Opinion
Civil Action No. 01-10302-DPW
September 4, 2002
MEMORANDUM AND ORDER
Traffic Markings, Inc. ("TM") brought this diversity action against P.K. Contracting, Inc. ("PK") and Mark Rite Lines of Montana, Inc. ("MRL"), asserting various claims arising out of TM's purchase of a roadway marking removal truck from PK. By order dated October 10, 2001, I dismissed all of TM's claims against MRL, for lack of personal jurisdiction, as well as TM's negligent misrepresentation claim against PK. Remaining are TM's claims against PK for intentional misrepresentation (Count II), unjust enrichment (Count V), and violation of Mass. Gen. Laws ch. 93A (Count VII).
PK now moves for summary judgment on the three remaining claims, primarily on the ground that TM has failed to produce sufficient evidence that PK made any false or misleading statements in connection with the sale of the truck.
I. BACKGROUND
The parties in this case are in the business of roadway marking and marking removal. TM is a Massachusetts corporation that conducts its operations in numerous states. PK is a Michigan corporation whose operations are largely restricted to that state.
A. The Proposed TM-MRL Transaction
In early 1999, TM contacted MRL, a Montana corporation, to inquire about the purchase of a "long line grinding truck" — a roadway marking removal vehicle capable of removing miles of highway markings. Subsequently, at a trade association meeting, the President of MRL, John Gonitzke, and TM's General Manager, Robert Correia, discussed a long line grinding truck manufactured by MRL and sold to PK in 1998 (the "1998 Model"). Gonitzke offered to have MRL either build TM an identical truck, or sell it the used 1992 prototype (the "1992 Prototype").
Shortly after Correia visited MRL's facility and examined the 1992 Prototype, TM decided to purchase the 1992 Prototype and put down a $5,000 deposit. TM has alleged that its decision was premised on MRL's representations, first, that the later 1998 Model sold to PK was "state of the art," was excellent both in grinding roadway surfaces and collecting the resulting dust, and was very easy to maintain, and second, that the 1992 Prototype was identical in all material respects.
B. The TM-PK Transaction
After TM placed the $5,000 deposit with MRL, it received a general mailing from PK offering to sell the 1998 Model. Correia discussed the offer with the President of PK, Christopher Shea, by telephone on June 23, 1999, and in person during a visit to PK's facility five days later. TM alleges that Shea confirmed to Correia that the 1998 Model did an excellent job both in grinding roadway surfaces and collecting the resulting dust, and that it was easy to maintain. According to TM's latest filings, Shea further represented that PK wished to sell its essentially new truck only because the State of Michigan had decided not to bid out any more contracts on the sort of large quantity "removal and epoxy" jobs for which PK had purchased the 1998 Model, and because PK had no similar work otherwise lined up for the truck.
At his deposition, Correia appeared to recall that these alleged representations were made by Shea during Correia's visit to PK's facility, and not, at least with any specificity, during their short telephone conversation prior.
In its Complaint, TM alleged that Shea had represented that PK wished to sell the 1998 Model because PK had decided not to enter into the contract with Michigan for which PK had originally purchased the 1998 Model. TM no longer characterizes Shea's representation in this fashion. Given my disposition of the merits it is unnecessary for me to address the Fed.R.Civ.P. 9(b) implications of this newly asserted and reframed allegation.
During Correia's visit to PK's facility, he also was introduced to PK's operator for the 1998 Model, Kevin Clark, and PK's head mechanic, Rich Buerge. TM alleges that both Clark and Buerge made positive representations similar to those of Shea about the 1998 Model that Clark stated there was nothing he would change about the truck, and that both Clark and Buerge stated that the truck had experienced no major mechanical problems. In its latest filings, although not in its Complaint, TM further alleges that Clark told Correia that the truck typically removed 70,000 to 100,000 linear feet of markings per day.
The 1998 Model requires two individuals to operate, one to drive the truck and another to work the grinding apparatus. When the parties refer to Clark as PK's operator for the truck, they appear to mean that he was the PK employee responsible for working the grinding apparatus.
On this point, TM adds that Clark later told TM's head mechanic, Kenneth Williams, that the truck "would do 100 [sic] feet all day." I note that the snippet of Williams' deposition testimony that TM submits in support of this claim does not identify Clark, and that it is unclear as to when or where the alleged statement was made.
