1 February 2013 Vol. 6, No. 3 The drive to make the right choice By Timothy C. Kelleher III This year, MATA has chosen to make one of our priority projects a statewide program called End Distracted Driving. MATA members are volunteering to go to local high schools to speak to students about the very real and tragic facts about driving while distracted. Whether it is texting, dialing a cell phone, eating, drinking, grabbing something or anything else that takes their attention away from the roadway, students must appreciate the potential harmful consequences that can result PRESIDENT S MESSAGE from their decision. This is an issue that must be addressed now and I truly believe we will all be safer if we can convince people to simply make the right choice: stop driving while distracted. As trial attorneys, we see the heartbreaking results of motor vehicle collisions and injuries caused by a momentary choice or action that changes the lives of individuals and families forever. We know the importance of keeping families safe from faulty products, flawed vehicles, dangerous toys and a myriad of careless acts that bring danger into the everyday lives of people in our communities. This program not only gives us the opportunity to go into local communities and use our skills to prevent tragedies by educating and communicating with the public and students throughout the state, but it also gives us the chance to make a vital difference in our society today. MATA members have been enthusiastic and generous with their time and dedication to the End Distracted Driving program. They are taking this message and bringing it to those most at risk: students, the least experienced and the most likely to be distracted. We premiered this program at a press Continued on page 11 Navigating obstacles created by cruise lines in shore excursion tragedies By Robert D. Peltz and Carol L. Finklehoffe The allure of exotic foreign ports and exciting new excursions form the centerpiece of the advertising campaigns of cruise lines, whether in the broadcast, print or electronic media. They include: parasailing in St. Thomas zip lining in Costa Rica snorkeling in the lagoons of Bermuda jungle-trekking by ATV in Cozumel alpine hiking on Alaskan glaciers Port excursions are not directed to just the adventurous, but to even the older and more timid passengers, extolling the virtues of: driving the scenic mountains of Tortola learning the secrets of the cooks of Caribbean by visiting local villages in Dominica Visiting the Mayan ruins at Tulum Over the past decade, the number of passengers cruising with North America s largest cruise lines has exploded. According to industry figures, the number of passengers has dramatically increased from 9.5 million in 2003 to over 16 million passengers forecasted in As the industry itself is quick to admit, at least to its shareholders and tour excursion partners, the continued development of new and existing excursions has played a major role in this growth. Nevertheless, at the first sign of an excursion gone awry, the cruise lines have been quick to try and disassociate themselves from responsibility for their own creations. In an effort to insulate themselves from liability, the cruise lines have utilized a system of disclaimers, which attempt to hide the true character of their relationships with their tour operating partners. These disclaimers are typically buried in the fine print in the passenger s ticket of passage and in self- Continued on page 3 istockphoto.com A Supplement to Massachusetts Lawyers Weekly
2 2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2013 Medicare Set-Asides: a practical approach to protecting your client By Howard T. Saperston After a liability or workers compensation case settles, clients find themselves seeking the most effective way to maximize their settlement, a pursuit that can often disrupt important government benefits. One major government program directly affected by settlement is Medicare. The Centers for Medicare and Medicaid Services take the position that Medicare s future exposure on liability and workers compensation settlements must be protected and consideration of Medicare s interests must be documented. Medicare secondary payer laws In an effort to clear up confusion for individuals with insurance who are also Medicare beneficiaries, the Medicare Secondary Payer laws were instituted under Section 1862(b)(2) of the Social Security Act. Essentially, if an individual is injured and has group health insurance, auto or liability insurance, workers compensation, or a select few other types of insurance, those insurance companies are responsible for paying for the medical services related to the injury or illness for which the individual has received a recovery. If that payment does not cover the full cost of services, Medicare then becomes responsible for the balance of payment as the secondary payer. When an individual receives a workers compensation or a liability settlement that includes funds for future medical expenses, Medicare is not responsible for reimbursing those future medical expenses. As written in the Medicare Secondary Payer laws, current and future Medicare beneficiaries are required to consider Medicare s interests. The Medicare Set-Aside has become the preferred vehicle for protecting Medicare s interests. The Centers for Medicare and Medicaid Services, a division of the Department of Health and Human Services, is the body responsible for establishing standards and guidelines and reviewing proposed MSA allocations. However, a lack of clear direction from CMS has created much confusion over the past decade, leaving Medicare beneficiaries vulnerable to costly mistakes in Howard T. Saperston is a founder and member of Milestone Consulting, a comprehensive settlement planning and management firm. Milestone is proud to be a Diamond Club Partner with MATA. For more information, visit the MSA process. For your client, these mistakes can lead to denial of coverage for future medical expenses if CMS believes that Medicare s interests have not been appropriately considered. The four-step process Balancing your client s Medicare eligibility with the obligation to consider the government s interests is no simple task. Employing a step-by-step approach to the MSA process can help ensure that all bases have been covered and that your client will be protected from losing future Medicare benefits. 1) Advising to the need for a legal opinion to determine if a Medicare Set- Aside is required Determine the anticipated settlement amount, the potential need for and cost of future medical care related to the injury, and the client s Medicare status. If necessary, get an expert legal opinion as to the necessity for a MSA. 2) Determining the allocation Involve an expert allocator early in the process who will take the time to understand a complete picture of your client s medical requirements, both covered and non-covered. The MSA allocator you select should be determined by the company s treatment of covered and non-covered medical expenses, as the inclusion of these expenses builds case value and can potentially lead to a higher settlement recovery. 3) Preparing for future compliance Plaintiffs can choose to self-administer their MSAs, but self-administration opens the door for accounting errors and misuse of funds. A professional administration firm is generally the best option for ensuring that compliance is met when administering the MSA. 4) Implementing the most cost-effective funding solution MSAs should be funded with annuities because of their inherent tax savings. There are two options for the type of annuity either a structured settlement annuity or a single premium immediate annuity. Although the structured settlement annuity offers the benefit of tax-exempt growth, the SPIA is typically a less expensive option with greater flexibility, as it offers living commutation (the ability to commute all or a portion of the annuity s present value during the client s lifetime). By taking a logical, documented approach to the Medicare Set-Aside process, you do your client the service of maximizing their settlement while protecting their Medicare eligibility and complying with the Medicare Secondary Payer laws. MARCH MATA-NESS THIS MARCH, JOIN MATA AND FIND OUT WHAT THE EXCITEMENT IS ALL ABOUT. APPLY ONLINE AT
