Marshall Milton Corp. v. Marc Andre Petit-Homme

• Court: District Court of Appeal of Florida
• Decided: July 2, 2025
• Docket: 3D2024-0762
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 2, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-762 Lower Tribunal No. 23-11741-CA-01 ________________

Marshall Milton Corp., Appellant,

vs.

Marc Andre Petit-Homme, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.

Hamilton, Miller & Birthisel, LLP and Jules V. Massee and Kimberly A. Hendee (Tampa), for appellant.

Gerson & Schwartz, P.A., and Edward S. Schwartz and Phillip M. Gerson, for appellee.

Before LOGUE, LOBREE and GOODEN, JJ.

LOBREE, J. Marshall Milton Corporation (“MMC”) appeals an order granting Marc

Andres Petit-Homme’s amended motion for leave to file a second amended

complaint to assert a claim for punitive damages. As there was insufficient

evidence in the record showing willful, callous, or egregious conduct by MMC

in investigating Petit-Homme’s claim and terminating his maintenance and

cure benefits, we reverse.

BACKGROUND

On March 19, 2022, Petit-Homme’s hand and fingers were severely

injured in the course of his employment as a seaman on board a vessel

owned by MMC. Petit-Homme was flown to a hospital in Nassau, Bahamas

where he underwent surgery that included partial amputation of his index

finger. After he was discharged, Petit-Homme stayed in a nearby hotel to

recover and attend a follow-up visit. MMC paid for Petit-Homme’s hospital

stay, hotel, and all of his meals at the time. Petit-Homme eventually returned

to the ship a few weeks later. He was not required to return to work and was

given time to recuperate but opted to perform some of his duties. In July

2022, Petit-Homme chose to leave the ship. Petit-Homme continued to

receive his full pay from MMC and resided in a rent-free apartment provided

to him and his family by MMC.

2 Around two months later, MMC made a claim with its insurance carrier

and turned over the handling of Petit-Homme’s maintenance and cure

benefits to Omega Marine Claims, LLC (“Omega”), the third-party adjuster.

Petit-Homme visited Dr. Charles Hoffler, II at the Miami Hand Institute, which

was paid for by Omega. Petit-Homme came in for an evaluation,

complaining of pain and swelling in his long finger after using his hand at

work. Hoffler did not evaluate Petit-Homme’s index finger. In December

2022, MMC gave Petit-Homme a $10,000 bonus for expenses.

Around that time, the captain of the relevant ship, Scott Sherouse,

asked Petit-Homme to sign some paperwork. Sherouse knew Petit-Homme

had retained a lawyer around this time. According to text messages between

Petit-Homme and Sherouse, this paperwork was needed to place Petit-

Homme on payroll as he recently became a United States citizen. Petit-

Homme declined to sign the paperwork and stated, “Dwall [the first mate]

told me you said don’t come on the boat if I don’t sign the paperwork’s [sic].

And leave without pay. I’m gonna stay away from your boat.” Sherouse

responded that the paperwork was for Petit-Homme to have direct deposit

and reiterated that the paperwork was not a contract. Petit-Homme finally

stated, “Cpt I understand what your [sic] saying but it ok. I’ve been thinking

and I decided that the ocean just isn’t for me anymore. You could call the

3 office and tell them to stop my pay.” After this conversation, MMC ceased

paying Petit-Homme’s salary and rent.

A few weeks after this discussion, Sherouse went to Petit-Homme’s

home and offered him a $175,000 insurance payout to settle his claims.

Petit-Homme declined. In January and February 2023, Petit-Homme’s

counsel sent letters to MMC but neither stated that MMC had failed to provide

maintenance and cure or indicated any amounts MMC failed to pay Petit-

Homme. In February 2023, Sherouse filed a termination form for Petit-

Homme. The resignation form was not signed by Petit-Homme and there

was no formal notice provided by Petit-Homme that he was quitting.

In March 2023, Petit-Homme filed a complaint against MMC for

negligence, unseaworthiness, and negligent failure to provide maintenance

and cure. A month after the complaint was filed, Petit-Homme saw Hoffler

for a second time. Hoffler determined that Petit-Homme had reached

maximum medical improvement (“MMI”) for the damage to his long finger.