One day after Correia's visit to PK's facility, TM decided to purchase the 1998 Model from PK, and therefore to forego its purchase of the 1992 Prototype from MRL (losing its $5,000 deposit with MRL as a result). In July 1999, TM and PK executed finalized Bills of Sale, which recited that the truck and its components were accepted "AS IS, WHERE IS" and that all warranties, other than title, were disclaimed. The Bills of Sale also contained a covenant by TM not to compete using the purchased equipment in Michigan. On July 17, 1999, TM accepted delivery of the truck at its home office in Massachusetts, where Clark stayed for one day to provide training in the truck's operation. TM alleges that at delivery Clark repeated that the truck did an excellent job of grinding and of collecting the resulting dust, and that it was easy to maintain.
C. TM's Difficulties with the Truck
TM claims that it experienced numerous difficulties with the 1998 Model, despite PK's alleged representations regarding its performance. In particular, TM alleges that the truck (i) did a poor job of grinding roadway surfaces; (ii) did not follow road contours, curves, and ramps; and (iii) created excessive heat and dust. TM also alleges that the grinding bars and teeth of the truck were prone to excessive breakage. In its latest filings, again for the first time, see supra note 2, TM adds that the truck's marking removal rate fell well below 70,000 linear feet per day.
The grinding machinery of the 1998 Model is housed in two boxes on either side of the truck. Within each box are three grinding heads, cylindrical drums which spin at a high RPM. On each head are a series of rods — what TM apparently refers to as "bars" — to which steel or carbide "teeth" are attached.
TM estimates that it has incurred approximately $350,000 in costs and expenses as a result of the truck's alleged deficiencies, arising from repairs, job cost overruns, and the need to replace several operators who resigned due to the excessive dust produced by the truck. TM also asserts that it has received complaints from federal and state agencies concerning the truck's dust production.
D. The Parties' Litigation Postures
Following my dismissal of TM's negligent misrepresentation claim, TM's claim for damages from PK rests on its remaining counts alleging intentional misrepresentation (Count II) and violation of Mass. Gen. Laws ch. 93A (Count VII). TM also seeks equitable recovery of the $295,000 it paid to PK for the 1998 Model, under the heading of unjust enrichment (Count V).
This dismissal was premised on the inclusion of "AS IS, WHERE IS" clauses in the Bills of Sale. See Sound Techniques, Inc. v. Hoffman, 50 Mass. App. Ct. 425, 432-33 (2000).
PK's motion for summary judgment focuses on TM's intentional misrepresentation claim, and primarily rests on the contention that TM has failed to produce sufficient evidence that PK made any false or misleading statements in connection with the sale of the truck. PK additionally contends that TM cannot demonstrate the degree of reliance necessary for this claim to succeed. If TM's intentional misrepresentation claim fails, PK concludes, so too must TM's unjust enrichment and Chapter 93A claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Consistent with this standard, I must accept the version of genuinely disputed facts submitted by the party opposing summary judgment, drawing all reasonable inferences in its favor. See, e.g., Mullin v. Raytheon Co., 164 F.3d 696, 697 (1st Cir. 1999). It nevertheless remains for the party opposing summary judgment to demonstrate any genuine dispute with specific, provable evidence mere assertions will not suffice. See, e.g., Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir. 1989).
III. TM's INTENTIONAL MISREPRESENTATION CLAIM (COUNT II)
In my October 10, 2001 Memorandum and Order, I determined that Massachusetts law applies to the facts of this case, after weighing the choice-influencing considerations set forth in the Restatement (Second) of Conflict of Laws, as suggested by Massachusetts caselaw on choice-of-law. See Cosme v. Whitin Machine Works, Inc., 417 Mass. 643, 646 (1994). Under Massachusetts law, to make out a claim for intentional misrepresentation, a plaintiff must prove:
(1) that the defendant made a false representation of material fact, (2) with knowledge of its falsity, (3) for the purpose of inducing the plaintiff to act on the false representation, and (4) [that the] plaintiff relied on the representation to his or her detriment.
Zuckerman v. McDonald's Corporation, 35 F. Supp.2d 135, 144 (D.Mass. 1999); see also Danca v. Taunton Savings Bank, 385 Mass. 1, 8 (1982).
