UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OTTILIE MORRIS, Individually and
as Executrix of the Estate of Roy
I. Morris,
Plaintiff-Appellant,
                                                                             No. 99-55092
v.
                                                                             D.C. No.
PRINCESS CRUISES, INC.; AMERICAN
                                                                             CV-97-04315-CAS
INTERNATIONAL ASSISTANCE SERVICE,
INC.; NATIONAL UNION FIRE                                  OPINION
INSURANCE COMPANY OF
PITTSBURGH, PA; BERKELYCARE
LIMITED; CRUISE CONSULTANTS,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding

Argued and Submitted
October 2, 2000--Pasadena, California

Filed January 10, 2001

Before: Diarmuid F. O'Scannlain, Ferdinand F. Fernandez
and Johnnie B. Rawlinson, Circuit Judges

Opinion by Judge O'Scannlain

_________________________________________________________________
 

COUNSEL

Sharon S. McCally, Moore & McCally, P.C., Houston, Texas,
for the plaintiff-appellant.

Elsa M. Ward, Kaye, Rose & Partners, LLP, San Francisco,
California, for defendant-appellee Princess Cruises, Inc.

Michael F. Bell, Galton & Helm, Los Angeles, California, for
defendants-appellees American International Assistance Ser-
vice, Inc., National Union Fire Insurance Company of Pitts-
burgh, PA, and Berkelycare Ltd.

_________________________________________________________________

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the federal court had removal
jurisdiction over an action brought by a passenger against a
cruise line and insurance companies alleging various tort and
contract claims arising out of events in the port city of Bom-
bay, India, and, if so, whether these claims were properly dis-
missed on summary judgment.

                               371
 

I

Ottilie Morris ("Mrs. Morris") appeals the district court's
dismissal on summary judgment of her tort and contract
claims against Princess Cruises, Inc. ("Princess") and Ameri-
can International Assistance Service, Inc., National Union
Fire Insurance Company of Pittsburgh, PA, and BerkelyCare
Limited (collectively, the "Insurers"). These claims arose out
of a Princess cruise that Mrs. Morris and her late husband,
Roy I. Morris ("Mr. Morris"), took from Athens to Bombay
in November 1995.

In June 1995, Mr. and Mrs. Morris, who had taken a num-
ber of Princess cruises in the past, made reservations for a
Princess "Holy Lands" cruise through Cruise Consultants Co.
("Consultants"), a travel agency based in San Antonio, Texas.
At the same time, the Morrises purchased an excess insurance
policy known as "Love Boat Care" (the "Policy") adminis-
tered by BerkelyCare and underwritten by National Union
Fire Insurance Co. The Policy's designated emergency assis-
tance provider was American International Assistance Ser-
vice, Inc. ("AIAS"). The Policy's benefits included, inter alia,
$25,000 coverage for emergency evacuation "to the nearest
hospital where appropriate medical treatment can be
obtained" and round-trip economy airfare for a family mem-
ber traveling with the insured; $10,000 medical expense cov-
erage for illness; worldwide emergency telephone assistance
so that "English-speaking help and advice may be furnished";
and emergency medical assistance to help locate the "nearest
qualified medical facility" and to provide up to a $1000
advance payment to a hospital if needed to admit the insured.
The Policy's Description of Coverage contained the following
caveat:

      Note that the problems of distance, information and
      communications make it impossible for National
      Union Fire Insurance Company, BerkelyCare Ltd,
      Princess or its assistance service provider to assume

                               372
 

      any responsibility for the availability, quality, use, or
      results of any emergency service. In all cases, you
      are still responsible for obtaining, using, and paying
      for your own required services of all types.

In November 1995, the Morrises departed from Athens
aboard the Island Princess for a 28-day cruise to Singapore by
way of Bombay. On November 22, Mr. Morris, who had a
history of heart disease, contracted pneumonia and was admit-
ted to the ship's medical center under the care of the ship's
physician, Dr. Katrina Lewis ("Dr. Lewis"). Given the seri-
ousness of Mr. Morris's condition, Dr. Lewis believed that he
should be evacuated as soon as possible to a land-based inten-
sive care unit ("ICU"). She spoke with the ship's captain
about the possibility of arranging for helicopter evacuation or
diverting the ship to the nearest port, but was told that the ship
was outside the range of any emergency medical helicopters
and too far from appropriate medical facilities. Thus, the ship
proceeded full speed to Bombay.

