VEVERKA v. ROYAL CARIBBEAN CRUISES LTD

Filing 65

OPINION fld. Signed by Judge Esther Salas on 3/18/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JACQUELINE VEVERKA,
Plaintiff,
Civil Action No. 12-3070 (ES) (MAH)
v.
OPINION
ROYAL CARIBBEAN CRUISES, LTD.,
Defendant.
SALAS, DISTRICT JUDGE
I.

Introduction
This action arises from injuries sustained by Plaintiff Jacqueline Veverka (“Plaintiff” or

“Ms. Veverka”) during an ocean cruise operated by Royal Caribbean Cruises Ltd. (“RCCL”).
Pending before the Court is RCCL’s motion for summary judgment. (D.E. No. 57). The Court
has considered the submissions accompanying the instant motion and decides the motion without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below,
Defendants’ motion is GRANTED and Plaintiff’s complaint is dismissed in its entirety.
II.

Background 1

1

These background facts are taken in part from the parties’ statements of undisputed material facts. (D.E. No. 57-1,
Defendant’s Rule 56 Statement of Facts (“Def. SMF”); D.E. No. 59-4, Plaintiff’s Statement of Facts IAW Local
R.56.1 (“Pl. SMF”)). Plaintiff also properly filed a supplemental statement of disputed facts with her opposition
papers, (D.E. No. 59-4, Plaintiff’s Supplemental Statement of Disputed Facts (“Pl. SSDF”)). RCCL did not dispute
these facts in its reply papers, and the Court shall deem them undisputed for purposes of this motion. L.Civ.R. 56.1
(“[A]ny material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion.”).
However, the Court will “disregard all factual and legal arguments, opinions and any other portions of the 56.1
Statement which extend beyond statements of facts.” Globespanvirata, Inc. v. Tex. Instrument, Inc., 2005 U.S. Dist.
LEXIS 27820, 10 (D.N.J. Nov. 10, 2005); see also L.Civ.R. 56.1 (“Each statement of material facts . . . shall not
contain legal argument or conclusions of law.”).

1

Octogenarian Plaintiff Jacqueline Veverka was a passenger on RCCL’s cruise ship,
Explorer of the Sea (the “Vessel”), which departed from the cruise port in Bayonne, New Jersey
on May 22, 2010, for a five night cruise to Bermuda. (Def. SMF ¶ 1; Pl. SMF ¶ 1; Pl. SSDF ¶ 1).
On the afternoon of May 23, 2010, while walking on the Vessel’s deck, Plaintiff slipped on liquid
left by RCCL’s employees and broke her hip. (Def. SMF ¶ 6; Pl. SSDF ¶¶ 4, 8). Plaintiff was
flown back to New Jersey and underwent hip replacement surgery on May 26, 2010. (Pl. SSDF
¶¶ 9, 10). Plaintiff additionally suffered from a blood clot and chest pains associated with the hip
replacement. (Pl. SSDF ¶¶ 12, 14). Plaintiff underwent various forms of treatment for her ailments
and continues to experience pain and discomfort, as well stress, anxiety, and loss of enjoyment of
life. (Pl. SSDF ¶¶ 11, 13, 15, 16).
RCCL’s records indicate that Ms. Veverka booked her cruise aboard the Vessel on March
27, 2010, but it was in fact booked by Ms. Veverka’s daughter. (Def. SMF ¶ 2; Pl. SMF ¶ 2; Pl.
SSDF ¶ 2). According to RCCL, it sent Ms. Veverka the Ticket Contract that is sent to each guest
who books a cruise, which RCCL argues governs the contractual relationship between RCCL and
Ms. Veverka. (Def. SMF ¶ 2, 3). Ms. Veverka asserts that she did not receive a Ticket Contract,
and disputes that it governs the relationship between the parties. (Pl. SMF ¶¶ 2–5; Pl. SSDF ¶ 3).
The following language, printed in bold capital letters on the first page of the Ticket
Contract, alerts the passenger to the terms of the Ticket Contract and specifically advises the
passenger to pay particular attention to sections 3, 9, 10, and 11 of the Ticket Contract, which limit
liability and the right to sue:
IMPORTANT NOTICE TO GUESTS
YOUR CRUISE/CRUISE TOUR TICKET CONTRACT CONTAINS
IMPORTANT LIMITATIONS ON THE RIGHTS OF PASSENGERS. IT IS
IMPORTANT THAT YOU CAREFULLY READ ALL TERMS OF THIS
CONTRACT, PAYING PARTICULAR ATTENTION TO SECTION 3 AND

