Defense Beats Boaters After Boat Engine Falls Off

Celia Ampel, Daily Business Review

April 6, 2016    

The case seemed pretty cut-and-dried at first.

A family of five sued the manufacturer of their boat after the engine fell off the transom during a 50 mph trip across Biscayne Bay. Three were ejected from the boat, and all described near-death experiences involving physical and psychological trauma.

The boaters argued the 600-pound engine had been installed improperly. The problem was a mismatch between nuts and bolts, the family's lawyers said. The company used Yahama bolts with metric threads and Mercury nuts with English threads, which meant the nuts and bolts didn't fully engage.

Boat owners Feliciano and Mildred Cortes and their daughter Emily Cortes, son-in-law Leduan Diaz and grandson Edwin Cruz Abadia sought more than $2 million in damages from boat manufacturer Sea Fox Boat Co. Inc. and retailer Davey Marine Center in Fort Lauderdale. The family's marine insurance provider, Continental Insurance Co., joined the suit.

The boaters' case seemed strong even though the nuts were lost and never recovered, said Sea Fox lawyer Russell Pfeifer of the Chartwell Law Offices in Miami, who tried the case with colleague Raul Chacon.

And the stakes were higher than just the $2 million claim since Sea Fox needed to keep co-defendant Davey Marine from pursuing a claim against the manufacturer.

"It could have been easy for them to argue that 'Look, this boat is defective but not because of anything we did. All we did was sell the thing,' " Chacon said.

As defense experts began to test the plaintiffs' theory, what they found cleared a path for the defense. If all four nuts had been in place, they would have held even if they were mismatched, the experts concluded.

"Let's assume that the plaintiffs are correct," Pfeifer said. "The only way this engine falls off is if the top two nuts are not in place on the day of the accident."

The top two bolts had no damage, while the bottom two bolts were bent and the nuts were "holding on for dear life," he said. The defense began to believe someone must have altered the mount by removing two nuts.

When the case went to trial last month before Broward Circuit Judge Mily Powell, the plaintiffs took 2½ weeks to present their case. That left defense counsel with a choice: Cut down to a skeleton defense with just a few experts or risk a mistrial with the judge pushing for a trial of no more than three weeks.

The defense lawyers presented their case in just 1½ days, relying heavily on a manual the plaintiffs introduced into evidence and testimony from Feliciano Cortes.

The installation manual for the 24-foot boat contained fine print saying if the engine mount were adjusted higher, the boat would go faster.

Cortes testifed he'd raced cars in his youth, and he had visited the retailer a week before the 2011 accident complaining the boat needed a bigger propeller, Pfeifer said.

"The implication was that this is a man who is by trade an auto mechanic for 40 years, and he's also someone who's had boats for 40 years," the attorney said said. "It wasn't a stretch of the imagination that instead of buying a bigger propeller, which costs money, he could simply raise his engine on the mount, which would require the removal of those nuts."

The jury deliberated for five hours and returned a defense verdict.

The plaintiffs have challenged the March 14 verdict, moving for a liability judgment in their favor and a new damages trial.

The Cortes family argues the evidence doesn't support the verdict: It's very unlikely Cortes could lift the engine without a hoist, and there's no reason to believe he had access to one.

The defense waited until closing arguments to present its theory that Cortes had a need for speed, the March 29 motion adds.

"They then made this astronomical leap of improperly stacked inferences that if Mr. Cortes liked racing cars when he was young, he must have liked to do so as an adult, and if he liked to race cars, he liked to race boats, and therefore he must have moved the engine to get more speed," said the motion filed by Jorge Duarte of the Law Offices of Jorge A. Duarte in Miami and Michael Black and Christian Rodriguez of Cassidy & Black in Miami. Duarte and Black did not respond to a request for comment by deadline.

Pfeifer said the trial was lighthearted at times as defense counsel's references to "Feliciano Cortes' nuts" led to blushing and laughing among the jury.

"We personally had a lot of fun with the case," he said.

Davey Marine, registered as Mr. Wonderful Inc., was represented by William Boeringer of Hayden, Milliken & Boeringer in Coral Gables.

Case: Feliciano Cortes et al. v. Sea Fox Boat et al.

Case no.: 12-26709 CACE 03

Description: Personal injury

Filing date: Sept. 21, 2012

Verdict date: March 14, 2016

Judge: Broward Circuit Judge Mily Powell

Plaintiffs attorneys: Jorge Duarte, Law Offices of Jorge A. Duarte, Miami; Michael Black and Christian Rodriguez, Cassidy & Black, Miami; and Richard McAlpin, McAlpin Conroy, Miami

Defense attorneys: Raul Chacon and Russell Pfeifer, Chartwell Law Offices, Miami; and William Boeringer, Hayden, Milliken & Boeringer, Coral Gables

Verdict amount: For the defense