Florida’s Admissibility of Loss Conclusions in Marine Damage Claim Survey Reports

Hello. I wanted to write today about some legal opinions in Florida about the admissibility of loss conclusions by marine surveyors that survey vessel damage claims. This is meant to enlighten boat owners, other marine surveyors, and insurance claims handlers in what can happen in the courtroom or during any litigation in Florida when it comes to a damage claim on a boat or yacht.

In Florida, if not licensed in the state for a specific occupation (such as marine surveying) any loss conclusion that is written in a marine survey report can become inadmissible in court. This is because according to various case law and legal opinions, unless you hold a Florida Private Investigator’s License, a marine surveyor may not be legally qualified to write, analyze or comment about vessel accident reconstruction or loss conclusions.  Now remember I am not saying that marine surveyors are not qualified or able to realistically reverse engineer a vessel accident or write a conclusion about the cause of loss. This is about the games that are played in the courtroom and attorneys that find loopholes in the law and interpreting case law and legal opinions to get factual, well written damage marine survey reports deemed inadmissible. A good attorney will know how to manipulate and spin doctor the intent of the law.

As a former U.S. Coast Guard Boarding Officer and a former Police Officer in the State of Florida I have had a lot of exposure to criminal and civil litigation in both the State and Federal courts. I have attended countless depositions and court appearances. I have seen well meaning cases with well intended causes get thrown out or judgments go the other side simply because the petitioners or respondents were not prepared or knowledgable of the case law and legal opinions that would render their action or defense inadmissible. Understand that in the courtroom it has very little to do with right or wrong, or who realistically is at fault (in spite of how obvious the convincing evidence or exhibits may be).  It is nothing more than a game. The opposing side will use any available case law, legal opinion or even your own evidence against you in court. If the evidence or exhibits are damning for the opposing side and there is no way to argue them, then the common strategy by attorneys is to get the evidence or exhibits thrown out by deeming them inadmissible. There are some very common cases of this such as the infamous O.J. Simpson Murder Trial in California and the more recent Casey Anthony Murder Trial in Orange County, Florida. Both were won by discrediting otherwise qualified professionals and having evidence and exhibits ruled inadmissible.

Although damage claim litigation is much less severe and on the civil level, these principles and mindsets still apply by any half way decent attorney.  In a study by Harris Technical Services,  they wrote the following on the subject:

“Florida’s Secretary of State has issued the following opinions on the subject. In Legal Opinion 94-1:

Engineers regulated by Chapter 471 (Professional Engineer) do not have to also be licensed under Chapter 493 (Private Investigator) if the engineer is providing services or expert advice in the profession for which he is licensed, e.g., engineering.

This goes to the question of whether traffic accident reconstruction is an engineering discipline, a police science discipline, a combination of both or more. Traffic accident reconstruction necessarily involves factors outside the scope of engineering such as collision avoidance, tire mark interpretation and human factors.

According to Fred Speaker, an enforcement investigator with the Florida Department of State, Division of Licensing, an engineering license does not cover accident reconstruction. If a licensed engineer engages in the typical activities of accident reconstruction, skid testing, evidence collection, surveying accident sites, etc., then a private investigator’s license is required.

Michele Guy, Assistant General Counsel with the Florida Dept. of State, responded to a request for clarification from the author. In this letter, dated January 4, 2001, Ms. Guy states:

“Pursuant to your request and our conversations, I am writing to confirm that, as a general rule, traffic accident reconstructionists are not required to hold private investigator licenses. If, however, you intend to interview witnesses, perform surveillances, or provide any other routine private investigative services, you would be required to hold private investigator licenses.”

Legal Opinion 97-9 examines the issue of providing services outside the traditional bounds of the licensed activity:

The Florida statutes provide that any person who holds a professional license under the laws of this state, and when such person is providing services or expert advice in the profession or occupation in which that person is so licensed, is exempt from private investigator licensing requirements. Thus, a licensed accountant would be permitted to perform forensic accounting without a private investigator’s license. Not all investigative services can be performed under his accounting license. The investigative activity of surveillance, for example, is not an activity which accountants normally perform. Thus, if the accountant performed surveillance he would need a private investigator’s license.

Legal Opinion 97-5 addresses a safety consultant determining the cause of an accident:

A contract safety consultant, who’s primary function is safety training and workplace inspections, occasionally conducts an investigation when an employee has been injured on the job to determine the cause of the accident. In the Florida statutes, private investigation includes investigation for the purpose of obtaining information with reference to ‘the business of securing evidence to be used . . . in the trial of civil . . . cases and the preparation therefor.’ If the investigation is related to litigation, a private investigator’s license is required.

