int'l marine research v. sanders marine tow, et al complaint

8/8/2019 INT'L MARINE RESEARCH v. SANDERS MARINE TOW, et al Complaint

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

IN ADMIRALTY

INTERNATIONAL MARINERESEARCH INSTITUTE, INC .,A Florida Not For Profit Charity ,

vs.Plaintiff,

SANDERS MARINE TOWING, INC . d/b/aFT. PIERCE TOWBOAT U .S . ,LARRY ALLEN BALANCHETT,MCCULLEY MARINE SERVICES, INC . ,INDEMNITY INSURANCE COMPANYOF NORTH AMERICA ; ROYAL MARINEINSURANCE GROUP, INC ., in personam ;and, M/V Phoenix, a 1989 29' motor vessel,her engines , tackle, accessories, andappu rtenances , in rem ,

Defendants .

CiV4ARRA:7 7

VERIFIED COMPLAINTPlaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE, INC. (hereinafter

"IMRI"), by and through its undersigned counsel and sues Defendants , SANDERS MARINETOWING, INC . d/b/a FT . PIERCE TOWBOAT U.S . (hereinafter "SANDERS"), LARRYALLEN BALANCHETT ( hereinafter "BALANCHETT"), MCCULLEY MARINE SERVICES,INC . (hereinafter "MCCULLY"), INDEMNITY INSURANCE COMPANY OF NORTHAMERICA (hereinafter "INAMAR"); ROYAL MARINE INSURANCE GROUP, INC .(hereinafter "ROYAL") in personam ; and the M/V Phoenix, a 1989 29' motor vessel , in rem andalleges :

Case 0:05-cv-61364-KAM Document 1 Entered on FLSD Docket 08/16/2005 Page


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GENERAL ALLEGATION S1 . This is a cause of admiralty and maritime jurisdiction within the meaning of Rule

9(h) of the Federal Rules of Civil Procedure and is within the subject matter jurisdiction of thisCourt pursuant to Title 28 U .S .C . 1333 . More particularly, this suit concerns casualties to avessel owned by Plaintiff, IMRI, and asserts alternative claims against the Defendants for breachof the implied warranty of suitable towing vessel, breach of the implied warranty of workmanlikeperformance, negligent towing, negligent salvage, and breach of a marine insurance contract .

2 . In addition, this suit involves an in rem claim against the motor vessel namedPhoenix under Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims ofthe Federal Rules of Civil Procedure .

3 . This suit also contains claims for breach of oral contract to procure marineinsurance, negligent failure to procure marine insurance, breach of fiduciary duty to procure andmaintain marine insurance, and misrepresentation about marine insurance coverage . To the

extent that the aforementioned claims do not fall within this Court's original jurisdiction,Plaintiff invokes this Court's supplemental jurisdiction pursuant to Title 28 U .S.C . 1367 .

4. At all times material to this suit, Plaintiff IMRI is a Florida non-profit corporationwith a principal place of business in Broward County, Florida where it engages in receivingdonated property for use in the non-profit corporation's activities .

5 . At all times material to this suit, Plaintiff IMRI is a qualified Internal RevenueService 501 C(3) charity and was and is the owner of a 1981 39' motor vessel named Nikki , whichbears hull identification number FLZY2255G98I I .

6 . At all times material to this suit, Defendant SANDERS was and is a Floridacorporation with its principle place of business at 1100 Ponce De Leon Circle, W 109, Vero



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Beach , Florida, 32960 .7 . At all times material to this suit , Defendant SANDERS was and is engaged in the

m a ri ne salvage and towing business .8 . At all times material to this suit , Defendant SANDERS was and is the owner,

operator and/or cha rterer of the tow boat named Phoenix , which is a 1989 29' motor vessel thatprovided negligent towing and /or salvage se rv ices to the Plaintiffs vessel Nikki as desc ri bedmore fully below .

9 . At all times mate ri al to this suit , in rem Defendant Phoenix was and is involved inproviding negligent towing and/or salvage se rv ices to the Plaintiff's vessel Nikki . Uponinformation and belief , in rein Defendant Phoenix will be within the Southe rn District of Floridadu ri ng the pendency of this lawsuit and is subject to se rv ice of process in this ju ri sdiction .

10 . At all times material to this suit , Defendant BALANCHETT was and is over 18years old and a resident of St . Lucie County, Florida .

11 . At all times material to this suit, Defendant BALANCHETT was and is anemployee of Defendant SANDERS and the captain of the tow boat named Phoenix .

12 . At all times mate ri al to this suit , Defendant BALANCHETT acted within thecourse and scope of his employment with Defendant SANDERS .

13 . At all times material to this suit, Defendant SANDERS is vicariously liable for theacts and / or omissions of Defendant BALANCHETT .

14 . At all times mate ri al to this suit, Defendant MCCULLEY was and is a Floridacorporation with its principal place of business at 2309 N . Old Dixie Highway, Fo rt Pierce,Flo r i da 34946 .

15 . At all times material to this suit , Defendant MCCULLEY was and is engaged in the



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marine salvage and towing business .16 . At all times material to this suit, Defendant INAMAR was and is a Pennsylvania

corporation with its principal place of business at Two Liberty Place, 1601 Chestnut Street,Philadelphia, Pennsylvania 19103 .

17 . At all times material to this suit, Defendant INAMAR was and is engaged in thebusiness of underwriting marine insurance and authorized to do business in the State of Florida .

