Ala. SC dismisses suit over injuries in Israel

Jessica M. Karmasek Mar. 8, 2011, 11:18am

Justice Glenn Murdock wrote, "The arguments the Kelleys made in this case as to inconvenience and Alabama's door-closing statute fail to undermine the enforceability of the forum-selection clause."

MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court on Friday ordered a lower court to dismiss a couple's action against a Christian travel company.

Nawas International Travel Service, Inc., a business incorporated in New York and having its principal offices in Connecticut, and its executive vice president George Khoury, a Connecticut resident, petitioned the state's high court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss the complaint of plaintiffs Michael Kelley and Jackie Kelley, who are Alabama residents, on the basis of an outbound forum-selection clause.

Through members of their church, First Baptist Church Montgomery, the Kelleys heard about a trip to Israel being offered by Nawas, described as a tour of "the Holy Land," from Feb. 21 to March 2, 2009.

The Kelleys returned a completed reservation form with payment for the trip.

The main activity was a boat ride across the Sea of Galilee. Nawas had contracted with Kinnereth Sailing Company, Ltd., to conduct the boat tour.

The Kelleys allege that during the boat ride the Kinnereth employees responsible for steering the boat failed to pay attention to the direction of the boat, which resulted in the boat striking rocks near the shoreline. The force of the crash caused Michael Kelley to be thrown against the boat's wall and into a sharp metal hook. His head struck the hook, cutting him below the temple, in front of his right ear, and down his face to his jaw.

According to the Kelleys, the injury produced "profuse bleeding" from the gash on the man's face, and he sustained a concussion that caused blurred vision and loss of memory.

Michael Kelley received medical treatment for his injuries at two different hospitals in Israel.

On May 13, 2010, the Kelleys filed a complaint in the Montgomery Circuit Court against Nawas, Khoury and Kinnereth, alleging breach of contract, breach of express warranty, negligence and/or wantonness, fraud and the tort of outrage, and, as to Nawas and Khoury, negligent hiring, selection or retention of a service provider.

On June 21, 2010, defendants Nawas and Khoury filed a motion to dismiss the complaint based upon the forum-selection clause in their agreement, which states that any action against Nawas must be filed in Fairfield County, Conn.

Following a response from the couple and a hearing on the motion, the circuit court on Aug. 4, 2010 entered an order denying the motion to dismiss filed by Nawas and Khoury. The circuit court did not explain its reasons for its ruling.

On Sept. 14, 2010, Nawas and Khoury filed the present petition for a writ of mandamus addressing the Montgomery Circuit Court's order. Subsequently, the Kelleys obtained service on Kinnereth in Israel; Kinnereth, in turn, filed its own motion to dismiss on Oct. 13. Then, on Nov. 4, the circuit court granted Kinnereth's motion to dismiss, thus excusing it from the Kelleys' action.

The Supreme Court granted the defendants' petition and ordered the lower court to dismiss the Kelleys' action.

Justice Glenn Murdock, who authored the Court's 18-page opinion, wrote that the couple "accepted a contract with Nawas that contained an outbound forum-selection clause."

"The clause is presumptively enforceable unless the Kelleys could provide a reason it should not be enforced against them," the Court said. "The arguments the Kelleys made in this case as to inconvenience and Alabama's door-closing statute fail to undermine the enforceability of the forum-selection clause."

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