DirecTV, Inc. v. Mattingly

RAKER and HARRELL, JJ.

dissenting.

We respectfully dissent. The Circuit Court for St. Mary’s County properly dismissed this case on the ground that the parties agreed to arbitrate any disputes related to their contractual relationship, including the amount of the “late fees” incurred by respondent. Respondent is required to arbitrate his claim against petitioner because he agreed to arbitrate and his claim falls within the scope of that agreement. Our fundamental disagreement with the Majority is its conclusion that Mattingly’s undisputed conduct in continuing to receive and pay for DIRECTVs services following receipt of each of the replacement Customer Agreements, most of which were received before the late fee dispute arose (the instant litigation was initiated on 6 August 1999; Mattingly paid the late fee assessed on 17 July 1999, without protest, but filed his putative class action suit thereafter), was not conduct sufficient to indicate agreement with the inclusion of the arbitration requirement in the replacement Customer Agreements.

Petitioner, DIRECTV, sent written notice to respondent of the changes made to the customer agreement and the effective dates of the changes. The three pre-dispute customer agree*325ments mailed to respondent — effective March 1, 1997, July 1, 1997, and June 1, 1999 — all gave explicit notice of the added arbitration agreement provision, as follows:

“ARBITRATION:
“Any controversy, claim, dispute or disagreement arising out of, or relating to, this Agreement or any services provided by DIRECTV which cannot be settled by the parties shall be resolved according to binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect.”

Simply because petitioner did not specifically “warn” of or describe the changes separately did not render the changes invalid. Nor was petitioner required to send a separate written notice describing changes in the Customer Agreement. Respondent had adequate notice of the changes, including the arbitration provision — all he had to do was to read the document petitioner enclosed with the bill statement. Contrary to respondent’s contention, it was hardly “impossible” for him to agree knowingly to the changes.

The Majority anguishes over the imaginary hardships that would be visited upon Mattingly (or other theoretical ordinary consumer) were he held to be obliged to read each replacement Agreement in order to appreciate what the proposed changes might be (Maj. slip op. at 15). Even a gross visual comparison of the respective replacement Agreements, however, should lead the average person to realize immediately that changes were present. To begin with, the Customer Agreements, in all of their iterations in this record, are not policies of insurance (a pejorative reference as used here). They are instead relatively short, comprising a single, 8jé" x 11" page with print on both sides arranged in three columns and then folded, accordion-style, so that it resembles a pamphlet with what would then become six “pages.” Each numbered provision bears a subject matter title in bold print. The size of the print, except for the larger DIRECTV logo and the title “CUSTOMER AGREEMENT,” appears to be of pitch 6 or 7 in size.

*326The heading of the cover page of the original Agreement clearly states that it is “effective as of August 28, 1996, until replaced ” (emphasis added). The heading of the cover page of each replacement Agreement indicates a new effective date, also “until replaced.” It does not strain reasonable expectations to assume that the average consumer should appreciate that receipt of a Customer Agreement bearing a new effective date, thus replacing an earlier Agreement, likely contains some changes. Common sense “dictates that a revised ... agreement contains terms and conditions that are different from its predecessor.” Herrington v. Union Planters Bank, N.A, 113 F.Supp.2d 1026, 1031 (S.D.Miss.2000).

The Majority insists that to be aware of changes to the customer agreement, respondent would have had to “meticulously comb through both documents line by line and compare each word of the initial customer agreement’s fine print to the fine print of the newer document.” The Majority therefore worries that if a customer were to misplace, discard or lose their initial customer agreement “due to a hurricane, tornado, flood, fire or other inadvertent cause, it would be impossible for them to have any notice of the changed or added provisions.”

As even the Majority must concede, however, the initial 28 August 1996 Agreement, which Mattingly clings to in this litigation, states, in pertinent part, in its short, opening paragraph numbered 1, also on the cover page of the “pamphlet”:

1) AGREEMENT TO TERMS AND CONDITIONS:
Customer’s receipt of services constitutes Customer’s acceptance and agreement to all terms and conditions of this Agreement. DIRECTV reserves the right to change these terms and conditions, including the Applicable Fees and Charges. If any changes are made, we will send you a written notice describing the change and its effective date. If a change is not acceptable to you, you may cancel your service. If you do not cancel your service, your continued *327receipt of any service is considered to be your acceptance of that change.

(emphasis in original).

Because this language does not promise that the “written notice” of changes will take any particular form, it is not unreasonable to expect that a subsequent, replacement Customer Agreement, bearing a different effective date on its cover page, serves, upon receipt, as written notice sufficient to put the average consumer on notice to examine it for changes.1 Even a cursory examination of any of the replacement Customer Agreements in this record would have revealed to the average person the particular change that is the gravamen of the present case. A reasonable person, on notice of possible changes, but who may not wish to scrutinize comparatively all of the “fine print” unless there was some more manifest indicium of change, might look to see if any additional numbered provisions had been added. The initial 28 August 1996 Agreement contained twenty-two numbered sections, with the last, No. 22, entitled “MINIMUM LEVEL OF SERVICE.” The last numbered provision of each replacement Agreement was No. 23, entitled “ARBITRATION,” preceded by No. 22, “MINIMUM LEVEL OF SERVICE.” Thus, had Mattingly exercised the simple expedient of ascertaining the total number of provisions in each Agreement, using the 28 August 1996 Agreement as a base, he would have discovered (if he did not) the very provision he now seeks to avoid so that he may maintain a potential class action lawsuit over the allegedly usurious late fee charge of $2.81. By the even simpler expedient of canceling his subscription for satellite tv service following receipt of any of the pre-dispute replacement Agreements, *328Mattingly could have vindicated his objection to the unilateral imposition of mandatory arbitration, albeit at the possible loss thereafter of his ability to view “The Sopranos” or “The Shield,”2 unless and until cable television is extended to his neighborhood.