18 . At all times material to this suit, Defendant INAMAR issued Policy No . HUN00895957 002 to provide hull and P & I coverage to Plaintiff's vessel Nikki during the periodof September 19, 2004 through September 19, 2005 . Plaintiff was not given a copy of the Policyin effect at the time of the subject loss but believes Defendant INAMAR has one in itspossession .

19 . At all times material to this suit, Defendant ROYAL was and is a Floridacorporation with its principal place of business at 8300 Executive Center Drive, Suite 102,

Miami, Florida 33166 .20 . At all times material to this suit, Defendant ROYAL was and is an insurance agent

and/or broker engaged in procuring marine insurance for customers such as Plaintiff IMRI .21 . At all times material to this suit, Defendant ROYAL acted as Plaintiff IMRI'S

insurance agent and/or broker and was responsible for procuring and maintaining hull insuranceon Plaintiff IMRI'S vessels, including, but not limited to, the Nikki .

22 . On December 22, 2004, the Nikki departed the Fort Pierce Inlet, heading southtoward a final destination of Fort Lauderdale, Florida .

23. The N ikki 's progress in the rough sea was slow and her Captain, David W. Nicoll,decided to return to the Fort Pierce Inlet and proceed south to Ft . Lauderdale via the Intracoastal



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Waterway .24. As the vessel Nikki was turning back toward the Fort Pierce Inlet, she was hit by a

rogue wave in the aft area of the vessel and took on a substantial amount of water .25 . The rogue wave caused the Nikk i 's engine to shut down and Captain Nicoll

attempted to de-water the vessel . However, the de-watering process failed when the bilge pumpsstopped working after a period of time .

26 . Captain Nicoll called the U .S. Coast Guard for help and the Coast Guard calledDefendant SANDERS and requested it render commercial towing assistance to the Nikki .Defendant SANDERS did not inform the Coast Guard or Captain Nicoll on board the Nikki thatit was not readily available to send a vessel and crew out to assist the Nikki or that it would takemany hours before it could respond to the call for help .

27 . At approximately 6 :00 a .m ., December 23, 2004 after the Nikki was left drifting atthe mercy of the sea for approximately nine (9) hours, Defendant SANDERS finally arrived on

the scene with its vessel Phoenix under the command of Defendant, BALANCHETT .28 . For approximately one hour after the Phoenix arrived on scene, Defendant

BALANCHETT questioned Captain Nicoll about Nikki 's condition prior to sending over a line totake the Nikki under tow .

29 . During this time, Captain Nicoll informed Defendants SANDERS andBALANCHETT that the Nikki was swamped by a big wave ; that the Nikki had a large amount ofwater in its bilge ; and that its bilge pumps were inoperable, which precluded the Nikki from de-watering itself so it could restart its engine .

30 . Defendants SANDERS and BALANCHETT knew that the Nikki's bilge pump s

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were inoperable and that she had experienced flooding and still contained large amounts of seawater in her bilge prior to towing the Nikki to Fort Pierce Inlet .

31 . While Defendant BALANCHETT indicated he would send over a pump to de-waterthe Nikki prior to undertaking the tow, he did not do so . Upon information and belief,Defendants SANDERS and BALANCHETT did not put a pump on the Nikki to de-water itbecause either the portable pump was inoperative, out of fuel, or Defendants SANDERS andBALANCHETT were in fear of losing the tow should the Nikki be de-watered and able toproceed under her own power .

32 . At approximately 7 :00 a .m ., Defendants SANDERS and BALANCHETT decidedto commence the tow of the Nikki without de-watering her .

33 . Defendants SANDERS and BALANCHETT chose to use a polypropylene line totow the Nikki .

34 . During the tow toward the Fort Pierce Inlet, Defendants SANDERS andBALANCHETT'S inadequate line broke on numerous occasions, which delayed the Nikk i 's towtoward safety by several hours .

35 . During the tow, Captain Nicoll was informed by Defendant BALANCHETT that hewas up all night responding to another call for assistance before responding to the Nikki's requestfor tow service .

36. As thePhoenix was approaching the Fort Pierce Inlet, Captain Nicoll radioedDefendant BALANCHETT and inquired whether BALANCHETT wished to shorten the tow linebefore the vessels got into the Inlet .

37 . Defendant BALANCHETT said he was not interested in shortening the tow line an d

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proceeded with the Nikki in tow towards the Fo rt Pierce Inlet with an inappropriate long tow line,a towed vessel with a large amount of sea water in her bilge, and at an excessive rate of speed .

38 . While approaching the Fort Pierce Inlet, the vessel Nikki encountered rough seasand wa ves that struck Nikki's stern qua rter, thereby shifting water inside the vessel that allowedmore water to enter the vessel and ultimately caused the Nikki to capsize .

39. After capsizing the Nikki, Defendants BALANCHETT and SANDERS requestedimmediate assistance from Defendant MCCULLEY to salvage and / or tow the vessel Nikki tosafety .

40 . Defendant MCCULLEY arrived on the scene and it and Defendants SANDERSand BALANCHETT commenced rendering salvage assistance to the Nikki .

41 . Defendants, SANDERS, BALANCHETT, and MCCULLY assumed care, custodyand control of the Nikki while attempting to provide salvage assistance to her .

