Legal considerations for the Fire on dive boat Conception in CA

[pauldw]

The Wave Dancer families had a wide range of emotions, but they were steered by their lawyers to accept the financially rational outcome for the entire group. Any lawyers in this case will do the same, for the benefits of both their clients and their law firms.

So I'll confess to not being terribly familiar with that sinking, but it sounded from the news reports that the lawyers at the time were going on about how it would be hard to make a strong enough case because some of the business was overseas, and whatnot. All that means to me is that someone would have to do a lot of legwork to make the case, and they didn't want to bother to do that, and probably didn't have a good idea of how to do so. If I'm reading that too cynically, I'm sorry, but here's my point: a lot of personal injury lawyers are not at all interested in maximizing damages, even though that would maximize their contingency fee. It isn't financially worth it, when there's a lot of work to do for a marginal increase in fees. Better to keep the mill running, and go through a steady stream of cases with easy to achieve settlements. Each one may not be as good, but the total income over time to the lawyer is a decent flow. Similarly, real estate agents seem like that to me. They aren't going to try to sell your house for the most money possible, even though they'd make more money that way on that particular sale, because it would take a lot of effort and fighting with the other side. Better to convince the client to sell it for something decent, get your cut, and go on to the next house to take another cut. This is, as I understand it, what you meant by "financially rational outcome"?

Please note that I'm just asking a question. I'm not endorsing anyone trying to get money from anyone in this case. I don't know whether anyone should be owed any money. If a meteor lit up the boat, that's not something anyone should be paying for, it's just bad luck. If the French secret service placed a mine on the hull, then they should get out their checkbook. But those are hypotheticals. What the legal system needs to do for sure is, if someone finds a specific cause that can practically be prevented in the future, make good and sure that such causes are prevented in the future. Which is, I guess, more a political thing than a legal thing. And may require us as political rulers of our democracy to make some demands.

 

[Scuba Lawyer]

Well one of the reasons I don't do plaintiff work is that I am not creative enough I guess to some up with a list of people to sue however remotely connected, but you can guarantee that this issue is already being evaluated for the very reasons mentioned, the more policies that are implicated, the bigger the pot for settlement...

For 30 years I have done nearly 100% plaintiff wrongful death and personal injury (including insurance bad faith and maritime/admiralty) work. I don't do insurance defense work because I'm not creative enough to make both of my clients happy (the defendant and their insurer) . The whole question of who do you file suit against (if anyone) and what cause(s) of action you allege is more art than science. You may have zero insurance or assets among the most clearly responsible defendants, but have a large policy behind a peripheral defendant that may only bear 1% of the blame. If you have a client with a large economic loss (e.g., lifetime earnings of a deceased brain surgeon with small children to support), you will sue that peripheral 1% defendant because of the joint and several liability laws in California. In other words, that 1% liable defendant is responsible for 100% of the economic damages jointly and severally with the other more culpable defendants. You can therefore collect 100% of the economic damages from that one peripheral defendant where the more culpable defendants have zero money. Under those same laws, that peripheral defendant is only liable for 1% of the non-economic damages (e.g., loss of love, society, support, etc...) Therefore, the rationale that goes into who your viable defendants are is multi-faceted and involves some legal voodoo.

 

[ChrisM]

Well that only does you good if it's collectible. A judgment against a $15 an hour cook on a dive boat is worthless. At the end of the day who you (the royal you) sue depends on the potential assets and whether you can get those defendants to start going after each other with active indemnity lawsuits.

Here you have the trip operator (that's tenuous liability I would think, negligent chartering? I doubt it), the boat, the boat owner, and the crew (who are likely covered under the boat so long as in the course and scope and didn't willfully cause the fire). Absent some finding that an element malfunctioned (dryer or battery recharger manufacturer, etc) I don't currently see any other potential defendants.

at the end of the day whatever policies the boat has are unlikely to cover 34 wrongful death judgments.

A lot of reasons why I stick to a less emotional practice of building developers suing architects

 

[The Chairman]

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Related Threads:

https://www.scubaboard.com/community/threads/fire-on-dive-boat-conception-in-ca.584062/

Dive Boat Conception Missing Divers Relief Fund​

Legal considerations for the Fire on dive boat Conception in CA​

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[KevinNM]

The answer I've read (IANAL) is you sue everyone who could possibly be involved, then you offer to exclude them for a reasonable payment to your clients, after arranging to get all the client cases consolidated together. If your theory is that it was a Li fire and you retrieve a bunch of burned cameras, you sue all of the manufacturers. Nikon and Sony have very deep pockets, so guess who ends up paying an $800 million judgment? Maybe they might consider paying a lot of money to avoid that possibility? (which also avoids their being found at fault, which opens the door to other claims.) Eventually you can come up with enough money to keep wives and kids from being evicted.

My dad told me the reason Brunswick got out of the football helmet business was they once got hit with a multi-million dollar hit (back in the 80s when that was real money) over a HS kid who got paralyzed. The post-trial jury interviews showed that the defense was successful in showing the helmet was not possibly at fault but the jurors all said something to the effect that "well, someone has to pay for this kid's care for the rest of his life."

 

[Scuba Lawyer]

Well that only does you good if it's collectible.

