United States District Court, D. Arizona
Iddy M. Pierre-Canel and Emmanuel J. Simeus, Plaintiffs,
v.
American Airlines, et al. Defendants.
ORDER
Cindy
K. Jorgenson, United States District Judge.
Pending
before the Court is the Motion for Summary Judgment (Doc. 63)
filed by Defendant American Airlines, Inc.
(“American”). Plaintiffs Iddy M. Pierre-Canel
(“Pierre-Canel”) and Emmanuel J. Simeus
(“Simeus”) (collectively,
“Plaintiffs”) have filed a response (Doc. 65) and
American has filed a reply (Doc. 67). Oral argument has been
requested. However, the issues are fully presented in the
briefs and the Court finds it would not be assisted by oral
argument. The Court declines to schedule this matter for oral
argument. LRCiv 7.2(f).
I.
Factual and Procedural Background
On
February 8, 2016, Pierre-Canel's child Carm-Idrelle
Casseus (“Casseus”) died in Tucson, Arizona.
Adair Funeral Home arranged for Casseus's remains to be
flown from Tucson, Arizona to Snowden Funeral Home in
Baltimore, Maryland for cremation and for memorial services.
Pierre-Canel's
return flight to Tucson, with a layover in Dallas/Fort Worth,
was booked with American for March 5, 2016. Simeus returned
to Tucson a few days earlier.
Pierre-Canel
had Casseus's cremated remains placed in a sealed screw
top urn (“the Urn”). Plaintiffs assert
Pierre-Canel packed the Urn, her daughter's pictures,
jewelry box and jewelry, personal items, and a yellow
envelope containing numerous sympathy cards and monetary
gifts in her Louis Vuitton duffel bag (the “LV
Bag”). During her deposition testimony, Pierre-Canel
testified that the LV Bag contained the Urn, three suits, ten
dresses, two pairs of jeans, four pairs of dress pants, four
pairs of shoes, cosmetics, one purse, two wallets, lingerie,
undergarments, sandals and Casseus's $24, 000 in jewelry.
Simeus testified during his deposition that he did not know
what Pierre-Canel packed. Pierre-Canel planned to carry the
LV Bag and a red roller bag (the “Red Bag”) as
carry-on baggage on the aircraft. Pierre-Canel asserts she
arrived at the Baltimore-Washington International Airport
(“BWI”) with three bags; she checked a large gray
bag at the ticket counter. American asserts its baggage
records indicate Pierre-Canel checked one bag at 4:20 p.m. at
the ticket counter. Plaintiffs point out that this assertion
by American assumes their baggage records are accurate.
American's customer service records and an American
Senior Investigator admit American mishandled the bag(s) in
question.
Pierre-Canel
asserts she carried the remaining two bags (the LV Bag and
the Red Bag) and proceeded towards the departure gate. At the
TSA screening area, the TSA agent requested Pierre-Canel open
the bags. The TSA agent noticed the Urn in the LV Bag and
inquired about its contents. Pierre-Canel told the TSA agent
the Urn contained the ashes of her daughter, Casseus; the TSA
agent told Pierre-Canel not to carry the Urn outside the bag,
just to keep it in her carry-on bag and proceed to the
departure gate.
At the
American departure gate, Pierre-Canel checked in. She asserts
she then sat in the waiting area at the gate and, mourning
the loss of her daughter, began crying quietly. Plaintiffs
assert a gate agent approached Pierre-Canel three (3)
different times and asked her if she could check
Pierre-Canel's bags. Plaintiffs assert Pierre-Canel
specifically told a gate agent that her daughter's ashes
were in an urn in her LV Bag and refused to have her bags
checked. As Pierre-Canel prepared to board the plane at the
jetway door, a woman who was later identified as Gate Agent
Rosann McCormack (“McCormack”) took both carry-on
bags from Pierre-Canel. Plaintiffs also assert that neither
McCormack nor anyone else told Pierre-Canel to remove
valuable items from her bags. Pierre-Canel states she
believed the gate agent was going to carry Pierre-Canel's
bags on the airplane for her. Plaintiffs assert that, after
Pierre-Canel took her seat in first class and the plane doors
closed, a Gate Agent gave Pierre-Canel two baggage claim
tickets.
American
asserts its baggage records indicate Pierre-Canel checked one
bag at the gate at 4:57 p.m. Plaintiffs assert the bag shown
on American's records to have been checked in at 4:57
p.m. likely belonged to a different passenger whose luggage
was also mis-tagged.[1] Plaintiffs assert, “[American's]
own records show that their baggage service operators had
only six minutes time to manipulate the bags from the time it
was checked and the time it was loaded onto the plane.
Therefore, Pierre-Canel's luggage could not have been
checked at 4:57, as alleged by [American.]” Pl. SOF
(Doc. 66, p. 5). The records further indicate the
gate-checked bag was a red American Tourister bag and not a
Louis Vuitton bag. American points out this was a full hour
before the plane was boarded at5:48 p.m. American also points
out that Pierre-Canel testified that in all the times she has
ever flown, she has never had a gate agent walk bags onto the
plane for her.
