Petition for A Writ of Certiorari — Lipworth v. Kawasaki Motors Corp., U. S. A.

Supreme Court brief1992

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Supreme Court, U.S.

od... A FILED

O pas “A 6

92-498

SEP 21 1992

NO.. ian

In the

Supreme Court

of the

United States

October Term, 1992

MARGARET LIPWORTH, as personal representative of

the Estate of LORI LIPWORTH, a deceased minor, on

behalf of the estate and the survivors of the decedent, to

wit: MARGARET LIPWORTH, natural mother, and

STEPHEN F. LIPWORTH, natural father,

Petitioner,

US.

KAWASAKI MOTORS CORP. US.A., a_ foreign

corporation, PALM BEACH KAWASAKI, INC., a

Florida corporation, and KAWASAKI HEAVY

INDUSTRIES, LTD., a foreign corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF

FLORIDA, FOURTH DISTRICT.

PERSE, P.A. & GINSBERG, P.A.

Edward A. Perse

(Counsel of Record)

and

RATINER & GLINN, P.A.

410 Concord Building

Miami, Florida 33130

(305) 358-0427

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

WHETHER FLORIDA WRONGFUL DEATH OF

A MINOR PRODUCT LIABILITY—NEGLI-

GENCE AND STRICT LIABILITY—CAUSES

OF ACTION AGAINST THE SELLERS AND

MANUFACTURERS OF A JET SKI AND ITS

COMPONENT PARTS ARE PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW

WHERE THE JET SKI STRUCK A DOCK PRO-

JECTING OUT INTO THE INTERCOASTAL

WATERWAY WHICH ADMITTEDLY CONSTI-

TUTES NAVIGABLE WATERS OF THE UNIT-

ED STATES.

ASSUMING ARGUENDO SAID FLORIDA

CAUSES OF ACTION ARE PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW,

WHETHER THE SURVIVING PARENTS OF

THE DECEDENT HAVE AN _ ADMIRAL-

TY/MARITIME CLAIM FOR LOSS OF COM-

FORT AND SOCIETY EVEN THOUGH NOT

DEPENDENT UPON DECEDENT FOR SUP-

PORT.

In the decision sought to be reviewed the District Court

of Appeal of Florida, Fourth District, answered Question A

in the affirmative and Question B ir the negative. (A. 1-5)!

‘The symbol “A” shall stand for the material appended hereto.

LIST OF PARTIES

1. Petitioner, MARGARET LIPWORTH

(“LIPWORTH”’), is personal representative of the estate of

Lori Lipworth, 1ll-year-old decedent (“DECEDENT’’).

LIPWORTH was wrongful death plaintiff in the trial court,

appellant in the Florida District Court of Appeal, Fourth

District, (“DISTRICT COURT’’), and petitioner for issu-

ance of writ of certiorari in the Florida Supreme Court

(“FLORIDA SUPREME COURT”’).?

2. Respondent, KAWASAKI MOTORS CORP.,

U.S.A., a distributor of the subject jet ski, was defendant in

the trial court, appellee in DISTRICT COURT and respon-

dent in FLORIDA SUPREME COURT.

3. Respondent, PALM BEACH KAWASAKI, INC., a

distributor of the subject jet ski, was defendant in the trial

court, appellee in DISTRICT COURT and respondent in

FLORIDA SUPREME COURT.

4. Respondent, KAWASAKI HEAVY INDUSTRIES,

LTD., the manufacturer of the subject jet ski, was defendant

in the trial court, e- ellee in DISTRICT COURT and re-

spondent in FLORIDA SUPREME COURT:

?The provisions of the Florida Wrongful Death Act, Sections 768.16,

et seq., Florida Statutes, mandate that the only permissible party plaintiff

in a wrongful death action is the duly appointed personal representative

of the estate. The personal representative must sue on behalf of the estate

and the lawful survivors of the decedent—in this case LIPWORTH,, indi-

vidually, and Stephen F. Lipworth, DECEDENT’S natural father, indi-

vidually.

*Respondents will be referred to herein in the collective singular as

“KAWASAKL”

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ... i

sac a4 shark ba'snsexenetnesons e's ii

gp) * Be gee) oy 3. yy. ere ili

TABLE OF AUTHORITIES ................... iv-v

SPU RE MUPE MBURIETY 6 ssa nsccssesssevdusscucsess 2

JURISDICTIONAL STATEMENT ............ 2-3

STATUTES AND RULES INVOLVED........ 3

STATEMENT OF CASE AND FACTS. ........ 3-6

REASONS FOR GRANTING THE WRIT..... 6

SUMMARY OF ARGUMENT.................. 7-8

QUESTION A ARGUMENT ................... 9-20

QUESTION B ARGUMENT ................... 20-24

SPUAMIIINIE Su 5. ncc aces enseasnaccvacsvecnsies 25

CERTIFICATE OF SERVICE.................. 26

gy i 8S exgtuc awa vis chew exee es A. 1-A. 22

ili

TABLE OF AUTHORITIES

Cases

CASACELI v. MARTECH INTERN., INC.

cog ee eg et reer ere

COASTAL IRON WORKS, INC. v. PETTY RAY

GEOPHYSICAL

Cae Be ee GE CB CAR. LOB) an cis ese senccsssusess

EXECUTIVE JET AVIATION, INC. v. CITY OF

CLEVELAND,

409 U.S. 249, 34 L.Ed. 454,

FP Ms MP LEMTEE iskniscvescececscasvcccnvees

FORD v. WOOTEN

681 F. 2d 712 (11 Cir. 1982), cert. den.,

459 U.S. 1202, 103 S. Ct. 1187,

76 Lee. a 433 COGS)... nc ec c ec cc censs

FOREMOST INSURANCE CoO. v. RICHARDSON

457 U.S. 688, 102 S.Ct. 2654,

TO Ente. BE BOO TIGR)... 55 onsen cccssecescecs

HOGAN v. OVERMAN

767 F. 3d 1008 (4 Cir. 1065) ..... 2.0.0... 0s0 cess

IN THE MATTER OF COMPLAINT OF KEYS

JET SKI, INC.,

OSS F. 2d 1235 (11 Cir. 1960) .............4..5-.

IVY v. SECURITY BARGE LINES, INC.

606 F. 2D 524 (5 Cir. 1979), cert. den.,

446 U.S. 956, 100 S.Ct. 2927,

DG Rat. Oe Re Cs cn kat scene wevccccvecvnas

MADRUGA v. SUPERIOR COURT

_ 346 US. 556, 74 S.Ct. 298,

ey Se I Cory osc s ake a keanydan bec dense

Page

TABLE OF AUTHORITIES—(Continued)

Cases Page

McDONALD v. FEDERAL BARGE LINES

496 F. 2d 1376 (5th Cir. 1974) ...........------- 23

MOBIL OIL CORP. v. HIGGENBOTHAM

436 U.S. 618, 98 S.Ct. 2010,

56 L.Ed. 2d 581 (1978).........------ eee cece eee: 14

MORAGNE v. STATE MARINE LINES, INC.

399 U.S. 375, 90 S.Ct. 1772,

26 L.Ed. 24 330 (1970)... 20 cc censevecccenees 7, 10

NELSON v. UNITED STATES

639 F. 2d 469 (9 Cir. 1980) .........-----+ ++ eee: 14

OFFSHORE LOGISTICS, INC. v. TALLENTIRE

47 U.S. 207, 106 S.Ct. 2485,

“Se GC. i). Seer 11, 19,

20, 23

PALMER v. RIBAX

407 F. Supp. 974 (MLD. Fla. 1976).........----- 21

SOUTHER v. THOMPSON

ona Od 166 6 Cle TOS os cee 17

SULLIVAN v. ROWEN COMPANIES, INC.

736 F. Supp. 722 (E.D. La. 1990) ........------.

THE FLORIDA STAR v. BdJ.F.

530 So.2d 286 (Fla. 1988) ...........--------+++-

THOMPSON v. OFFSHORE CoO.

440 F. Supp. 752 (S.D. Tex. 1977)

WESTERN FUEL CO. v. GARCIA

257 U.S. 233, 42 S.Ct. 89,

ee Te ee or

TABLE OF AUTHORITIES—(Continued)

AUTHORITIES Page

2G EGA, TRB ss ci duvevidsess caxseasuane 3

BO UBC. Fees BGG nian vcs citvccscasasesetesonee 3, 18

SO UGCA, SIG von vc ccvncccsustickececsaseuboet 3

U.S. Supreme Court Rules 17 and 20............... 3

Florida Wrongful Death Act, Sections 768.16, et

O00, FROeeth GURGAON: sc skk cis ci sn ccaukuenseuuaenees 3

vil

NO.

In the

Supreme Court

of the

United States

October Term, 1992

MARGARET LIPWORTH, as personal representative of

the Estate of LORI LIPWORTH, a deceased minor, on

behalf of the estate and the survivors of the decedent, to

wit: MARGARET LIPWORTH, natural mother, and

STEPHEN F. LIPWORTH, natural father,

Petitioner,

US.

KAWASAKI MOTORS CORP. U.S.A. a _ foreign

corporation, PALM BEACH KAWASAKI, INC., a

Florida corporation, and KAWASAKI HEAVY

INDUSTRIES, LTD., a foreign corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF

FLORIDA, FOURTH DISTRICT.

