WASHINGTON (CN) - The lawyer for an Italian cruise operator came under fire Wednesday in the Supreme Court over his claim that an injured passenger's failure to sue the right company was not a mistake. "I make mistakes ... and so do you and so does everybody else," Justice Stephen Breyer said.
Leaning forward in his seat, Breyer led the attack on attorney Robert Glazier's claim that passenger Wanda Krupski's lawsuit should not be revived because it named the wrong defendant.
"What possible reason is there that somebody who is hurt on a ship ... would deliberately sue the wrong person?" Breyer asked Glazier. "If you were representing this person, would you want to sue the company that could give you some money if they are liable? Or would you rather sue the Bank of America that has nothing to do with it?"
The question prompted laughter in the courtroom and a silent chuckle from Justice Samuel Alito on the other end of the bench.
Alito and Justice Sonia Sotomayor asked their own versions of Breyer's question, pressing Glazier for evidence that the error was more than a mistake. Glazier, who appeared flustered and defensive at times, had trouble answering to the justices' satisfaction.
He argued that the injured passenger's attorney knew or should have known that the correct company to sue was the Italian carrier Costa Crociere S.p.A., not the Florida-based Costa Cruise Lines. The companies have similar names, but Costa Cruise is a sales agent for Costa Crociere.
Glazier urged the high court to uphold the 11th Circuit's dismissal of the lawsuit, because Krupski did not sue his client within the one-year deadline. Mark Bendure, Krupski's attorney on appeal, said the claims should be reinstated under procedural rules allowing plaintiffs to correct a misidentified defendant.
Justice Ruth Bader Ginsburg pointed out, repeatedly, that Costa Crociere "conveniently" waited for the one-year statute of limitations to expire before notifying Krupski that she had sued the wrong party.
Glazier didn't help his cause by mixing up the English and Italian company names at one point, lending credence to the claim that the confusingly similar names contributed to the error.
"Now which is it? Is that a Freudian slip?" Chief Justice John Roberts asked, quipping, "Just a mistake." And Justice Anthony Kennedy noted that "the ticket itself confuses the two companies." He asked, "Is that a mistake, incidentally?"
Glazier appeared to gain a small amount of sympathy from Justice Antonin Scalia, who said Krupski's trial lawyer should have read the contract carefully before filing suit.
But Breyer insisted that the case boiled down to a basic mistake.
"Have you ever driven a car where your wife has said turn left and you have turned right?" he asked Glazier. "Did you do it by mistake? Yes, of course you did. It's happened to every human being."
Scalia interrupted, "I think your wife made a mistake. I don't think you made a mistake."
"No, my wife does not make mistakes," Breyer replied, to laughter.
The high court is expected to rule in Krupski v. Costa Crociere, no. 09-337, early this summer.
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