On November 24, Dr. Lewis contacted AIAS, the emer-
gency assistance provider under Mr. Morris's Policy. Dr.
Lewis informed AIAS that she would arrange for Mr. Morris
to be air evacuated by AEA, International ("AEA") to Singa-
pore as soon as the ship reached port in Bombay and that
AIAS's assistance would not be necessary. AEA is the only
emergency evacuation assistance provider that Princess
Cruises employs in that region and the provider that Dr.
Lewis was specifically instructed to use by her supervisors.
According to uncontradicted testimony, AEA has a reputation
for being a very reliable emergency assistance provider. AIAS
monitored Mr. Morris's condition and faxed its approval of
the air evacuation plan to AEA with a guarantee for the full
$25,000 policy limit for emergency evacuation. AEA repre-
sented to Dr. Lewis and AIAS that it would have a jet ready
to evacuate Mr. Morris to Singapore upon his arrival in Bom-
bay.

                               373
 

The ship reached port in Bombay in the early morning
hours of November 27. An AEA-affiliated physician, one Dr.
Mehra, came aboard and examined Mr. Morris. AEA appar-
ently represented to Dr. Lewis that Dr. Mehra was a specialist
in aviation medicine. After the examination, Dr. Mehra
expressed his concern for Mr. Morris's oxygenation in the
event that the plane lost cabin pressure during the flight to
Singapore and recommended that the flight be delayed until
Mr. Morris could be stabilized.

With this change in plans, it was agreed that Dr. Mehra
would take Mr. Morris to a Bombay ICU by ambulance. The
ambulance Dr. Mehra provided was woefully deficient. It was
not equipped with any medical supplies or devices of any kind
--including oxygen. It was also filthy, as was the stretcher
onto which Mr. Morris was placed. Dr. Lewis herself testified
that the ambulance was not appropriate for taking Mr. Morris
to a hospital facility and expressed her concerns to Dr. Mehra,
who replied that this was the only ambulance available. Rely-
ing on AEA's chosen physician, Dr. Lewis turned treatment
of Mr. Morris over to Dr. Mehra, having first provided Mr.
Morris with oxygen and blankets from the ship's medical cen-
ter.

After a two-hour ambulance trip through Bombay, Dr.
Mehra transported Mr. Morris to the Aradhana Intensive Care
and Nursing Home. Mrs. Morris testified to the wretched con-
ditions prevailing at the Aradhana facility. There was half an
inch of urine on the floor; flies and roaches were everywhere.
There was no medical equipment of any kind there. Mrs. Mor-
ris pleaded with Dr. Mehra to transfer her husband to a regu-
lar hospital. Dr. Mehra agreed, but demanded $1,200, which
Mrs. Morris immediately handed over. After spending
approximately six hours at the nursing home, Mr. Morris was
transferred to Breach Candy Hospital in Bombay.

Meanwhile, AIAS attempted to contact Mrs. Morris to help
her find hotel accommodations and to assist in having money

                               374
 

wired to her from her family in the United States. According
to Mrs. Morris, she checked in to the Hotel Shalimar at the
recommendation of AIAS. During her stay there, she was
assaulted and some of her personal belongings were stolen.
She was also accosted by Dr. Mehra again, who demanded an
additional $900, which Mrs. Morris refused to pay.

Mr. Morris was treated at Breach Candy for 14 days, and
Mrs. Morris was pleased with the care Mr. Morris received
there. On December 10, 1995, Mr. Morris was deemed fit to
fly home to Texas. AIAS arranged for a first-class flight back
to San Antonio for both Mr. and Mrs. Morris and provided a
medical escort for the trip, as well. Mr. Morris arrived home
feeling better and did not seek out medical attention for a cou-
ple of days. On December 15, Mr. Morris suffered a fatal
heart attack during an angioplasty procedure. Cause of death
was listed as severe coronary artery disease.

