Clients sue if lodgings are unsuitable

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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 no lawsuit.

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 area.

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, Gould said.

To illustrate cases in each category, Gould recounted the following examples:

• A stay in a gorgeous villa in France that costs about $25,000 is "different."

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 money.

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 villa.

The case settled with a refund of most of the customers' money.

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 hotels.

• 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 two lawsuits.

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 accommodations.

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 Venezuelan coast.

The units were supposed to have thatched roofs, but the roofs were missing. It rained and clients had no alternatives for housing.

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 accommodations:

• Be "extraordinarily careful" about describing hotel amenities and locations.

If the hotel is part of a star rating system, explain the system: How may stars are in the system? What do the different ratings signify?

• 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 negligence.

• Buy errors and omissions insurance, "of course," he concluded. -- N.G.

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