He did not examine Petit-Homme’s index finger. This visit was also paid for

by Omega.

The litigation proceeded, and Petit-Homme moved to amend his

complaint to assert a claim for punitive damages. The operative motion

contended that Petit-Homme was entitled to assert a claim for punitive

4 damages because MMC’s failure to provide maintenance and cure was

willful, arbitrary, capricious and in disregard of Petit-Homme’s rights as: (1)

MMC ceased payments to Petit-Homme after he declined to sign the contract

presented to him in December 2022 despite failing to investigate whether

Petit-Homme had actually quit or was wrongfully terminated; and (2) MMC

failed to have Hoffler make any determination as to whether further treatment

was needed for Petit-Homme’s index finger when declaring Petit-Homme

had reached MMI. MMC responded in opposition asserting: (1) Petit-

Homme was not wrongfully terminated, as the evidence shows he quit, and

any failure to provide payments (other than his medical expenses which were

covered by MMC) was a misunderstanding with the insurance company not

a willful decision by MMC to terminate maintenance and cure; and (2) MMC

was entitled to rely on Hoffler’s MMI determination as Petit-Homme never

expressed any issues with or asked for an evaluation of his index finger.

Both parties filed evidentiary proffers. The trial court briefly heard argument

from the parties on the motion and orally granted Petit-Homme’s motion for

leave to amend and add a claim for punitive damages. The trial court later

entered a written order, absent any findings of fact, granting Petit-Homme’s

motion. This appeal followed.

5 ANALYSIS

A trial court’s decision on a motion for leave to amend to add a claim

for punitive damages is reviewed de novo. See Grove Isle Ass’n v. Lindzon,

350 So. 3d 826, 829 (Fla. 3d DCA 2022). Pursuant to section 768.72(1),

Florida Statutes (2023), “no claim for punitive damages shall be permitted

unless there is a reasonable showing by evidence in the record or proffered

by the claimant which would provide a reasonable basis for recovery of such

damages.” Section 768.72 “requires the trial court to act as a gatekeeper,”

which means that the trial court cannot “simply accept[ ] the allegations in a

complaint or motion to amend as true.” Napleton’s N. Palm Auto Park, Inc.

v. Agosto, 364 So. 3d 1103, 1105 (Fla. 4th DCA 2023) (quoting Bistline v.

Rogers, 215 So. 3d 607, 610–11 (Fla. 4th DCA 2017)).

The framework for analyzing when punitive damages are available in

maintenance and cure cases is outlined in Morales v. Garijak, Inc., 829 F.2d

1355, 1358 (5th Cir. 1987):1

When a seaman becomes ill or injured while in the service of his ship, the shipowner must pay him maintenance and cure, whether or not the shipowner was at fault or the ship unseaworthy. This obligation includes paying a subsistence allowance, reimbursing medical expenses actually incurred, and

1 While Morales was abrogated by Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1513 (5th Cir. 1995), Guevara itself was abrogated by Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009), thus reviving Morales.

6 taking all reasonable steps to ensure that the seaman receives proper care and treatment. .... If the shipowner, in failing to pay maintenance and cure, has not only been unreasonable but has been more egregiously at fault, he will be liable for punitive damages and attorney’s fees. We have described this higher degree of fault in such terms as callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent. Thus, there is an escalating scale of liability: a shipowner who is in fact liable for maintenance and cure, but who has been reasonable in denying liability, may be held liable only for the amount of maintenance and cure. If the shipowner has refused to pay without a reasonable defense, he becomes liable in addition for compensatory damages. If the owner not only lacks a reasonable defense but has exhibited callousness and indifference to the seaman’s plight, he becomes liable for punitive damages and attorney’s fees as well.

(emphasis added) (footnotes omitted).

Petit-Homme maintains that MMC acted in a willful, callous, or

egregious manner by terminating his benefits in response to Petit-Homme’s

retention of counsel or refusal of the settlement offer and because it showed

laxness in investigating Petit-Homme’s claim. The United States Court of

Appeals for the Eleventh Circuit has identified factors used to determine

whether punitive damages are warranted in a maintenance and cure case:

“(1) laxness in investigating a claim; (2) termination of benefits in response

to the seaman’s retention of counsel or refusal of a settlement offer; [and] (3)

7 failure to reinstate benefits after diagnosis of an ailment previously not

determined medically.” Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1190

(11th Cir. 1987) (quoting Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th

Cir. 1985)). Upon review of the record, we conclude that Petit-Homme failed

to provide reasonable evidence of willful, callous, or egregious conduct by

MMC.

