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DWIGHT SPENGLER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VERONICA J. BARKER, PLAINTIFF, V. ADT SECURITY SERVICES, INC., DEFENDANT

2006 U.S. Dist. LEXIS 76446, *


DWIGHT SPENGLER, as Personal Representative of the ESTATE OF VERONICA J.
BARKER, Plaintiff, v. ADT SECURITY SERVICES, INC., Defendant.

Case No. 06-CV-10036-DT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN
DIVISION

2006 U.S. Dist. LEXIS 76446


October 20, 2006, Decided
October 20, 2006, Filed

CORE TERMS: customer, summary judgment, alarm, signature, printed, notice,
tort action, motion in limine, breach of contract, causation, stock, blank,
dispatchers, emergency medical services, oral argument, contractual,
dispatch, signing, misfeasance, deposition, peril, notice of cancellation,
referenced, confirmed, storage, front, onion, skin, moot, contractual
relationship

COUNSEL: [*1] For Dwight Spengler, as personal representative of the
estate of Veronica J. Barker, deceased, Plaintiff: Roy J. Transit, LEAD
ATTORNEY, Royal Oak, MI.

For ADT Security Services, Incorporated, Defendant: Charles C. Eblen, LEAD
ATTORNEY, Shook, Hardy, Kansas City, MO. Lynn A. Sheehy, LEAD ATTORNEY,
Butzel Long, Detroit, MI.

JUDGES: ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.

OPINION BY: ROBERT H. CLELAND

OPINION: OPINION AND ORDER GRANTING IN PART DEFENDANT'S "MOTION TO FOR
SUMMARY JUDGMENT, DENYING DEFENDANT'S "MOTION IN LIMINE," AND GRANTING
SUMMARY JUDGMENT IN PART TO PLAINTIFF

This is a wrongful death case, in which the Defendant alarm company made a
tragic mistake - dispatching emergency medical services to the wrong address
after the decedent, an elderly, disabled woman near death, had activated her
alarm for assistance. Plaintiff casts blame on Defendant's mistaken
dispatch, and the attendant delay, for the death. Defendant questions, among
other things, causation, suggesting that the evidence cannot demonstrate
that the decedent would have survived even if speedier medical care had
arrived. But, more fundamentally, a question looms about the tort relief
Plaintiff seeks in this contract-based case. [*2]

Pending before the court is Defendant ADT Security Services, Inc.'s "Motion
for Summary Judgment" and its "Motion in Limine," which were both filed on
August 15, 2006. Each matter has been fully briefed and the court conducted
a hearing on October 18, 2006. For the reasons stated below, the court will
grant Defendant summary judgment in part, i.e., as to tort relief, deny the
motion in limine as moot, and grant summary judgment to Plaintiff in part,
i.e., insofar as the complaint states a claim for breach of contract.

I. FACTUAL BACKGROUND n1

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n1 Because the court concludes, for the reasons given below, that Defendant
should prevail on narrow contractual grounds, a detailed exposition of the
facts is not necessary.


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On May 10, 2004, Plaintiff Dwight Spengler signed a residential services
contract with Defendant to install and monitor a security alarm at the home
of Veronica Barker, his mother. (Residential Services Contract ("Contract"),
Def.'s Ex. B.) Barker lived in a condominium on 34910 Chickadee [*3] Ridge
in Richmond, Michigan. (Id.) The agreement included a portable alarm remote
that Barker could activate when in distress. (Contract at 1.) Due to cancer
of the larynx and previous medical treatment of that condition, she could
not speak. (Pl.'s Dep. at 11-13, Def.'s Ex. A.) n2 Defendant therefore had
instructions to call Plaintiff in the event of an alarm from Barker.
(Contract at 2.)

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n2 Barker did have surgeries meant to restore her ability to speak with the
aid of a prosthetic device, but Plaintiff avers that at times she was unable
to speak with the prosthetic, which "was not necessarily 100 percent."
(Pl.'s Dep. at 13, Def.'s Ex. A.)


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Defendant received an alarm from Barker on October 26, 2005. (Event History
Report, Def.'s Ex. C.) Due to an error in the address that Defendant gave to
dispatchers in response to the alarm, emergency medical services were
delayed in their arrival at Barker's residence by, according to Plaintiff's
timeline, about sixteen minutes. (Pl.'s Resp P 2.) Plaintiff alleges that,
[*4] were it not for the delay attributable to Defendant, Barker would not
have died of heart failure. (Id.) Plaintiff filed suit in state court on
December 6, 2005, alleging one count of negligence, which Defendant removed
to this court pursuant to 28 U.S.C. § 1446 on January 4, 2006. (Notice of
Removal at 1.)

