Calderon v. Sixt Rent A Car, LLC

• Decision Date: 14 July 2021
• Docket Number: No. 20-10989,20-10989
• Parties: Philippe CALDERON, on behalf of themselves and all others similarly situated, Ancizar Marin, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees, v. SIXT RENT A CAR, LLC, Defendant - Appellant, Sixt Franchise USA, LLC, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

5 F.4th 1204

Philippe CALDERON, on behalf of themselves and all others similarly situated, Ancizar Marin, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees,

v.SIXT RENT A CAR, LLC, Defendant - Appellant,Sixt Franchise USA, LLC, Defendant.

No. 20-10989

United States Court of Appeals, Eleventh Circuit.

July 14, 2021

Brian W. Warwick, Janet R. Varnell, Varnell & Warwick, PA, Tampa, FL, for Plaintiff-Appellee Philippe Calderon.

Brian W. Warwick, Janet R. Varnell, Varnell & Warwick, PA, Tampa, FL, Karla Gilbride, Public Justice, PC, Washington, DC, for Plaintiff-Appellee Ancizar Marin.

Patrick M. Emery, FisherBroyles, LLP, Atlanta, GA, Irene Oria, FisherBroyles, LLP, Miami, FL. for Defendant-Appellant Sixt Rent a Car, LLC.

Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court, in which MARCUS, Circuit Judge, joined, and JILL PRYOR, Circuit Judge, joined in Parts I and II.

JILL PRYOR, Circuit Judge, filed a concurring opinion.

NEWSOM, Circuit Judge, filed a concurring opinion.

NEWSOM, Circuit Judge:

A customer making an airline, hotel, or car-rental reservation on Orbitz.com agrees to a contract that includes an arbitration provision. That provision requires the customer to arbitrate disputes related to, among other things, "any services or products provided." In this case, we must decide whether that phrase refers to services and products provided (1) by Orbitz or (2) by anyone. Reading the "any services or products provided" clause in the light of neighboring provisions and the larger contractual context—and applying a dose of common sense—we conclude that it refers only to services and products provided by Orbitz. Because the underlying dispute in our case doesn't relate to services or products provided by Orbitz, but only to those provided by Sixt Rent A Car, a company that does business through Orbitz, we will affirm the district court's denial of Sixt's motion to compel arbitration.

I

Ancizar Marin used Orbitz.com to book a rental car from Sixt. Toward the end of his reservation process with Orbitz, Marin clicked on a big "Reserve Now" button immediately below a statement that said, "By selecting to complete this booking I acknowledge that I have read and accept the ... Terms of Use." The words "Terms of Use" were accompanied by a hyperlink prompting Marin to read and accept them. Marin clicked "Reserve Now," indicating that he agreed to Orbitz's Terms of Use.

Orbitz's Terms of Use, which describe themselves as "constitut[ing] the entire agreement between [the customer] and Orbitz," contain a provision that mandates arbitration of certain disputes. This case turns on the meaning of that arbitration provision—and in particular its use of the word "Claims." The arbitration provision says that—

Any and all Claims will be resolved by binding arbitration, rather than in court .... This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us, including Suppliers, (which are the beneficiaries of this arbitration agreement).

The arbitration provision thus applies only to capital-C "Claims," which, importantly, the Terms of Use define as follows:

[A]ny disputes or claims relating in any way to [1] the Services, [2] any dealings with our customer service agents, [3] any services or products provided, [4] any representations made by us, or [5] our Privacy Policy.

Among the five categories of activities listed in the definition, this case centers on the third—"any services or products provided."

The Terms of Use also include several other provisions relevant to this case. First, the Terms of Use define capital-S "Services"—the first of the five "Claim[ ]" categories—to mean "the Web sites, mobile applications, call center agents, and other products and services provided by Orbitz, including any Content," and not "products or services that are provided by third parties." Second, the Terms of Use provide that, whenever a customer asserts a "Claim[ ]," he must "give [Orbitz] an opportunity to resolve" it "by contacting ‘Orbitz Legal: Arbitration Claim Manager’ " and then waiting 60 days before proceeding. And third, the Terms of Use explain that the "use" of "products or services that are provided by third parties, and that are available through a link from the Services ... is subject to the terms set forth by their respective owners or operations."

