The opinion of the court was delivered by: Lamberth, District Judge.
This matter comes before the Court on the Motion For Summary Judgment
("Defs.Motion") filed by defendant United Airlines, Inc. ("United"), and
the Cross-Motion For Partial Summary Judgment filed by plaintiffs James
A. Curtin, Margaret A. Wombacher, and David J. Simmons, on behalf of
themselves and all others similarly situated ("Pls.' Motion"). Upon
consideration of those motions, the oppositions and replies thereto, the
entire record herein, and the relevant law, the Court denies plaintiffs'
motion and grants defendant's motion.
This is an action arising under the Warsaw Convention, 49 Stat. 3000,
TS 876, 49 U.S.C. § 40105 note ("Convention"). Article 18 of the
Convention imposes strict liability on the airlines for damages to or
loss of baggage sustained during air travel. However, article 22 allows
airlines to limit their liability for damages sustained as a result of
airline travel to $9.07 per pound of damaged or lost baggage. Article 4
of the Convention also proscribes certain procedures that airlines must
follow when checking baggage and clearly states that if these procedures
are not followed, the airline is precluded from invoking the liability
limiting provisions of the Convention.
Named plaintiff Curtin flew from Cork, Ireland to Washington, DC on or
about September 19, 1998. He checked four bags, including a bag of golf
clubs, and received a baggage claim and ticket. The weight of the bags
was not indicated on the baggage claim or ticket. The bag of golf clubs
never arrived in Washington. Curtin reported his loss before leaving the
airport and thereafter filed a claim for $921 as the fair value of his
lost bag. On February 26, 1999, United sent Curtin a letter that stated
"[b]ecause your itinerary involved an international destination, claim
settlement is governed by the `Warsaw Convention' which limits our
liability to $635 due to a loss, damage or delay." United then sent
Curtin a settlement check, which indicated on the back that "[b]y
endorsement of this check payee(s) agree that the amount shown is
accepted in full and complete settlement of any and all claims which
payee(s) may have against United Air Lines, Inc., . . . for loss, damage
or delay sustained by reason of an incident involving a United flight."
Curtin signed and deposited the check on or around March 12, 1999.
(Plaintiffs' First Amended Class Action Complaint at ¶¶ 6-7
("Plts.' Am. Cplt. ¶"); Declaration of Ron Juris ISO Defs.' Motion
("Juris Decl. # 1") ¶¶ 4-7, Exs. A-C.)
Named plaintiff Margaret A. Wombacher flew from London, England to
Chicago, IL on or about January 11, 1999. She checked four bags, and
received a baggage claim and ticket. The weight of the bags was not
indicated on the baggage claim or ticket. One of her bags never arrived
in Chicago. Wombacher reported her loss before leaving the airport and
thereafter filed a claim for $1965 as the fair value of her lost bag. On
May 5, 1999, United sent Wombacher a letter identical to the letter sent
to Curtin and which is quoted above, and, later, sent a settlement check
containing the same release language as the check sent to Curtin.
Wombacher signed and deposited the check on or around June 4, 1999, with
a notation on the back of the check that added the word "not" between the
phrases "payee(s) agree that the amount shown is" and "accepted in full
and complete settlement". (Pls.' Am. Cplt. ¶¶ 8-9; Declaration of Ron
Juris ISO Motion for Summary Judgment on the Individual Claims of
Plaintiffs' Wombacher and Simmons by Defendant United Airlines, Inc.
("Juris Decl. # 2") ¶¶ 10-13, Exs. F-H.)
Named plaintiff David J. Simmons flew from London, England to Chicago,
IL and then from Chicago, IL to Atlanta, GA on January 4, 1999. He
checked one bag, and received a baggage claim and ticket, on neither of
which was the weight of the bag marked. His bag arrived in Chicago, but
never arrived in Atlanta. Simmons reported his loss before leaving the
airport and thereafter filed a claim for $1355 as the fair value of his
lost bag. On March 1, 1999, United sent Simmons a letter which included
the statement "As your trip involved international travel, payment for
your loss is based on the weight of your checked bag. The maximum
liability our company assumes is $9.07 per pound, up to 70 pounds per
checked item unless excess valuation is declared and purchased prior to
travel." United then sent a check to Simmons for $635. On March 24,
1999, Simmons' lawyer sent a letter to United claiming that since Simmons
had been on a domestic flight at the time his luggage was lost, the
amount offered "is very substantially less than his loss and is also
substantially less than your legal liability for luggage which you loose
[sic] on a domestic flight." On April 2, 1999, Ron Juris, Baggage Claim
Representative sent a letter back to Simmons' lawyer stating that since
the flight was "in conjunction with international travel," the Warsaw
Convention provisions applied to his case. Simmons signed and deposited
the check sent to him by United on or around April 28, 1999. (Pls.' Am.
Cplt. ¶¶ 10-11, Juris Decl. # 2 ¶¶ 4-9, Exs. A-C.)
On November 17, 1999, plaintiff Curtin filed this action on behalf of
all those individuals who traveled on international flights operated, at
least in part, by United Airlines, Inc. ("United"), who checked their
bags without United employees marking the bags' weight on the baggage
check, who lost their bags under circumstances in which United was liable
for the loss under the Convention, gave timely notice and filled out the
appropriate claim forms and received a payment from United which United
claimed amounted to the limit of its liability under the Convention.
