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discussing when emotional distress and other non-economic damages may be recoverable for breach of contract claim
Summary of this case from Marini v. Costco Wholesale Corp.Opinion
No. MMX CV10 6003452-S
March 25, 2011
MEMORANDUM OF LAW RE MOTIONS TO STRIKE #105 and #108
I PROCEDURAL HISTORY
The motions presently before the court, the defendants' motions to strike #105 and #108, arise from a ten-count complaint filed by the plaintiff's Mark and Julissa Peluso on September 10, 2010. The plaintiffs' complaint alleges five causes of action against each of the defendants: counts one and two, negligence; counts three and four, breach of contract; counts five and six, negligent infliction of emotional distress; counts seven and eight, intentional infliction of emotional distress; and counts nine and ten, violation of the Connecticut Unfair Trade Practices Act.
The plaintiffs allege the following relevant facts. On November 21, 2007, the plaintiffs booked a honeymoon vacation by way of an online reservation system operated by the defendants The Mark Travel Corporation, doing business as Funjet (Funjet), and Vacations Publications, Inc., doing business as Vacations To Go and Resort Vacations To Go (Vacations To Go). They booked a suite at the Excellence Punta Cana resort in the Dominican Republic from September 21, 2008 to September 28, 2008 for a total cost of $4,501.60. The plaintiffs specifically requested and confirmed a handicap accessible room to accommodate Mr. Peluso, who is a paraplegic. As the date of the honeymoon approached, they called twice, once in July 2008 and again on August 30, 2008, to notify the resort that they had booked a handicap-accessible room through the defendants' website.
Upon arrival in the Dominican Republic, the resort did not provide the plaintiffs with handicap-accessible transportation from the airport to the resort. Instead, workers from the resort carried Mr. Peluso feet first onto a crowded bus, which caused him great emotional distress and embarrassment. When the plaintiffs arrived at the resort, an employee informed them no handicap accessible room was available and assigned them a room that could not accommodate Mr. Peluso's handicap, which left him unable to move around the room or use the bathroom. The next day, the resort transferred the plaintiffs to a smaller handicap accessible room, but that room had a leaky ceiling fan, so on the following day the resort moved them to another room that was not handicap-accessible. As before, Mr. Peluso could not move around the room in his wheelchair or use the bathroom, so the resort provided him with a rubber chair to hop around the room with, which caused him great emotional distress and embarrassment.
Throughout their stay at the resort, the plaintiffs made several attempts to contact the defendants. The defendants provided no relief to the plaintiffs; instead each defendant blamed the other for the plaintiffs' problems. For example, Funjet refused to provide the plaintiffs with handicap-accessible transportation from the resort to the airport because, according to Funjet, Vacations To Go did not specify the need for such transportation. Rather, Funjet insisted on carrying Mr. Peluso onto a van, but the plaintiffs refused and hired a handicap accessible van. Finally, due to unreliable telephone service in the Dominican Republic, Mrs. Peluso asked her sister, Vicky Rivas, to contact the defendants on her behalf. Ms. Rivas called Vacations To Go, but two supervisors refused to speak with her or provide any assistance.
On October 15, 2010, Funjet filed a motion to strike counts three, five and seven of the complaint, along with a memorandum of law. On October 25, 2010, Vacations To Go moved to strike counts four, six and eight of the complaint. On November 23, 2010, the plaintiffs filed memoranda of law in opposition to the defendants' motions to strike, and the court heard the matter at the short calendar on January 3, 2011.
Vacations To Go did not file a memorandum of law in support of its motion to strike, as required by Practice Book § 10-42(a). Instead, it attached a copy of Funjet's memorandum of law and stated it intended to rely on that memorandum to support its motion to strike. While it can be argued that filing a memorandum of law in this form does not strictly comply with the Practice Book, the plaintiffs did not object to it, and, therefore, this noncompliance with the Practice Book is hereby waived. See Ortega v. All-Star Transportation, LLC., Superior Court, judicial district of Ansonia-Millford, Docket No. CV 095008684 (December 17, 2009, Bellis, J.) ( 49 Conn. L. Rptr. 51, 53 n. 5).