I note that the First Circuit has identified a certain lack of clarity in Massachusetts caselaw as to whether the "knowledge" element for a claim of intentional misrepresentation is limited to actual knowledge, or may also be satisfied by proof that the truth of a matter was "susceptible of actual knowledge." Cummings v. HPG International, Inc., 244 F.3d 16, 22-23 (1st Cir. 2001). In the absence of specific guidance from the Supreme Judicial Court, the First Circuit ultimately settled on a compromise position, utilizing the definition of fraud at Section 526 of the Restatement (Second) of Torts:
A misrepresentation is fraudulent if the maker (a) knows or believes that the matter is not as he represents it to be, (b) does not have the confidence in the accuracy of his representation that he states or implies, or (c) knows that he does not have the basis for his representation that he states or implies.
Cummings, 244 F.3d at 23 (quoting the Restatement (Second) of Torts § 526 (1977)). By declining to interpret the scope of intentional misrepresentation under Massachusetts law any more broadly — i.e., to cover situations involving mere negligence in failing to discover falsity — the First Circuit provided a useful means of preserving the sometimes conflated distinction between intentional and negligent misrepresentation.
Where affirmative misrepresentations are claimed, the representations must have been presented as statements of fact, not mere opinion, to be actionable. Cummings v. HPG International, Inc., 244 F.3d 16, 21 (1st Cir. 2001) (citing McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573 (1995)). As for material omissions, Massachusetts law does not contemplate liability for "bare nondisclosure," Kannavos v. Anninno, 356 Mass. 42, 46-48 (1969) (citing Swinton v. Whitinsville Savings Bank, 311 Mass. 677, 678-79 (1942)), but does recognize a duty of additional disclosure where partial or incomplete statements are made. V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 414-15 (1st Cir. 1985). Finally, I note that contractual disclaimers, such as the "AS IS, WHERE IS" clauses contained in the Bills of Sale between PK and TM, will not bar recovery where the fraud claimed is intentional. See, e.g., Sound Techniques, Inc. v. Hoffman, 50 Mass. App. Ct. 425, 425 (2000) (citing Bates v. Southgate, 308 Mass. 170, 182 (1941)).
See also Kannavos, 356 Mass. at 48 ("Although there may be no duty imposed upon one party to a transaction to speak for the information of the other[,] if he does speak with reference to a given point of information, voluntarily or at the other's request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading as active misrepresentation, and half-truths may be as actionable as whole lies.") (internal quotation omitted).
For purposes of its motion for summary judgment, PK does not dispute that Shea made the representations to Correia that TM alleges. Neither does it appear to contest at this stage what TM alleges Clark and Buerge to have said. PK also does not raise state of mind issues necessitating the sort of credibility determinations that would render summary judgment even more difficult than usual. Roadmaster, Inc. v. Columbia Manufacturing Company, Inc., 893 F. Supp. 1162, 1165 (D.Mass. 1995) (citation omitted). Finally, PK does not at this stage dispute that TM has suffered the problems with the 1998 Model that it alleges, although PK does offer evidence that TM itself may have been responsible for some of those problems.
In this regard, TM submits the deposition testimony of an MRL representative, Terry Miller, sent at TM's request to examine the truck and provide further operator training, as well as that of Gonitzke, MRL's President, who happened upon a removal project TM was undertaking with the 1998 Model in South Carolina. Miller testified that he did find the truck to be producing excessive dust, but that this was because TM's operators for the truck had never examined the air intake filters of the vacuum system, which were entirely plugged. PK juxtaposes this testimony with that of Clark, PK's operator for the truck, who testified that he told Correia that the filters required daily cleaning, sometimes as many as two or three times per day. Less effectively, Miller also speculated as to other operator errors which might have caused the truck to have trouble grinding ramps and corners, or to experience excessive breakage of grinding bars and teeth.
Gonitzke's testimony supports PK's position with his observation that the TM operators at the South Carolina work site were using overly large grinding teeth, thereby causing the teeth to grind against one another in an unsafe manner. Gonitzke also testified that only one of the truck's six grinding heads was operational and the compressor powering the vacuum system was broken, and that he was told that TM headquarters had not provided its operators with replacement heads or permitted them to fix the compressor. This latter testimony arguably supports both an exculpatory theory of causation, as PK believes, and an inculpatory finding of the sort of mechanical breakdowns that TM alleges.