In a recent case, Allstate Ins. Co. v. Stinebaugh, 374 Md. 631, 824 A.2d 87 (2003) (No. 81, September Term, 2002) (filed 12 May 2003), the Court, in the context of a dispute over whether an agreement to arbitrate existed, was confronted with the issue of “the legal effect of an agreement that contemplates judicial resolution of a particular dispute, upon a prior, general arbitration agreement.” Stinebaugh, at 635, 824 A.2d at 89. Noting that no reported Maryland appellate decision addressed the issue (Stinebaugh, at 646, 824 A.2d at 96), the Court discussed an Oklahoma case, Shawnee Hosp. Auth. v. Dow Constr., 812 P.2d 1351 (Okla.1990), that decided that question in an analogous factual context to Stinebaugh. Favorably citing to the Dow decision, we iterated “the following principles of contract law relied on by the Oklahoma court”:

Before full performance, contractual obligations may be discharged by a subsequent agreement whose effect is to alter, modify, or supersede the terms of the original agreement or to rescind it altogether. A claim under an earlier contract will be governed by a later agreement if the latter operates to supersede to rescind the former. Where not expressly stated, the legal effect of the later contract on the former must be gathered from a four-corners’ examination of the contractual instrument in question.

Stinebaugh, at 646, 824 A.2d at 96, citing Dow, 812 P.2d at 1353-54 (footnotes omitted). The Court then stated that

[W]e have embraced legal tenets similar to those employed by our sister state regarding arbitration and contract law. Arbitration is “consensual; a creature of contract.” *329Curtis G. Testerman Co. [v. Buck], 340 Md. [569] at 579, 667 A.2d [649] at 654 [(1995)] (quoting Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: The Search for Workable Solutions, 72 IOWA L.REV. 473, 476 (1987) (citation omitted)). As such, “[a] party cannot be required to submit any dispute to arbitration that it has not agreed to submit,” id. (quoting Gold Coast Mall [Inc. v. Larmar Corp.], 298 Md. [96] at 103, 468 A.2d [91] at 95 [(1983)]), and “[t]he intention of the parties controls on whether there is an agreement to arbitrate.” Crown Oil [& Wax Co. v. Glen Constr. Co.,], 320 Md. [546] at 558, 578 A.2d [1184] at 1189 [(1990)]. Further, like Oklahoma, we have recognized that rights and obligations under contracts may be discharged by subsequent agreements. See, e.g., [ ] Linz v. Schuck, 106 Md. 220, 234, 67 A. 286, 290 (1907) (stating that modification is “an abandonment of the original contract and the creation of a new contract”).

Stinebaugh, at 648, 824 A.2d at 97 (footnote omitted; some internal citations omitted).

Most courts enforce arbitration agreements that were entered into in the manner that the parties entered into the instant agreement. In Bank One, N.A. v. Coates, 125 F.Supp.2d 819 (S.D.Miss.2001), the court enforced an arbitration agreement added by a credit card company to the customer agreement by mailing an amendment to the card holders whose complaints previously had not been subject to arbitration. The court said:

“Given, then, that the original cardholder agreement permitted amendments, the arbitration provision is not rendered unenforceable simply by virtue of the fact that Bank One undertook to add the arbitration provision via amendment. Consistent with the terms of the original agreement, Bank One could validly amend its agreement to add an arbitration clause, just as it could have amended the agreement to add or change any other term on the agreement.”

Id. at 831.

Respondent essentially argued that the changes were “procedurally unconscionable” and therefore should not be en*330forceable. The original agreement permitted unilateral amendment by DIRECTV following written notice to its customers. Consistent with the terms of the original agreement, DIRECTV could add an arbitration provision, unless the manner in which it was added is deemed to be unfair. We do not find DIRECTV’S chosen method to be unfair. DIRECTV sent respondent notification of the amendment and specifically gave him the option of rejecting the services if he did not agree to the new terms and conditions, including the arbitration provision. In short, the parties agreed to arbitrate.

We are persuaded that the replacement Customer Agreements, received before the dispute arose, were sufficient written notice to Mattingly of DIRECTV’S insertion of a mandatory arbitration provision as a proposed modification in the contractual agreement to govern their respective future performance and rights, that it was not onerous to expect Mat-tingly to have appreciated that that change had been made, and that Mattingly had a reasonable and fair opportunity to cancél the contract if he objected to the arbitration provision. He elected to continue to receive DIRECTV’S services, subject to the mandatory arbitration provision, and should not be allowed now to avoid arbitration of the dispute over the late fee.3 Accordingly, we would reverse the judgment of the Court of Special Appeals and order that court to affirm the judgment of the Circuit Court for St. Mary’s County.

. Even were we addressing an insurance policy, where the insured’s “duty is not necessarily to read the policy but simply to act reasonably under the circumstances” (Intern. Brotherhood of Teamsters v. Corroon Corp., 369 Md. 724, 739, 802 A.2d 1050, 1059 (2002)), the circumstances of this case (a short agreement where the customer is on notice of the likelihood of changes in replacement Agreements bearing later effective dates) suggest to us a reasonable duty on Mattingly’s part to read the first and subsequent Agreements.

. Access to satellite (or even cable) television has not yet risen in American society, we hope, to the level of shelter, food, health care, or other fundamental necessity of life.

. DIRECTV, in a 13 September 1999 letter to Mattingly’s counsel from its counsel, offered, subject to the arbitrator’s decision whether Mat-tingly's claim was frivolous or brought for harassment purposes, to pay the filing fees of the American Arbitration Association (AAA), the AAA's hearing fees, hearing room rental fees, and the arbitrator’s compensation and expenses.