42 . Defendants, SANDERS, BALANCHETT, and MCCULLY failed to properly manthe salvage operation . Specifically, the Defendants failed to quickly and efficiently right thevessel, de-water the vessel, pickle the engines and take necessary steps to save the vessel Nikki orpreclude additional damages by the virtue of allowing the vessel to continue in her submergedstate in the navigable waters in and around Fort Pierce, Florida .

43 . Furthermore, the vessel Nikki, upon information and belief, sustained additionaldamages as a result of the vessel being towed upside down in a capsized manner and not properlyrighted in a timely and reasonable manner by the Defendants SANDERS, BALANCHETT andMCCULLY .

44 . Plaintiff, IMRI, has performed or satisfied all conditions precedent to filing th e

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subject suit .45 . Plaintiff, IMRI, was required to retain the law firm of Stroup & Martin, P .A . to

prosecute this suit on its behalf and is obligated to pay reasonable attorney's fees and costs forStroup & Martin 's services .

COUNT IPLAINTIFF IMRI 'S CLAIM AGAINST INPERSONAM DEFENDANTS

SANDERS AND BALANCHETT AND IN REM DEFENDANT Phoenix FOR BREACHOF THE IMPLIED WARRANTY OF SUITABLE TOWING VESSE L

46 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 13, 22 through 39, 44 and 45of the Verified Complaint as if fully set forth herein .

47 . General maritime law applies to towing contracts for vessels .48 . Under the general maritime law, towers impliedly warrant that :

a . Their towing vessel is adequately powered, equipped and efficient toperform the subject tow ;

b . Reasonable skill, energy, diligence and care will be exercised inperforming the tow ; and ,

c . The towing vessel's crew, tackle and equipment are equal to the work tobe accomplished in weather and circumstances reasonably to be expected .

49 . Defendants SANDERS, BALANCHETT and Phoenix impliedly warranted toPlaintiff IMRI that :

a. ThePhoenix was adequately powered, equipped, and efficient to performthe subject tow ;

b . Reasonable skill, energy, diligence and care would be exercised i n

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performing the subject tow ; and ,c. ThePhoenix's crew, tackle and equipment were equal to the work to be

accomplished in the weather and circumstances that were reasonably to beexpected .

50 . Defendants SANDERS, BALANCHETT and Phoenix breached their impliedwarranty of suitable towing vessel by :

a . Failing to timely respond to the N ikki 's request for assistance ;b . Failing to de-water the Nikki before towing it to Ft . Pierce Inlet ;c . Failing to use proper equipment to tow the Nikki ;d . Failing to shorten the tow line and/or reduce speed while towing the Nikki

into the Ft . Pierce Inlet ;e . Failing to use proper seamanship in towing the Nikki ; and/or ,f. Failing to timely call for additional assistance and/or equipment to tow the

Nikki to Ft . Pierce Inlet .51 . Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of

Defendants SANDERS, BALANCHETT and Phoenix 's breach of their implied warranty ofsuitable towing vessel .

52 . Defendants SANDERS, BALANCHETT and Phoenix 's breach of their impliedwarranty of suitable towing vessel directly and proximately caused damages to Plaintiff IMRI,which damages consist of either the market value of the Nikki or the reasonable cost of repairs forthe vessel ; sue and labor expenses ; loss of use of the Nikki ; haul-out and/or storage charges forth e Nikki after the subject casualty ; su rv eyor ' s expenses ; prejudgm ent interest ; and other los s

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related expenses .WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,

INC ., demands the Honorable Court to do the following :a) That process be issued against the M/V Phoenix ;b) That all persons having a claim or interest therein may be cited to appear and

answer the aforementioned matter ;c) That upon proper notice and hearing, judgment be entered in favor of Plaintiff IMRI

and against the in rem Defendant Phoenix and the in personam Defendants SANDERS andBALANCHETT for the amount of damages identified in Paragraph 52 above ;

d) That the Court order the Phoenix sold at a U .S . Marshal's auction for purposes ofsatisfying part of Plaintiff s judgment ; and ,

e) Order such other and further relief as this Court deems just and proper .COUNT I I

PLAINTIFF IMRI 'S CLAIM AGAINST IN PERSONAM DEFENDANTSSANDERS AND BALANCHETT FOR BREACH OF THE IMPLIED WARRANTY OFWORKMANLIKE PERFORMANC E

53 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 13, 22 through 39, 44 and 45of the Verified Complaint as if fully set forth herein .

54 . General maritime law applies to service contracts for vessels .55 . Under the general maritime law, marine contractors impliedly warrant that their

services to vessels will be performed in a workmanlike manner .56 . Defendants SANDERS and BALANCHETT impliedly warranted that they would

perform their towing and/or salvage services to Plaintiff IMRI'S vessel named Nikki in a

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workmanlike manner .57 . Defendants SANDERS and BALANCHETT breached their implied warranty of

workmanlike performance by :a. Failing to timely respond to theNikki's request for assistance ;

b. Failing to de-water the Nikki before towing it to Ft . Pierce Inlet ;c . Failing to use proper equipment to tow the Nikki ;d . Failing to shorten the tow line and/or reduce speed while towing the Nikki

into the Ft. Pierce Inlet ;C . Failing to use proper seamanship in towing the Nikki ; and/or,f. Failing to timely call for additional assistance and/or equipment to tow the

Nikki to Ft. Pierce Inlet .58 . Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of

Defendants SANDERS and BALANCHETT'S breach of their implied warranty of workmanlike

performance .59 . Defendants SANDERS and BALANCHETT'S breach of their implied warranty of

workmanlike performance directly and proximately caused damages to Plaintiff IMRI, whichdamages consist of either the market value of the Nikki or the reasonable cost of repairs for thevessel; sue and labor expenses ; loss of use of the Nikki ; haul-out and/or storage charges for theNikki after the subject casualty; surveyor's expenses ; prejudgment interest ; and other loss relatedexpenses .

