Pierre-Canel v. American Airlines

          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 ...