Which, in my scenario, it is 100% collectible. I prefaced my analysis with the premise that there is, "a large policy behind a peripheral defendant that may only bear 1% of the blame." I wholly agree with you it makes no sense whatsoever to sue a person or entity with no assets or liability insurance coverage. If there is a potential for assets in the future then a judgment may be appropriate. 18 years ago I obtained judgment that included substantial punitive damages against a broke college kid. I renewed the judgment after 10 years, and last year, the kid, now a very successful orthopedic surgeon, was very surprised to have me sell his house out from under him and put a receiver in his solo non-incorporated practice. Alternately, if the $15/hour cook is negligent and in the scope of his/her employment, then the employer is liable.

at the end of the day whatever policies the boat has are unlikely to cover 34 wrongful death judgments.

I agree 100% percent with this assessment. That is where the creative part comes in.

 

[bigDave]

Here you have the trip operator (that's tenuous liability I would think, negligent chartering?

A good point, as it seems nobody sues Expedia or Orbitz after an aircraft incident.

You could argue that the trip operator chartered the boat, and bears some responsibility for ensuring the safety of their clients. The Finstad family business has been chartering these vessels (and others) for many years (sadly their daughter is one of the victims). Given some of the comments above, I think you could reasonably expect a plaintiff's lawyer to make a run at getting a settlement, unless the trip operator has no assets or insurance to speak of. Does the trip operator have their clients sign a liability waiver? Certainly Truth Aquatics does.

Question for the lawyers: I have heard that in some jurisdictions a liability release waiver only applies to the signatories, and that you cannot waive the right of your survivors or estate to sue. Or does that vary by state?

Seemingly in California, you can waive the rights of heirs or legal representatives to sue. (See link below.) And also that liability waivers do hold up, except in case of gross negligence. The definition of gross negligence seems pretty strict (‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.') and at a glance would not look to apply here.

Can I sue if I signed a “not responsible for accidents” waiver?

 

[rjack321]

A good point, as it seems nobody sues Expedia or Orbitz after an aircraft incident.

You could argue that the trip operator chartered the boat, and bears some responsibility for ensuring the safety of their clients. The Finstad family business has been chartering these vessels (and others) for many years (sadly their daughter is one of the victims). Given some of the comments above, I think you could reasonably expect a plaintiff's lawyer to make a run at getting a settlement, unless the trip operator has no assets or insurance to speak of. Does the trip operator have their clients sign a liability waiver? Certainly Truth Aquatics does.

Question for the lawyers: I have heard that in some jurisdictions a liability release waiver only applies to the signatories, and that you cannot waive the right of your survivors or estate to sue. Or does that vary by state?

Seemingly in California, you can waive the rights of heirs or legal representatives to sue. (See link below.) And also that liability waivers do hold up, except in case of gross negligence. The definition of gross negligence seems pretty strict (‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.') and at a glance would not look to apply here.

Can I sue if I signed a “not responsible for accidents” waiver?

I have never seen a dive charter waiver that addresses fire and/or sinking of the vessel. There is a presumption in every waiver I have ever seen (and I do read them albeit quickly) that the risks you are incurring are from the diving, not from the vessel itself.

 

[Lorenzoid]

@rjack321 , in the other thread you said "There will ALWAYS be a risk of catastrophic fire aboard a vessel. This is like saying boats should never sink."

I wonder if the fact that we don't see waivers for anything but the diving is related to the question of whether vessels sink because of so-called simple negligence or because of so-called gross negligence. Maybe the legal community sees no point in customers being asked to waive their right to sue for negligence because it's always or almost always gross negligence if the boat sinks, and a waiver of one's right to sue for gross negligence is generally unenforceable. I don't know the answer--just thinking here.

 

[bigDave]

I have never seen a dive charter waiver that addresses fire and/or sinking of the vessel. There is a presumption in every waiver I have ever seen (and I do read them albeit quickly) that the risks you are incurring are from the diving, not from the vessel itself.

I actually did look up the waiver for the Peace boat out of Ventura. I could not find the Truth Aquatics waiver. The Peace waiver enumerates a list of safe diving practices among other things.

https://www.peaceboat.com/v/vspfiles/assets/LiabilityReleaseForm.pdf

The actual release of liability section is shorter and rather broad. Interesting read. Notice the release includes Peace Dive, LLC.

RELEASE OF LIABILITY I WILL RELEASE Peace Dive, LLC, Dive Boat Peace, its owner, and their employees and agents, including the boat Captain, and diver masters, from any and all responsibility or LIABILITY for any and all injuries or damages sustained by me or others. I WILL NOT SUE or make a claim against any of the above parties for injuries or damages sustained by me or others, whether it arises or results from any NEGLIGENCE or other liability. (INITIAL_________)I am fully aware that diving with compressed air involves certain risk and that INJURIES OR DEATH CAN OCCUR. I further agree that if I am involved in an underwater accident that the Captain or dive master may require that I be evacuated to a hyperbaric chamber and that I am responsible for all associated expenses. (INITIAL_________)I understand that dives on this trip may be conducted at remote locations and that a hyperbaric chamber may not be easily accessible. Nonetheless I agree to proceed with this dive trip. (INITIAL_________) I HAVE READ THIS RELEASE AGREEMENT, I UNDERSTAND IT, AND I WILL BE BOUND BY THE ABOVE RISK AND LIABILITY AND DIVE TRIP ASSUMPTION.