CARELESS NAVIGATOR

AMENDED COMPLAINT

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO.:  05-17386 CACE (21)

Honorable Judge Miette K. Burnstein

Florida Bar No.: 132934

PAUL RENNEISEN and PATRICIA

RENNEISEN,

                                    Plaintiffs,

vs.       

RICHARD STEVEN MAGILL and

LISA A. MAGILL,

Defendants.

____________________________/

FIRST AMENDED COMPLAINT

COME NOW the Plaintiffs, PAUL RENEISSEN and PATRICIA RENEISSEN, by and through their undersigned counsel, and herewith sue the Defendants, RICHARD STEVEN MAGILL and LISA A. MAGILL, and upon information and belief allege and present to this Honorable Court as follows:

Jurisdictional Allegations

1.                  At all times material hereto, Plaintiffs were and are residents of Broward County, Florida.

2.                  At all times material hereto Defendants were and are residents of Broward County, Florida, and are otherwise sui juris

3.                  This Honorable Court may properly take jurisdiction of this matter because the acts and/or omissions complained of herein occurred in and upon Florida’s Intracoastal waterway, within Broward County, and the amount in controversy exceeds $15,000.00.

4.                  This matter involves a collision between two vessels upon the navigable waterways of the United States, and as such is governed by the Laws of Admiralty of the United States pursuant to the “Saving to Suitors” Clause of the Judiciary Act of September 24, 1789 (1 Stat. 73, Ch. 20, sec 9). 

General Allegations

5.                  At all times material hereto, Plaintiffs were the owners of the vessel "Chez Paul," a 1991 "Beneteau," 38 foot motoryacht, official number 05541313 (hereinafter referred to as the "Stopped Vessel”).

6.                  At all times material hereto, Defendants were the owners of the vessel "Careless Navigator," a 2000 "Proline," 30 foot motoryacht, Florida License number FL1919MB  (hereinafter referred to as the "Speeding Vessel").

7.                  On or about April 18, 2004, shortly after midnight, Plaintiff PAUL RENEISSEN and his two minor children, were aboard Stopped Vessel, which was underway on the Intracoastal waterway and stopped in the Idle Speed Zone just south of the Commercial Boulevard bridge waiting for the bridge to open.

8.                  At that time and place, Defendant, RICHARD STEVEN MAGILL, was aboard the Speeding Vessel and was operating, or was in control of the operations of the vessel.

9.                  At that time and place, LISA A. MAGILL, was aboard the Speeding Vessel and was operating, or was in control of the operations of the vessel.

10.              At that time and place, while the Stopped Vessel sat idle in the Idle Speed Zone, the Speeding Vessel with Defendants and a guest aboard was proceeding north at a very high rate of speed on a course bearing directly upon the Stopped Vessel.

11.              Minutes thereafter, the Speeding Vessel entered the Idle Speed Zone and collided with the Stopped Vessel causing extensive damage for which the instant lawsuit is brought.  

COUNT - I

NEGLIGENCE

12.              Plaintiffs reallege and incorporate by reference all paragraphs occurring before Count I of this Complaint as if fully set forth herein, and further allege:

13.              This is an action against Defendants to recover damages resulting from their negligent operation of the Speeding Vessel.

14.              As the operator of the Speeding Vessel, Defendant Richard MAGILL owed Plaintiffs a statutory duty to exercise the highest degree of care in his operation of the Speeding Vessel in order to prevent injuries to others.  Likewise, as the owner on board the vessel at the time of accident, Defendant Lisa MAGILL owed Plaintiffs a statutory duty to exercise the highest degree of care in insuring the proper entrustment and operation of the Speeding Vessel in order to prevent injuries to others.

15.              Defendants breached their duty to Plaintiffs before and during their operation of the Speeding Vessel, and were therefore negligent, by committing the following acts or omissions:

a.       by consuming alcohol during their operation, or while docked or moored, at places prior to the completion of their operation of the Speeding Vessel.

b.      by operating the Speeding Vessel while physically or mentally impaired in contravention of the Laws of the State of Florida.

c.       by operating the Speeding Vessel under the influence of alcohol in contravention of the Laws of the State of Florida.

d.      by operating the Speeding Vessel at a speed greatly in excess of the posted speed limit for a “NO WAKE” or “IDLE SPEED” zone in contravention of the Laws of the State of Florida;

e.       by failing to maintain a proper lookout where same would have prevented the accident in contravention of Rule 5 of the Inland Navigation Rules Act of 1980;

f.        by failing to proceed at a safe speed so as to take proper action to avoid a collision in contravention of Rule 6 of the Inland Navigation Rules Act of 1980;

g.       by failing to determine whether a risk of collision existed in contravention of Rule 7 of the Inland Navigation Rules Act of 1980;

h.       by failing to keep out of the way of a sailing vessel in contravention of Rule 18 (a) iv. of the Inland Navigation Rules Act of 1980.

