Momentous Victory for Cruise Victims; Federal Appeals Court Returns Costa Concordia Cases to Florida State Courts

Marc Jay Bern and Mitchell Proner, lead Attorneys for 104 survivors of the 2012 Costa Concordia cruise ship disaster, announced that their clients have won another victory against Carnival Corporation when the U.S. Court of Appeals for the Eleventh Circuit remanded their claims yesterday to the Florida State Court for continued litigation. The July 1, 2013 order affirmed the District Court’s prior remand order, concerning two cases, Abeid-Saba, et al., v. Carnival Corporation et al., (Docket No.: 12-CV-23513) and Scimone, et al. v. Carnival Corp. et al. (“Scimone II”), (Docket No.: 12-CV-23505).  Both cases arise from plaintiffs’ claims that they were injured when the Costa Concordia capsized after grounding off the Italian coast. 

Both cases were initially commenced in the Florida State Court against Carnival Corp. as the parent corporation as well as ship’s designers and the architect. Defendants removed the cases to the Federal Court under the CLASS ACTION FAIRNESS ACT OF 2005 (“CAFA”), which allows for the removal to federal courts of so-called “mass actions”. The Circuit Court affirmed the federal District Court, holding in a case of first impression that CAFA did not apply because neither case met the CAFA minimum of 100 plaintiffs nor could they be consolidated solely for the purpose of meeting that threshold standard.  The July 1, 2013 decision is a momentous and far-reaching limitation of defendants’ ability to pull plaintiffs’ cases into the federal courts under CAFA.

A copy of the decision may be obtained from the Circuit Court’s website: http://www.ca11.uscourts.gov/opinions/ops/201312291.pdf .

On remand, both cases will be litigated before Florida’s Eleventh Judicial Circuit in Miami.  Plaintiff’s counsel Marc Jay Bern believes the Florida Supreme Court’s recent decision in Cortez v. Palace Resorts, Inc. et. al.  2013 WL 3068147 (June 20, 2013) lends further support to the District Court’s remand order.  In Cortez, the Court clarified its prior holding in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), that out-of-state residents are entitled to the same strong presumption in initial choice of forum as Florida residents, that the public interest test must always be applied in forum non conveniens analysis and that the public interest test favors Florida retaining jurisdiction when there are Florida defendants, who regularly appear before Florida courts and may have violated duties imposed by Florida law. As the Cortez court recognized, the doctrine of forum non conveniens “is not designed to empower defendants to disadvantage plaintiffs by engaging in reverse forum-shopping where … litigating in Florida would not cause a substantial burden to the defendant. 

Plaintiffs’ counsel Bern and his co-counsel Mitchell Proner both expressed the hope that the Costa Concordia plaintiffs’ punitive damages claims of half a billion dollars will influence Carnival Corp. and other travel industry entities to abandon their pursuit of profits over passenger safety. The Costa Concordia plaintiffs are represented by Napoli Bern Ripka Shkolnik & Associates LLP and Proner & Proner. At least $2 million dollars in compensation is sought per passenger and attorneys plan to request $590 million dollars in punitive damages.

Bern and Proner both offered their congratulations to new Carnival CEO Arnold W. Donald, saying they look forward to resolving their clients’ claims with the new Carnival regime.  “We trust this new administration will stop putting profits before safety so that the public can be assured that a Carnival cruise is not only a fun-filled and reasonably priced getaway, but that they and their families will be safe aboard a Carnival ship,” said Bern.

Contact Information

Marc Jay Bern

Senior Partner

Napoli Bern Ripka Shkolnik & Assoc., LLP

(1) (516) 631-4909

mjbern@napolibern.com