OPINIONS BELOW

The pertinent opinions, decisions, orders and judgments

below are:

1. The final judgment and opinion of the state trial

court appealed and the trial court order regarding

LIPWORTH’S amendment to third amended complaint

referred to therein are not reported. They are found at

A. 6-9. :

2. The opinion/decision of DISTRICT COURT sought

to be reviewed is reported at 592 So. 2d 1151. It is also found

at A. 1-5.

3. The order of FLORIDA SUPREME COURT

denying LIPWORTH’S petitior for issuance of writ of

certiorari to review the opinion/decision of DISTRICT

COURT sought to be reviewed is not yet reported. A copy of

same is found at A. 10.‘

JURISDICTIONAL STATEMENT

On December 5, 1990, the trial court entered the final

judgment appealed in this cause. (A. 6-7) LIPWORTH

timely proceeded to DISTRICT COURT.

On February 20, 1992, DISTRICT COURT rendered

the decision/opinion sought to be reviewed. (A. 1-5)

LIPWORTH timely proceeded to FLORIDA SUPREME

COURT.

‘To the effect that LIPWORTH had to proceed to the Supreme Court

of Florida before filing a petition for writ of certiorari with this Court,

please see—THE FLORIDA STAR v. B.J.F., 530 So.2d 286 (Fla. 1988).

(A. 11-14)

On June 30, 1992, FLORIDA SUPREME COURT

entered an order denying LIPWORTH’S petition for

issuance of writ of certiorari. (A. 10)

LIPWORTH invokes this Court’s jurisdiction pursuant

to the provisions of 28 U.S.C.A. 1257(3) under the time

schedule contained in 28 U.S.C.A. 2101(c) and this Court’s

Rule 20. This petition was timely filed and no application for

extension of time to file same was requested.

LIPWORTH contends that in the decision sought to be

reviewed DISTRICT COURT decided important questions

of federal law which have not been, but should be, settled by

this Court, and/or decided federal questions in a way which

conflicts with applicable decisions of this Court. See United

States Supreme Court Rule 17,1(c).

STATUTES AND RULES INVOLVED

98 U.S.C.A. 1257(3), 28 U.S.C.A. 2101(c), 28 U.S.C.A.

1333, United States Supreme Court Rules 17 and 20, and

Sections 768.16, et. seq., Florida Statutes, all supra.

STATEMENT OF CASE AND FACTS—

SUBSTANTIAL QUESTIONS RAISED,

DETERMINED AND DECIDED

BY DISTRICT COURT

In the decision sought to be reviewed, DISTRICT

COURT stated the pertinent undisputed facts of this case to

be the following:

“The surviving parents of their deceased eleven

year old daughter, Lori, and the surviving mother,

as personal representative of her late daughter’s

estate, appeal a final judgment rendered by the trial

court against them and in favor of the defendant.

We affirm.

“Appellants filed a products liability suit against

Paim Beach Kawasaki, Inc. for strict liability and

against Kawasaki Motors Corporation and

Kawasaki Heavy Industries, Ltd. for negligence and

strict liability in the design, manufacture and sale

of its JS 550A1 Jet Ski. On September 2, 1984, Lori

collided with a dock while operating the jet ski in

the intercoastal waterway [navigable waters of the

United States] and died on impact. The third

amended complaint sought damages in excess of

one million dollars for medical and funeral

expenses for Lori, for lost support and services for

her parents, and for pain and suffering for her

parents.

“After discovery, appellees filed two motions for

partial summary judgment on the issue of damages,

stating ‘nat federal maritime law controlled the

case and under such law appellants were entitled to

only medical and funeral expenses actually

expended by them as a result of Lori’s death.

“The trial court entered summary judgment,

holding the case governed by federal maritime law

and damages limited to medical and funeral

expenses actually expended. Appellants moved the

trial court to amend their third amended complaint

to seek damages only for the loss of society, which

the trial court granted. The amendment was the

result of appellants’ not wishing to proceed to trial

to determine liability because they would recover

no damages for funeral expenses, such claim being

subject to a setoff received in settlement from

another defendant. The amendment of the ad

damnum clause of the complaint enabled the trial

court to enter an appealable final judgment which it

did, resulting in the present appeal.”

On appeal LIPWORTH raised the following points:

WHETHER FLORIDA WRONGFUL DEATH OF

A MINOR PRODUCT LIABILITY—NEGLI-

GENCE AND STRICT LIABILITY—CAUSES

OF ACTION AGAINST THE SELLERS AND

MANUFACTURERS OF A JET SKI AND ITS

COMPONENT PARTS ARE PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW

WHERE THE JET SKI STRUCK A DOCK PRO-

JECTING OUT INTO THE INTERCOASTAL

WATERWAY WHICH ADMITTEDLY CONSTI-

TUTES NAVIGABLE WATERS OF THE UNIT-

ED STATES.

ASSUMING ARGUENDO SAID FLORIDA

CAUSES OF ACTION ARE PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW,

WHETHER THE SURVIVING PARENTS OF

THE DECEDENT HAVE AN ADMIRAL-

TY/MARITIME CLAIM FOR LOSS OF COM-

FORT AND SOCIETY EVEN THOUGH NOT

DEPENDENT UPON DECEDENT FOR

SUPPORT.

In the decision sought to be reviewed DISTRICT

COURT answered Question A in the affirmative and

Question B in the negative.

REASONS FOR GRANTING THE WRIT

For the following reasons this Court should grant the

writ and relief requested by LIPWORTH:

1. In the decision sought to be reviewed DISTRICT

COURT decided important questions of federal law which

have not been, but should be, settled by this Court, and/or

decided federal questions in a way which conflicts with

applicable decisions of this Court.

2. This case raises two questions of great public

interest which impact on each and every case involving state

wrongful death and product liability claims of a private

party in the pleasure craft context where an accident occurs

on navigable waters of the United States.

3. This case involves issues which cry out for an

opinion which will give guidance to lower courts in both the

federal and state court systems.

4. Should the Court reject the arguments advanced by

LIPWORTH in support of the first issue raised, it would

make it even more critical that this Court take jurisdiction

of the cause and decide the second issue raised. This is true

because of the absolutely unconscionable result reached by

the application of the law made by DISTRICT COURT in

the case at Bar, to wit: in a case involving the wrongful death

of an 11-year-old child to deprive the surviving parents of

any claim for loss of comfort and society and/or mental

anguish and permit them to recover only medical and

funeral expenses.

SUMMARY OF ARGUMENT

In her Question A argument LIPWORTH contends:

1. This is a garden variety product liability/

negligence/strict liability/wrongful deatn action which is

controlled by Florida law. It has nothing at all to do with

traditional maritime activity. It is not in any way based upon

a claim of unseaworthiness or negligent operation of a vessel.

This is not a Jones Act or Lengshoreman and Harbor

Workers’ Act case.°

2. MORAGNE v. STATE MARINE LINES, INC., 399

U.S. 375, 90 S.Ct. 1772, 26 L.Ed. 2d 339 (1970) did not create

a general admiralty/maritime law wrongful death remedy

which preempts or displaces Florida wrongful death product

liability and negligence law in this factual context. This is

not a case governed by federal admiralty/maritime

jurisdiction. LIPWORTH’S remedy is that which she seeks,

to wit—a product liability/negligence/strict _ liability/

wrongful death action governed by Florida law.

3. In any event this case is not governed by federal

MORAGD'£ admiralty/maritime law because the involved

jet ski is not a “vessel” as contemplated by federal

admiralty/maritime law in this factual context.

4. Assuming arguendo that the subject jet ski is a

“vessel” as contemplated by federal MORAGNE

admiralty/maritime law—this case is still not governed by

federal admiralty/maritime law because the causes of action

asserted by LIPWORTH do not bear a substantial

relationship to traditional admiralty/maritime activity. The

causes of action asserted here are Florida negligence and

strict liability wrongful death causes of action against the

These acts are akin to workers’ compensation legislation with the

quid pro quo of recovery being limitation of the emount of recovery.

designer and distributors of the jet ski. Therefore,

LIPWORTH’S remedy is that which she seeks, to wit—a

product liability/negligence/strict liability/wrongful death

action governed by Florida law.

5. Assuming arguendo that federal admiralty/

maritime law does control here, LIPWORTH’S state law

remedies co-exist on facts such as those involved here with

her federal admiralty/maritime law remedies. This

conclusion is demanded by the “saving to suitors clause” of

the Federal Judicial Act, and controlling federal case law.

Florida law does not conflict with federal admiralty/

maritime law in this context. Indeed, Florida law should, in

this context, be held to supplement federal admiralty/

maritime law.

Under her Question B argument LIPWORTH contends:

1. For the reasons stated under this heading, supra, in

numbered paragraph 5, LIPWORTH’S state law remedies

co-exist on facts such as those involved here with her federal

admiralty/maritime law remedies.

2. Assuming arguendo that her state law remedies do

not co-exist with her federal admiralty/maritime law

remedies, she is, at the very least, allowed to claim the

federal admiralty/maritime law remedy of loss of comfort

and society on behalf of Mr. and Mrs. Lipworth,

DECEDENT?’S surviving parents.

QUESTION A ARGUMENT

FLORIDA WRONGFUL DEATH OF A MINOR

PRODUCT LIABILITY—NEGLIGENCE AND

STRICT LIABILITY—CAUSES OF ACTION

AGAINST THE SELLERS AND MANUFAC-

TURERS OF A JET SKI AND ITS COMPO-

NENT PARTS ARE NOT PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW

WHERE THE JET SKI STRUCK A DOCK PRO-

JECTING OUT INTO THE INTERCOASTAL

WATERWAY WHICH ADMITTEDLY CONSTI-

TUTES NAVIGABLE WATERS OF THE UNIT-

ED STATES.

