United States District Court, D. Delaware
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,
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, VERIZON WIRELESS, INC., VERIZON WIRELESS VAW, LLC, and VERIZON WIRELESS SERVICES, LLC, Defendants.
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge
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.
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
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 ¶
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"). (D.I. 13) On April 24, 2019, defendants
filed the instant motion to stay and compel arbitration.
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,  intentional and
negligent infliction of emotional distress in Count IV, and
willful, wanton, outrageous misconduct in Count V.
(Id. at ¶¶ 37-76)
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)
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)
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)
The Customer Agreement
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."
Customer Agreement included the following language regarding
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 ...