Tourist purchases annual pass to SeaWorld: Did park breach EZ pay contract?

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In this week’s article, we examine the case of Herman v. SeaWorld Parks & Entertainment, Inc., Case No. 8-14-cv-3028-T-35JSS (M.D. Fla. 2017) wherein the Court noted that “Plaintiffs purchased annual passes to theme parks owned by SeaWorld through SEAWARD’s ‘EZ Pay’ system. Which allowed consumers to [pay for an annual pass over twelve installments in essentially months. This action arises out of SeaWorld’s renewal of the EZ Pay passes, which is governed by the following provision in the EZ Pay contract: ‘Except For Any Passes Paid In Less Than 12 Months, This Contract Will Renew Automatically On A Month-To-Month Basis Following The Payment Period Until I Terminate It’. Because the first and second installments under the EZ Pay contract were paid within a single month’s time and the remaining ten installments were paid in the ensuring ten months, all passes were ‘paid in less than 12 months’. Plaintiffs have sued SeaWorld because, contrary to the language of its contract, SeaWorld systematically renewed passes that were ‘paid in less than 12 months’ without the subsequent approval of the Plaintiffs”.

Terror Targets Update

The ISIS Beatles

In Goldman & Schmitt, 2 of ISIS’ Infamous British Fighters Are Captured by Syrian Kurds, nytimes (2/8/2018) it was noted that “Syrian Kurdish fighters have detained two British men infamous for their role in the Islamic State’s imprisonment, torture and killing of Western hostages…The men were part of a group of four Islamic militants known as the Beatles because of their British accents…The British extremists were known for their brutality. They repeatedly beat the hostages they kept imprisoned…subjected them to waterboarding and mock executions …The American government says the group beheaded more than 27 hostages”.

Coming To Your Town Soon

In Schmidt, Thousands of ISIS Fighters Flee in Syria, Many to Fight Another Day, nytimes (2/4/2018) it was noted that “Thousands of Islamic State foreign fighters and family members have escaped the American led military campaign in eastern Syria, according to new classified American and other Western military and intelligence assessments, a flow that threatens to tarnish American declarations that the militant group has been largely defeated. As many of the fighters flee unfettered to the south and west through Syrian Army lines, some have gone into hiding near Damascus, the Syrian capital, and in the country’s northwest, awaiting orders sent by insurgent leaders on encrypted communications channels. Other battle-hardened militants, some with training in chemical weapons, are defecting to Al Qaeda’s branch in Syria. Others are paying smugglers tens of thousands of dollars to spirit them across the border to Turkey, with an eventual goal of returning home to European countries”.

Sinai, Egypt

In Kirkpatrick, Secret Alliance: Israel Carries Out Airstrikes in Egypt, with Cairo’s O.K., nytimes (2/3/2018) it was noted that “The jihadists in Egypt’s Northern Sinai had killed hundreds of soldiers and police officers, pledged allegiance to the Islamic State, briefly seized a major town and begun setting up armed checkpoints to claim territory. In late 2015, they brought down a Russian passenger jet. Egypt appeared unable to stop them, so Israel, alarmed at the threat just over the border, took action. For more than two years, unmarked Israeli drones, helicopters and jets have carried out a covert air campaign, conducting more than 100 airstrikes inside Egypt, frequently more than once a week-and all with the approval of President Addel Fatta el-Sisi…Once enemies in three wars, then antagonists in an uneasy peace, Egypt and Israel are now secret allies in a covert war against a common foe”.

Manila, Philippines

In Villamor, Philippine Police Resume War on Drugs, Killing Dozens, nytimes (2/2/2018) it was noted that “Nearly 50 people suspected of using and selling drugs were killed by officers in the past two months, the Philippine National Police and on Friday, contradicting earlier pronouncements that the government’s war on drugs would become less deadly…Between Dec. 5, 2017-when the police took part in an operation named Double Barrels Reloaded-and Thursday, officers conducted 3,253 raids, leading to the arrests of an unnamed number of ‘high-value targets’ and the deaths of 46 people”.

Swat Valley, Pakistan

In Pakistani Taliban claim attack that killed 11 soldiers in Swat Valley, travelwirenews (2/4/2018) it was noted that “Authorities say Saturday’s attack was the first in over three years in the northwestern region once ruled by militants…The Pakistani Taliban claimed responsibility for a suicide attack the day before that killed 11 soldiers and wounded 13 in the Sway Valley”.

