M.F. v. ADT, Inc.
| Decision Date | 19 November 2018 |
| Docket Number | Case No. 2:18-CV-02360-JAR-GEB |
| Citation | 357 F.Supp.3d 1116 |
| Court | U.S. District Court — District of Kansas |
| Parties | M.F., a Minor, Individually and as Heir-at-Law of Elizabeth A. Frost, Deceased, Through His Co-Conservators Julie Frost and Sarah Bayless, and Charles E. Frost, Jr., as Administrator of the Estate of Elizabeth Frost, Plaintiffs, v. ADT, INC., F/K/A Protection One, Inc., Defendant. |
Jeffrey D. Rowe, Rachel Nelson Boden, Randall L. Rhodes, Steven W. Brookreson, Rouse Frets White Goss Gentile Rhodes, PC, Leawood, KS, for Plaintiffs.
Jason R. Scott, Shook, Hardy & Bacon LLP, Kansas City, MO, for Defendant.
Plaintiff M.F. ("Minor"), a minor, brings a claim against Defendant ADT, Inc. ("ADT") for wrongful death under K.S.A. § 60-1901. Plaintiff Charles E. Frost, Jr., Administrator of the Estate of Elizabeth Frost ("Administrator"), brings claims against ADT for negligence and fraudulent misrepresentation. Plaintiffs together bring claims against ADT for Kansas Consumer Protection Act ("KCPA") violations,1 breach of implied warranty, and breach of express warranty. Before the Court is Defendant's Motion to Dismiss (Doc. 9), brought pursuant to Fed. R. Civ. P. 12(b)(6). Defendant asserts that Plaintiffs' claims are time barred under the decedent's contractual agreement, and further that Plaintiffs have failed to allege facts sufficient to state a claim upon which relief can be granted. For the reasons set forth in detail below, Defendant's motion is granted .
To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, "raise a right to relief above the speculative level"2 and must include "enough facts to state a claim for relief that is plausible on its face."3 Under this standard, "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."4 The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully," but requires more than "a sheer possibility."5 "[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim."6 Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.7
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ "8 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.9 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."10 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."11
Finally, if the court on a Rule 12(b)(6) motion looks to matters that were not attached to the complaint or incorporated into the complaint by reference, it generally must convert the motion to a Rule 56 motion for summary judgment.12 However, the court may consider documents that are referred to in the complaint if they are central to the plaintiff's claim and the parties do not dispute their authenticity.13 Here, the Court will consider the contract Plaintiffs refer to in their Third Amended Counterclaim, which Defendant attaches to its motion to dismiss.14
The facts of this action are tragic. Plaintiffs are M.F., a minor and sole heir-at-law to decedent Elizabeth A. Frost ("decedent"), and Charles E. Frost, Administrator of the Estate of Elizabeth Frost. Defendant is ADT, LLC ("ADT"), an alarm services company. Protection One, Inc., and Protection One Alarm Monitoring, Inc., the companies with which decedent contracted, merged with ADT on or around April 13, 2017. Protection One supplied both the home security system and subsequent monitoring services to the residence of decedent, located at 3420 SE Indiana Ave., Topeka, Kansas 66205.
Sometime during the early morning hours of August 15, 2016, an accidental home fire from the kitchen stove began at decedent's residence. Decedent's home was equipped with a security system, which Defendant sold and monitored. At 1:30 a.m., Defendant received a "sensor tamper" alert for "glass break" in the dining room. Defendant did not call any individual or emergency service at that time. At 1:32 a.m., Defendant received an alert for "expansion module failure." The expansion module is the key pad and system center located by the front door of the home. Defendant did not call any individual or emergency services at that time. At approximately 1:43 a.m., Defendant twice attempted to call decedent, but was unable to reach her. At 1:49 a.m., Defendant then attempted to call the next call-back number, that of decedent's grandmother, but was also unable to reach her. The caller identification label associated with Defendant's number is an unlisted number and does not identify Defendant as the caller. Between 2:01 a.m. and 2:04 a.m., Defendant again attempted to call decedent's number and the next call-back number. Defendant was again unable to reach either party. Around 2:04 a.m., Defendant "fully cleared" the alarms.
Around 2:52 a.m., City of Topeka Public Works Department employees noticed the house fire and dialed 911 from a cell phone. First responders arrived at the scene at approximately 2:58 a.m. A fire crew conducted a primary search and found decedent face down, unconscious, in a hallway. The fire crew took decedent from the house and began emergency medical treatment at approximately 3:07 a.m. Decedent was transported to Stormont Vail Health Care in Topeka, KS, where she succumbed to her injuries and was pronounced dead. Her cause of death was inhalation of smoke and soot from the fire. Decedent experienced significant conscious pain and suffering.
Plaintiffs allege that on Defendant's website are the following statements:
Decedent signed a contract with Defendant on March 12, 2014. On the front page of the contract is a "Financial Summary" of the services contracted for between Defendant and decedent.15 Included services for which decedent paid a monthly service fee of $37.99 are "Monitoring," "Extended Service," and "PrimeCell." Notably not included, although available, are "Smoke Detection," "CO Detection," or "Temperature Monitoring."16 At the bottom of the first page, above decedent's initials, in bold, capital letters, the contract states: "IMPORTANT PROVISIONS – YOUR RESPONSIBILITY TO READ TERMS OF THIS AGREEMENT " and "By e-signing this Contract, you agree to all the terms and conditions, below. "17 The Contract reads, "Please pay special attention to the following sections:" and specifically directs attention to "Section 6, 7, 8: WE ARE NOT AN INSURER, Limitation of Liability, Hold Harmless, which, among other things, significantly limits [ADT]'s liability to you under this Contract. "18
Section 6 provides as follows:
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...the contract, then the tort claim is part of the contractual relationship and may not be separately brought. See M.F. v. ADT, Inc., 357 F. Supp. 3d 1116, 1136-37 (D. Kan. 2018) (stating the difference as "whether the contract calls for a specific result"). Defendants rely on the parties' di......