McAuliffe v. The Vail Corp.
| Docket Number | 21-1400 |
| Decision Date | 06 June 2023 |
| Parties | MICHAEL MCAULIFFE; MCKENNA CONNOLLY; STEPHEN CONTI; STEVEN BEILEY; TERRY CHECHAKLI; NORMAN CHENEY; MATTHEW BALKMAN, individually and on behalf of all others similarly situated, Plaintiffs - Appellants, v. THE VAIL CORPORATION, d/b/a Vail Resorts Management Company; VAIL RESORTS, INC., Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-01121-RBJ)
Nyran Rose Rasche, Cafferty Clobes Meriwether & Sprengel LLP Chicago, Illinois (Katherine D. Varholak and Melissa K Reagan, Sherman & Howard, Denver, Colorado; and Bryan L Clobes, Cafferty Clobes Meriwether & Sprengel LLP, Media Pennsylvania, with her on the briefs), for Plaintiffs - Appellants.
Michael J. Hofmann, Bryan Cave Leighton Paisner, LLP, Denver, Colorado (David L. Miller, Bryan Cave Leighton Paisner, LLP, Denver, Colorado; and Darci Madden, Bryan Cave Leighton Paisner, St. Louis, Missouri, with him on the brief) for Defendants - Appellees.
Before HOLMES, Chief Judge, McHUGH, and EID, Circuit Judges.
In March 2020, as COVID-19 spread across the United States, The Vail Corporation and Vail Resorts, Inc. (collectively, "Vail") closed its ski resorts and did not reopen them until the start of the 2020-2021 ski season. Plaintiffs-Appellants ("Passholders") are a group of skiers and snowboarders who purchased Epic Passes from Vail to access its resorts during the 2019-2020 ski season. Passholders, on behalf of themselves and a class of similarly situated individuals, brought contractual, quasi-contractual, and state consumer protection law claims all based on the same issue-Vail's decision to close its ski resorts in March 2020 due to the COVID-19 pandemic without issuing refunds to Passholders. The district court granted Vail's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all of Passholders' claims for failure to state a claim. Passholders appeal, arguing the district court erred in its interpretation of their contracts with Vail.
The district court determined Passholders' contractual and state consumer protection law claims failed based on its interpretation of two parts of the contract between Passholders and Vail: (1) the meaning of "2019-2020 ski season" in the context of Vail's promise that Passholders could access its resorts for the entire 2019-2020 ski season; and (2) the impact of a no-refund clause in the contract between Vail and Passholders on Passholders' ability to seek refunds based on Vail closing its resorts prior to the end of the season. Although we do not agree with the district court's interpretation of we are in accord with its ultimate conclusion that Passholders have failed to state a contractual claim. Passholders sought only one form of relief in their complaint-refunds of the costs of their Epic Passes. But Passholders contracted for the purchase of passes under the condition that the passes were not eligible for refunds of any kind. And although Passholders point to authority suggesting some jurisdictions limit the application of no-refund clauses depending on which party terminates a contract, these cases are distinguishable and Passholders have identified no Colorado authority suggesting the contract should be interpreted any way other than according to the plain meaning of the words.
Therefore, we agree with the district court's determination that Passholders failed to adequately plead their contractual claims. Recognizing that Passholders might amend their breach of contract and breach of warranty claims to seek other forms of relief, however, we vacate the dismissal of these two claims with prejudice and remand for the district court to modify its judgment to a dismissal without prejudice. Because Passholders' breach of the implied covenant of good faith and fair dealing claim rested solely on Vail's exercise of its contractual right not to issue refunds, we affirm the dismissal of this claim with prejudice. We also affirm the district court's dismissal of Passholders' two quasi-contractual claims because Passholders failed to allege sufficient facts to show the claims were based on a dispute not already covered by their express contracts with Vail. Passholders attempted to plead these claims in the alternative, arguing their contracts with Vail may be illusory if interpreted to give Vail total discretion over the dates of the ski season. But because no reasonable interpretation of Passholders' contracts with Vail would render the contracts illusory, the district court correctly granted dismissal of these two claims.
