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Maxwell v. Cellco Partnership

United States District Court, D. Delaware

October 30, 2019

DAVID S. MAXWELL, DAVID S. MAXWELL, INDIVIDUALLY, AND AS THE EXECUTOR OF THE ESTATE OF VICKI MAXWELL, DECEASED, ERIN PATTON, DANA CHRNYZANOSKI, ROSLYN DAVIS, and DERWOOD DAVIS, Plaintiffs,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, VERIZON WIRELESS, INC., VERIZON WIRELESS VAW, LLC, and VERIZON WIRELESS SERVICES, LLC, Defendants.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge

         I. INTRODUCTION

         Presently before the court in this personal injury and wrongful death action is a motion to stay and compel arbitration filed by defendants Cellco Partnership d/b/a Verizon Wireless ("Cellco"), Verizon Wireless, Inc. ("Verizon Wireless"), Verizon Wireless (VAW), LLC ("VAW"), and Verizon Wireless Services, LLC ("VWS") (collectively, "Verizon"). (D.I. 15) For the reasons that follow, the court recommends GRANTING Verizon's motion.[1]

         II. BACKGROUND

         a. The Parties

         Vicki Maxwell ("Mrs. Maxwell" or "the decedent") sustained injuries resulting in her death in January of 2018, following the crash of a single engine aircraft in which she was a passenger. (D.I. 13 at ¶¶ 7, 30-32) Plaintiffs include the surviving family members of the decedent as follows: decedent's widower and administrator of her estate, David Maxwell ("Mr. Maxwell"), decedent's daughters, Erin Patton ("Ms. Patton") and Dana Chrnyzanoski ("Ms. Chrnyzanoski"), and decedent's parents, Roslyn Davis ("Mrs. Davis") and Derwood Davis ("Mr. Davis") (collectively, "plaintiffs"). (Id. at ¶¶ 7-11) Mr. Maxwell, Ms. Patton, and Ms. Chrnyzanoski are residents of Ohio. (Id. at ¶¶ 6, 8-9) Mr. and Mrs. Davis are residents of Illinois. (Id. at ¶¶ 10-11)

         Cellco is a general partnership existing under the laws of Delaware. (Id. at ¶ 12) Verizon Wireless is a Delaware company. (Id. at ¶ 13) VAW is a Delaware limited liability company. (Id. at ¶ 15) VWS is a Delaware limited liability company. (Id. at ¶ 14)

         b. Procedural History

         On January 28, 2019, plaintiffs originally filed this personal injury and wrongful death action. (D.I. 1) On March 22, 2019, defendants filed a motion to stay and compel arbitration. (D.I. 8) On April 11, 2019, plaintiffs filed an amended complaint (the "First Amended Complaint").[2] (D.I. 13) On April 24, 2019, defendants filed the instant motion to stay and compel arbitration. (D.I. 15)

         c. Facts

         This action arises from defendants' alleged failure to timely locate Mr. and Mrs. Maxwell's cell phone signals following an aircraft crash. Plaintiffs allege that as a result of defendants' failure, Mrs. Maxwell died from hypothermia. (D.I. 13 at ¶¶ 26-36) Plaintiffs have asserted four claims against the defendants: negligence in Count I, misrepresentation in Count III, [3] intentional and negligent infliction of emotional distress in Count IV, and willful, wanton, outrageous misconduct in Count V. (Id. at ¶¶ 37-76)

         On January 30, 2018, Mr. Maxwell piloted a single engine Beech 35-A33 Debonair aircraft and Mrs. Maxwell was the front seat passenger. (Id. at ¶ 19) At approximately 1:55 p.m., the aircraft was last detected before it went off radar. (Id. at ¶ 20) The aircraft experienced an engine failure and crashed in a remote wooded area in eastern Tennessee. (Id. at ¶ 21) Mr. and Mrs. Maxwell suffered injuries upon impact and were unable to leave the aircraft. (Id. at ¶¶ 22-23)

         Ms. Patton subsequently notified law enforcement authorities of the missing aircraft. (Id. at ¶ 24) The signal from the aircraft's emergency locater transmitter could not be detected, but Mr. and Mrs. Maxwell had their activated cell phones at the time of the accident. (Id. at ¶¶ 25-26) Ms. Patton contacted defendants and requested that they disclose the location of the cell phone signals emitted from Mr. and Mrs. Maxwell's cell phones. (Id. at ¶ 27) Ms. Patton explained that Mr. and Mrs. Maxwell were in an emergency situation and rescue efforts were dependent on information locating their aircraft. (Id.) Defendants did not provide location information and instructed Ms. Patton to call again after midnight. (Id. at ¶ 28) When Ms. Patton called the defendants at midnight, the Verizon facility was not in service. (Id. at ¶ 29)

         Over the course of the night, Mrs. Maxwell died from hypothermia. (Id. at ¶ 31) First responders found the aircraft and Mr. and Mrs. Maxwell at 8:00 a.m. on January 31, 2018. (Id. at ¶ 32)

         d. The Customer Agreement

         Ms. Patton established the Verizon cell phone account at issue on March 11, 2013, changing what had been a business account to a personal account which included Ms. Patton, Mr. Maxwell, and Mrs. Maxwell. (D.I. 17, Ex. A; Ex. B-l) On March 14, 2013, Verizon sent Ms. Patton a letter confirming that she activated service for one of the cell phones on the personal account. (D.I. 17, Ex. B-l) A copy of the My Verizon Wireless Customer Agreement (the "Customer Agreement") was attached to this letter. (Id.) The Customer Agreement stated that a customer accepts every term of the agreement "whether or not [he or she has] read it" if the customer: (1) "agree[s] in writing, by email, over the phone, or in person;" (2) "open[s] a package that says [he or she is] accepting by opening it;" or (3) "actvat[es] [his or her] service." (Id.)

         The Customer Agreement included the following language regarding dispute resolution:[4]

YOU AND VERIZON WIRELESS BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. THERE'S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ...

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