The opinion of the court was delivered by: Herndon, Chief Judge:
I. Introduction and Background
Now before the Court is defendant Vantage Hospitality Group, Inc.'s motion for summary judgment (Doc. 27). Vantage contends that it is entitled to summary judgment on Counts III and IV of the first amended complaint as it does not own, operate or oversee any hotel operations nor were the co-defendants their agents which would allow liability under a theory of vicarious liability. Plaintiffs oppose the motion arguing that Vantage Hospitality Group, Inc. ("Vantage") retains far more control than their motion suggests (Doc. 34). Because the Court finds that there is a dispute of material fact as to the control issue, the Court denies the motion.
On December 30, 2010, plaintiffs Thomas and Brenda Longbine filed a six-count first amended complaint against defendants PJ Corporation of Tennessee ("PJ Corp.") (Counts I and II), Vantage (Counts III and IV) and NJ Daya Family, LLC ("NJ Daya")(Counts V and VI) alleging negligence and loss of consortium. The first amended complaint alleges that Thomas Longbine sustained hundreds of bed bug bites and suffered severe injuries after staying at the America's Best Value Inn located in Carbondale, Illinois on July 17, 2010. Specifically, the first amended complaint alleges that defendants, as owners and operators of the America's Best Value Inn, negligently and carelessly failed to provide guests with safe and sanitary rooms and negligently and carelessly failed to take steps, including inspections, to keep its premises clean and free of infestation, including bed bugs. Brenda Longbine brings claims of loss of consortium as a result of Thomas' bed bug bites.
Vantage provides certain services to hotels within its brands, such as assistance with reservations and marketing. One of Vantage's brands is the America's Best Value Inn. Defendants Vantage and PJ Corp entered into a membership agreement for the America's Best Value Inn located in Carbondale, Illinois, effective May 10, 2010. The membership agreement entered between PJ Corp. and Vantage provides in part the following:
"Member's satisfaction and success as a Member depends substantially on Member operating and maintaining the Property in accordance with the Brand Programs; however, other than as set forth in this Agreement, Member is free to operate Property pursuant to its independent best practices business judgment."
"13) PROGRAM COMPLIANCE: a. MEMBER APPROVED PROGRAMS:
Member shall comply with all Member Approved Programs ... Notwithstanding the above, the Brand is not established to, and does not, substantially control the business operations, local property marketing programs or business practices of Member and therefore relies upon Member to understand its local market and consumers/guests and to operate Property consistent with the applicable best business practices in the transient guest business;"
"Level of Service: A general reference to the degree to which a provider of hotel services treats guests; Members shall provide guests with a high Level of Service in order that the guest's reasonable expectations shall be met or exceeded and including that Member, as well as its employees, agents, etc., shall conduct their hotel operations professionally, ethically and considerately. ...
Quality Assurance Inspection: The process that includes a personal visit by a SSAPD Director to the Property in order to perform an inspection of the Property relative to Property Standards; pursuant to this visit a Quality Assurance Report is generated, a Quality Assurance Score is provided and, as necessary a PIP is prepared, reviewed and established for the Property. While at the Property on such occasion, the SSAP Director may also review Level of Service matters and will endeavor to work with the Member and applicable staff on Brand Programs."
Quality Assurance Report: A written summary provided to the Member that sets for the score achieved by a Property pursuant to the Quality Assurance Inspection; the form of the Report is contained in the Transition Guide Qaulity Assurance Score: The cumulative grade/score (QA Score) established for the Property pursuant to a Quality Assurance Inspection and as recorded on the Quality Assurance Report; in the event ...