Petit-Homme first alleged he was entitled to punitive damages because

his benefits were wrongfully terminated by MMC after he retained counsel

and declined a settlement offer. Petit-Homme argues that Sherouse, while

knowing Petit-Homme had retained counsel, insisted that Petit-Homme sign

paperwork regarding payroll and that he would not be allowed on the boat

again if he declined to do so. But the only evidence of this alleged statement

by Sherouse was a text message Petit-Homme sent indicating that the first

mate of the ship informed him he was not to return. Further, less than two

hours after Petit-Homme sent this message, he responded to Sherouse’s

other texts quitting his employment stating, “I decided that the ocean just isn’t

for me anymore. You could call the office and tell them to stop my pay.”

MMC then ceased paying for Petit-Homme’s salary and rent.2 Petit-Homme

2 MMC’s insurer continued to pay for Petit-Homme’s medical appointments with Hoffler until he reached MMI.

8 never attempted to contact any other member of MMC after this point or

indicated that he had been wrongfully terminated. Based on the proffered

evidence, MMC merely terminated benefits because Petit-Homme quit his

job. Thus, we conclude there is insufficient evidence to demonstrate that

MMC willfully, callously, or egregiously terminated Petit-Homme’s benefits in

response to his hiring of an attorney.

Similarly, Petit-Homme failed to proffer sufficient evidence that MMC

willfully, callously, or egregiously terminated his benefits in response to his

declining a settlement offer. Based on the evidence, a few weeks after Petit-

Homme quit his job, Sherouse went to Petit-Homme’s home and offered him

a $175,000 insurance payout to settle his claims. Petit-Homme declined.

This settlement offer, however, was made after MMC ceased paying for

Petit-Homme’s benefits. Petit-Homme cannot assert that MMC willfully,

callously, or egregiously terminated his benefits after he declined a

settlement offer when his benefits were terminated before the settlement

offer was made.

Petit-Homme next contends that MMC acted in a willful, callous, or

egregious manner by showing laxness in investigating his claim because it

“refused” to consider the impact of the injury to his index finger. Petit-Homme

relies on testimony from Hoffler that he was never instructed to review the

9 injury to the index finger as evidence that MMC was lax investigating Petit-

Homme’s claim. Review of Hoffler’s testimony shows he stated that he did

not evaluate the index finger because Petit-Homme never complained of any

pain in his index finger, never requested a review of the index finger, and the

worker’s compensation agency asked Hoffler to evaluate Petit-Homme’s

long finger, not his index finger. Further, Hoffler never received any

correspondence from any referring agency or person noting an impairment

rating was needed for the index finger.

Additionally, Hoffler testified that at the first appointment despite the

index finger being partially amputated, the injury was “remarkably benign”

and the potential impairment rating for index finger was five percent, meaning

Hoffler likely would have determined MMI for the index finger was reached

at the second appointment. Based on this evidence, Petit-Homme therefore

cannot contend that MMC showed laxness in investigating his claim because

it merely relied on Hoffler’s MMI finding. See Magical Cruise Co. Ltd. v.

Martins, 330 So. 3d 993, 1000 (Fla. 5th DCA 2021) (“[A]n employer’s reliance

on the advice and opinion of a plaintiff’s treating physician negates the

conclusion that the employer was acting callously when terminating the

plaintiff’s maintenance benefits.” (quoting Ward v. Inland Marine Servs., Inc.,

No. PCA 85-4444-RV, 0087 WL 882138, at *3 (N.D. Fla. Jan. 27, 1987))).

10 As Petit-Homme failed to proffer sufficient evidence that MMC acted in

a willful, callous, or egregious manner by wrongfully terminating his benefits

after he retained counsel and declined a settlement offer, or by showing

laxness in investigating his claim, we conclude the trial court erred in granting

his motion for leave to amend and add a claim for punitive damages.

Reversed and remanded.