CHARLESTON, S.C. — Everybody hopes above all else that nobody gets hurt using their product or as a result of their advice or expertise.
But if somebody does, or if marine manufacturers, dealers, surveyors or insurers are the subject of another type of lawsuit, there are specialized marine lawyers and experts that they have on their side.
Lawyers and expert witnesses at the symposium discussed recreating scenarios, gathering evidence, rebuilding components, and re-crashing boats to disprove plaintiff testimony to jury members — who sometimes had no experience on the water or with boats — in detailed cases that mimicked legal TV dramas.
The American Boat and Yacht Council gathered several of those lawyers and experts to present five case studies of actual trials that have occurred in the industry at its Marine Law Symposium in Charleston, S.C., on Tuesday — as well as expert advice on how to protect against them in the first place.
When something goes wrong, “make sure your insurance company hires a lawyer, and not one that asks what that smell is when they walk in and smell fiberglass,” said Pat Duggan, president of Merrimac Marine Insurance. “If you’ve got an expert that claims to be in this industry, but isn’t, it’s your reputation.”
“Even if you’re right, it’s going to cost you a lot just to go to the party” when companies have insufficient insurance, said Jeff Smith, partner at Honigman LLP.
Bob Taylor, principal engineer with Michigan-based Design Research Engineering, and Raul Chacon, partner at the Miami office of Manning Gross & Massenburg LLP, walked attendees through how they completely invalidated a claim that a plaintiff’s engine fell off his Sea Fox while underway because of a manufacturer error.
The case was almost entirely constructed because one box was unchecked during the manufacturing process — not because the item wasn’t completed, but because someone had forgotten to check a box.
In the case, Yamaha bolts with metric threads had accidentally been used with Mercury nuts with English threads to mount a Verado on the boat.
Owners Feliciano and Mildred Cortes and their daughter Emily Cortes, son-in-law Leduan Diaz and grandson Edwin Cruz Abadia sought more than $2 million in damages from boat manufacturer Sea Fox Boat Co. Inc. and retailer Davey Marine Center in Fort Lauderdale, after the engine fell off and all were ejected. The family's marine insurance provider, Continental Insurance Co., joined the suit.
Taylor explained how he examined photographs to discover that the engine had at some point been removed and remounted.
“Obviously this engine had been remounted,” Taylor said. So, he set about extensive testing to determine whether the mismatched nuts and bolts could have been the cause of the accident.
“It would be easy for someone who didn’t do the homework to say, clearly the mismatch of the nut and bolt caused the engine to fall off, because it’s not the right stuff,” Taylor said.
But Taylor did his homework.
“If this engine had fallen off the first day it was used, you’d see the connection, but this engine had been used for a season or two, the boat had over 100 hours on it,” Taylor said.
Taylor conducted extensive testing using the same mismatched nuts and bolts with a replica transom the client built for him.
“That connection, even with the mismatched nut and bolt, can still withstand 10,000 pounds of force,” Taylor said, noting that he discovered other manufacturers that had made the same error. “That’s why there are boats out there that have this mismatched connection and survived and the engines haven’t fallen off. We have let those manufacturers know and they have since changed it.”
“The plaintiff expert just went on notion of, ‘Hey it’s a mismatch, that’s got to be the cause.’ He thought it was a simple thing,” Taylor said. “That engineer never did any testing or analysis to find out whether the mismatch was the cause. Raul did a wonderful job of setting up this connection of, ‘You don’t really know how strong it is because you’ve not tested it.’”
“The documentation and evidence at Sea Fox allowed us to present the case,” Chacon said. “That’s where documentation helps.”
“My partner Russell Pfeifer did a great job questioning the owner on his desire to go fast, and it came out he adjusted his engine mount and failed to put the top nuts back on, which caused the failure,” Chacon said.
ABYC technical vice president Craig Scholten described the various checklists and online tools he’s been putting together to help manufacturers be compliant with ABYC, ISO standards and National Marine Manufacturers Association certification.
Because, at the end of the day, creating scenario after scenario to get a jury of non-boaters to grasp torque, weight distribution, and load, or rules of right-of-way on the water is arduous — and very expensive, which makes having the proper insurance key. And the damage that can be inflicted on a person or company’s reputation can be difficult to recover from.
In another case study involving a boat collision on Lake Lanier, Jensen Hughes senior mechanical engineer Wendy Sanders was tapped by Joe Angersola, a partner with Swift, Currie, McGhee & Hiers LLP to help him defend his client who had a $2.3 million in liability insurance coverage for his Sea Ray that was involved in a crash in 2011, resulting in the death of a 14-year-old boy.
In that case, they had to explain to a jury containing five non-boaters that boating right-of-way is completely different than driving — a painstaking process that took over four years of litigation and was only resolved following a jury verdict for the defense on the eighth day of trial, Angersola said.
“They put up a big aerial photo at a four-way stop sign and tried to treat it like an intersection,” Angersola said. “So, I had to get through to the jury it was not the same, that it’s like apples to elephants.”
The ABYC symposium kicked off with a primer on Legal 101 to explain the language of litigators and insurance companies, followed by a session on the nuances businesses need to protect them in the event of lawsuit or errors and omissions in reporting.
Capt. Matt Majors, who is with the Tennessee Wildlife Resources Agency and a National Association of State Boating Law Administrators law enforcement committee member and GPS Forensics instructor, walked through how evidence is collected after an accident.
Read more about the event and the case studies in the June issue of Soundings Trade Only.