Stockholm, Sweden

Police stopped monitoring Stockholm car-rammer less than 3 month before massacre, travelwirenews (2/4/2018) it was noted that “olive stopped surveillance of Rakhmet Akilov less than three months before he ploughed into pedestrians in Stockholm killing five…Akilov wad already planning the massacre at that time”.

Brussels, Belgium

In Schreuer & Rubin, Sole Surviving Suspect in Paris Attacks Stands Trial in Belgium, nytimes (2/5/2018) it was noted that “Salah Abdeslam, who is believed to be the only surviving member of the group that carried out a series of coordinated attacks in and around Paris more than two years ago, went on trial on Monday…Mr. Abdeslam…(is) accused of shooting and wounding Belgium and French police officers who were searching for (him) in southern Belgium, four months after the attacks in Paris and St. Denis that left 130 people dead and days before two attacks in Brussels, one at the main airport and another on a subway train”.

Grand Canyon Helicopter Crash

In Fiery Helicopter Crash in Grand Canyon Kills at Least 3 and Injured 4 others, nytimes (2/11/2018) it was noted that “A helicopter tour in the Grand Canyon this weekend ended in a fiery crash killing three of the seven people onboard and injuring four others…The chopper from Papillion Grand Canyon Helicopters was carrying six passengers and a pilot when it went down…on the Hualapi Nation near Quartermaster Canyon…Images of the crash online showed flames and black smoke from a ravine”

Russian Plane Crash

In Nechepurenko, Russian Plane Crashes Near Moscow; 71 Are Feared Dead, nytimes (2/11/2018) it was noted that “A Russian plane carrying 71 people crashed shortly after takeoff in the Moscow region on Sunday afternoon, most likely killing all onboard…Flight 703, operated by Saratov Airlines, was carrying 65 passengers and six crew members from Domodedovo Airport to Orsk when it went down near the village of Argunovo, about 50 miles southeast of Moscow…Fragments of the plane and many bodies were discovered near the village of Stepanovskoe”.

Hong Kong Bus Crash

In Ramzy, Hong Kong Bus Crash Kills at Least 18 and Injures Over 60, nytimes (2/10/2018) it was noted that “At least 18 people were killed and dozens of others injured when a double-decker bus crashed on Saturday in a rural area of Hong Kong…The bus was traveling from a horse-racing track in the district of Sha Tin to Tai Po Center…shearing off part of the roof…At least 62 others were injured in the crash”.

Crime-Ridden Brazil

In Crime-ridden Brazil gets off to a bloody start in 2018, travelwirenews (2/4/2018) it was noted that “688 shooting incidents reported in Rio de Janeiro state in January, many of them focused in the same few sprawling neighborhoods known as favelas where police are barely in control…The year was just a few hours old when a prison riot near the capital Brasilia left nine inmates dead-two of them decapitated-and set the stage for what is proving to be a deadly 2018 in Brazil”.

Extra Spicy Burritos, Anyone?

In Extra spicy: Police seize 25 pounds of meth disguised as burritos, travelwirenews (2/4/2018) it was noted that “To the untrained eye it looked exactly like regular takeaway Mexican food but one driver in Los Angeles was delivering burritos that packed a far more powerful kick than your standard take-out. The driver was pulled over in a routine traffic stop…During the search (the police) came across a bag containing 14 ‘burritos’ that they had originally thought to a food delivery…closer inspection revealed that the foil-wrapped packages were stuffed with methamphetamine…weigh(ing) more than 25 pounds”.

Saudi Women Got Rights, Too

In Saudi women demanding more rights in marriage contracts, travelwirenews (2/4/2018) it was noted that “Strides towards modernization in the country, championed by prince Mohammad Bin Salman, have gained traction…A growing trend in Saudi Arabia has been observed of brides asking for more rights as a part of the pre-nuptial agreement. In one case, a bride asked to be allowed to attend football matches while another woman demanded her future husband allow her to drive when the ban is lifted in June”.

Driverless Car Technology On Trial

In Wakabayashi, Secrets or Knowledge? Uber-Waymo Trial Tests Silicon Valley Culture, nytimes (1/30/2018) it was noted that “After nearly a year of legal wrangling, dramatic last-minute delays and uncooperative witnesses, a jury will soon hear arguments in Waymo’s high-profile lawsuit accusing Uber of stealing driverless car technology. The trial which is scheduled to start with jury selection on Wednesday in federal court in San Francisco, pits Waymo, a spinoff of Google and one of the most successful companies from the dot-com boom, against Uber, the ride-hailing giant and today’s most valuable start-up. At stake is a leading role in the intense competition among tech and auto companies to create autonomous vehicles. The dispute hinges on the actions of a former star engineer at Google who started his own company and then sold it to Uber within a year. Did he steal thousands of Google computer files as he headed out the door and bring those files with him to Uber?”.

