D-I DAVIT INTERNATIONAL-HISCHE GMBH,

v.

JELEN CARPIO, ETC., ET AL.,

Third District Court of Appeal State of Florida

Opinion filed August 17, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0338 Lower Tribunal No. 18-13783 ________________

D-I Davit International-Hische GMBH, Appellant,

vs.

Jelen Carpio, etc., et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, and Steven C. Jones and Anthony P. Strasius, for appellant.

Lipcon, Margulies, Alsina & Winkleman, P.A., and Michael A. Winkleman and Carol L. Finklehoffe, for appellee Jelen Carpio.

Before LOGUE, LINDSEY, and BOKOR, JJ.

BOKOR, J.

BACKGROUND

Mr. Carpio worked for NCL (Bahamas) Ltd. as a seaman with the rank of second officer.³ On July 20, 2016, Mr. Carpio was working aboard the Norwegian Breakaway in the navigable waters around Bermuda. On that day, Mr. Carpio was assigned to participate in several lifeboat/rescue boat

1 We recognize the extensive procedural history of this case and the existence of multiple claims not addressed in this appeal. However, this appeal only addresses Ms. Carpio’s state law claims against Davit DE in counts VI and VII of the amended complaint.² We have jurisdiction. Fla. App. R. 9.130(a)(3)(C)(i).³ Mr. Carpio was a Filipino citizen, not a resident of Florida, at the time of the accident resulting in his fatal injury.

ANALYSIS

We review de novo a trial court’s order denying a motion to dismiss for lack of jurisdiction. Fincantieri-Cantieri Navali Italiani S.p.A. v. Yuzwa, 241 So. 3d 938, 941 (Fla. 3d DCA 2018). General jurisdiction over a non-resident defendant requires “substantial and not isolated activity within this state.” § 48.193(2), Fla. Stat. (2016).4 That is, a plaintiff must show that a defendant engaged in “‘continuous and systematic general business contact’ with the state.” Banco de los Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1134 (Fla. 3d DCA 2018) (citing Vos, B.V. v. Payen, 15 So. 3d 734, 736 (Fla. 3d DCA 2009)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (explaining that a court may assert general jurisdiction over a foreign corporation when “their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State”) (citations omitted). Here, Ms. Carpio alleges that Davit DE is a foreign for-profit corporation “doing business in Florida through its agent

4 Section 48.193(2), Florida Statutes, reads: “A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.”

949 So. 2d at 1146. Ms. Carpio failed to allege any facts demonstrating that Davit DE itself engaged in any business activities in this state,⁵ or that Davit

5 The fact that Davit DE’s affidavit admits that it rented warehouse space in Florida, on its own and without more, fails to constitute “continuous and systematic general business contact with the state” necessary to establish general jurisdiction.

Ms. Carpio similarly fails to allege facts sufficient to establish specific jurisdiction. Specific jurisdiction requires a “claim-specific” analysis, governed by section 48.193(1)(a), Florida Statutes.⁶ Banco, 237 So. 3d at 1133. The “provisions of Florida’s long-arm statute governing specific jurisdiction expressly require allegations both: (i) that the defendant does one of the enumerated acts within Florida, and (ii) that the plaintiff’s cause of action ‘arise from’ one of the enumerated acts occurring in Florida.” Id. at 1135. These dual requirements are known as the statute’s connexity requirement. Id. Accordingly, we conduct a separate analysis for each claim.

6 Section 48.193(1)(a), Florida Statutes, explains that:

[a] person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts . . . .

Ms. Carpio’s cause of action for breach of warranty claims suffers from a similar deficiency. The claim “requires a [showing that a contract was breached] in Florida ‘by failing to perform acts required by the contract to be performed in this state.’” Woodruff-Sawyer & Co. v. Ghilotti, 255 So. 3d 423, 430 (Fla. 3d DCA 2018) (applying section 48.193(1)(a)(7), Florida Statutes). An implied warranty of fitness for a particular purpose is conditioned upon the buyer’s reliance on the skill

7 Davit DE attached the declaration of Joachim Wiese, general manager of Davit DE, to its motion to dismiss. Wiese attested that: (1) Davit DE’s products, including the subject davits, are designed and manufactured by Davit DE in Germany; (2) Davit DE manufactured and sold the subject davits in Germany pursuant to an October 29, 2010 purchase order from the Mayer Werft shipyard, located in Papenburg, Germany; (3) the subject davits were installed on the Norwegian Breakaway in Papenburg, Germany; (4) construction of the Norwegian Breakaway was completed in February 2013; (5) NCL engaged Davit DE for annual inspection services regarding the davits installed aboard the Norwegian Breakaway; and (6) Davit DE personnel embarked on the Norwegian Breakaway in New York City and performed all work “on sea” onboard the vessel. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502–03 (Fla. 1989) (explaining that a defendant contests allegations of the complaint concerning jurisdiction by filing affidavit(s) supporting his position and that the burden shifts to the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained). In response, Ms. Carpio filed Wiese’s Deposition which refutes none of the salient points in the declaration.

McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So. 2d 736, 738 (Fla. 1965) (citations omitted). A cause of action for breach of an implied warranty of fitness for a particular purpose focuses on the relationship between the buyer and the seller; here, Meyer Werft⁸ and Davit DE. See Atlantic Distribs., Inc. v. Alson Mfg. Co., 141 So. 2d 305, 306 (Fla. 3d DCA 1962) (“An implied warranty of fitness for which an article is purchased arises as a matter of law where a buyer makes known to the seller the purpose for which he buys an article and relies upon the seller’s skill and judgment.”) (emphasis added); see also Chrysler Corp. v. Miller, 310 So. 2d 356, 357 (Fla. 3d DCA 1975) (defining implied warranty of fitness for a particular purpose as, “[w]here a seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods,

8 Davit DE manufactured and sold the subject davits in Germany pursuant to an October 29, 2010 purchase order from the Meyer Werft shipyard, located in Papenburg, Germany where Meyer Werft constructed the Norwegian Breakaway. Additionally, the davits were installed on the subject vessel in Germany.

9 As explained, Mr. Carpio, a citizen of the Philippines, lacked any connection to Florida and the accident underlying the causes of action occurred outside of Florida’s jurisdiction. By interjecting the inspection contracts entered in Florida, Ms. Carpio attempts to provide the necessary hook to trigger specific jurisdiction over the claims at issue. The attempt fails, however, because even if we were to agree that the inspection contract conferred third-party beneficiary status on Mr. Carpio, the lack of connexity to the claims alleged bars a finding of specific jurisdiction.