II DISCUSSION
The motions presently before the court challenge the legal sufficiency of counts three through eight of the plaintiffs' complaint. Practice Book § 10-39(a) provides: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "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.) JP Morgan Chase Bank Trustee v. Rodrigues, 109 Conn.App. 125, 130-31, 952 A.2d 56 (2008). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn.App. 28, 33, 974 A.2d 820, cert. granted in part, 293 Conn. 927, 980 A.2d 910 (2009). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
Furthermore, "[t]o survive a motion to strike, the plaintiff's complaint must allege all of the requisite elements of a cause of action." Stancuna v. Schaffer, 122 Conn.App. 484, 489, 998 A.2d 1221 (2010). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Conversely, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn.App. 512, 516, 2 A.3d 942 (2010).
With these principles in mind, the court turns to the defendants' motions. The defendants first argue counts three and four sounding in breach of contract are legally insufficient because the plaintiffs improperly allege they suffered emotional distress as a result of the defendants' breach of contract. Second, they argue counts five and six sounding in negligent infliction of emotional distress are legally insufficient because the plaintiffs failed to allege the essential elements of a cause of action. Finally, they argue counts seven and eight sounding in intentional infliction of emotional distress are legally insufficient because the defendants' conduct, as alleged in the complaint, fails to rise to the level of extreme and outrageous. Accordingly, the defendants contend the court should grant their motions and strike counts three through eight of the complaint.
In response, the plaintiffs counter that when construed in a manner most favorable to sustaining their legal sufficiency, counts three through eight are legally sufficient. Specifically, the plaintiffs argue counts three and four sufficiently set forth breach of contract claims because the plaintiffs seek monetary compensation, counts five and six sufficiently allege the essential elements of negligent infliction of emotional distress and counts seven and eight sufficiently set forth factual allegations that the defendants' conduct was extreme and outrageous. Therefore, the plaintiffs argue, the court should overrule the defendants' motions.
A. Breach of Contract
The court first addresses whether counts three and four sounding in breach of contract are legally sufficient. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). The defendants concede that in both counts the plaintiff's sufficiently pleaded the first three elements but argue that the fourth element, damages, is legally insufficient because the plaintiff's request damages for emotional distress.
Generally, damages for emotional distress are not available in a breach of contract action.
Petronio v. Burich, Superior Court, judicial district of New Britain, Docket No. CV 01 0509130 (April 23, 2002, Wiese, J.) ( 32 Conn. L. Rptr. 156, 160); see also Smith v. Bridgeport Futures Initiative, Inc., Superior Court, judicial district of Fairfield, Docket No. 326697 (August 16, 1996, Levin, J) ( 17 Conn. L. Rptr. 412, 413) (mental suffering caused by breach of contract not generally allowed as basis for compensation in contractual actions).
Nevertheless, our Supreme Court has recognized that a plaintiff may recover emotional distress damages in a breach of contract action if he establishes the defendant "intentionally and unreasonably subjected the [plaintiff] to emotional distress which he should have recognized as likely to result in illness or other bodily harm. If the [defendant] did not intend to cause emotional distress, he is liable in damages only if he should have realized that his conduct involved an unreasonable risk of causing the distress and from the facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm." Bertozzi v. McCarthy, 164 Conn. 463, 469, 323 A.2d 553 (1973).
The Superior Court has recognized two situations where a party may recover emotional distress damages in a breach of contract action: "Damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure. There are, however, two exceptional situations where such damages are recoverable. In the first, the disturbance accompanies a bodily injury . . . In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance." 3 Restatement (Second), Contracts § 353, comment (a)(1981); Anderson v. Gordon, Muir Foley, LLP, Superior Court, judicial district of Hartford, Docket No. CV 03 0827411 (October 18, 2010, Pellegrino, J.T.R.); Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket Nos. CV 04 4003402, CV 06 5007438 (June 17, 2009, Corradino, J.) ( 48 Conn. L. Rptr. 133, 135).