On August 15, 2006, Defendant filed the instant motion for summary judgment
and a motion in limine. Defendant challenges (1) the admissibility of the
allegedly speculative and unreliable testimony of Plaintiff's medical
expert, (Mem. in Support of Def.'s Mot. In Limine at 1-2), (2) Defendant's
theory of causation, (Mem. in Support of Def.'s Mot. for Summary Judgment at
22-27) ("Def.'s Br."), and (3) Defendant's ability to recover damages beyond
$ 500 under the liability limiting provisions of the contract (id., at 3,
29-33).

Because the court is satisfied, for the reasons stated below, that
Defendant's third argument is dispositive, the court will, in the interests
of clarity and judicial economy, not address the first two issues.

III. STANDARD

Under Federal Rule of Civil Procedure 56, summary [*5] judgment is proper
when there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "Where
the moving party has carried its burden of showing that the pleadings,
depositions, answers to interrogatories, admissions and affidavits in the
record construed favorably to the non-moving party, do not raise a genuine
issue of material fact for trial, entry of summary judgment is appropriate."
Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

Summary judgment is not appropriate when "the evidence presents a sufficient
disagreement to require submission to a jury." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The
existence of some factual dispute, however, does not defeat a properly
supported motion for summary judgment; the disputed factual issue must be
material. See id. at 252 ("The judge's inquiry, therefore, unavoidably asks
whether reasonable jurors could find by a preponderance of the evidence [*6]
that the plaintiff is entitled to a verdict - 'whether there is [evidence]
upon which a jury can properly proceed to find a verdict for the party
producing it, upon whom the onus of proof is imposed.'") (citation omitted).
A fact is "material" for purposes of summary judgment when proof of that
fact would have the effect of establishing or refuting an essential element
of the claim or a defense advanced by either party. Kendall v. Hoover Co.,
751 F.2d 171, 174 (6th Cir. 1984).

In considering a motion for summary judgment, the court must view the facts,
and draw all reasonable inferences from the admissible evidence presented,
in a manner most favorable to the nonmoving party. Dunigan v. Noble, 390
F.3d 486, 492 (6th Cir. 2004) ("We must determine not whether there is
literally no evidence, but whether there is any upon which a jury could
properly proceed to find a verdict for the party producing it upon whom the
onus of proof is imposed.") (quotation omitted). The court does not weigh
the evidence to determine the truth of the matter, but must decide if the
evidence produced creates a genuine issue for trial. Sagan v. United States,
342 F.3d 493, 497 (6th Cir. 2003). [*7]

IV. DISCUSSION

A. Plaintiff's Claims Sound in Contract, Not Tort

The relationship between the parties was contractual. The gravamen of
Plaintiff's complaint is that Defendant failed to perform under the
contract. A tort arising out of a contractual relationship must rely on a
duty independent of the contract. See e.g. Rinaldo's Constr. Corp. v. Mich.
Bell Tel. Co., 454 Mich. 65, 559 N.W.2d 647, 658 (Mich. 1997); Hart v.
Ludwig, 347 Mich. 559, 79 N.W.2d 895 (Mich. 1956). In Rinaldo's, the
plaintiff sued the defendant in tort, alleging that by negligent tortious
conduct the defendant harmed the plaintiff by negligently installing and
maintaining telephone service to the plaintiff's business and by
misdirecting calls intended for the plaintiff. 559 N.W.2d at 655. The
Michigan Supreme Court rejected the plaintiff's position that a court of
general jurisdiction should hear his claims and instead decided that the
Michigan Public Service Commission had jurisdiction as a regulatory body.
Id. at 656. The court predicated its decision on the finding that the
plaintiff only alleged breaches of contractual duties, none of [*8] which
arose from independent legal obligations that would support an action in
tort for a court of general jurisdiction to decide. Id.