16.              Defendants’ negligence caused the Speeding Vessel to collide with the Stopped Vessel causing serious and extensive damage to the Stopped Vessel.

17.              Defendants’ negligence was the direct and proximate cause of the incident described herein and the concomitant damage suffered by Plaintiffs.

WHEREFORE, Plaintiffs, PAUL RENEISSEN and PATRICIA RENEISSEN, demand judgment against Defendants, RICHARD STEVEN MAGILL and LISA A. MAGILL, for damages and for such other and further relief as this Honorable Court deems necessary in the interest of justice.  

COUNT - II

GROSS NEGLIGENCE

18.              Plaintiffs reallege and incorporate by reference all paragraphs occurring before Count I of this Complaint as if fully set forth herein, and further alleges:

19.              This is an action against Defendant Richard MAGILL to recover damages resulting from his grossly negligent, careless, willful, wanton and reckless operation of the Speeding Vessel.

20.              As the operator of the Speeding Vessel, MAGILL owed Plaintiffs a statutory duty to exercise the highest degree of care in his operation of the Speeding Vessel in order to prevent injuries to others.

21.              MAGILL breached his duty to Plaintiffs before and during his operation of the Speeding Vessel by committing the following acts or omissions:

a.       by consuming alcohol during their operation, or while docked or moored, at places prior to the completion of their operation of the Speeding Vessel.

b.      by operating the Speeding Vessel while physically or mentally impaired in contravention of the Laws of the State of Florida.

c.       by operating the Speeding Vessel under the influence of alcohol in contravention of the Laws of the State of Florida.

d.      by operating the Speeding Vessel at a speed greatly in excess of the posted speed limit for a “NO WAKE” or “IDLE SPEED” zone in contravention of the Laws of the State of Florida;

e.       by failing to maintain a proper lookout where same would have prevented the accident in contravention of Rule 5 of the Inland Navigation Rules Act of 1980;

f.        by failing to proceed at a safe speed so as to take proper action to avoid a collision in contravention of Rule 6 of the Inland Navigation Rules Act of 1980;

g.       by failing to determine whether a risk of collision existed in contravention of Rule 7 of the Inland Navigation Rules Act of 1980;

h.       by failing to keep out of the way of a sailing vessel in contravention of Rule 18 (a) iv. of the Inland Navigation Rules Act of 1980.

22.              MAGILL’s conduct in connection with his operation of the Speeding Vessel as afore-described was willful, wanton and reckless, and therefore equivalent to an intentional act.

23.              Alternatively, MAGILL’s conduct as afore-described evinces a conscious indifference to the consequences of that act, and was performed with complete disregard for human life and the safety of other boaters.

24.              MAGILL’s conduct as afore-described rises to the level of gross negligence.

25.              MAGILL’s gross negligence was the direct and proximate cause of the incident described herein and the concomitant damage suffered by Plaintiffs.

26.              MAGILL’s gross negligence ought not be tolerated in a civilized community so uniquely connected with maritime commerce and pleasure boating such as Broward County, Florida.

27.              Plaintiffs herein demand an award of punitive damages against MAGILL in an amount sufficient to punish his conduct and to deter such conduct in the future.

WHEREFORE, Plaintiffs, PAUL RENEISSEN and PATRICIA RENEISSEN, demand judgment against Defendants, RICHARD STEVEN MAGILL, for actual damages both economic and noneconomic, punitive damages, and for such other and further relief as this Honorable Court deems necessary in the interest of justice.  

DEMAND FOR JURY TRIAL

            Plaintiffs, PAUL RENNEISEN and PATRICIA RENNEISEN, demand trial by jury of all causes of action contained herein so triable as a matter of right.