U.S. Lawmakers’ Train Crash

In Fandos, Cochrane & Bromwich, Train Carrying Republican Lawmakers to Retreat Crashes Into Truck, nytimes (1/31/2018) it was noted that “An Amtrak train carrying Republican lawmakers to their annual policy retreat crashed into a large truck in rural Virginia on Wednesday, killing one of the truck’s passengers….Two members of the train’s crew and at least two passengers, including Representative Jason Lewis, Republican of Minnesota…were also taken to a hospital with minor injuries”.

Amtrak Crash In South Carolina

In Joseph & Bolon, Amtrak Train Collision Kills at Least 2 and Injures Nearly 70 Others, nytimes (2/4/2018) it was noted that “An Amtrak train traveling from New York to Miami collided with a freight train early Sunday, killing at least two people, injuring at least 70 others and spilling thousands of gallons of fuel, according to officials. Amtrak said train 91, which was carrying eight crew members and 139 passengers, collided with a CSX train near Cayce, S.C.”.

New Tomb In Giza

In Mays, Archaeologists in Egypt Discover 4,400-Year-Old Tomb, nytimes (2/3/2018) it was noted that “Archaeologists in Egypt have discovered a 4,400-year-old tomb near Cairo that contains rare wall paintings and is believed to belong to a high-ranking Egyptian priestess…named Hetpet…The Egyptian authorities have hoped that a surge in discoveries will attract more tourists to the country”.

Getting The Best Room Service

In Vora, The Right Way to Order Room Service at a Hotel, nytimes (2/1/2018) it was noted that “Room service is often the last refuge of business travelers, and an overpriced, under-seasoned option for travelers without many options. According to Martyn Nail, the executive chef of Claridge’s hotel in London…’the food you get isn’t necessarily a reflection of who prepared it’. He has a few tried and tested ways to make sure every room service meal is a good one…Order Course-by-Course…Choose the Right Dishes…Consider how well a dish will travel before you order it…Go Off Menu…Always Order Through a Live Person…If You’d Like Wine, Ask to Speak with the Hotel’s Sommelier”. Enjoy.

Voodoo In Massachusetts

In Voodoo ritual leaves 5yo girl with 3d degree face burns in Massachusetts, travelwirenews (2/4/2018) it was noted that “Two women have been charged with assault and battery of a child after a ‘cleansing’ ritual on a five-year-old girl during which they cut her, rubbed a stinging substance into her eyes and held a flaming torch to her face. The bizarre ritual was commissioned by the girl’s mother, who believed evil spirits were ‘making her misbehave’ the Brockton Enterprise reported”.

Las Vegas Drone

In ‘Reckless’ drone flies dangerously close to landing plane in Vegas, travelwirenews (2/4/2018) it was noted that “A video captured by a drone shows it buzzing dangerously close to a passenger plane landing at McCarran Airport in Las Vegas violating all safety regulations. Its ‘reckless’ pilot has been condemned by drone enthusiasts. Footage of the close call… provides a stunning view of the plane gliding mere feet below the drone-o=mounted camera”.

Stop Drinking Water, Please

In Onishi & Segupta, Dangerously Low on Water, Cape Town Now Faces ‘Day Zero’, nytimes (1/30/2018) it was noted that “‘Day Zero’ is coming to Cape Town this April. Everyone be warned. The government cautions that the Day Zero threat will surpass anything a major city has faced since World War II or the Sept. 11 attacks…The reason for the alarm is simple: The city’s water supply is dangerously close to running dry. If water levels keep falling, Cape Town will declare Day Zero in less than three months, Taps in homes and businesses will be turned off until the rains come. The city’s four million residents will have to line up for water rations at 200 collection points”.

