Opinion
No. 4001345
July 22, 2005
MEMORANDUM OF DECISION
On November 4, 2004, the plaintiff, Christopher Annelli, on behalf of himself and others similarly situated, filed a one-count class-action complaint against the defendant, Ford Motor Company. In count one, the plaintiff alleges, inter alia, that the defendant violated General Statutes § 42-227, Connecticut's Secret Warranty Act, and General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff alleges that he brought this action on behalf of himself and for the benefit of all consumers who own or lease the following vehicle models: the Ford Crown Victoria, Mercury Grand Marquis and Lincoln Town Car models built between the years 1992 and 2003. Specifically, the plaintiff alleges, inter alia, the following. The aforementioned models were built on a "Panther-platform" design. The models built on the Panther-platform design are identical in all respects material to this action. The design of Panther-platform vehicles creates a significant risk of post rear-end collision fires, and the defendant has "designed a repair kit for these vehicles and has adopted [an adjustment] program to make the repair kit available free of charge for Panther-platform vehicles registered to certain law-enforcement agencies in the United States, including law enforcement agencies in Connecticut." "The repair kit is designed for all 1992-2003 Panther-platform vehicles and does not represent a case by case adjustment" made by the defendant. The repair kit was designed to "address the conditions causing post-collision fire risks and to enhance the Panther-platform vehicles' safety, durability, reliability and performance." The defendant, however, refuses to notify other Connecticut consumers affected by the rear-end collision problem about the repair kit's availability. Consumers, other than law enforcement agencies, must incur hundreds of dollars to obtain the kit and have it installed. The defendant fails to implement procedures to ensure reimbursement of consumers eligible under the adjustment program. The plaintiff alleges that the defendant has no intention of reimbursing consumers for these expenses, or for expenses incurred by owners or lessees before they obtained knowledge of the CT Page 11090-by defendant's adjustment program. The plaintiff alleges that the defendant's conduct is unlawful, unfair and deceptive in violation of subsection (h) of the Connecticut Secret Warranty Act, General Statutes § 42-227 and CUTPA, General Statutes § 42-110a et seq., causing the plaintiff and the members of the class to suffer ascertainable losses.
General Statutes § 42-227 provides in relevant part: "(a) For the purposes of this section: (1) `Consumer' means the purchaser, other than for purposes of resale, of a motor vehicle, a lessee of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle and any person entitled by the terms of such warranty to enforce the obligations of the warranty . . . (4) `Adjustment program' means any program or policy that expands or extends the consumer's warranty beyond its stated limit or under which a manufacturer offers to pay for all or any part of the cost of repairing or to reimburse consumers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability or performance, other than service provided under a safety or emission-related recall campaign. This term does not include adjustments made by a manufacturer on a case by case basis.
(5) `Manufacturer' means (A) any person who manufactures or assembles new motor vehicles for sale or distribution or (B) any person who is engaged in the business of importing new motor vehicles for sale or distribution to dealers or through distributors, or factory branches.
(6) `Motor vehicle' means a passenger motor vehicle, as defined in section 14-1 . . . CT Page 11090-ce
(b) A manufacturer shall establish a procedure in this state whereby a consumer (1) shall be informed of any adjustment program applicable to his motor vehicle and (2) shall be entitled to receive a copy of any service bulletin or index thereof upon request.
(c) Within ninety days of the adoption of an adjustment program a manufacturer shall notify, by first-class mail, all consumers eligible under such program of the condition in the motor vehicle which is covered by an adjustment program and the principal terms and conditions of the adjustment program.
(f) A manufacturer who establishes an adjustment program shall implement procedures to assure reimbursement of each consumer eligible under an adjustment program who incurs expenses for repair of a condition subject to the program prior to acquiring knowledge of the program. Such reimbursement shall be consistent with the terms and conditions of the particular program.
(g) Any claim for reimbursement under subsection (f) of this section shall be made in writing to the manufacturer within two years of the date of the consumer's payment for repair of the condition. The manufacturer shall notify the consumer within twenty-one business days of receiving a claim for reimbursement whether the claim will be allowed or denied. If the claim is denied, the specific reasons for the denial shall be stated in writing.
(h) A violation of any of the provisions of this section shall be deemed an unfair or deceptive trade practice under chapter 735a."
On December 17, 2004, the defendant filed a motion to strike the plaintiff's complaint on the grounds that: (1) the complaint is legally insufficient and fails to state a claim upon which relief can be granted under the facts alleged; and (2) Connecticut's Secret Warranty Act is preempted by the Federal Safety Act. With the motion, the defendant filed an accompanying memorandum of law. On January 24, 2005, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. On March 24, 2005, the defendant filed a memorandum of law in reply to the plaintiff's opposition.
