Roopchan v. Adt Sec. Sys. Inc.

• Decision Date: 10 February 2011
• Docket Number: No. 3:09–CV–177.,3:09–CV–177.
• Parties: Kumar ROOPCHAN, Plaintiff,v.ADT SEC. SYS., INC., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

781 F.Supp.2d 636

Kumar ROOPCHAN, Plaintiff,

v.ADT SEC. SYS., INC., Defendant.

No. 3:09–CV–177.

United States District Court, E.D. Tennessee.

Feb. 10, 2011.

John M. Boucher, Jr., Burroughs, Collins & Newcomb, PLC, Knoxville, TN, for Plaintiff.Daniel C. Headrick, Jeffery Scott Griswold, Matthew J. Evans, Paine, Tarwater, Bickers, LLP, Knoxville, TN, Kristina L. Burmeister, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, District Judge.

This matter is before the Court on defendant ADT Security System, Inc.'s (“ADT”) Motion for Summary Judgment. [Doc. 28]. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, ADT has moved for summary judgment on each of Plaintiff's claims.

In December 2006, Plaintiff contracted with ADT to have a security system installed at his convenience store. [Plaintiff's Complaint, Doc. 29–8, at 2, ¶ 7]. Under the contract, ADT agreed to provide cameras, alarm detectors, and other security equipment. [ Id.]. In return, Plaintiff paid ADT a monthly fee. [ Id.]. The contract also contained an exculpatory clause, under which Plaintiff agreed to allocate any risk of property damage or loss to his insurance company. [December 2006 Commercial Sales Proposal/Agreement, Doc. 29–3]. In March 2007, Plaintiff and ADT executed a second contract. [December 2006 Commercial Sales Proposal/Agreement, Doc. 29–3]. Like the previous contract, Plaintiff agreed to allocate any risk of property damage or loss to his insurance company. [ Id.].

On November 28, 2008, nearly two years after the security system was installed, Plaintiff's store was burglarized. [Plaintiff's Complaint, Doc. 29–8, at 3–4, ¶¶ 11–18]. Approximately one week later, a truck drove into the front door of Plaintiff's store. [ Id., p. 4, ¶¶ 19–26]. No items were stolen during this incident, but the truck caused structural damage. [ Id.]. In addition, Plaintiff alleges that he suffered lost profits during the thirty-five days that his store was closed for repairs. [ Id.].

On March 19, 2009, Plaintiff filed suit against ADT in the Circuit Court for Knox County, Tennessee.

[Notice of Removal,

Doc. 1]. On April 23, 2009, the case was removed to federal court. [ Id.]. Plaintiff has sued ADT for claims of: (1) intentional misrepresentation; (2) fraudulent concealment; (3) fraudulent inducement; (4) negligent misrepresentation; (5) negligence; (6) breach of contract; and (7) violating the Tennessee Consumer Protection Act (“TCPA”), T.C.A. § 47–18–101 et seq. [Plaintiff's Complaint, Doc. 29–8]. In sum, Plaintiff is attempting to hold ADT liable for the property damage and loss caused by the two incidents. [ Id.].

The following issues are before the Court. First, has Plaintiff raised a genuine issue of material fact regarding his claims for intentional misrepresentation, fraudulent concealment, fraudulent inducement, negligent misrepresentation, and TCPA violations? If Plaintiff has not raised a genuine issue of material fact regarding any of these claims, then his negligence and breach of contract claims are barred by the exculpatory clauses in the December 2006 and March 2007 contracts. For the following reasons, ADT's Motion for Summary Judgment [Doc. 28] is GRANTED, whereby Plaintiff's claims are DISMISSED WITH PREJUDICE.

I. BACKGROUND

Plaintiff is the owner of a convenience store and gas station, the “Spring Hill Market,” located at 5016 Ruthledge Pike, in Knoxville, Tennessee (the “Store”). [Plaintiff's Complaint, Doc. 29–8, at 1, ¶ 1]. ADT is a corporation that provides security equipment and services to residential and commercial customers. [ Id., p. 2, ¶ 6]. On December 9, 2006, Plaintiff met with ADT salesperson, Joe Flack (“Mr. Flack”), to discuss having a security system installed at the Store. [Plaintiff's Dep., Doc. 29–1, at 38:7–40:21, April 8, 2010].

One of the most important services that ADT provides is alarm monitoring. [ Id., at 70:15–71:19]. When a break-in occurs, there are two ways that ADT is notified. [ Id.]. First, ADT may receive an alarm signal from a security system that is based upon traditional phone lines (or land-lines). [ Id.]. Second, ADT may receive an alarm signal from a security system that is based upon a cellular back-up. [ Id.]. A cellular back-up provides an additional layer of protection because it sends alarm signals even when a telephone line is damaged. [ Id.].

After Mr. Flack explained ADT's services, Plaintiff signed a Commercial Alarm Services Contract (the “2006 Contract”). [2006 Contract, Doc. 29–3]. Only Plaintiff, Mr. Flack, and an ADT technician were present when the 2006 Contract was signed. [Plaintiff's Dep., Doc. 29–1, at 46:4–19]. The 2006 Contract did not provide for a cellular back-up. [2006 Contract, Doc. 29–3; see also John Gose Affidavit, Doc. 29–2].