WHEREFORE, Plaintiff INTERNATIONAL MARINE RESEARCH INSTITUTE, INC.,demands the Honorable Court enter a judgment in its favor against Defendants SANDER S

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MARINE TOWING, INC. d/b/a FT. PIERCE TOWBOAT U .S . and LARRY ALLENBALANCHETT and award Plaintiff compensatory and consequential damages, expenses,prejudgment interest , costs and such further relief the Court deems proper .

COUNT II IPLAINTIFF IMRI 'S NEGLIGENT TOWING CLAIM AGAINST IN PERSONAM

DEFENDANTS SANDERS AND BALANCHETT AND IN REM DEFENDANT Phoenix60 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 1, 2, 4 through

13, 22 through 39, 44 and 45 of the Verified Complaint as if fully set forth herein .61 . Defendants SANDERS, BALANCHETT and Phoenix owed a duty to use

reasonable care under the circumstances to tow the vessel Nikki in a safe and competent manner .62 . Defendants, SANDERS, BALANCHETT and Phoenix breached their duty to use

reasonable care in towing the Nikki by the following acts or omissions :a. Failing to timely respond to the Nikki 's request for assistance ;b . Failing to de-water theNikki before towing it to Ft . Pierce Inlet;

c . Failing to use proper equipment to tow the Nikki ;d . Failing to shorten the tow line and/or reduce speed while towing the Nikki

into the Ft . Pierce Inlet ;e . Failing to use proper seamanship in towing the Nikki ; and/or,f. Failing to timely call for additional assistance and/or equipment to tow the

Nikki to Ft. Pierce Inlet .63. Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of

Defendants SANDERS, BALANCHETT'S and Phoenix's breach of their reasonable duties ofcare in towing the Nikki .

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64 . Defendants SANDERS, BALANCHETT and Phoenix's breach of their reasonableduties of care in towing the Nikki directly and proximately caused damages to Plaintiff IMRI,which damages consist of either the market value of the Nikki or the reasonable cost of repairs forthe vessel ; sue and labor expenses ; loss of use of the Nikki ; haul-out and/or storage charges forthe Nikki after the subject casualty ; surveyor's expenses ; prejudgment interest ; and other lossrelated expenses .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,INC ., demands the Honorable Court to do the following :

a) That process be issued against the M/V Phoenix ;b) That all persons having a claim or interest therein may be cited to appear and

answer the aforementioned matter ;c) That upon proper notice and hearing, judgment be entered in favor of Plaintiff IMRI

and against the in rem Defendant Phoenix and the in person am Defendants SANDERS and

BALANCHETT for the amount of damages identified in Paragraph 64 above ;d) That the Court order the Phoenix sold at a U.S. Marshal's auction for purposes of

satisfying part of Plaintiff's judgment ; and ,e) Order such other and further relief as this Court deems just and proper .

COUNT IVPLAINTIFF IMRI 'S NEGLIGENT SALVAGE CLAIM AGAINST

IN PERSONAM DEFENDANTS SANDERS, BALANCHETT AND MCCULL Y65 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 15, 22 through 45 of the

Verified Complaint as if fully set forth herein .66 . After the vessel Nikki capsized on December 23, 2004, Defendants, SANDERS ,

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BALANCHETT, and MCCULLEY owed a reasonable duty of care to salvage the Nikki withoutcausing more damages to the vessel .

67 . Defendants SANDERS, BALANCHETT, and MCCULLEY breached theirreasonable duty of care to salvage the Nikki without causing more damages by :

a . Failing to take action to de-water the Nikki and right her before continuingto tow her into Ft . Pierce Inlet ;

b . Towing theNikki into Ft . Pierce Inlet while she was still capsized andupside down in the water ; and ,

c . Failing to pickle the Nikk i 's engine ( s) and generator set and failing to takeother action to preserv e and protect the Nikki once it was in port .

68 . Defendants SANDERS, BALANCHETT, and MCCULLEY' S acts and/oromissions as outlined in this Complaint amount to gross negligence on their part .

69. PlaintiffIMRI'S vessel Nikki was rendered a constructive total loss as a result of

Defendants SANDERS, BALANCHETT and MCCULLY 'S breach of their reasonable duties ofcare and/or gross negligence in salvaging the Nikki .

70. Defendants SANDERS, BALANCHETT and MCCULLY' S breach of theirreasonable duties of care and gross negligence in salvaging the Nikki directly and proximatelycaused additional damages to Plaintiff IMRI, which damages consist of either the market value of

the Nikki or the reasonable cost of repairs for the vessel ; sue and labor expenses ; loss of use ofthe Nikki ; haul-out and/or storage charges for the Nikki after the subject casualty ; surveyor'sexpenses ; prejudgment interest ; and other loss related expenses .