Marin had no complaints about any of his interactions with Orbitz, which by all accounts went smoothly. A few weeks after securing his reservation through Orbitz, Marin picked up his car from Sixt. When he did so, Marin signed an entirely separate agreement with Sixt—which, notably, didn't contain an arbitration provision. Marin drove the rental car and returned it (he says) damage-free. Later, though, Sixt sent him an email alleging that he had damaged the car, followed by a collection letter seeking more than $700.

Marin sued Sixt in federal court on behalf of a putative class of Sixt customers. Marin alleged that Sixt breached its own contract with him and violated two state consumer-protection statutes. He didn't sue Orbitz, nor did he complain of any wrongdoing by Orbitz or allege any violation of Orbitz's Terms of Use by anyone. His complaint mentioned Orbitz just once, in passing.

Sixt moved to compel arbitration of Marin's lawsuit. It didn't invoke its own contract—there being no arbitration provision in its contract to invoke—but rather Orbitz's Terms of Use. Sixt argued that when Marin accepted Orbitz's Terms of Use at the reservation stage, he agreed to arbitrate actions against Sixt concerning damage fees that it had imposed.

The district court denied Sixt's motion. The court held that Marin's lawsuit fell outside of the scope of the arbitration provision because the suit concerned Sixt's practices, not Orbitz's. Alternatively, it determined that Sixt had no authority to enforce the arbitration provision because it wasn't a third-party beneficiary of Orbitz's Terms of Use and didn't meet the conditions for equitable estoppel.

Sixt appealed the denial of its motion to compel arbitration.¹

II

A

The parties agree that Florida law governs our interpretation of Orbitz's contract. Under Florida law, the meaning of an arbitration provision is a "matter of contractual interpretation" and thus turns on the "intent of the parties to [the] contract, as manifested in the plain language of the arbitration provision and contract itself." Jackson v. Shakespeare Found., Inc. , 108 So. 3d 587, 593 (Fla. 2013).

Accordingly, we turn to the text of the arbitration provision in Orbitz's Terms of Use. Again, that provision says that—

Any and all Claims will be resolved by binding arbitration, rather than in court .... This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us, including Suppliers, (which are the beneficiaries of this arbitration agreement).

For our purposes, the key term in the arbitration provision is "Claims." The provision requires arbitration of "[a]ny and all Claims." So, on the one hand, if Marin's suit doesn't constitute a "Claim[ ]," then the provision doesn't compel arbitration here. On the other hand, if Marin's suit constitutes a "Claim[ ]," the provision does require arbitration here because the other preconditions are clearly satisfied—Sixt, as a company providing rental-car services through Orbitz, is either (or both) a "travel supplier[ ]" or a "compan[y] offering products or services through" Orbitz.

Because arbitrability turns entirely on whether Marin's suit constitutes a "Claim[ ]," we train our attention to the meaning of that word. The Terms of Use define "Claims" as follows:

[A]ny disputes or claims relating in any way to

[1] the Services,

[2] any dealings with our customer service agents, [3] any services or products provided,

[4] any representations made by us, or

[5] our Privacy Policy.

Our analysis will focus on the definition's third clause—"any services or products provided." Sixt's rental-car service, which gave rise to this dispute, doesn't fall within any of the other four "Claim[ ]" categories: Category (1), capital-S "Services," which (as already explained) are defined to mean Orbitz's own services; Category (2), "dealings with our [i.e ., Orbitz's own] customer service agents"; Category (4), "representations made by us [i.e ., Orbitz]"; or Category (5), "our [i.e. , Orbitz's own] Privacy Policy." Sixt contends, though, that its rental-car service fits squarely within Category (3)—"any services or products provided."

B

We disagree. Although its meaning is not perfectly pellucid or free from all doubt, we conclude that the phrase "any services or products provided" refers to services or products provided by Orbitz, not services or products by anyone. Accordingly, Sixt's rental-car service doesn't fall within the category of arbitrable "Claims."

We come to that conclusion for three principal reasons.

First, the other items in the series that includes the phrase "any services or products provided" indicate that it refers to services or products provided by Orbitz. Florida courts recognize the familiar rule of contract interpretation that "the meaning of particular terms may be ascertained by reference to other closely associated words." City of Homestead v. Johnson , 760 So. 2d 80, 84 (Fla. 2000). Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) ("When several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar."). As just explained, the Terms of Use define "Claims" as disputes relating to five categories of activity. The other four categories all indisputably describe spheres of Orbitz's own activities: (1) "Services,"...