2019 Mass. App. Div. 142

January 11, 2019 - November 13, 2019

Appellate Division Western District

Court Below: District Court, Palmer Division

Present: Poehler, Stark & D'Angelo, JJ.

Dana Goldblatt for the plaintiff.

Tory A. Weigand for the defendant.

POEHLER, J. This is an appeal of the trial court's allowance of a motion for summary judgment in favor of the defendant-appellee, American Airlines ("American" or "AA"). At issue is whether the claims of the plaintiff-appellant, Lisa Lippiello ("Lippiello"), are preempted by the Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention"), whether Lippiello's claims are also preempted by the Airline Deregulation Act ("ADA") and barred by the Conditions of Carriage/Tariff ("Conditions of Carriage"), and whether, if not barred, there is any competent evidence to support Lippiello's claims. For the reasons set forth below, we affirm the allowance of American's motion for summary judgment.

Lippiello filed a complaint against American alleging breach of contract (first claim), breach of the implied covenant of good faith and fair dealing (second claim), breach of fiduciary duty (third claim), negligence (fourth claim), fraud (fifth claim), and violation of G.L. c. 93A, § 9 (sixth claim). At some point prior to the summary judgment hearing, Lippiello dismissed the first, third, and fourth claims for relief. [Note 1] The summary judgment motion was heard with respect to the claims of breach of the implied covenant of good faith and fair dealing, fraud, and violation of G.L. c. 93A, § 9. The trial court found that Lippiello's claims were preempted by the Montreal Convention, that they were also preempted by the ADA, that her remedies were limited by the Conditions of Carriage, and that Lippiello had produced no competent factual evidence to support her claims.

American's motion for summary judgment was supported by American's statement of undisputed facts, a transcript of the deposition testimony of Lippiello, a copy of the Montreal Convention, and an affidavit of American's claims administrator, which had attached to it four further exhibits, including a copy of American's Conditions of Carriage. Lippiello's opposition was supported by her affidavit as well as copies of four letters exchanged between the parties and an affidavit of her counsel, attaching two copies of Lippiello's flight schedules. From all of those documents, the following facts can be discerned.

In May, 2014, Lippiello purchased nonstop roundtrip tickets from American for

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flights from New York's JFK airport to Cancun, Mexico for herself and her two children. The flight departing from JFK was scheduled for February 15, 2015 with a return flight from Cancun to JFK scheduled for February 22, 2015. The flight from JFK to Cancun for Lippiello and her two children was uneventful. The three returned to the airport in Cancun on February 22 for the flight home. At some point while she was at the airport, it was announced that her flight was canceled. According to her deposition testimony, Lippiello approached a female ticket agent at the American counter and was told that all flights to JFK had been canceled due to weather. Lippiello was offered other flights. She accepted a flight on February 24 that had one connection through Texas. [Note 2] Upon her return to the airport on February 24, Lippiello spoke to a couple, whose names she did not know, who told her that they had also been booked on the February 22 canceled flight, that they had friends who did fly to New York on February 22, and that they (the couple) were getting a direct flight back to New York. Lippiello did not know when the couple's direct flight back to New York was scheduled for or whether the friends of the couple had flown on American on February 22.

Based on these facts, Lippiello alleges that American breached the implied covenant of good faith and fair dealing contained in their contract by "lying" about JFK being closed on February 22, 2015 and that American committed fraud, again by "lying" about the extent of the airport closure at JFK on February 22, all to induce her not to request a refund from American or seek a flight home on another airline. She further alleges that by its fraudulent actions, American violated G.L. c. 93A.

Standard for summary judgment. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). "[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

Montreal Convention. Liability for damages arising out of international flights is controlled by the Montreal Convention. See Article 1 of the Montreal Convention. [Note 3] Article 29 of the Montreal Convention further defines its exclusivity as follows:

"In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and

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such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable" (emphasis added).

Lippiello does not contest that the Montreal Convention applies to international travel. The essence of her argument against preemption is her contention that her claims are not specifically enumerated in the Montreal Convention and, therefore, are not preempted. This same argument was rejected by the United States Supreme Court in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999) (Tseng). In Tseng, the Supreme Court analyzed language under the Warsaw Convention, the precursor to the Montreal Convention. The Court noted in its opinion dated January, 1999, that the Montreal Convention, which had been ratified on September 28, 1998 but not effective until March 4, 1999, "settled prospectively" the "exclusivity question," specifically, that "a passenger whose injury is not compensable under the [Montreal] Convention . . . will have no recourse to an alternate remedy." Id. at 160-161. Lippiello's claims are covered by the exclusivity provision of the Montreal Convention.

With regard to liability for specific damages, Article 19 of the Montreal Convention provides as follows:

"The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures."

Lippiello argues that her damages were not occasioned by delay but rather were due to the "substitution of a connecting flight for a direct flight and the deception that led her to accept the substitution." However, the need for a substituted flight was occasioned by the delay. Without the weather delay, there would have been no need for a substituted flight. Thus, the claim falls under Article 19. See Nwokeji v. Arik Airlines, U.S. Dist. Ct., No. 15-10802 (D. Mass. Sept. 20, 2017) (holding that claim for infliction of emotional distress based on having to wait in unsanitary area of terminal for delayed flight fell within scope of Article 19).