On March 20, 2007, the parties executed a second contract (the “2007 Contract”). [2007 Contract, Doc. 29–4]. Like the previous contract, the 2007 Contract did not provide for a cellular back-up. [ Id., see also John Gose Affidavit, Doc. 29–2]. The 2007 Contract was identical to the 2006 Contract, except that ADT agreed to provide additional security equipment. [ Cf. 2006 Contract, Doc. 29–3, with 2007 Contract, Doc. 29–4]. The contracts had the same standard terms and conditions. For example, Plaintiff agreed that ADT was only required to install equipment expressly listed in the contracts:

Customer acknowledges that: (a) ADT has explained the full range of protection, equipment, and services available to Customer; (b) additional protection over and above that provided herein is available and may be obtained from ADT at an additional cost to the Customer; and (c) Customer desires and has contracted for only the equipment and services itemized on this Agreement.

[Defendant's Memorandum of Law in Support of its Motion for Summary Judgment, Doc. 29, at 4] [emphasis added]. Once again, the Contracts did not provide for a cellular-back-up. [ See Doc. 29–3 and Doc. 29–4].

The contracts also contained an exculpatory clause. [Defendant's Memorandum of Law in Support of its Motion for Summary Judgment, Doc. 29, at 4–5]. Under that clause, Plaintiff agreed to allocate any risk of property damage or loss to his insurance company.¹

In addition, the contracts provided a merger clause, which stated the following:

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ADT. CUSTOMER IS NOT RELYING ON ANY ADVICE OR ADVERTISEMENT OR ADT. CUSTOMER AGREES THAT ANY REPRESENTATION, PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT INCLUDED IN WRITING IN THIS AGREEMENT, SHALL NOT BE BINDING UPON ANY PART, AND THAT THE TERMS AND CONDITIONS HEREOF APPLY AS PRINTED WITHOUT ALTERATION OR QUALIFICATION, EXCEPT AS SPECIFICALLY MODIFIED IN WRITING THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN NOTWITHSTANDING

ANY INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS OR ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY THE CUSTOMER.

[ Id., p. 5] [emphasis added].

Plaintiff admits that he did not read either contract before signing. [Plaintiff's Dep., Doc. 29–1, at 40:6–21]. He insists that he did not read the 2006 Contract because Mr. Flack was in a hurry. [ Id.]. Despite this contention, however, Plaintiff admits that Mr. Flack explained the general terms of the contract, namely, the services and equipment that ADT agreed to provide:

We just discussed the amount of cameras I was getting and what package and, you know, how much cameras and how much motion sensors and stuff like that and door sensors, stuff like that, and what the deposit and down payment and stuff will be.

[ Id., at 40:17–21]. While Mr. Flack may have discussed the general terms, Plaintiff alleges that he was not aware of the exculpatory clause:

Q. Okay. We'll get to that later. But turning back to the contract, did Mr. Fla[ck] discuss any of these terms and conditions that are on the backside of the contract with you?

A. No.

Q. Did you read these terms and conditions?

A. Well, he got the contract. He got the paper and just gave me, I think, a receipt, and he took off with the paperwork after I give him, I think, the deposit. I mean, he never sticks around long enough. I mean, I have dealt three times with them, and three times or four times, I paid him. He never stick around. After you hand him a check or hand him cash, he's gone.

Q. So, let me get this straight. He would meet with you?

A. Yeah.

Q. You would sign the contract:?

A. Uh-huh (affirmative).

Q. Would you read any part of the contract before you signed it?

A. Well, he more or less just explained in a few details what's going around, what we order, and all that stuff. That's about it.

Q. So, you did not read the contract?

A. I never get a chance to keep one of the contract, I mean.

Q. Did you ask him for a copy of the contract?

A. Well, he was supposed to. He just give me a copy of the—whatever we ordered and a receipt for whatever I paid him. That's it.

Q. But did you ask him for a copy of the contract?

A. No.

[ Id., at 47:19–49:1].

On November 28, 2008, nearly two years after the alarm system was installed, Plaintiff's Store was burglarized. [Plaintiff's Complaint, Doc. 29–8, at 3, ¶ 11]. Plaintiff believes that thieves cut the land-line around midnight and then entered the Store. [ Id.]. Because the land-line was cut, ADT was not signaled about the break-in. [ Id.]. As Plaintiff explains, “the thieves cut the land-line connection to Defendant ADT prior to a forced entry through the front door of the establishment.” [ Id.]. Following the burglary on November 28, 2008, the parties executed a Rider for additional service. [Rider, Doc. 29–5]. Under the Rider, ADT agreed to provide a cellular back-up for $10.00 per month. [ Id.].

According to Plaintiff, the thieves stole property worth over $70,000.00 and caused $30,000.00 in structural damage.

[ Id., at 3,

¶¶ 13–14]. In addition, Plaintiff alleges that he suffered over...