The defendants argue the plaintiffs' breach of contract counts are legally insufficient because, rather then requesting standard contract damages, they request damages for emotional distress. According to the defendants, "Connecticut's Superior Courts have emphatically and repeatedly held that damages for emotional distress are not available in contract actions," and they cite multiple Superior Court cases that support this argument. While acknowledging there are exceptions to this rule, such as when bodily harm is a foreseeable result of a purported breach or when the cause of action concerns common carriers or innkeepers, the defendants assert that none of those exceptions apply here. Specifically, the defendants argue the exception for actions involving innkeepers does not apply here because the plaintiffs did not name the resort as a defendant. Therefore, the defendants conclude the plaintiffs cannot establish why damages for emotional distress would be available in the breach of contract counts. Accordingly, the defendants urge the court to strike counts three and four from the complaint.
In response, the plaintiffs counter that their breach of contract claims are legally sufficient because they seek monetary compensation for both the standard contract damages and emotional distress. Specifically, the plaintiffs argue that when the complaint is read in its entirety, they have sufficiently pleaded the existence of a contractual relationship, that they fulfilled their obligations under the contract and that the defendants breached the contract. The plaintiffs further argue that they have sufficiently pleaded the damages element because when the complaint is liberally construed, they have alleged the amount of the contract and that they seek monetary compensation. Furthermore, while conceding that damages for emotional distress are usually unavailable in a breach of contract action, the plaintiffs assert the defendants are carriers because they transport passengers or goods for a fee, and, therefore, damages for emotional distress should be permitted.
Finally, the plaintiffs argue that the allegations of emotional distress should not bar their breach of contract claims in their entirety. Specifically, the plaintiffs argue that if the defendants succeed in persuading the court that emotional damages are unavailable in counts three and four, the court should strike only the allegations of emotional damages rather then those counts in their entirety. Accordingly, the plaintiffs urge the court to overrule the defendants' motions to strike counts three and four from the complaint.
In addition to the general allegations previously stated, the plaintiffs allege the following facts in counts three and four: the plaintiffs entered into an agreement with the defendants; the plaintiffs paid all sums due under the contract; the defendants breached the agreement by failing to provide handicap-accessible transportation and facilities as agreed upon; as a direct and proximate result of this breach the plaintiffs suffered and continue to suffer severe and permanent emotional distress, embarrassment, mental anguish and significant mental losses; and the plaintiffs are entitled to monetary compensation.
The plaintiffs allege that as a result of the defendants' breach of contract, they suffered emotional distress damages. It bears repeating that such damages are unavailable in a breach of contract action except in circumstances where the plaintiffs suffered physical harm or illness or where the breach of such a contract is particularly likely to cause serious emotional disturbance, such as contracts of carriers and innkeepers with passengers and guests. In the present case, the plaintiffs have not alleged they suffered any physical harm or illness. Furthermore, the plaintiffs' argument that the defendants are "carriers" fails because they do not allege any facts establishing that the defendants are carriers. Even when construed in a manner favorable to sustaining their legal sufficiency, the facts alleged do not establish the defendants had any hands-on involvement with transporting the plaintiffs to and from the airport. See, e.g., American Home Assurance Co. v. Maeder, 969 F.Sup. 184, 190 (S.D.N.Y. 1997) (though plaintiff alleged defendant was carrier, it did not allege facts that would lead court to conclude defendant was involved in actually operating airplanes); Vaughn v. American Automobile Assn., Inc., 326 F.Sup.2d 195, 198 (D.Mass. 2004) (travel agent is not carrier); cf. George Weintraub Sons v. E.T.A. Transportation, Inc., United States District Court, Docket No. 01 Civ. 6417 (S.D.N.Y. 2003) (defendant was freight forwarder rather than carrier because defendant hired to act as "travel agent" and made reservations and had no hands-on involvement with moving freight). Accordingly, the court finds that counts three and four are legally insufficient.
