Opinion
No. 3D09-2712 Lower Tribunal No. 04-17613
08-22-2012
Royal Caribbean Cruises, Ltd., Appellant, v. Byron Cox, Appellee.
Domingo C. Rodriguez; Hicks, Porter, Ebenfeld & Stein and Mark Hicks and Dinah Stein and Erik P. Bartenhagen, for appellant. William F. Fabra; Luis A. Perez; Elizabeth K. Russo and Susan S. Lerner, for appellee.
Not final until disposition of timely filed motion for rehearing.
An appeal from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge.
Domingo C. Rodriguez; Hicks, Porter, Ebenfeld & Stein and Mark Hicks and Dinah Stein and Erik P. Bartenhagen, for appellant.
William F. Fabra; Luis A. Perez; Elizabeth K. Russo and Susan S. Lerner, for appellee. Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
LAGOA, J.
Royal Caribbean Cruises Ltd. ("RCCL") appeals an order awarding seaman Byron Cox ("Cox") attorney's fees pursuant to Florida's offer of judgment statute, section 768.79, Florida Statutes (1997), following a jury verdict in his favor in an admiralty case. We are compelled to affirm based on the authority of Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992). I FACTUAL AND PROCEDURAL HISTORY
Cox filed the underlying action against RCCL after he sustained injuries while employed aboard an RCCL vessel. Cox's complaint asserted claims for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness. Pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Cox served an offer of judgment on RCCL. RCCL moved to strike the offer of judgment, arguing that section 768.79 was inapplicable in this case because it conflicted with federal maritime law. In response, Cox cited Modesto, 614 So. 2d at 517, which held that there is no conflict between section 768.79 and federal maritime law. Following trial, the jury found in favor of Cox and he sought attorney's fees based on the offer of judgment. The trial court agreed with Cox's position, denied RCCL's motion to strike, and found that Cox was entitled to attorney's fees and costs. The trial court awarded Cox $245,856.87 in fees and costs, and this appeal ensued. II ANALYSIS
RCCL only seeks reversal of the portion of the order awarding attorney's fees.
This Court separately affirmed the judgment on the jury verdict in favor of Cox. Royal Caribbean Cruises, Ltd. v. Cox, 60 So. 3d 418 (Fla. 3d DCA 2011).
In Modesto, a seaman sought damages under the Jones Act and general maritime law for injuries he sustained aboard a Royal Caribbean ship. He filed a motion for attorney's fees pursuant to Florida's offer of judgment statute. The trial court denied the motion. On appeal, this Court reversed the trial court's order, stating that:
[W]e find no conflict between Florida's rules of law regarding offers of judgment and federal maritime law. In federal admiralty actions, an award of attorney's fees as a component of maintenance and cure is traditionally within the equitable jurisdiction of the courts. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed. 2d 88 (1962). Awards of attorney's fees made pursuant to Florida law regarding offers of judgment are intended to deter unnecessary litigation and encourage the timely settlement of claims . . . . Because Florida's rules relating to offers of judgment are an integral part of this state's management of its courts' proceedings and do not conflict with federal admiralty law, we reverse the order denying attorney's fees.Id. at 520; see also Juneau Tanker Corp. v. Sims, 627 So. 2d 1230, 1232 (Fla. 2d DCA 1993) (citing Modesto without discussion in support of reversal of denial of attorney's fees to seaman).
RCCL properly concedes that Modesto governs the precise issue in this case—whether attorney's fees pursuant to section 768.79 may be awarded in a maritime case involving a seaman. Here, as in Modesto, a seaman sought attorney's fees based on an offer of judgment in an action to recover Jones Act and other damages under maritime law. The trial court was bound by this Court's precedent and did not err in awarding attorney's fees to Cox, as this Court has not receded from Modesto en banc nor has the Florida Supreme Court overruled Modesto. See State v. Washington, 37 Fla. L. Weekly D1535 (Fla. 3d DCA June 27, 2012); Ellis v. State, 703 So. 2d 1186, 1187 (Fla. 3d DCA 1997); Wood v. Fraser, 677 So. 2d 15, 18-19 (Fla. 2d DCA 1996); see generally Sys. Components Corp. v. Fla. Dep't of Transp., 14 So. 3d 967, 973 n.4 (Fla. 2009) ("[A] trial court may not overrule or recede from the controlling decision of a district court.").
RCCL, however, argues that the attorney's fee award should be reversed based on federal case law holding that the offer of judgment statute impermissibly conflicts with maritime law, and based on this Court's case law impliedly receding from Modesto.