Rather, PK primarily contends that TM has failed to produce sufficient evidence, for summary judgment purposes, that any of PK's alleged representations were, on the basis of PK's own experience with the 1998 Model, actually false or misleading when made. If this analysis were to fail with regard to any of the statements allegedly made by Clark and Buerge, PK further contends that these two employees did not have authority to make representations on behalf of PK in the first place. PK lastly contends that TM also has failed to produce sufficient evidence of its detrimental reliance on any representations made by PK.
I structure my analysis as follows: First, I will consider whether any of the representations TM alleges Shea to have made to Correia can be characterized as false or — in their incompleteness — misleading, in light of TM's evidence regarding PK's experience with the 1998 Model. Second, I will determine whether Clark or Buerge enjoyed actual or apparent authority to make representations to Correia on behalf of PK, and if so, will evaluate their alleged statements against the same evidentiary backdrop. I will turn last to the question of TM's reliance.
A. Shea's Alleged Representations to Correia
TM alleges that Shea helped to induce TM into purchasing the 1998 Model by telling Correia that, as previously represented by MRL, the truck did an excellent job both in grinding roadway surfaces and collecting the resulting dust, and that it was easy to maintain. In its Complaint, TM also alleged that Shea further represented that PK wished to sell the truck only because PK had decided not to enter into the contract with the State of Michigan for which the truck had been purchased, and because PK had no other work lined up for it. Apparently in light of Correia's subsequent deposition testimony, TM now accepts Shea's own somewhat different recollection of what he told Correia about why PK wished to sell the truck: namely, that Michigan had decided not to bid out any more contracts for the sort of large quantity "removal and epoxy" jobs for which PK had purchased the 1998 Model, and PK had no similar work otherwise lined up for the truck.
TM contends that all of these representations to Correia — even as recharacterized in TM's current filings — were false or misleading, in light of PK's actual prior experience with the 1998 Model. In support of this claim, TM alleges that PK in fact (i) experienced identical problems with the truck as TM later did; (ii) unsuccessfully sought to have them remedied both by MRL and another company, Arrow Striping, Inc. ("Arrow"); (iii) was prohibited from using the truck on any projects for the State of Michigan, and (iv) has purchased six comparable machines, which are engaged in work for which the 1998 Model otherwise would have been used.
As to its own experience with the 1998 Model, TM alleges that the truck (i) did a poor job of grinding roadway surfaces; (ii) did not follow road contours, curves, and ramps; (iii) created excessive heat and dust; (iv) experienced excessive breakage of grinding bars and teeth; and (v) managed a marking removal rate well below 70,000 linear feet per day.
1. Statements attributed to Steven Stark
A certain number of TM's allegations with respect to PK's experience with the 1998 Model are founded solely upon statements allegedly made by Steven Stark, an owner of Arrow and formerly an employee of MRL, to both Correia and TM's head mechanic, Kenneth Williams. Even after discovery, TM offers no other basis for its claims (i) that PK sought to have its problems with the truck remedied by MRL and Arrow; (ii) that Michigan prohibited PK from using the truck on any projects in that state; and (iii) that in PK's experience, as in TM's, the truck did a poor job of grinding roadway surfaces, and did not follow road contours, curves and ramps. Accordingly, I consider first whether statements TM attributes to Stark are sufficient to raise a genuine issue of material fact as to any of these particular claims.
Stark worked at MRL from 1986 until 1993. While there, he was in charge of the assembly of the 1992 Prototype.
Arrow, a Montana corporation, directly competes with MRL in the business of manufacturing marking removal trucks, and in fact has sold PK the six trucks referred to at paragraph 51 of TM's Complaint. Correia has testified that he contacted Stark in late 2000 or early 2001 regarding problems TM was experiencing with the 1998 Model. Williams also spoke with Stark around the same time. Both recall Stark as having made statements that, if true, would support TM's allegations about PK's experience with the truck.
Among other things, Correia testified that Stark correctly anticipated the problems TM was experiencing with the 1998 Model, explaining that he had seen the truck before. Correia also testified that Stark refused to help repair the truck by saying something along the lines of "I didn't want to fix it at the time. I don't want to fix it now." Similarly, Williams testified that Stark told him that the 1998 Model had been in his "shop," but that Stark had refused to try to repair its problems — in Williams' words, "Wouldn't go near the truck. Said the truck had to be stripped off its chassis and rebuilt from scratch."