PREFACE

There are two bright lines of admiralty/maritime

authority involved here which should not be mixed and

matched® They will be referred to herein as the

“SURVIVOR BENEFIT LINE” and “SHIPOWNER

PROTECTIVE LINE.”

The SURVIVOR BENEFIT LINE of cases are designed

to provide causes of action where none previously existed or

existing causes were severely strictured for survivors of

decedents who died within state boundaries. The whole idea

behind these cases is to benefit claimants. These are the

cases which should be applied to answer the questions

presented in the case at Bar.

‘All emphasis appearing in this brief is supplied by counsel unless

otherwise noted.

The SHIPOWNER PROTECTIVE LINE of cases are

designed to protect owners of vessels dealing in traditional

maritime activity. These cases are inapposite here.

FLORIDA PRODUCT LIABILITY AND

NEGLIGENCE LAW NOT PREEMPTED

BY MORAGNE.

MORAGNE v. STATE MARINE LINES, INC., 399

U.S. 375, 90 S.Ct. 1772, 26 L. Ed. 2d 339 (1970) is the

SURVIVOR BENEFIT LINE seminal case. MORAGNE

was an action commenced in a Florida state court. The

plaintiff alleged both negligence and unseaworthiness and

sought to recover damages from a ship owner for the death

of her husband which occurred while he was working as a

longshoreman aboard a vessel on navigable waters within the

boundaries of the State of Florida. The case was ultimately

removed to the federal court system and the Federal District

court dismissed the unseaworthiness claims on grounds that

there was no federal cause of action for death in

unseaworthiness cases. Upon certification from the United

States Court of Appeals for the Fifth Circuit, the Supreme

Court of Florida held similarly that the Florida wrongful

death statute did not allow a cause of action for death

predicated on unseaworthiness. The federal appellate court

then affirmed the District Court’s order and rejected

plaintiffs contention that she was entitled to relief under

federal maritime law. Thus, the survivor claimant was left

without a remedy! On certiorari this Court reversed the

decision of the Circuit Court of Appeals. This Court held

that an action did lie under general admiralty/maritime law

for death caused by violation of admiralty/maritime duties

so as to permit the plaintiff to assert wrongful death claims

based on unseaworthiness. Indeed this Court created a

remedy! A careful reading of the MORAGNE decision

indicates that this Court desired to benefit potential

claimants rather than leave them without a remedy. The

decision was not ever intended to stricture the state rights

of potential, wrongful death claimants or to leave them

without a remedy.

Although not directly in point here, this Court’s

decision in OFFSHORE LOGISTICS, INC. v.

TALLENTIRE, 47 U.S. 207, 106 S.Ct. 2485, 91 L.Ed. 2d 174

(1986), is highly instructive and persuasive. TALLENTIRE

was an action by the survivors of two men who worked on a

drilling platform in the Gulf of Mexico off the coast of

Louisiana. They were killed when the helicopter

transporting them from the platform to the Louisiana shore

crashed about 35 miles off the coast. The wives of the

deceased workers filed wrongful death actions in the United

States District court for the Eastern District of Louisiana.

The District Court held that since the accident occurred

more than one marine league (3 miles from shore), the Death

on the High Seas Act (“DOHSA”) applied and the borrowing

provision of OCSLA [the United States Outer Continental

Shelf Act] which would adopt the law of the adjacent state,

Louisiana, as surrogate federal law, did not apply to the case.

Clearly implicit in the TALLENTIRE decision is the

conclusion that had the involved accident occurred within

one marine league off the coast of Louisiana, the OCSLA

borrowing provisions would have been applicable, Louisiana

law would have applied. The survivors would have been

entitled to damages for non-pecuniary /osses, including

mental anguish. Indeed, the savings to suitors provision of

the United States Constitution would require such a result.

In TALLENTIRE, this Court, inter alia, stated:

* . +

“{lc, 5) As explained above, DOHSA is intended

to provide a maritime remedy for deaths stemming

iil

from wrongful acts or omissions ‘occurring in the

high seas.’ 46 U.S.C. Section 761 [46 U.S.C.A.

Section 761]. OCSLA, by contrast, provides an

essentially non-maritime remedy and controls only

on ‘the subsoil and seabed of the Outer Continental

Shelf, and artificial islands and fixed structures’

erected thereon. 43 U.S.C. Section 1333(aX1XA) [43

U.S.C.S. Section 1333(aX2)A)]. By its terms,

OCSLA must be ‘construed in such a manner that

the character of the waters above the Outer

Continental Shelf as high seas . . . shall not be

affected.’ Section 1331(2). Within the area covered

by OCSLA, federal law controls but the law of the

adjacent state if adopted as surrogate federal law to

the extent that it is not inconsistent with applicable

federal laws or regulations. Section 1333(aX2)A).

“The intent behind OCSLA was to treat the

artificial structures covered by the Act as upland

islands or as federal enclaves within a landlocked

state, and not as vessels, for purposes of defining

the applicable law because maritime law was

deemed inapposite to these fixed structures. See

Rodrigue v. Aetna Casualty & Surety Co., 395 U.S.

352, 361-366, 23 L.Ed. 2d 360, 89 S.Ct. 1835 (1969).

This Court endorsed the congressional assumption

that admiralty law generally would not apply to the

lands and structures covered by OCSLA in

Rodrigue, noting that accidents on the artificial

islands covered by OCSLA ‘had no more

connection with the ordinary stuff of admiralty

than do accidents on piers.’ Id. at 360, 23 L.Ed. 2d

360, 89 S.Ct. 1835. See also Herb’s Welding, Inc. v.

Gray, 470 U.S. 414, 422, 84 L.Ed. 2d 406, 105 S.Ct.

1421 (1985). Thus, in Rodrigue, the Court held that

an admiralty action under DOHSA does not apply

to accidents ‘actually occurring’ on these artificial

islands, and that DOHSA therefore does not

preclude the application of state law as adopted

federal law through OCSLA to wrongful death

actions arising from accidents.”

* * *

In FORD v. WOOTEN, 681 F. 2d 712 (11 Cir. 1982),

cert. den., 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed. 2d 433

(1983), the United States Court of Appeals for the 11th

Circuit correctly pointed out that this Court in MORAGNE

concluded by specifically holding:

- * *x

“We accordingly overrule The Harrisburg, and

hold that an action does lie under general maritime ,

law for death caused by violation of maritime

duties. The judgment of the court of appeals is

reversed, and the case is remanded to that court for

further proceedings consistent with this opinion.”

(MORAGNE at 26 L. Ed. 2d 361)

* + 7

In FORD the 11th Circuit Court of Appeals stated:

= * *

“Even if we assume that the District Court did

conclude as a matter of law that general maritime

law permits a recovery for wrongful death only on

the basis of unseaworthiness, we do not believe that

conclusion to be erroneous. Moragne .. . first

established a cause of action under general

maritime law for wrongful death due to a breach of

maritime duties. In that case, plaintiff had made

claims under both negligence and unseaworthiness

theories but the trial court dismissed the

unseaworthiness claim. Thus the Supreme Court’s

opinion which mentioned unseaworthiness but

never expressly discussed negligence, pertained

only to an wunseaworthiness claim. Moreover

subsequent Supreme Court cases have indicated

that Moragne applied the wrongful death remedy

only where death resulted from unseaworthiness.

See e.g., Sea-Land Services, Inc. v. Gaudet, 414

U.S. 573, 574, 94 S.Ct. 806, 809, 89 L. Ed. 2d 9

(1974).”

In the case at Bar LIPWORTH does not and could not

assert an “unseaworthiness” claim. It must be emphasized

that under federal admiralty/maritime law the word

“unseaworthiness” is one of art referring to actions

prosecuted under the Longshoreman’s Act and Jones Act.

Accord—IVY v. SECURITY BARGE LINES, INC., 606 F.

2d 524 (5 Cir. 1979) (en banc), cert. den., 446 U.S. 956, 100

S.Ct. 2927, 64 L.Ed. 2d 815 (1980), NELSON v. UNITED

STATES, 639 F. 2d 469 (9 Cir. 1980); see also MOBIL OIL

CORP. v. HIGGENBOTHAM, 436 U.S. 618, 98 S.Ct. 2010,

56 L.Ed. 2d 581 (1978).

It is thus seen that the MORAGNE doctrine was

designed to benefit, not punish, potential claimants. It

certainly cannot form the predicate to support the rulings

made by the trial court and DISTRICT COURT in this case.

LIPWORTH’S cause of action should be governed by

Florida law. Florida law permits the recovery of the damages

demanded by LIPWORTH in her third amended complaint.

DISTRICT COURT here—following the lead of some

Florida and federal courts—mixed and matched the two

bright lines of authority and came up with an outrageous

result completely out of sync with this Court’s thought and

intention.

A JET SKI IS NOT A “VESSEL” IN

CONTEMPLATION OF EXCLUSIVE

APPLICATION OF FEDERAL

ADMIRALTY/MARITIME LAW TO THE

CASE AT BAR.