Similarly, in Hart the plaintiff sued the defendant in tort for neglect and
for refusing to perform under an oral agreement to care for the plaintiff's
orchard. 79 N.W.2d at 896. The court decided that the plaintiff asserted an
action in contract, not tort, and it rested its decision on the distinction
between misfeasance and nonfeasance. Id. at 896-898. According to the court:
[Before the court] is simply the violation of a promise to perform the
agreement. The only duty, other than that voluntarily assumed in the
contract to which the defendant was subject, was his duty to perform his
promise in a careful and skillful manner without risk of harm to others, the
violation of which is not alleged. What we are left with is defendant's
failure to complete his contracted-for performance. This is not a duty
imposed by the law upon all, the violation of which gives rise to a tort
action, but a duty arising out of the intentions of the parties themselves
and owed only to those specific individuals to whom the promise runs. [*9]
A tort action will not lie.


Id. at 898-899. Furthermore, the Sixth Circuit, while applying Michigan law,
held that a tort action must predicate upon active negligence or misfeasance
because no tort action may rest upon nonfeasance in the performance of a
contract. Int'l Harvester Credit Corp. v. Wilkie, 695 F.2d 231, 234 (6th
Cir. 1982).

This case, at bottom, rests upon the failure of Defendant to meet
Plaintiff's contractual expectations. According to the handwritten
instructions on the parties' agreement:
Veronica Barker is resident cannot talk [sic]. If panic is hit dispatch
EMS/fire w/o prior contact to home. Contact Mr. Spengler imm. upon dispatch.


Contract, Def.'s Ex. B at 2. Plaintiff's claim would not exist absent his
contractual relationship with Defendant as set out in the above language.
The court is aware of no common law or other authority outside the four
corners of the parties' agreement that required Defendant to be certain that
the address in its database matched the origin of Barker's medical alert.
See Allendale Mutual Ins. Co. v. Triple-S Technologies, Inc., 851 F. Supp.
277 (W.D. Mich. 1993) [*10] (holding that third-party plaintiff could not
bring negligence action for disconnection of security and fire alarm
system). The court in Allendale held that "the contract between the parties
was the source of any duty [the defendant] had to monitor or operate the
alarm system which it may have breached." Id. at 281. In this case, the
contract was the sole source of Defendant's duty to give dispatchers the
correct address for responding to a medical alarm from Barker.

Nor is the court persuaded that active negligence or misfeasance created the
peril that Barker faced. Classic examples include a surgeon failing to clean
instruments, an engineer leaving steam running, a builder leaving a ditch
open in a public way, and an operator failing to sound a whistle at a
crossing. Hart, 79 N.W.2d at 898. In each of these cases, "machinery has
been set in motion" and lives are put at risk independent of the breach of a
promise. Id. These cases do not fairly describe Defendant's failure to send
emergency medical services to the correct address. In this case, the peril
that Barker faced was an acute medical event that Defendant did not create.
By contract, [*11] Defendant was supposed to respond to her medical alarm,
alert dispatchers, and inform them of her address. Defendant's failure to
relay the correct address gives rise to a breach of contract action, not an
independent tort claim. Although the grave consequences of the above classic
examples sadly may match the outcome in this case, Defendant, unlike in the
examples, did not create a general peril outside of a failure to perform
under the contract.

Because Plaintiff has not pleaded an action in tort, the court need not
reach the parties' arguments concerning causation. In addition, Defendant's
motion in limine, which challenged the causation conclusions of Plaintiff's
medical expert, will be denied as moot. Although Plaintiff's single count of
negligence did not plead a separate contract action, the court will,
pursuant to the analysis above, consider the substance of Plaintiff's
complaint and not elevate as determinative the form in which it was
presented. Therefore, the court will view Plaintiff's cause of action as an
action alleging a breach of contract.

B. Defendant Breached the Contract

Defendant confirmed at oral argument that it does not dispute initially
giving [*12] the wrong address to emergency medical services and that it
therefore does not dispute failing to perform under the contract. The
specific handwritten instructions on the contract required Defendant to, in
the event of a medical alarm, "dispatch EMS/fire w/o prior contact to home."
Contract, Def.'s Ex. B at 2. The "home" is clearly identified on the
contract and there is no disputing the fact that Defendant initially gave
dispatchers an incorrect address. (Def.'s Mot. at PP 11-12.) The court now
turns to what damages, if any, are appropriate under the contract.