71 . As detailed herein above, Defendants , SANDERS, BALANCHETT and

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MCCULLY' S gross negligence in their conduct in the salvage operation resulted in additionaldamage to the Nikki . Further, Defendants, SANDERS, BALANCHETT and MCCULLYdamaged the Nikki beyond the scope of anticipated damages which the vessel sustained as aresult of the capsizing .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,IN C ., demands judgment , jointly and severally, against the Defendants , SANDERS,BALANCHETT and MCCULLY, for damages as a result of their negligent salvage, prejudgmentinterest , costs and for such other and fu rt her relief as this Court deems just and proper .

COUNT VPLAINTIFF IMRI'S BREACH OF CONTRACT CLAIM

AGAINST DEFENDANT INAMA R72 . Plaintiff, IMRI, re-alleges Paragraphs 1, 4 through 18 and 22 through 45 of the

Verified Complaint as if fully set forth herein .73 . Defendant INAMAR insured the Nikki under Policy No . HU N00895957 002

during the period of September 19, 2004 through September 19, 2005 .74 . The casualties involving the Nikki as described herein were covered under th e

Policy .

75 . TheNikki was rendered a constructive total loss as a result of one or more of thecasualties described herein .

76 . Thedamages sustained by the Nikki as described herein were insured under PolicyNo. HU N00895957 002 .

77 . Plaintiff IMRI gave prompt notice of the aforementioned casualties to DefendantINAMAR .

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78 . Plaintiff IMRI submitted a claim to Defendant INAMAR for the constructive totalloss of the Nikki , sue and labor expenses and other covered expenses .

79 . Defendant INAMAR was obligated to pay Plaintiff IMRI for the constructive totalloss of the Nikki , sue and labor expenses and other insured expenses under the terms of PolicyNo. HU N00895957 002 .

80 . Defendant INAMAR breached Policy No . HU N00895957 002 by refusing to payPlaintiff IMRI'S claims arising from the aforementioned casualties .

81 . Defendant INAMAR'S breach of the subject Policy directly and proximatelycaused damages to Plaintiff IMRI .

82 . Plaintiff IMRI is entitled to recover its attorney's fees from Defendant INAMARfor breach of the subject Policy pursuant to Florida Statute 627 .4 2 8

83 . Plaintiff IMRI'S damages arising from Defendant IN AMAR'S breach of thesubject Policy include the insured agreed value of the Nikki , sue and labor expenses, storage

expenses, surveyor's expenses, other loss related expenses, prejudgment interest, and attorney'sfees .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,INC ., demands the Honorable Court enter a judgment in its favor against the Defendant,INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and award Plaintiffcompensatory and consequential damages, prejudgment interest , attorney's fees pursuant to

Flor i da Statute 627 .428, costs and for such other and fu rther relief as this Court deems just andproper.

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COUNT VIPLAINTIFF IMRI 'S BREACH OF ORAL CONTRACT CLAIM

AGAINST DEFENDANT ROYAL FOR FAILING TO PROCURE AND MAINTAININSURANCE COVERAGE FOR THE M/V Nikk i

84 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45 ofthe Verified Complaint as if fully set forth herein .

85 . At all times material hereto, Defendant ROYAL held itself out to the public asbeing an expert in procuring marine insurance for customers' needs .

86 . Plaintiff IMRI used Defendant ROYAL as its insurance agent and/or broker to

procure insurance coverage for its vessels for several years prior to December 2004 .87 . During the years leading up to December 2004, Defendant ROYAL developed a

special insurance agency relationship with Plaintiff IMRI, which encompassed ROYAL inquiringabout IMRI'S activities, advising IMRI about its insurance needs and obtaining coverage toinsure IMRI'S risks .

88 . Prior to the casualties to the M/V Nikki in December 2004, Plaintiff IMRI orallycontracted with Defendant ROYAL to procure hull insurance for vessels donated to the Plaintiff .

89 . Defendant ROYAL advised Plaintiff IMRI that it procured Policy No . H UN00895957 002 from Defendant INAMAR and that the Nikki was insured under said Policy .

90 . Prior to the aforementioned casualties to the Nikki, Plaintiff IMRI informedDefendant ROYAL that it was relocating the vessel from St . Augustine to Ft . Lauderdale,

Florida .91 . Defendant ROYAL advised Plaintiff IMRI that it had notified Defendant INAMAR

about the proposed change in the Nikki 's location from St . Augustine to Ft . Lauderdale and tha t

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the vessel would be insured during and after its relocation to Ft . Lauderdale .92 . Defendant INAMAR denied Plaintiff IMRI'S claims for the constructive total loss

of the Nikki, sue and labor expenses, storage charges and other losses covered under the subjectPolicy .

93 . While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRI' S claims, if the Court finds that the Policy does not cover the relevant losses, thenDefendant ROYAL breached the oral contract to procure and maintain insurance coverage for theNikki.

94 . While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRl'S claims, if the Court finds that the Policy does not cover the relevant losses, thenDefendant ROYAL'S breach of oral contract to procure and maintain insurance coverage for the

Nikki directly and proximately caused damages to Plaintiff IMRI .95 . Plaintiff IMRI'S damages arising from Defendant ROYAL'S breach of oral

contract include, but are not limited to, the loss of the insured value of the Nikki, sue and laborexpenses, storage expenses, surveyor's fees, prejudgment interest on the amounts that shouldhave been timely paid under the relevant Policy, attorney's fees in having to file suit againstDefendant INAMAR to try and collect under the Policy, and costs .