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SECTIONS 9 THROUGH 11, WHICH LIMIT OUR LIABILITY AND
YOUR RIGHT TO SUE, AND RETAIN IT FOR THE FUTURE.
(See D.E. No. 6-2, Affidavit of David Banciella, Ex. A (“Ticket Contract”) at 1). Section 10 of
the Ticket Contract contains the “Notice of Claims and Commencement of Suit” clause, which
states as follows:
a. TIME LIMITS FOR PERSONAL INJURY/ILLNESS/DEATH CLAIMS: NO
SUIT SHALL BE MAINTAINABLE AGAINST CARRIER, THE VESSEL OR
THE TRANSPORT FOR PERSONAL INJURY, ILLNESS OR DEATH OF ANY
PASSENGER UNLESS WRITTEN NOTICE OF THE CLAIM, WITH FULL
PARTICULARS, SHALL BE DELIVERED TO CARRIER AT ITS PRINCIPAL
OFFICE WITHIN SIX (6) MONTHS FROM THE DATE OF THE INJURY,
ILLNESS OR DEATH AND SUIT IS COMMENCED (FILED) WITHIN ONE (1)
YEAR FROM THE DATE OF SUCH INJURY, ILLNESS OR DEATH AND
PROCESS
SERVED
WITHIN
120
DAYS
AFTER
FILING,
NOTWITHSTANDING ANY PROVISION OF LAW OF ANY STATE OR
COUNTRY TO THE CONTRARY.
(Id. at 4). The second paragraph of Section 1 of the Ticket Contract, INTRODUCTION, contains
the following notice:
Purchase or use of this Ticket Contract, whether or not signed by the Passenger,
shall constitute the agreement by Passenger, on behalf of himself and all other
persons traveling under this Ticket Contract (including any accompanying minors
or other persons for whom the Ticket Contract was purchased), to be bound by the
terms and conditions of this Ticket Contract. This Ticket Contract cannot be
modified except in a writing signed by a corporate officer of Operator. In addition,
Guest acknowledges the availability of and Guest agrees to abide by the terms and
conditions, including but not limited to certain payment terms such as minimum
deposit requirements and payment due dates, which appear in the applicable Carrier
brochure or online at www.RoyalCaribbean.com. In the event of any conflict
between such other brochure or website materials and this Ticket Contract, the
terms of this Ticket Contract shall prevail.
(Id. at 1). The Ticket Contract is also available on RCCL’s website, where it can be accessed and
printed by any person. (D.E. No. 57-1, Affidavit of David Banciella (“Banciella Aff.”) ¶ 7). A
passenger cannot embark upon an RCCL vessel without accepting the terms of the Ticket Contract.
(Id. ¶ 8).

3

This action was commenced on May 22, 2012, two years after the date on which Plaintiff
sustained injury. (Def. SMF ¶ 7; Pl. SMF ¶ 7). Plaintiff’s original complaint contained two causes
of action: negligence and breach of contract. (D.E. No. 1, Complaint (“Compl.”) at 4–5). Plaintiff
filed an amended complaint on June 28, 2012, prior to a response from RCCL. (D.E. No. 5,
Amended Complaint (“Am. Compl.”)). The amended complaint retained the causes of action for
negligence (count one) and breach of contract (count two), and added additional claims of:
violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1(D) (count three); breach of
good faith and fair dealing (count four); and tortious interference with her contractual relationship
with Medicare, for reimbursement for medical expenses incurred pursuant to the Medicare,
Medicaid, and SCHIP Extension Act (MMSEA) of 2007 (count five). (Id. at 5–8).
RCCL filed a motion to transfer the case to the U.S. District Court for the Southern District
of Florida on July 3, 2012, (D.E. No. 6), before filing an answer to the amended complaint on July
12, 2012, (D.E. No. 7). The motion to transfer was transferred to Judge Debevoise on October 25,
2012, and he denied the motion on December 11, 2012, (D.E. No. 23); thereafter the case
proceeded through discovery. RCCL filed its motion for summary judgment on June 13, 2014.
(See D.E. No. 57-2, Defendant Royal Caribbean Cruises Ltd.’s Memorandum of Law in Support
of Its Motion for Summary Judgment (“Def. Mov. Br.”)). Plaintiff filed opposition papers on July
7, 2014, (D.E. No. 59, Plaintiff Jacqueline Veverka’s Brief in Opposition (“Pl. Opp. Br.”)), and
RCCL replied on July 14, 2014, (D.E. No. 60, Defendant Royal Caribbean Cruises Ltd.’s Reply
Memorandum of Law in Further Support of Its Motion for Summary Judgment (“Def. Reply
Br.”)). RCCL’s motion for summary judgment is now ripe for adjudication.

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III.