The subject jet ski is a form of water-going sled,

intended to be operated by a single person while in a

standing position by means of a handlebar-like mechanism

which controls the direction of travel as well as the

acceleration in speed of the machine. Propulsion of the

machine is attained by a water jet propulsion pump powered

by a gasoline powered inboard engine. Admittedly, the

Eleventh Circuit Court of Appeals has held that a jet ski is a

“vessel” for purposes of resolving Federal Admiralty

Limitation of Liability questions. See IN THE MATTER

OF COMPLAINT OF KEYS JET SKI, INC., 893 F. 2d 1225

(11 Cir. 1990). However, that holding—dquestionable though

it is even in that context—would not apply or be persuasive

here. Jt is a SHIPOWNER PROTECTIVE LINE case. It

would apply to the owners of the jet ski. It would not apply

to KAWASAKI. Indeed, the KEYS JET SKI decision is a

clear example of the mixing and matching referred to herein,

supra.

NO SUBSTANTIAL RELATIONSHIP BETWEEN

CASE AT BAR AND TRADITIONAL MARITIME

ACTIVITY IN ANY EVENT.

The following principles and cases are deserving of

consideration at this juncture:

1. The original traditional test for the conferral of

admiralty/maritime jurisdiction in a tort case was the

“locality” rule. Simply stated, under that Rule, if a tort of

any kind, however occurring, whether on board a vessel or

not, if upon the high seas or navigable waters was cognizable

in admiralty/maritime jurisdiction. Under that rule for years

this Court extended admiralty jurisdiction to cases involving

any connection with navigable waters.

2. The rule was criticized to the extreme by the lower

federal courts and admiralty scholars as being far too harsh

and oppressive to tort and wrongful death claimants.

3. In the face of this criticism this Court adopted a

maritime nexus requirement for the invocation of admiralty

jurisdiction in tort cases. This to benefit potential claimants

who did not want to be—or should not have been forced to

be—subjected to federal admiralty/maritime jurisdiction.

This Court held that in order to invoke admiralty

jurisdiction the new test was vessel plus locality plus

“traditional maritime activity.” EXECUTIVE JET

AVIATION, INC. v. CITY OF CLEVELAND, 409 U.S. 249,

34 L.Ed. 454, 93 S.Ct. 493 (1972). In EXECUTIVE JET this

Court refused to extend admiralty/maritime jurisdiction to a

claim arising from a plane crash in Lake Erie. The Court

declared:

“We conclude that the mere fact that the alleged

wrong ‘occurs’ or ‘is located’ on or over navigable

waters ... is not of itself sufficient to turn an

airplane negligence case into a ‘maritime tort.’ It is

far more consistent with the history and purpose

of admiralty to require also that the wrong bear a

significant relationship to traditional maritime

activity.”

Although the EXECUTIVE JET holding was designed to

govern an aircrash case, this Court’s inclusion of a

traditional maritime activity nexus requirement in its

opinion led a number of courts to adopt this test as the

general standard for determining the existence, vel non, of

admiralty/maritime jurisdiction.

4. In 1982 this Court squarely addressed the issue of

whether pleasure boat accidents met the vessel plus locality

plus traditional maritime activity requirement. See

FOREMOST INSURANCE CO. v. RICHARDSON, 457

U.S. 688, 102 S.Ct. 2654, 73 L.Ed. 2d 300 (1982), a distinctly

SURVIVOR BENEFIT LINE case. In FOREMOST—

which involved a collision between two pleasure boats—this

Court held that having passed the trifold test, admiralty

jurisdiction would apply to pleasure boat accidents.

However, this Court, in footnote 5, tempered its holding by

stating:

“Not every accident in navigable waters that

might disrupt maritime commerce will support

federal admiralty jurisdiction. . . . However, when

this kind of potential hazard to maritime commerce

arises out of activity that bears a substantial

relationship to traditional maritime activity, as

does the navigation of boats in this case, admiralty

jurisdiction is appropriate.”

* + *

5. In SOUTHER v. THOMPSON, 754 F. 2d 151 (4 Cir.

1985), the Circuit Court refused to extend admiralty

jurisdiction to a suit brought by an injured water skier

predicated upon the plaintiff's failure to make any factual

allegation that the operator of the boat had violated a

navigational rule. Again, in HOGAN v. OVERMAN, 767 F.

2d 1093 (4 Cir.1985), the Circuit Court relied upon the

navigational error allegation test to determine existence, vel

non, of admiralty/maritime jurisdiction.

Here, assuming arguendo that the jet ski was a “vessel”

as contemplated by federal admiralty law, this case is still

not governed by federal admiralty law because the causes of

action asserted by LIPWORTH do not bear a substantial

relationship to traditional maritime activity specifically

including the navigation of a “vessel.” The causes of action

asserted here are state wrongful death negligence and strict

liability causes of action against the designer, manufacturer

and distributors of the jet ski. LIPWORTH does not allege

that negligent navigation was the cause of injury. There

simply is no relationship between this incident and action

and traditional maritime activity. Therefore,

LIPWORTH’S cause of action should be governed by

Florida law. Florida law permits the recovery of the damages

demanded by LIPWORTH in her third amended complaint.

THE SAVING TO SUITORS CLAUSE—

LIPWORTH’S STATE COURT RIGHTS

CO-EXIST WITH HER

ADMIRALTY/MARITIME LAW RIGHTS.

The existence of federal admiralty/maritime

jurisdiction is predicated primarily upon the provisions of

Title 28, U.S. Code Section 1333, which, in pertinent part,

provides:

“Section 1333. Admiralty, maritime and prize

cases

“The district courts shall have original

jurisdiction, exclusive of the courts of the States, of:

“(1) Any civil case of admiralty or maritime

jurisdiction, saving to suitors in all cases all other

remedies to which they are otherwise entitled.”

* * *

It must be emphasized that the following

established federal admiralty/maritime law principles:

1. General principles of negligence control the

analysis of an admiralty/maritime tort case.

2. Even though admiralty/maritime actions are

governed by federal substantive law, courts

applying admiralty/maritime law, including federal

or state courts, may adopt state law by express or

implied reference where state law does not conflict

with federal law, or by virtue of the interstitial

nature of federal law.

3. State law may supplement admiralty/

maritime law where admiralty/maritime law is

silent on a given subject or, under certain

circumstances, where a local maiter is at issue.

See for example—OFFSHORE LOGISTICS, INC.

TALLENTIRE, supra; COASTAL IRON WORKS, INC. v.

PETTY RAY GEOPHYSICAL, 783 F. 2d 577 (5 Cir. 1986);

CASACELI v. MARTECH INTERN., INC., 774 F.2d 1322

are

(5 Cir. 1985); SULLIVAN v. ROWEN COMPANIES, INC.,

* 736 F. Supp. 722 (E.D. La. 1990); and numerous authorities

cited therein.

In OFFSHORE LOGISTICS, INC. v. TALLENTIRE,

supra, this Court stated that “states could modify” or

“supplement” the federal maritime/admiralty law by

providing a wrongful death remedy enforceable in admiralty

for accidents in territorial waters. Accord WESTERN FUEL

CO. v. GARCIA, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210

(1921); and MADRUGA v. SUPERIOR COURT, 346 USS.

556, 74 S.Ct. 298, 98 L.Ed. 290 (1954).

In sum, if the “savings to suitors’ clause means

anything at all, this Court must quash the decision sought to

be reviewed and write an opinion upholding LIPWORTH’S

right to assert her state court wrongful death, product

liability and negligence claims here and to seek the state

court wrongful death damages sought here.

QUESTION B ARGUMENT

ASSUMING ARGUENDO SAID FLORIDA

CAUSES OF ACTION ARE PREEMPTED BY

FEDERAL ADMIRALTY/MARITIME LAW,

THE SURVIVING PARENTS OF THE DECE-

DENT HAVE AN ADMIRALTY/MARITIME

CLAIM FOR LOSS OF COMFORT AND SOCIE-

TY EVEN THOUGH NOT DEPENDENT UPON

DECEDENT FOR SUPPORT.

This argument is made assuming arguendo this Court

should reject LIPWORTH’S Point I argument and, in

particular, the argument that her state law and

admiralty/maritime law remedies co-exist.

It must be emphasized that the case at Bar is a state

court product liability/negligence/wrongful death action

against the manufacturer of the jet ski. LIPWORTH does

not seek any form of federal remedy. This is not an action

for death on the high seas. This is not an action by a seaman

under any federal statute. This is not an action by a

longshoreman under any federal statute. This is not an

action against the owner or operator of a vessel engaged in

traditional maritime activity.

Actions not involving seamen arising on territorial

waters of a state were traditionally governed by the state’s

wrongful death statute until this Court judicially created a

“general maritime” remedy in MORAGNE. However, the

parameters of the general maritime cause of action and the

damages which might be awarded were not defined by this

Court in MORAGNE. Rather, the Court held that the exact

parameters of this new cause of action “could be defined

only after further litigation.” The question of whether or not

the federal admiralty/maritime damage item of loss of

comfort and society is available in a case such as this is

unsettled. It must again be emphasized that. MORAGNE

was intended to benefit claimants and broaden the scope of

remedies available to them under federal admiralty/

maritime law and not to deprive them of remedies.

In PALMER v. RIBAX, 407 F. Supp. 974 (M.D. Fla.

1976) the court held that the parents of a child killed in the

territorial waters of Florida had a cause of action which

would include the damage item of loss of society under

general maritime law. The court recognized that the

MORAGNE general maritime remedy was designed to

afford remedies to injured claimants comparable to those

available under state law. Noting that Florida’s wrongful

death act allowed financially non-dependent parents to

recover for mental pain and suffering caused by the wrongful

death of a child, the court found that the general maritime

remedy available to them under federal law ought to include

loss of comfort and society.