B. The Liability Limiting Provisions of the Contract Apply to This Case

Defendant contends that, under the terms of the parties' agreement,
Plaintiff can only recover $ 500 for his contract claim. Plaintiff contends
that, because the contract was presented to him in a deceptive and
fraudulent manner, the court should not apply the contractual language that
limits Defendant's liability for failing to perform under the contract.
(Pl.'s Br. at 18-21.) He contends that Defendant purposefully concealed from
him these material provisions by printing them "on the back of the
sub-copies of the agreement that [Plaintiff] signed. [*13] " (Id. at 19.)
Plaintiff in his brief argued that at oral argument the court would have to
examine an original of the contract form and the paper it was printed upon
in order to "fully appreciate the subtle design," Pl. Resp., p. 10, and to
comprehend the nature of the alleged deceptiveness. Defendant, upon the
court's request, submitted blank copies of the form contract. n3 Having
inspected the contract form, the court rejects Plaintiff's characterization
of it as designed to mislead.

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n3 At oral argument, Plaintiff's counsel suggested that the blank form
examined by the court was newer, and that it differed in a few respects from
the actual form contract that Plaintiff signed. Those differences are
apparent in comparing the blank's format to the photocopy of the Customer
Copy of the original Spengler contract. (Def.'s Mot. Ex. B). The differences
include the following: (1) the identical notice provision language appeared,
in a marginally smaller font, in a location about 1/4 inch above the
signature line, instead of directly above it, (2) the possible absence of a
"cover page" on which a table of contents of the Terms and Conditions is
printed, and (3) that the contract might not have required a second original
signature by Plaintiff on a subsequent page. Defendant confirmed at the
hearing that blank copies of the formerly used form contract were no longer
available. The court is not persuaded that any of the differences are
material, even viewing the facts in the light most favorable to Plaintiff.
The court is not required to imagine how portions of the original contract,
if any, that are not in the record, might have appeared in a fashion that
now benefits Plaintiff's arguments. It is apparent in the record that the
marginal differences in font size and location do not impact the court's
analysis. Even assuming that the cover page was not presented to Plaintiff,
that assumed fact would also not affect the court's analysis. The portions
of the contract upon which Plaintiff focuses his argument remain the same in
both versions.


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The contract consists of eight pages bound at the top. The cover page is
entitled "Residential Services Contract" and lists a table of contents for
"attached important terms and conditions." Among the list of twenty-eight
are the following:


5. We Are Not an Insurer

6. No Liability; Limited Liability

7. Exclusive Damages Remedy

8. Hold Harmless


The following seven pages are the contract itself, with blank fields to be
filled with various information, and some pages with text stating the terms
and conditions. Red text in the lower right corner of each of these pages
indicates who retains the page upon signing of the contract, which are, in
order of their appearance: administration, central storage, local office,
customer (two pages), local office, and central storage. Plaintiff contends
that comparison of the administration page with the customer pages reveals a
subtle design meant to defraud customers. (Pl.'s Br. at 19-20).

Based upon the court's examination of the exemplar provided, the
"administration" page is printed on stiffer, somewhat heavier stock paper.
The other pages, meanwhile, are thinner, fairly ordinary stock paper. n4 The
front of the administration [*15] page is divided into four Sections meant
to be filled out with the details of the parties and the service agreement.
Sections 1-4 ask for customer information, services to be provided,
equipment to be installed, and billing information. At the bottom is a
signature line for the customer to sign. The text on the front of the first
customer page is identical to the text on the front of the administration
page. However, the important difference, according to Plaintiff, is between
the back sides of the two pages.

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n4 Plaintiff describes two of these pages as "onion skin paper pages."
(Pl.'s Br. at 20.) The court disagrees with Plaintiff's characterization.
Unlike onion skin pages, the pages in question are not transparent or
translucent or sufficiently gossamer to qualify as onion skin. While they
are not printed on paper as thick as the administration page, they are
nonetheless printed on ordinary stock paper.