96 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causally arisingfrom Defendant ROYAL'S breach of oral contract and therefore Plaintiff IMRI is entitled torecover those attorney's fees that it must expend in suing Defendant INAMAR to try and enforc e

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the marine insurance contract .WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,

INC ., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYALMARINE INSURANCE GROUP, INC ., and award Plaintiff compensatory and consequentialdamages, prejudgment interest, attorney's fees, costs and for such other and further relief as thisCourt deems just and proper .

COUNT VIIPLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FOR NEGLIGENT

FAILURE TO PROCURE AND MAINTAIN INSURANCE COVERAG E97 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45, 85

through 87 and 89 through 92 of the Verified Complaint as if fully set forth herein .98 . Plaintiff IMRI requested Defendant ROYAL to procure and maintain insurance

coverage for its vessels, including the Nikki for the time period of September 19, 2004 throughSeptember 19, 2005 .

99 . At all times material hereto, Defendant ROYAL did not inform Plaintiff IMRI thatit could not obtain the coverage requested for Plaintiff's vessels .

100 . Defendant ROYAL owed a duty to Plaintiff IMRI to use reasonable care to procureand maintain a policy of insurance for Plaintiffs vessels, which insurance was suitable in allrespects for Plaintiff's needs and covered the donated vessels, such as the Nikki, while inPlaintiff's ownership .

10 1 . While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, the n

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Defendant ROYAL breached its duty to Plaintiff IMRI to use reasonable care in procuring andmaintaining marine insurance coverage for Plaintiffs vessels, including the Nikki .

102 . While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, thenDefendant ROYAL'S negligent failure to procure and maintain insurance coverage for the Nikkidirectly and proximately caused damages to Plaintiff IMRI .

103 . Plaintiff IMRI'S damages arising from Defendant ROYAL'S negligent failure toprocure and maintain insurance coverage for the Nikki include, but are not limited to, the loss ofthe insured value of the Nikki , sue and labor expenses, storage expenses, surveyor's fees,prejudgment interest on the amounts that should have been timely paid under the relevant Policy,attorney's fees in having to file suit against Defendant INAMAR to try and collect under thePolicy, and costs .

104 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causallyarising from Defendant ROYAL'S negligence and therefore Plaintiff IMRI is entitled to recoverthose attorney's fees that it must expend in suing Defendant INAMAR to try and enforce themarine insurance contract .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,INC., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYALMARINE INSURANCE GROUP, INC ., and award Plaintiff compensatory and consequentialdamages, prejudgment interest, attorney's fees, costs and for such other and further relief as thisCourt deems just and proper .

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COUNT VII IPLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FOR BREACH OF

FIDUCIARY DUTY105 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45,

85 through 87 and 89 through 92 of the Verified Complaint as if fully set forth herein .106. Plaintiff IMRI placed trust and confidence in Defendant ROYAL because of the

nature of the agent-client relationship and their belief that Defendant ROYAL held superiorknowledge, skill and judgment about insurance matters, including, but not limited to, the type ofpolicy that would satisfy Plaintiff's request for coverage for its vessels, including the Nikki .

107 . At all times material hereto, Defendant ROYAL had a fiduciary duty to PlaintiffIMRI because of the inherent trust and confidence that the Plaintiff had in Defendant ROYAL asits insurance agent and/or broker .

108 . At all times material hereto, Defendant ROYAL'S fiduciary duties owed toPlaintiff consisted of :

a . To procure and maintain proper insurance coverage for the Nikki ;b . To fully and completely explain the material terms and conditions of the

insurance coverage to Plaintiff ;c . Not to mislead the Plaintiff about the nature and scope of its insurance

coverage for the Nikki ; and ,d . Advise Plaintiff if Defendant ROYAL was unable to procure the

appropriate coverage .109 . While Plaintiff IMRI contends the casualties sustained by the Nikki are covered

under the subject Policy and that Defendant INAMAR has breached said contract by failing t o

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pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, theDefendant ROYAL breached its fiduciary duties to Plaintiff IMRI by either failing to procure andmaintain the appropriate insurance coverage for the Nikki, failing to fully and completely explainthe material terms and conditions of the insurance coverage to Plaintiff IMRI, misleadingPlaintiff about the nature and scope of its insurance coverage and/or failing to advise Plaintiffthat it had not been able to procure the appropriate coverage for the Plaintiff and its vessel Nikki .

110. While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing to

pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, theDefendant ROYAL'S breach of its fiduciary duties directly and proximately caused PlaintiffIMRI to suffer damages including, but not limited to, the loss of the insured value of the Nikki,sue and labor expenses, storage expenses, surveyor's fees, prejudgment interest on the amountsthat should have been timely paid under the relevant Policy, attorney's fees in having to file suit

against Defendant INAMAR to try and collect under the Policy, and costs .11 1 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causally

arising from Defendant ROYAL'S breach of fiduciary duty and therefore Plaintiff IMRI isentitled to recover those attorney's fees that it must expend in suing Defendant INAMAR to tryand enforce the marine insurance contract .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,INC., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYALMARINE INSURANCE GROUP, INC ., and award Plaintiff compensatory and consequentialdamages, prejudgment interest, attorney's fees, costs and for such other and further relief as thi s

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Court deems just and proper .COUNT IX

PLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FORMISREPRESENTAION ABOUT INSURANCE COVERAGE

112 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45,85 through 87, 89 through 92 and 106 of the Verified Complaint as if fully set forth herein .

113 . As a professional insurance agent and/or broker, Defendant ROYAL owed a dutyto use reasonable care not to falsely represent to Plaintiff IMRI the scope of insurance coverageon the Nikki .

