Oltman v. Holland America Line Usa, Inc.
| Decision Date | 11 September 2006 |
| Docket Number | No. 56873-6-1.,56873-6-1. |
| Citation | 148 P.3d 1050,136 Wn. App. 110 |
| Parties | Jack OLTMAN, Bernice Oltman, and Susan Oltman, Appellants, v. HOLLAND AMERICA LINE USA, INC., and Holland America Line, Inc., Respondents. |
| Court | Washington Court of Appeals |
Noah Christian Davis, In Pacta PLLC, Seattle, WA, for Appellants.
John Patrick Hayes, Forsberg & Umlauf, Seattle, WA, for Respondents.
¶ 1 Holland America Line's cruise ship ticket requires passengers to file lawsuits in the United States District Court for the Western District of Washington in Seattle within one year of injury. During a Holland America cruise that sailed from Valparaiso, Chile on March 31, 2004, Jack Oltman and his mother, Bernice Oltman, contracted a gastrointestinal disease. On March 30, 2005, Jack, Bernice, and Jack's spouse, Susan Oltman, (collectively "Oltman") filed a lawsuit against Holland America Line, USA Inc., and Holland America Line, Inc., (collectively "Holland America") in King County Superior Court.1 Jack and Bernice alleged negligence, breach of contract, and fraud in the inducement. Susan alleged loss of consortium. On summary judgment, the trial court dismissed Oltman's lawsuit based on the forum selection clause in the Cruise and Cruisetour Contract (cruise ship contract). The court refused to strike Holland America's affirmative defenses of improper venue and the forum selection clause or the attorney's declaration in support of summary judgment. We conclude federal law governs and the forum selection clause in Holland America's cruise ship contract is valid and enforceable. We also conclude the trial court did not abuse its discretion in refusing to strike Holland America's affirmative defenses or the attorney declaration. We affirm the trial court's dismissal of Oltman's lawsuit against Holland America.
¶ 2 On March 18, 2004, Bernice and Jack Oltman booked tickets through Vacations to Go Travel Agency to sail from Valparaiso, Chile, to San Diego, California, on Holland America Line's cruise ship.
¶ 3 Before departure Holland America issues travel documents to all passengers. The travel documents include the cruise ship ticket and the cruise ship contract. Holland America requires passengers to present the contract and the cruise ship ticket, before boarding.
¶ 4 Bernice and Jack received their tickets and the cruise ship contract approximately six days before boarding.2 The cruise ship contract contains a forum selection clause. The forum selection clause is printed in all caps and is the first substantive piece of information in the cruise ship contract after the itinerary. The cruise ship contract also informs passengers they must sue within one year of injury in the U.S. District Court of the Western District in Washington in Seattle or, if the court does not have federal jurisdiction, in state court in King County.3
¶ 5 Bernice and Jack boarded the ship in Valparaiso, Chile on March 31, 2004. During the cruise, a gastrointestinal disease outbreak occurred. Bernice and Jack alleged they contracted the disease. On March 30, 2005 Oltman sued Holland America in King County Superior Court. Bernice and Jack alleged negligence, breach of contract, and fraud in the inducement. Susan alleged loss of consortium.
¶ 6 Holland America filed a notice of appearance on April 8, 2005, and filed an answer on April 29, 2005. Holland America's answer asserted the forum selection clause in the cruise ship contract and improper venue as affirmative defenses. Oltman filed a motion to strike Holland America's affirmative defenses because the answer was filed 11 days after the 20-day deadline. The trial court denied the motion to strike.
¶ 7 Holland America filed a motion for summary judgment seeking dismissal of Oltman's lawsuit based on improper venue and the forum selection clause. In support of the motion for summary judgment, Holland America's attorney submitted a declaration with attached published and unpublished court decisions. The court denied Oltman's motion to strike the attorney's declaration and granted summary judgment for Holland America and dismissed Oltman's lawsuit.
¶ 8 Holland America filed its answer and affirmative defenses 31 instead of 20 days after service of the summons and complaint. For the first time on appeal, Oltman argues Holland America's delay in filing its answer and affirmative defenses prejudiced Oltman.
¶ 9 Below, Oltman asked the court to "strike Defendant's affirmative defenses as frivolous and irrelevant for failure to plead them in a timely manner, and more specifically, to strike the `improper venue' defense as frivolous" under RCW 4.32.170.4 On appeal Oltman argues that if Holland America filed its answer 20 days after service, the lawsuit could have been re-filed in the U.S. District Court for the Western District of Washington at Seattle.5 "Generally, failure to raise an issue before the trial court precludes a party from raising it on appeal." Fischer-McReynolds v. Quasim, 101 Wash. App. 801, 814, 6 P.3d 30 (2000); RAP 2.5(a). Because Oltman did not raise the issue of prejudice below, this court will not consider it on appeal.6 Nonetheless, we conclude the trial court did not abuse its discretion in refusing to strike the answer and affirmative defenses.
