Kinkel v. Cingular Wireless, LLC

• Decision Date: 02 May 2005
• Docket Number: No. 5-03-0774.,5-03-0774.
• Citation: 357 Ill. App.3d 556,293 Ill.Dec. 502,828 N.E.2d 812
• Parties: Donna M. KINKEL, Individually and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. CINGULAR WIRELESS, LLC, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

828 N.E.2d 812

357 Ill. App.3d 556

293 Ill.Dec. 502

Donna M. KINKEL, Individually and on Behalf of Others Similarly Situated, Plaintiff-Appellee, v. CINGULAR WIRELESS, LLC, Defendant-Appellant.

No. 5-03-0774.

Appellate Court of Illinois, Fifth District.

May 2, 2005.

Rehearing Denied May 18, 2005.

Evan M. Tager, David M. Gossett, Mayer, Brown, Rowe & Maw, LLP, Washington, DC; Kurt E. Reitz, Roman P. Wuller, Robert J. Wagner, Heath H. Hooks, Thompson Coburn, LLP, Belleville, for Appellant.

Charles W. Chapman, Charles W. Chapman Chartered, Wood River; Paul M. Weiss, Tod A. Lewis, Freed & Weiss, LLC, Chicago; L. Thomas Lakin, Bradley M. Lakin, Richard J. Burke, The Lakin Law Firm, P.C., Wood River; Phillip A. Bock, Diab & Bock, Chicago, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

The defendant, Cingular Wireless, LLC (Cingular), appeals an order denying its motion to compel arbitration and stay a class action suit against it pending arbitration. We find that the arbitration clause itself is enforceable; however, we conclude that the clause's limitation on class arbitration is unconscionable and thus unenforceable. Accordingly, we reverse and remand.

I. BACKGROUND

The defendant provides cellular telephone service. Pursuant to its service agreement, customers agree to maintain service with Cingular for specified periods of time or "service terms." If customers wish to cancel their service with Cingular prior to the end of their service term, the service agreement requires that they pay a $150 early-termination fee. It is this fee that is at issue in the underlying action.

The service agreement further provides as follows:

"INDEPENDENT ARBITRATION[.] Please read this paragraph carefully. It affects rights that you may otherwise have. (a) CINGULAR and you shall use our best efforts to settle any dispute or claim arising from or relating to this Agreement. * * * If CINGULAR and you do not reach agreement within 30 days, instead of suing in court, CINGULAR and you agree to arbitrate any and all disputes and claims (including but not limited to claims based on or arising from an alleged tort) arising out of or relating to this Agreement, or to any prior Agreement for products or service between you and CINGULAR * * *. * * * Except where prohibited by law, CINGULAR and you agree that no arbitrator has the authority to[ ](1) award relief in excess of what this agreement provides[,] (2) award punitive damages or any other damages not measured by the prevailing party's actual damages[,] or (3) order consolidation or class arbitration. The Arbitrator(s) must give effect to the limitations on CINGULAR's liability as set forth in this agreement, any applicable tariff, law, or regulation. * * * Notwithstanding the foregoing, either party may bring an action in small claims court."

Despite the language admonishing customers to "read this paragraph," the arbitration clause does not form a separate paragraph. Rather, it is contained in the middle of a long paragraph at the bottom of the 8-by 14-inch "TERMS AND CONDITIONS" page.

In July 2001, the plaintiff, Donna M. Kinkel, began receiving cellular service from the defendant. She chose a two-year service commitment, which meant that her service term was to end in July 2003. In April 2002, she notified the defendant that she wished to terminate her service. The defendant charged her the early-termination fee of $150, which she paid under protest.

On August 8, 2002, the plaintiff filed a class action lawsuit against the defendant, alleging that the early-termination fee constitutes both a breach of the service agreement and statutory fraud under the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)). On September 9, 2002, the cause was removed to federal court; however, on November 8, 2002, it was remanded to the trial court. On May 21, 2003, the defendant filed a motion to compel arbitration and stay the litigation. On September 11, 2003, the plaintiff filed her first amended complaint, and on September 12, the defendant filed a renewed motion to compel arbitration.

On October 28, 2003, the court held a hearing on the defendant's motion to compel arbitration, which it denied in a written order entered on November 10, 2003. The court found that the dispute at issue does not fall within the scope of the arbitration clause in the service agreement because (1) the plaintiff's complaint alleges fraud, to which this court found appraisal clauses to be inapplicable in Hanke v. American International South Insurance Co., 335 Ill.App.3d 1164, 270 Ill.Dec. 134, 782 N.E.2d 328 (2002), and Travis v. American Manufacturers Mutual Insurance Co., 335 Ill.App.3d 1171, 270 Ill.Dec. 128, 782 N.E.2d 322 (2002), (2) the parties could not have intended the arbitration clause to apply to the instant dispute due to the fact that it purports to limit the authority of arbitrators to award relief that would be available under the Consumer Fraud Act, and (3) the fact that the agreement allows claims such as the plaintiff's to be brought in small claims court indicates that the parties intended for those claims to be resolved by litigation. The court further found that the arbitration clause was unenforceable because (1) without the right to recover costs and attorney fees, the individual arbitration of claims such as the plaintiff's would be prohibitively expensive, (2) the clause purports to preclude relief available under the Consumer Fraud Act, and (3) the clause is unconscionable. The defendant filed a notice of interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (188 Ill.2d R. 307(a)(1)) on December 9, 2003.