Legal Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories,

admissions, and affidavits show that there is no genuine issue as to any material fact, and if, when
viewing the facts in the light most favorable to the non-moving party, the moving party is entitled
to a judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d
Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P.
56(c). A genuine issue of material fact exists for trial when a reasonable finder of fact could return
a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “To be
material, a fact must have the potential to alter the outcome of the case.” DeShields v. Int’l Resort
Properties Ltd., 463 F. App’x 117, 119 (3d Cir. 2012).
The moving party must first show that no genuine issue of material fact exists. Celotex
Corp., 477 U.S. at 323. If the movant meets this burden, the burden then shifts to the non-moving
party to present evidence that a genuine issue of material fact compels a trial. Id. at 324. Although
the Court must consider all facts and their reasonable inferences in the light most favorable to the
non-moving party, see Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995), the non-moving
party must offer specific facts that establish a genuine issue of material fact—not just “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986). Thus, the non-moving party may not rest upon the mere
allegations or denials in its pleadings, or unsupported assertions, bare allegations, or speculation
to defeat summary judgment. See Celotex, 477 U.S. at 324; Longstreet v. Holy Spirit Hosp., 67 F.
App’x 123, 126 (3d Cir. 2003).

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IV.

Discussion
A. Compliance with Local Civil Rule 56.1
Plaintiff argues that summary judgment should be denied because of RCCL’s failure to

fully comply with Local Civil Rule 56.1, which requires separately numbered paragraphs citing to
the record. (Pl. Opp. Br at 2–4). RCCL’s 56.1 statement properly consists of seven separately
numbered paragraphs, but paragraphs 1, 4–7 have no citation, and Plaintiff contends that the
citation to the Affidavit of David Banciella for paragraphs 2 and 3 is in violation of Federal Rule
of Civil Procedure 37(c)(1) and must be stricken. The Court, however, declines to deny summary
judgment on these grounds.
First, the Court finds that the citation to the Affidavit of Mr. Banciella is not in violation
of Federal Rule of Civil Procedure 37(c)(1), which provides in relevant part: “If a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Even if Mr.
Banciella arguably should have been listed as part of the Rule 26(a) initial disclosures, Rule 26(e)
requires supplementation or correction only “if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.” Fed.
R. Civ. P. 26(e). Here, Mr. Banciella submitted a nearly-identical affidavit in connection with
RCCL’s July 2012 motion to transfer venue, (see D.E. No. 6-2), which was referred to in Judge
Debevoise’s corresponding opinion, (see D.E. No. 23 at 3). Thus, the Court finds that Mr.
Banciella was clearly “made known” to Plaintiff within the meaning of Rule 26 and that Rule
37(c)(1) therefore does not apply.

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Second, despite the lack of citations to the record, the Court finds that RCCL’s submission
“meets the principle embodied by the rule—that the parties narrow the key issues so the Court can
adjudicate the motion without embarking on a judicial scavenger hunt for relevant facts.” Schecter
v. Schecter, 2008 U.S. Dist. LEXIS 97518, *20 (D.N.J. Nov. 26, 2008). RCCL argues that the key
issue here is the validity of the limitations clause contained within the ticket, and these facts are
readily apparent to the Court. Furthermore, Plaintiff agrees with three of the seven paragraphs in
RCCL’s 56.1 statement, and denies all four of the remaining paragraphs on the same grounds: that
she did not receive the Ticket Contract. (See Pl. SMF). Thus, the Court is satisfied that RCCL’s
substantial compliance with L.Civ.R. 56.1 has sufficiently narrowed the issues and that the Court
is able to adjudicate the motion without the need for a factual scavenger hunt. Therefore, the Court
will not exercise its discretion to deny summary judgment for failure to precisely abide by Local
Civil Rule 56.1, but advises counsel to ensure compliance with all local rules when practicing in
our district.
B. One Year Limit on Personal Injury Suits
1. Validity of the Limitations Clauses
The primary issue the Court must address is the validity of section 10a of the Ticket
Contract, which requires that lawsuits for personal injury be commenced within one year from the
date of injury. (Banciella Aff. ¶ 5). It is “well-established that evaluating time limits on notice
and filing of a passenger’s lawsuit constitutes a legal determination, suitable for disposition by
summary judgment.” Marek v. Marpan Two, Inc., 817 F.2d 242, 244–45 (3d Cir. 1987), cert.
denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987) (internal quotation marks and citation
omitted). Clear precedent requires that the Court find the clause valid.

7

According to RCCL’s records, it sent Ms. Veverka the Ticket Contract that is sent to each
passenger, or “guest” who books a cruise. (Banciella Aff. ¶ 3). Furthermore, RCCL asserts that a
passenger cannot embark upon an RCCL vessel without accepting the terms of the Ticket Contract:
“Prior to embarkation, each passenger is required to sign the portion of her Ticket
Acknowledgment Card in the space provided.

