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Law360 (June 26, 2020, 8:35 PM EDT) -- Carnival's Costa Crociere cruise line is urging a Florida federal court to dismiss a proposed class action alleging it negligently sent 2,000 passengers sailing on a "ticking coronavirus time bomb" that led to dozens of cases, saying its ticket contracts bar class treatment and that the claims are vague and insufficiently pled.
Costa Crociere SPA said in its 31-page motion, filed Thursday in Miami, that almost identical class action waivers to the one contained in its ticket contracts have been upheld in other cases. Costa also asserted that named plaintiff Paul Turner accepted the terms and conditions when making his reservation for the March 5 cruise on the Costa Luminosa and received at least five confirmations that referred him to the company's website, where the information also was available, before he boarded the ship.
Additionally, the company argued that the April 7 complaint should be dismissed in full because it violates court rules and precedent as a shotgun pleading that fails to clearly separate each cause of action or claim for relief into a separate count, and also because the allegations lack specificity about Turner's alleged injuries and necessary supporting facts.
The cruise line said it is unclear from the complaint if Turner actually contracted COVID-19 and, if so, what his symptoms were and when they appeared — information that is needed to determine whether its alleged failure to warn could have been the cause of his injuries.
"The complaint is vague, conclusory, inconsistent and lacks facts that would indicate whether plaintiff became ill from COVID-19 (as opposed to any other 'virus') or whether he claims injury from a 'risk' of exposure to COVID-19," Costa said.
Costa also attacked other elements of Turner's pleadings, arguing for example that a claim for misleading advertising fails because it is based on emails that the company sent to passengers after they had already purchased their tickets. And it said his request for punitive damages should be dismissed because the Eleventh Circuit has held that they are not available for personal injury claims under federal maritime law, which Turner has said is the basis for his claims.
The motion also argued that Costa Cruise Lines Inc., which it described as Costa Crociere's marketing and sales arm, should be released as a co-defendant because none of the allegations pertain to its conduct, and noted that Costa Crociere has separately challenged whether Florida is a proper forum for the case.
The suit alleges that passengers were kept in the dark or given outdated information as an outbreak occurred during the voyage and the ship was denied entry to multiple ports of call. The complaint includes five counts: negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, misleading advertising under Florida state law and negligent misrepresentation, according to the motion.
The Costa Luminosa departed from Fort Lauderdale, Florida, on March 5, even though a passenger on a previous leg of the cruise had been removed showing signs of the virus days before, and later died, according to the complaint.
After roughly 2,000 passengers left from Florida, a couple from Italy was removed from the ship in Puerto Rico on March 8 showing COVID-19 symptoms, with both later testing positive, the complaint says.
On the same day the couple was removed, the Centers for Disease Control and Prevention expressly warned that U.S. citizens should not travel by cruise ship, but passengers aboard the vessel were not advised of this warning and were not given an opportunity to leave the ship, the lawsuit alleges, adding that they were instead "dragged across the Atlantic in a ticking coronavirus time bomb."
The ship was later denied entry to a port in Antigua. During its cross-Atlantic voyage, Costa learned that the Italian couple and the man who was removed on the previous voyage on Feb. 29 in the Cayman Islands had tested positive for the coronavirus, but it waited a full day to inform passengers, according to the lawsuit.
The Costa Luminosa arrived in the Canary Islands on March 15 and unloaded three more passengers with symptoms of the coronavirus but did not allow other passengers off the vessel, the complaint says.
That same day, passengers were advised by the captain to remain in their cabins, and on March 16, the captain said they were being forced to quarantine in their cabins, according to the lawsuit.
By the time the ship's passengers disembarked in France on March 19 — with few precautions taken as they shuffled off the ship — 36 of 75 passengers tested were found to have the virus, according to the lawsuit.
Counsel for both sides did not immediately respond to requests for comment Friday.
Turner is represented by Michael A. Winkleman, Jason R. Margulies, Marc E. Weiner and Daniel W. Grammes of Lipcon Margulies Alsina & Winkleman PA.
Costa is represented by Jeffrey E. Foreman, Catherine J. MacIvor and Paul Bagley of Foreman Friedman PA.
The case is Paul Turner et al. v. Costa Crociere SPA et al, case number 1:20-cv-21481, in U. S. District Court for the Southern District of Florida.
--Additional reporting by Craig Clough. Editing by Abbie Sarfo.
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