Pls.' Cplt ¶ 5. On January 24, 2000, plaintiff Curtin asked for leave
to amend his complaint to add the additional plaintiffs now listed. Leave
was granted on March 13, 2000. On January 18, 2000, United filed its
motion for summary judgment. On February 16, 2000, plaintiff Curtin filed
his cross-motion for partial summary judgment. On March 24, 2000, United
filed its motion for summary judgment against the additional individual
plaintiffs. As is explained in more detail below, the Court grants
defendant's motion for summary judgment and denies plaintiffs'
cross-motion for summary judgment.
Plaintiffs allege that they are entitled to reimbursement from United
because United is precluded from taking the Convention's liability
limitation because United violated Article 4(2)(f) of the Convention by
not marking the weight of the baggage on the baggage claim and article 4
(4) explicitly predicates the liability limitation on compliance with
Article 4(2)(d), (f) and (h). Defendants raise several defenses, the
first being that plaintiffs' claims are barred by the contractual defense
of accord and satisfaction since all three plaintiffs accepted the
settlement that United offered them to settle their claims by cashing
Accord and satisfaction is a "method of discharging and terminating an
existing right and constitutes a perfect defense in an action for
enforcement of the previous claim."*fn1 ABB Daimler-Benz Transp., Inc.
v. National R.R. Passenger Corp., 14 F. Supp.2d 75, 93 (D.C.Cir. 1998)
(citing 6 Arthur L. Corbin, Corbin on Contracts, § 1276 (1962)). The
burden of proof is on the party asserting the defense, in this case
United, to prove that all the elements that constitute a valid accord and
satisfaction have been met. Id. The common law elements of accord and
satisfaction have been codified in the Uniform Commercial Code §
3-311 as: (1) an honest dispute over an unliquidated claim; (2) a tender
of payment with the explicit understanding of both parties that it is in
full payment; and (3) an acceptance by the creditor with the
understanding that the tender is accepted as full payment. See A.F.P.
Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App.3d 905, 183
Ill.Dec. 356, 611 N.E.2d 619, 623 (1993); Anderson, 737 P.2d at 419;
Kendrick, 244 Ga. App. at 363.
United has met its burden of proving each of the elements of an accord
and satisfaction are present with regards to each of the plaintiffs in
this action. Moreover, the plaintiffs have defined the class they seek to
represent in such a way that United could assert such a defense against
each of the class members. First, the amount that United owed each
plaintiff for their lost luggage was unliquidated, and honestly in
dispute. Plaintiffs claimed to be owed one amount and United offered to
pay a lower amount. (Pls.' Am. Cplt. ¶¶ 7, 9, 11). Plaintiffs' argument
that since United offered to pay less money than plaintiffs thought they
were due, such a payment was a partial payment of an amount "indisputedly
owed" is rejected. (Pls.' Memo. at 11.) If such an argument were
accepted, no accord and satisfaction would ever be valid, as disputed
claims necessarily involve one party offering to pay less than the other
party thinks it deserves.
Second, United clearly indicated its intention that the check it sent
would constitute full payment of their claims. It did so both by sending
a letter to each of the plaintiffs informing them of United's intention
to send a check which would constitute full payment for their claims, and
by clearly indicating this fact on the back of the check in the space
where plaintiffs' endorsed the check. (Juris Decl. # 1 Exs. B-E, G-H;
Juris Decl. #2 Exs. B-C.) Finally, each of the plaintiffs accepted this
offer by cashing the check that United sent to them. (Juris Decl. # 1
Exs. E, H; Juris Decl. #2 Ex. C.) This situation is, literally, a
textbook example of accord and satisfaction. 6 Arthur L. Corbin, Corbin
on Contracts, § 1276 (1962).
Plaintiffs attack the formation of a valid accord and satisfaction
this case by arguing that no binding offer was made because there was no
"meeting of the minds." Plaintiffs argue that because United failed to
disclose that the issue of whether the limitation on United's liability
applied in cases where the airline failed to mark the weight of the
baggage on the baggage check was in dispute, United concealed or
misrepresented a material fact. Courts are divided on the question of
whether a failure to mark the baggage weight is a material violation of
the Convention that prevents United from limiting its violation. Compare
Cruz v. American Airlines, Inc., 193 F.3d 526 (D.C.Cir. 1999); Spanner
v. United Airlines, Inc., 177 F.3d 1173 (9th Cir. 1999); Tchokponhove v.
Air Afrique, 953 F. Supp. 79 (S.D.N.Y. 1996) (holding that failure to
record weight precludes taking advantage of liability limitations) with
Feeney v. America West Airlines, 948 P.2d 110 (Colo.App. 1997); Lourenco
v. Trans World Airlines, 244 N.J. Super. 48, 581 A.2d 532 (1990);
Hibbard v. Trans World Airlines, Inc., 70 Ohio App.3d 829, 592 N.E.2d 889
(1990) (holding that failure to record weight was a mere technicality
that did not preclude taking advantage of liability limitations).
Indeed, within the months that these letters were being sent out, United
itself was in litigation in California over exactly this issue. See
Spanner, 177 F.3d 1173 ...