3 February 2013 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3 Navigating obstacles created by cruise lines in shore excursion tragedies Continued from page 1 serving statements inserted into the cruise lines contracts with their tour operators. There is typically a wide divergence, however, between these self-serving statements and the facts on the ground when it comes to describing the cruise lines actual relationship with its excursion partners. Overcoming these inaccurate self-serving and inaccurate descriptions contained in the carrier s written and electronic materials therefore typically becomes the first order of business. Contrary to these disclaimers, the most accurate description of the relationship between the carrier and its tour operating partners is best characterized by the joint venture. Nevertheless, because of the degree of control maintained by the carrier, various other agency relationships are equally as applicable in most cases. This article will discuss the nature of these various relationships, strategies for holding both the carrier and tour operator responsible for their conduct and the discovery which will be helpful in the process. Operator acknowledges that pursuant to its agreement with the guests, PELTZ Holding the tour operator responsible Although most of the attention in excursion cases is typically focused on holding the cruise line responsible for its negligence, it is important not to overlook the all disputes and matters whatsoever arising under, in connection with or incident to the cruise ticket agreement between the guest and the Cruise Line shall be litigated, if at all, in and before a court located in in Miami, Florida, U.S.A., [or such other jurisdiction as case against the tour operator. Sometimes, one gets lucky and Tour Operators agree to submit to personal jurisdiction in Los Angeles may be specified in the agreement with the guest] to the exclusion of the courts the tour operator is located in the FINKLEHOFFE County, California by providing shore of any other state, territory or country. U.S. Virgin Islands, Puerto Rico or excursions or related services to Operator shall take no steps that contradict these arrangements. some other domestic location. Most of the Princess Cruise Lines, Ltd. and Carnival time, however, that is not the case. Nevertheless, that is not reason for despair. and all objections they may have to ju- to the exclusive jurisdiction of any state passengers. Tour Operators waive any Operator hereby irrevocably consents Since all of the cruise lines based in risdiction or venue in Los Angeles or Federal court located in Miami/Dade North America have forum selection claus- County, California. Liability coverage County in the state of Florida in the must respond to claims brought in the event any action is by either party pursuant Robert D. Peltz is board certified in practice, a civil trial proctor in admiralty and presently serving United States based on an incident aris- to this Agreement. Operator his fourth term as chair of the MLA s Passenger and Cruise Ship Committee. He has written ing from one of the Tour Operator s hereby waives any venue or other ob- extensively regarding maritime issues and practices with Leesfield & Partners in Miami. programs or related services. jection that it may have to any such action or proceeding being brought in any Carol L. Finklehoffe specializes in maritime litigation and has written and lectured extensively Although the intent of this clause is apparent, State or Federal court located in Mia- throughout the country on numerous admiralty issues. She is licensed to practice in Massachusetts, its loose wording has allowed some mi/dade County. Florida and California and practices with Leesfield & Partners in Miami. operators to argue that it only refers to Continued on page 5 es, which require suit to be filed in the jurisdiction where they maintain their base of operations, the carriers have a vested interest in keeping their perceived home court advantage. As a result, the contracts between the cruise lines and their tour operator partners sometimes require the latter to waive jurisdictional defenses and agree to be sued in the forum selected by the carrier in its ticket. As with any contract, some of these clauses are drafted better than others and more clearly express this intention. For example, the clause contained in Princess contract with its tour operators provides: claims between the carrier and the excursion provider. The jurisdiction clause contained in the typical Royal Caribbean contract, however, is much better drafted in providing: THE LAWYERS CONFERENCE CENTERS At the Offices of Catuogno Court Reporting BECOME A MEMBER OF THE LAWYERS CONFERENCE CENTERS TODAY Conference and meeting rooms seat 4-40 people Complimentary W-Fi, coffee, cookies, and copies 20% discount on: On-site court reporting, videography, videoconferencing, legal dictation and transcription Reduce your overhead and costs A great place to meet clients and hold business meetings Call (888) or visit Lawyers Conference Centers now open in:
4 4 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2013 Pre-award interest in arbitrations By Lori A. Cianciulli In Bolman v. Plymouth Rock Assurance Corporation, 82 Mass. App. Ct. 135 (2012), the Appeals Court decided that pre-award interest is an element of compensatory damages available to plaintiffs who arbitrate their underinsured motorist claims. Bolman, who brought an underinsurance claim against Plymouth Rock on behalf of her mother s estate, had argued that both state law and the terms of the Massachusetts Standard Automobile Insurance Policy afford policyholders the right to receive pre-award interest as an element of compensatory damages. The insurer disagreed on the availability of pre-award interest as an element of damages payable under the policy. The parties proceeded to arbitrate the extent of the personal injury damages suffered by the plaintiff s decedent, while reserving the issue of interest for the court. Following an arbitrator s award in the favor of the estate, the plaintiff sought to have the award confirmed in Superior Court and to have a judgment enter in favor of the estate which included both preand post-award interest. The Superior Court confirmed the arbitrator s award and entered judgment that included postaward interest only. Bolman appealed. In July 2012, the Appeals Court ruled that indeed the estate was entitled to receive pre-award interest on the net arbitrator s award as part of its compensatory damages. The court accepted the plaintiff s argument that long standing case law held that an award of interest was within the authority of the arbitrator and further that such an award of interest is part of the compensatory damages a plaintiff is legally entitled to recover from a tortfeasor under G.L.c. 175, 111D. Therefore, the plaintiff was also entitled to recover interest in an underinsurance claim pursuant to the terms of the policy, which mirrored the statute. Having