The problem for TM is that Stark's alleged statements to Correia and Williams, if offered for their truth, constitute inadmissible hearsay. In particular, I reject outright TM's attempt to characterize Stark's alleged statements as the admissions of a party opponent under Fed.R.Evid. 801(d)(2). And there is no basis for concluding that Arrow's admitted business relationship with PK renders Stark an agent or employee of PK, see Rule 801(d)(2)(D), or joint venturer, see Rule 801(d)(2)(E).
Accordingly, to the extent that TM's claims regarding PK's experience with the 1998 Model depend on statements attributed to Stark, they must depend on Stark's own deposition testimony in this regard. Stark's deposition testimony, however, offers little support for the proposition that PK experienced problems with the truck in contradiction to Shea's alleged representations to Correia. In the first place, Stark began his deposition by explicitly denying that he ever told Correia or Williams (i) that PK sought to have its problems with the truck remedied by MRL or Arrow; (ii) that Michigan prohibited PK from using the truck on any projects in that state; or (iii) that PK had experienced at all any of the problems TM alleges it later experienced with the truck. Stark further testified that he had seen the 1998 Model in operation only on video and that he had examined the truck in person for only about 20 minutes during a visit to PK's facility in early 1999. Stark did state that at some point PK asked him about replacing the truck's grinding boxes with Arrow manufactured boxes which could be adapted to feature a saw attachment for plunge cutting snowplow markings, and that he told PK that Arrow's box design was incompatible with the 1998 Model's hydraulic system (and would consequently necessitate "redo[ing] the entire machine"). This piece of testimony does not, however, suggest a reasonable inference that PK was experiencing problems with its grinding boxes. The most that can be drawn from it is that, as Shea himself has admitted, PK was seeking an added functionality for its marking removal truck.
On the other hand, Stark also testified that he heavily disparaged the 1998 Model to both Correia and Williams, and somewhat inconsistently with his earlier testimony, may even have told Correia that PK in fact had experienced problems with the truck. When pressed on these points, however, Stark stated that he was merely attempting to sell TM an Arrow truck, and that his comments were based solely on his brief observation of the 1998 model at PK's facility, speculation, and to some extent, what TM "wanted to hear." In particular, Stark made clear that "[w]hether [PK experienced problems] or not, I don't know. They had never spoken to us about any problems that they'd had."
Given that Stark's testimony does not support TM's claims regarding PK's experience with the 1998 Model, I find that those of TM's claims founded solely upon statements attributed to Stark fail. I find no colorable evidence (i) that PK sought to have its problems with the 1998 Model remedied by MRL and Arrow; (ii) that Michigan prohibited PK from using the truck on any projects in that state; and (iii) that PK experienced at least some of the problems TM alleges itself later to have encountered, namely poor grinding of roadway surfaces, and an inability to follow road contours, curves and ramps.
In this connection, I decline to view as reasonable any inferences that PK experienced problems with the 1998 Model, which are drawn solely from TM's own alleged problems with the truck. My unwillingness to do so derives both from PK's evidence of error on the part of TM's operators for the truck, see supra n. 9, and a common sense recognition of the infinite variety of possibilities that could have affected TM's operation of the truck. Under those circumstances, more evidence would be needed to demonstrate that because TM experienced problems PK must also have done so before.
2. TM's allegations concerning excessive heat, dust, and breakage
Not founded solely upon statements attributed to Stark, by contrast, are TM's claims that PK suffered the same problems with excessive heat, dust and breakage of grinding bars and teeth as TM itself later did. For clarity, I will address each of these issues separately.a. excessive heat
TM's claim that, in its own experience, the 1998 Model has produced excessive heat, is somewhat ambiguous but contemplates both the comfort level within the grinding apparatus operator's cabin as well as functional interference with the truck's operations. Specifically, TM suggests that the design of the truck's hydraulic system caused the hydraulic hoses to overheat leading to unusually high temperatures within the operator's cabin through which they run (going to comfort level), and resulting in both oil leakage from and even melting of the hoses themselves (going to functional interference).
