Opinion
No. CV 04-0103721
October 25, 2005
MEMORANDUM OF DECISION
The Plaintiff, an adult daycare center affiliated with the Visiting Nurses Association, has brought this action against the Defendant arising out of the latter's sale to the Plaintiff of a used Ford E350 bus on December 13, 2002. The Plaintiff alleges that the bus was defective in several aspects, and it seeks damages based on its claims of breach of express warranties (Count One), breach of implied warranties (Count Two), and negligent representation (Count Three). At the conclusion of the trial of this case, which took place on August 16, 2005, the Plaintiff acknowledged that it had not presented any evidence of negligent misrepresentation, and judgment will therefore enter in favor of the Defendant on the third count. The court will thus confine its discussion to the allegations of the first two counts.
Briefs were filed on or before October 17, 2005.
Most of the facts of the case are not in serious dispute. Caring Ways was in need of a bus to transport persons attending the Adult Daycare Center and became aware of the fact that the Defendant had two used buses for sale. Richard Corcoran, a representative of the Plaintiff, made clear to William Kachinsky, the manager of the Defendant's repair business, that it needed a safe, reliable vehicle for its purposes. Kachinsky knew the condition of both buses well, having worked on them in the past, and he recommended the Ford, because it was newer (1997 versus 1995); had fewer miles (114,000 versus 147,000); had more power; was up-to-date in its servicing; had wider doors; and had a handicap ramp.
The Defendant made it clear that it did not own the CT Page 13351-lh bus, which was the property of the Estuary Council, and there is no claim that Kachinsky specifically stated to any representative of the Plaintiff that he was providing a warranty for the vehicle. There is some dispute over whether Kachinsky specifically recommended to the Plaintiff's representatives that they have a mechanic give the Ford a pre-purchase inspection or whether the Plaintiff decided to do that on its own, but, in any event, there is no dispute that such an inspection was conducted by Root's, an Old Saybrook automobile mechanic shop. The Root's report acknowledged that it had not taken the engine apart but that, upon its general inspection and road test, there were no obvious problems. Kachinsky offered to allow the Plaintiff to inspect the Defendant's voluminous repair records for the vehicle. The Plaintiff declined this offer, however, and the sale was consummated on December 13, 2002.
A week after it purchased the bus, the Plaintiff had Root's conduct a routine transmission service. Thereafter, there were no complaints about the vehicle until March of 2003, when the Plaintiff brought the vehicle back to Root's to have one of its windshield wiper motors changed. On May 6, 2003, the Plaintiff brought the vehicle back to the Defendant for the first time since the purchase. At that time, there were 121,563 miles on the bus. The Defendant noted that the bus was 5,200 miles overdue for its service. It changed the oil and conducted a safety inspection. There were, however, no major problems noted.
In early June of 2003, one of the spark plugs had become dislodged, and the Plaintiff returned the bus to the Defendant. Kachinsky tried to repair the problem by re-tapping the opening and, using Loc-tite, inserting a new seat for the sparkplug. The Plaintiff, given a choice between this quick and inexpensive method or redoing the engine block, a more expensive and time consuming process, had chosen the former because it wanted to keep the vehicle on the road. The vehicle had another servicing on June 25, 2003 to replace a wheel valve and courtesy lamp.
The Plaintiff returned the vehicle to the Defendant in CT Page 13351-li July because a different spark plug had come out, and this time both parties concluded that the more elaborate and expensive repair was necessary. By this time, however, the Plaintiff claimed to have lost confidence in the Defendant and removed the vehicle, taking it to a mechanic service called Car Care Clinic in Guilford. The entire engine was replaced because, due to the spark plug problem, there was insufficient compression. The cost for this service was $7,758.88.
In October of 2003, the bus needed to have its fuel pump replaced. That was also done by Car Care Clinic, and the cost for the service was $774.14. The Plaintiff continues to use the bus, with occasional repairs.
The Plaintiff does not contend that the windshield wiper issue, which first brought the vehicle in for repairs, was the Defendant's fault, acknowledging that this was only a "general maintenance problem." It does, however, claim that the Defendant should be responsible for the cost of all of the major repairs it has had to undertake.
George Norton, the service manager at Car Care Clinic, described the various repairs done to the bus and opined that these were not the result of any failure to get regular oil changes, as might be implied by the Defendant's note that the bus was well overdue for service when it was first brought back to the Defendant for an oil change. He acknowledged that the new re-manufactured engine which Car Care Clinic put in the bus added value to the vehicle as, subsequent to the work Car Care Clinic did on the vehicle, the Plaintiffs were essentially in possession of an old bus with a new engine.