Mrs. Morris submitted a claim under the Policy in the
amount of $16,592 for trip cancellation, loss of her personal
belongings at the Hotel Shalimar, and hotel, meals and trans-
portation while in Bombay. She submitted a second claim of
$7,057.72 for medical expenses, including the $1,200 she paid
to Dr. Mehra. Based on their currency conversion table and
pursuant to policy limitations not at issue here, the Insurers
paid Mrs. Morris $12,593.62, including $4,705.39 for her
medical expenses, which included the $1,200 cash payment to
Dr. Mehra. The Insurers paid an additional $16,596.29 for Mr.
Morris's air evacuation from Bombay to Texas. Mrs. Morris
no longer disputes the amount of the Insurers' payments on
her claims.

On May 2, 1996, Mrs. Morris filed a wrongful death claim
against Princess and a claim of negligent misrepresentation
against Consultants. She alleged that Princess failed to pro-
vide adequate care for Mr. Morris aboard the Island Princess;
failed to arrange for Mr. Morris to be transferred to a proper
medical facility; failed to maintain contact with the Morrises

                               375
 

while they were in Bombay; failed to provide air transfer of
Mr. Morris to Singapore as promised; and failed to have poli-
cies and procedures for proper health care and safe evacuation
and subsequent care for passengers who become ill while in
the "care and custody" of Princess. She alleged that Princess
thereby breached its duty of care to Mr. Morris and that such
breach was a proximate cause of his death. She also alleged
that Consultants falsely represented that Princess Cruises was
"a reputable cruise line and that passengers in their care
would be safely and adequately served."

Princess and Consultants removed to the United States Dis-
trict Court for the Western District of Texas based on diver-
sity jurisdiction, 28 U.S.C. S 1332, federal question
jurisdiction, 28 U.S.C. S 1331, admiralty jurisdiction, 28
U.S.C. S 1333, and the Death on the High Seas Act
(DOHSA), 46 U.S.C. S 761. Mrs. Morris brought a motion to
remand, contending that the presence of Consultants, a citizen
of Texas for purposes of diversity, defeated complete diver-
sity; that admiralty claims filed in state court in the first
instance are non-removable; and that DOHSA claims filed in
state court are likewise non-removable because the DOHSA
sounds in admiralty. Mrs. Morris submitted an affidavit along
with her motion to remand in which she expressly maintained
that neither she nor her husband at any time "discussed the
quality or nature of medical care provided on board Princess
Cruise Lines ships" with Consultants, as they were "both in
perfect health and had no need for this information. " On
March 26, 1997, the district court denied Mrs. Morris's
motion to remand, concluding that Consultants was fraudu-
lently joined and hence that the court had removal jurisdiction
based on diversity of citizenship. On January 30, 1997, while
her motion to remand was still pending, Mrs. Morris filed her
unopposed First Amended Original Complaint, in which she
joined the Insurers, stating claims against them for negli-
gence, breach of contract, breach of the Texas Insurance
Code, and violations of the Deceptive Trade Practices Act. On
April 11, 1997, Mrs. Morris filed her Second Amended Com-

                               376
 

plaint, in which she replaced her wrongful death claim against
Princess with claims alleging negligence (based on the same
alleged breaches as recited in her original state court com-
plaint), gross negligence, breach of contract and breach of
warranty. She also restated her previous claims against the
other parties.

Pursuant to a forum selection clause contained in the Mor-
rises' cruise tickets, venue was transferred to the Central Dis-
trict of California. On March 16, 1998, Consultants was
dismissed from the action under Fed. R. Civ. Proc.S 12(b)(6)
for failure to state a claim. On October 30, 1998, the District
Court granted summary judgment for Princess and the Insur-
ers on all claims.

II

We must first decide whether the district court properly
acquired and retained removal jurisdiction over this action.

A

[1] The district court held that it had removal jurisdiction
based on diversity of citizenship. 28 U.S.C. S 1332(a)(1). Sec-
tion 1332 requires complete diversity of citizenship; each of
the plaintiffs must be a citizen of a different state than each
of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68
(1996). Nevertheless, one exception to the requirement of
complete diversity is where a non-diverse defendant has been
"fraudulently joined."