decided that interest was part of compensable damages which could be awarded in an underinsurance arbitration and that the issue was properly reserved to the court, the Appeals Court turned to whether pre-award interest should have been awarded to the plaintiff by the Superior Court. The court noted that a claim for underinsurance benefits properly is considered to be a contract action under well-established Massachusetts caselaw and that in contract actions, interest automatically is added to damages at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand pursuant to G.L.c. 231, 6C. Furthermore, the court continued, [i]f the date of the breach or demand is not established, interest shall be added... at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action. The court, considering the Plaintiff s request de novo, concluded that pre-award interest ought to have been added to the arbitration award from the date the plaintiff commenced her Superior Court action. Since Bolman was decided, I have been asked some very practical questions by colleagues regarding how this case might impact future underinsured motorist arbitrations. The following responses are based on my interpretation and understanding of the court s decision: Does the plaintiff have to ask the arbitrator to award pre-award interest in order to receive it? Yes, just as one would ask that any other element of compensatory damages be awarded. I suggest that in plaintiff s demand for arbitration and in the arbitration memo plaintiff should specifically request an award of interest. Is the arbitrator required to grant a request for pre-award interest? While the Appeals Court specifically noted in Bolman that the interest ought to be automatically added to the arbitration award, there is no requirement that an arbitrator award any element of compensatory damages to a plaintiff. However, the feedback I have received in the six months since this case was decided is that arbitrators are automatically adding pre-award interest to the award. If the arbitrator fails to award pre-award interest, does the plaintiff have any recourse in the Superior Court? No. It is well established in Massachusetts that there are virtually no grounds to appeal an arbitrator s decision. Lori A. Cianciulli is a civil trial attorney and mediator practicing in Beverly. She represents individuals and small businesses in civil litigation, mediation and trial of matters including personal injury, employment discrimination, business and commercial disputes, as well as disability claims (ERISA and individual disability plans). Cianciulli is a graduate of Smith College and Suffolk University Law School. She is an active participant in various Massachusetts bar association boards and committees and is a contributor to various seminars and publications for MCLE and others. When does pre-award interest begin to run? G.L.c. 231, 6C states that in contract actions interest is added at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. Furthermore, [i]f the date of the breach or demand is not established, interest shall be added... from the date of the commencement of the action. The date of demand refers here to demand for payment of benefits under the policy, not the date of demand for arbitration. The insurer s obligation is to compensate its policyholder for damages suffered as the result of an underinsured tortfeasor. It is when the policyholder makes demand for those first party insurance benefits that the clock for interest starts running. A plaintiff should be sure to establish at arbitration the date it sent the insurer a letter demanding payment of underinsurance benefits, and request that pre-award interest run from that date. In Bolman, a Petition to Appoint an Arbitrator pursuant to G.L.c. 251 was filed in Superior Court some two years prior to the underinsurance arbitration and preaward interest was added from the date of filing of that action. Does the plaintiff need to prove the insurance company breached the insurance contract in order to get preaward interest in an underinsured motorist arbitration? No, a plaintiff does not have to allege or prove that the insurer breached the insurance contract. The Bolman court held that pre-award interest is an element of compensatory damages. The insurer s conduct is not an issue in an underinsurance claim. The issue in a claim for underinsurance benefits concerns the amount of total compensatory damages sustained by the plaintiff as a result of the tortfeasor s negligence. Arbitration is simply the prescribed method of determining the damages caused by the tortfeasor if the parties cannot agree. Is the plaintiff limited to the underinsurance policy limits in collecting pre-award interest? Yes, because pre-award interest is an element of compensatory and not contractual damages, plaintiff is limited to damages up to the available policy limits. If an underinsurance claim was instead a breach of insurance contract claim, the plaintiff would not be bound by the policy limits in recovering damages. How is pre-award interest calculated if the parties have agreed to handle their own offsets and do not disclose the policy limits to the arbitrator? It is often the case that the parties will agree to calculate their own offsets for bodily injury and PIP payments that have been made, rather than disclose the amounts of those payments to the arbitrator. Also, many times parties will not tell the arbitrator the amount of the underinsurance policy. In such cases the plaintiff might consider requesting that the arbitrator make a finding as to the beginning date of the pre-award interest and note in his decision that interest should run at 1 percent per month from that date until the date of his decision, leaving the mathematical calculation to the parties. Of course, the plaintiff is also entitled to have post award interest applied to the arbitrator s total award, including pre-award interest, from the date of the decision until the date the award is paid in full. PRESIDENT Timothy C. Kelleher III, Esq. SECRETARY Annette Gonthier Kiely, Esq. PRESIDENT-ELECT J. Michael Conley, Esq. IMMEDIATE PAST PRESIDENT Andrew Abraham, Esq. TREASURER Charlotte E. Glinka, Esq. EDITOR-IN-CHIEF J. Michael Conley, Esq. PUBLISHERS/EDITORS Paul D. Dullea, Esq. Sheila Sweeney PRINTING AND PRODUCTION Massachusetts Lawyers Weekly Can the plaintiff still bring the matter of pre-award interest to the Superior Court instead of having the arbitrator decide it? Bolman did not change the longstanding Massachusetts case law in that regard. It is presumed that all issues and disputes between the parties have been placed before the arbitrator, unless there is a clear written indication that the parties have withheld a particular issue or claim from the arbitrator s consideration. Absent either a stipulation between the parties or a statement in the arbitrator s written decision that an issue was reserved to the court, the court will not consider any claims that were within the purview of the arbitrator. The fact that the parties in Bolman stipulated that the matter of interest be reserved to Superior Court was noted in the arbitrator s decision. The Appeals Court made it clear that without that express reservation, it would not have considered the issue of pre-award interest. Now that the Appeals Court has clarified that pre-award interest is an element of compensatory damages available in the arbitration of underinsured motorist claims pursuant to both the Standard Massachusetts Automobile Insurance Policy and c. 175, and arbitrators are reportedly automatically awarding interest, there seems little reason to reserve the issue to the court going forward.