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The reverse of the administration page contains Sections 5-10, which ask for
supplemental customer information, [*16] emergency contacts, a password,
notes for the installer, profile codes, and a place to list customer
referrals for new business. The reverse of the first "customer" page, on the
other hand, lists the first fourteen of twenty-eight Paragraphs, not
Sections. These fourteen Paragraphs, like the second fourteen Paragraphs on
the second customer page, contain the "Terms and Conditions" of the
contract. The paragraphs concerning limitation of liability are specifically
referenced in a notice printed somewhat above Plaintiff's signature.
According to the notice, printed in all capital letters:
YOU ADMIT THAT YOU HAVE READ THE FRONT AND BACK OF THIS PAGE IN ADDITION TO
THE ATTACHED PAGE WHICH CONTAINS IMPORTANT TERMS AND CONDITIONS FOR THIS
CONTRACT BEFORE SIGNING. YOU STATE THAT YOU UNDERSTAND ALL THE TERMS AND
CONDITIONS OF THIS CONTRACT, INCLUDING, BUT NOT LIMITED TO, PARAGRAPHS 5, 6,
7, 8, 9, AND 10. YOU ARE AWARE OF THE FOLLOWING: NO ALARM SYSTEM CAN
GUARANTEE PREVENTION OF LOSS; HUMAN ERROR IS ALWAYS POSSIBLE; ALARM SIGNALS
MAY NOT BE RECEIVED IF THE TELEPHONE LINE OR OTHER ALARM TRANSMISSION SYSTEM
IS CUT, INTERFERED WITH, OR OTHERWISE DAMAGED.


Just below this notice [*17] is text stating, in all capitals, "A SECOND
PAGE ACCOMPANIES THIS PAGE WITH ADDITIONAL TERMS AND CONDITIONS."

Several, but not all of the Paragraphs are printed in all capital letters,
including the Paragraphs 5 through 10 referenced in the Notice. In relevant
part, those paragraphs state the following:
5. . . . WE ARE NOT AN INSURER AND YOU WILL OBTAIN FROM AN INSURER ANY
INSURANCE YOU DESIRE. THE AMOUNT YOU PAY IS BASED UPON THE SERVICES WE
PERFORM AND THE LIMITED LIABILITY WE ASSUME UNDER THIS CONTRACT AND IS
UNRELATED TO THE VALUE OF YOUR PROPERTY OR THE PROPERTY OF OTHERS LOCATED IN
YOUR PREMISES. IN THE EVENT OF ANY LOSS OR INJURY TO ANY PERSON OR PROPERTY,
YOU AGREE TO LOOK EXCLUSIVELY TO YOUR INSURER TO RECOVER DAMAGES. YOU WAIVE
ALL SUBROGATION AND OTHER RIGHTS OF RECOVERY AGAINST US THAT ANY INSURER OR
OTHER PERSON MAY HAVE AS A RESULT OF PAYING ANY CLAIM FOR LOSS OR INJURY TO
ANY OTHER PERSON.

6. NO LIABILITY; LIMITED LIABILITY. IT WILL BE EXTREMELY DIFFICULT TO
DETERMINE THE ACTUAL DAMAGES THAT MAY RESULT FROM OUR FAILURE TO PERFORM OUR
DUTIES UNDER THIS CONTRACT. YOU AGREE THAT WE AND OUR AGENTS, EMPLOYEES,
SUBSIDIARIES, AFFILIATES AND PARENT COMPANIES ARE [*18] EXEMPT FROM
LIABILITY FOR ANY LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE ARISING DIRECTLY
OR INDIRECTLY FROM THE SERVICES (INCLUDING INTERNET/WEBSITE SERVICES) WE
PERFORM OR THE SYSTEMS WE PROVIDE UNDER THIS CONTRACT. IF IT IS DETERMINED
THAT WE OR ANY OF OUR AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENT
COMPANIES ARE DIRECTLY OR INDIRECTLY RESPONSIBLE FOR ANY SUCH LOSS, DAMAGE,
INJURY OR OTHER CONSEQUENCE, YOU AGREE THAT DAMAGES SHALL BE LIMITED TO THE
GREATER OF $ 500 OR 10% OF THE ANNUAL SERVICE CHARGE YOU PAY UNDER THIS
CONTRACT. THESE AGREED UPON DAMAGES ARE NOT A PENALTY. THEY ARE YOUR SOLE
REMEDY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE IS
CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE TO
PERFORM DUTIES UNDER THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH
ANY APPLICABLE LAW, OR OTHER FAULT . . . .

7. EXCLUSIVE DAMAGES REMEDY. YOUR EXCLUSIVE DAMAGE AND LIABILITY REMEDIES
ARE SET FORTH IN PARAGRAPH 6 ABOVE. WE ARE NOT LIABLE TO YOU OR ANY OTHER
PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.