With this interpretation, the engineering licensee’s activities may be restricted to traditional engineering factors. Data collection, analysis or expert advice beyond the scope of engineering, as defined in the state law, would be unlicensed activity.

In 1980, George Firestone, Florida Secretary of State, issued a Declaratory Statement (DS 80-04) on the subject of private investigator licensing for scientific and technical investigations. The statement includes:

“The Department of State concurs that Kennard v. Rosenberg, [see footnote 9] is persuasive, and that when taken together with the previously cited Attorney General’s Opinion (1967 Op. Att’y. Gen. Fla., 067-1) and Florida Supreme Court Court case (Segal v. Simpson, 121 So. 2d 790 (Fla. 1960), demonstrates that the intent of the Legislature in writing Chapter 493 was not to require every person conducting technical and scientific investigations into the causes of physical phenomena or events to first obtain a private investigator’s license.”

You can see by these legal opinions how this can apply to a loss conclusion in a marine survey report. I know that every marine surveyor may not agree with me on this subject and I am sure many of the older surveyors may have been involved with dozens of court cases where the survey reports were not deemed inadmissible. However without a Florida Private Investigator’s License, reconstructing a vessel accident or stating a loss conclusion that may be deemed to be outside of the surveyors expertise may leave the Client and Marine Surveyor open to have the survey report (most likely the most important exhibit and proof of the cause of loss) thrown out during litigation. I have seen examples of this with my own eyes in the courtroom many times on cases I thought would otherwise be “slam dunks.”

As an active practicing marine surveyor, I hold a Florida Private Investigator’s License. I write every damage marine survey report in detail, with plenty of photographs put in to the report, along with any other written estimates, witness statement or drawn diagrams I can obtain to solidify my reports and support my loss conclusions. I write every survey report (whether it be a pre-purchase, insurance, valuation or damage claim survey report) with the mindset that someday the report may be displayed six feet high on an overhead projector in some courtroom and I am on the witness stand defending what I wrote. That is the reality of our modern world. Not only do I want to ensure everything I write will be admissible based on my credentials, but I can be convincing based upon the content of my report.

If you are a marine surveyor, I recommend you look into obtaining a private investigator’s license if this pertains to your state to in order to cover yourself on this angle. The expense and time involved is fairly cheap (less than $1000.00 in most cases).  My philosophy is simply “better to have it and not need it, than need it and not have it.” It only adds credibility to your marine surveying business. If I were a boat owner involved in a loss on my boat, I would specifically seek a marine surveyor that had the proper credentials, experience, and a private investigator’s license to insure that the findings from the survey would be admissible if the loss went into litigation.

As for the boat owners and insurance handlers reading this, this is something to think about and remember,  just in case.

Until I write again, be well and fair winds.

Very Sincerely,

Capt. John Banister
Suenos Azules Marine Surveying and Consulting
9910 Alternate A1A, Suite 702-214
Palm Beach Gardens, Florida 33410
(561) 255-4139
www.SuenosAzules.com

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Living Aboard a Sailboat

     Living aboard a boat is an adventure but at the same time consistent work to keep your boat properly maintained. There are things you will have to sacrifice and learn to live with out (creature comforts such as endless hot showers and staying indoors) but if you can adjust to these things, it is an exciting experience you will always remember, learn to love, and always want to be a part of. 

Making the plan to live aboard

     If you plan to live aboard or at least spend a significant amount of time aboard a boat, you need to think about three things: What your intended use will be for the vessel, how much you expect to travel with the vessel, and how much money you are willing to invest in your boat. As for me, I was not rich, I had a moderate income, and my intention was to live aboard full time with my significant other and our son. This was a dream we both shared and based on circumstances in our lives we decided a few years ago it was the right time to do it.

     There is alot of pre-purchase planning when making arrangements to move aboard a boat. My first advice is that if you are a new to the boating world get as much education as possible about your new lifestyle. Do not go into it blinded. Figure out your finances, estimate how much you have to budget for boat expenses every month, and save a monthly amount for unexpected expenses (and yes it does happen without warning). Learn the basics in marine navigation (also known as "the rules of the road"), boat terminology, basic boat handling, care and maintenance of your boat, and read everything you can about the vessel you intend to buy (owner's manuals, online boat forums, etc.). If you are truly planning to live aboard full time, part with things you can not take with you, or have a family member you trust watch over the things you absolutely want to hold onto. Anything you own that costs you unnecessary expenses (such as an RV, a 70 inch flat screen television your still making payments on, etc.), part with it before you move aboard. You will not need it. Keep it simple.

