Yesterday’s post, The Race Technically Started—But Merlin Is At The Dock! Understanding Florida’s Anti-Technical Statute Regarding Marine Insurance, was the result of a case originally reported in The Captain and Crew Warranties in a Yacht Policy Are Important. The Eleventh Circuit Court of Appeals upheld a judgment for the policyholder last week and further discussed the law regarding Florida’s anti-technical statute:1
We recently applied Florida’s anti-technical statute in a case involving the destruction of a yacht during Hurricane Dorian. See Serendipity at Sea, 56 F.4th at 1282. There, the insurer, not the insured, hired Captain Danti as an expert witness. The insurer claimed Captain Danti offered ‘undisputed testimony’ that the insured’s failure to ‘employ a full-time licensed captain in violation of the policy’s Captain Warranty’ increased the hazard to the yacht. In essence, he opined that a full-time captain would have moved the boat away from the Bahamas—where the yacht was moored, and where the hurricane hit head on—and back to Cape Canaveral, the yacht’s primary mooring location. The District Court found Captain Danti’s opinion on the matter undisputed because the insured did not offer an opposing expert and granted summary judgment to the insurer.
We reversed the District Court because we found Captain Danti’s expert opinion relied on facts about which there was reasonable dispute. Specifically, we explained that the insured cited weather reports in its motion for summary judgment that showed Hurricane Dorian was unpredictable, and that as of the day before the storm hit the Bahamas—where the yacht was moored—it was projected to hit Cape Canaveral, not the Bahamas. That undermined Captain Danti’s opinion that a full-time captain would have moved the yacht from the Bahamas to Cape Canaveral. So, there was a genuine factual issue for the jury as to whether the lack of a full-time captain increased the hazard to the yacht.
The rule from these cases is clear: to meet its burden under Florida’s anti-technical statute, the insured must show that, under the circumstances of the specific accident at issue, the breach of the warranty had some material effect on the loss. Otherwise, the insurer could ‘avoid[ ] coverage on a technical omission playing no part in the loss.’
Travelers lost the case in part because it had no expert witness:
The effect of Ocean Reef’s failure to retain a full-time captain and crew leading up to and during Hurricane Irma is exactly the kind of issue that requires expert testimony. The question is hypothetical. Discussing what would have happened if a captain were in charge of the My Lady during Hurricane Irma necessarily requires hypothesizing. ‘And the ability to answer hypothetical questions is ‘[t]he essential difference’ between expert and lay witnesses.’
All told, without expert testimony about what a professional captain would have done differently to avoid harm to the My Lady during Hurricane Irma, the jury would have had to speculate to find for Travelers under Florida’s anti-technical statute. And we see no need to give Travelers another bite at the apple.
I am certainly not a professional captain, but I am with an expert crew of racing sailors starting the Transpacific Yacht Race tomorrow from Los Angeles to Honolulu. For readers who would like to track the progress of Merlin, here is a link to the race tracker.
Thought For The Day
Ocean racing is inherently dangerous. Intellectually, you know it is. But until you’ve been tested, you won’t get a real feel for just how much can quickly go wrong. You also won’t get a feel for why we do this. The combination of the adrenaline rush, the camaraderie, and the sheer power of a racing machine out at full tilt on the high seas is nothing like you’ll ever experience anywhere else.
— Mavericks & Merlins: Sailors And Renegades Leave Shore, What About You? by Chip Merlin
1 Travelers Prop. Cas. Co. of America, No. 21-14509 (11th Cir. June 23, 2023).