In the current form, two of the pages called for an original signature: the
"administration" page and the [*19] first "central storage" page, which is
also the first ordinary stock page after the administration page. n5 It
seems that carbon copies of the signature and certain other information on
the latter would appear on the other ordinary stock pages below, including
the "customer" pages. Plaintiff contends that the contract was presented to
him in such a way that the above contract language was "never displayed to
me, never brought to my attention." (Pl.'s Dep at 100, Def.'s Ex. A.) He
surmises that the contract may have been fastened to a clipboard and folded
over in such a way that he was not aware of the terms and conditions. (Id.
at 101-102.) n6 He claims that he would not have signed the contract if he
was aware of the terms and conditions. (Id. at 103.) Plaintiff, a
businessman, admitted in his deposition that he signs contracts, generally
tries to read them, and that it is a good business practice read the
contracts that he signs. (Id. at 102-103.) He further avers that he was not
forced to sign anything and that the customer copy of the contract was
detached and given to him. (Id. at 105.)

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n5 Plaintiff's representation that the agreement is signed on the top page
only," (Pl.'s Br. at 20)(emphasis added), is not supported by citation to
the record. It is true that the copy provided by Defendant in its motion is
signed, but there is no showing of additional pages not signed. Defendant's
counsel at oral argument indicated that the excerpt of the deposition of
Defendant's salesman that is attached to Defendant's reply brief indicated
that two signatures were required. The court has reviewed that exhibit and
did not find deposition testimony supporting Defendant's counsel's
assertion. In light of the marginal differences between the two form
contracts, and from the appearance of the minimally altered "new" contract
form, which clearly requires two signatures, the court might infer that the
contract form Plaintiff signed also required a second original signature on
one of the pages following the administration page. This detail, however, is
not material to the court's analysis. [*20]



n6 Plaintiff's surmise, even if correct, does not release him from the
common sense obligation to understand what he signs. Here, he had
seventy-two hours to do so before the notice of cancellation provision,
which is described below, would have expired.


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The fact that the back sides of the administration and first customer pages
did not share the same text does not compel the conclusion that the document
was designed to mislead Plaintiff into believing that they did. The notice
near the signature area references Paragraphs, not Sections. Simple review
of the document would have revealed that the material being referenced was
the paragraphed "Terms and Conditions" of the agreement, and not the
"Sections" that solicited information from the buyer. Plaintiff's professed
confusion is the result of his failure to read and inspect the contract and
not due to any inherent fraud in the design of the document. Courts in
Michigan have long held that they will not redraft a contract because a
party failed to read it. See e.g. Clark v. DaimlerChrysler Corp., 268 Mich.
App. 138, 706 N.W.2d 471 (Mich. Ct. App. 2005); [*21] Montgomery v.
Fidelity & Guar. Life Ins. Co., 269 Mich. App. 126, 713 N.W.2d 801, 804
(Mich. Ct. App. 2005) (holding that "[a] contracting party has a duty to
examine a contract and know what the party has signed, and the other
contracting party cannot be made to suffer for neglect of that duty")
(citing Komraus Plumbing & Heating, Inc. v. Cadillac Sands Motel, Inc., 387
Mich. 285, 195 N.W.2d 865 (Mich. 1972), applying Liska v. Lodge, 112 Mich.
635, 71 N.W. 171 (Mich. 1897)).

Furthermore, even if Plaintiff were somehow prevented at the signing from
reading and understanding the terms and conditions of the contract, he had
an additional three days under the contract's cancellation provision. Just
above the place for signature appears the following notice in bold print:
NOTICE OF CANCELLATION

YOU, THE CUSTOMER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO THE END
OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE ATTACHED
NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.


Plaintiff admits that he did discuss the notice of cancellation with
Defendant's sale agent. (Pl.'s Dep. at 101.) [*22] That admission, coupled
with the fact that Plaintiff acknowledged receipt of the customer copy of
the contract (id., at 105), which undisputedly included the liability
limitation provisions, deflates utterly Plaintiff's claim that he was the
victim of fraud. Accordingly, the terms of the contract apply to Plaintiff's
case. Because Plaintiff must be charged with fairly and knowingly signing a
contract that included a release on potential liability, his reliance on
cases involving fraud and overreaching is misplaced.

Plaintiff's attempt at distinguishing the long line of cases Defendant cites
in support of liability limitation for alarm service providers is not
persuasive. He argues that those cases involved loss of property and not
"cases where the same principle holds true in a medical call button case
where actual human life is so closely dependant upon [the alarm providers']
actions." (Pl.'s Br. At 21.) The court disagrees. The risk associated with
fire, burglary, and the like is not limited exclusively to the loss or
destruction of property. Fire and home invasio