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Neal v. Christini

United States District Court, D. Hawaii

October 11, 2016

CHARLES C. NEAL; MOLOKINI DIVERS, INC.; and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK, Plaintiffs,
v.
CAROL CHRISTINI; INSURANCE MANAGEMENT SERVICES, INC.; PATRICK KUDLICH; OCEAN MARINE INSURANCE AGENCY, INC., Defendants.

          ORDER GRANTING DEFENDANT CHRISTINI'S MOTION TO DISMISS BASED ON LACK OF SUBJECT MATTER JURISDICTION

          DERRICK K. WATSON DISTRICT JUDGE.

         Defendant Carol Christini moves to dismiss for lack of subject matter jurisdiction, asserting the absence of admiralty or maritime jurisdiction under 28 U.S.C. § 1333. Dkt. No. 14. Because this case arises out of allegations of professional negligence, with the alleged torts occurring entirely on land, the Court agrees and GRANTS Christini's Motion to Dismiss.

         BACKGROUND

         Plaintiffs operate a scuba diving and snorkeling tour enterprise in the State of Hawaii. Complaint ¶¶ 1-3, 12. At some unspecified date, but prior to July 20, 2014, Plaintiffs sought and obtained maritime insurance through Christini, an insurance broker, and/or her employer, IMS, “for the purpose of being protected against claims arising from scuba diving and snorkeling tours[.]” Id. ¶ 16. Christini subsequently “improperly terminated” her business relationship with Plaintiffs, who then used the services of co-defendants Patrick Kudlich and Ocean Marine Insurance Agency, Inc. (“OMIA”) for their insurance needs. Id. ¶¶ 19-20.

         On July 20, 2014, Plaintiffs were involved in an incident that occurred off of Molokini Island, Maui, Hawaii, which resulted in the death of one person and injuries to two others.[1] Id. ¶ 29. One of the injured individuals made claims for maintenance and cure under the Jones Act. Id. Plaintiffs tendered these claims to their insurers and were denied coverage. Id. ¶ 30. Plaintiffs later discovered, allegedly for the first time that, according to their insurers, their insurance policy or policies were not “MEL” policies and/or insurance policies that would provide full coverage for injuries to employees and customers. Id.

         On May 19, 2016, Plaintiffs instituted the instant action against Defendants, asserting jurisdiction solely under 28 U.S.C. § 1333. Dkt. No. 1. In Count I, Plaintiffs allege as follows:

31. Plaintiffs repeat and re-allege all prior allegations as if fully set forth herein.
32. Christini and/or IMS, individually and jointly, owed a duty to Plaintiffs to recommend, offer, and/or provide MEL insurance policies and/or insurance policies which would provide full coverage for injuries to employees and customers that would protect Plaintiffs against claims arising from scuba diving and snorkeling tours, including but not limited to Jones Act claims.
33. Based on the denials of coverage referenced above, Christini and/or IMS, individually and jointly, failed to recommend, offer, and/or provide MEL insurance policies and/or insurance policies which would provide full coverage for injuries to employees and customers that protected Plaintiffs against claims arising from scuba diving and snorkeling tours, including but not limited to Jones Act claims.
34. Christini and/or IMS' acts and omissions were the proximate cause of the harm suffered by Plaintiffs, namely the denial of coverage after tender of claims arising from scuba diving and snorkeling tours, including but not limited to Jones Act claims.
35. As a result of Christini and/or IMS' failure to recommend, offer, and/or provide MEL insurance policies and/or insurance policies which would provide full coverage for injuries to employees and customers that protected Plaintiffs against claims arising from scuba diving and snorkeling tours, including but not limited to Jones Act claims, Plaintiffs have been injured in an amount to be proven at trial.
36. Christini and/or IMS's actions and omission in failing to provide MEL insurance policies and/or insurance policies which would provide full coverage for injuries to employees and customers to a scuba diving/snorkeling entity were grossly negligent, outrageous, willful, wanton, and/or made in reckless indifference to the rights of Plaintiffs, such that punitive damages should be awarded in an amount to be determined a trial.

Id. ¶¶ 31-36.

         Counts II, III, and IV, respectively, allege vicarious liability, negligent supervision, and negligent employment against IMS. Id. ¶¶ 37-52. Count V alleges negligence against Kudlich and/or OMIA. Id. ΒΆΒΆ 54-60. Counts VI, VII, and VIII, respectively, allege vicarious ...


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