DISCUSSION
The purpose of a motion to strike "is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). In addition, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "In dealing with a motion to strike, a court must give to the complaint every reasonable inference to sustain its legal sufficiency." Etter v. Advest, Inc., Superior Court, judicial district of New London, Docket No. 561512 (October 29, 2002, Corradino, J.) ( 33 Conn. L. Rptr. 321, 322).
The defendant argues that the plaintiff has not alleged actual damages or that he incurred any expenses for repairs to his vehicle and, therefore, he lacks standing because he alleges no direct injury. The plaintiff argues that he does not need to allege actual damages, only that he has suffered an "ascertainable loss." CT Page 11090-cz
The plaintiff alleges that the defendant has violated Connecticut's Secret Warranty Act which is, consequently, a per se violation of CUTPA. See General Statutes § 42-227(h) (where a violation of § 42-227 is deemed a deceptive and unfair practice under CUTPA). To bring a claim under CUTPA, as the plaintiff has, requires that the plaintiff allege ascertainable damages, not necessarily actual damages.
"General Statutes § 42-110b(a) provides in relevant part: No person shall engage in unfair methods of competition and unfair or deceptive acts or practice in the conduct of any trade or commerce. General Statutes § 42-110g(a) provides in relevant part: Any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." (Emphasis in original; internal quotation marks omitted.) Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 592-93, 821 A.2d 283 (2003).
"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an `ascertainable loss' due to a CUTPA violation . . . [T]he words `any ascertainable loss' [however] . . . do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 593. "`Loss' has a broader meaning than the term `damage.' . . . For purposes of CUTPA, [a]n ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established." (Citation omitted.) Id. "[O]ur Supreme Court [does] not require that a claimant make a purchase to establish an ascertainable loss; it defined `ascertainable loss' in much broader terms." (Emphasis in original.) Id., 597.
In Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997), the Connecticut Supreme Court found that a loss of potential customers constitutes an injury, deprivation or detriment that is "capable of being discovered, observed or established." The Court held further that the "fact that a plaintiff fails to prove a particular loss or the extent of the loss does not foreclose the plaintiff from obtaining injunctive relief and attorneys fees pursuant to CUTPA if the plaintiff is able to prove by a preponderance of the evidence that an unfair trade practice has occurred and a reasonable inference can be drawn by the trier of fact that the unfair trade practice has resulted in a loss to the CT Page 11090-ca plaintiff." (Emphasis in original.) Id. In the present case, the plaintiff has alleged ascertainable loss resulting from the unlawful acts or omissions of the defendant. The loss can be a potential loss, e.g., the cost of a potential purchase of the repair kit. Therefore, the plaintiff has sufficiently alleged an ascertainable loss as required by § 42-110g and has standing under CUTPA.
The defendant also argues that the upgrade kit that it provides to law enforcement agencies is a forward looking enhancement to improve police officer safety through research and testing of police practices, and developmental work on police vehicles. The upgrade kit, the defendant argues, is "to make a safe car safer," and that because the upgrade kit is forward looking it cannot constitute an adjustment program as defined in § 42-227(a)(4). In addition, the defendant argues, the upgrade kit is not an adjustment program and is not violative of the Secret Warranty Act unless the defendant has already designated the civilian consumer plaintiff eligible under an adjustment program; the upgrade kits were never intended for, nor offered to, consumers other than law enforcement agencies. The plaintiff argues that the Secret Warranty Act does not differentiate between civilian vehicle owners and law enforcement vehicle owners where the defendant endeavors to pay for the cost of a repair kit addressed at specific issues arising with the Panther-platform design. Moreover, the plaintiff argues that he has alleged that the design of law enforcement vehicles and civilian vehicles are of identical design, and that every owner or lessee should receive benefit from an adjustment program. This court agrees with the plaintiff.
Section 42-227(a)(4) provides in relevant part: "`Adjustment program' means any program or policy that expands or extends the consumer's warranty beyond its stated limit or under which a manufacturer offers to pay for all or any part of the cost of repairing, or to reimburse consumers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability or performance . . . This term does not include adjustments made by a manufacturer on a case by case basis." Section 42-227(7)(b) provides in relevant part: "A manufacturer shall establish a procedure in this state whereby a consumer (1) shall be informed of any adjustment program applicable to his motor vehicle . . ." Section 42-227(7)(c) provides in relevant part: "Within ninety days of the adoption of an adjustment program a manufacturer shall notify . . . all consumers eligible under such program of the condition in the motor vehicle which is covered by an adjustment program and the principal terms and conditions of the adjustment program." Section 42-227(a)(1) defines "consumer" as a "purchaser, other than for purposes of resale, of a motor vehicle, a lessee of a motor vehicle, any person to whom such motor vehicle is CT Page 11090-cb transferred during the duration of an express warranty applicable to such motor vehicle and any person entitled by the terms of such warranty to enforce the obligations of the warranty."