Finally, the plaintiffs assert that if the court concludes the allegations of emotional distress damages render these counts legally insufficient, the court should simply strike those allegations from counts three and four rather than those counts in their entirety. "A motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations." (Internal quotation marks omitted). P G Construction v. Park Blue, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 01 0165316 (January 23, 2002, West, J.).
The court notes that there is a split of authority in the Superior Court as to whether a party can move to strike specific allegations from the pleadings. Compare P G Construction v. Park Blue, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 01 0165316 (January 23, 2002, West, J.) (plaintiff could not move to strike a portion of sentence from defendant's special defense) with Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J) (court may leave legally cognizable allegations intact and strike invalid allegations). As most courts follow the rule that a single paragraph is not subject to a motion to strike unless that paragraph embodies an entire cause of action or defense; Sherman v. Kowalyshyn, Superior Court, judicial district of Hartford, Docket No. CV 106012430 (January 28, 2011, Sheldon, J.); it logically follows that striking out specific allegations in a cause of action is not procedurally proper.
Accordingly, the court grants the defendants' motions to strike counts three and four.
B. Negligent Infliction of Emotional Distress
The court next turns to counts five and six to determine whether the plaintiffs sufficiently pleaded the essential elements of negligent infliction of emotional distress. "To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Stancuna v. Schaffer, supra, 122 Conn. App. 490.
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 707-08, 927 A.2d 312, cert. denied, 284 Conn. 927, CT Page 7955 934 A.2d 243 (2007).
"The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Emphasis added; internal quotation marks omitted.) Stancuna v. Schaffer, supra, 122 Conn. App. 490.
The defendants argue the plaintiffs failed to allege the elements of a claim for negligent infliction of emotional distress. Specifically, the defendants contend the plaintiffs' claims are legally insufficient in the following ways: (1) they do not allege the defendants created an unreasonable risk of causing the plaintiffs emotional distress; (2) they do not allege the plaintiffs' emotional distress was foreseeable; (3) they do not allege that such distress was so severe it could have caused the plaintiffs illness or bodily harm; and (4) the allegations that the defendants' conduct caused the plaintiffs' emotional distress is a legal conclusion unsupported by facts. Accordingly, the defendants urge the court to strike counts five and six from the complaint.
In response, the plaintiffs counter that when reading the complaint in its entirety and in a light favorable to sustaining its legal sufficiency, their negligent infliction of emotional distress counts are legally sufficient. Specifically, the plaintiffs argue the defendants ignore the full language of the complaint. The plaintiffs point out that they incorporated the specific factual allegations from their general allegations into their negligent infliction of emotional distress counts, and, therefore, those counts are legally sufficient. Accordingly, the plaintiffs urge the court to overrule the defendants' motions to strike counts five and six from the complaint.
In addition to the general allegations previously stated, the plaintiff's allege the following facts in counts five and six: the defendants had a duty to exercise reasonable care in operating their companies to the benefit of clients like the plaintiffs; the defendants were negligent and careless in permitting the plaintiffs to book a handicap-accessible room, in confirming a handicap-accessible room was available, in representing to the plaintiffs that handicap-accessible transportation would be provided and failing to adequately remedy the aforementioned problems in a timely manner; the defendants' conduct was the direct and proximate cause of the plaintiffs' damages, which include severe and permanent emotional distress, embarrassment, mental anguish and significant economic loss.
Even when reading the complaint as a whole, construing it in a manner favorable to sustaining its legal sufficiency and assuming the truth of the allegations, the court finds that the plaintiffs' negligent infliction of emotional distress counts are legally insufficient because they did not specifically allege that the defendants should have foreseen that their conduct would likely cause the plaintiffs emotional distress. As stated previously, our Appellate Court has concluded that such a specific factual allegation is required in order to sufficiently plead the foreseeability element of a negligent infliction of emotional distress claim.