In THOMPSON v. OFFSHORE CoO., 440 F. Supp. 752

(S.D. Tex. 1977), the court awarded a non-dependent child

damages for the loss of her father’s comfort and society even

though the child was married, did not live with the decedent

at the time of death and was not financially dependent on

her father. The Texas court flatly rejected the idea that in

cases such as this, such damages would not be available,

inter alia, stating:

“Dependents ... contend that financial

dependency should be a prerequisite to recovery

under the general maritime law for a non-pecuniary

loss of society. Decisions in this circuit subsequent

to Moragne and Gaudet have rejected such a

restrictive application of the general maritime

remedy and have recognized the standing of

children, spouses and parents of a decedent to

recover for a loss of society. See Skidmore v.

Grueninger, 506 F. 2d 716, 729 n. 11 (5th cir. 1975)

(adult daughter) decision on remand,

(Memorandum Opinion on Remand, C.A. No. 70-

1015, Section D) (E.D. La., December 10, 1875);

Herbert v. Otto Candies, Inc., 402 F. Supp. 503, 507

(E.D. La. 1975) (spouse and children}; Hamilton v.

Canal Barge Co., 395 F. Supp.975, 985 (E.D. La.

1975) (parents); cf. The Complaint of Cambria

Steamship Co., 505 F. 2d 517, 524-25 (6th Cir.

1974), cert. denied, 420 U.s. 975, 95 S.Ct.1399, 43

L.Ed. 2d 6555 (1975). These courts properly have

looked to the Jones Act, DOHSA and state

wrongful death acts for guidance in defining those

survivors who may invoke the general maritime law.

Moreover, because a loss of society is not a financial

loss, it would be inappropriate to conclusively

presume that only those family members financially

dependent on the.decedent have suffered such loss.

Accordingly, a financial dependency need not be

shown by these immediate family members in order

to recover for loss of society under the general

maritime law.”

The THOMPSON court recognized that loss of society

damages are not recoverable under the Jones Act or DOHSA

for either dependents or non-dependents because it

represents a non-pecuniary loss, but held this damage item

recoverable under general maritime law. The federal

statutory causes of action afforded seamen and

longshoremen under DOHSA and the Jones Act were

enacted to provide special solicitude for the welfare of those

men who undertake upon hazardous and non-predictable sea

voyages. These statutory causes of action were designed to

create a cause of action where one was previously not

available. They were not designed to deprive litigants of

actions which were traditionally available in the courts of

the states. See again OFFSHORE LOGISTICS, INC. v.

TALLENTIRE, supra; see also McDONALD v. FEDERAL

BARGE LINES, 496 F. 2d 1376 (5th Cir. 1974). The court in

THOMPSON listed the criteria to be considered in

determining those who are entitled to recovery for loss of

society under general maritime law. They are:

1. The relationship of husband and wife, or of parents

and child;

2. Continuous living together of parties at or prior to

time of wrongful death;

3. Absence of deceased or beneficiary for extended

period of time;

4. Harmonious marital or family relationships;

5. Common interest in hobbies, scholarship, or,

religion or social activities;

6. Participation of deceased in family activities;

7. Disposition and habit of deceased to tender aid,

solace and comfort when required; and

8. Ability and habit of deceased to render advice and

assistance of financial matters, business activities and the

like.

In sum then, for the reasons stated herein, supra:

1. LIPWORTHY’S state law remedies co-exist on facts

such as those involved here with her federal admiralty/

maritime law remedies. She is entitled, therefore, to Florida

wrongful death damages including mental anguish damages.

2. Assuming arguendo that this Court should hold her

state law remedies are preempted by and do not co-exist

with her federal admiralty/maritime law remedies, she is, at

the very least, entitled to claim the federal admiralty/

maritime law remedy of loss of comfort and society on behalf

of herself and her husband, individually, as DECEDENT’S

surviving parents.

CONCLUSION

It is respectfully submitted that for the reasons stated

herein, this Court should take jurisdiction of the within

cause and quash the decision rendered by DISTRICT

COURT and remand the cause with directions to

DISTRICT COURT to reinstate LIPWORTH’S Florida

causes of action for product liability—strict liability and

negligence—wrongful death damages against KAWASAKI

and allow her to amend to _ seek the federal

admiralty/maritime law damage items of lost comfort and

society as well. At the very least, the DISTRICT COURT

opinion must be quashed and the cause remanded with

directions to permit LIPWORTH to claim loss of comfort

and society as general admiralty/maritime damages items.

Respectfully submitted,

PERSE, P.A. & GINSBERG, P.A.

and

RATINER & GLINN, P.A.

410 Concord Building

Miami, Florida 33130

(305) 358-0427

Attorneys for Petitioner

By: /s/ EDWARD A. PERSE

Edward A. Perse

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that a true copy of the

foregoing Petition was mailed to the following counsel of

record this 17th day of September, 1992.

RICHARD MUELLER, ESQ.

2900 One Mercantile Center

St. Louis, Missouri 63101

RONALD E. D’ANNA, ESQ.

5355 Town Center Road #901

Boca Raton, Florida 33432

JOHN C. SEIPP, ESQ.

One S.E. Third Avenue #2400

Miami, Florida 33131

/s/ EDWARD A. PERSE

Edward A. Perse

Appendix

INDEX TO APPENDIX

Page

The opinion/decision sought to be reviewed —

LIPWORTH v. KAWASAKI MOTORS CORP.

U.S.A. et al, rendered January 8, 1992............. A. 1

The final Judgment rendered November 5, 1990..... A. 11

The order regarding plaintiffs amendment to third

OENANENE COMMING «0 <5 6 ok ccs 0sasactenuasceneene A. 13

Order of Florida Supreme Court Denying Direct

Comifiet COmticeeet s ..cs ivescsccctcetssacenenresenee A. 15

aia

MARGARET LIPWORTH, as Personal

Representative of the Estate of Lori Lipworth, a

Deceased Minor, on Behalf of the Estate and the

Survivors of the Decedent, to Wit: Margaret

Lipworth, Natural Mother, and Stephen F.

Lipworth, Natural Father, Appellants,

7 >

KAWASAKI MOTORS CORP. U.S.A, a foreign

corporation, Palm Beach Kawasaki, Inc, a

Florida corporation, and Kawasaki Heavy

Industries, Ltd. a foreign corporation, Appellees.

No. 90-3473.

District Court of Appeal of Flonda,

Fourth District.

Jan. 8, 1992.

Motion to Certify Question Denied

Rehearing En Banc Denied

Feb. 20, 1992.

Surviving parents of deceased 11-year-old girl, and the

surviving mother, as personal representative of her

daughter’s estate, filed products liability suit against jet ski

manufacturer and other defendants seeking to recover

damages arising from the death of their daughter. The

Circuit Court, Palm Beach County, Richard B. Burk, J.,

entered judgment in favor of the defendants, and the

plaintiffs appealed. The District Court of Appeal held that:

(1) federal maritime law governed products liability suit

against manufacturer of jet ski and other defendants to

recover damages for fatal injury to decedent, who collided

with dock while operating jet ski in intercoastal waterway,

and (2) nondependent parents of decedent could not recover

under general maritime law for loss of society.

Affirmed.

1. Admiralty —1.20(6)

Federal maritime law governed products liability suit

against manufacturer of jet ski and other defendants to

recover damages for fatal injury to decedent, who collided

with dock while operating jet ski in intercoastal waterway. 28

U.S.C.A. § 1333.

2. Death —88

Nondependent parents of decedent, who was killed

when she collided with dock while operating jet ski in

intercoastal waterway, could not recover under general

maritime law for loss of society.

Edward A. Perse, Perse, P.A. & Ginsberg, P.A., and

Ratiner & Glinn, P.A., Miami, for appellants.

Richard A. Mueller, Coburn, Croft & Putzell, St. Louis,

Mo., and Ronald E. D’Anna, Mattlin & McClosky, Boca

Raton, for appellee Kawasaki Heavy Industries, Ltd.

James E. Tribble and Angela C. Flowers, Blackwell &

Walker, P.A., Miami, for appellees Kawasaki Motors Corp.,

U.S.A., and Palm Beach Kawasaki, Inc.

PER CURIAM.

The surviving parents of their deceased eleven year old

daughter, Lori, and the surviving mother, as personal

representative of her late daughter’s estate, appeal a final

judgment rendered by the trial court against them and in

favor of the defendants. We affirm.

Appellants filed a products liability suit against Palm

Beach Kawasaki, Inc. for strict liability and against

Kawasaki Motors Corporation and Kawasaki Heavy

Industries, Ltd. for negligence and strict liability in the

design, manufacture and sale of its JS 550A1 Jet Ski. On

A. 2

September 2, 1984, Lori collided with a dock while operating

the jet ski in the intercoastal waterway and died on impact.

The third amended complaint sought damages in excess of

one million dollars for medical and funeral expenses for Loni,

for lost support and services for her parents, and for pain

and suffering for her parents.

After discovery, appellees filed two motions for partial

summary judgment on the issue of damages, stating that

federal maritime law controlled the case and under such law

appellants were entitled to only medical and funeral

expenses actually expended by them as a result of Lori’s

death.

The trial court entered summary judgment, holding the

case governed by federal maritime law and damages limited

to medical and funeral expenses actually expended.

Appellants moved the trial court to amend their third

amended complaint to seek damages only for loss of society,

which the trial court granted. The amendment was the result

of appellants’ not wishing to proceed to trial to determine

liability because they would recover no damages for funeral

expenses, such claim being subject to a setoff received in

settlement from another defendant. The amendment of the

ad damnum clause of the complaint enabled the trial court

to enter an appealable final judgment which it did, resulting

in the present appeal.