[2] Fraudulent joinder, we have noted,"is a term of art."
McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th
Cir. 1987). Joinder of a non-diverse defendant is deemed
fraudulent, and the defendant's presence in the lawsuit is
ignored for purposes of determining diversity, "[i]f the plain-
tiff fails to state a cause of action against a resident defendant,
and the failure is obvious according to the settled rules of the

                               377
 

state." Id. Further, the defendant "is entitled to present the
facts showing the joinder to be fraudulent." Id. Because Con-
sultants, like Mrs. Morris, is deemed a citizen of Texas for
purposes of diversity jurisdiction, its presence in the lawsuit
at the time of removal defeated diversity jurisdiction unless it
was fraudulently joined.

[3] Mrs. Morris sued Consultants for negligent misrepre-
sentation. To state a claim for negligent misrepresentation
under Texas law, the plaintiff must establish (1) the represen-
tation is made by a defendant in the course of his business; (2)
the defendant supplies "false information" for the guidance of
others in their business; (3) the defendant did not exercise rea-
sonable care or competence in obtaining or communicating
the information; and (4) the plaintiff suffers pecuniary loss by
justifiably relying on the representation. Federal Land Bank
Ass'n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).
The "false information" supplied must be a misrepresentation
of a "material fact." McCamish, Martin, Brown & Loeffler v.
F.E. Appling Interests, 991 S.W.2d 787, 794 (Tex. 1999).
Mere sales-talk or "puffing" is not actionable. Prudential Ins.
Co. of Am. v. Jefferson Assoc., Ltd., 896 S.W. 2d 156, 163
(Tex. 1995) (statements describing property to be "superb" or
"super fine" were non-actionable puffing). Whether a state-
ment is an actionable statement of "fact" or mere "puffing"
depends upon a number of factors, including the statement's
specificity, the speaker's knowledge, the comparative levels
of the speaker's and the hearer's knowledge, and whether the
statement relates to the present or the future. Transp. Ins. Co.
v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995). We have
noted that a "material fact" is one that would be likely to
affect the conduct of a reasonable person with reference to the
transaction in question. French v. Merrill Lynch, Pierce, Fen-
ner & Smith, Inc., 784 F.2d 902, 905-06 (9th Cir. 1986).

[4] In her original state court complaint, Mrs. Morris
alleged that Mr. Jay Silberman, owner of Consultants, recom-
mended the Princess Holy Lands cruise to the Morrises and

                               378
 

"represented that Princess Cruises, Inc . . . was a reputable
cruise line and that passengers in their care would be safely
and adequately served." Such an allegation fails to state a
claim for negligent misrepresentation against Consultants and
the failure is obvious according to settled law. Silberman's
alleged statement is devoid of any meaningful specificity,
amounting at most to a general recommendation of Princess
akin to mere puffing. Further, the Morrises had sailed on Prin-
cess cruises in the past and were familiar with the services
and amenities Princess offered; thus, they could not have rea-
sonably relied upon such statement in any event. The obvi-
ously non-actionable nature of Silberman's statement is
highlighted by Mrs. Morris's own affidavit that accompanied
her motion to remand. Mrs. Morris specifically denied that
she ever discussed "the quality or nature of medical care pro-
vided on board Princess Cruise Lines ships with Mr. Silber-
man." In light of Mrs. Morris's own admission, it is
abundantly obvious that she could not possibly prevail on her
negligent misrepresentation claim against Consultants. See
Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256,
263 (5th Cir. 1995) ("[F]raudulent joinder claims may be
resolved by `piercing the pleadings' and considering summary
judgment-type evidence such as affidavits and deposition tes-
timony." (citations omitted)). Consultants's joinder as a
defendant in this action was correctly ignored by the district
court and removal was proper based on diversity of citizen-
ship.