As with Passholders' breach of contract and breach of warranty claims, we conclude the district court correctly dismissed Passholders' consumer protection claims. Although we conclude a reasonable jury could find that Vail acted unfairly or deceptively by advertising Epic Passes as providing access to its resorts for the entire 2019-2020 ski season, Passholders' claims fail because they sought only refunds as a remedy for these claims-a remedy expressly prohibited by their contracts. Recognizing Passholders could refile these claims to seek an alternative remedy, however, we vacate the district court's dismissal of Passholders' state consumer protection law claims with prejudice so the district court may modify its dismissal of these six claims to be without prejudice.
During the 2019-2020 ski season, Vail operated thirty-seven ski resorts and urban ski areas (collectively, "ski resorts" or "resorts") across the United States and the world. The majority of these resorts were in the United States, located in fifteen separate states. To recreate in Vail's various ski resorts, customers could buy lift tickets or Epic Passes. Lift tickets provided access to a specific ski area for a period of one to fourteen days, while Epic Passes provided broader access throughout the ski season. "The ski/snowboard season typically begins in mid-to-late October, and usually lasts through at least April, and, for many ski areas, often lasts through June, depending on the weather." App. at 27. Because they offer wider access and greater flexibility, Epic Passes are popular with skiers and snowboarders, and Vail sold approximately 1,140,000 Epic Passes for the 2019-2020 ski season.
For the 2019-2020 ski season, Vail sold four types of Epic Season Passes at varying prices, providing different levels of access to its ski resorts. Vail's most expensive pass, simply titled the Epic Pass, gave skiers and snowboarders unlimited access to most of Vail's ski resorts, with the occasional exception of blackout dates at certain resorts. For 2019-2020, Vail advertised that the Epic Pass would provide "Unlimited, Unrestricted Skiing at [Its] Best Resorts." Id. at 27-28. A lower cost version of the Epic Pass, the Local Epic Pass, provided "unlimited, unrestricted access" to many ski resorts, while providing more limited access to others. Id. at 28. Vail also sold Regional Epic Passes, that provided "unlimited, unrestricted access," for a specific ski resort or specific set of resorts, although sometimes only on certain days of the week. Id. As a fourth option, Vail sold Specialty Epic Passes that were available to specific groups-such as service members, veterans, and students. Like Regional Epic Passes, Specialty Epic Passes provided access to a limited set of ski areas, sometimes only on certain days of the week, but for the full season. All four types of Epic Season Passes "were marketed to provide access to the ski areas for the entire 2019-2020 ski season." Id. at 29.
In addition to Epic Season Passes, Vail sold Epic Day Passes, available for one to seven days. Epic Day Passes provided access to most Vail ski resorts for the number of days purchased, and "[we]re not required to be used on consecutive days or at the same ski area." Id.
For the 2019-2020 ski season, skiers and snowboarders could purchase the various Epic Passes either online or directly at one of Vail's ski resorts.[2] At the time, the Terms &Conditions for all of Vail's websites stated that use of Vail's websites was governed by Colorado state law and any legal proceedings against Vail must be brought in state or federal court in Denver, Colorado. To buy an Epic Season Pass, purchasers had to make an initial payment of forty-nine dollars and provide a credit card that Vail could charge for the outstanding balance in September 2019. Once purchasers made the initial payment, they were committed to paying the full price, as Vail did not allow cancellations or refunds. Passholders conceded in their operative complaint that "Vail's website stated that 2019-2020 Passes were not 'eligible for a refund of any kind.'" Id. at 30. Passholders understood this statement to mean they could not seek a refund based on personal reasons-not that Vail could close all its ski resorts prior to the end of the 2019-2020 ski season without refunding any portion of their payments.
Passholders Michael McAuliffe[3], Mckenna Connolly[4], Stephen Conti[5], Steven Beiley[6], Terry Chechakli[7], Norman Cheney[8], and Matthew Balkman[9], all purchased some type of Epic Pass for the 2019-2020 ski season from Vail's website. They purchased Epic Passes with the "expect[ation] that, as during all prior years, the Epic Passes would permit access to Vail's ski areas until snow conditions were such that skiing and snowboarding were not possible." Id. at 27. Specifically, Passholders "relied on Vail's statements concerning benefits conferred by the Pass[es] and expected that the Pass[es] would confer unlimited access for the entire 2019-2020 season." Id. at 26. All...
To continue reading
Request your trial