state, whether or not the claim arises from that activity.”
4
and/or representative,” Davit US, who is “registered to do business in Florida
with offices and an officer/director in Ft. Lauderdale, Florida.” Davit DE
refutes, by affidavit, the allegation that it engages in business in Florida.
Accordingly, the bare allegation of the amended complaint, without more,
fails to establish general jurisdiction over Davit DE. See Gadea v. Star
Cruises, Ltd., 949 So. 2d 1143, 1146 (Fla. 3d DCA 2007) (quoting Qualley
v. Int’l Air Serv. Co., 595 So. 2d 194, 196 (Fla. 3d DCA 1992) (“[T]he
‘presence of a subsidiary corporation within Florida is not enough, without
more, to subject a non-Florida parent corporation to long-arm jurisdiction
within this state.’”). In Gadea, this court explained:
A substantial body of Florida law makes clear that it
is only where a parent corporation exerts such
extensive operational control over a subsidiary that
the subsidiary is no more than an agent existing to
serve only the parent’s needs, that jurisdiction over
the parent exists. Sharing some officers and
directors, having a unified or “global” strategy and
goals, cross-selling in promotional materials, and
performing services for one another is not sufficient
to satisfy this test.
949 So. 2d at 1146. Ms. Carpio failed to allege any facts demonstrating that
Davit DE itself engaged in any business activities in this state, 5 or that Davit
5
The fact that Davit DE’s affidavit admits that it rented warehouse space in
Florida, on its own and without more, fails to constitute “continuous and
systematic general business contact with the state” necessary to establish
general jurisdiction.
5
DE exerts substantial control over Davit US such that Davit US is no more
than an agent controlled by Davit DE. Accordingly, Ms. Carpio fails to allege
sufficient facts to establish general jurisdiction over Davit DE.
Ms. Carpio similarly fails to allege facts sufficient to establish specific
jurisdiction. Specific jurisdiction requires a “claim-specific” analysis,
governed by section 48.193(1)(a), Florida Statutes. 6 Banco, 237 So. 3d at
1133. The “provisions of Florida’s long-arm statute governing specific
jurisdiction expressly require allegations both: (i) that the defendant does one
of the enumerated acts within Florida, and (ii) that the plaintiff’s cause of
action ‘arise from’ one of the enumerated acts occurring in Florida.” Id. at
1135. These dual requirements are known as the statute’s connexity
requirement. Id. Accordingly, we conduct a separate analysis for each
claim.
6
Section 48.193(1)(a), Florida Statutes, explains that:
[a] person, whether or not a citizen or resident of this
state, who personally or through an agent does any of
the acts enumerated in this subsection thereby
submits himself or herself and, if he or she is a natural
person, his or her personal representative to the
jurisdiction of the courts of this state for any cause of
action arising from any of the following acts . . . .
6
Here, the amended complaint alleges the elements of a strict liability
claim. The elements for strict liability are: “(1) that a defect was present in
the product; (2) that it caused the injuries complained of; and (3) that it
existed at the time the retailer or supplier parted possession with the
product.” Lesnik v. Duval Ford, LLC, 185 So. 3d 577, 581 (Fla. 1st DCA
2016). But there’s no connexity between the tort and Florida. The
declaration filed by Davit DE’s corporate representative, unrefuted by any
other record evidence, establishes that the davits were designed,
manufactured, and installed on the subject vessel in Germany, and that any
Davit DE maintenance and inspection personnel boarded the vessel in New
York and performed the inspection work at sea.
To sidestep this jurisdictional flaw, Ms. Caprio argues that Mr. Caprio
was a third-party beneficiary of an inspection contract entered into between
Davit DE and NCL (in Florida). This argument fails. The purported connexity
to Florida must relate to the actual tort alleged, in this case, the tort of strict
liability as to the manufacture or installation of the davits. None of the acts
related to the alleged tort occurred in Florida. Neither Davit DE’s alleged
negligence in the performance of the separate inspection contract nor its
alleged misrepresentations, directed to NCL in Florida regarding the fitness
of the davits, relate to a strict liability claim for the design, manufacture, or
7
installation of davits in Germany. 7 Because Ms. Carpio failed to connect her
cause of action for strict liability to any activity that took place in Florida, it
fails to satisfy the connexity requirement and Davit DE’s motion should have
been granted as to this count.
Ms. Carpio’s cause of action for breach of warranty claims suffers from
a similar deficiency. The claim “requires a [showing that a contract was
breached] in Florida ‘by failing to perform acts required by the contract to be
performed in this state.’” Woodruff-Sawyer & Co. v. Ghilotti, 255 So. 3d 423,
430 (Fla. 3d DCA 2018) (applying section 48.193(1)(a)(7), Florida Statutes).