5 February Navigating obstacles created by cruise lines in shore excursion tragedies Continued from page 3 Even in the absence of a broad jurisdictional clause, however, a strong argument can be made to establish jurisdiction over the foreign tour operator in the United States. Most tour operators have ongoing and continuous business activities with the various cruise lines and other commercial entities, which can be used to establish jurisdiction. These purposeful contacts include entering into repeated consecutive contracts with multiple cruise lines, repeated and ongoing direct communications with cruise lines in the forum state, submission of invoices to and receipt of payment from the forum state, solicitation of business by providing advertising and informational literature, in person meetings with cruise line representatives in the forum state for the purpose of securing and maintaining business relationships, and attendance at industry conferences such as SeaTrade. All of the major North American carriers Carnival, Royal Caribbean, Celebrity, Princess, NCL and Silversea are members of the Florida Caribbean Cruise Association. The FCCA serves as the liaison between the carriers and excursion operators in the Caribbean. In addition to hosting social functions, educational programs and conferences, the FCCA also sets forth various policies and procedures applicable to tour operators located in the Caribbean. One of the most significant of these requirements is that each tour operator maintain liability insurance in the amount of at least $2 million per incident. To ensure that such coverage is placed with reputable carriers, so as to protect its cruise line members, the FCCA generally requires that the coverage be maintained through a broker located in Miami, Florida. At this time, the broker is AON, however, in the past, it has used Royal Marine. Not only does this arrangement provide a significant amount of liability coverage for the excursion operations, but it also provides an additional basis for establishing jurisdiction to the extent that it is necessary in a particular case. Accordingly, the first subpoena which should go out in any excursion case is to AON or its successor in order to establish the existence of such insurance and to obtain the various applications, correspondence and other documents between the excursion partner and the broker. Joint venture Many of the district court decisions analyzing joint venture claims in the shore excursion context have retreated to a formalistic resuscitation of the need to establish each of the following elements: (1) a community of interest in the performance of a common purpose; (2) joint control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share in the profits and (5) a duty to share in any losses. A number of those cases have over-construed the Supreme Court s decisions in Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal as requiring the passenger to plead facts supporting each of these elements in order to state a cause of action. The cases that have construed Twombly and Ashcroft to require pleaders to return to the overly technical pleading requirements of times long past, have also tended to misconstrue the substantive requirements for establishing a joint venture in the first place. In Fulcher s Point Pride Seafood, Inc. v. M/V Lady Mary, the 11th U.S. Circuit Court of Appeals seminal joint venture case, the court criticized blind adherence to the idea that it was necessary to establish all five elements by holding: [T]hese elements cannot be applied mechanically. No one aspect of the relationship is decisive. [citation omitted]. The factors... are not a checkpoint. They are only sign posts, likely indicia, but not pre-requisites... The court must consider the total circumstances of an agreement to determine the status as a joint venture... The facts that indicate the existence of a joint venture, do not have to be met point for point. Accordingly, the court went on to affirm the lower court s conclusion that a joint venture existed, even in the absence of an agreement to share in profits and losses. Nevertheless, the better approach is to attempt to develop facts in support of each of the five elements, since some district judges tend to consider them essential to establish the relationship, despite the 11th Circuit s admonitions to the contrary. Therefore, while the fact that the carrier and operator share revenues from the sale of tickets to the excursions is an important factor, the true nature of the relationship goes much deeper and clearly supports the existence of a joint venture. The starting point begins with the recognition that although cruise lines are considered to be common carriers, cruising is not at all about transportation. Instead, it is about entertainment, both on and off of the vessel. As such, visits to the ports of call are recognized by the courts as the sine qua non of the cruising experience. As such, an integral portion of each cruise line s business plan is to develop and implement exciting port excursions. Therefore, while the revenue generated from these excursions is important to the carrier s bottom line, an equally important benefit is the impact which these excursions have on drawing passengers to their ships in the first instance. Accordingly, the carrier s profit from these excursions is not limited to simply the generation of revenue from the sale of tickets as it also includes the enhancement and profitability of its overall product the cruise experience. The same effect benefits the tour operator as well. By successfully performing excursions for well-known cruise lines, the tour operator also boosts its own professional image, increasing its ability to sell its excursions to other cruise lines in addition to hotels, travel agencies and other entities. Continued on page 6 IN LIFE, THERE COMES A TIME TO MOVE FORWARD TO THE NEXT MILESTONE. recovery discovery education planning selection implementation lifelong representation Milestone Consulting, LLC is a national settlement planning firm and management company dedicated to working with injured plaintiffs and their families. 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6 6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2013 Navigating obstacles created by cruise lines in shore excursion tragedies Continued from page 5 Therefore, the sharing of profits goes beyond just the division of revenue. This concept of profit was relied upon by the 11th Circuit in Fulcher s to establish that the parties were each gaining a material joint benefit out of the venture. The same is true with the other side of the ledger as well. Cruise lines devote enormous amounts of resources to their excursions. Shoreside, each carrier maintains a department or designated group of individuals whose job duties include the creation and development of excursions, the recruitment and screening of partners to implement them and the subsequent supervision and monitoring of their activities to ensure compliance with company safety and financial rules. Each of the carrier s vessels also contains designated shore excursion staff, whose job involves explaining, selling and promoting excursions, organizing the passengers to participate at the appointed time and acting as liaisons with the tour operator or partner to implement the excursion itself. The tour operator likewise has its own expenses incurred in employing personnel, purchasing and maintaining equipment, vessels and vehicles, purchasing insurance and operating the excursion. Accordingly, when the excursion is unsuccessful, both parties suffer considerable losses. The carrier s losses continue in such circumstances, since it is then required to expend the resources necessary to go back to the drawing board to create a replacement excursion. Therefore, there is a true sharing of the profits and losses inherent in this relationship. For a