            Respectfully submitted,

LAW OFFICE OF DAVID M. SCOTT, P.A.

Counsel for Plaintiffs

Pine Island Commons

8551 West Sunrise Blvd., Suite 210

Plantation, Florida 33322

Tel:  (954) 318-1400

Fax:  (954) 476-2382

By:____________________________

DAVID M. SCOTT, Esq.

Florida Bar No. 0132934

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO.:  05-17386 CACE (21)

Honorable Judge Miette K. Burnstein

Florida Bar No.: 132934

PAUL RENNEISEN and PATRICIA RENNEISEN,

                                    Plaintiffs,

vs.       

RICHARD STEVEN MAGILL and

LISA A. MAGILL,

Defendants.

____________________________/

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

AND TO ASSERT CLAIM FOR PUNITIVE DAMAGES

COME NOW the Plaintiffs, PAUL RENEISSEN and PATRICIA RENEISSEN, by and through their undersigned counsel, and herewith move this Honorable Court for leave to file the attached First Amended Complaint wherein Plaintiffs would assert their claim against Defendant, RICHARD STEVEN MAGILL, for punitive damages, and in support thereof would show unto the Court as follows:  

Précis

This matter involves a collision between a sailboat and a motorboat in Florida’s Intercoastal Waterway.  Plaintiffs will show herein, as they would at the trial of this case, that Defendant, RICHARD STEVEN MAGILL, was operating his motorboat illegally at high rate of speed through a “no wake-idle speed” zone when he collided with Plaintiffs’ sailboat that was lawfully and properly stopped awaiting the opening of a nearby bridge. 

Under Florida law, 1) a “no wake-idle speed” zone “indicates a boating restricted area which has been established to protect the safety of the public;” 2) “idle speed” means the slowest speed at which it is still possible to maintain steerage and headway, and that the vessel should not produce a wake at this speed; and 3) “no wake” is defined as a speed at which a vessel is operating fully off plane and is completely settled in the water; the vessel's wake must not be excessive, nor create a hazard to other vessels.[1] 

In contravention of the “no wake-idle speed” law, at the time of impact Defendants’ motorboat was traveling no less than ten to fifteen (10-15) miles per hour, an excessive speed that caused the boat’s bow to rise up approximately three (3) feet higher than it would be if it were completely settled in the water as required.  As a result, the motorboat’s bow blocked MAGILL’s forward vision.  Plaintiffs’ expert witness, a licensed marine surveyor, has testified that the motorboat’s bow rise was the result of it being “out of the power adjustment curve,” a period of time that occurs when a power driven boat is either coming up on, or down from, a “plane.”  Florida law prohibits this activity even in the more permissive “slow speed-minimum wake” areas.[2]

Although his motorboat was still functioning after the collision, at no time did MAGILL return to the sailboat to offer assistance.  Rather, MAGILL chose to remain some distance away until rescue personnel arrived.

Police officers arriving at the scene of the accident found numerous empty alcoholic beverage containers strewn about the deck of MAGILL’s motorboat.  Official police reports prepared by officers at the scene of the accident state that MAGILL had alcohol on his breath, that his eyes were glassy and bloodshot, that his speech was slurred and that he could not stand without swaying from front to back and from side to side.  He was, according to law enforcement officers, legally impaired and was therefore arrested, taken into custody and charged with boating under the influence of alcohol (BUI).  He refused a blood alcohol test.

Although he did not testify at his criminal trial, Defendant MAGILL now admits that he had been drinking alcohol prior to commencing operation of his motorboat, and even acknowledges taking an alcoholic beverage with him and drinking it while he was operating his motorboat. He acknowledges then visiting a restaurant, and later visiting a bar where he also consumed alcohol before again operating his motorboat.  Minutes later he crashed into the Plaintiffs sailboat.  Unbelievably, none of the six (6) passengers involved sustained serious injury.  

Record Evidence Supporting Claim for Punitive Damages

Plaintiffs have obtained the following record evidence and intend to offer same at the trial of this cause in support of an award of punitive damages:

1.             It is undisputed that MAGILL began drinking alcohol at his home prior to operating his motorboat.  R. Magill depo, p. 9.

2.             It is undisputed that Lisa Magill packed a cooler full of alcoholic beverages, including wine and vodka, for consumption during their boating outing.  L. Magill depo, p. 37.