Stop Using French Baby Formula, Please

In Alderman, ‘My Baby Almost Died’: Formula Scandal Sends Shudders Through France, nytimes (2/1/2018) it was noted that “When the French diary giant Lactalis began recalling baby formula, Segolene Noviant thought she was safe. The milk she had been feeding her 5-month-old son wasn’t on the list. Then her son, Noan, was rushed to the emergency room with a fever, diarrhea and internal bleeding. His formula was tainted with salmonella-and a broad range of other Lactalis powdered milk products still on the shelves were at risk, too. It would take three recalls and many weeks for the scope of the problem to finally become clear, stoking public outrage over what has become known in France as ‘l’affaire Lactalis’. In one of the biggest recalls of its kind, the company has pulled more than 7,000 tons of potentially contaminated baby formula and other powdered milk products across more than 80 countries, mostly in Europe, Africa and Asia. And its chief executive said on Thursday that the company’s powdered milk products may have been exposed to salmonella for more than a decade. The massive recall and the missteps along the way have exposed corporate lapses and regulatory gaps that allowed tainted products to make their way into supermarkets and pharmacies, even weeks after the problems were discovered”.

Stop Gassing The Monkeys, Please

In Ewing, BMW and Daimler Move Against Executives Over Diesel Tests on Monkeys, nytimes (1/31/2028) it was noted that “The German carmakers BMW and Daimler said on Wednesday that they had taken action against executives involves in an organization that sponsored emissions experiments on monkeys, as the companies tried to squelch a public outcry that threatens to tarnish the image of Germany’s most important exports…Using monkeys as experiment subject was not illegal, but it angered animal rights advocates and others who say the tests lacked the usual justification for research on primates, which is to advance medical science and protect human lives”.

Pass On Indian Chicken, Please

In India’s farmed chickens dosed with world’s strongest antibiotics: study, travelwirenews (2/2/2018) it was noted that “Chickens raised in India for food have been dosed with some of the strongest antibiotics known to medicine, in practices that could have repercussions throughout the world. Hundreds of tons of an ‘antibiotic of last resort’-only used in the most extreme cases of sickness-are shipped to India each year to be used, without medical supervision, on animals that may not require the drugs but are being dosed with them nevertheless to promote the growth of healthy animals…The consequences will be felt throughout the world because resistance to strong antibiotics is spread among organisms”.

Shanghai Van Crash

In Ramzy, Shanghai Van Crash Caused by Smoking Driver, Police Say, nytimes (2/1/2018) it was noted that “A smoking driver ignited a fire inside a van carrying fuel canisters, causing him to lose control and slam into pedestrians on a sidewalk outside a Starbucks in Shanghai on Friday, the police said. At least 18 people were injured”.

D-Day Plane Flying Again

In Fortin, A D-Day Plane Is Flying Again, nytimes (2/1/218) it was noted that “On Wednesday afternoon, for the first time in years, ‘That’s All, Brother’ took to the skies. The aircraft, a C-47 military transport plane, was the leader of the formation that dropped thousands of American paratroopers into Normandy on June 6, 1944, or D-Day, paving the way for the liberation of northern France from Nazi Germany…The hope is to get the job done (of restoration) in time for June 6, 2019, so ‘That’s All, Brother’ can fly over Normandy for the 75th anniversary of the D-Day invasion”.

Travel Law Case Of The Week

In the Herman case the Court noted that “[I]n the Second Amended Complaint, Plaintiffs allege claims against SeaWorld for breach of contract (Count I) and for violation of the Electronic Funds Transfer Act, 15 USC 1693e(a) (Count II). SeaWorld moves for summary judgment on the breach-of-contract claim only. Plaintiffs move for summary judgment on the issue of liability for both claims”.

Breach Of Contract

“[T]he breach-of=contract sub-class includes residents of Florida, Texas, Virginia and California, the four states in which SEAWARD operates theme parks. As a result, the parties agree that Plaintiffs’ breach-of-contract claim is governed by the laws of Florida, Texas, Virginia and California. In each state the elements of a breach-of-contract claim include: (1) a valid contract, (2) a breach and (3) damages…For the reasons explained below, the Court holds that Plaintiffs establish a beach of the EZ Pay contract on SeaWorld’s unauthorized renewal during the contract period, and based on SeaWorld’s unauthorized charges after the contract expired.”

EZ Pay Contract’s One-Year Term

“The E Pay contract does not specify a termination date. In Florida ‘in the absence of an express provision as to duration in a contract, the intention of the parties with respect to duration and termination is to be drawn from the surrounding circumstances and by application of a reasonable construction of the agreement as a whole’…Under the terms of the EZ Pay contract, Plaintiffs purchased a ‘1 Year’ annual pass, and Plaintiffs paid SeaWorld in twelve installments. Based on the totality of the circumstances, the Court holds that the EZ Pay contract endured for one year, absent a renewal or cancellation. Both sides tacitly agree on that construction”.