[1] Appellants first attempt to take the instant case

out of federal maritime jurisdiction on several grounds, none

of which we find to be meritorious, notwithstanding the

tragedy and its judicial consequences. The statutory basis

for federal admiralty jurisdiction is 28 U.S.C.A. § 1333 which

provides in relevant part:

The district courts shall have original jurisdiction,

exclusive of the States, of:

A. 3

(1) Any civil case of admiralty or maritime

jurisdiction, saving to suitors in cases all other

remedies to which they are otherwise entitled.

The courts have attempted to determine what admiralty or

maritime jurisdiction means. The traditional or original test

for the conferral of admiralty jurisdiction in a tort case was

the locality of the wrong. A wrong was actionable in

admiralty if it occurred on navigable waters. The Supreme

Court has refined the test and added more prongs. In

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.

249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court

held that admiralty jurisdiction did not extend to an

airplane crash into navigable waters where the plane flew

predominantly over land. Thus, the Court concluded that

location on or over navigable waters was not of itself

sufficient to turn an airplane negligence case into a maritime

tort. The Court found it far more consistent with the history

and purpose of admiralty to require also that the wrong bear

a significant relationship to traditional maritime activity.

Nexus and locality were necessary for admiralty jurisdiction

to lie.

In Foremost Insurance Co. v. Richardson, 457 U.S. 668,

102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), the Court held the

collision of two pleasure boats cognizable in admiralty

because it implicated the traditional maritime concern of

navigation and could possibly disrupt maritime activity.

Hence, a maritime activity need not bear a substantial

relationship to a commercial activity so long as it had a

potential impact om maritime commerce.

In Sisson v. Ruby, __. U.S. ___,, 110 S.Ct. 2892, 111

L.Ed.2d 292 (1990), the Court reviewed its holdings in

Executive Jet and Foremost and found admiralty

jurisdiction in an action involving a fire on a noncommercial

vessel at a marina on a navigable waterway. The yacht owner

sought to limit his liability for the fire which caused

extensive damage to the marina and several neighboring

A. 4

boats. The Supreme Court reasoned that the jurisdictional

inquiry did not turn on the actual effects on maritime

commerce of the fire on the pleasure vessel but on the

general features of the type of incident involved to

determine whether such an incident is likely to disrupt

commercial activity. Storage and maintenance of a vessel

was considered a traditional maritime activity and the fire

had a significant relationship to traditional maritime

activity.

The Court declined to refine any further the test

developed in Executive Jet and Foremost, finding the

trilogy it had decided provided appropriate and sufficient

guidance to the federal courts. Therefore, the relevant

inquiry in the instant case involves three prongs: (1) locality,

which is not an issue here as the collision occurred in the

intercoastal waterway, navigable waters, (2) nexus, that the

wrong bear a significant relationship to traditional maritime

activity, and (3) potential impact of the type of incident on

commercial maritime activity.

The issue of whether a jet ski is a vessel is a necessary

preliminary step in an analysis of the facts of the instant

case under the second prong. The Eleventh Circuit answered

this question affirmatively in Keys Jet Ski, Inc. v. Kays, 893

F.2d 1225 (11th Cir. 1990). The Eleventh Circuit noted the

definition of “vessel” as “every description of watercraft or

artificial contrivance used, or capable of being used, as a

means of transportation on water.” 1 U.S.C.A. § 3. It found

no reasonable distinction between small motor boats capable

of being used as a means of transportation on water and a jet

ski, which is also capable of substantially equivalent

transportation on water. Kays, 893 F.2d at 1230. Thus, the

instant case involves a vessel.

Once it is determined that a jet ski is a vessel, it seems

inevitable to us that the wrong involved in the instant case,

the collision of a vessel with a dock, is related to traditional

maritime activity. Operating a vessel is a_ traditional

A. 5

maritime activity. Appellants would like this court to find no

relationship between the incident in the instant case and

traditional maritime activity, stating that they did not allege

negligent navigation as the cause of the injury. However,

Foremost, to which appellants cite, does not require such an

allegation, but merely held that where navigation of pleasure

boats was involved and an accident with the potential to

disrupt maritime commerce occurred in navigable waters,

admiralty jurisdiction was appropriate. The relevant activity

is navigation of vessels generally and hence the nexus prong

is met.

Turning from nexus to potential impact upon

commercial maritime activity, it is important to remember

that it is not the actual effects of the incident that must be

assessed, but the general features of the type of incident

involved, to determine whether such activity is likely to

disrupt commercial activity. In Foremost, the court found

the collision of two small pleasure boats was potentially

disruptive even though the collision there occurred in an

area seldom, if ever, used for commercial traffic. Thus, the

potential for disruption of commercial maritime activity

exists under the facts of the instant case, even if the area

where Lori crashed into the dock is seldom used by

commercial boats. The third prong is met.

The trial court in the instant case applied maritime law

to the exclusion of Florida’s wrongful death statute. Because

the instant case is an admiralty case, as discussed above,

federal maritime law governs. Moragne v. State Marine

Lines, Inc., 398 U.S. 375, 378 n. 1, 980 S.Ct. 1772, 1776 n. 1,

26 L.Ed.2d 339, 344 n. 1 (1970); Ritchey v. Florida Power &

Light, 468 So.2d 306, 307 (Fla.2d DCA 1985).

We have considered appellants’ other arguments and

reject them without discussion.

A. 6

[2] For their second point on appeal, appellants

contend that, assuming arguendo that maritime law applies

to the instant case, they have a damages claim for loss of

society and the trial court erred in granting summary

judgment for appellees on this count based on their lack of

financial dependence on the decedent. The most recent

Florida decision on point holds that parents may not recover

under general maritime law for the death of a child absent a

showing of financial dependence on the child. Perlman v.

Valdes, 575 So.2d 216 (Fla.3d DCA 1990). We agree.

In Perlman a woman died when the speed boat in which

she and her husband were riding struck an unlighted,

unused concrete pier. Her parents joined in the husband’s

and estate’s wrongful death action against the owner of the

pier. The third district found that the trial court had

properly granted summary judgment in the owner’s favor on

the parents’ claim as the parents could not recover under

general maritime law absent a showing of financial

dependence. Jd. at 218. The court cited Miles v. Apex

Marine Corp., U.S. —_,, 111 S.Ct. 317, 112 L.Ed.2d

275 (1990) (non-dependent parent could not recover for loss

of society of dead seaman under general maritime law

wrongful death action). The third district denied parents of

a nonseaman recovery denied parents of a seaman.

In Texaco Refining & Marketing, Inc. v. Estate of Dau

Van Tran, 808 S.W.2d 61 (Tex.), cert. denied, US.

, 112 S.Ct. 301, 116 L.Ed2d 245 (1991), a good

samaritan stopped to help the elderly captain of a shrimp

boat free his propeller. He was crushed against the dock

when a wave washed ashore. Citing Miles, 111 S.Ct. at 326,

the Texas Supreme Court held that loss of society is not

recoverable under general maritime law. Thus, as did the

A.7

Florida Third District Court of Appeal, Texas applied the

Miles holding to nonséamen.'

In Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455 (5th

Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct. 1205, 89

L.Ed.2d 318 (1986), the Fifth Circuit reversed the district

court’s judgment awarding nondependent parents of crew

‘The problem with denying recovery for loss of society to parents in

analogous situations to appellants in the instant case was noted in Palmer

v. Ribax, Inc., 407 F.Supp. 974 (M.D.Fla. 1976). The court noted that if

parents were denied standing as beneficiaries of the maritime claim, at

least for purposes of recovering for loss of society, an irony would exist. Jd.

at 979. On the one hand, the parents’ claim under state law is effectively

destroyed and on the other hand, the parents are accorded no comparable

maritime remedy. Thus, the nondependent parents in Palmer were

entitled to bring a wrongful death action to recover for loss of society

actually caused by the death of their eighteen year old child who fell off

the deck rail of a party boat and drowned in a navigable lake in Central

Florida.

Palmer seems an anomaly in the line of Moragne type cases because

the movement has been toward uniformity of nonrecovery. See Miles, 111

S.Ct. at 326 (restoring uniform rule applicable to all actions for the

wrongful death of a seaman, whether under Death on the High Seas Act,

the Jones Act, or general maritime law by eliminating loss of society

damages). Other courts have found Palmer to be a misinterpretation of

Sea-Lan Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9

(1974) (allowing widow’s claim for loss of society of longshoreman killed

on state territorial waters superseded by statute as recognized in Miles).

In Truehart v. Blandon, 672 F. Supp. 929 (E.D.La. 1987), the court denied

recovery for loss of society under general admiralty law for death of a

twenty-four year old son who was not living with his parents nor

contributing to their financial support. It reasoned that Palmer had

misread dictum in Law v. Sea Drilling Corp., 523 F.2d 793 (5th Cir.1975),

that wrongful death recovery compensates a decedent’s dependents and

other survivors. However, the Fifth Circuit went on to add that the loss of

society belongs to the dependents not to the decedent. Jd. at 795.

The Truehart court stated that Palmer had erroneously implied that

nonpecuniary damages were the only damages available in a maritime

wrongful death action, because even if not entitled to loss of society

damages, nondependent survivors could still maintain a wrongful death

action for pecuniary damages, such as funeral expenses. Truehart, 672

F.Supp. at 933.

members of a drilling vessel damages under general

maritime law for loss of society. It reasoned that denying

recovery lent more uniformity to admiralty jurisdiction than

allowing recovery.

