Carnival Cruise Slip, Fall Case Dismissed Failure Sue in Time

In Pettit v. Carnival Corporation, Dist. Court, SD Florida 2015, Rebecca Pettit sued Carnival Corporation for a slip and fall accident. Carnival Corporation is the legal name for Carnival Cruise Lines.

As required by Carnival’s passenger ticket contract, Pettit’s attorney sued in United States District Court, S.D. Florida, Miami Division. This is federal court.

Tip: Not every Florida attorney is licensed to practice in Federal Court.

On August 10, 2015, the judge entered an order granting Carnival’s Motion for Summary Judgment. This means that the judge permanently dismissed the case.

Carnival asked the court to dismiss the case on the basis that Petit filed her lawsuit which states a claim for personal injury due to Carnival’s alleged negligence, outside of the one-year statute of limitations provided for by her ticket contract.

A statute of limitations is a time limit within which you must sue, or your claim is forever lost.

Fact: In a personal injury claim against Carnival or any cruise line, you must show that they were negligent. If Carnival did nothing wrong that caused your injury, you get nothing.

In response, Pettit argued that the limitations period should be equitably extended, and that genuine disputes of material facts should prevent dismissal of the case.

Background

The following facts are agreed upon:

Pettit was a passenger aboard the Carnival Breeze when she was injured in a slip-and-fall incident on September 24, 2013.

Prior to embarking on Breeze, Pettit completed a Guest Ticket Contract Acknowledgement, in which she agreed that she viewed and had an opportunity to read all the terms and conditions as stated in the contract and that she understood and accepted all such terms and conditions.

The ticket contract contains a forum selection clause, naming the Southern District of Florida (in Miami, Florida) as the appropriate venue (location) for this lawsuit. It also had a statute of limitations, which provides that any claim for personal injury “shall not be maintainable unless filed within one year after the date of injury.”

On September 12, 2014, only twelve days before the deadline under the one year statute of limitations, Pettit sued suit in state court for Miami-Dade County, Florida.

Warning: You should only wait until twelve (12) days before a deadline to sue, if you are 100% certain of the names of all of the proper defendant(s) and the proper court where the lawsuit should be filed. In many cases, the best practice is too sue much earlier than the deadline. However, as with any legal issue, it must be examined on a case by case basis.

On the flip side, I will say that since Carnival is sued so often (relative to Miami “mom and pop stores”), cruise accident lawyers know Carnival’s legal name. There should not be any issue with naming them properly as strictly required by the law.

Tip: Similar to some other defendants, Carnival may agree to enter to agreement extend the statute of limitations. They can do this because its 1 year statute of limitations is created by their contract. If you (or your lawyer gets this agreement, make sure that it is in writing, preferably by Carnival’s claims manager and their attorney. This is because those individuals can legally bind Carnival to this contract extension. That said, some cruise passenger injury attorneys do not feel comfortable agreeing to extend the statute of limitations.

Pettit did not serve Carnival until nearly two months later, on November 11, 2014. Carnival timely filed its first and only answer to the lawsuit on December 1, 2014, in which Carnival asked the state court to dismiss the lawsuit based on the terms of the forum selection clause contained in the ticket contract.

Thereafter, on December 17, 2014, Pettit filed her lawsuit in Federal Court in Miami, Florida.

Standard on Summary Judgment Dismissal

The court should only dismiss the case if there is no genuine dispute about a material fact.

Discussion

The passenger agreed that this lawsuit was filed outside the statute of limitations to which the parties bound themselves in the ticket contract.

Attempting to get around this obvious defect in her lawsuit, she asks the Court to equitably extend the statute of limitations, claiming genuine issues of material fact exist as to whether Defendant’s conduct unfairly caused her not to file suit in federal court.

She claims that Carnival:

1) failed to notify Plaintiff of its intention to enforce its clause that stated that lawsuits must be filed in Miami Federal Court, and

2) has repeatedly waived its defense of improper venue for claims under the $75,000 amount-in-controversy threshold of 18 U.S.C. § 1332.

Equitable tolling refers to the law that permits a court to extend a statute of limitations where the court finds that an inequitable event has prevented her timely lawsuit.

Examples of inequitable events include cases where:

a cruise line misleads the passenger into allowing the statutory period to lapse
the passenger has no reasonable way of discovering the wrong perpetrated against him or her, or
the passenger timely files a technically defective lawsuit complaint, but in all other respects acts with the proper diligence that the limitation period is intended to insure.

Those examples were cited in the slip and fall case of Psurny v. Royal Caribbean Cruises, Ltd., 926 F. Supp. 2d 1325, 1328-29 (S.D. Fla. 2013).

Royal Caribbean’s Monarch of the Seas from the *Psurny case.*

Learn about Royal Caribbean Cruise slip and fall accidents.

The burden is on the passenger to demonstrate that equitable tolling is appropriate, and equitable tolling is not available to a passenger who fails to sue in time despite knowing that the deadline is running.

Back to the Pettit vs. Carnival case…

The judge said that extending the statute of limitations is not appropriate. The forum selection clause clearly states that all lawsuits should take place in the Southern District of Florida…

Carnival is not alleged to have taken any action in this case which would have suggested to Pettit that Carnival was waiving the forum selection clause in the ticket contract. Claims in admiralty are not subject to section 1332’s amount-in-controversy requirement.

Moreover, Pettit sued in state court only twelve days before the running of her contractual statute of limitations, and failed to serve her lawsuit upon Carnival for nearly sixty days thereafter.

Accordingly, the fact that Pettit initially sued in state court, and that Carnival moved to dismiss her state court lawsuit on the basis of improper venue (court) only after the statute of limitations had run, was a product of “garden variety” negligence on the part of Pettit’s attorney. See Crist v. Carnival Corp., 410 F. App’x 197, 203 (11th Cir. 2010).

Court rarely extends time to sue in cruise injury cases

Thus, the judge said that she has failed to carry her burden of showing unfair conduct on the part of Carnival sufficient to justify the extraordinary remedy of equitable tolling.

The court dismissed the case. The passenger lost her claim against Carnival.

Bottom Line

In a personal injury case against Carnival Cruise Lines, you must sue Carnival in federal court in Miami. If you think that you may be able to settle the case, get a written extension from Carnival’s claims manager and/or attorney. You may still want to file your lawsuit, but not serve them.

Do not count on a judge extending your time limit to sue them. The one year time period to sue goes quickly. Start requesting all of your medical records and bills immediately.

Send them to Carnival’s claims adjuster immediately.

Want to Learn more about Carnival Cruise Line Accident Claims?

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