Accordingly, the court grants the defendants' motions to strike counts five and six.
C. Intentional Infliction of Emotional Distress
Finally, the court examines counts seven and eight sounding in intentional infliction of emotional distress to determine whether the plaintiffs sufficiently pleaded factual allegations that the defendants' conduct was extreme and outrageous. "To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182-83 n. 9, 994 A.2d 666 (2010). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . ." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569-70, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Therefore, in assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact-finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citations omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
The defendants argue the plaintiff's intentional infliction of emotional distress counts are legally insufficient because the facts alleged do not rise to the level of extreme or outrageous conduct. Specifically, the defendants argue the plaintiff's simply restate their negligent infliction of emotional distress allegations and "[add] the magic words `extreme and outrageous' and `severe.'" According to the defendants, the plaintiffs' allegations that the defendants breached their promise to provide a handicap accessible room and handicap accessible transportation do not rise to the level of being so outrageous in character and so extreme in degree as to be regarded as atrocious and utterly intolerable in civilized community. The defendants argue that the Connecticut courts have found that conduct far more odious than that alleged by the plaintiffs did not rise to the level of extreme and outrageous. Accordingly, the defendants urge the court to strike counts seven and eight from the complaint.
In response, the plaintiffs counter that the defendants again fail to read the complaint in its entirety. Specifically, the plaintiffs contend that when the complaint is read as a whole and in a light favorable to sustaining its legal sufficiency, the "allegations set forth behaviors that a reasonable fact finder could find reach the level of extreme and outrageous." Accordingly, the plaintiff urges the court to overrule the defendants' motions to strike counts seven and eight from the complaint.
In addition to the general allegations previously stated, the plaintiffs allege the following facts in counts seven and eight: the defendants had a duty to exercise reasonable care in operating their companies to the benefit of clients like the plaintiffs; the defendants subjected the plaintiffs to extreme and outrageous conduct by permitting the plaintiffs, among other things, to book a handicap-accessible room, in confirming a handicap-accessible room was available, in representing to the plaintiffs that handicap-accessible transportation would be provided and failing to adequately remedy the aforementioned problems in a timely manner; the defendants intended their conduct to inflict severe distress or knew that there was a high probability that their conduct would inflict such distress to the plaintiffs, as shown by their acts and omissions regarding the aforementioned handicap-accessible accommodations; and the defendants' conduct was the direct and proximate cause of the plaintiffs' damages, which include severe and permanent emotional distress, embarrassment, mental anguish and significant economic loss.
The court finds that the plaintiffs' intentional infliction of emotional distress counts are legally sufficient. As alleged in the complaint, the defendants' knew that Mr. Peluso was handicapped and required special accommodations, and they failed in their duty to ensure such accommodations were provided. As a result, the plaintiffs, who were on their honeymoon in a foreign country, endured a series of dangerous and embarrassing events, including Mr. Peluso being carried feet first onto a crowded bus and being lodged in rooms where he could neither move nor use the toilet or where he had to hop around the room on a rubber chair. More to the point, even after the plaintiffs called the defendants several times to complain about the their predicament, the defendants made no effort to help them; on the contrary, they ignored the plaintiffs' complaints and insisted they accept their situation. As a matter of law, reasonable minds could disagree whether this alleged conduct, when accepted as true and construed in favor of the plaintiffs, qualifies as extreme and outrageous. But this court finds that the plaintiffs' intentional infliction of emotional distress counts are legally sufficient. Accordingly, the court overrules the defendants' motions to strike counts seven and eight.
III CONCLUSION
For the foregoing reasons, the court grants the defendants' motions in part and strike counts three through six and overrules the defendants' motions to strike counts seven and eight.
So ordered.