Vaughn v. American Auto. Ass'n, Inc., No. CIV.A.03-11902-NG.

• Decision Date: 19 July 2004
• Docket Number: No. CIV.A.03-11902-NG.
• Citation: 326 F.Supp.2d 195
• Parties: Charles M. VAUGHN, et al., Plaintiffs, v. The AMERICAN AUTOMOBILE ASSOCIATION, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

326 F.Supp.2d 195

Charles M. VAUGHN, et al., Plaintiffs, v. The AMERICAN AUTOMOBILE ASSOCIATION, INC., et al., Defendants.

No. CIV.A.03-11902-NG.

United States District Court, D. Massachusetts.

July 19, 2004.

Richard P. Campbell, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for U.S. Airways, Inc. Defendant.

Kathleen M. Guilfoyle, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for U.S. Airways, Inc. Defendant.

Marc D. Wallick, Wallick & Paolino, Warwick, RI, for The American Automobile Association, Inc. Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

GERTNER, District Judge.

After reviewing the objections, I agree with Judge Dein's recommendation granting AAA's motion for summary judgment because plaintiffs have not presented evidence of unfair or deceptive acts sufficient to support a claim under G.L. chapter 93A.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiffs, Charles M. Vaughn ("Vaughn") and Joyce A. Russis ("Russis"), have brought this suit against The American Automobile Association, Inc., ("AAA") and U.S. Airways, Inc. alleging that the defendants are liable under Mass. Gen. Laws ch. 93A for damages they sustained as a result of a trip to Italy being cut short when their luggage was lost. The action against U.S. Airways, Inc. has been stayed due to the airline's bankruptcy (Docket # 9) and the parties have indicated that they expect to dismiss this case against the airline shortly in accordance with orders of the Bankruptcy Court. This case is presently before the court on AAA's Motion for Summary Judgment (Docket # 12). For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Motion for Summary Judgment be ALLOWED.

II. STATEMENT OF FACTS

The following facts are undisputed for purposes of this Motion for Summary Judgment.

The plaintiffs have been members of AAA for about fifteen years. (Plaintiffs' Memorandum In Opposition to Defendant's Motion for Summary Judgment (Docket # 16) ("Opp.") at 6). In late February 1999, they used AAA's travel agency services to book a tour of Italy conducted by Trafalgar Tours of New York City. (Complaint ("Compl.") ¶ 5). AAA provided the air tickets and tour confirmation to the plaintiffs upon final payment for the tour. (Id. ¶ 9). The total original cost of the trip was $5,174.60. (Id.).

The plaintiffs left for Italy on June 29, 1999. (Id. ¶ 10). Their original flight from Boston to Philadelphia was two hours late, which resulted in the plaintiffs missing their connecting flight to Rome. (Id. ¶¶ 9-12). The plaintiffs were able to secure an alternate flight to Rome, through Paris. (Id. ¶¶ 12-14). However, their luggage failed to arrive in Rome. (Id. ¶ 16). Before the plaintiffs left the airport, they placed a claim for their luggage with the appropriate airline's lost and found department. (Id.). The plaintiffs then proceeded to their hotel and met up with their tour group. (Id. ¶ 17).

The next day, June 30, 1999, the plaintiffs contacted the AAA office in Burlington, Massachusetts to request assistance in recovering their baggage. (Id. ¶ 19). Cathy Grover, a AAA customer service representative, told the plaintiffs that she would try to contact U.S. Airways and follow-up on the status of the bags. (Id.). The plaintiffs found Ms. Grover and her immediate supervisor, Donna Muller, unresponsive to their plight. (Id. ¶¶ 20-21). Ms. Muller stated to the plaintiffs that she could only file a report with U.S. Airways, and did not offer the plaintiffs any additional assistance. (Id.).

On July 1, 1999, the plaintiffs decided to terminate their vacation because they did not want to continue on without their personal belongings. (Id. ¶ 22). After making this decision, the plaintiffs called AAA and requested that Ms. Muller arrange airplane reservations for them back to the United States. (Id.). Ms. Muller refused to make the reservations, claiming it would be easier for the plaintiffs to secure reservations them-selves since they were in Rome. (Id.). While the plaintiffs were able to make reservations for a flight leaving the next day for the United States, it was a time consuming process. (Id. ¶ 23). The return tickets cost the plaintiffs a total of $1,854.00. (Id.). The plaintiffs left Italy on July 2, 1999, but did not receive their bags until the end of that month. (Id. ¶ 24; Opp. at 5).

