COVID-19 Suit Against Carnival Tossed Overboard For Now

By Joyce Hanson
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Law360 (February 11, 2021, 8:17 PM EST) -- A federal judge in Washington state has partly granted Holland America and parent company Carnival's bid to dismiss a suit by cruise passengers claiming they were exposed to COVID-19, ruling that they haven't shown the companies acted outrageously when deciding to set sail last March.

U.S. District Judge Thomas S. Zilly on Wednesday tossed claims for intentional infliction of emotional distress, or IIED, in the proposed class action lodged by passengers Leonard C. Lindsay and Carl E.W. Zehner. The judge said he wasn't convinced by their argument that Carnival Corp. and Holland America Line's decision to sail the MS Zaandam in March was proof of outrageous conduct because the companies already knew the World Health Organization had declared COVID-19 a public health emergency.

"Accepting plaintiffs' allegations as true, they fail to rise to the level of extreme and outrageous conduct necessary to state an IIED claim," Judge Zilly wrote. "The decision to set sail in the early weeks of what would become a global pandemic, when much remained unknown about COVID-19, does not constitute conduct beyond all possible bounds of decency."

Judge Zilly also dismissed Lindsay's claim for negligent infliction of emotional distress, saying he was persuaded by the cruise lines' argument that Lindsay did not allege any symptoms. Under federal maritime law, plaintiffs who seek to recover damages for negligent infliction of emotional distress must satisfy a "zone of danger test," the judge said, citing a 2010 Ninth Circuit ruling in Stacy v. Rederiet Otto Danielsen and the U.S. Supreme Court's 1994 decision in Consolidated Rail Corp. v. Gottshall .

The zone of danger limits recovery for emotional injury to plaintiffs who sustain a physical impact or who are placed in immediate risk of physical harm due to a defendant's negligent conduct, the judge said.

Both the intentional and negligent emotional distress claims were dismissed without prejudice, giving Lindsay and Zehner an opportunity to file an amended complaint within the next two months.

The initial complaint was filed on June 24, with Lindsay and Zehner accusing Holland America and Carnival of exposing more than 1,000 cruise ship passengers to COVID-19 on the vessel that sailed out of Argentina in March.

Holland's MS Zaandam passengers were not subject to proper screening or other precautionary measures prior to boarding the ship, although Holland was aware that some crew and passengers were exhibiting COVID-19 symptoms, according to the suit. 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 the passengers stuck at sea, the suit said.

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 suit said.

The cruise companies asked Judge Zilly on Oct. 2 to toss the suit in a first motion to dismiss for failure to state a claim, saying their contract contains a class action waiver. Both Lindsay and Zehner had agreed to the cruise contract that they referenced throughout their Sept. 11 amended complaint, the companies said.

And on Nov. 20, in a motion to dismiss the plaintiffs' Oct. 30 amended complaint, the companies asserted that Lindsay has not alleged he contracted COVID-19 or that he suffered any harmful symptoms of the disease.

As for the plaintiffs' claim for intentional infliction of emotional distress, the companies on Nov. 20 denied that they had committed "outrageous" conduct.

"Liability for IIED 'has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,'" the companies said, quoting from the 2002 Ninth Circuit decision Wallis v. Princess Cruises Inc.

Representatives for the cruise companies and the passengers did not immediately respond to requests for comment Thursday.

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 Jonathan W. Hughes, David J. Weiner, Christopher M. Odell and Katie J.L. Scott of Arnold & Porter.

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 Daniel King.

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