114 . While Plaintiff IMRI contends the casualties sustained by the Nikk i are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, thenDefendant ROYAL breached its duty by misrepresented the scope and nature of insurancecoverage for the Nikki to Plaintiff IMRI .

115 . While Plaintiff IMRI contends the casualties sustained by the Nikki are coveredunder the subject Policy and that Defendant INAMAR has breached said contract by failing topay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, theDefendant ROYAL'S misrepresentations about the scope and nature of coverage for the Nikkidirectly and proximately caused Plaintiff IMRI to suffer damages including, but not limited to,the loss of the insured value of the Nikki, sue and labor expenses, storage expenses, surveyor'sfees, prejudgment interest on the amounts that should have been timely paid under the relevantPolicy, attorney's fees in having to file suit against Defendant INAMAR to try and collect underthe Policy, and costs .

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111 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causallyarising from Defendant ROYAL'S misrepresentations and therefore Plaintiff IMRI is entitled torecover those attorney's fees that it must expend in suing Defendant INAMAR to try and enforcethe marine insurance contract .

WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,INC., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYALMARINE INSURANCE GROUP, INC ., and award Plaintiff compensatory and consequentialdamages, prejudgment interest, attorney's fees, costs and for such other and further relief as thisCourt deems just and proper .

DATED : August a , 2005 .STROUP & MARTIN, P .A .Attorneys for Plaintiff119 Southeast 12`h Stree tFort Lauderdale, Florida 33316(954) 462-8808; Fax 462-027 8By :

JAMES W. STRFla Bar No . 0842117FARRIS J. MARTIN, IIIFla Bar No . 0879916



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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORID A

IN ADMIRALTYCASE NO . :

INTERNATIONAL MARINERESEARCH INSTITUTE, INC .,A Florida Not For Profit Charity ,

Plaintiff ,vs .SANDERS MARINE TOWING, INC . d/b/aFT. PIERCE TOWBOAT U .S . ,LARRY ALLEN BALANCHETT,McCULLEY MARINE SERVICES, INC .INDEMNITY INSURANCE COMPANYOF NORTH AMERICA ; ROYAL MARINEINSURANCE GROUP, INC ., in personanz ;and, M/V Phoenix, a 1989 29' motor vessel,her engines , tackle, accessories, andappu rtenances , in reni ,

Defendants .

VERIFICATIONSTATE OF FLORIDA )

) SSCOUNTY OF BROWARD )

I, JAMES SCOTT, being duly swo rn deposes and states :1 . I am a Consultant for INTERNATIONAL MARINE RESEARCH INSTITUTE,

INC., the Plaintiff herein .2 . I have read the foregoing Ve ri fied Complaint and know the contents thereof and

the same is true to the best of my own knowledge .



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3 . The reason that I make this Verification is that INTERNATIONAL MARINERESEARCH INSTITUTE, INC . is a Florida not-for-profit charity and I an its Consultant .

4 . The sources of my information and the grounds of my belief as to all mattersstated in the Verified Complaint are based upon reports made to me by employees and therecords of the corporation for which I have been authorized to make these representations .

INTERNATIONAL MARINE RESEARCHINSTITUTE, INC .

rvTSWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, on thisXday of August , 2005, by JAMES SCOTT , a Consultant to INTERNATIONAL MARIN ERESEARCH INSTITUTE, INC ., who is personally known to me and who did take an oath .

. -J-A a_F E. So RKLEYNotary Public (printed )

My Commission Expires: S~}`01~4E, JANE E BARKLEY.} !. MY COMMISSION I DO4311l,~km' EXPRES: May2k2WO(407) 396-0 15 3 Florld . Nob ly Sw%iftmp



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4 4. 12/96) CIVIL COVER SHEE T

4 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as requ. This form . approved by the Judicial Conference of the United States in September 1974, is required icr the

. )(a ) PLAINTIFFSIn+erna-konat r h ( a r,'neRese a rch tns+it&c , S n e.,a Florl da . not -- For-pro f akaelt(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIF F(EXCEPT IN U S PLAINTFF CASES) C 0 Vn

u 4 Diversity

U .S PLAINTIFF C- *5ES ONL C )p $+N1AT!(-~r,l rnCGC I rCF TNrt r' *1 ATrmisi n HFJ INV O LVED = Li(C) ATTORNEYS (FIRMNAME ADDRESS AND I LE HONE NUMBER) A ORNEYS IF KNOWNj 4eS + ro o ~ ~ d r t , t l 9 c S E ~a c t , e ~~\4 . L1 l ~J FL 333/ P 08~i

: DADE, MONROE ,BASIS OF JURISDICTION

(Indicate Citizenship of Pa rt ie s

1 US. Gove rnment Federal Questio nPlaintiff ( U .S . Government No t a Pa rty )2 U .S . GovernmentDefendan t

. ORIGINOriginalProceeding

rt6li7)K In em III )iPLACE AN X IN ONE BOX ONLY(DEFENDANTSSanders N(ari 4e, T o n Z n cIb/ar F+ . P erce. TO oat U .L rr olden (~ 3Ja C41 ~!