Wendy
Yang (“Yang”), McCormack, and Michael Bailey
(“Bailey”), the American gate agents/customer
service representatives working Pierre-Canel's flight,
testified that they have no recollection of a woman from
Pierre-Canel's flight telling them she was carrying an
urn in a Louis Vuitton bag. They also testified that it would
have stuck out in their minds if they had been told an urn
was in a bag. However, neither McCormack nor Yang remember
working Pierre-Canel's flight on March 5, 2016, and
Bailey testified he was not at Pierre-Canel's gate on
March 5, 2016. McCormack, the American employee identified by
Pierre-Canel as the one who she believed would carry her bags
onto the plane, testified that she has offered to carry a
passenger's bags to the plane for them; however,
McCormack also testified that, in her opinion, if a person
had carried their bags from the ticket counter to the gate
agent, they would not need assistance to carry those same
bags onto the plane.
Yang,
McCormack, and Bailey also testified that, if a bag is
checked there will always be a computerized record. However,
Bailey testified that a computer record may not exist (for
example, when there is no remaining overhead space or when
systems are down). American asserts that even where there was
an error (i.e., the wrong tag was placed on the Red Bag), a
record is made of the event, unlike the alleged checking of
the LV Bag, of which there is no record in American's
computer system.
The LV
Bag and the Red Bag, which Plaintiffs assert were checked by
American personnel, did not timely arrive at the Tucson
International Airport (“TIA”). Pierre-Canel went
to the baggage claim department and told the American baggage
personnel her bags had not arrived. Pierre-Canel asserts she
immediately requested assistance from American personnel to
locate the Urn containing the ashes of Casseus, as well as
her lost bags containing other valuable property. Plaintiffs
asserts Pierre-Canel retrieved the LV Bag at TIA the next
day. However, Plaintiffs assert the Urn was not in the LV Bag
and that the bag had been torn and the zipper broken.
Pierre-Canel hoped the Urn would be located because she
asserts American personnel told her that, because the LV Bag
had been damaged, the Urn and other belongings may have been
placed in the Red Bag. Simeus testified that he went with
Pierre-Canel to TIA that next day; he testified the LV Bag
was at the airport, was damaged and a lot of stuff was
missing.
Pierre-Canel
contacted American almost daily, but asserts American had no
explanation and could not locate the Red Bag. A March 8, 2016
email from Pierre-Canel states, “"[u]pon checking
in at BWI, I checked two bags. When I arrived to Tucson at
approximately 11:20 p.m., I proceeded to luggage claims,
where I could find only one of my two bags." Am. SOF,
Ex. 10 (Doc. 64-10). Plaintiffs assert in context, this
statement was referring to the two bags that were checked at
the gate.
Pierre-Canel
did not provide receipts for the property (e.g., jewelry)
alleged to have been missing from the luggage. Pierre-Canel
testified that some of the items had not been recently
purchased.
On or
about March 11, 2016, American's Dallas warehouse
informed Pierre-Canel that the Red Bag had been found but the
Urn was missing. Plaintiffs assert American's employees
also told Pierre-Canel she had been given the wrong baggage
claim tickets for her carry-on baggage at BWI. Pierre-Canel
received the Red Bag via Federal Express on or about March
16, 2016. Pierre-Canel asserts she discovered that not only
was the Urn missing, but also missing were the jewelry, the
sympathy cards, and the monetary gifts.
Pierre-Canel
continued to contact American on almost a daily basis, via
emails and telephone calls, regarding the lost Urn.
Plaintiffs assert American agreed to fix the damaged LV Bag.
American asserts there is no evidence that the LV Bag was
ever damaged - Although American issued a “call
tag” for the LV Bag, Pierre-Canel never sent the bag to
be examined.
Plaintiffs
assert that, after the Urn was lost, the grief from the death
of Casseus remarkably magnified and caused intense strain on
Plaintiffs' relationship with each other. Simeus
testified that Pierre-Canel was withdrawn, would not talk and
spent hours by herself following the death of Casseus. When
asked to specify the difference between the distress from the
death of Casseus and the distress from losing the Urn, Simeus
did not know how to separate the two. However, he did testify
that both he and Pierre-Canel emotionally felt that they lost
Casseus twice and that it was difficult to describe. American
asserts Pierre-Canel and Simues both testified that, as a
result of losing the Urn, neither have seen a psychiatrist or
psychologist for counseling and have not had to take any
medication. Plaintiffs point out that Pierre-Canel and Simeus
actually testified that they were not on medication and that
American's attorney cut-off Pierre-Canel's response
to this deposition question. Additionally, Pierre-Canel did
receive counseling from church leaders. However,
Plaintiff's counsel refused to allow Plaintiffs to
testify as to the counseling they received from church
leaders.[2] American asserts Plaintiffs admitted to
not having experienced the “necessary physical
symptoms” to constitute severe emotional distress.
Plaintiffs object to the characterization of “necessary
physical symptoms” to constitute severe emotional
distress.
American's
Conditions of Carriage states, inter alia:
. . . In the event it is necessary to check carry-on bags,
ensure that fragile or valuable items, such as keys,
medication or computers are carried in your personal item . .
.
American's liability for loss, damage or delayed delivery
of checked baggage, including transfer baggage, is limited to
the actual value of the baggage or $3, 500, whichever is
less, unless the passenger declares a higher value for loss
of baggage, not to exceed $5, 000.00 . . . Excess valuation
coverage is not available for and does not apply to items
excluded in our liability below.
American does not assume liability for any of the following
items in or as checked baggage: antiques, artifacts, artwork,
books, and documents, china, computers and other electronic
equipment, computer software, fragile items, furs, heirlooms,
keys, liquids, money, orthotics, surgical supports,
perishable items, photographic, video and optical equipment,
precious metals, stones or jewelry (time pieces), securities
...