Solomon v. Warren

On July 23, 1971, a Cessna 337 Super Skymaster aircraft, piloted by Paul Warren (Warren) with his wife Dolores and Jerome E. Levin and Leatrice D. Levin (the Levins) as passengers, disappeared and was presumed lost at sea in the Caribbean on a flight from the Dr. Albert Plesman Airport, Willemstad, Curacao, Netherlands Antilles, to the Seawall International Airport, Barbados, West Indies. As a result the plaintiff-appellee, Harold Solomon, in the dual capacity of personal representative of the Levins estates, and as guardian of the Levins three children, whose respective names and ages at the time of the Levins deaths were Ellynn 20, Jeffrey 19, and Lawrence 16, brought this action against the defendants-appellants, Stanley Warren, as executor of the estate of Paul Warren, and the Insurance Company of North America (INA), as insurer of Paul Warren under an Aircraft Operators Liability Policy. The complaint asked damages for the wrongful deaths of the Levins pursuant to the Death on the High Seas Act, Title 46, U.S.C., Section 761, et seq., (DOHSA) and recovery for the Levins mental pain and grief sustained prior to their death, pursuant to the Florida Survival Statute, Section 46.021, Fla.Stat. (1971). Sitting as an admiralty court without a jury, pursuant to Rule 9(h), F.R.Civ.P. and DOHSA, and with pendent jurisdiction over the survival action, the district court, after a trial, held that Warren was negligent in four respects in his operation of the missing aircraft, and that this negligence was "a direct and proximate result of the [Levins] deaths." The district court awarded total damages of $714,998.00 for all claims of the Levin children as statutory beneficiaries under DOHSA, and $10,000 to each of the Levins estates on the pendent survival claim for the conscious pain and suffering of the Levins prior to their deaths. See note 10 infra. In accordance with its findings of fact and conclusions of law the district court entered a final judgment for the plaintiff-appellee assessing $434,998.00 of the damage award against the estate of Paul Warren, and assessing the remaining $300,000.00 of the damage award (the amount of its policy limits) against INA. Subsequent to the entry of this judgment the district court denied the plaintiff-appellees motions for prejudgment interest and for the award of attorneys fees against INA, pursuant to Fla.Stat. Section 627.428.