Braka v Travel Assistance Intl.
Annotate this CaseDecided on March 31, 2005
Supreme Court, New York County
David Braka, Plaintiff,
against
Travel Assistance International, WORLDWIDE ASSISTANCE SERVICES, INC., SPECIALTY RISK INTERNATIONAL, INC., and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Defendants.
124016/02
Sherry Klein Heitler, J.
In this breach of contract case, the defendants, Travel Assistance International (TAI) and Worldwide Assistance Services, Inc. move under motion sequence 6 for an order dismissing this action, arguing that plaintiff cannot prove that he sustained any damages as a result of their alleged breach of contract. Under motion sequence 5, TAI seeks an order striking the plaintiff's Note of Issue, arguing that discovery in this action is not complete. The plaintiff opposes these applications. These motions are consolidated for disposition.
The plaintiff, David Braka, purchased traveler's emergency protection before embarking on his extended honeymoon. The agreement between plaintiff and TAI provided, among other benefits, $1,000,000 coverage in the event of emergency medical evacuation. The plaintiff planned to go to Tahiti, Figi, Australia, Singapore, Germany, Egypt, Israel and France. He and his bride left on July 15, 2001 and were scheduled to return on October 14, 2001. On or about July 31, 2001, plaintiff and his wife were seriously injured in a car accident while vacationing in Figi. Upon learning of the accident, plaintiff's parents flew to Figi. After his parents arrived, there was a determination made that plaintiff was not receiving adequate medical treatment and, therefore, he needed to be transported via air ambulance back to the United States for treatment.[FN1] Plaintiff's parents paid for the transportation at a cost of approximately $350,000. A few months after the accident, the plaintiff wrote a letter to his father stating his intention to repay the monies his father advanced on his behalf. To formalize this promise, the plaintiff requested in the letter that his father sign same. The plaintiff's father signed the letter. Thereafter, plaintiff submitted a claim for reimbursement of his travel expenses. The defendants denied the claim and plaintiff commenced this action.
The defendants argue that because plaintiff's parents paid this obligation, he has no damages [*2]and, thus, cannot maintain this suit. Specifically, the defendants contend that the letter that plaintiff wrote to his father does not constitute an enforceable note and, as such, plaintiff has no obligation to repay his father. The defendants also argue that because the plaintiff failed to plead the existence of the note, the claim is subject to dismissal.
The court does not agree with defendants and denies their motion to dismiss this action.
The defendants' arguments focus exclusively on the fact that plaintiff did not pay the approximately $350,000 himself and, therefore, they allege he has no damages. The issue in this case is not that plaintiff's parents, rather than plaintiff, paid for the medical evacuation. This expense was clearly undertaken on plaintiff's behalf in what is alleged as an emergency situation. It is not uncommon in emergency situations that a family member, friend or colleague will step in to help an injured person. At times, such person may even advance funds to facilitate medical treatment. Under such circumstances, an insurer is not relieved of its obligation to provide coverage for said medical expenses if the appropriate procedures relative to the policy have been fulfilled.
The defendants' argument, in essence, is that they are relieved of their duty under the contract because a third party performed their obligation. It is well settled that once a party has made a promise, said party must perform or respond in damages for its failure, even when unforeseen circumstances make the performance burdensome. Payment by a stranger does not inure to the benefit of a debtor and, as such, payment would not discharge obligation of debtor without evidence showing that it was the intention of the parties to have it do so (see, DeLanoy Kipp & Swann v. New Amsterdam Casualty Co. 11 NYS2d 625 [1939]). A creditor's acceptance of the obligation of a third person constitutes a novation where it is agreed or intended by the parties that the third person is to be substituted in place of the original debtor (see, 22A NY Jur. 2d Contracts §461.). There was clearly no arrangement between the parties that would have discharged the defendants' obligation upon the plaintiff's parents paying for his medical evacuation.
The defendants have the burden, on a summary judgment motion, to prove as a matter of law that the plaintiff cannot maintain this action. In determining a motion for summary judgment, the court must take the allegations in the complaint as true and resolve all inferences which reasonably flow therefrom in favor of the pleader (see, Cron v. Haigro Fabrics, Inc., 91 NY2d 362, 366 [1998]); see also, Rabovin v. Metropolitan Life Insurance Co., 307 AD2d 843, 844 [1st Dept., 2003]). A motion to dismiss the action will seldom be granted unless the moving papers conclusively establish that plaintiff does not have a cause of action (see, Mary Imogene Bassett Hospital v. Hospital Plan Inc., 89 AD2d 240, [4th Dept., 1982]). The defendants have failed to sustain this burden and, as such, their motion for summary judgment must be denied.
There are many issues that need to be resolved in this case, including but not limited to what was being done to aid the plaintiff at the time his parents arrived; was the care he was receiving appropriate; were the appropriate procedures followed in order to trigger the insurance; were there alternatives to the evacuation; and what was explained to the family during this emergency? The answers to these questions await the trial of this case.
The parties' discovery issues will be resolved during their next court conference, scheduled for this coming MONDAY, APRIL 4, 2005 at 2:15 PM at 60 Centre Street, Room 438, New York, New York, 10007. On this date the court will set a discovery schedule.
This shall constitute the interim decision and order of the court.
[*3]
DATED: MARCH 31, 2005
SHERRY KLEIN HEITLER
J.S.C.
Footnotes
Footnote 1:There are significant disagreements relating to this determination.
However, these issues are not before the court at this time.
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