Renewal Before Year’s End

“Plaintiffs allege that SeaWorld breached the renewal provision which states ‘Except For Any Passes Paid In Less Than 12 Months, This contract will renew automatically On A Month-To-Month Basis Following The Payment Period until I terminate it’… Plaintiffs (further) alleged that SeaWorld ‘is not permitted to automatically renew accounts that are paid in less than twelve months’ (and) SeaWorld ‘did not possess the contractual right to renew the contract and/or charge any additional amount after the pass was paid in full’…SeaWorld…argues that Plaintiffs fail to identify any record evidence to establish that a renewal actually took place during the one-year term. In response, Plaintiffs correctly observe that SeaWorld’s installment plan requires a final payment by the first day of the twelfth month, at which point the E Pay pass is ‘paid’. Plaintiffs persuasively argue that under the terms of the renewal provision, SeaWorld was required to ensure by that date, or at the latest, by the final day of the twelfth month, that the EZ Pay contract did not renew, However (Mr. X), a SeaWorld representative, testified that an annual EZ Pay pass would renew unless a consumer accelerated her payment schedule. (Ms. Y) another SeaWorld representative, similarly testified that an EZ Pay pass for a given year may expire but ‘that does not remove someone from the program’. Based on this evidence, Plaintiffs demonstrate that SeaWorld breached the EZ Pay contract during the one-year contract term by failing to ensure that the contract did not renew once the passes were ‘paid’”.

Failure To Terminate EZ Pay Contract

“The only remaining question…is whether SeaWorld’s failure to terminate the EZ Pay contract constitutes an actionable breach …SeaWorld’s failure to terminate the contract unquestionably does to the ‘essence’ of the contract. Plaintiffs bargained for a one-year pass, not a pass of indefinite duration. And it is undisputed that Plaintiffs suffered damages in the form of unauthorized charges. Although those charges may have occurred after the contract expired, they are ‘damages flowing from the breach’. Based on the foregoing, the Court holds that SeaWorld breached the EZ Pay contract during the contract term”.

Collection Of Payments After Expiration

“SeaWorld maintains that Plaintiffs are unable to establish their alternative theory-that the unauthorized payments themselves constituted a breach-because, by Plaintiffs’ own admission, the contracts expired by the time the payments were collected. (However here) SeaWorld did not reject the EZ Pay contract, it unilaterally continued to claim benefits under the contract. Under these circumstances, SeaWorld’s actions constitute a breach, despite the fact that SeaWorld collected the unauthorized payments after the EZ Pay contract expired…Under the terms of the renewal provision, SeaWorld was obligated to terminate the EZ Pay contract. SeaWorld instead beached he renewal provision by continuing to claim the benefits of the EZ Pay contract…the Courts holds that Plaintiffs establish a breach of the EZ Pay contract based on SeaWorld’s continued collection of unauthorized payments”.

Electronic Funds Transfer Act

“The Electronic Funds Transfer Act (EFTA) establishes the ‘rights, liabilities and responsibilities of participants in electronic fund and remittance transfer systems’ with the primary objective of protecting the rights of consumers. To further its legislative goals, the EFTA creates a private right of action against ‘any person who fails to comply with any provision (of EFTA)’…In Count II, Plaintiffs allege that SeaWorld violated 15 USC 1693(a) which provides: ‘A preauthorized electronic fund transfer from a consumer’s account may be authorized by the consumer only in writing…The EFTA defines ‘preauthorized electronic fund transfer’ as ‘an electronic fund transfer authorized in advance to recur at substantially regular intervals’…Plaintiff contend that SeaWorld violated 15USC 1693e(a) because it failed to obtain preauthorization for bank-account and debit-card transfer made after the EZ Pay contract expired…to the extent SeaWorld continued collecting monthly payments from customer accounts after EZ Pay passes were ‘paid in less than 12 months’ and did so by ‘electronic fund transfer’…the Court holds that the transfer violate 15 USC 1693e(a).

Conclusion

“Based on the foregoing, it is Ordered that Plaintiffs’ Motion for Summary Judgment as to liability is Granted…and SEAWARD’s Motion For Partial Summary Judgment is denied’.

ez pay seaworld

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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