Morris v. Princess Cruises

• Decision Date: 10 January 2001
• Docket Number: No. 99-55092,99-55092
• Citation: 236 F.3d 1061
• Parties: (9th Cir. 2001) OTTILIE MORRIS, Individually and as Executrix of the Estate of Roy I. Morris, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; AMERICAN INTERNATIONAL ASSISTANCE SERVICE, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; BERKELY CARE LIMITED; CRUISE CONSULTANTS, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1061

236 F.3d 1061 (9th Cir. 2001)

OTTILIE MORRIS, Individually and as Executrix of the Estate of Roy I. Morris, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; AMERICAN INTERNATIONAL ASSISTANCE SERVICE, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; BERKELY CARE LIMITED; CRUISE CONSULTANTS, Defendants-Appellees.

No. 99-55092

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 2, 2000

Filed January 10, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sharon S. McCally, Moore & McCally, P.C., Houston, Texas, for the plaintiff-appellant.

Eric M. Danoff, Kaye, Rose & Partners, LLP, San Francisco, California. Elsa M. Ward, Kaye, Rose & Partners, LLP, San Francisco, California, for defendant-appellee Princess Cruises, Inc.

Nicole Y. Pomerantz , Michael F. Bell, Galton & Helm, Los Angeles, California, for defendants-appellees American International Assistance Service, Inc., National Union Fire Insurance Company of Pittsburgh, PA, and Berkelycare Ltd.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding. D.C. No.CV-97-04315-CAS

Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez and Johnnie B. Rawlinson, Circuit Judges

O'SCANNLAIN, Circuit Judge:

We must decide whether the federal court had removal jurisdiction over an action brought by a passenger against a cruise line and insurance companies alleging various tort and contract claims arising out of events in the port city of Bombay, India, and, if so, whether these claims were properly dismissed on summary judgment.

I

Ottilie Morris ("Mrs. Morris") appeals the district court's dismissal on summary judgment of her tort and contract claims against Princess Cruises, Inc. ("Princess") and American International Assistance Service, Inc., National Union Fire Insurance Company of Pittsburgh, PA, and BerkelyCare Limited (collectively, the "Insurers"). These claims arose out of a Princess cruise that Mrs. Morris and her late husband, Roy I. Morris ("Mr. Morris"), took from Athens to Bombay in November 1995.

In June 1995, Mr. and Mrs. Morris, who had taken a number of Princess cruises in the past, made reservations for a Princess "Holy Lands" cruise through Cruise Consultants Co. ("Consultants"), a travel agency based in San Antonio, Texas. At the same time, the Morrises purchased an excess insurance policy known as "Love Boat Care" (the "Policy") administered by BerkelyCare and underwritten by National Union Fire Insurance Co. The Policy's designated emergency assistance provider was American International Assistance Service, Inc. ("AIAS"). The Policy's benefits included, inter alia, $25,000 coverage for emergency evacuation "to the nearest hospital where appropriate medical treatment can be obtained" and round-trip economy airfare for a family member traveling with the insured; $10,000 medical expense coverage for illness; worldwide emergency telephone assistance so that "English-speaking help and advice may be furnished";and emergency medical assistance to help locate the "nearest qualified medical facility" and to provide up to a $1000 advance payment to a hospital if needed to admit the insured. The Policy's Description of Coverage contained the following caveat:

Note that the problems of distance, information and communications make it impossible for National Union Fire Insurance Company, BerkelyCare Ltd, Princess or its assistance service provider to assume any responsibility for the availability, quality, use, or results of any emergency service. In all cases, you are still responsible for obtaining, using, and paying for your own required services of all types.

In November 1995, the Morrises departed from Athens aboard the Island Princess for a 28-day cruise to Singapore by way of Bombay. On November 22, Mr. Morris, who had a history of heart disease, contracted pneumonia and was admitted to the ship's medical center under the care of the ship's physician, Dr. Katrina Lewis ("Dr. Lewis"). Given the seriousness of Mr. Morris's condition, Dr. Lewis believed that he should be evacuated as soon as possible to a land-based intensive care unit ("ICU"). She spoke with the ship's captain about the possibility of arranging for helicopter evacuation or diverting the ship to the nearest port, but was told that the ship was outside the range of any emergency medical helicopters and too far from appropriate medical facilities. Thus, the ship proceeded full speed to Bombay.

