In a High-Risk World, Do Travel Insurers and Agents Have a Duty to Advise?

Increasingly, media have been reporting on travel trouble spots around the globe, emphasizing that bad things can happen in even the nicest places. What, then, can vacationers or business travellers expect their agents or insurers to tell them about the destinations they’ve chosen?

What if they just discovered that there have been unexplained deaths at a resort where they booked a stay (as occurred this past summer in the Dominican Republic), and when they tried to cancel, the resort refused to return their deposits? Or what if they suddenly found themselves in the middle of an anti-government demonstration in Chile and were injured and needed hospital care, but their insurer denied their claims because they had been warned against involvement in demonstrations by their government?

Who do they go to? Why didn’t their travel agent, or travel insurance brokers, tell them these were potential trouble spots? After all, didn’t they buy insurance to preserve their good health and safety, and didn’t they have the right to cancel if they later learned their destination was a high-risk, “Avoid All Travel” zone?

These are not uncommon dilemmas, as a recent article in in the Milwaukee Journal found, when some 170 tourists from the US and Canada related their horror stories about bad things that happened to them at Mexican resorts: things, they said, that could have been avoided had they been warned ahead of time by their travel providers.

One such incident involved a young woman from Winnipeg who, while visiting a resort in Mexico,  ordered a quesadilla from room service at 1 a.m. after a night out and then had to fight off the man who brought it to her, whom she described as a “ravaging dog.”

She told the newspaper, “This was my first trip out of Canada… I was always told when you were at a resort you were safe.”

With more and more such incidents coming to light, and with governments raising more frequent warnings about travel to high-risk areas, the issue of what travel providers are obliged to tell their clients is becoming a concern in the travel trade as well as in some courts.

In a 2016 Nebraska Supreme Court case (McReynolds v. Riu Resorts and Hotels et al), which had to do with jewelry being stolen out of a room safe, the court determined that because the owner of the jewelry left her key in an open and unsecured location, the travel providers she was suing could not be held responsible for her loss. It concluded that “Imposing a duty to warn of obvious dangers would be a waste of time and could actually inhibit safety, because it would produce such a profusion of warnings as to devalue those warnings serving a more important function”  (emphasis added).

It wrote further: “It appears well settled… that an agent’s duty to warn travelers of dangerous conditions applies to situations where a tour operator [or travel agent] is aware of a dangerous condition not readily discoverable by the plaintiff but it does not apply to an obvious dangerous condition equally observable by plaintiff․” 

What about an abundance of caution?

If travel providers have additional knowledge about a resort or region with a history of potential violence or higher than normal risk that may not be general knowledge to the public or their clients, what is their obligation to share their concerns with their client—even if it may mean the undoing of a sale? 

Writing in the trade journal Travel Market Report, Paul Ruden, former executive vice-president for legal and industry affairs for the American Society of Travel Agents, states: “The general view in court opinions is now well established. The travel advisor is a fiduciary in relation to his client, and thus, has heightened responsibility to take care of the client. There is no denying the risk that judges and juries may be influenced by the recent reporting and may hold professional travel advisors responsible for failure to warn.” He writes further: “All things considered, were I in the retail business, I would remind all clients of the basic rules of self-care when traveling to destinations with which they have little or no familiarity.  I would apply this approach most rigorously if there were recent reports of particular acts of violence, sexual or otherwise, involving tourists.”


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