¶ 10 This court reviews a trial court's decision denying a motion to strike for abuse of discretion. King County Fire Prot. Dist. No. 16 v. Hous. Auth. of King Cy., 123 Wash.2d 819, 826, 872 P.2d 516 (1994).7 Oltman's reliance on CR 12(h)(1)(B) and Davidson v. Hensen, 135 Wash.2d 112, 954 P.2d 1327 (1998) is misplaced. CR 12(h)(1)(B) only applies when the party omits the defense from a 12(b) motion or from its responsive pleading. In Davidson, no complaint or answer was ever filed in court. The Court held homeowners waived the affirmative defense of nonregistration by waiting until after the arbitration hearing before raising the defense for the first time. Id. at 123, 954 P.2d 1327. Oltman also cites no authority establishing affirmative defenses pleaded in an untimely answer are waived.8 In any event, Holland America did not waive its right to assert the affirmative defenses. As provided in CR 12(h) Holland America set forth its affirmative defenses in the first responsive pleading it filed. We conclude the trial court did not abuse its discretion in denying Oltman's motion to strike the affirmative defenses.
¶ 11 Holland America's attorney submitted a declaration of supplemental legal authority in support of the motion for summary judgment. In the declaration, the attorney listed nine cases filed in state and federal court and stated that in each case the court had enforced identical Holland America forum selection provisions. The attorney attached six federal court decisions and three King County Superior Court summary judgment orders. Two of the six federal court decisions were published decisions, four were not.
¶ 12 Oltman moved to strike the declaration and the authority cited on the ground that the attorney improperly cited to unpublished authority under RAP 10.4(h). Oltman also argued the declaration violated Rules of Professional Conduct (RPC) 3.7, which prohibits a lawyer from acting as an advocate and as a witness in the same trial. The court denied the motion to strike.
¶ 13 This court reviews trial court rulings on motions to strike for abuse of discretion. Tortes v. King County, 119 Wash.App. 1, 12, 84 P.3d 252 (2003).
¶ 14 RAP 10.4(h) prohibits a party from citing an unpublished opinion of the Court of Appeals as authority. The rule provides, "[a] party may not cite as an authority an unpublished opinion of the Court of Appeals." RAP 10.4(h). Because Holland America's attorney did not cite unpublished appellate court decisions as authority, the trial court did not abuse its discretion in denying Oltman's motion to strike the attorney declaration.9
¶ 15 Oltman contends the trial court erred in enforcing the forum selection provision in Holland America's contract and on several grounds: (1) the trial court did not engage in a choice of laws analysis and apply Washington instead of federal law; (2) the forum selection clause is invalid; (3) the federal court does not have jurisdiction because of the "saving to suitors" clause; and (4) the forum selection clause does not bar Susan's loss of consortium claim.10
¶ 16 Oltman contends Washington law governs the validity of Holland America's forum selection provision in the cruise ship Contract. We disagree.
¶ 17 Generally, federal law governs cruise ship contracts and the enforceability of a forum selection clause. Moses Taylor, 4 Wall. 411, 71 U.S. 411, 427, 18 L.Ed. 397 (1867); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) (); Wallis v. Princess Cruises Lines, Ltd., 306 F.3d 827, 834 (9th Cir.2002) ().
¶ 18 Oltman relies exclusively on Nunez v. American Seafoods, 52 P.3d 720 (Alaska 2002), to argue that Washington not federal law governs. Nunez is distinguishable. In Nunez, an employee filed suit against his employer in Alaska state court under the Jones Act and 28 U.S.C. § 1333. Id. at 721. Because the purpose of the Jones Act is to protect an employee's litigation rights, the court held that requiring the employee to file suit in federal court conflicted with the purpose of the Jones Act and was invalid. Id. at 722.
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Oltman v. Holland America Line Usa, Inc.
...solely on the forum selection clause. The trial court granted the motion. The Court of Appeals affirmed. Oltman v. Holland Am. Line USA, Inc., 136 Wash.App. 110, 148 P.3d 1050 (2006). The Oltmans' petition for review was ¶ 6 We review a grant of summary judgment de novo. Beaupre v. Pierce C......
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Oltman v. Holland America Line, Inc.
...from the state trial court's dismissal, concluded that the cruise contract does apply to Susan. See Oltman v. Holland Am. Line USA, Inc., 136 Wash. App. 110, 148 P.3d 1050, 1058 (2006), overruled in part by 163 Wash.2d 236, 178 P.3d 981, 990, 995 (2008). The district court honored that ruli......
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Table of Cases
...O'Brien v. Larson, 11 Wn. App. 52, 521 P.2d 228 (1974): 14.2(3) Oltman v. Holland Am. Line USA, Inc., 136 Wn. App. 110, 148 P.3d 1050 (2006), aff'd in part, reversed in part, 163 Wn.2d 236, 178 P.3d 981 (2008): 9.3(2) Owens v. Harrison, 120 Wn. App. 909, 86 P.3d 1266 (2004): 14.4(2) P______......
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§9.3 - The Lawyer-Witness Rule
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