Airline Deregulation Act. The ADA was enacted in 1978 after Congress determined that "maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety [and] quality . . . of air transportation services" (internal quotations and citations omitted). Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992). "To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a preemption provision, prohibiting the States from enforcing any law relating to rates, routes, or services of any air carrier" (internal quotations omitted). Id. at 378379. In American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), the Court defined the scope of the preemption as follows: "We hold that the ADA's preemption prescription bars state-imposed regulation of air carriers, but allows room for court enforcement of contract terms set by

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the parties themselves." Id. at 222. The court differentiated between "suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings," id. at 228, i.e., breach of contract claims, which the Court determined are not preempted, and consumer fraud claims, which are preempted. Id. "This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contract actions, to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement." Id. at 233.

Lippiello's claims relate to "'services', i.e. access to flights" and therefore fall within the preemption clause of the ADA. Id. at 226. She dismissed her breach of contract claim. Her claims of breach of the implied covenant of good faith and fair dealing and G.L. c. 93A violations are state or common law enlargements of the agreement between the parties and are thus preempted by the ADA. See Northwest, Inc. v. Ginsberg, 572 U.S. 273, 288 (2014) (ADA preempts claim of implied covenant of good faith and fair dealing); American Airlines, Inc. v. Wolens, supra at 227 (ADA preempts claims brought under Illinois' Consumer Fraud Act).

Conditions of Carriage. The contract between Lippiello and American is comprised of the ticket and the Conditions of Carriage. Lippiello testified at her deposition that she read and understood the conditions. The Conditions of Carriage limit American's liability and specifically state that no agent or representative of American can bind the company "by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight." [Note 4] Lippiello's claims are based on statements allegedly made by the ticket agent regarding availability of flights.

The Conditions of Carriage also limit liability for weather related delays, cancellations, terminations, diversions, or postponement to the unused portion of the ticket. There is no unused portion of Lippiello's tickets. The Conditions of Carriage apply to her claims.

Implied covenant of good faith and fair dealing, fraud, and violation of G.L. c. 93A. Even if Lippiello's claims were not governed by the Montreal Convention, the ADA, and the Conditions of Carriage, she has failed to produce any competent evidence in support of those claims. The basis of her claims for breach of the implied covenant of good faith and fair dealing, fraud, and G.L. c. 93A violations is that American's agent made "false representations of material facts with knowledge of such falsity for the purpose of inducing the plaintiff to act thereon." The facts that form the basis for that allegation are as follows. According to her deposition testimony, Lippiello was told

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by an American ticket agent on February 22, 2015 that there were no flights into JFK. Lippiello and the agent discussed other flights, some after February 24 and one with two connecting flights. Lippiello chose a flight on February 24 with one connection. Lippiello does not know what time the conversation with the agent took place on February 22 (although she believes it was in the morning), nor does she know the identity of the agent. Lippiello further testified at her deposition that on February 24, she had a conversation at the airport with an unnamed, unknown couple who told her that they had a direct flight back to New York that day (as opposed to a flight with one connection like Lippiello had gotten) and that they had friends who had flown back to New York on February 22 in the afternoon or evening. Lippiello does not know if other airlines had flights flying into JFK on February 22. The affidavit from American's claims administrator filed in support of this motion states that all scheduled flights between February 22 and the morning of February 24 were either canceled or full. [Note 5] Lippiello has no evidence to the contrary.

Lippiello has not offered any competent evidence to support her claim that the American ticket agent made a false representation, with knowledge of its falsity, in order to induce Lippiello to forgo a refund or to look for a flight on another airline, and that Lippiello relied on the same thereby suffering damages. See Balles v. Babcock Power, Inc., 476 Mass. 565, 573-574 (2017). The hearsay testimony attributed to unidentified persons in the airport is not competent evidence. Nor has Lippiello presented any competent evidence to show that when the ticket agent told her that no planes were flying into JFK, that this statement was not correct when made. Further, Lippiello has not presented any competent evidence to show that the ticket agent knew that the statement was false when she made it and that she made it for the purpose of inducing Lippiello to act in a certain manner. There is no evidence of any misrepresentation at all.

For all of the above reasons, summary judgment was properly granted for American. Judgment affirmed.


[Note 1] Lippiello indicates in her brief that she intended to "move to amend the complaint accordingly"; however, the docket reflects no such amendment. The dismissal of those claims must have been communicated to the judge deciding the summary judgment as she references that fact in her summary judgment decision.

[Note 2] Lippiello wanted a direct flight due to her daughter's anxiety over flying. She was offered flights other than the February 24 flight but they were either after February 24 or had more than one connection. She declined those flights.

[Note 3] Article 1 reads, "This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward."

[Note 4] Specifically, the Conditions of Carriage provide:

"Schedules times shown in the timetables or elsewhere are approximate and not guaranteed, and form no part of the contract or carriage. Schedules are subject to change without notice and carrier assumes no responsibility for making connections. AA will not be responsible for errors or omissions either in timetables or other representations of schedules. No employee, agent or representative of AA is authorized to bind AA by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight."

[Note 5] The affidavit of Shelli Gipson submitted in support of American's motion for summary judgment states that two American direct flights were canceled on February 22 and the third had a late departure due to weather. The third was full.