II. ANALYSIS

We first consider the defendant's contention that the trial court improperly found that the instant dispute does not fall within the scope of the arbitration provision in its service agreement with the plaintiff. Our review is de novo. See Zobrist v. Verizon Wireless, 354 Ill.App.3d 1139, 1142, 290 Ill.Dec. 946, 822 N.E.2d 531, 536 (2004).

The defendant contends that the court below incorrectly concluded that our prior holdings in Hanke and Travis require a finding that the arbitration clause is inapplicable to a case involving allegations of fraud. Both Hanke and Travis revolved around the applicability of appraisal clauses in automobile insurance policies. Although this distinction alone does not render them per se inapplicable (see Travis, 335 Ill.App.3d at 1174, 270 Ill.Dec. 128, 782 N.E.2d at 324 (noting that appraisal clauses are enforceable in the same manner as arbitration clauses)), we agree with the defendant that they are distinguishable from the present case. In both Hanke and Travis, the plaintiffs argued, much as the plaintiff does here, that the appraisal clauses at issue were a part of a fraudulent scheme under which the defendant insurers underestimated the value of the total loss of insured vehicles. Hanke, 335 Ill.App.3d at 1169, 270 Ill.Dec. 134, 782 N.E.2d at 332; Travis, 335 Ill.App.3d at 1173, 270 Ill.Dec. 128, 782 N.E.2d at 324. Each insurance contract contained a clause providing that, in the event of a dispute over the value of the total loss of an insured vehicle, the parties would submit that dispute to an appraisal. Hanke, 335 Ill.App.3d at 1166, 270 Ill.Dec. 134, 782 N.E.2d at 329-30; Travis, 335 Ill.App.3d at 1173, 270 Ill.Dec. 128, 782 N.E.2d at 324. In each case, we held that the plaintiff's claim under the Consumer Fraud Act was beyond the scope of the appraisal clause.

In neither case was the plaintiff's allegation that the appraisal clause was a part of a fraudulent scheme central to our holding. In each case, we found that a resolution of the issues involved in the plaintiff's claims required far more than a determination of the actual cash value of the vehicles. Thus, we concluded that the issues could not be resolved through the appraisal process. Hanke, 335 Ill.App.3d at 1169, 270 Ill.Dec. 134, 782 N.E.2d at 332; Travis, 335 Ill.App.3d at 1177, 270 Ill.Dec. 128, 782 N.E.2d at 327. In Travis, we further explained that the plaintiff's claims required a determination of whether the defendant had defrauded her and breached the terms of her insurance policy. Travis, 335 Ill.App.3d at 1177, 270 Ill.Dec. 128, 782 N.E.2d at 327. Those determinations were beyond the scope of the appraisal clause, which was applicable, by its terms, only to disputes over the value of the insured vehicle. Here, by contrast, the arbitration clause states that it applies to "any and all disputes" arising from the service agreement, which is clearly broader than the appraisal clauses at issue in Hanke and Travis. Moreover, the appraisal process itself is not designed to answer questions of contract interpretation, while arbitrators are generally empowered to decide in the more informal context of arbitration the same types of questions courts regularly decide. See Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 453, 123 S.Ct. 2402, 2407, 156 L.Ed.2d 414, 423 (2003) (plurality opinion) (noting that arbitrators are "well situated" to answer questions of contract interpretation); Lundy v. Farmers Group, Inc., 322 Ill.App.3d 214, 219, 255 Ill.Dec. 733, 750 N.E.2d 314, 319 (2001) (explaining that an interpretation of contractual language "cannot be resolved through the appraisal process"); 15 Couch on Insurance 3d § 209:8 (1999) (noting the difference in scope between arbitration clauses and appraisal clauses).

This does not end our inquiry. Whether a dispute falls within the scope of an arbitration clause depends upon the language of the contract. Zobrist, 354 Ill.App.3d at 1143, 290 Ill.Dec. 946, 822 N.E.2d at 537. Ordinarily, the arbitrability of a given issue is for courts, not arbitrators, to determine. Zobrist, 354 Ill.App.3d at 1144, 290 Ill.Dec. 946, 822 N.E.2d at 538. There are, however, exceptions to this general rule. When the...