B

[5] We must next determine if the district court retained
jurisdiction over this action. After the case was removed to
federal court, and while her motion to remand was still pend-
ing, Mrs. Morris amended her complaint to join the Insurers
as additional defendants. AIAS and National Union Fire
Insurance Co. of Pittsburgh are, like Mrs. Morris, deemed cit-
izens of Texas for purposes of diversity jurisdiction. Once
removal has occurred, the district court has two options in

                               379
 

dealing with an attempt to join a non-diverse party. 28 U.S.C.
S 1447(e) provides that "[i]f after removal the plaintiff seeks
to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or per-
mit joinder and remand the action to the State court." New-
combe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998).
Here, the district court did neither, permitting joinder of the
non-diverse parties while retaining jurisdiction over the
action. If diversity were the only basis for the court's subject
matter jurisdiction, joinder of the non-diverse Insurers would
have divested the court of jurisdiction. Desert Empire Bank v.
Ins. Co. of N. Am., 623 F.2d 1371, 1374, 1377 (9th Cir. 1980)
(permissive joinder of nondiverse defendant following
removal to federal court divested court of subject matter juris-
diction).

[6] The presence of the Insurers in this action destroyed the
district court's diversity jurisdiction, but not its original sub-
ject matter jurisdiction. By failing to request a remand based
on the joinder of the non-diverse Insurers, Mrs. Morris has
waived whatever defect in the court's removal jurisdiction
their presence in the action created. The Supreme Court has
held that removal jurisdiction, unlike original subject matter
jurisdiction, can, in fact, be waived. In Grubbs v. Gen. Elec.
Credit Corp., 405 U.S. 699 (1972), the Court held that "where
after removal a case is tried on the merits without objection
and the federal court enters judgment, the issue in subsequent
proceedings on appeal is not whether the case was properly
removed, but whether the federal district court would have
had original jurisdiction of the case had it been filed in that
court." Id. at 702. The District Court's grant of summary
judgment implicates the rule in Grubbs. See Local Union 598
v. J.A. Jones Constr. Co., 846 F.2d 1213, 1215 (9th Cir.1988)
(Grubbs doctrine applies where a district court has entered
summary judgment disposing of the merits of a case).

[7] The district court would have had original jurisdiction
over this case had it been brought initially in federal court

                               380
 

because Mrs. Morris's claims against Princess would have
invoked the court's admiralty jurisdiction.1 Throughout the
proceedings before the district court, Princess repeatedly sub-
mitted that federal maritime law provided the substantive law
controlling Mrs. Morris's claims. Mrs. Morris did not, and
indeed could not, argue otherwise. The district court specifi-
cally held that "federal maritime law governs this action," cit-
ing Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 628 (1959) (holding that federal maritime law
applies to a claim for breach of duty to a passenger of a cruise
ship sailing in navigable waters). In fact, the district court
held that Mrs. Morris's breach of warranty claim based on
California Commercial Code SS 2314-15 was preempted by
federal maritime law. Mrs. Morris has not appealed this por-
tion of the district court's ruling.

Because Mrs. Morris's claims against Princess arise under
maritime law, they would have invoked the court's admiralty
jurisdiction had she brought them originally in federal court.
28 U.S.C. S 1333. Appellant's claims against the Insurers,
assuming arguendo that they do not sound in admiralty,
would have been properly before the court based on supple-
mental jurisdiction, as they form part of the same "case or
controversy" involving Mrs. Morris's claims against Princess.
28 U.S.C. S 1367(a).

Mrs. Morris, of course, instead brought her maritime claims
in state court, as was her right under the "saving to suitors"
clause of 28 U.S.C. S 1333.2 Courts have held that saving
clause claims brought in state court are not removable under
_________________________________________________________________
1 Indeed, it is notable that throughout her opening and reply briefs, Mrs.
Morris only contests the court's removal jurisdiction rather than the
court's subject matter jurisdiction.
2 28 U.S.C. S 1333 provides, in pertinent part, "The district courts shall
have original jurisdiction, exclusive of the courts of the States, of: (1) Any
civil case of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled." 28 U.S.C.
S 1333 (emphasis added).

