             Case: 18-12427    Date Filed: 01/23/2019   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12427
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 0:16-cv-62467-CMM


TRI-LADY MARINE, LTD.,
a Marshal Island Company,
d.b.a. Triumphant Lady,

                                                             Plaintiff - Appellant,

                                     versus

AQUA-AIR MANUFACTURING,
a division of James D. Hall Co, a Florida Company,

                                         Defendant - Cross Defendant - Appellee,

ELITE MARINE YACHT SERVICES, LLC,

                                          Defendant - Cross Claimant - Appellee,

BISHOP MECHANICAL SERVICES, LLC,

                                                                       Defendant.
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                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                  (January 23, 2019)

Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:

      Tri-Lady Marine, Ltd., appeals the summary judgment against its amended

complaint alleging a breach of an implied warranty of merchantability by Aqua-Air

Manufacturing and Elite Marine Yacht Services, LLC. Tri-Lady does not challenge

the entry of summary judgment against its claims of breach of the express warranty

of merchantability and of breach of contract, so we deem those claims abandoned.

See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.

2012). The district court ruled that Tri-Lady failed to prove that the installation of

an improperly-sized low pressure switch in a marine chiller unit manufactured by

Aqua-Air and sold by Elite Marine caused water damage to the Triumphant Lady,

a yacht Tri-Lady owned. We affirm.

                                 I. BACKGROUND

      Triumphant Lady used a chilled water system to control its ambient

temperature. The system required several chilling units that contained evaporator

heat exchangers that were attached to a water inlet hose and a water outlet hose.


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Water that warmed while circulating through the air system for the yacht entered

the evaporator heat exchanger, which cooled and recirculated the water.

      In the summer of 2015, Tri-Lady purchased an Aqua-Air chilling unit from

Elite Marine and had it installed on the yacht by Bishop Mechanical Services,

LLC. In October 2015, the Aqua-Air chilling unit failed. Water inside the

evaporator heat exchanger froze, which caused leaking in the chilled water piping

throughout the yacht.

      Tri-Lady filed a complaint in a Florida court against Aqua-Air, Elite Marine,

and Bishop Mechanical. After Bishop Mechanical removed the action to the

district court, see 28 U.S.C. §§ 1441, 1446, Lloyd’s of London intervened as a

subrogee of Tri-Lady and filed a complaint against Aqua-Air, Elite Marine, and

Bishop Mechanical.

      Lloyd’s and Tri-Lady relied on a report prepared by Charles Volk III of

SEA, Ltd., that identified two potential causes of the chiller unit failure. First, Volk

reported that “Aqua Air installed a low pressure switch to control the temperature

range of the evaporator” heat exchanger with settings “lower than recommended

by the compressor manufacturer, [Emerson Climate Technologies,] creating a

condition in which the evaporator could freeze and breach, resulting in a chiller

failure.” Volk explained that the low pressure switch was pre-set to operate

between 43.5 pounds per square inch and 23.5 pounds per square inch, but


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Emerson Technologies recommended that the heat evaporation heat exchanger

maintain a temperature between 45 to 35 degrees Fahrenheit, which equated to

“operating between 70 psi and 56 psi.” Second, Volk reported that reversed water

hoses “resulted in chilled water reaching its coldest temperature at the top of the

evaporator, on the opposite end of the freeze protection switch,” and “resulted in a

condition in which the evaporator could freeze and breach.” Volk explained that

the reversed connections resulted in the freeze protection switch “measuring [the

warmer] water returning from the vessel air handlers and not chilled water as it

exited the evaporator.”

      Aqua-Air and Elite Marine moved separately for summary judgment. Both

companies argued that the improper installation of the chiller unit caused the

damage to the Triumphant Lady. Elite Marine also argued that, even if the low

pressure switch was defective, it could not be the proximate cause of the property

damage because the switch served to “trigger a shutdown of the compressor if

there is a loss of refrigerant,” not to “prevent[] freezing of the evaporator.”

      Lloyd’s filed a declaration of Volk to establish that the installation of the

improperly-sized low pressure switch caused the water damage. Volk declared that

“[e]ven with Bishop Mechanical’s reversed chilled water connections, had Aqua

Air installed a properly-sized low pressure switch matching the compressor

manufacturer’s recommendations, the evaporator would not have frozen.” Volk


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quoted from an engineering bulletin issued by Emerson Technologies in April of

2014 that “[t]he low pressure cut out setting will depend on the application type

and minimum expected evaporating temperature” and “should be selected to

prevent . . . system failure modes, such as . . . frozen heat exchangers in chiller

systems.”

