Doing Business: Protecting Yourself From Lawsuits - 10/6/2003

By Margot Carmichael Lester

TravelAge West

Originally posted at: http://www.travelagewest.com/newsarticle.asp?articleid=2499

It’s every agent’s nightmare: You recommend a certain hotel in Budapest that recently changed hands. When the client returns, he says it was a dump.

The situation is bad enough, but could you also be sued?

The short answer is “yes.” In today’s litigious society, anyone can sue you for anything. The longer answer is also “yes,” but your client probably won’t win.

“The basic law in the United States requires that you must show the agent did something wrong,” says Alexander Anolik, a San Francisco-based attorney specializing in travel law. “In torte liability, you must prove negligence.”

OK, but what constitutes negligence?

Generally speaking, if you routinely base your recommendations to clients on guidebooks, Web pages and such publicly available information, a lawsuit won’t go far.

The Basic Rule

“Don’t guarantee anything,” Anolik says simply. “You are just a conduit between two parties and you’re getting them together.”

So, even if you’ve been to the fabulous seaside hotel in Torquay, don’t promise your clients that they’ll adore the priceless antique furnishings and afternoon teas.

It’s OK to say, “When I stayed there ... ” but make it clear that things could have changed.

Similarly, don’t offer assurances about your clients’ safety.

Provide them with the telephone numbers and Web addresses of the U.S. State Department’s Travel Advisory Section (202-647-5225, www.state.gov/travel information/travel warnings) and the Centers for Disease Control’s travel section (404-332-4559, www. cdc.gov./travel).

Anolik suggests agents also put a consumer disclosure notice on their invoices as well as on agency Web pages (see accompanying sample).

“These statements put more copy on the invoice, but they can’t say they didn’t see it,” he says.

You or your agency may also need to use disclosure notices specifically worded for adventure travel itineraries or changes in travel scheduling. Samples can be seen at http://travellaw.com/dis closures.html, but your own legal counsel would be the best person to advise you on wording and application.

Last Line of Defense

Despite these precautions, you can still be sued.

To keep legal costs in check in the event that happens, Anolik advocates adding a simple sentence to your statements: “Any disputes concerning this transaction will be handled in (insert the name of your location).”

He says such a statement would compel the defendant to come to your location to pursue any legal action.

Such statements won’t help if you’re truly negligent, however.

“When you send them to the wrong airport or hotel, you’re responsible and that’s negligence,” Anolik says.

And that’s where errors and omissions (E&O) insurance comes in.

E&O insurance is available through several operations including the Outside Sales Support Network, an association of home-based agents.

The three-part business insurance package is designed for travel professionals and is offered through Berkely Insurance (http://berkely.com/ taplhome.html).

The key to protecting yourself and your agency against liability claims begins with the right insurance coverage and some additional statements on your documents.

Or, as Anolik notes, “A few more words can save a lot of money.”