                               381
 

28 U.S.C. S 1441 absent some other jurisdictional basis, such
as diversity or federal question jurisdiction. See Romero v.
Int'l Terminal Operating Co., 358 U.S. 354, 371 (1959); Alle-
man v. Bunge Corp., 756 F.2d 344, 345-46 (5th Cir.1984). At
the same time, courts have held that a state plaintiff may
waive the improper removal of a savings clause claim. In
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540 (5th Cir. 1991),
the Fifth Circuit held that the plaintiffs' failure to object to the
removal of their saving clause claims due to lack of removal
jurisdiction, e.g., lack of independent diversity or federal
question jurisdiction, waived the objection under the Grubbs
rule. See id. at 1543-45. The court reasoned that the federal
court would have had original jurisdiction over the claim in
the first instance; only the removal proceedings, which "are
in the nature of process," were defective. See id. at 1545
(quoting Mackay v. Uinta Dev. Co., 229 U.S. 173, 176
(1913)). See also In re Digicon Marine, Inc., 966 F.2d 158,
160 (5th Cir. 1992) (plaintiff waived improper removal of
saving clause claim); Dao v. Knightsbridge Int'l Reinsurance
Corp., 15 F. Supp. 2d 567, 572 (D.N.J. 1998) (same); Benja-
min v. Natural Gas Pipeline Co. of Am., 793 F. Supp. 729,
732 (S.D.Tex. 1992) (same). Today, we follow the reasoning
of the Fifth Circuit in holding that the district court's removal
jurisdiction is not destroyed where the plaintiff fails to seek
remand, pursuant to 28 U.S.C. S 1447(e), of claims falling
within the court's admiralty jurisdiction.3
_________________________________________________________________
3 We note that it is not at all clear whether Mrs. Morris would have been
entitled to a remand pursuant to S 1447(e) even if she had expressly
sought it based on her joinder of the non-diverse defendants. Section
1447(e) suggests that remand is proper only if the court joins non-diverse
defendants whose presence destroys the court's "subject matter jurisdic-
tion," which is not the case here given that Mrs. Morris's claims against
Princess would have invoked the court's admiralty jurisdiction. We need
not reach this issue, as Mrs. Morris has waived it in any event.

                               382
 

C

[8] Because Consultants was fraudulently joined, removal
was initially proper based on diversity. Mrs. Morris's subse-
quent joinder of the non-diverse Insurers thereupon defeated
the court's diversity jurisdiction, but she failed to move for a
remand on this basis. Because the district court would have
had original jurisdiction over this action had Mrs. Morris filed
suit in federal court in the first instance, her failure to move
for remand pursuant to 28 U.S.C. S 1447(e) upon joining the
non-diverse defendants waived any possible objection to
removal jurisdiction under Grubbs.

III

We must next decide whether the district court properly
granted Princess and the Insurers summary judgment on all
claims.

A

[9] On appeal, Mrs. Morris contends that the district court
improperly granted Princess summary judgment on her negli-
gence claim. To recover for negligence, a plaintiff must estab-
lish: (1) duty; (2) breach; (3) causation; and (4) damages. Mrs.
Morris has failed to provide any evidence that Princess's
alleged breach of duty to the Morrises was the proximate
cause of any legally cognizable damages that they suffered.
W. Page Keeton et al., Prosser and Keeton on the Law of
Torts S 30, at 164-65 (5th ed. 1984).

Although Mrs. Morris's theory of the case has undergone
considerable change since she first filed suit for wrongful
death in 1996, she now contends that Princess, through Dr.
Lewis, negligently surrendered her and her husband to Dr.
Mehra and abandoned her in Bombay, thereby causing three
discrete types of damage: (1) she had to pay $1,200 to Dr.
Mehra to have her husband transferred to Breach Candy hos-

                               383
 

pital; (2) she was assaulted at the Hotel Shalimar; and (3) she
and her husband suffered emotional distress resulting from
their harrowing ambulance ride and experience at the Arad-
hana facility.