In addition to citing uniformity as compelling denial of

recovery, the court in Truehart v. Blandon, 672 F.Supp. 929

(E.D.La.1987), refused to find the distinction between cases

involving seamen and seaworthiness claims and those that

did not relevant in order to craft for nonseamen’s survivors a

remedy not available to seamen’s survivors, to whom

admiralty provides a special solicitude. It stated that

denying recovery followed the decided wisdom that only

dependents should be permitted to recover for loss of

society, finding dependency created a finite, determinable

class of beneficiaries and the line drawn between dependents

and nondependents appeared to be the most rational,

efficient and fair way of determining those who may recover

for loss of society and those who may not.

In Anderson v. Whittaker Corp., 894 F.2d 804 (6th

Cir.1990), boaters drowned when their boat capsized and

their surviving families and representatives brought a

products liability action against the boat manufacturer in

which they alleged that the air scoops located on both sides

of the huil at the stern were negligently designed. The

manufacturer conceded that the boat was defective and the

district court found the plaintiffs had met their burden of

proving proximate causation. The trial court found that the

nondependent parents could not recover damages for loss of

society, relying on the “twin aims” of maritime law as

expressed in Sistrunk—those of achieving uniformity in the

exercise of admiralty jurisdiction and of providing special

solicitude to seamen. Jd. at 811. The Sixth Circuit agreed

and affirmed.

Because we agree with the rationale discussed in

Anderson and Truehart and with the decision of Florida’s

Third District Court of Appeal in applying the Miles holding

A. 9

to nonseamen in Perlman, we affirm this point on appeal

and find that the trial court did not err in holding

nondependent parents cannot recover under general

maritime law for loss of society.

GLICKSTEIN, C.J., and STONE and FARMER, JUJ.,

concur.

A. 10

P IN THE

CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA.

GENERAL JURISDICTION DIVISION.

CASE NO. 85-2090 CA(0) A

Fla. Bar No. 065245

MARGARET LIPWORTH, as personal representative of

the estate of LORI LIPWORTH, a deceased minor, on

behalf of the estate and the survivors of the decedent, to

wit. MARGARET LIPWORTH, natural mother and

STEPHEN F. LIPWORTH, natural father,

Plainiiff,

US.

KAWASAKI MOTORS CORP. USA. a _ foreign

corporation, PALM BEACH KAWASAKI, INC., a

Florida corporation, and KAWASAKI HEAVY

INDUSTRIES, LTD., a foreign corporation,

Defendants.

FINAL JUDGMENT

In accordance with this Court’s holdings in its

August 23, 1990, “ORDER GRANTING DEFENDANTS’

SECOND MOTION FOR PARTIAL SUMMARY

JUDGMENT ON THE ISSUE OF DAMAGES” and

December _ 5th, 1990, “ORDER REGARDING

PLAINTIFF’S AMENDMENT TO THIRD AMENDED

COMPLAINT,” final judgment should be and the same is

hereby rendered in favor of the defendants, KAWASAKI

MOTORS CORP., U.S.A., a foreign corporation; PALM

BEACH KAWASAKI, INC., a Florida corporation, and

KAWASAKI HEAVY INDUSTRIES, LTD., a foreign

corporation, and against the plaintiff, MARGARET

LIPWORTH, as personal representative of the estate of

A. 11

LORI LIPWORTH, a deceased minor, said defendants to go

hence without day.

The Court reserves jurisdiction to tax costs upon

appropriate motions.

DONE AND ORDERED at West Palm Beach, Palm

Beach County, Florida, this 5th day of November, 1990.

[ILLEGIBLE]

CIRCUIT COURT JUDGE

Copies to:

Edward A. Perse, Esq. 66 W. Fiagler St Mia, FL, 33130

Edwin Ratiner, Esq. 66 SW 13 St, Miami, Fl. 33130

Ronald D’Anna, Esq. 5355 Town Center Rd. Boca Raton FL

33486

John Seipp, Esq. 2400 Amerfirst Bldg, 1 SE 2d Ave Miami,

FL, 33131

Richard Mueller, Esq. Qne Mercantile Center Suite 2900 St.

Louis, Mo., 63101

A. 12

| remem initia

IN THE

CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA.

GENERAL JURISDICTION DIVISION.

CASE NO. 85-2090 CA(0) A

Fla. Bar No. 065245

MARGARET LIPWORTH, as personal representative of

the estate of LORI LIPWORTH, a deceased minor, on

behalf of the estate and the survivors of the decedent, to

wit: MARGARET LIPWORTH, natural mother and

STEPHEN F. LIPWORTH, natural father,

Plaintiff,

vs.

KAWASAKI MOTORS CORP. U.S.A., a _ foreign

corporation, PALM BEACH KAWASAKI, INC., a

Florida corporation, and KAWASAKI HEAVY

INDUSTRIES, LTD., a foreign corporation,

Defendants.

ORDER REGARDING

PLAINTIFF’S AMENDMENT TO

THIRD AMENDED COMPLAINT

This cause having come on to be heard on plaintiff's

motion to file Amendment to Third Amended Complaint,

and the Court being advised that the defendants have no

objection to the grant of said motion, and the Court being

otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED:

1. Plaintiff's motion for leave to file Amendment to

Third Amended Complaint should be and the same is

hereby granted.

2. The plaintiff's Third Amended Complaint shall be

deemed amended by the amendment thereto attached to the

A. 13

subject motion which amends only the ad damnum clause

thereof.

3. The defendants’ answers to plaintiffs Third

Amended Complaint shall stand over and be considered as

filed on the date of entry of this order unless defendants

desire to answer or otherwise plead to said amendment

within 20 days of the date of this order.

4. Over plaintiffs objection this Court’s August 23,

1990, “ORDER GRANTING DEFENDANTS’ SECOND

MOTION FOR PARTIAL SUMMARY JUDGMENT ON

THE ISSUES OF DAMAGES,” a copy of which is attached

hereto, is deemed to be fully applicable to plaintiff's Third

Amended Complaint and the subject amendment thereto.

5. In accordance with this Court’s holding in said

August 23, 1990, order, the damages items demanded by

plaintiff in her amended ad damnum clauses are hereby

stricken and defendants are granted partial summary

judgment thereon.

DONE AND ORDERED at West Palm Beach, Palm

Beach County, Florida, this 5th day of December, 1990.

Richard B. Burk

CIRCUIT COURT JUDGE

Copies to:

Edward A. Perse, Esq. 66 W. Flagler St Mia, FL, 33130

Edwin Ratiner, Esq. 66 SW 13 St, Miami, Fl. 33130

Ronald D’Anna, Esq. 5355 Town Center Rd. Boca Raton FL

33486

John Seipp, Esq. 2400 Amerfirst me 1 SE 2d Ave Miami,

FL, 33131

Richard Mueller, Esq. One Mercantile Center Suite 2900 St.

Louis, Mo., 63101

A. 14

Supreme Court of Florida

TUESDAY, JUNE 30, 1992

CASE NO. 79,550

District Court of Appeal,

4th District — No. 90-3473

MARGARET LIPWORTH, etc.,

Petitioner,

KAWASAKI MOTORS CORPORATION U.S.A.,

etc., et al.,

Respondents.

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Article V,

Section 3(b), Florida Constitution (1980), and the Court

having determined that it should decline to accept

jurisdiction, it is ordered that the Petition for Review is

denied.

No Motion for Rehearing will be entertained by the

Court. See Fla. R. App. P. 9.330(d).

OVERTON, Acting C.J., McDONALD, GRIMES, KOGAN

and HARDING, JJ., concur

A True Copy TC

TEST ec: Hon. Marilyn N.

Beuttenmuller, Clerk

/s/ Sid White Hon. Milton T. Bauer, Clerk

Clerk, Supreme Court Hon. Richard B. Burk, Judge

Edward A. Perse, Esquire

James E. Tribble, Esquire

Richard Mueller, Esquire

Ronald E. D’Anna, Esquire

A. 15

THE FLORIDA STAR, Appellant,

Vv.

B.J.F., Appellee.

No. 71615.

Supreme Court of Florida.

Sept. 1, 1988.

Rape victim obtained judgment in the Circuit Court,

Duval County, John S. Cox, J., awarding her compensatory

and punitive damages against newspaper for publishing her

name, and newspaper appealed. The District Court of

Appeal, 499 So.2d 883, affirmed, and the Supreme Court

summarily denied review, 509 So.2d 1117. Upon seeking

further review, the United States Supreme Court, 108 S.Ct.

499, certified question as to state Supreme Court’s

jurisdiction. The Supreme Court, Barkett, J., held that it

had subject matter jurisdiction to hear newspaper's appeal.

Certified question answered in affirmative.

Courts —216

State Supreme Court had subject matter jurisdiction

over appeal of decision of intermediate appellate court

expressly citing statute, even though statute was only quoted

and was neither discussed nor expressly upheld against

appellant’s constitutional challenge; Supreme Court’s

constitutional authority to review any appellate decision

establishing point of law only required that there be some

statement or citation in opinion that hypothetically could

create conflict if there were another opinion reaching

contrary result. West’s F.S.A. Const. Art. 5, § 3(bX3).

George K. Rahdert and Bonita M. Riggens of Rahdert,

Acosta & Dickson, P.A., St. Petersburg, for appellant.

A. 16

—_—_ rae,

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg,

Eaton, Meadow & Olin, P.A., Miami, and Beckham,

McAliley & Schulz, P.A., Jacksonville, for appellee.