variety of reasons, cruise lines also structure these relationships in order to retain considerable amounts of control over the operation of the excursion. This is typically done in a number of ways. Cruise lines set the selling price, retaining the sole discretion of offer and provide passenger refunds, establish start and finish times, set staff appearance guidelines, set driver requirements, establish the types of policies and procedures tour operators must have in place (preventive maintenance programs, emergency plans and procedures). More importantly, cruise lines maintain the right of control the tour operator s operations. This includes retaining the authority to inspect, supervise and monitor all aspects of the tour operator s operations. This includes but is not limited to review of maintenance facilities and programs, tour operator emergency situation plans, and training of employees. Cruise lines also maintain the right of control as they have the ability to request changes and modifications to the excursions, and the ability to refuse to allow certain personnel or employees to participate in the provision of tours to its passengers. Absent the tour operator s compliance with the cruise lines requests, the cruise line has the ability to suspend or terminate business. Cruise lines maintain consider control over their tour operator partners. It is therefore important to establish and show the day-to-day relationship and operation of the parties and not rely on self-serving statements in the cruise line generated documents. Direct negligence Although passenger tickets and other shipboard documents seek to disclaim the carrier s liability for injuries occurring during shore excursions, 46 U.S.C invalidates any contractual provision seeking to insulate a cruise line from liability for its own negligence on voyages which touch a U.S. port. As a result, many shore excursion cases focus on the direct negligence of the carrier as a means of circumventing such contractual waivers. Although earlier were generally limited to the carrier s duty to warn its passengers of latent dangers, more recent cases have attacked the cruise lines failure to properly screen, select, monitor and supervise its tour operator partners. Since the earlier forum selection clauses did not mandate filing in federal court, the first group of excursion decisions came from the Florida state courts. In an often cited 1985 opinion, Florida s 3rd District Court of Appeal, whose jurisdiction includes Miami, recognized a duty to warn passengers of dangers known to the carrier in places where the passenger is invited to, or may reasonably be expected to visit. Accordingly, the court upheld a claim based upon the failure warn passengers of criminal activity in a high crime area of Nassau where the passengers had been directed by the ship s crew. More recent cases coming out of Florida s federal district courts have taken a somewhat inconsistent approach to failure to warn claims. At one extreme is the decision in Isbell v. Carnival Corp., in which a passenger brought suit for injuries sustained as a result of being bitten by a poisonous snake during the course of a jungle river excursion in Belize. The court granted the cruise lines motion for summary judgment on the grounds that the danger was open and obvious even though the passenger had asked the cruise director whether they would encounter any snakes in response to which he replied any 90 year old woman could safely enjoy the excursion. Other decisions have also held carriers immune from liability arising from dune buggy crashes and falls on uneven terrain while hiking on glaciers utilizing similar rationales. Several cases have also held that the carriers duty to warn is limited to specific dangers in specific locations. Accordingly, in Koens v. Royal Caribbean Cruises Ltd., the court held that it was not enough for a passenger, who was robbed during the course of an excursion in Nassau to show that the carrier had knowledge of high crime in the city. Instead, the passenger was required to show that the cruise line had knowledge of excessive criminal activity in the specific area of the city where the robbery took place. On the other hand, a number of cases have taken a much more expansive view of the carrier s duty to warn. In Fojtaske v. NCL (Bahamas) Ltd., the court upheld a claim by a passenger for failing to warn it of the dangers of a ship sponsored zip-lining excursion in Costa Rica. Similarly, in Belik v. Carlson Travel Group, the court denied the carrier s motion to dismiss a claim brought by a passenger who had allegedly been encouraged to jump into shallow water adjacent to a Señor Frogs Restaurant, which was hosting an unlimited drinking party. A significant factor in the failure to warn cases is whether the passenger was participating in an excursion operated by the cruise line as opposed to a truly independent and unrelated third party. Where the excursion is sold by the carrier, the courts have been more likely to impose the duty upon it to warn of hazards, which otherwise might be considered open and obvious. For example, in Haese v. Celebrity Cruises, Inc., the court denied the carrier s motion to dismiss the passenger s complaint seeking recovery for catastrophic injuries occurring while participating in a parasailing excursion sold by the cruise line, while in Joseph v. Carnival Corp., it was held that there was no duty to warn of the dangers while participating in a parasailing activity which the passenger had purchased itself during the course of an excursion. Although carriers often rely on the failure to warn cases to argue that their only duty is to warn the passenger of dangers of which they had notice, the duty to warn is only one aspect of its legal duty. The cruise line also has the duty to exercise reasonable care for its passenger s safety in the first instance. Accordingly, recent cases have also recognized that carriers may be negligent for failing to comply with other legal obligations. Some of these cases have been based upon the failure to properly recruit and/or screen tour operators, especially where they have utilized sub-standard or defective equipment or in competent personnel. Other legal duties have been recognized by virtue of the carrier s retention of significant aspects of control over the excursion. Generally, cruise lines require their tour operator partners to comply with extensive rules and regulations, which are normally set forth in a voluminous tour operators manual. Although each company s manual varies, they typically contain numerous directives relating to the selection and training of personnel, the manner in which excursions are operated and the use and maintenance of equipment. Accordingly, a number of cases have successfully asserted that the carrier was directly negligent for failing to live up to these obligations. Misleading advertising and misrepresentation claims Some attorneys have attempted to assert causes of action based upon misleading advertising under either the common law or Florida statutes. Generally, however, these efforts have not been very successful. In considering motions to dismiss such claims, a number of courts have applied Rule 9 (b) s heightened pleading requirements, which require a party alleging fraud or mistake to state with particularity the circumstances constituting fraud or mistake. Based upon existing 11th Circuit precedent, some district courts have held that this standard further requires the plaintiff to set forth the time and place of each reported misrepresentation. Other cases have further raised the pleading bar by requiring the plaintiff to plead facts establishing each of the elements of common law fraud in the inducement as well as the carrier s knowledge of the specific danger and the manner in which the excursion was unsafe. Even where the plaintiff has alleged sufficient facts to support a cause of action for