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." With the plain meaning rule in mind, the language in § 42-227 does not appear to differentiate between classes of consumers that a manufacturer may designate as eligible for any program that it offers to repair any condition that substantially affects a vehicle's performance, durability or reliability. Moreover, § 42-227(7)(c) states that all consumers eligible under an adjustment program must be notified. The plaintiff alleges he is a consumer and owner of a Panther-platform vehicle which is identical to the law enforcement vehicles enhanced by the defendant's upgrade kit. This upgrade kit allegedly affects the performance, durability or reliability of Panther-platform vehicles. As such, the plaintiff alleges it is an adjustment program as defined in § 42-227(a)(4). Construing the complaint most favorably to the plaintiff and giving all reasonable inferences to sustaining its legal sufficiency, this court finds that the plaintiff has alleged sufficient facts to show a violation of § 42-227, and the complaint may withstand a motion to strike.
The defendant further argues, however, that the plaintiff seeks relief by praying for a motor vehicle recall that is preempted by the Federal Motor Vehicle Safety Act, 49 U.S.C. §§ 30101 et seq. The plaintiff argues that his prayer for relief as stated in his complaint, prays for "all appropriate relief as determined by the [c]ourt consistent with CUTPA and the [c]ourt's inherent equitable powers, including compensatory and punitive damages and mandatory injunctive relief requiring Ford to cease and desist from its unlawful conduct and to remedy its violation of CUTPA by offering the proposed class the same benefits as offered to certain law enforcement agencies . . ." The plaintiff contends that this prayer for relief does not contemplate a vehicle recall, but simply seeks to require that the defendant fulfill its obligations under the Secret Warranty Act.
"[S]tate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted . . . If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, CT Page 11090-cc that is, when it is impossible to comply with both state and federal law . . . or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress . . .
"We are mindful, however, that [s]tate law is today preempted only to the extent necessary to protect the achievement of the aims of the federal law . . . The governing federal principle now is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained . . . [C]ourts should not readily infer that Congress has deprived states of the power to act on interests deeply rooted in local feeling and responsibility which only peripherally concern an area controlled by non-conflicting federal legislation . . ." (Citations omitted; internal quotation marks omitted.) Kenny v. Kenny, 226 Conn. 219, 224-25, 627 A.2d 426 (1993).
In In Re Ford Motor Co. Crown Victoria Police Interceptor Products Liability, 2004 WL 1170145 (N.D.Ohio, 2004), the defendant, Ford Motor Company, in responding to motions to remand filed by the plaintiffs, argued that the federal courts have jurisdiction over the issues presented in the plaintiffs' complaints. The defendant argued, inter alia, that federal law, namely the Federal Motor Vehicles Safety Act, 49 U.S.C. § 30101 et seq., completely preempted the plaintiffs' claims. The plaintiffs argued that there was no basis for federal jurisdiction because all the claims were based on state statutory or common-law claims, particularly, state law warranty claims. The federal district court found that "[a]n examination of the language of the Safety Act leads to the conclusion that Congress never intended the Safety Act to completely preempt state law claims." In Re Ford Motor Co., supra, 2004 WIL 1170145, at *2. The federal district court discussed the express preemption provision of the Safety Act and found that the act also contains two savings provisions that qualifies the preemption provisions. "The savings provision in subsection 30103(e) states that [c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law." (Emphasis in original; internal quotation marks omitted.) Id. "In addition to the savings provision in § 30103(e), the text of § 30103(d) specifically preserves state law warranty obligations in addition to other rights and remedies provided by state law . . . Based upon the analysis of congressional intent behind § 30103(e) presented in [ Geier v. Am. Honda Co., Inc., 529 U.S. 861 (2000)], it is logical to apply the same analysis to § 30103(d) leading to the conclusion that Congress did not intend to preempt . . . state law warranty claims." Id., at *3. In light of these findings, the district court held that it "joins the overwhelming CT Page 11090-cd majority of federal courts in finding that the Federal Motor Vehicle Safety Act does not completely preempt state law causes of action. Accordingly . . . state statutory and common law causes of action are not completely preempted by the Federal Motor Vehicle Safety Act." Id., at *4.
In the present case, the plaintiff alleges that the defendant violated § 42-227, Connecticut's secret warranty statute. As annunciated In Re Ford Motor Co., supra, 2004 WL 1170145, state statutory causes of action are not completely preempted by the Federal Motor Vehicle Safety Act. Moreover, because the plaintiff does not request in his prayer for relief a vehicle recall, but merely requests that the defendant fulfill its obligations under the Secret Warranty Act and CUTPA, the Federal Motor Vehicle Act does not conflict with this state's secret warranty statute. Therefore, federal preemption does not apply.
CONCLUSION
For all the foregoing reasons, the defendant's motion to strike the plaintiff's complaint is hereby denied.
D. Michael Hurley, JTR