An implied warranty of fitness for a particular purpose
is conditioned upon the buyer’s reliance on the skill
7
Davit DE attached the declaration of Joachim Wiese, general manager of
Davit DE, to its motion to dismiss. Wiese attested that: (1) Davit DE’s
products, including the subject davits, are designed and manufactured by
Davit DE in Germany; (2) Davit DE manufactured and sold the subject davits
in Germany pursuant to an October 29, 2010 purchase order from the Mayer
Werft shipyard, located in Papenburg, Germany; (3) the subject davits were
installed on the Norwegian Breakaway in Papenburg, Germany; (4)
construction of the Norwegian Breakaway was completed in February 2013;
(5) NCL engaged Davit DE for annual inspection services regarding the
davits installed aboard the Norwegian Breakaway; and (6) Davit DE
personnel embarked on the Norwegian Breakaway in New York City and
performed all work “on sea” onboard the vessel. See Venetian Salami Co.
v. Parthenais, 554 So. 2d 499, 502–03 (Fla. 1989) (explaining that a
defendant contests allegations of the complaint concerning jurisdiction by
filing affidavit(s) supporting his position and that the burden shifts to the
plaintiff to prove by affidavit the basis upon which jurisdiction may be
obtained). In response, Ms. Carpio filed Wiese’s Deposition which refutes
none of the salient points in the declaration.
8
and judgment of the seller to supply a commodity
suitable for the intended purpose. The warranty of
merchantability applies when goods are offered for
consumption by the public generally. Therefore, in
order to be merchantable the goods must be fit for
ordinary uses for which such goods are sold.
McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So. 2d 736,
738 (Fla. 1965) (citations omitted). A cause of action for breach of an implied
warranty of fitness for a particular purpose focuses on the relationship
between the buyer and the seller; here, Meyer Werft 8 and Davit DE. See
Atlantic Distribs., Inc. v. Alson Mfg. Co., 141 So. 2d 305, 306 (Fla. 3d DCA
1962) (“An implied warranty of fitness for which an article is purchased arises
as a matter of law where a buyer makes known to the seller the purpose for
which he buys an article and relies upon the seller’s skill and judgment.”)
(emphasis added); see also Chrysler Corp. v. Miller, 310 So. 2d 356, 357
(Fla. 3d DCA 1975) (defining implied warranty of fitness for a particular
purpose as, “[w]here a seller at the time of contracting has reason to know
any particular purpose for which the goods are required and that the buyer
is relying on the seller’s skill or judgment to select or furnish suitable goods,
8
Davit DE manufactured and sold the subject davits in Germany pursuant to
an October 29, 2010 purchase order from the Meyer Werft shipyard, located
in Papenburg, Germany where Meyer Werft constructed the Norwegian
Breakaway. Additionally, the davits were installed on the subject vessel in
Germany.
9
there is . . . an implied warranty that the goods shall be fit for such purpose”)
(emphasis added).
Ms. Carpio fails to connect the subject contract, the contract for sale
between Meyer Werft and Davit DE, to Florida. The contract for sale, rather
than any inspection contract entered between Davit DE and NCL, forms the
basis for a breach of warranty claim. Accordingly, Ms. Carpio’s attempt to
create a nexus to Florida by claiming that Mr. Carpio was a third-party
beneficiary of the inspection contract necessarily fails to establish the
requisite connexity between the breach of warranty claim and Florida. 9
Further, the record establishes that Meyer Werft and Davit DE entered the
subject contract in Germany. As such, the complaint fails to satisfy Florida’s
long-arm requirements for specific jurisdiction as it relates to the breach of
warranty claim. See § 48.193(1)(a)(7), Fla. Stat.
Ms. Carpio’s claims lack a sufficient jurisdictional connection with the
forum state to support either general or specific jurisdiction over the claims
9
As explained, Mr. Carpio, a citizen of the Philippines, lacked any connection
to Florida and the accident underlying the causes of action occurred outside
of Florida’s jurisdiction. By interjecting the inspection contracts entered in
Florida, Ms. Carpio attempts to provide the necessary hook to trigger specific
jurisdiction over the claims at issue. The attempt fails, however, because
even if we were to agree that the inspection contract conferred third-party
beneficiary status on Mr. Carpio, the lack of connexity to the claims alleged
bars a finding of specific jurisdiction.
10
discussed herein. Accordingly, Davit DE’s motion to dismiss counts VI and
VII of the amended complaint should have been granted.
Reversed and remanded.
11