3.             It is undisputed that Richard MAGILL placed the cooler full of alcoholic beverages on his motorboat.  C. Brennan depo, p. 31.

4.             It is undisputed that MAGILL also carried an open glass containing an alcoholic beverage with him onto his motorboat and drank it while operating his motorboat.  R. Magill depo, p. 10; L. Magill depo, p. 9; C. Brennan depo, p. 9.

5.          Shortly thereafter, MAGILL docked his boat at a local bar/restaurant called the Tap Room where he had dinner, but denies consuming any alcohol.[3]  R. Magill depo, p. 10. 

6.             After dinner, MAGILL and his passengers went to a bar called the Treasure Trove where MAGILL consumed more alcohol.  R. Magill depo, p. 9; C. Brennan depo, p. 9.

7.             After leaving the Treasure Trove bar, MAGILL and his passengers boarded his motorboat and MAGILL once again began operating his motorboat after having admittedly consumed alcohol.  R. Magill depo, p. 11.

8.             A short time later, Plaintiff Paul Renneisen, who was aboard the sailboat and stopped several feet away from the Commercial Blvd. Bridge, was alerted to the noise of a motorboat’s engines and turned to see MAGILL’s motorboat approaching the “no wake/idle speed” at a high rate of speed, bearing directly on a collision course with his sailboat.  MAGILL’s motorboat did not reduce its speed as it entered the “no wake/idle speed” zone.  Affidavit of P. Renneisen; Affidavit of B. Renneisen.

9.             No more than two seconds before impact, MAGILL suddenly noticed Plaintiffs’ stopped sailboat and yelled out an expletive.    R. Magill depo, p. 18; L. Magill depo, p. 18.

10.             At the time of impact, Defendants’ motorboat was traveling no less than ten to fifteen (10-15) miles per hour, an excessive speed that caused the boat’s bow to rise up approximately three (3) feet higher than it would be if it were completely settled in the water as required.  As a result, the motorboat’s bow blocked Richard MAGILL’s forward vision.  Affidavit of Licensed Marine Surveyor Charles Stephens.

11.             Although his motorboat was still functioning after the collision, and while he admittedly was unsure whether anyone had been injured, at no time did Richard MAGILL return to the sailboat to offer assistance.  Rather, MAGILL chose to remain some distance away until rescue personnel arrived.  R. Magill depo, p. 39.

12.             Richard MAGILL had previously been arrested for boating under the influence (BUI), as well as driving under the influence (DUI).  R. Magill depo., pp. 30-32.

13.             Richard MAGILL knew that alcohol impairs one’s senses and reaction time, and that it is illegal to operate a boat while under the influence of alcohol.  R. Magill depo, p. 33.

14.             Richard MAGILL was familiar with the area where the crash occurred and knew that other vessels might be stopped ahead of him awaiting the opening of the bridge.  R. Magill depo, p. 35.

15.             Despite the knowledge that Richard MAGILL expressed in paragraphs 13 and 14 above, he chose to operate his vessel at a high rate of speed through a “no wake-idle speed” zone while under the influence of alcohol.  Affidavit of P. Renneisen; Affdavit of B. Renneisen; Affidavit of Charles Stephens.

MEMORANDUM OF LAW

A.             Standard for Amending Complaint  

The present philosophy, as expressed in our Rules of Civil Procedure, is to allow both plaintiff and defendant to plead alternatively in presenting their claims . . . [is] that amendments are allowed “[a]t any time in the furtherance of justice, upon such terms as may be just.”  Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 506-507 (Fla. 1992) (quoting Fla. R. Civ. P. 1.190(e)). “The purpose of this philosophy is to ensure that the truth of the matter can be determined and that all claims are properly resolved on their merits.”  Green, supra.  The attached proposed First Amended Complaint does not alter the basic issue in this action and will not prejudice the opposing party.  Rather, it more specifically describes the acts and omissions that form the basis upon which relief is sought, thereby properly pleading a separate cause of action for gross negligence.  In addition, the requested amendment sets forth Plaintiffs’ claim for punitive damages arising from Defendant RICHARD STEVEN MAGILL’s grossly negligent, willful, callous, wanton and reckless disregard to the rights of others in his operation of his motor boat that is the direct and proximate cause of Plaintiffs’ damages.

