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When Hurricane Opal hit the Florida Panhandle on Oct. 4, 1995, she
brought a 15-foot storm surge, 125 mph winds and the power to wreck
$50 million worth of boats alone. The Category 3 storm still stands
as the fourth costliest hurricane on record with $3 billion in
property damages. Among the thousands of coastal businesses that
suffered severe damage that year was Mel's Marina in Pensacola.
To try to recoup some of his losses, owner Mel Burklow took an
unusual step: he filed a lawsuit against the boat owners in his
marina who did not follow his orders that they move their boats
out in the hours prior to Opal's landfall.
In a clear victory for boat owners, a Florida Court of Appeals
upheld the lower court's dismissal of Burklow's lawsuit on September
17, reaffirming a 1994 Florida law that protects boat owners
from being evicted from marinas after a hurricane watch or warning
has been issued.
As this issue goes to press, this decision has not been appealed
to the Florida Supreme Court and is unlikely to be, said one
attorney who worked on the case. This is the first time there's
been a court test of this statute.
"The court ruled (the 1994 law) was an appropriate exercise
of the state's authority to protect lives over property," said
Robert Gaines, a Pensacola attorney who represented two of the
defendants who are Association members, insured with BoatUS Marine
Insurance.
The decision may also serve to broaden
the protection of boat owners because in this case the timing
of the order to move boats out was not even brought up as part
of the case. The appeals court ruled that boat owners are under
no obligation to move even prior to a hurricane watch or warning
being issued. The decision does note, however, that boat owners
do have an obligation "to
take all other reasonable precautions to protect the marina" in
a hurricane threat, such as properly mooring the boat, removing
loose objects and tying down items that cannot be removed.
According to Gaines, while Burklow's contract with slipholders
did not contain language saying boats had to leave when a hurricane
was imminent, it did say boat owners were responsible for any
damage they did to his docks in general.
Louis K. Rosenbloum, the attorney who
handled the appeal for Burklow, said all of the other boat
owners in the marina had moved their boats to surrounding rivers
and bays. Burklow alleged that the boats left behind were propelled
by the hurricane into his structures on shore, damaging docks,
pilings, bulkheads and utility lines and that he should be
compensated. He contended that the boat owners were "negligent" by
electing not to move their vessels.
Burklow's lawsuit never indicated whether a hurricane watch
or warning had been issued when he told his customers to move
their boats, but the court ruled that as a matter of law, boat
owners do not have to move their boats because the potential
for damage from a storm is too speculative.
The 1994 Florida statute (Section 327.59) was actually passed
in response to a bill pushed by Florida marina owners after Hurricane
Andrew in 1992. In 1993, when the Florida legislature began work
on an overall disaster preparedness bill, marina owners wanted
to include a section allowing them to evict boats when a hurricane
watch or warning is issued. The bill quickly drew opposition
from organizations, including BoatUS, who argued that forcing
people out on the water in the hours before a hurricane hits
is unsafe and puts a priority on protecting property over lives.
Marina owners argued that without this eviction provision they
could not obtain property insurance and would be forced out of
business. The bill protecting boat owners was signed into law
in May, 1993 and went into effect on March 1, 1994.
With nearly 800,000 registered boats, Florida's more populated
areas don't have nearly enough protected canals, rivers or bays
to accommodate all the boats that are kept in marinas. While
marine insurance claims have shown that moving a boat inland
to a hurricane hole or taking it out of the water before a hurricane
are the best course of action, many boats have fared just as
well when they're properly tied up at a dock.
Judging from the numerous calls from Florida BoatUS members
in recent years, many marinas still have eviction clauses in
their slip contracts. The upshot of this recent case is that,
regardless of what a contract says, the marina owner cannot hold
boaters responsible for storm damage simply because they did
not move their boats out of the marina.
Burklow's attorney said that even though
this decision was in the state's First District Appeals Court,
it's essentially the "law
of the land" in Florida unless another district court comes
to a different conclusion.
By Elaine Dickinson
©Copyright BoatUS Magazine, January
1999
May not be reprinted without permission.
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