On July 2, 2003, the plaintiffs filed a complaint against AAA and U.S. Airways in Woburn District Court alleging a violation of Mass. Gen. Laws ch. 93A, § 9. On September 9, 2003, U.S. Airways removed the action to this court. (Docket # 1).

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court "must view the evidentiary record in the light most hospitable to the nonmovant and must indulge all reasonable inferences in his favor." Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991). Applying these principles to the instant case compels the conclusion that the Motion for Summary Judgment should be allowed.

B. Statute of Limitations

The defendant asserts that this action is time-barred, either under the Warsaw Convention, or pursuant to the terms of Mass. Gen. Laws ch. 93A. As detailed herein, this court finds that the Warsaw Convention does not apply to the instant case, as AAA is not an "air carrier" governed by the Treaty. In addition, this court finds that the claim was timely brought under ch. 93A.

1. The Warsaw Convention

AAA contends that this action is barred by the two-year statute of limitations found in Article 29 of the Warsaw Convention.¹ "The Warsaw Convention is an international treaty governing the liability of air carriers engaged in the international transportation of passengers and cargo. The Convention creates a presumption of air carrier liability but, in turn, substantially limits that liability." Dazo v. Globe Airport Sec. Serv., 295 F.3d 934, 937 (9th Cir.2002) (internal citation omitted). "The cardinal purpose of the Warsaw Convention ... is to achieve uniformity of rules governing claims arising from international air transportation." El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169, 119 S.Ct. 662, 671-72, 142 L.Ed.2d 576 (1999) (internal citation and punctuation omitted). To accomplish this goal, "the Convention describes and defines the three areas of air carrier liability (personal injuries in Article 17, baggage or goods loss, destruction, or damage in Article 18, and damage occasioned by delay in Article 19), the conditions exempting air carriers from liability (Article 20), the monetary limits of liability (Article 22), and the circumstances in which air carriers may not limit liability (Articles 23 and 25)." Id. at 169, 119 S.Ct. at 672

While the Warsaw Convention may be relevant to the plaintiffs' claim against the airline for lost luggage, it has no relevance to the claim against AAA. As plaintiffs admit, the lost luggage was not AAA's responsibility, rather it was AAA's failure to assist the plaintiffs which forms the basis of their claim. Thus, as an initial matter, it is not clear that the substance of the claim against AAA is governed by the Warsaw Convention. More importantly, however, the Warsaw Convention applies to "carriers" and there is nothing in the record which would support the conclusion that AAA, as a travel agent, is a carrier under the Convention. See, e.g., Am. Home Assur. v. Jacky Maeder (Hong Kong), Ltd., 969 F.Supp. 184, 190 (S.D.N.Y.1997) (proposed defendant is not a carrier under the Convention where plaintiff did not allege it was a carrier and "no facts are alleged which would lead the Court to conclude that [the entity] was involved in actually operating airplanes and transporting the freight in question through international air travel"); Dazo v. Globe Airport Sec. Serv., 295 F.3d at 938-40 ("carrier" status under Warsaw Convention not extended to security company operating various checkpoints at airport). Therefore, this action is not barred by the two-year statute of limitations found in the Warsaw Convention.

2. Mass. Gen. Laws ch. 93A

Claims under Mass. Gen. Laws ch. 93A are governed by a four-year statute of limitations. Mass. Gen. Laws. ch. 260, § 5A. A cause of action under ch. 93A typically accrues "at the time injury results from the assertedly unfair or deceptive acts" subject to the caveat that "a cause of action does not accrue until a plaintiff discovers, or reasonably should have discovered, that she may have been injured as a result of the defendant's conduct." Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir.1993) (internal citation omitted). In the instant case, the plaintiffs left Italy on July 2, 1999, and filed suit on July 2, 2003. AAA has taken the position that the cause of action accrued on July 2, 1999. (See Defendant's Memorandum in Support of Motion for Summary Judgment (Docket # 13) ("Def.Mem.") at 4). This court finds that suit was filed within four years of that date, and thus, within the statute of limitations.²

To avoid a timeliness bar given the close proximity between the filing date and the expiration of the statute of limitations (see note 2, supra), the plaintiffs argue that ch. 93A's four-year statute of limitations should begin to run either on the day that their tour of Italy would have ended, July 12, 1999, or the day that their last item of luggage was returned, July 30, 1999. (Opp. at 5). However, their claim against AAA challenge's the defendant's efforts (or lack thereof) in assisting the plaintiffs in locating their luggage, finding alternative methods for dealing...