B.             Standard for Asserting Claim for Punitive Damages  

A defendant may be held liable for punitive damages if the trier of fact finds that the defendant was personally guilty of intentional misconduct or gross negligence.  §768.72(2), Fla. Stat.  "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.  §768.72(2)(a), Fla. Stat.  "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.  §768.72(2)(b), Fla. Stat.  The recovery of punitive damages does not require proof of actual malice or intent to cause the particular injury sustained; the requisite malice or evil intent may be inferred from the defendant's having willfully pursued a course of action in wanton disregard of the potential harm likely to result as a consequence of that wrongful conduct.  Clemons v. State Risk Management Trust Fund, 870 So.2d 881 (Fla. 1^st  DCA 2004).

C.             Punitive Damages against an Intoxicated Defendant  

When the Legislature enacted the 1999 Tort Reform Act, it included a statute which allows the imposition of punitive damages against an intoxicated defendant without limitation on the amount. That statute provides as follows:

Sections 768.725 and 768.73 do not apply to any defendant who, at the time of the act or omission for which punitive damages are sought, was under the influence of any alcoholic beverage or drug to the extent that the defendant's normal faculties were impaired, or who had a blood or breath alcohol level of 0.08 percent or higher.

§768.736, Fla. Stat. (1999).  This statute applies to any cause of action in which punitive damages may be awarded if the defendant was intoxicated at the time he committed the wrongful act.  The burden of proof for liability and the amount of punitive damages will be by the greater weight of the evidence. Furthermore, the statutory caps imposed by §768.73 do not apply in such a case.

Thus, intoxication is defined by the statute as the defendant being under the influence of any alcoholic beverage or drugs to the extent that the defendant's normal faculties were impaired or who had a blood or breath alcohol level of 0.08 percent or higher. Accordingly, the defendant does not have to be legally intoxicated in order for punitive damages to be imposed. 

Moreover, punitive damages are available where voluntary intoxication is involved in an accident without the necessity of providing external proof of carelessness or abnormal driving.  The voluntary act of driving while intoxicated is sufficient evidence by itself of a sufficiently reckless attitude to allow a jury to award punitive damages.  Ingram v. Pettit, 340 So.2d 922 (Fla.1976); see also, Johnson v. Florida Farm Bureau Casualty Insurance Company, 542 So.2d 367 (Fla. 4th DCA 1988); Arencibia v. Lennon, 532 So.2d 1328 (Fla. 3d DCA 1988); Hartford Accident and Indemnity Company v. Ocha, 472 So.2d 1338 (Fla. 4th DCA 1985).

Florida Statutes §768.736 reflects the public policy of the State of Florida, as recognized by our courts, that intoxicated defendants who injure others may be punished by the imposition of punitive damages against them.  Ingram, supra.  Our Supreme Court in Ingram recognized that a vehicle operated on the streets and highways is a “dangerous instrumentality.”  Id.  Florida law equally recognizes a boat as a “dangerous instrumentality.”  §327.32, Fla. Stat. (2004) (formerly §371.52).  The dangerous propensities of any automobile (or boat) are elevated when it is operated by a person who is incapable of exercising vigilance and caution not only for his safety but for the safety of all others.  Ingram, supra.  Therefore, the public policy of Florida is that intoxicated drivers (and boat operators) are a menace to public safety and must be discouraged by appropriate punishment.  Id.  

D.            Punitive Damages under Admiralty and Maritime Law

This matter involves a collision between two vessels upon the navigable waterways of the United States, and as such is governed by the Laws of Admiralty of the United States pursuant to the “Saving to Suitors” Clause of the Judiciary Act of September 24, 1789 (1 Stat. 73, Ch. 20, sec 9).

  Admiralty law recognizes that “[p]unitive damages may be awarded in maritime tort actions where defendant's actions were intentional, deliberate or so wanton and reckless as to demonstrate a conscious disregard of the rights of others.”  Stiles v. Carnival Corp., 243 F.Supp.2d 1313, M.D. Fla 2002) (quoting Muratore v. M/S Scotia Prince, 845 F.2d 347, 354 (1st Cir.1988)); see also, Stiles, supra, (citing In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. On Sept. 22, 1993, 121 F.3d 1421, 1429 (11th Cir.1997) (recognizing intentional wrongdoing as a basis for punitive damages), and, In re Horizon Cruises Litig., 101 F.Supp.2d 204, 211 (S.D.N.Y.2000) (discussing punitive damages in admiralty)).

