Butler v. Charter Communications, Inc. et al

Filing 96

MEMORANDUM OPINION AND ORDER granting the 61 MOTION to Substitute; substituting Charter Fiberlink-Alabama, LLC and Marcus Cable Associates, LLC as Defendants in place of Charter Communications, Inc; all pleadings referring to Charter Communications , Inc. will be considered as referring to these Defendants jointly; granting the 74 MOTION for Summary Judgment filed by Marcus Cable Associates, LLC and Charter Fiberlink-Alabama, LLC; judgment will be entered in favor of Marcus Cable Associates, LLC and Charter Fiberlink-Alabama, LLC and against Demitria Butler. Signed by Honorable Judge W. Harold Albritton, III on 11/8/2011. (Attachments: # 1 Civil Appeals Checklist)(br, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DEMITRIA BUTLER,
Plaintiff,
v.
CHARTER COMMUNICATIONS, INC.,
PROTECTION ONE SYSTEMS, et al.,
Defendants.

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Case No.: 3:10cv828-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on Plaintiff’s Motion to Substitute Name of Defendant, filed
on July 6, 2011 (Doc. #61) and a Motion for Summary Judgment by Marcus Cable Associates,
LLC and Charter Fiberlink-Alabama, LLC and/or In the Alternative Partial Summary Judgment,
jointly filed on September 1, 2011 (Doc. #74).
The Plaintiff, Demitria Butler (“Butler”), originally filed her case in the Circuit Court of
Macon County, Alabama, bringing state law claims against Charter Communications, Inc. and
Protection One Systems (“Protection One”).
The Defendants removed the case to this court pursuant to 28 U.S.C. § 1446(b) on
September 29, 2010, on the basis of diversity jurisdiction. The Plaintiff subsequently filed a
Motion to Remand, which the court denied after finding that it had diversity subject matter
jurisdiction. The court concluded that there was complete diversity of the parties and that the
evidence of the value of Butler’s home, in light of her request for unlimited compensatory
damages as well as punitive damages, meant that the amount in controversy was satisfied.
Protection One filed a Motion to Dismiss, which the court granted, dismissing Butler’s

claims without prejudice, and allowing her time to re-plead her claims against Protection One.
Butler filed an Amended Complaint, again bringing claims against Charter
Communications, Inc. and Protection One. Butler brought claims for negligence/wantonness
against Charter Communications, Inc. (Count One), breach of contract against Charter
Communications, Inc. (Count Two), negligence/wantonness against Protection One (Count
Three), and breach of contract against Protection One (Count Four).
Charter Communications, Inc. answered the Amended Complaint, stating that it was
incorrectly designated in the Amended Complaint and is properly referred to as Charter
Fiberlink-Alabama, LLC. Marcus Cable Associates, LLC filed a separate Answer, stating that it
had been improperly designated in the Plaintiff’s Complaint as Charter Communications, Inc.1
The Plaintiff’s Motion to Substitute will be granted accordingly, but the court will refer in this
order to both entities jointly as “Charter.”
For the reasons to be discussed, Charter’s Motion for Summary Judgment is due to be
GRANTED.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment "always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes

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In the Notice of Removal, Charter Fiberlink-Alabama, LLC and Marcus Cable
Associates, LLC state that they are citizens of Delaware and Missouri.
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demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.”
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. FACTS
The submissions of the parties establish the following facts, construed in a light most
favorable to the non-movant:

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The Plaintiff, Demetria Butler, owned a home in Macon County, Alabama.

In March of

2008, Butler entered into a contract with Protection One to install fire and burglar alarm systems
in the house. Pursuant to this contract, Protection One would alert the local fire department upon
Protection One’s receipt of a signal from the Protection One monitoring equipment at Butler’s
home. The signal would be received through the phone line.
Butler had been a customer of Charter since 1998. In 2008, Butler had internet and
cable television services through Charter. On August 25, 2008, Butler added internet telephone
services. Butler’s ex-husband, Erick Butler, states in an affidavit that from the time the
equipment was installed, the phone line did not work properly.
On the morning of August 27, 2008, the Charter phone service was not working. Butler
has provided the Affidavit of Erick Butler in which he states that he called Charter on August 27,
2008 and reported that the phone was not working. Butler Aff. at p. 1-2. Erick Butler also states
that the repairman responded to the call, looked into the problem, and said that he did not have
what he needed to complete the job, and that he would be back. Id. The repairman left after
having been at the house for approximately thirty minutes. Id. Erick Butler states that the phone
was not working when the repairman left the home. Id.
Shortly after the repairman left Butler’s home on August 27, 2008, see Doc. 85 at p. 4, a
fire occurred there. The fire alarm system failed to notify the local fire department. It appears
that the fire started due to some electrical wiring in the master bedroom. Butler’s neighbor
called her and told her that he saw smoke coming from her house and had called the fire
department. When Butler got home about thirty minutes after that call, part of her roof had
caved in and the house was in flames.

