Endless Summer owner seeks new trial, appeals $70 million award

Mar 27, 2018 by Triton Staff

Update March 27, 2018

A judge on March 19 denied the owner’s motion for a new trial in the case of a crew who was raped aboard and won a $70 million verdict against the yacht owning company. But the denial was not in writing, meaning this motion is not resolved and the owner’s appeal cannot move forward.

The circuit judge has ordered mediation. Attorneys on both sides have been communicating for the past week to arrange that.

Original post March 19, 2018

The owner of M/Y Endless Summer, a 150-foot Feadship where a woman was raped in February 2015, has filed an appeal of the Jan. 29 jury verdict and its $70 million award.

Though a motion to have the verdict set aside was denied, the circuit judge in Broward County has not yet ruled on a motion for a new trial. All post-trial motions must be ruled on before the case can be appealed.

Attorneys for Island Girl Ltd., which owns the yacht, note in their motions that the woman’s attorney tainted the jury in his “highly improper and inflammatory” closing argument, prompting them to return the “truly staggering” $70.56 million award, an amount “wildly out of line” with comparable Florida verdicts.

“The award for past noneconomic damages ($6 million) and future noneconomic damages ($60 million) is ‘so excessive’ as to indicate that the jury was influenced by passion, prejudice, sympathy or other improper motive or nonevidentiary consideration,” the motion reads.

“The $66 million noneconomic damage award is clearly excessive and vastly greater than comparable jury verdicts that also involved violent sexual assault,” the motion reads, and goes on to note that the Florida Second District Court of Appeal ruled that an award of almost $3.6 million “for past and future pain and suffering damages was excessive when compared to other cases and holding that the trial court abused discretion in denying defendant’s motion for remittitur.” A remittitur is a ruling by a judge lowering the amount of damages granted by a jury in a civil case.

The lawyers allege that the “typical range” of compensatory pain and suffering awards in Florida for sexual assault range from $750,000 to $1.25 million.

“When compared with jury verdicts from around the state, this verdict was reached through passion and prejudice resulting from the jury’s anger and punishment against Island Girl Ltd. and its failure to prevent a brutal sexual assault by another crewmember,” according to the motion. “… The jury misconceived the principle that noneconomic damages are an award to compensate [the woman] for her noneconomic damages, not an award to punish Island Girl Ltd. and its officers and employees. There is no reasonable relationship between the non-economic damages and the amount awarded, other than for Island Girl Ltd. to feel the sting of the jurors’ anger.”

The owner’s attorneys also note that the jury’s determination of $4.2 million future net loss wages were based on the woman’s wish to be a yacht engineer, but that she hadn’t made any moves in that direction and had only just started in the industry. The jury awarded her $100,000 a year for the 42 years of her expected work life even though she had just entered the yacht industry and had taken her STCW in January, a few weeks before the attack.

There was also some legal arguments surrounding the attacker’s legality to work in the United States. According to court documents, deckhand Rafal Dowgwillowicz-Nowicki had a B1/B2, but it was uncertain if it was issued for work on this vessel. (Changing jobs inside the United States while admitted under a B1 is illegal.) Testimony on this point was originally ruled inadmissible, but then it was admitted. When the defense objected, the judge overruled it and the testimony was allowed, according to the owner’s motion.

“The immigration evidence was, by definition, drastically more prejudicial than probative,” the motion asserts. “Indeed, Mr. Nowicki’s immigration status has no relevance. Not having the proper visa is not indicative of violent criminal behavior. … There can be little doubt that because immigration is presently a hot-button issue, the introduction of … irrelevant testimony on Mr. Nowicki’s immigration status and unlawful hiring based on that status, likey inflamed the passions of the jury and was unduly prejudicial to Defendant.”

The court also allowed a redacted version of the vessel’s registry certificate. Whether the vessel was “in navigation” was critical in determining if the woman was a seaman under the Jones Act. According to the motion, the certificate was restricted and said “This Certificate is Only Valid While the Vessel Remains in Laid-Up Status and is Not Valid for Navigation.” The woman’s attorneys objected and the judge initially ruled the certificate inadmissible, but then allowed it with the “in navigation” and “laid-up status” references redacted.

“A new trial under these extraordinary circumstances is warranted and appropriate,” the yacht owner’s lawyers allege. A hearing is scheduled for today.

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