Caring Ways thus claims that it incurred the following damages as a result of Saybrook Auto's alleged breach of express and implied warranties:
6/4/03 spark plug repair — Saybrook Auto $ 281.64 6/23/03 spark plug repair — Roots $ 351.89 8/5/03 engine replacement — Car Care $7,758.88 10/13/03 fuel pump repair — Car Care $ 774.14 _________ CT Page 13351-lj TOTAL $9,166.55 As previously indicated, with the negligent representation claim having been abandoned, the Plaintiff's remaining claims sound in breach of express warranties and breach of implied warranties. There appears to be no dispute that neither Kachinsky nor anyone acting on behalf of the Defendant ever specifically told the Plaintiff that Saybrook was providing a warranty. The Plaintiff nonetheless claims that the Defendant, through Kachinsky as its duly authorized agent, warranted the bus pursuant to C.G.S. § 42a-2-313, which states:
(1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
The first question to be addressed is whether the Defendant is a "seller" under the Uniform Commercial Code ("UCC"). A Defendant's status as a seller is determined by analyzing which parties have received compensation, possessed the goods, and effected the transfer of goods, and which party guaranteed the quality of the goods. Staco Energy Products Co. v. Driver-Harris Co., 578 F.Sup. 700, 703 (S.D. Ohio 1983). "A sale is a transfer of goods for consideration, and the seller is generally the party that receives the consideration and effects the transfer." American Container Corp. v. Hanley Trucking Corp., 268 A.2d 313, 316 (N.J.Super.Ct.Ch.Div. 1970). Although the Estuary Council owned the CT Page 13351-lk bus, all the negotiations for the sale occurred at Saybrook Auto, which was licensed to sell used motor vehicles, and were conducted by Kachinsky. The Plaintiff made out its checks for the bus to Saybrook Auto, which provided receipts for these payments on its own invoice forms. The court concludes that Saybrook Auto was a "seller" as defined by the UCC.
"Seller" is defined in General Statutes § 42a-2-103(1)(d) as "a person who sells or contracts to sell goods."
Whether an express warranty existed is a question of fact. Superior Wire Paper Products, Ltd. v. Talcott Tool Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981). While some statements made by sellers are merely "puffing," several factors have been identified as helpful in making a determination as to whether a seller has in some way created an express warranty. J. White R. Summers, Uniform Commercial Code (2d Ed.) § 9-3. One such factor is the specificity of the statements made. Id. at 329.
The Plaintiff points to Goldwater v. Ollie's Garage, Docket No. 357372 (February 18, 1998, Blue, J.), to buttress its claim that the Defendant in this case should be found to have made an express warranty to the Plaintiff. There, the Court held that the seller expressly warranted a sixteen-year-old camper based upon statements by the seller that he checked out the camper and that it was in excellent shape and excellent mechanical condition. The seller also stated that there was no trouble with the camper and nothing to worry about. The buyer performed a brief inspection and test drive and subsequently purchased the camper, relying on the seller's statements. In Acme Pump Co. v. National Cash Register, 32 Conn.Sup. 69 (1974), the seller made statements that the machine would handle a wide variety of bookkeeping functions, including accounts receivable, payable, payroll, general ledger posting, and other related matters. This was also found to constitute an express warranty.
In Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342 (1987), the court noted that oral statements are more likely than written ones to be considered puffing and that the specificity of the statements needs to be taken into account in deciding whether a communication constitutes puffing or an express warranty. The court held that vague statements, such as "this is a top-notch car," the car is in "good condition," that the motor was in "perfect running order," and that the car was "excellent" or "in mint condition" were to be considered puffing and did not amount to express warranties under the law.
Although Kachinsky told the Plaintiff's representative that he had maintained the bus for several years and had specific knowledge of its mechanical condition, as well as that it was superior to the other bus he had for sale, the statements attributed to the Defendant in this case fall far short of the assurances given by the Defendant in either CT Page 13351-ll Goldwater or Acme Pump. They consisted of comments not specific enough to rise to the level of express warranties which can reasonably be considered as part of the basis of the bargain and mere responses to the Plaintiff's requests for an opinion as to which of the two buses would better serve its needs. As for some of the factual statements attributed to Kachinsky . . . that the bus had a more powerful engine and had wider doors than the other . . ., there has been no evidence that these assertions of fact were false or inaccurate. Moreover, Kachinsky offered the Plaintiff the opportunity to inspect the repair records for the vehicle, and the court finds credible the Defendant's claim that he urged to Plaintiff to have the vehicle inspected before purchasing it. Under all these circumstances, the court finds that the Plaintiff has failed to prove the existence of an express warranty within the meaning of § 42a-2-313.
With respect to implied warranties, the Plaintiff points to General Statutes § 42a-2-314, which provides:
(1)Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contact for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2)Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified as provided by section 42a-2-316, other implied warranties may arise from course of dealing or usage of trade.
General Statutes § 42a-2-315 states: CT Page 13351-lm
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under section 42a-2-316 an implied warranty that the goods shall be fit for such purpose.