misleading advertising or misrepresentation, some cases have held that such causes of action are essentially contractual in nature and therefore do not allow the recovery of non-economic damages. Cases asserting statutory violations have even been less successful. Claims brought under Florida s Unfair and Deceptive Trade Act have been side-tracked by the provision of the statute which exempts personal injury and wrongful death claims from its operation. Apparent agency A number of cases have taken the same overly formalistic interpretation of the pleading requirements necessary to sustain claims based upon apparent agency as they have with those based upon joint venture. These cases have required the plaintiff to plead facts supporting each of the three elements normally required to establish such claims: (1) representations by the principle that the agent is authorized to act on its behalf; (2) a reasonable belief of the existence of such an agency relationship; and (3) reasonable reliance on such belief to the plaintiff s detriment. Although other decisions have only required the plaintiff to comply with Rule 8 s notice pleading provisions, the practice has developed in the Southern District to create extensive pleadings quoting from voluminous publicity brochures, web pages and other documents prepared by the cruise lines. While these complaints tend to resemble War and Peace rather than the notice pleadings envisioned by Rule 8, they generally avoid dismissal. In an effort to attack apparent agency claims at the pleading stage, carriers will often argue that their tickets of passage, which typically include clauses indicating that shoreside excursion operators are independent contractors, make it impossible for the passenger to establish the element of reasonable reliance. In the 11th Circuit there is also authority to support argument that the defendant may refer to documents outside of the pleadings in support of a motion to dismiss, where the document is referred to in the complaint and central to the Plaintiff s claim. Therefore, from a strategic standpoint, it is a good idea not to attach a copy of the ticket to the complaint, nor to even refer to it, unless it is absolutely necessary in order to avoid such attacks. Actual agency In order to establish a claim based upon actual agency, the passenger must set forth sufficient allegations to establish the Continued on page 9
7 February 2013 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7 Giving back and changing the image of trial lawyers By Don Keenan Major truth No. 1: The image of trial lawyers, both to the public and to the jury panels, is toxic. We know from the Reptile that the code for the plaintiff s trial lawyer is liar. Right after liar comes more preconceptions, such as ambulance chaser, manipulator, bully, egotist, narcissist, etc. We teach a lot of authentic techniques to change our image once in the courtroom, starting with voir dire and opening statement and continuing throughout the case; however, let us visit the second major truth. Major Truth No. 2: You begin to change the code/ perception of the trial lawyer in the community, well before the courtroom. I firmly believe that within the heart of virtually all plaintiffs lawyers is compassion and genuine care for other people. Thus, we do not need to change our mindset. We just need to funnel our activities to match what is already inside us. Major truth No. 3: Writing a check to a nonprofit does not cut it. Let me explain why this is absolutely true, as shown through many focus groups done at the request of trial lawyers wishing to understand the average person s reaction to the content of their website. Many trial lawyers list with pride the number of charities they give money to and, in fact, list just how much money they donated right on their website. The trial lawyers are shocked when I report the following general comments by focus group participants: The only reason that fat cat lawyer is giving money is to get the tax deduction, and Trial lawyers don t care about charities, they only care about how much tax they re going to pay and that s the motivation for giving the money, not charity. There is another common element, and that is the trial lawyers who list on their website the boards they serve on. Once again, the trial lawyers are shocked when I tell them the focus group comments: The only reason that lawyer is serving on those boards is to get more cases, and Being on the board for the Head Injury Foundation, Cerebral Palsy Association and even the Boy Scouts and United Way organizations just gives that lawyer access to a ton of new cases and that s why he/she is serving on it. The negative preconceptions don t stop there. One of the focus group folks will always say, That trial lawyer thinks we re stupid and that this over-pandering is going to work on me, but we all know the real reason they give money to charities and serve on boards and my feeling about trial lawyers goes down further because of it. I have done these focus groups in virtually every geographical area of the country with the same negative comments. We shoot ourselves in the foot by listing that stuff on our websites, thinking it is somehow going to change our image. Clearly, it only backfires. Major truth No. 4: Actions speak louder than words. The lawyer who actually takes his or her money and puts it directly into a charitable activity has the opposite perception as those check writers and board servers. These same negative focus group participants flip their opinion on trial lawyers when they see them actually participating in a project. Say the project is a safety prevention project, the comments go in a positive direction and sound something like this: By doing a safety project and preventing injuries and death, this trial lawyer is actually decreasing the amount of business he/she is going to get, so obviously he/she is doing it for the right reasons. It does not have to be a safety project to get the warm and fuzzies from the general public and jurors; it can be any community project. Major truth No. 5: It is easier to do community projects than you think. I was once a check writer. At the end of the year, I would always write checks to some of the big charities. Then, during the Internet boom of the early 1990s, I realized the web gave me access to find out how these charities were using my money. To say I was shocked and appalled would be an understatement. I saw that normally, after they paid overhead, fundraising costs and high salaries, that approximately 10 cents out of every dollar I gave actually went to the intended purpose. It was not me but my secretary (back when we had secretaries) who told me that we could use that money to do community projects ourselves, without putting such an embarrassing amount back into the intended project. So for a couple of years we did exactly that, putting money back into some projects that I will share later in future columns. Then, in 1992, I decided to form my own 501(c)(3) nonprofit corporation, the Keenan s Kids Foundation (www.keenanskidsfoundation.com), which is celebrating its 20th anniversary this year. We made it very clear that the foundation was not a grant-giving foundation (that is, writing checks to other foundations). Instead, we took every dime deposited into the foundation and funded our own projects some big, which most firms would not be able to do, and some small, which even the sole practitioner could do very easily. Two years ago, the National Association of Trial Lawyers executives invited me to give a presentation at their annual convention in Denver to outline all the projects we have done and how we might be able to help lawyers around the country duplicate. They asked me whether I would be willing to write a series of columns to be reprinted in trial lawyer publications, and while it has been a long time coming, here we are in 2013 commencing with these columns. Over the coming year, I intend to give trial lawyers a salad bar of the available hands-on activities that can be done in the community through these columns. So as we welcome the New Year, I invite you to stay tuned and see what hits your heart and what you can do. UMBRELLA TRUTH: Each and every trial lawyer can play a part in changing the public/jurors perception of us through much-needed community projects. You can wait until trial or come to Mediation now Choose the Best Alternative SM Visit fitzgeraldresolution.com or call DISPUTE RESOLUTION LLC To join MATA, please go to Massacademy.com