On November 24, Dr. Lewis contacted AIAS, the emergency assistance provider under Mr. Morris's Policy. Dr. Lewis informed AIAS that she would arrange for Mr. Morris to be air evacuated by AEA, International ("AEA") to Singapore as soon as the ship reached port in Bombay and that AIAS's assistance would not be necessary. AEA is the only emergency evacuation assistance provider that Princess Cruises employs in that region and the provider that Dr. Lewis was specifically instructed to use by her supervisors. According to uncontradicted testimony, AEA has a reputation for being a very reliable emergency assistance provider. AIAS monitored Mr. Morris's condition and faxed its approval of the air evacuation plan to AEA with a guarantee for the full $25,000 policy limit for emergency evacuation. AEA represented to Dr. Lewis and AIAS that it would have a jet ready to evacuate Mr. Morris to Singapore upon his arrival in Bombay.

The ship reached port in Bombay in the early morning hours of November 27. An AEA-affiliated physician, one Dr. Mehra, came aboard and examined Mr. Morris. AEA apparently represented to Dr. Lewis that Dr. Mehra was a specialist in aviation medicine. After the examination, Dr. Mehraexpressed his concern for Mr. Morris's oxygenation in the event that the plane lost cabin pressure during the flight to Singapore and recommended that the flight be delayed until Mr. Morris could be stabilized.

With this change in plans, it was agreed that Dr. Mehra would take Mr. Morris to a Bombay ICU by ambulance. The ambulance Dr. Mehra provided was woefully deficient. It was not equipped with any medical supplies or devices of any kind --including oxygen. It was also filthy, as was the stretcher onto which Mr. Morris was placed. Dr. Lewis herself testified that the ambulance was not appropriate for taking Mr. Morris to a hospital facility and expressed her concerns to Dr. Mehra, who replied that this was the only ambulance available. Relying on AEA's chosen physician, Dr. Lewis turned treatment of Mr. Morris over to Dr. Mehra, having first provided Mr. Morris with oxygen and blankets from the ship's medical center.

After a two-hour ambulance trip through Bombay, Dr. Mehra transported Mr. Morris to the Aradhana Intensive Care and Nursing Home. Mrs. Morris testified to the wretched conditions prevailing at the Aradhana facility. There was half an inch of urine on the floor; flies and roaches were everywhere. There was no medical equipment of any kind there. Mrs. Morris pleaded with Dr. Mehra to transfer her husband to a regular hospital. Dr. Mehra agreed, but demanded $1,200, which Mrs. Morris immediately handed over. After spending approximately six hours at the nursing home, Mr. Morris was transferred to Breach Candy Hospital in Bombay.

Meanwhile, AIAS attempted to contact Mrs. Morris to help her find hotel accommodations and to assist in having money wired to her from her family in the United States. According to Mrs. Morris, she checked in to the Hotel Shalimar at the recommendation of AIAS. During her stay there, she was assaulted and some of her personal belongings were stolen. She was also accosted by Dr. Mehra again, who demanded an additional $900, which Mrs. Morris refused to pay.

Mr. Morris was treated at Breach Candy for 14 days, and Mrs. Morris was pleased with the care Mr. Morris received there. On December 10, 1995, Mr. Morris was deemed fit to fly home to Texas. AIAS arranged for a first-class flight back to San Antonio for both Mr. and Mrs. Morris and provided a medical escort for the trip, as well. Mr. Morris arrived home feeling better and did not seek out medical attention for a couple of days. On December 15, Mr. Morris suffered a fatal heart attack during an angioplasty procedure. Cause of death was listed as severe coronary artery disease.

Mrs. Morris submitted a claim under the Policy in the amount of $16,592 for trip cancellation, loss of her personal belongings at the Hotel Shalimar, and hotel, meals and transportation while in Bombay. She submitted a second claim of $7,057.72 for medical expenses, including the $1,200 she paid to Dr. Mehra. Based on their currency conversion table and pursuant to policy limitations not at issue here, the Insurers paid Mrs. Morris $12,593.62, including $4,705.39 for her medical expenses, which included the $1,200 cash payment to Dr. Mehra. The Insurers paid an additional $16,596.29 for Mr. Morris's air evacuation from Bombay to Texas. Mrs. Morris no longer disputes the amount of the Insurers' payments on her claims.

On May 2, 1996, Mrs. Morris filed a wrongful death claim against Princess and a claim of negligent misrepresentation against Consultants. She alleged that Princess failed to provide adequate care for Mr. Morris aboard the Island Princess; failed to arrange for Mr. Morris to be transferred to a proper medical facility; failed to maintain contact with the Morrises while they were in Bombay; failed to provide air transfer of Mr. Morris to Singapore as promised; and failed to have policies and procedures for proper health care and safe evacuation and subsequent care for passengers who become ill while in the "care and custody" of Princess. She alleged that Princess thereby breached its duty of care to Mr. Morris and that such breach was a proximate cause of his death. She also alleged that Consultants falsely represented that Princess Cruises was "a reputable cruise line...