None of these alleged bases supports Mrs. Morris's claim.
The Insurers have already reimbursed Mrs. Morris for the
$1,200 Dr. Mehra extorted from her. Her assault at the Hotel
Shalimar by unknown assailants was not proximately caused
by any alleged negligence on the part of Princess but by the
intervening actions of third parties. Mrs. Morris does not
allege that Princess arranged for her to stay there, nor does
she claim that she asked Princess to make any other hotel
arrangements for her. Finally, Princess cannot be responsible
for the Morrises' emotional distress suffered at the hands of
Dr. Mehra--to the extent that this could even constitute
legally cognizable damage in the first place, which is doubt-
ful. Mrs. Morris has adduced no evidence suggesting that
either Princess or Dr. Lewis was negligent in relying on AEA
or its chosen physician. By all accounts, AEA had a reputa-
tion as a quality emergency assistance provider. While Dr.
Lewis allowed Mr. Morris to be transported in an inadequate
ambulance, Dr. Lewis was informed that no other ambulance
was available and Mrs. Morris has failed to adduce any facts
rebutting this evidence. In short, Mrs. Morris has failed to
adduce any evidence suggesting that any possible breach of
duty on the part of Princess caused harm to the Morrises.
Summary judgment for Princess on Mrs. Morris's negligence
claim was, therefore, appropriate.4

B

[10] Mrs. Morris contends that the district court improperly
dismissed on summary judgment her claims against the Insur-
ers for breach of contract, breach of the Texas Insurance
_________________________________________________________________
4 In her opening brief, Mrs. Morris does not contest the district court's
grant of summary judgment in favor of Princess on her other claims.

                               384
 

Code, and violations of the Deceptive Trade Practices Act.
All three claims are premised on the notion that the Insurers
did not give the Morrises the "benefit of the bargain" of the
Policy and materially misrepresented the Policy's benefits.

It should be noted initially that Mrs. Morris does not dis-
pute that the Insurers reimbursed her appropriately under the
Policy for her various claims. Rather, she contends that the
Insurers did not provide the type of emergency assistance care
promised. In particular, Mrs. Morris claims that the $1,200
payment demanded by Dr. Mehra constituted a hospital
admission fee which the Insurers were obligated to prepay
under the Policy and that AIAS abandoned the Morrises in
breach of the Policy's promised benefit of worldwide emer-
gency assistance to help the insured find the nearest appropri-
ate medical facility and accommodations. These claims are
without merit.

With respect to Mrs. Morris's $1,200 payment to Dr.
Mehra, even if this could be characterized as a hospital admis-
sion charge rather than as simple criminal extortion, there is
no way that the Insurers could have prepaid this sum. Mrs.
Morris, according to her own testimony, paid Dr. Mehra this
sum immediately. She never asked the Insurers to prepay it.
Instead, she requested, and received, reimbursement for this
payment from the Insurers.

[11] Further, AIAS was not responsible for the Morrises'
ordeal at the hands of Dr. Mehra. AIAS's only involvement
with the arrangements for Mr. Morris's evacuation from the
ship was to guarantee payment of $25,000 for such evacua-
tion, as provided under the Policy. AIAS did not assume, was
not asked to assume, and was not obligated to assume respon-
sibility for arranging Mr. Morris's evacuation from the ship.
In fact, Dr. Lewis specifically instructed AIAS that AEA was
in charge of such arrangements. In no way did the policy obli-
gate AIAS to perform such service itself or to assume liability
for the inadequate care the Morrises received from AEA. In

                               385
 

fact, the Policy contained a caveat that specifically recited that
the Insurers could not be responsible for the quality of medi-
cal services that the insured receives.

[12] Finally, according to Mrs. Morris's own testimony,
AIAS was in contact with Mrs. Morris and reserved her a
room at the Hotel Shalimar. The fact that Mrs. Morris was
assaulted at the hotel, without more, does not in any way
demonstrate that AIAS failed to provide adequate emergency
assistance. The record is bereft of any evidence suggesting
that AIAS should have foreseen that Mrs. Morris might be
assaulted at the hotel or was otherwise negligent in arranging
for her stay there. As it was, AIAS monitored the Morrises'
status in Bombay frequently, facilitated the transfer of funds
from family members to Mrs. Morris, and arranged and paid
for the Morrises' first class flight back to San Antonio with
a medical escort. Mrs. Morris has failed to assert a single ben-
efit under the Policy that she was entitled to, but did not,
receive.

IV

Although the Morrises suffered a harrowing experience in
Bombay, Mrs. Morris has failed to adduce any genuine dis-
pute of material fact suggesting that Princess or the Insurers
are liable for any legally cognizable injury she suffered.
Accordingly, the district court's judgment granting Princess
and the Insurers summary judgment on all claims is

AFFIRMED.

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