8 8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2013 Connecting at the MATA Holiday Ball MATA Members Energized at Sold-out Reptile Seminars
9 February 2013 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9 Navigating obstacles created by cruise lines in shore excursion tragedies Continued from page 6 following elements: (1) acknowledgment by the principal (carrier) that the agent (tour operator) will act for it; (2) the agent s acceptance of the undertaking; and (3) the principal s control over the actions of the agent. As with other types of claims, the degree of specificity required at the pleading stage varies dramatically from judge to judge. The evidence necessary to establish control in this context is essentially the same as with the joint venture claim discussed above. The decision not to attach a copy of the ticket is important in establishing claims based upon actual, as well as apparent agency. As with apparent agency claims, carriers often utilize the ticket language to attack claims of actual agency at the pleading stage as well. Therefore, the decision not to attach the ticket and to further avoid any reference to it in the complaint, if possible, will avoid such challenges. Third-party beneficiary claims Another theory of recovery sometimes asserted in shore excursion cases is the third party beneficiary claim. In these claims, it is generally argued that the passenger is a third party beneficiary of the contract between the cruise line and shore excursion operator. In order to assert such a claim against the cruise line, however, it is important to remember that one must allege that the carrier (and not the tour excursion operator) breached the agreement. Accordingly, such claims have generally focused upon the carrier s obligation to initially screen the tour operator and thereafter monitor, supervise or audit its performance. As with the other basis of recovery, some cases have taken an overly technical view of the required pleadings and held that the passenger must set forth specific factual allegations establishing the intent of the carrier and operator to benefit the passenger through the contract. Other cases, however, have concluded that while a specific intent to benefit the third party is a critical element of the claim that Federal Rule of Procedure 9(b) only requires intent to be alleged generally. One of the problems with such claims, however, is that it is obviously necessary to plead the existence of the contract between the tour operator and the cruise line. Since these contracts typically contain a selfserving disclaimer regarding the relationship between the two, the pleading of the third party beneficiary claim opens the door to allowing the cruise line to argue the terms of the contract in support of its motion to dismiss. Accordingly, the better practice is often to forgo such claims. Ticket disclaimers, waivers and exculpatory clauses As discussed above, cruise lines and their excursion partners typically utilize a variety of ticket disclaimers, waivers and contract provisions to evade responsibility for injuries occurring during excursions. Even where it is possible to avoid having to overcome such provisions at the pleading stage, they will generally arise like the proverbial phoenix later on when it comes time for the filing of summary judgment motions. Typically these provisions will take a number of different forms. The passenger ticket will invariably contain a clause describing shoreside excursion operators (as well as ship s medical personnel and concessionaires) as independent contractors. The contract between the carrier and the excursion operator will also contain similar self-serving language. In addition both the cruise line and the excursion operator will also generally require the passenger to sign a liability release or waiver in order to participate in the activity. One of the most effective ways to avoid getting trapped by the independent contractor language in the ticket and tour operator contract is to avoid focusing your claims on either document. Instead, it is important to look to the actual relationship between the carrier and shoreside excursion operator, which is typically established by both a series of documents as well as an established course of dealing. For example, in addition to the tour operator contract, the carrier will also publish a detailed tour excursion manual, which establishes various duties, guidelines, policies and procedures governing its relationship with the shoreside excursion operator. This document generally invests the carrier with considerable control over the operation of the excursion and helps define the actual nature of the relationship. As part of its IMO-mandated safety management system, the carrier will also typically have a number of other rules, regulations and guidelines applicable to the operation of shoreside excursions, which will also help fill out the nature of this relationship. Over time, a course of dealing may also develop that is based upon industry practice, tradition or routine, rather than written documentation. Therefore, it is important to look to the full spectrum of the relationship and to all of the documents, practices and other sources, which impact upon it. Where the excursion involves more than a minimal nature of risk, it is likely that the passenger will be required to sign a liability waiver or release in order to participate in it. 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10 10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS February 2013 MEMBERSHIP APPLICATION Name: Firm/Court/School: Work Address: Work Telephone: Cell: Home address: Fax: Home telephone: Website: Telephone: AAJ Member: Y N Refferred by: Date of admittance to the Massachusetts bar: Member category (please choose one and circle monthly or yearly rate): Rates:...Monthly Rate...Yearly Rate (June 1 - June 30) Admitted to practice less than one year...$5...$50 Admitted to practice 1-5 years...$10...$110 Admitted to practice 6-10 years...$19...$225 Admitted to practice over 10 years...$40...$475 Retired/not primarily practicing...$19...$225 Associate (vendor)...$14... $165 Government Employee/Legal Services...$6...$65 Paralegal...$4...$40 Voluntary sustaining dues...$49...$100 annually Voluntary legislative dues...$11...$125 annually Law Student...Free Total authorized charges...$...$ Payment: r AMEX r M/C r VISA Credit Card #: Security Code: Exp. date: Mail to: MATA, 20 Burlington Mall Road, Suite 230, Burlington, MA (781) (781) Fax Sign-up Online: massacademy.com