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Butler called Protection One and was told that Protection One did not alert the fire
department because Protection One had never received a signal from the fire-detection system.
IV. DISCUSSION
Marcus Cable Associates, LLC and Charter Fiberlink-Alabama, LLC (Charter) have
moved for summary judgment, or in the alternative for partial summary judgment, on the
grounds that Butler’s claims are barred by local exchange service tariff, PSC No. 1; Butler’s
claims are barred by the Charter Communications Terms and Conditions of Residential Service
Agreement; Butler’s claims are barred because Charter is an intended third party beneficiary of
the limitation of liability clause in the Protection One contract; and that the liability of Charter is
limited under the residential service agreement. Finally, Charter argues that it is entitled to
summary judgment because Butler’s claims are speculative, and her theories of negligence,
wantonness and/or breach of contract all fail because the essential elements of those claims are
not supported by sufficient evidence. The court begins with the argument based upon the
provisions of the applicable tariff.
Charter points to the provisions of the local exchange tariff filed by Charter with the
Alabama Public Service Commission on February 16, 2007, and amended effective August 16,
2008. Section 2.1.3 of the tariff provides, in part, as follows:
In view of the possibility of errors and difficulties occurring in the transmission of
messages by telephone, and the impossibility of fixing the cause thereof, the customer
assumes the risks connected with the service except as follows:
If the initial installation is defective or if service is interrupted for more than
twenty-four (24) hours otherwise than by the negligence or willful act of the
customer or due to customer premises equipment, an allowance limited to the
prorated portion of the month rate or guarantee for the service . . . shall be made
after notice and demand to the Telephone Company.
***
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The customer indemnifies and saves the Company harmless . . . against the
following:
Acts or omissions of other companies when their facilities are used in
connection with the Company’s facilities to provide service.
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Any accident, injury, or death occasioned by its equipment or facilities
when such is not due to the negligence of the Company.
***
Liability for failure to provide service.

Exhibit #1 to Duran Affidavit at original p.11.
Charter also points out that Tariff PSC No. 1, as amended effective August 16, 2008,
states that
The Customer also agrees to release, indemnify and hold harmless the Company
for any infringement or invasion of the right of privacy of any person or persons,
caused or claimed to have been caused, directly or indirectly, by the installation,
operation, failure to operate, maintenance, removal, presence, condition, occasion
to use E911 service features . . . .
To ensure 911 calls and emergency personnel are properly routed Telephone
Company equipment must not be moved by the customer. Additionally, the
Telephone Company recognizes one address for all lines on the same account and
will not be responsible for multiple address location information. Therefore, the
customer is responsible for directing emergency personnel to the specific location
of the person in need and to any other physical location if all telephone lines are
not located at the address of the account.
The Customer also agrees to release, indemnify and hold harmless the Telephone
Company in using a Multimedia Terminal Adaptor (MTA) or a telephone modem,
that requires electrical power in the event of failure. The Telephone Company
may provide battery backup for the MTA or modem to customers with the intent
of providing telephone service in the event of a power outage. However,
continued telephone service in the event of a power outage is not guaranteed.
Under no circumstances shall the Company or its officers, directors,
employees or agents have any liability to the county, a person placing an
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emergency call on the system or to any other person or entity, for any loss,
damage, injury or liability which they may suffer, sustain, incur or become
subject to, arising out of, based upon or resulting from any negligence on the
part of the Company or its officers, directors, employees or agents.

