Emotional Damages Under State Wrongful Death Statute of Non-seafarer in State Territorial Waters

Emotional Damages Under State Wrongful Death Statute of Non-seafarer in State Territorial Waters

By: Sara LaRosa

Edited by: Brooke E. Michiels

Pucci v. Carnival Corp., No.15-22241-CIV, 2016 WL 614568; 2016 U.S. Dist. LEXIS 18392  (S.D. Fla. Feb. 16, 2016)In August 2014, Judith Pucci (hereinafter “Pucci”) drowned while on a snorkeling excursion in territorial waters of the United States Virgin Islands. Pucci’s husband and son brought suit against Carnival Corporation and Cruise Ship Excursions (hereinafter “CSE”), the operator of the snorkeling excursion. The plaintiffs seek to recover for “mental pain and suffering . . . value of lost support, services, companionship, and protection.” CSE filed a motion to strike the claim for emotional damages.CSE offered three arguments in support of the motion: (1) emotional damages are not recoverable under general maritime law, (2) federal general maritime law should be applied because it is superior to the state wrongful death statute, (3) the zone of danger test is not met here to allow for recovery of mental anguish under general maritime law. Plaintiff argued that as Pucci’s death occurred in state territorial waters, the United State’s Virgin Island wrongful death statute is applicable. Plaintiffs further argue that the zone of danger test is inapplicable because the claim is not for negligent infliction of emotional distress.The court agreed with CSE and reasoned that under general maritime law the plaintiff cannot recover for any emotional damage because Pucci was a nonseafarer and the plaintiffs are bringing the action on her behalf. The court looked at jurisprudence beginning with Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), in which the Supreme Court created, under general maritime law, a wrongful death cause of action for deaths occurring in state territorial waters. By examining the subsequent lower courts decisions post Morange, it became clear to the court that those decisions, which all supported the conclusion that allow emotional damages under the wrongful death action created in Morange, are inapplicable.The court agreed with the plaintiffs that the law of the United States Virgin Islands is applicable. The court relied on Yamaha v. Calhoun, 516 U.S. 199 (1996), and In re Amtrack 121 F.3d 1421 (11th Cir. 1997). The court found Yahama more analogous to the case at issue as it involved the death of a non-seafarer and as there was no directly implicated federal statute. Acknowledging that the test for deciding when federal maritime law preempts state law is quite unclear, the court pointed to two fundamental elements to support its decision to apply state law. First, the uniformity in maritime law is generally implicated when the case involves commercial activity. Second, the Supreme Court expressed no issue with concurrent application of state law to deaths on non-seafarers in territorial waters when the Moragne Court created the general maritime action.The last issue the court addressed is the applicability of the zone of danger test. The court agreed with the plaintiff that the zone of danger does not apply to the wrongful death claim brought by the plaintiffs, and therefore does not have to be met to recover emotional damages. The zone of danger test states that the plaintiffs must have been “physically present during the traumatic incident” to recover for mental anguish. The plaintiffs argued that this test is completely irrelevant to their case because they are not bringing an action for negligent infliction of emotional distress. The action the plaintiff brought against CSE included a state wrongful death action on theories of misrepresentation and negligence seeking emotional damages. There is no claim for negligent infliction of emotional distress, and therefore the zone of danger test does not apply.