The passenger hands this document to the

embarkation staff at the pier prior to boarding the vessel.” (Id. ¶ 8).
The crux of Plaintiff’s opposition to the present motion is that she either did not receive
the Ticket Contract, but that even if she did, RCCL’s failure to produce the original ticket (as
opposed to a sample) means that the limitations clauses are unenforceable. (See Pl. Opp. Br. at 6–
8). Plaintiff contends that RCCL has “created a fiction based on the unauthenticated ‘sample
ticket’ it is attempting to attribute to Plaintiff” and argues that the Ticket Contract is a contract of
adhesion and procedurally and substantively unconscionable, and therefore unenforceable. (Id. at
7–8).
“As an initial matter, it is well settled that the general maritime law of the United States,
and not state law, controls the issue of whether a passenger is bound to terms set forth in a cruise
ship’s ticket and contract of passage.” Schenck v. Kloster Cruise Ltd., 800 F.Supp. 120, 122
(D.N.J.1992), aff’d, 993 F.2d 225 (3d Cir.1993). Plaintiff’s adhesion argument is therefore
misplaced, since Plaintiff has not demonstrated that adhesion is a valid cause of action under
maritime law.
Furthermore, Congress has permitted shipowners to stipulate, in any contract for passage,
a time limitation for filing suit against the shipowner for personal injury or death, so long as the
limitation period is not less than one year. See 46 U.S.C. § 30508(b)(2). In the Third Circuit, a
limitations clause in a cruise ship passenger ticket is valid and enforceable as long as the clause at

8

issue “reasonably communicates” the limitations period to the passenger. Marek, 817 F.2d at 245.
Thus, as long as a passenger ticket reasonably communicates to the passenger the restrictions on
his or her rights, a one year contractual limitation will be enforced. Schenck, 800 F. Supp. at 122–
23.
In determining whether a contractual limitation was “reasonably communicated,” it is
necessary that a court examine (1) the “warning language” usually found on the front cover of a
cruise ticket, which directs passengers to read the particular terms of the ticket and (2) “the ticket
terms themselves [and] physical characteristics [such] as the location of the terms within the ticket,
the size of the typeface in which they are printed, and the simplicity of the language they employ.”
See Marek, 817 F.2d at 245.
Judge Debevoise already found that the contractual limitations contained within the Ticket
Contract were reasonably communicated while ruling specifically on the forum selection clause:
As a legal matter, however, the clause is clearly displayed on the Ticket Contract:
the first paragraph is emboldened and in all capital letters, cautions of limitations
on the guest’s right to sue, and directs the reader to Section 9, also in all capital
letters, which clearly sets forth the forum selection clause. Compare Spataro v.
Kloster Cruise Ltd. d/b/a Norwegian Cruise Line, 894 F.2d 44 (2d Cir. 1990) (per
curium) (a three-inch by eight-inch passenger ticket communicating the limitations
of the passenger’s rights is reasonable).
(D.E. No. 23, Opinion at 10). The undersigned agrees with Judge Debevoise’s conclusion with
respect to the time limitation clause. The “warning language” is the same, and Section 10a—like
Section 9—is in capital letters and clearly sets forth the time limitations.
Moreover, whether Plaintiff received a Ticket Contract is not a genuine issue of material
fact because the Ticket Contract was available to her. First, it is insignificant that the cruise was
booked by Plaintiff’s daughter and not Plaintiff directly. Ciliberto v. Carnival Cruise Lines, Inc.,
1986 AMC 2317 (E.D. Pa. 1986) (in granting summary judgment to cruise operator, the court held

9

that a passenger is bound by the clearly indicated one-year limitation provision contained in
passage contract, despite the fact that she did not see the ticket, which was obtained by travelling
companion on her behalf). Second, even if Plaintiff never received a Ticket Contract prior to
boarding, this does not determine whether or not the Ticket Contract was “reasonably
communicative”: “even if plaintiffs did not read the terms of the contract prior to the trip, they
should have read it following the injury.” Siegel v. Norwegian Cruise Line, No. 00-cv-6271, 2001
WL 1905983, at *3 (D.N.J. May 14, 2001). See also Ames v. Celebrity Cruises, Inc., No. 97-cv0065, 1998 WL 427694, at *5 (S.D.N.Y. July 29, 1998) (once injury occurred, plaintiff had a “duty
at that time to consult their tickets or to contact [the cruise operator] in order to learn of any
limitations affecting their right to sue”); Palmer v. Norwegian Cruise Line & Norwegian Spirit,
741 F. Supp. 2d 405, 413 (E.D.N.Y. 2010) (“[T]he Second Circuit does not require that a passenger
personally possess, read, see, or purchase a ship ticket for its terms to be enforceable, as long as
the ticket was generally available to the passenger for a reasonable period of time both before and
after embarkation.”).
In sum, as long as the warnings and limitations are clear, and the passenger has an
opportunity to meaningfully educate themselves about the terms of a cruise ticket contract both
before and after embarkation, the terms will be enforced. See Siegel, 2001 WL 1905983, at *3.
That is the case here. Putting aside the fact that Plaintiff could not have boarded the Vessel without
signing the Ticket Contract, (Banciella Aff. ¶ 8), even if Plaintiff did not receive the Ticket
Contract, it was available online, 2 (id.), and she could have read it following her injury. Plaintiff

