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Curtis v. Cellco Partnership

April 15, 2010

ROBERT C. CURTIS, PLAINTIFF-APPELLANT,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1371-08.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 5, 2010

Re-Argued Telephonically March 30, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

In this matter, we examine whether plaintiff's claims against defendant for consumer fraud fall within the scope of the arbitration clause of the parties' consumer service agreement. Plaintiff Robert C. Curtis became dissatisfied with the quality of the cellular telephone service provided by defendant, Cellco Partnership d/b/a Verizon Wireless, and refused to pay the outstanding account balance. Defendant reported plaintiff's non-payment to national credit bureaus, which he maintains negatively impacted his credit score and impeded his ability to procure desired financing. Plaintiff filed this action alleging, among other things, violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -106.*fn1 On defendant's motion, the trial court dismissed plaintiff's complaint, concluding the expansive language of the parties' service contract compelled arbitration. On appeal, plaintiff argues the service agreement was a contract of adhesion and, to be enforceable, must specifically include a waiver of statutory claims. Plaintiff maintains the contract with defendant lacks this specific waiver. Following our plenary review, we disagree and affirm.

Plaintiff entered into a "Verizon Wireless Customer Agreement" (the Agreement) with defendant to provide cellular telephone service during the period November 1, 2004 to November 1, 2006. The Agreement required a $175 payment for termination of the Agreement prior to its end date. We recite additional Agreement provisions relevant to our review.

The first paragraph of the document stated:

We're Verizon Wireless. Please carefully read this Agreement, including the calling plan or plans you've chosen, before filing it in a safe place.

This agreement covers important topics such as when it begins, how long it lasts, fees for early termination and late payments, our rights to change the agreement and your wireless service, limitations of liability, use of information about you, and settlement of disputes by arbitration instead of in court.

The Agreement included expansive provisions for dispute resolution and mandatory arbitration. These terms were distinguished from the Agreement's other terms by a box placed around them and the use of capitalized and bolded print. The introductory clause of this section states:

Dispute Resolution And Mandatory Arbitration ∞*fn2 INSTEAD OF SUING IN COURT, WE EACH AGREE TO SETTLE DISPUTES (EXCEPT CERTAIN SMALL CLAIMS) ONLY BY ARBITRATION. THE RULES IN ARBITRATION ARE DIFFERENT. THERE'S NO JUDGE OR JURY, AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME LIMITATIONS STATED IN THE AGREEMENT AS A COURT WOULD.

The Agreement expressed that its arbitration provisions were governed by the Federal Arbitration Act (FAA), 9 U.S.C.A. § 1 to -16. In describing the disputes covered, the Agreement stated:

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, . . . OR ANY PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT . . . WILL BE SETTLED BY ONE OR MORE NEUTRAL ARBITRATORS . . . . THIS DOESN'T CHANGE YOUR SUBSTANTIVE RIGHTS, JUST THE POTENTIAL FORUMS FOR RESOLVING DISPUTES. IN ADDITION YOU CAN STILL BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF APPROPRIATE FEDERAL, STATE, ...


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