CAN BOAT OWNERS RELY UPON AN ACT OF GOD TO AVOID HURRICANE SALLY LIABILITY?

CAN BOAT OWNERS RELY UPON
AN ACT OF GOD TO AVOID HURRICANE SALLY LIABILITY?

With boats strewn all over the Alabama and Florida coastline from the unsuspecting ferocity of Hurricane Sally, many are asking the question: Is a boat owner liable to a landowner for damage caused by the unmoored boat in a hurricane? An unpublished 5th Circuit Court of Appeals opinion provides a well written analysis to answer this question. In Simmons v. Berglin, 2011 U.S. App. LEXIS 23499, a sailboat became unmoored from its dock during Hurricane Katrina, washed ashore, and damaged the Plaintiffs’ property. Finding for the sailboat owner, the 5Th Circuit Court of Appeals concluded the unmooring and resulting damage was an Act of God.

In reaching its conclusion, the Simmons Court, first, acknowledged a presumption that has existed in admiralty law for well over 150 years – there is a presumption that when a moving vessel causes damage to a stationary object, the moving vessel is at fault. This said, the Court, also, pointed out a drifting vessel may overcome this presumption with evidence that “the accident could not have been prevented by human skill and precaution and proper display of nautical skill.” In other words, if a boat owner undertook reasonable preparations in anticipation of an impending hurricane, the boat owner will be relieved from liability as the damage resulted from an Act of God.

The facts found in the Simmons case are analogous to the stories being shared following Hurricane Sally. As such, the factual analysis in Simmons can be readily applied to those seeking claims against boat owners in the aftermath of Hurricane Sally. In that case, the Court’s recognition of the high storm surge recordings in the area where the sailboat was docked was, undoubtedly, a significant factor in its decision. Too, an important factor in the Court’s rationale was its acknowledgment of the testimony from the two men who made hurricane preparations to the sailboat – both were found to be well experienced mariners. Finally, the Court assessed the devastation inflicted upon the docks and boats in the area where the sail boat was moored in finding the damage resulted from an Act of God.

In conclusion, for a landowner to present a claim against a boat owner for damage caused by his/her’s unmoored boat in a Hurricane Sally, it will, first, be necessary for the landowner to prove the boat owner failed to undertake reasonable preparations. For example, those boats that were poorly anchored resulting in damage to landowners may be liable for damages. However, know the court may balance a mariner’s inexperience with the fact Hurricane Sally brought a significant storm surge in Alabama and Florida causing devastation upon docks and boats throughout the area in finding for the boat owner, instead of the landowner. Simply put, the landowner will have to overcome an assumption that Hurricane Sally subjected all local mariners to an Act of God. (AP Photo/Gerald Herbert)

Knox Boteler
Boteler Richardson Wolfe
knox@brwlawyers.com
(251) 433-7766

 

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

Personal Injury Claims: What Are “Value Drivers?”

Today most major automobile insurance companies use some form of Computer Assisted Claim Evaluation Program to help them establish a “value” for a personal injury claim. These programs evaluate data about the injury claim and then provide the adjuster with a value or compensation amount they should pay the victim. Depending on the company, adjusters may have to strictly follow the evaluation or they may be able to offer more than the program’s “evaluation.”  Desktop Computer Free vector in Adobe Illustrator ai ( .AI ), Encapsulated PostScript eps ( .EPS ) format for free download 3.28MB

Central to all of these programs are value-drivers. These are certain facts or factors that are input into the program. A value-driver can be either positive or negative. Meaning they can either increase the amount of compensation the victim receives or reduce the amount of compensation the victim receives. These programs can evaluate thousands of different value drivers. Even for a simple auto-crash injury claim there can be over 100 value drivers analyzed by these programs.

Obviously the diagnosis code for an injury is an important value driver but so are the treatment codes as well as the timing of the treatment. The “value” of a diagnosis code may also depend on what type of doctor made the diagnosis. A delay in care or a gap in treatment can be a negative value driver as well as inconsistent pain complaints in the medical records. Many times these negative value drivers can be limited or overridden by the adjuster but he or she has strict criteria or guidelines on what documents and/or facts must be presented to limit the negative value driver.

If you have a serious injury claim from a car crash, you need a law firm that understands Computer Assisted Claim Evaluation programs and knows how to properly document all of the positive value drivers and limit the negative value drivers. At Boteler Richardson Wolfe we’ve been helping car crash victims present and prosecute their insurance claims for over 30 years. We know and understand Computer Assisted Claim Evaluation Programs better than most attorneys. We can help you get the full compensation you deserve! Give us a call today: 251 433-7766 or email Mark Wolfe at mark@brwlawyers today for a free consultation.

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). Statement in compliance with Florida Bar Advertising Rules: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)]. General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.