2

See Ticket Contract, available at http://media.royalcaribbean.com/content/en_US/pdf/RoyalCaribbean_Cruise_
Ticket_Contract_013114.pdf. This also undermines Plaintiff’s argument that the terms of the Ticket Contract
should not be enforced because RCCL is unable to provide the original ticket signed by Plaintiff. RCCL sends the
same Ticket Contract to all guests, (Banciella Aff. ¶ 3), and so the Court finds that the sample ticket provided is
sufficient. In other words, the Court is not convinced that failure to provide the original ticket creates a genuine
issue of material fact.
10

has not offered any persuasive reason why she was unable to educate herself as to the terms of the
Ticket Contract following her injury. Therefore, like Judge Debevoise, the Court finds that the
Ticket Contract at issue is “reasonably communicative,” that the limitations clauses are valid, and
that Plaintiff is bound by them.
2. Application of the Limitations Clauses to the Negligence (Count One) and
Breach of Contract (Count Two) Claims 3
Having determined that the limitations clause contained in the Ticket Contract is valid and
applicable to Plaintiff, the Court must dismiss the negligence and breach of contract claims as a
matter of law.
Plaintiff’s negligence and breach of contract claims are explicitly premised on personal
injuries she sustained as a result of her fall. (See Am. Compl. ¶ 22 (“Plaintiff suffered severe
injuries to her person as a result of this fall due to the negligence of the defendant.”); id. ¶¶ 25 &
26 (“Defendant breached [the] contract by failing to provide plaintiff with safe travel on their ship
in accordance with the terms of the contract. Plaintiff suffered severe injuries to her person as a
result . . . .”)).
Section 10a of the Ticket Contract clearly states that suits for personal injury must be
commenced within one year of the date of injury. (Ticket Contract at 4). This action was
commenced on May 22, 2012, two years after the date on which Plaintiff sustained injury. (D.E.
3

The Court finds that the breach of contract claim is ripe for adjudication, despite Plaintiff’s argument to the contrary.
(Pl. Opp. Br. at 13–14). Even though RCCL’s moving brief does not specifically address breach of contract, RCCL’s
Notice of Motion explicitly states that it is seeking “summary judgment dismissing Plaintiff’s Amended Complaint,”
without any limitations. (See D.E. No. 57 at 1). Thus, Plaintiff had sufficient notice that RCCL was seeking dismissal
of the breach of contract claim and has not provided any other rationale for why the Court should withhold judgment.
In any event, the Court would be authorized in ruling on this claim sua sponte. See Celotex Corp. v. Catrett, 477 U.S.
317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[D]istrict courts are widely acknowledged to possess the power to
enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all
of her evidence.”); see also Gibson v. Mayor & Council of City of Wilmington, 355 F.3d 215, 224 (3d Cir. 2004)
(“[T]here are three different grounds on which we could recognize an exception to the notice requirement in the case
of sua sponte summary judgment—the presence of a fully developed record, the lack of prejudice, or a decision based
on a purely legal issue . . . .”). Therefore, the Court may properly rule on this claim.
11

No. 1; Def. SMF ¶ 7; Pl. SMF ¶ 7). These claims are therefore barred by the limitations clause
and RCCL is entitled to judgment as a matter of law.
C. Violations of the New Jersey Consumer Fraud Act (Count Three)
Plaintiff argues that RCCL engaged in unlawful conduct in violation of the New Jersey
Consumer Fraud Act (“NJCFA”). The Court grants summary judgment to RCCL on this count
because even when construing the facts in the light most favorable to Plaintiff, there is not
sufficient evidence from which a trier of fact could reasonably conclude that RCCL engaged in
unlawful conduct in violation of the NJCFA. See Pa. Coal Ass’n, 63 F.3d at 236; Celotex, 477
U.S. at 324.
“The Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., provides a private cause of action to
consumers who are victimized by fraudulent practices in the marketplace. . . . The CFA is intended
to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer
fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez v. Wilshire
Credit Corp., 207 N.J. 557, 576 (2011) (internal citations and quotations omitted). A claim
pursuant to the NJCFA requires three elements: (1) unlawful conduct; (2) an ascertainable loss;
and (3) a causal relationship between the unlawful conduct and the loss. See Dabush v. MercedesBenz USA, LLC, 378 N.J. Super. 105, 114 (App. Div. 2005).
The NJCFA defines “unlawful practice” as:
any unconscionable commercial practice, deception, fraud, false pretense, false
promise, misrepresentation, or the knowing, concealment, suppression, or omission
of any material fact with intent that others rely upon such concealment, suppression
or omission, in connection with the sale or advertisement of any merchandise or
real estate or with the subsequent performance of such person as aforesaid . . . .
N.J.S.A. 56:8-2. Stated another way, “[u]nlawful conduct under the Act falls into three general
categories: affirmative acts and knowing omissions, and violations of regulations promulgated