It is well settled that punitive damages also are available in cases involving only damage to property with no personal injury, such as in the case sub judice.  In the case of CEH, Inc. v. F/V Seafarer, 70 F.3d 694 (1^st Cir. 1995), the U.S. Court of Appeals for the First Circuit considered an award of punitive damages in a case brought by the owner of several lobster traps which had been destroyed by a fishing trawler. The district court found the owner of the trawler and its captain liable for the destruction of the traps and imposed punitive damages against them both.  In upholding the award the 1^st Circuit conducted perhaps one of the most searching inquiries in recent years into the availability of punitive damages under maritime law, concluding that “[a]lthough rarely imposed, punitive damages have long been recognized as an available remedy in general maritime actions where defendant's intentional or wanton and reckless conduct amounted to a conscious disregard of the rights of others.”  Id., at 699.  The court the Seafarer case cited the following extensive authority in support of its decision:

The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 558, 4 L.Ed. 456 (1818) (criminal trespass);  Muratore v. M/S Scotia Prince, 845 F.2d 347, 354 (1st Cir.1988) (intentional infliction of emotional distress);  Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379, 1385 (9th Cir.1985) (destruction of property);  Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1051-52 (1st Cir.1973) (willful failure to pay maintenance and cure);  In re Marine Sulphur Queen, 460 F.2d 89, 105 (2d Cir.1972) (wrongful death);  Pino v. Protection Maritime Ins. Co., 490 F.Supp. 277, 281 (D.Mass.1980) (tortious interference with employment rights);  Dredge General, 1944 A.M.C. 948, 948 (S.D.Fla.1944) (property damage);  The Ludlow, 280 F. 162, 163 (N.D.Fla.1922) (malicious and unlawful arrest);  The Seven Brothers, 170 F. 126, 127 (D.R.I.1909) (property damage);  Gallagher v. The Yankee, 9 F.Cas. 1091, 1093 (N.D.Cal.1859) (No. 5,196) (unlawful deportation), aff'd, 30 F.Cas. 781 (C.C.N.D.Cal.1859) (No. 18,124);  Ralston v. The States Rights, 20 F.Cas. 201, 209-10 (E.D.Pa.1836) (No. 11,540) (collision).

Id.  These cases provide overwhelming authority supporting the availability of punitive damages in this property damage case where Plaintiffs allege that Defendant, Richard MAGILL was grossly negligent in the willful, wanton and reckless operation of his motor boat that is the direct and proximate cause of Plaintiffs’ damages.

WHEREFORE, Plaintiffs, PAUL RENEISSEN and PATRICIA RENEISSEN, pray this Honorable Court enter its Order granting their Motion for Leave to File First Amended Complaint, and that the attached proposed First Amended Complaint be deemed filed as of the date of the Court’s Order.

Respectfully Submitted,

LAW OFFICE OF DAVID M. SCOTT, P.A.

Counsel for Plaintiffs

Pine Island Commons

8551 West Sunrise Blvd., Suite 210

Plantation, Florida 33322

Tel:  (954) 318-1400

Fax:  (954) 476-2382

By:____________________________

DAVID M. SCOTT, Esq.

Florida Bar No. 0132934 

CERTIFICATE OF SERVICE

I, David M. Scott, declare that:  I am over the age of eighteen years and not a party to the action; I am employed in, or am a resident of Broward County, Florida, where the mailing occurs, and my business address is 8551 West Sunrise Blvd., Suite 210, Plantation, Florida 33322.  I further declare that I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service pursuant to which practice the correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business.  I caused to be served the following document(s):  

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

(Proposed First Amended Complaint Attached)  

by placing a copy of the above documents in a separate envelope for each addressee respectively as follows:

1.                  Rand Ackerman, Esq.

Green, Ackerman & Frost, P.A.

1200 North Federal Highway, Suite 301

Boca Raton, Florida 33432

            I then sealed each envelope and, with the postage thereon fully prepaid, either deposited each in the United States Postal Service or placed each for collection and mailing on September 25, 2006 at Broward County, Florida, following ordinary business practices.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on September 25, 2006

By:____________________________

DAVID M. SCOTT, Esq.