To the extent that TM claims PK personnel also experienced uncomfortably high temperatures within the operator's cabin, I note that the testimony of PK's own personnel does not appear to raise a genuine issue of material fact on this score. PK's operator for the 1998 Model, Clark, testified that he "[n]ever" experienced discomfort from the cabin being too hot. To be sure, PK's mechanic, Buerge, testified that the cabin was "definitely hot," and that he might have responded by putting some insulation around the console containing the hydraulic lines. That is not enough to establish "excessive heat" as a comfort level issue. Moreover, the comfort level within the cabin was not itself the subject of any alleged representation by Shea. Neither does TM allege that the topic was even touched upon in Shea and Correia's conversations, in the sense that it might implicate the sort of partial or incomplete statement on the basis of which Massachusetts law requires additional disclosure. V.S.H. Realty, 757 F.2d at 414-15; Kannavos, 356 Mass. at 48-49. Accordingly, I find no genuine issue of material fact as to whether PK personnel experienced discomfort from the cabin being too hot sufficient to support any claim of misrepresentation by PK.
On the other hand, evidence that, in PK's experience, excessive heat resulted in functional interference with the 1998 Model's operations would contradict Shea's alleged representations about the excellent performance and low maintenance needs of the truck. TM has failed to produce any such evidence, however. In particular, I note that Buerge — on whose testimony TM entirely relies for the proposition that PK experienced heat problems with the truck — could not recall that the temperature level of the hydraulic hoses had ever caused problems to the hydraulic system itself. I do not consider it a reasonable inference, in the absence of competent technical or other evidence including some expertise, that PK experienced problems like oil leakage or melting of the hoses merely because Buerge described the cabin as "definitely hot." Accordingly, I conclude TM has not adduced sufficient evidence that PK experienced heat-induced functional interference with the 1998 Model's operations.
b. excessive dust
TM's claim that PK also suffered from excessive dust produced by the 1998 Model's grinding operations draws primarily on Buerge's testimony that the truck's compressor, which powers the vacuum system, broke down about a month after PK had been running the truck, and that after repairing it, he sought to prevent future breakdown by extending the compressor's air intake valve from about three feet above the grinding boxes to about six or seven feet above them. In particular, TM notes that Buerge explained that it appeared dust was getting into the compressor and that he extended the air intake valve precisely in order to "get cleaner air to [it]." TM also places great emphasis on the fact that Shea described the extension of the air intake valve — which he testified he first learned about pursuant to Correia's deposition in this case — as a step taken "to help alleviate or solve a problem." Finally, TM also cites Buerge's testimony that the failure of the truck's alternator after only four months was "a little premature," and suggests this possibly was due to dust as well.
PK seeks to discount this testimony, in part, by contending that these repairs were recorded in the 1998 Model's repair log, and that this log was fully disclosed to Correia. Contrary to TM's suggestion otherwise, these repairs do appear to have been recorded in the repair log, as revealed by counsel's apparent citation of recorded entries in questioning Buerge about them. Nevertheless, TM does raise a genuine issue of fact as to whether the repair log was shown to Correia when he was visiting PK's facility, as Buerge testified, or only for the first time after PK delivered the truck to TM's facility, as Correia's newly executed affidavit now maintains.
More germane to my present analysis is the question whether Buerge's testimony raises a genuine issue of material fact as to whether PK experienced less effective dust removal with the 1998 Model than Shea represented to Correia. Correia testified that Shea told him that the truck would not pick up debris, necessitating a sweeper truck, but that it "collected dust well," a recollection that PK does not contest on this motion. Under the circumstances, Correia could not reasonably have understood Shea to mean that the 1998 Model collected all of the dust generated by its grinding operations, and TM does not suggest any other objective standards for what might constitute collecting the dust "well." That PK found it necessary to extend the compressor intake valve to six or seven feet above the grinding boxes in order to "get cleaner air," even acknowledging PK's emphasis on the "dirty environment" within which the truck operates, suggests only the hardly surprising proposition that further refinements and modifications to machines are sometimes considered appropriate. Buerge's testimony that dust from the truck's grinding operations had plugged a filter for the truck's power plant that reached about ten feet above the ground, suggests that attention to maintenance was also considered important. But even taking into account Clark's testimony of his diligent cleaning of the air intake filters for the truck's vacuum system — apparently over and above what the 1998 Model's designer, Terry Miller, thinks ought to be necessary — I find there to be no genuine issue as to whether, in PK's experience, it was a misrepresentation to say the truck collected dust "well."
