FRAMINGHAM, Mass. -- Clients can be prickly when it comes to where
they lay their heads while on vacation. If their home away from
home isn't up to expectations, they sue -- or threaten to -- for a
host of reasons, some reasonable and some nowhere near reasonable,
said travel attorney Rodney Gould.
Gould recalled one complaint that he found so far off base he
made a threat of his own -- to move for sanctions against the
traveler's attorney for bringing a frivolous suit -- and there was
In that instance, he said, an Illinois customer complained that
his travel agent said the hotel was in the middle of San Francisco,
so the client expected to be around Union Square or Nob Hill, not
on Fisherman's Wharf.
Gould, a partner in Rubin Hay & Gould here, has a similar
case that was in the court system as of a couple of months ago.
In this instance, a California tourist sued his agent, complaining
that his hotel was not in the center of Rome: He was housed near
the train station rather than near the Spanish Steps as he wished.
Therefore, he complained that rather than having ready access to
the smart shops near the Steps, he walked out of his hotel each day
to the sight of disheveled Europeans and Americans with backpacks;
he also complained that he had to take a cab to the Spanish Steps
The problem, Gould said, is that the meaning of "middle of town"
or "central location" is not universally understood. It is better,
he said, to simply tell clients where their hotel is located.
Gould sees plenty of litigation, or threats, that are related to
substandard or disappointing accommodations.
He is frequently retained by the Berkely Group to defend firms
that buy their errors and omissions insurance from Berkely; in
other cases, he is retained directly.
Gould said accommodations-related cases are of three types:
• The properties are "different," meaning condominiums or
villas, and clients may not understand that nontraditional choices
don't provide the same kinds of services as hotels, especially 24
hours a day.
• Hotels are substandard in the view of the traveler. It is not
that these properties are unsanitary or dangerous, they are just
not what the customer expected.
"A three-star hotel may not be what the rich and well-born
want," Gould quipped.
• They stink, literally and figuratively. Even some properties
with well-known names can fall below their franchisers' standards,
To illustrate cases in each category, Gould recounted the
• A stay in a gorgeous villa in France that costs about $25,000
A New York couple booked such a trip about a year ago, then
bailed out after getting to the property.
They sued the travel agency, a villa specialist, for all the
The reason? The villa owner's dog was on premises. The husband
in the traveling pair was allergic -- so allergic, he said, that
the offer to relocate the dog did not matter.
Gould said there was a dispute over whether he had told the
agent of an allergy and whether he had been told of a dog at the
The case settled with a refund of most of the customers'
More often, he said, complaints about nonstandard housing relate
to condos, which don't have the 24-hour services of a hotel, and
"there is no one to change a light bulb" for the client.
However, despite the nasty letters from disgruntled clients, not
many of these complaints turn into litigation. Sometimes, Gould
said, the customers have not realized how condos are different than
• Gould said he sees many threats about disappointing
accommodations that don't end up in court.
He said, "We respond aggressively, citing cases" to convince the
potential plaintiff that his odds are not good.
He estimated that for every 25 "pound-sand letters" that he
sends to prospective plaintiffs, he winds up defending only one or
Nevertheless, there are cases enough that don't look especially
reasonable to the agent who is on the wrong end of the action.
For example, Gould is defending an agent in a New Jersey case
filed by middle-aged honeymooners who had wanted to take a long
cruise far from home.
They booked a $30,000 trip for a three-week cruise in the South
Pacific aboard a Radisson ship. On their return, they sued for a
full refund on the grounds that all the other patrons aboard the
ship were geriatric.
Also, they complained, there was one bad day at sea, and the
travel agent should have known and given warning because "everyone
knew" that this part of the sea is rough.
Another pending case, in Texas, involves customers who sued
their agent after a trip to Ixtapa, Mexico, where they found their
hotel, described as superior first class in hotel directories, to
be "little better than the common Best Western and Holiday Inn,"
the clients said.
The unhappy customers said they had expected a property at
something close to the standard of a Peninsula or Four Seasons,
Gould said, adding his motion to dismiss is pending.
Another, stronger case involved a New Jersey client who sued his
agent and a tour operator after finding himself in an airport hotel
outside Copenhagen, Denmark, although he was there for five days of
sightseeing in the summer of 2001.
He complained about the inconvenience and the cost of traveling
between the hotel and city center each day; he said he was supposed
to have been downtown.
The case settled with the agency giving up its commission, and
the tour operator providing a credit on a future tour.
• A couple of years ago, Gould said, he took on a number of
cases in Maryland, Massachusetts and Pennsylvania, all stemming
from client unhappiness with conditions at a couple of properties
in St. Martin.
The hotels had a recent history of break-ins, robberies and
rapes, so managers told customers to keep their hurricane blinds
drawn and fastened. That keeps the light out, Gould said, and
creates the ambience of a cave -- in other words, substandard
Some of the cases were dismissed because the defendant, the tour
operator, had not known about the problem when the plaintiffs
traveled. Another settled for a partial refund. A final case is
pending because, in that instance, the agent and tour operator had
known about the problems.
Clients also sue over backed-up septic systems, hotels that are
construction sites and for other sound reasons.
"Those cases are generally disasters," Gould said. "They are
hard to win even if the agent didn't know about the problems"
because the amounts requested are relatively small -- the cost of
their trips -- and there was a "clear loss to the consumer."
The courts hand out a kind of rough justice, he said, favoring
the consumer over a presumably richer business.
Gould said the classic example is a Pennsylvania case in which
an agent sent clients to a new hotel on Margarita Island off the
The units were supposed to have thatched roofs, but the roofs
were missing. It rained and clients had no alternatives for
The clients won a $25,000 judgment.
"At a bare minimum," Gould said, "when you buy a vacation, you
expect the hotel to be finished ... and courts generally extend a
sympathetic ear" to that kind of claim.
A primer for complaint prevention
FRAMINGHAM, Mass. -- Travel attorney Rodney Gould offered the
following advice to the trade to help head off complaints or
litigation if a customer is unhappy with his vacation
• Be "extraordinarily careful" about describing hotel amenities
If the hotel is part of a star rating system, explain the
system: How may stars are in the system? What do the different
• If there is a brochure associated with the property, be sure
the client gets it.
If there was a brochure and it was not offered, that heightens
the agency's risk in case of problems, he said. Besides, Gould
added, "maybe if the clients see the setting showing gray-haired
guests, they will get a clue" about the people they may meet.
• Use a release of some type, a form that refers to the
itinerary and advises that the agency does not own or operate any
of the supplier companies and is not responsible for their
• Buy errors and omissions insurance, "of course," he concluded.