Choosing the right vessel for your adventure 

      Keeping the three things in mind I said earlier (intended use, travel plans, and monthly income available), We had set out on our search. I was fortunate enough to have a pretty good background in sailing and boating in the past (I was an experienced sailor who had worked aboard a sailing catamaran in Key West, Florida when I was very young, an experienced surfer, and had spent eight years in the U.S. Coast Guard as a qualifed Coxswain and Federal Boarding Officer), so it was a big advantage based on my previous training and experience. We knew we wanted something that was safe, designed to take us anywhere we wanted to go in the Caribbean or beyond, easy to sail, comfortable, and not too cramped for the three of us. From there I knew a few core things that I wanted based on my own sailing experience: A sailing catamaran (for added safety and better sailing stability for my family), something that was a used vessel (for added vessel size for our budget), liveaboard or near liveaboard ready, something well taken care of by the previous owner, a sailboat designed to handle offshore sailing, and something within the range of $200,000.00 or less to purchase.    

     After a few weeks of researching specifications of dozens of sailing catamarans, we decided the best fit for us was a 34' Gemini 105Mc catamaran which was built by Tony Smith from Performance Cruising in Annapolis, Maryland. We chose this catamaran for a number of reasons; A. The vessel's hulls and bridge deck were made from a one piece solid mold (so she was a rugged boat and could take on rougher seas if need be), B. We liked the idea of the liftable Sonic drive leg which raised out of the water and connected to an inboard 27 horsepower Westerbeke diesel engine seated in an aft compartment in the cockpit (which eliminated worries of galvanic corrosion at foriegn marinas and packing gland leaks from thru-hull shafts that could go bad), C. She had catamaran qualities underway but only had a 14 foot beam so we could put her in any marina slip, D. She was equipped with retractable centerboards which raised up into the hull and gave her a draft of only 18 inches, E. Her sails could be easily handled from the cockpit which was spacious and had a fiberglass overhead that would never let you get wet while sailing, F. Her interior accomodation spaces for her size were well laid out (with 6'1" headroom, three sleeping berths, a full main salon, galley, several overhead hatches, nice head and shower layout, and plenty of locker space.

     So we began our search for the right Gemini 105Mc. We knew we wanted the most recent version of the 105Mc (1999 or newer), and we knew we were looking for a better than average deal. We searched both broker listings and private vessels all over the United States until we found the right vessel. We looked at dozens of Gemini 105Mc's. Some we literally walked on and walked right back off within two minutes. The ones that come to mind was a Gemini that had two labroador retrieivers living aboard and the entire boat smelled like wet dog, not to mention an over abundant amount of dog hair everywhere, and claw sracthes on the cabin door and teak wood interiors. Another Gemini we looked at had so many "home projects" on it (wire nuts and electric tape joining the electric wires, wire ties supporting gear hanging off of the lifelines, non marine garden type solar panels backed with bare plywood hanging from one of the aft rails, and the clutter of gear all over the interior spaces of the vessel) that I knew the vessel was going to be full of expensive "gremlins" that would in the long run more inhibit the vessel rather than aid the vessel in long trips or crossings.

      The right vessel finally came along when a very nice and honest broker we were working with gave us the heads up on an elderly couple that was privately selling their Gemini 105Mc on the west coast of Florida. He gave us their number and we called them. A few days later we drove out to see the vessel. The vessel was amazing. She was a 2001 Gemini 105Mc. She was kept on a custom made lift in their backyard so she spent very little time in the water. Her engine hour gauge was just past 411 hours. Her amenities were almost untouched, and the faint smell of the newness of her was still there. She had alot of extras ideal for living aboard her. Some of these amenities were: A built in 16,000 BTU Mermaid air conditioning system with digital controls, pressuriezed hot and cold water with an auxillary Whaler foot pump, a 120 volt electric / propane Dometic refigerator / freezer unit, stainless steel dinghy davits, bristol condition halyards and sheets, and a secondary jib rig forward of the main jib for a 420 square foot schreecher sail for low wind sailing. After about fifteen minutes of being aboard her, my girlfriend and I knew we wanted to have this Gemini.

To finish reading the complete article go to:

http://www.suenosazules.com/Living_Aboard.html

Sincerely,

Captain John Banister
Suenos Azules Marine Surveying and Consulting
Palm Beach Gardens, Florida