Alan C. Sundberg of Carlton, Fields, Ward, Emmanuel,

Smith, Cutler & Kent, Tallahassee, Gerald B. Cope, Jr. and

Laura Besvinick of Greer, Homer, Cope & Bonner, P.A.,

Miami, Richard J. Ovelmen, General Counsel, The Miami

Herald Pub Co., Miami, Paul J. Levine of Spence, Payne,

Masington, Grossman & Needle, Miami, Florida; and

* Sanford L. Bohrer of Thomson, Zeder, Bohrer, Werth &

Razook, Miami, Florida, amici curiae for The Miami Herald

Pub. Co., The Florida First Amendment Foundation, The

Florida Press Ass’n, and The Florida Soc. of Newspaper

Editors.

BARKETT, Justice.

This case is before us on the following question of

Florida law certified by the United States Supreme Court:

Whether the Florida Supreme Court had

jurisdiction, pursuant to Article V, § 3(b)(3) of the

Florida Constitution or otherwise, to hear

Appellant’s appeal [petition for review] in this

cause from the Florida First District Court of

Appeal?

The Florida Star v. B.J.F., ___. U.S. ___, 108 S.Ct. 499,

499, 98 L.Ed.2d 498 (1987). We have jurisdiction. Art. V, §

3(bX6), Fla. Const. As delimited by this opinion, we answer

in the affirmative.

The Florida Star, a Jacksonville newspaper, published

the name of a rape victim that police erroneously had

included in material released to the press pretrial. There is

'This section vests the Florida Supreme Court with subject-matter

jurisdiction over cases that manifest express and direct conflict with

opinions of another district court or of this Court. For convenience, this

type of jurisdiction usually is called “conflict jurisdiction.”

A. 17

no dispute that the name should not have been released and

that the newspaper itself had a policy against the

publication of rape victims’ names. Publication appeared to

be a criminal violation under section 794.03, Florida Statutes

(1985).?

B.J.F., the rape victim, brought a civil action premised

on a statutory duty arising from section 794.03. The Florida

Star moved for dismissal based on the ground that the

theory of recovery violated the first and fourteenth

amendments. In denying this motion, the trial court ruled

that no such violation would occur, and it specifically upheld

the constitutionality of section 794.03.

On appeal, the Florida Star again challenged the

constitutionality of the statute. The district court affirmed

but did not discuss section 794.03 except to quote it

verbatim, nor did it expressly uphold the statute against

appellant’s constitutional challenge.

The Florida Star subsequently filed a jurisdictional

brief with this Court, seeking discretionary review. Review

summarily was denied. The Florida Star v. B.J.F., 509 So.2d

1117 (Fla.1987).

On August 26, 1987, the Florida Star sought review in

the United States Supreme Court. Appellee filed a motion to

dismiss on grounds the appeal was untimely. Appellee

argued that the Florida Supreme Court lacked jurisdiction

to review the case, and that the opinion of the First District

thus was the final decision of the highest state court

empowered to hear the cause. Under this argument, the

* The statute states:

No person shall print, publish, or broadcast, or cause or allow

to be printed, published, or broadcast, in any instrument of mass

communication the name, address, or other identifying fact or

information of the victim of any sexual offense within this

chapter. An offense under this section shall constitute a

misdemeanor of the second degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

A. 18

Florida Star should have appealed to the United States

Supreme Court within ninety days of the First District’s

opinion. The United States Supreme Court then certified

the instant question to this Court.

We do not read the question presented by the Supreme

Court as a request to explain the internal mechanism of the

court or to attempt the impossible task of second-guessing

the original panel’s decision on jurisdiction. Nor do we

believe, as appellee suggests, that the present court should

reexamine the question and decide anew whether conflict

existed.

Instead, we limit our answer to the context in which the

question was posed. For that sole purpose, we answer the

question in the affirmative. This Court in the broadest sense

has subject-matter jurisdiction under Article V, section

3(bX3) of the Florida Constitution, over any decision of a

district court that expressly addresses a question of law

within the four corners of the opinion itself.’ That is, the

opinion must contain a statement or citation effectively

establishing a point of law upon which the decision rests.

The opinion in B.J.F. unquestionably met this requirement.

We premise our holding on our conclusion that Article

V, section 3(bX3) creates and defines two separate concepts.

The first is a general grant of discretionary subject-matter

jurisdiction, and the second is a constitutional command as

2 This Court does not, however, have subject-matter jurisdiction over

a district court opinion that fails to expressly address a question of law,

such as opinions issued without opinion or citation. Thus, a district court

decision rendered without opinion or citation constitutes a decision from

the highest state court empowered to hear the cause, and appeal may be

taken directly to the United States Supreme Court. Moreover, there can

be no actual conflict discernible in an opinion containing only a citation to

other case law unless one of the cases cited as controlling authority is

pending before this Court, or has been reversed on appeal or review, Or

receded from by this Court, or unless the citation explicitly notes a

contrary holding of another district court or of this Court. See Jollie v.

State, 405 So.2d 418, 420 (Fla.1981).

A. 19

to how the discretion itself may be exercised. In effect, the

second is a limiting principle dictated to this Court by the

people of Florida. While our subject-matter jurisdiction in

conflict cases necessarily is very broad, our discretion to

exercise it is more narrowly circumscribed by what the

people have commanded:

(b) JURISDICTION.—The supreme court:

(3) May review any decision of a district court

of appeal. . . that expressly and directly conflicts

with a decision of another district court of appeal or

of the supreme court on the same question of law.

Art. V, § 3(bX3), Fla. Const.

Thus, it is not necessary that conflict actually exist for

this Court to possess subject-matter jurisdiction, only that

there be some statement or citation in the opinion that

hypothetically could create conflict if there were another

opinion reaching a contrary result. This is the only

reasonable interpretation of this constitutional provision. As

the final authority on the meaning of the Florida

Constitution, see Art. IV, § 1(c), and Art. V, § 3(b)1), (3), Fla.

Const., this Court has the final and inherent power to

determine what constitutes express and direct conflict. No

other authority exists, except the people pursuant to their

power to amend the constitution, that may nullify this

Court’s pronouncements on that question.

This, by definition, is discretion, not jurisdiction. As

noted in Black’s Law Dictionary 419 (5th ed. 1979),

discretion is

the exercise of judicial judgment, based on facts

and guided by law. . . . It is a legal discretion to be

exercised in discerning the course prescribed by law

and is not to give effect to the will of the judge, but

to that of the law.

A. 20

Subject-matter jurisdiction, on the other hand, is defined as:

Power of a particular court to hear the type of case

that is then before it. . . . jurisdiction over the

nature of the cause of action and relief sought. . . .

Id. at 767. While this Court has subject-matter jurisdiction

to hear any petition arising from an opinion that establishes

a point of law, we have operated within the intent of the

constitution’s framers, as we perceive it, in refusing to

exercise our discretion where the opinion below establishes

no point of law contrary to a decision of this Court or

another district court.

We thus conclude that we had complete subject-matter

jurisdiction to hear B.J.F. and decide the case on its merits

with finality. This jurisdiction must be regarded as complete

until the time the petition for review was denied. Moreover,

the denial of review in B.J.F. did not operate to deprive this

Court of its subject-matter jurisdiction retroactively, but

merely constituted the point in time at which jurisdiction,

for whatever reason, had ended.

We confess that we are much influenced in this holding

by the procedural quagmire that would result from a

negative answer. To seek review of a state court judgment in

the United States Supreme Court, a litigant first must

exhaust all avenues of review available in the courts of the

state. The fact that review in the highest court is

discretionary is irrelevant; the litigant still must seek such

review in order to proceed to the United States Supreme

Court. American Ry. Express v. Levee, 263 U.S. 19, 20-21,

44 S.Ct. 11, 12-13, 68 L.Ed. 140 (1923); Stratton v. Stratton,

939 U.S. 55, 56-57, 36 S.Ct. 26, 27, 60 L.Ed. 142 (1915).

It is therefore essential to the preservation of a litigant’s

right to United States Supreme Court review that he or she

know with certainty the avenues of appellate review required

by the courts of the state. If, after the fact, we held in a case

such as this that there was no jurisdiction, litigants would be

A. 21

placed in a needlessly burdensome position. A party would

have to try to predict which court ultimately would

recognize jurisdiction in the case and file a petition for

review accordingly. A party who files only in the United

States Supreme Court, however, would risk the objection

that he or she has not exhausted state court remedies. On

the other hand, a party who files only in the Florida

Supreme Court and is denied review, would risk the

objection made by B.J.F. here that the later appeal to the

United States Supreme Court is untimely.

Alternatively, a party could file a petition for review in

both the Florida Supreme Court and the United States

Supreme Court simultaneously, simply to protect his or her

rights. This solution would entail double work, separate

briefs, and much more expense for the clients. Moreover, a

stay would likely need to be sought in the United States

Supreme Court because the appeal in that Court would not

be ripe for review unless and until this Court denied review

or otherwise disposed of the case. The situation is further

aggravated by the fact that, on some occasions, this Court

agrees to review a case on the merits, but after briefing or

argument determines that review was improvidently

granted.

No purpose is served by this duplication of effort, added

expense and uncertainty. We do not believe the people

intended such a result when they amended the constitution

in 1980.

For the foregoing reasons, we answer the certified

question in the affirmative. This opinion shall be

transmitted forthwith to the United States Supreme Court.

It is so ordered.

EHRLISH, CJ., and OVERTON, McDONALD,

SHAW, GRIMES and KOGAN, JJ., concur.

A. 22

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.