12

under the Act.” Francis E. Parker Mem’l Home, Inc. v. Georgia-Pac. LLC, 945 F. Supp. 2d 543,
558 (D.N.J. 2013) (internal citations omitted). “The capacity to mislead is the prime ingredient of
all types of consumer fraud. Mere customer dissatisfaction does not constitute consumer fraud.”
In re Van Holt, 163 F.3d 161, 168 (3d Cir. 1998) (internal citations and quotations omitted). An
affirmative misrepresentation “has to be one which is material to the transaction . . . [and] made to
induce the buyer to make the purchase.” Castro v. NYT Television, 370 N.J. Super. 282, 294 (N.J.
Super. Ct. App. Div. 2004) (citing Gennari v. Weichert Co. Realtors, 148 N.J. 582, 607 (1997)).
Similarly, “[t]o prove that . . . acts of omission constitute[] consumer fraud, [a] plaintiff must show
that the defendant intentionally concealed the information . . . with the intention that plaintiff would
rely on the concealment, and that the information was material to the transaction.” Judge v.
Blackfin Yacht Corp., 357 N.J. Super. 418, 426, 815 A.2d 537, 542 (App. Div. 2003) (citation
omitted).
The Complaint’s allegations regarding the CFA claim are unclear. Plaintiff’s Complaint
alleges the following: “Plaintiff verified the business value was misrepresented by [RCCL],
[RCCL] failed to make good on its agreement. . . . [RCCL] made misrepresentations to Plaintiff
as to the transaction, goods, offers and value and as a result of the misrepresentations, plaintiff
[sic] was induced to enter into the agreements for business and personal reasons.” (Am. Compl.
¶¶ 28, 31). Plaintiff’s Opposition Brief clarifies that RCCL “engaged in unlawful conduct and
unconscionable practices by [1] failing to provide a safe environment to cruise passengers, [2]
failing to reimburse her for cruise expenses despite her inability to complete the cruise, and [3]
failing to provide adequate medical care and reimburse her for medical expenses for which [RCCL]
forced her to accrue.” (Pl. Opp. Br. at 9).

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RCCL counters that Plaintiff has “failed to identify any misrepresentation made by RCCL
nor has she identified the agreement she was supposedly induced to enter into by reason of fraud.”
(Def. Mov. Br. at 19). RCCL argues that “Plaintiff did not point to any evidence in the record of
any misrepresentation, unlawful practice, false pretense, false promise or any other actionable
conduct alleged to have been perpetrated by the RCCL.” (Def. Reply Br. at 7).
The Court addresses each of Plaintiff’s arguments in turn 4 and ultimately determines that
Plaintiff has failed to set forth sufficient evidence of unlawful conduct on the part of RCCL and
that RCCL is entitled to summary judgment.
First, there is no evidence that RCCL engaged in unlawful conduct by failing to maintain
a safe environment on the ship. To argue that a genuine issue of material fact exists, Plaintiff cites
to two portions of the testimony of Mr. Vicky Padvalkar (the first individual on the scene after the
fall): the condition of the deck at the time of the fall, and the reported cause of the fall.
With respect to the condition of the deck, Plaintiff argues that Mr. Padvalkar “claimed there
was no water in the area, yet he placed wet floor signs in the area and squeegeed the the [sic] area
to take out the water where Ms. Veverka fell.” (Pl. Opp. Br. at 11) (internal citations to the record
omitted). However, Plaintiff misreads Mr. Padvalkar’s testimony and confuses the timeline of
events. (See generally D.E. No. 59-11, Ex. F (“Padvalkar Dep.”)). Mr. Padvalkar testified that
there was no water in the area where Plaintiff fell, (id. at 11:19–22), that there was no water there
because he had squeegeed it out about ten minutes prior to the fall, (id. at 11:23–12:10), and that
there were “wet-floor caution signs” in the area where Plaintiff fell, (id. at 19:2–24). (In other
words, according to Mr. Padvalkar, he squeegeed water out of the area, placed a “caution wet-floor