We acknowledge that the weight of federal authority supports RCCL's contention that Modesto was wrongly decided. Those cases hold that automatic fee-shifting statutes such as Florida's offer of judgment statute may not be applied in admiralty cases because such state statutes conflict with and interfere with the uniformity of federal maritime law as to attorney's fees. See Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 841 (11th Cir.), cert. denied, 130 S.Ct. 3505 (2010); Texas A & M Research Found. v. Magna Transp. Inc., 338 F.3d 394, 405 (5th Cir. 2003); Narte v. All Alaskan Seafoods, Inc., 211 F.3d 1274 (9th Cir. 2000) (unpublished opinion); Southworth Mach. Co. v. F/V Corey Pride, 994 F.2d 37, 41 (1st Cir. 1993); Sosebee v. Roth, 893 F.2d 54, 56-57 (3d Cir. 1990); Garan, Inc. v. M/V Aivik, 907 F. Supp. 397, 400 (S.D. Fla. 1995); Tai-Pan, Inc. v. Keith Marine, Inc., 1997 WL 714898, at *10 (M.D. Fla. May 13, 1997); Tampa Port Auth. v. M/V Duchess, 65 F. Supp. 2d 1279, 1296-97 (M.D. Fla. 1997), amended, 65 F. Supp. 2d 1299, affirmed, 184 F.3d 822 (11th Cir. 1999) (table).
Furthermore, this Court's case law subsequent to Modesto may support RCCL's position that this Court "impliedly" receded from Modesto. See Frango v. Royal Caribbean Cruises, Ltd., 891 So. 2d 1208 (Fla. 3d DCA 2005); Chapman v. Laitner, 809 So. 2d 51 (Fla. 3d DCA 2002); Hilton Oil Transp. v. Oil Transp. Co., S.A., 659 So. 2d 1141 (Fla. 3d DCA 1995).
In Frango, this Court held that federal maritime law, which does not permit cruise passengers' claims for loss of consortium, conflicted with and preempted state law, which allows such recovery. In doing so, the Court followed the majority rule, which rejected recovery for loss of consortium claims in maritime cases, stating that "[w]e find that one of the aims of maritime law is to promote uniformity in the exercise of admiralty jurisdiction. This aim is best advanced by following the majority rule and denying [the] loss of consortium [claim]." Frango, 891 So. 2d at 1211 (citation omitted).
In Chapman, this Court determined that section 768.79 was preempted by a more narrowly tailored federal attorney's fee statute, 42 U.S.C. § 1988, "because section 1988 allows the award of attorney's fees to prevailing defendants in a much more limited context than does section 768.79(1)." Chapman, 809 So. 2d at 52 (quoting Moran v. City of Lakeland, 694 So. 2d 886, 887 (Fla. 2d DCA 1997)). Chapman does not directly address the award of attorney's fees in a maritime case when, as here, there is no federal fee statute. In holding that section 768.79(1) is preempted by section 1988's attorney's fee provision, Chapman recognizes that section 1988 "has an express provision authorizing a defendant to obtain attorney's fees, and that provision has been interpreted to allow defendant's recovery only when the claims of the plaintiff are vexatious, frivolous, or brought to harass the defendant." Marcy v. DaimlerChrysler Corp., 921 So. 2d 781, 786 (Fla. 5th DCA 2006) (citing Chapman).
In Hilton Oil, this Court held that in admiralty "under the 'American Rule' attorneys' fees are not ordinarily recoverable by a prevailing litigant in federal litigation absent statutory authority or contractual agreement." Id. at 1153. The Court cited Vaughn, and recognized that bad faith litigation is an exception to this rule, i.e., a court may award attorneys' fees is if one party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. The Court reversed the attorney's fee award stating, inter alia, that the bad faith exception was never raised and is inapplicable in that case. Similarly, here, there is no issue as to bad faith litigation.
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A three-judge panel of this Court, however, cannot "impliedly" recede from or overrule Modesto. See In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982) ("We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing."); Wood, 677 So. 2d at 18 (holding that a three-judge panel would not have receded from earlier case and would have suggested en banc consideration); McBride v. State, 604 So. 2d 1291, 1292 n.1 (Fla. 3d DCA 1992) (noting that there appears to be no authority for a court's departure from an earlier panel decision "without the intervention of an en banc court"). Thus, even assuming that the cases previously discussed may appear to have "impliedly" receded from or overruled Modesto, we remain bound to follow Modesto until this Court expressly recedes en banc from this precedent. See Kloster Cruise Ltd. v. Segui, 679 So. 2d 10, 12 (Fla. 3d DCA 1996); Langmead v. Admiral Cruises, Inc., 696 So. 2d 1189, 1191, n.1 (Fla. 3d DCA 1997); Holding Elec., Inc. v. Roberts, 512 So. 2d 1112, 1112 (Fla. 3d DCA 1987), quashed on other grounds, 530 So. 2d 301 (Fla. 1988); cf. Hearn Props., Inc. v. Cruce, 20 So. 3d 877 (Fla. 1st DCA 2009) (noting that in order to follow earlier supreme court decision district court must sit en banc to recede from its case law).
Accordingly, we affirm the portion of the order awarding Cox attorney's fees based on this Court's decision in Modesto.
Affirmed.