Plaintiff contends that the letters to Indemnity could not constitute notice because Indemnity was not an agent authorized to receive notice of a claim on behalf of Beesley's. It is settled that notice of a claim may be received by an agent of the vessel owner. Diamond v. Beutel, 247 F.2d 604 (5th Cir. 1957). However, the agent must have sufficient authority to receive notice. See Doxsee, 13 F.3d at 554 (finding that letter from claimant's attorney to vessel owner's insurance adjuster was sufficient because vessel owner had clothed insurance adjuster with apparent authority); Diamond, 247 F.2d 604 (finding that boat owner's action in referring any claims for injuries or medical bills for injuries suffered in boat accident to insurance agent with whom passenger's attorney filed written notice of claim established the time from which the six-month limitation period began to run for boat owner to file petition for limitation of liability pursuant to 46 U.S.C. § 185).
An agency relationship is created when one party consents to have another act on its behalf, with the principal controlling and directing the acts of the agent. See Sears Mortgage Corp. v. Rose, 134 N.J. 326, 337, 634 A.2d 74, 79 (1993). There need not be an agreement between the parties specifying an agent relationship. See id. Authority can be "inferred from the nature or extent of the function to be performed, the general course of conducting the business, or from the particular circumstances of the case." See id. at 338 (quoting Carlson v. Hannah, 6 N.J. 202, 212, 78 A.2d 83, 88 (1951)). If a entity is not an actual agent, it can be an agent by virtue of apparent authority based on "manifestations of that authority by the principal." See 134 N.J. at 338. Of particular importance is whether a third party has relied on the agent's apparent authority to act for a principal. See id.
There are several facts in the record, which took place at the time the disputed claim letters were written, which support a finding that Indemnity had the apparent and actual authority to accept notice of a claim against Beesley's. First, a boating accident report, which was filled out three days after the accident, on July 11, 1993, names Indemnity Casualty as Beesley's insurer. See Kilstein Aff. Ex. F. The name of the insurer could only have been supplied by a Beesley's representative. Kilstein avers that sometime between the time he wrote to Indemnity and November 1994, Burroughs contacted him via telephone. See Kilstein Aff. P 11. During the conversation, Kilstein states that he and Burroughs discussed Gillespie's claims and that Burroughs requested an itemization of medical expenses. See id. The medical expenses were forwarded by Kilstein to Burroughs by letter dated November 23, 1994.
In addition, there has been more recent conduct that supports a finding of agency. Beesley's attorney, Carl N. Tripician, stated in a letter dated November 15, 1995, that he was "authorized by the insurance carrier for Beesley's. . .to resolve [the] respective claims" of Gillespie and Cook. Although this letter was written later, it serves as evidence that Beesley's and the insurance company were handling the claims in tandem. Further, in 1995 and early 1996, Burroughs was repeatedly copied on letters exchanged between counsel for Beesley's and counsel for the claimants. See Letter from Tripician to Mark D. Mungello ("Mungello"), attorney for Gillespie, of 11/15/95; Letter from Tripician to Mungello of 9/11/95; Letter from Tripician to James E. Mulroy, attorney for Magro, Michael J. Weiss ("Weiss"), attorney for Cook, Robert A. DeLuca, attorney for Hally, and Mungello of 11/20/95: Letter from Tripician to Mungello and Weiss of 1/30/96. From all of this evidence, we conclude that Indemnity had both the apparent and actual authority to receive notice of claims against Beesley's.
Plaintiff argues that even if the court concludes that Indemnity had the authority to receive notice, the court should find that the content of the letters was insufficient to constitute notice. Plaintiff contends that the letters fail to meet any of the Richardson factors. Plaintiff further contends that neither letter provides notice of an actual or potential claim which may exceed the value of the vessels.
Plaintiff's contentions are contrary to the plain language of the letters. The June 10, 1994 letter specifically states that an investigation revealed that "your insured was at fault for this accident." Even more convincing is the wording of the November 23, 1994, letter, in which Kilstein states that Gillespie's medical "damages" were "a result of your insured's negligence." A letter in which claimant's counsel offers specific medical expenses and states the insured's negligent conduct is to blame for their incurrence provides sufficient notice of a potential lawsuit. Contra Richardson, 850 F. Supp. at 555 (finding that letter from Army Corp. of Engineers seeking information about seagrass for use in seagrass damage investigation insufficient notice because letter failed to provide opinion about what caused the acts inquired about, or to instruct the owner to refer the matter to his legal representative because of the negligence of the owner's employees); In re J.E. Brenneman Co., 157 F. Supp. 295, 297 (E.D. Pa. 1957)(holding that document that listed the extent of the damages to pier was insufficient to constitute written notice because it did not inform vessel owner of claimant's demand of right, blame owner for damages, or call upon owners for something due).
In this case, unlike in Brenneman, the itemization of the medical expenses provides clear evidence that Gillespie sought monetary damages from Indemnity or Beesley's and that he blamed Beesley's for his injuries. See Doxsee, 13 F.3d at 554 (citing itemization of medical expenses as sufficient notice of reasonable possibility that substantial damages claim would be brought). Moreover, this letter, unlike the one in Richardson does provide an opinion about what caused Gillespie's injuries (an accident involving Beesley's) and does offer a theory of liability (Beesley's negligence). Finally, the listing of medical expenses totaling over $ 5,300 put Beesley's on notice that the potential claim exceeded the value of the vessels involved ($ 4,300). Accordingly, we find that the content of the letters was sufficient to confer notice and begin the six-month period, thereby barring plaintiff's instant petition.
Finally, even if we disregarded the letters written to the insurance company, the letters written to Beesley's itself are by themselves sufficient to constitute notice. The letters referenced the name of a lawsuit against Beesley's, referred to Gillespie's "claims," and threatened legal action. We are confident that Beesley's, as owners and operators of jet-skis, were aware that Gillespie intended to file a lawsuit against them to recover for his alleged injuries. Because Beesley's failed to file for limitation of liability in a timely fashion, it violated 46 U.S.C. § 185 and the instant complaint is hereby dismissed. An appropriate order will issue on even date herewith.
Date: February 20, 1997
JOSEPH E. IRENAS, U.S.D.J.
ORDER OF DISMISSAL
Irenas, District Judge:
This matter having appeared before the court on defendants' motion to dismiss the instant complaint for failure to comply with 46 U.S.C. § 185, the court having reviewed the submissions of the parties, and having heard oral arguments, for the reasons set forth in an opinion issued on even date herewith,
IT IS on this 20th day of February, 1997,
Plaintiff's complaint is hereby DISMISSED.
JOSEPH E. IRENAS, U.S.D.J.