4

As an initial matter, Plaintiff has not identified which “agreements” she entered into as a result of RCCL’s
misrepresentations. (See Am. Compl. ¶¶ 28, 31). Since the Ticket Contract is the only agreement the Court can locate
in the record, it assumes that this is the “agreements” to which Plaintiff refers.
14

sign” nearby, and Plaintiff slipped and fell about ten minutes later.) The dispute over the condition
of the premises at the time of Plaintiff’s fall could certainly present a genuine issue of material fact
for a negligence claim, but is not enough in the context of the NJCFA because Plaintiff cannot
show that the actions of RCCL at the time of the accident were material to the decision to purchase
the cruise ticket and ultimately embark on the Vessel. (See Am. Compl. ¶ 31 (“[RCCL] made
misrepresentations to Plaintiff as to the transaction, goods, offers and value and as a result of the
misrepresentations, plaintiff [sic] was induced to enter into the agreements for business and
personal reasons.”); see also Castro, 370 N.J. Super. at 294 (affirmative misrepresentation must
be “material to the transaction . . . [and] made to induce the buyer to make the purchase”); Blackfin
Yacht Corp., 357 N.J. Super. at 426 (omission requires proof of intentional concealment of material
information, “with the intention that plaintiff would rely on the concealment”).
Additionally, Plaintiff argues that unlawful conduct can be evinced from Mr. Padvalkar’s
report in which he concluded Plaintiff fell “because she was wearing flip-flops,” despite the fact
that flip flops are not prohibited on the Vessel. (Pl. Opp. Br. at 11). It is entirely unclear to the
Court how Mr. Padvalkar’s opinion regarding the cause of the fall shows unlawful conduct within
the meaning of the NJCFA on the part of RCCL. Again, even if the Court were to construe Mr.
Padvalkar’s conclusion that Plaintiff slipped “because she was wearing flip-flops” as an
affirmative misrepresentation or a knowing omission, Plaintiff cannot show that the actions of
RCCL at the time of the accident were material to the decision to purchase the cruise ticket and
ultimately embark on the Vessel. See Castro, 370 N.J. Super. at 294; Blackfin Yacht Corp., 357
N.J. Super. At 426.
In short, Plaintiff has not provided sufficient evidence to raise a genuine issue of material
fact as to whether RCCL acted in violation of the NJCFA in maintaining a safe environment on

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the ship. Even construing the record in the light most favorable to Plaintiff, no reasonable trier of
fact could conclude that the evidence in the record shows that RCCL engaged in any sort of
“unconscionable commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing, concealment, suppression, or omission of any material fact”
with respect to providing a safe environment. N.J.S.A. 56:8-2. Indeed, Plaintiff has not provided—
and the Court could not locate—a single case where a plaintiff successfully relied on the NJCFA
in the context of an action that ultimately sounds in negligence and premises liability.
Second, Plaintiff’s claim that failure to provide reimbursement for cruise expenses is
unlawful conduct within the meaning of the NJCFA is entirely undermined by the evidence in the
record. Plaintiff claims that RCCL “has committed an unconscionable commercial practice,
deception, fraud, falsity, or misrepresentation by forcibly disembarking Plaintiff without
compensation or refund.” (Pl. Opp. Br. at 10). However, Section 7 of the Ticket Contract clearly
indicates that Plaintiff is not entitled to a refund: “[E]arly disembarkation of the Passenger for any
reason . . . shall be without refund, compensation, or liability on the part of the Carrier whatsoever.”
(Ticket Contract at 8). Indeed, this clause is consistent with the testimony of Ms. Campos: “I guess
typically if [a passenger] cannot complete their cruise, they will not get their ticket fare back.” (Pl.
Opp. Br. at 12). Therefore, Plaintiff has not raised a genuine issue of material fact with respect to
reimbursement. In light of Section 7, no reasonable trier of fact could conclude that RCCL
engaged in unlawful conduct in not reimbursing Plaintiff’s cruise expenses.
Third, Plaintiff has not pointed to any evidence to show that RCCL engaged in unlawful
conduct in providing medical treatment to Plaintiff or by failing to reimburse her for medical
expenses. Plaintiff slipped and fell on May 23, 2010, and was kept overnight in the medical unit
of the cruise ship. (Pl. SSDF ¶¶ 4, 6). When the ship docked in Bermuda the next day, Plaintiff

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was “forcibly disembarked,” (Pl. Opp. Br. at 11), transported to King Edward Hospital, and
eventually flown back to New Jersey. (Pl. SSDF ¶¶ 7, 9). Plaintiff does not provide any evidence
whatsoever to show that RCCL engaged in “unlawful conduct” in providing allegedly inadequate
medical care. Furthermore, as detailed more fully in Part IV.E, infra, Plaintiff has not provided
any evidence to show that RCCL engaged in unlawful conduct in failing to reimburse Plaintiff for
her medical expenses. Therefore, Plaintiff has not raised a genuine issue of material fact sufficient
to overcome summary judgment.
Construing the facts in the light most favorable to Plaintiff, the Court determines that there
is not sufficient evidence from which a trier of fact could reasonably conclude that RCCL engaged
in unlawful conduct in violation of the NJCFA. See Pa. Coal Ass’n, 63 F.3d at 236; Celotex, 477
U.S. at 324. RCCL is therefore entitled to summary judgment on the NJCFA claims.
D. Breach of Good Faith and Fair Dealing (Count Four)
Plaintiff rehashes the NJCFA claims under the banner of “breach of good faith” but
likewise fails to raise a genuine issue of material fact sufficient to overcome summary judgment.
“Every party to a contract, including one with an option provision, is bound by a duty of
good faith and fair dealing in both the performance and enforcement of the contract.” Brunswick
Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Associates, 182 N.J. 210, 224 (2005). “Proof
of ‘bad motive or intention’ is vital to an action for breach of the covenant. Id. at 225; see also
Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001) (requiring that a party have acted “with
the objective of preventing the other party from receiving its reasonably expected fruits under the
contract” to establish a breach of the implied covenant). A plaintiff must “set out sufficient
evidence of bad intention—i.e., to demonstrate an issue of material fact—in order to survive a

