The Court summarized the facts and procedural history, in relevant part, as follows (internal citations omitted):
According to the Second Amended Complaint (“SAC”), on or about June 10, 2006, Plaintiff Michael Burnett participated in Tufguy’s “Ultimate Fighter 4” television show. As a result--presumably during a fight, although not explicitly so stated in the SAC--Plaintiff suffered a spinal injury. At that time, Plaintiff was insured under an accident and health insurance policy issued by Defendant National Union Fire Insurance Co. of Pittsburgh, PA (“NUFIC”), Policy No. 009109179 (“the Policy”). Plaintiff alleges that although he has fulfilled all conditions precedent to NUFIC’s performance under the Policy, NUFIC has failed to make a reasonable offer and payment under the Policy in connection with his injuries, and that NUFIC, despite numerous requests, has failed to provide him with even a true and correct copy of the Policy. . . .Plaintiff brings three causes of action: (1) Negligence (against Tufguy, Zuffa, and UFP); (2) Breach of Contract (against NUFIC); and (3) Breach of the Covenant of Good Faith and Fair Dealing (against NUFIC). The Court has denied a motion to dismiss the SAC for lack of prosecution. After inviting blind briefs on the issue of improper removal, the Court declined to remand. Defendants Tufguy, Zuffa, and UFP now move for summary judgment on the sole cause of action pled against them: negligence.In its analysis, the Court found it "mysterious" that through two-years of proceedings the source of the alleged injury has not been articulated. Specifically, the opinion provides:
The Court notes that the negligence claim could be dismissed because Burnett has failed to allege specific acts or admissions sufficient to establish a prima facie case of negligence.It is unclear from the SAC how the injury is alleged to have occurred or what actions Defendants took or failed to take in violation of their alleged duty to ensure Plaintiff’s safety. Perhaps a referee who was an agent of one or more Defendants failed to stop a fight after Plaintiff had submitted under the rules or been knocked unconscious, but this appears unlikely, because Plaintiff has sued no opponent for battery for exceeding the scope of his consent. Perhaps Plaintiff was injured by faulty equipment or dangerous property conditions at a fight venue, but this also appears unlikely, because Plaintiff has sued no manufacturer, retailer, or real property owner. The negligence claim has remained somewhat mysterious for the almost two years that this claim has been pending.
However, because defendants did not move for summary judgment on this ground, the Court turns to Zuffa's argument for dismissal, which is "based purely on contractual waiver[s] of liability" contained in the: "(1) Exclusive Promotional and Ancillary Rights Agreement ("the Zuffa Agreement") ; (2) Ultimate Fighter Applicant Agreement ("the Tufguy Agreement); and (3) Ultimate Fighter Waiver and Release, Assumption of the Risk, and Indemnity Agreement ("the Waiver and Release")."
The Court provides an analysis of the relevant language from each agreement and holds as follows:
Defendants have met their initial burden on summary judgment to show that there is no genuine issue of material fact that they are not liable on Plaintiff’s negligence claim. Under the agreements, Plaintiff both assumed the risk of his alleged injuries and covenanted not to sue. The burden now shifts to Plaintiff to adduce evidence showing a genuine issue of material fact as to liability. In response, Plaintiff argues that because Defendant NUFIC breached its separate contract to insure Plaintiff, it is unconscionable for any Defendant to claim that it is released from liability. NUFIC is not a moving party and has not joined the present motion. Only the non-NUFIC Defendants have moved for summary judgment, and only on the negligence claim, which is not pled against NUFIC.The Court addresses Burnett's procedural and substantive unconscionability arguments and concludes that he has not met his burden.
Notably, with respect to Burnett's substantive unconscionability argument, i.e. plaintiff's argument that "the Zuffa Agreement--but not the others--is substantively unconscionable because it 'does not allow for any remedy for Plaintiff should Defendant breach,'" the Court recognizes that plaintiff "quotes a portion of the agreement that in fact permits Plaintiff to seek redress for any breach of the agreement by Zuffa if Zuffa fails to cure the alleged breach within ten days" and holds that "none of the moving Defendants are moving to dismiss a breach of contract claim, and Plaintiff has brought no such claim against the moving Defendants. He has brought only a negligence claim against these Defendants, and Plaintiff’s ability to sue Zuffa for breach of contract does not somehow render the waivers of liability for personal injuries nullities."
Thus, and despite having found that the waivers in the agreements are perfectly valid and enforceable against the negligence claim, the Court then gives plaintiff one potential ("implausible") opening to continue his action against Zuffa.
Specifically, the Court states as follows:
If Plaintiff wishes to amend his complaint to plead a breach of contract cause of action against Zuffa, Tufguy, and/or UFP predicated on NUFIC’s denial of benefits under the Policy, he may move to do so, although such a claim seems implausible without an allegation that one or more of these Defendants was the claims administrator. But such allegations would still have nothing whatsoever to do with the substantive fairness of the agreements containing the waivers against liability for personal injury. Plaintiff has simply not made any argument indicating procedural or substantive unconscionability of the Zuffa Agreement, Tufguy Agreement, or Waiver and Release at the time they were entered into.Fight Lawyer
