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Law360 (October 5, 2020, 7:39 PM EDT) -- Holland America and parent company Carnival have urged a federal judge in Washington state to toss a suit claiming they exposed more than 1,000 cruise ship passengers to COVID-19 on a vessel that sailed out of Argentina in March, saying their contract contains a class action waiver.
Carnival Corp. and Holland America Line Inc. argued Friday in their motion to dismiss the proposed class action brought by passengers Leonard C. Lindsay and Carl E.W. Zehner that both men agreed to the cruise contract they reference throughout their Sept. 11 amended complaint.
The contract includes "a clear and unambiguous class action waiver" common to cruise ship passenger tickets, and courts have repeatedly enforced such waivers, Carnival and Holland America said.
In addition, they said, Lindsay's claims must be dismissed because he hasn't convincingly established that he contracted COVID-19 or suffered any injury due to the coronavirus.
"The fact that Lindsay believes that he contracted COVID-19 — despite the lack of any factual allegations to support that belief — is not sufficient to survive a motion to dismiss under even the most lenient pleading standards," Carnival and Holland argued.
The two cruise lines allegedly exposed more than 1,000 cruise ship passengers to COVID-19 on Holland's MS Zaandam vessel that sailed out of Buenos Aires on March 8, according to the proposed class action initially filed June 24 in Seattle federal court.
Lindsay and Zehner claim that although Carnival and Holland America knew that outbreaks had been occurring on other company-owned ships such as subsidiary Princess Cruise Lines' Diamond Princess in February, passengers on the MS Zaandam were not subject to proper screening or other precautionary measures prior to boarding the ship on March 7.
In addition, although Holland was aware that some crew and passengers were exhibiting COVID-19 symptoms, and following a mid-March denial of port entry by Chile, Holland allowed passengers to gather in large crowds and participate in group events designed to entertain them while stuck at sea, according to the complaint.
Due to the companies' alleged negligence, Zehner contracted the novel coronavirus and was later hospitalized and put on a ventilator, while Lindsay was forced to remain aboard the ship for a month, according to the suit. Four passengers died during the trip, and two of those were confirmed by Holland to have died due to COVID-19, the complaint says.
The suit brings claims of negligence, gross negligence, negligent infliction of emotional distress and intentional infliction of emotional distress, and seeks to establish a class of all 1,243 passengers who were aboard the MS Zaandam.
Lindsay's suit is the latest of at least three actions filed by Lieff Cabraser against Carnival. In April, the firm lodged a proposed class action on behalf of passengers of the Grand Princess and the following month filed a wrongful death suit on behalf of the estate of a 74-year-old Grand Princess passenger who died of COVID-19.
The proposed class action is still pending, and the son of the 74-year-old passenger quietly settled the wrongful death suit in August.
Counsel for Lindsay declined to comment Monday.
Representatives for the cruise lines did not immediately respond Monday to requests for comment.
The passengers are represented by Elizabeth J. Cabraser, Jonathan D. Selbin, Mark P. Chalos and Kenneth S. Byrd of Lieff Cabraser Heimann & Bernstein LLP, Kim D. Stephens, Jason T. Dennett and Rebecca L. Solomon of Tousley Brain Stephens PLLC, and David W. Garrison of Barrett Johnston Martin & Garrison LLC.
Holland America and Carnival are represented by Nicholas S. Politis of Flynn Delich & Wise LLP and David J. Weiner of Arnold & Porter Kaye Scholer LLP
The case is Lindsay et al. v. Carnival Corp. et al., case number 2:20-cv-00982, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Y. Peter Kang. Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