Ex. #2 to Duran Aff. at revised p.12 (emphasis added).
Butler does not challenge the tariff itself, and concedes that under Alabama law, if no
objections are made to a proposed tariff within thirty days from the submission, the tariff
becomes law and is considered part of the service contract. Doc. 85 at p. 5. Butler argues,
however, the liability section of the tariff does not relieve Charter from liability.
Although Butler’s argument is not clear with respect to her breach of contract claim
against Charter, she appears to argue that her breach of contract claim is not barred because the
tariff states that the customer does not assume the risks of service “[i]f the initial installation is
defective or if service is interrupted for more than twenty-four (24) hours otherwise than by the
negligence or willful act of the customer.” Ex. #1 to Duran Aff. at original p. 11. Such
argument, however, ignores that the remedy for service interruption is “an allowance limited to
the prorated portion of the month rate. . . .” Id. Therefore, while that tariff may allow for
prorated monthly charges under certain circumstances, it does not allow for damages for breach
of contract. To the contrary, the tariff expressly excludes “liability for failure to provide
service.” Id. Therefore, the court concludes that summary judgment is due to be GRANTED as
to the breach of contract claim against Charter.
Butler also states that the tariff allows for liability for negligence. She points to the
language of 2.1.3 excluding liability for accident, injury, or death not due to negligence of
Charter. As set forth above, however, there is a separate provision which expressly states that

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Charter is not liable under any circumstances to any other person for any loss, damage, injury or
liability arising out of negligence of Charter. Ex. #2 to Duran Aff. at revised p.12. The tariff,
therefore, first excludes liability for accident, injury or death not due to negligence of Charter,
and thenadditionally excludes liability for loss, damage, injury or liability due to negligence of
Charter.
As stated above, Butler concedes the validity of the tariff. Butler does, however, make a
reference to bargaining power in the context of a tariff. See Doc. 85 at p. 8. It may be, therefore,
that Butler is attempting to argue that the liability exclusion within the tariff is unconscionable.
Butler, however, cites no support for the idea, and the court is aware of none, that a tariff is
susceptible to a court challenge on the basis of unconscionability. Cf. Talton
Telecommunication Corp. v. Coleman, 665 So. 2d 914, 919 (Ala. 1995) (discussing exhaustion
of remedies and noting that Alabama Code “Section 37-1-83 authorizes consumers to file a
written complaint with the APSC concerning ‘any rate, service regulation, classification, practice
or service in effect or proposed to be made effective’ that ‘is in any respect unfair, unreasonable,
unjust or inadequate, or unjustly discriminatory.’”). The court will, therefore, apply the
language of the exclusions of the tariff.
Applying the plain language of the tariff, set out above, which expressly excludes
liability for loss arising from negligence of Charter, the court agrees with Charter that the
negligence claim against it in this case is excluded by the tariff, and summary judgment is due to
be GRANTED as to that claim.
Butler does not address her wantonness claim against Charter in her response to the
Motion for Summary Judgment. Even in the absence of liability exclusions in the tariff, based

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on the evidence presented by Butler that Charter responded to a service call the same day the call
was made; that after thirty minutes spent attempting a repair, the technician stated that he did not
have what he needed to complete the repair and would return; and that the fire occurred shortly
after the repairman left, the court cannot conclude that there is sufficient evidence to create a
question of fact as to wantonness. See Ex parte Capstone Bldg. Corp., No. 1090966, 2011 WL
2164027, at *6 (Ala. June 3, 2011) (stating that “‘Wantonness’ has been defined by this Court as
the conscious doing of some act or the omission of some duty, while knowing of the existing
conditions and being conscious that, from doing or omitting to do an act, injury will likely or
probably result.”). Summary judgment is, therefore, also due as to the wantonness claim.
Having concluded that Charter is entitled to summary judgment for the reasons discussed,
the court need not address Charter’s other arguments.
V. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
1. The Motion to Substitute Names of Defendant (Doc. #61) is GRANTED, and Charter
Fiberlink-Alabama, LLC and Marcus Cable Associates, LLC are SUBSTITUTED as Defendants
in place of Charter Communications, Inc. All pleadings referring to Charter Communications,
Inc. will be considered as referring to these Defendants jointly.
2. The Motion for Summary Judgment of Marcus Cable Associates, LLC and Charter
Fiberlink-Alabama, LLC and/or In the Alternative Partial Summary Judgment, filed on
September 1, 2011 (Doc. #74) is GRANTED and judgment will be entered in favor of Marcus
Cable Associates, LLC and Charter Fiberlink-Alabama, LLC and against Demitria Butler.

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Done this 8th day of November, 2011.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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