11 February 2013 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 11 Navigating obstacles created by cruise lines in shore excursion tragedies Continued from page 9 and the excursion operator. As noted earlier, the courts have refused to enforce such agreements in favor of the cruise line by virtue of 46 U.S.C , which prohibits a carrier from attempting to limit liability for injuries caused by its negligence in voyages which touch upon a U.S. port. Although the statutory prohibition also includes the negligence of the carriers agents so far there are no reported cases construing whether it applies equally to a shoreside tour operator. In the event that 46 U.S.C is found not to apply to a shoreside excursion operator, the validity of the waiver would likely be determined by the law designated in passage contract. If the passage contract does not contain a choice of law provisions then the law of the forum will be determinative. Limitation of liability Although the scope and operation of the Limitation of Liability Act is beyond the parameters of this article, it should be kept in mind that most cases considering the issue have found it to be applicable to injuries occurring from the operation of recreational vessels, such as jet skis, parasailing boats and the like. Therefore, it is possible that this is an issue which may be faced in some excursion cases. Where applicable, however, limitation only applies to the vessel owner or bareboat charterer, which would generally preclude the carrier from taking advantage of it in those circumstances where the excursion is operated by a local shoreside entity. The drive to make the right choice Continued from page 1 conference at the State House on Feb. 4 with a special guest, Joel Feldman, a Pennsylvania attorney who lost his 21- year-old daughter Casey to a distracted driver in He has since dedicated himself to The Casey Feldman Foundation, a nonprofit dedicated to stopping distracted driving by educating young people throughout the country and telling them about the tragic consequences of multi-tasking while driving. He has been the leader in trying to educate students and make them aware of the horrible consequences for all involved the driver, the victim and the victim s family. MATA members throughout the state are taking time out of their daily schedules to visit local high schools and speak at assemblies and classrooms filled with the audience we most want to reach and educate. MATA has prepared materials for anyone who would like to join us in this important effort and we welcome any and all volunteers. This is one of the most important volunteer programs any MATA member can join. Most of the time, we hear about tragic incidents well after they have occurred, and the outcome is irreversible. By volunteering in MATA s End Distracted Driving program, I am confident that we will contribute to preventing some of these predictable incidents from ever occurring. We can do that by convincing students to simply make the right choice. What could be more important in our society when it comes to people driving on our roads today? Please join all of us at MATA as we continue our commitment to making a difference in our communities. Applicable law The applicable law governing an excursion case is often an important issue. For example, the damages recoverable for a non-wage earning decedent will vary dramatically depending upon whether the Death on the High Seas Act or the forum state s wrongful death act will be applicable. If the case is governed by DOHSA, the decedent s beneficiaries will be limited to their pecuniary losses, while under most state wrongful death acts they are entitled to seek much more substantial non-economic damages. Therefore, the applicability of maritime law, the forum state s law or even the law of the location where the incident occurred may be a significant issue in excursion cases. A court must have admiralty jurisdiction before general maritime law will apply to a cause of action. Admiralty jurisdiction is established when (1) the tort occurred on or over navigable waters or the injury on land was caused by a vessel on navigable waters ; and (2) the activity has a maritime nexus. A party seeking to invoke federal admiralty jurisdiction must satisfy both conditions, location and marine nexus. Alternatively, the Admiralty Extension Act can be used to establish admiralty jurisdiction. This Act provides that admiralty jurisdiction shall extend to and include all cases of damage or injury, to person or property caused by a vessel on navigable water, notwithstanding that such damage or injury to be done or consummated on land. Courts have taken an expansive view of admiralty jurisdiction and stated that in modern maritime commerce the shore is now an artificial place to draw a line. In Doe v. Celebrity Cruises, Inc., the 11th U.S. Circuit Court of Appeal s seminal opinion on the subject, the court found that admiralty jurisdiction applied to a shore side incident where a passenger claimed she was raped by her shipboard waiter in a local park in Bermuda. The court held that the location prong of admiralty jurisdiction was satisfied because scheduled stops at a port-of-call are an integral part of the ongoing cruise. The court reasoned that the passenger was no less a cruise passenger the moment she stepped off the ship at the port-of-call than she was the moment before she stepped off. Based upon the decision in Doe, courts have routinely found that admiralty jurisdiction and law applies for injuries occurring during shore excursions. However, just because an incident happens during a shore excursion does not automatically mean that maritime law will apply. In each case the location and maritime nexus requirements must be met. Therefore each case must be analyzed on a case by case basis. Notwithstanding the finding of maritime jurisdiction, a cruise line may assert a choice of law provision in their ticket contracts designating some law other than general maritime law as the governing law to be applied. If, however, there is a dispute as to which law applies, courts will apply the admiralty choice of law analysis in determining whether general maritime law or some other state or foreign law applies. The Supreme Court has set out a nonexhaustive list of factors to be considered when determining which law to apply in admiralty tort cases. These factors include: (1) place of the wrongful act; (2) the flag of the vessel; (3) domicile of the injured party; (4) domicile or allegiance of the ship owner; (5) the place of the contract; (6) accessibility of a foreign forum; (7) law of the forum; and (8) shipowner s base of operation. Even where a matter is governed by general maritime law, claims can be supplemented by state wrongful death statute and survival statutes. In Yamaha Motor Corporation, U.S.A. v. Calhoun, the court held that the exercise of admiralty jurisdiction does not result in the automatic displacement of state law. In Calhoun, state remedies were applied to supplement liability and damages claims in wrongful death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshoreman worker, or person otherwise engaged in maritime trade. State law will also supplement personal injury claims that occur in state territorial waters. Although they typically retain between half and two-thirds of the price paid by their passengers for shoreside excursions sold on their ships and web sites, the cruise lines seek to avoid their responsibility for injuries occurring during these activities by using self-serving ticket and contract language to distort the true nature of their relationships with their tour operators. In order to educate both judges and juries, it is therefore necessary to show the critical importance of such excursions to the cruise experience marketed by the carriers and the true nature of their relationship with those they have selected to carry out this integral portion of their central business plan. Because the defense will typically present a narrow view limited to the self-serving language inserted into the contract documents, the successful presentation of such claims by the plaintiff requires providing the broader context necessary to explain both the importance of these activities to the carrier s core business as well as its overriding control over their operation. ADR/LITIGATION SUPPORT ECONOMIC LOSS ALTERNATIVE DISPUTE RESOLUTION Give the courts a break! Bring your clients for case evaluations, mediation, arbitration. Bring your cases to me as a master. Convenient day to day scheduling in a private, easily accessible location will make your practice fun again. 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