1 1 1 1~ ! 4 e r - C LISTED ~ fii cCOUNTY OF REST NIC E2 ,.finJg'-01'fr!PTF DEFCitizen of This State u 1 u 1 Incorporated or Principal Placeof Business In This State

Citizen of Another State El 2 El 2 Incorporated and Principal Place u 5 uof Business In Another State

Citizen or Subject of a El 3 u 3 Fore ign NationForeign Country(PLACE AN "X" IN ONE BOX ONLY) Transferred fro m

u 2 Removed from E l 3 Remanded from [1 4 Reinstated or u 5 another districtState Court Appellate Court Reopened (specify)(PLACE AN "X " IN ONE BO X ONLY )

A CONTRAC T110 Insurance

ne130 Miller Ac t140 Negotiable Insnumen t t& Enforcement of Judgment151 Medicare Ac t

152 Recovery of DefaultedStudent Loan scI Velerars

of Veterans Benefit s160 Stockholders SuitS

, OCunliac i.Jct Liu L

Y210 _an :I Cmd 'mnaua'

Foreclosur e230 Rent Lease & Ee_trni240 Tons to Land2 45 T o n P ro d u c t Liability290 A ll Other Rear Prope rty

A TORTSPERSONAL INJURY

u 310 Airplan eu 315 Airplane ProductLiability[1 320 Assault Libel &

SlanderO 330 Federal EmployersLiabilityEl 340 Marin eEl 345 Marine Fro rucl

Liabi l IL'El 350 Motor Vehi-leC 355 Motor vehicle;Ldicr Liacoit .0 360 Cin'r F .rs .~ :'rral Ini,i rA CIVIL RIGHTS

441 V :_ .IrrnlE] 442 Emplcymenl-;] 443 HousingA--commr;Jalrv:.n5,u 444 Welfar eE] 440 Othe ; Civil Rights

PERSONAL INJURYu 362 Personal Injury -Med Malpracticeu 365 Personal injuryProduct Liabilityu 368 Asbestos Personalinjury Product Liaoilit yPERSONAL PROPERTY

5 370 Other Frau du 371 Truth in LendinqEl 380 Other PersonalFroperty Damage

385 b i . open ; Damageroduci Liabrlit,

, F O R F E I T U R E /PENALT YBID 610 Agricultur eBD 62 0 Other Food & DrugBE] 62 5 Drug Related Seizureof Property 21 1ISC 881BE] 63 0 Liquor Law sB0 640 R R & TruckBE] 650 Airline RegsBE] 660 Occupationa lSafety HearthBSi 690 Cntre i

A LABOR710 r L .11 Ia-fadlAl l720 Sao , . "1 . t'ei.ari, i

PRISONER PETITI ONSB,= 510 Mearcn r: vaate7Sentenc eHABEAS CORPUS .B u 530 Genera !Au 535 Dear' Penar yBu 540 Mandamus & OtherBu 550 Civil Right sBE] 555 Prison Condition

730 -aLr .r r 4 J oet., : n. ricl& DICE- inure - :: 1

r-. 740 iad,.a, I-ati i, Ai: rCl 7 9 0 Other Labor Lrtioaoo n

ACI 791 Empl Ret IncSecurity Act

u 6 u

Appeal to D istJudge f ro mu 6 Multidistrict u 7 MagistrateLtgaton Judgment

A BANKRUPTC Yu 422 Appeal 28 USC 15 8u 423 Withdrawal28 USC 15 7

A PROPERTY RIGHTSEl 820 Copyrightsu 830 Paten tu 840 Trademar kB SOCIAL SECURITY0 861 -,]A ' -,95tfEl 862 Blare- unc ,i2L .O 863 DIWC DMN. r5 864 SSZ Title XViT 865 Pc-a )5io :. .

FEDE R AL TAX SUITSAD 870 Taxes Si S Pla,n!rff1 or Defendant)A u 871 IRS - Third Party26 USC 760 9

. CAUSE OF ACTION (CITE THE U S CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSEDO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY )

OF TRIALdays estimated (for both sides to try entire case)

. REQUESTED INCOMPLAINT : CHECK IF THIS IS A CLASS ACTIONu UNDER F.R.C .P 23

PALM BEACH, MARTIN, ST . LUCIE, INDIAN RIVER . OKEECHOBEE HIGI1l4DS [')III . CITIZENSHIP OF PRINCIPAL PARTIES ( P L A C E A N X M ONE BOX FOR PLAIN(For Diversity Cases Only) AND ONE BOX FOR DEFENDANT I

DEMAND $un d eifrMae `

A OTHER STATUTESu 400 state ReapportionmentE] 410 AntitrustE ] 4 3 0 B anks and B ank i ngBE] 4S 0 Co m m erc e / ICC Rates/etcE) 460 Depo rt atio nEl 470 Racketeer Influenced andCorrupt OrganizationsE ] 810 Select ive Servic eE] 850 Securities Commodities/Exohanpe' 875 Customer Cnauena e7 2 U S C 3 4 1 0E3 891 Agricultural Act s0892 Economic Slacrili/arian AcC) 893 En:onmenlal Ivlatter sC 894 Erenrg, Allocation Act0895 Freedom o finfnrma' on Ac !T 900 Aopeal of Fee Determinatindex Equal Access to ju71 950 Constitutionality o f

S t a t e S t a t u t e s[:1 890 Other Statuto ry ActionsA OR B

CHECK YES only if demanded in complainJURY DEMAND : u YES ACRO

PTA D

. RELATED CASE( S) (See instructions )IF ANY UDGE DOCKETNUMBER


int'l marine research v. sanders marine tow, et al complaint

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