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motion for summary judgment.” Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 421 (3d
Cir. 2013)
The Complaint states that “Plaintiff had an expectation that [RCCL] would provide goods
and services of value in exchange for [RCCL] receiving money. Plaintiff had an expectation that
the goods and services would be delivered and enjoyed. [RCCL] acted in bad faith. Their actions
were wanton, willful and without privilege or right.” (Am. Compl. ¶¶ 36 & 37). Plaintiff clarifies
that this claim—just like the claim under the NJCFA—is premised on “[1] failing to provide a safe
environment to cruise passengers, [2] failing to reimburse [Plaintiff] for cruise expenses despite
her inability to complete the cruise, and [3] failing to provide adequate medical care and reimburse
her for medical expenses for which Defendant forced her to accrue.” (Pl. Opp. Br. at 11).
Because the claims for bad faith are identical to those asserted under the NJCFA, the Court
relies on its analysis in Part IV.C, supra, to show how Plaintiff has failed to set forth sufficient
evidence to raise a genuine issue of material fact regarding RCCL’s failure to provide a safe
environment to cruise passengers, reimburse Plaintiff for cruise expenses, and provide adequate
medical care and reimbursement for medical expenses.
First, as with the NJCFA claim, there is no evidence that RCCL acted in bad faith in
maintaining a safe environment on the ship. The Court adds that when analyzing the evidence in
the record, Plaintiff’s claim that RCCL acted in bad faith in maintaining safe premises on the cruise
ship clearly speaks to negligence, not bad faith. See Sonders v. PNC Bank, N.A., No. CIV.A. 013083, 2003 WL 22310102, at *12 (E.D. Pa. June 3, 2003) (“[M]ere negligence is insufficient to
amount to bad faith.”). Second, as outlined above, even if Plaintiff believed that she would be
entitled to reimbursement if she was unable to complete the cruise, this claim is undermined by
the evidence in the record. Third, as detailed in Part IV. C, Plaintiff has not pointed to any evidence

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to show that her medical treatment was inadequate or that RCCL is required to reimburse her for
expenses.
As with the same allegations under the NJCFA, construing the facts in the light most
favorable to Plaintiff, the Court determines that there is not sufficient evidence from which a trier
of fact could reasonably conclude that RCCL acted in bad faith. See Pa. Coal Ass’n, 63 F.3d at
236; Celotex, 477 U.S. at 324. RCCL is therefore entitled to summary judgment on the bad faith
claims.
E. Tortious Interference with Contract (Count Five)
Plaintiff contends that RCCL “is tortuously interfering with Plaintiff’s contractual
relationship with Medicare.” (Am. Compl. ¶ 43). However, because there is no evidence which
suggests that RCCL had “specific knowledge” of this contractual relationship, RCCL is entitled to
summary judgment.
In Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 563 A.2d 31 (1989), the New
Jersey Supreme Court detailed the elements of a claim for tortious interference with contractual
relations: (1) the existence of the contract; (2) interference which was intentional and with malice
(i.e., without justification or excuse); (3) the loss of the contract or prospective gain as a result of
the interference; and (4) damages. Id. at 751–52. As a threshold matter, “a plaintiff must show
that defendant had knowledge of the existing contract.

General knowledge of a business

relationship is not sufficient; the defendant must have specific knowledge of the contract right
upon which his actions infringe.” DiGiorgio Corp. v. Mendez & Co., 230 F. Supp. 2d 552, 564
(D.N.J. 2002).
Plaintiff does not allege in her Complaint, nor does she point to any evidence in the record,
that shows that RCCL had “specific knowledge” of the agreement between Plaintiff and Medicare.

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Because Plaintiff has failed to show RCCL’s specific knowledge, RCCL is entitled to summary
judgment on this claim. See DiGiorgio Corp, 230 F. Supp. 2d at 564 (D.N.J. 2002).
V.

Conclusion
For these reasons, the Court GRANTS Defendants’ motion for summary judgment. An

accompanying Order follows this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

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