The Plaintiff correctly points out that a specific promise is not necessary for the court to find an implied warranty. Such a warranty may be found to exist where the seller is one who normally deals in the type of goods sold, has some reason to believe what the purpose or use of the goods is, and understands that the buyer is in some measure relying on the skill of the seller. Vernali v. Centrella, 28 Conn.Sup. 476, 481 (1970). That this Defendant ordinarily sells cars and buses, knew the purpose for which this bus was intended and understood that the Plaintiff had some confidence in it, however, does not alone create a warranty. To the contrary, the Defendant here attempted to discourage the Plaintiff from simply accepting its statements about the vehicle and urged it to review previous service reports and get its own pre-purchase inspection. Moreover, the vehicle ran well without incident for some considerable period of time following the purchase, and there the court heard no credible evidence that the Defendant was or ought to have been aware of the specific problems which eventually required major repairs. The Defendant's suggestion that this bus was better for the Plaintiff's needs than the only other bus it had in stock can hardly be viewed as implying a warranty.
The Plaintiff argues correctly that in order for a seller to disclaim an implied warranty of merchantability, he must specifically disclaim "merchantability" and, in case of a writing, the disclaimer must be conspicuous. Although there was no evidence at trial that Kachinsky mentioned the term "merchantability" or that a written disclaimer exists, the court also finds that there was as a matter of both fact and law no implied warranty in this case, and, therefore, that there was no need for the Defendant to specifically disclaim merchantability.
C.G.S. § 42a-2-316 states: (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
"[Uniform Commercial Code § 42a-2-314] imposes warranty liability for the protection of buyers. The purpose behind . . . [§ 42a-2-314] is to hold a merchant seller responsible when inferior goods are passed along to an unsuspecting buyer. Thus, whether or not the defects could, or should, have been discovered by the merchant seller, the merchant seller is liable to the buyer whenever the goods are not, at the time of delivery, of a merchantable quality . . ." (Emphasis added.) Krack v. Action Motor Corporation, 87 Conn.App. 687, 692, 867 A.2d 86 (2005). CT Page 13351-ln
"The buyer's acceptance of goods, despite their alleged non-conformity, is a watershed. After acceptance, the buyer must pay for the goods at the contract rate; C.G.S. § 42a-2-607(1); and bears the burden of establishing their nonconformity. C.G.S. § 42a-2-607(4). Acceptance, even with knowledge of the non-conformity of the goods, does not however, constitute an election to waive all claims with respect to the accepted goods. C.G.S. § 42a-2-607(2). The buyer who elects to keep nonconforming goods had a remedy in damages; § 42a-2-714; provided that he has given timely notice of breach to the seller; § 42a-2-607(3)(a) . . ." Stelco Industries, Inc. v. Cohen, 182 Conn.App. 563-64. It is undisputed that the Plaintiff accepted the bus. Thus, the Plaintiff has the burden of proving that the bus was not merchantable at the time of delivery.
Based on the evidence, the court concludes that the Defendant described the vehicle in question to the best of its ability, that it did what it could to make the Plaintiff aware of the repair history of the vehicle and encouraged the Plaintiff to have the vehicle independently inspected. It did nothing to imply that it had warranted the vehicle in any way and, to the contrary, made it quite clear that the Plaintiff was purchasing an old vehicle that had already been driven well in excess of 100,000 miles under circumstances where no promises concerning its future reliability could be made.
Under General Statutes § 42a-2-314, a vehicle is of merchantable quality if it would pass without objection in the automobile trade and/or is fit for ordinary purposes for which vehicles are used. No evidence that the bus would not pass without objection in the automobile trade has been presented to the court, and it is undisputed that the Plaintiff accepted the bus. The burden of proving that the bus was not merchantable at the time of delivery is therefore on the Plaintiff.
There was no evidence that either the Plaintiff or the Defendant were aware that the vehicle was not merchantable at the time of the sale. The Plaintiff provided no evidence of the condition of the bus at the time of the sale, and Corcoran testified that he had no knowledge of the condition of the bus or its engine when the deal was made. Nor did the Plaintiff offer any testimony, expert or otherwise, as to the cause of the spark plug failures or the specific reason why the engine had to be replaced. Without testimony as to the precise nature of these defects, and absent proof that any such defects were present in December of 2002 when the bus was sold, there are no facts upon which this Court can determine that the bus was not of merchantable quality at the time of delivery. Indeed, as these problems did not arise until many months after CT Page 13351-lo the sale, it is hard to see that there could even be a colorable claim that the vehicle was in fact not merchantable at the time of delivery. Cf Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 754 A.2d 810 (2000) and Krack v. Action Motors Corporation, 87 Conn.App. 687 (2005), in which those courts found, on the basis of considerable evidence, that at the time of the sale, the vehicles in question were non-merchantable as matters of fact.
Nor has the Plaintiff not provided any evidence that the bus did not meet the particular purposes for which it was intended to be used. The Plaintiff has pleaded that it purchased the bus for the particular purpose of transporting its clients, basically the ordinary purpose for which buses are used. Kachinsky testified that the previous owner of the bus, the Estuary Council, had also used the bus for transportation of geriatric clients. The Plaintiff has not established under General Statutes § 42a-2-315 that it had some other specialized purpose for the bus, nor has it established that even if there were such a specialized purpose, the bus was not fit for such a purpose at the time of the sale.
For all of the above reasons, judgment will enter in favor of the Defendant as to all three counts of the complaint.