      When the parties later deposed Volk, he testified that the chiller unit failed

because of freezing caused by the reversal of the water hoses. Volk stated that the

low pressure refrigerant switch “was sized allowing refrigerant temperatures to be

below freezing, which indicat[ed] to [him] it was not considered as a freeze

protection device for the evaporator.” Volk explained that “[t]he low pressure

switch operates on the refrigerant side of the [chiller] system” “to protect the

compressor,” and he “didn’t find any evidence to suggest the compressor was

damaged.” Volk explained that the low pressure switch and freeze protection

switch were “independent devices, and . . . connected in series.” Based on the

construction of the chiller unit, Volk stated that “[t]he primary protection device[]

of the evaporator would be the freeze protection switch” and the “switch in the

chiller that was manufactured by Aqua-Air presented the only fail-safe in that unit

to prevent it from freezing.” Volk stated that the freeze protection switch “opened

at a temperature” around “40 degrees,” but because “the [water] lines were

switched, the freeze protection switch . . . measur[ed] the warm water coming in


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from the vessel” instead of “measuring water in the coldest location and shutting

down the chiller before a temperature below 38 degrees could be reached.” Volk

testified that, but for the reversed water hoses, “[t]he freeze protection switch

would have sent a signal to the control panel to shut down that chiller when it

measured a temperature of approximately 40 degrees.” He responded “correct” to

the question whether the freeze protection switch “would have sent that signal

regardless of the condition of the low pressure switch.”

      After Lloyd’s settled with Aqua-Air, Elite Marine, and Bishop Mechanical,

the district court entered summary judgment in favor of Aqua-Air and Elite Marine

and against Tri-Lady. The district court found that Volk’s declaration was “the

only evidence” that the installation of an improperly-sized low pressure switch

caused the evaporator heat exchanger to fail. The district court acknowledged that

it could have, but declined to, “disregard the statements in Mr. Volk’s declaration”

because he later “contradicted his declaration” during his deposition. Because Volk

“abandoned . . . the opportunity at his deposition to support” his opinion that the

low pressure switch caused the chiller unit to fail, the district court determined that

Volk’s declaration presented “at best a ‘mere scintilla of evidence’ which [could

not] defeat Aqua-Air’s and Elite’s motions for summary judgment.”




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                          II. STANDARD OF REVIEW

      We review de novo a summary judgment. Jurich v. Compass Marine, Inc.,

764 F.3d 1302, 1304 (11th Cir. 2014). Summary judgment is appropriate when

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                 III. DISCUSSION

      Tri-Lady argues that the inconsistencies in Volk’s declaration, report, and

deposition create a material factual dispute about whether the low pressure switch

installed by Aqua-Air caused its evaporator heat exchanger to freeze. Aqua-Air

and Elite Marine respond that the district court correctly credited Volk’s later

deposition testimony as having “abandoned” his earlier declaration. We agree with

Aqua-Air and Elite Marine.

      The district court did not err. Tri-Lady failed to prove that a dispute of

material fact existed that the damage to its yacht was proximately caused by Aqua-

Air and Elite Marine. See Kohler v. Medline Indus., Inc., 453 So. 2d 908, 909 (Fla.

Dist. Ct. App. 1984). Undisputed evidence established that the water hoses for the

chilling unit were plumbed in reverse, and Volk testified that the reversed

connections resulted in outflowing cold water bypassing the freeze protection

switch and causing the evaporator heat exchanger to freeze, a process that the low

pressure switch did not regulate. In contrast with his earlier declaration, Volk’s


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deposition testimony clarified that, of the two factors that he earlier reported

“could” have caused the damage, the reversed water connections alone made the

evaporator heat exchanger freeze and breach. Volk abandoned his declaration that

“the evaporator would not have frozen . . . had Aqua Air installed a properly-sized

low pressure switch.” In the light of Volk’s later deposition testimony, Tri-Lady

lacked “sufficient evidence favoring [it] for a jury to return a verdict” in its favor.

See Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

                                 IV. CONCLUSION

      We AFFIRM the summary judgment in favor of Aqua-Air and Elite

Marine.




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