Miller testified that the air intake filters do not necessarily require daily maintenance.
Although PK does not press the point, I view the use of a standardless term like "well" in this context as the sort of "puffing" or "seller's talk" that is non-actionable under Massachusetts law. See Cummings, 244 F.3d at 21-22; Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App. Ct. 73, 75 (1994).
c. excessive breakage of grinding bars and teeth
Finally, TM claims that PK also experienced excessive breakage of grinding bars and teeth on the basis of evidence that PK replaced the 1998 Model's grinding heads with larger, heavier ones, maintained a substantial inventory of grinding heads and bars, and in fact had a number of additional heads on order from the manufacturer at the time of the sale to TM.PK does not dispute that it replaced the truck's grinding heads with larger, heavier ones, or that it maintained a substantial inventory of grinding heads and bars. It further acknowledges that it did not inform TM of the modified heads, which featured a greater diameter of one or two inches, and a greater weight of approximately ten to fifteen pounds. Its inventory of grinding heads and bars, on the other hand, was prominently disclosed in the initial mailing sent to TM. In either event, however, PK maintains that TM's conclusion that PK must have experienced similar levels of breakage of grinding bars and teeth is merely unsupported inference.
I concur with PK's assessment of TM's argument. In the first place, I note that TM has produced no direct evidence that PK experienced any particular level of breakage of grinding bars and teeth. Second, TM fails to explain why one might reasonably infer that PK experienced any particular level of breakage on the basis of larger, heavier heads, and moreover fails to counter the testimony of MRL's President, Gonitzke, and of the 1998 Model's designer, Miller, that modification of the heads would not, with simple operating adjustments, have led to more breakage than before. Finally, putting aside the difficulty that PK's full disclosure of its inventory of grinding bars poses to TM's prospective reliance argument, I find that the mere fact that PK maintained a concededly large inventory of grinding bars, which Shea testified was meant to facilitate field readiness, does not reasonably support an inference that PK experienced an unusually large degree of breakage, especially in the absence of any comparison of that inventory to a particular level of breakage that the industry might deem "excessive."
Accordingly, I find TM has adduced insufficient evidence to create a genuine issue of material fact regarding the issue whether in operating the 1998 Model, PK experienced any excessive breakage of grinding bars and teeth.
3. PK's later purchases
I turn last to the question of whether PK's purchase of six marking removal trucks from Arrow, after PK had sold the 1998 Model to TM, renders false or misleading Shea's representation to Correia about why PK wished to sell the truck.
As an initial matter, it is by no means clear TM's allegation on this score — that PK subsequently purchased six marking removal trucks comparable to the 1998 Model, and that they are engaged in work for which the 1998 Model otherwise would have been used — on its own would, if proved, render Shea's representation false or misleading, as of the time it was conveyed.
That said, I find that the record before me does not, in fact, provide any support for the proposition that PK has put these trucks to use on large quantity "removal and epoxy" jobs — the asserted absence of which Shea cited to Correia as the impetus for PK's wishing to sell the 1998 Model. Moreover, TM does not offer any evidence to controvert Stark's testimony that only three of the six marking removal trucks sold by Arrow to PK had long line grinding capability like that of the 1998 Model, and that all three featured the added functionality of boxes that could be adapted with a saw attachment (which Shea has testified PK was seeking in order to engage in work like plunge cutting snowplow markings and installing grooved-in tape markings on freeways). This added functionality does not permit description of even these three trucks as "comparable" to the 1998 Model. I find TM has failed to adduce sufficient evidence that the six trucks purchased by PK from Arrow are, as TM alleges, both comparable to the 1998 Model and engaged in work for which it would have been used.
I recognize that the record suggests Shea did not tell Correia that another reason PK wished to sell the 1998 Model was because of the added functionality that PK sought. While this omission arguably renders Shea's actual representation incomplete, I do not consider it to have been misleading, much less materially so. There is no reason to think — and TM does not suggest — that PK's perceived need for the added functionality of boxes that could be adapted with a saw attachment would have impacted TM's assessment of its own choice of the 1998 Model in any way.
B. Clark and Buerge's Alleged Statements to Correia
I turn next to the statements allegedly made by Clark and Buerge to Correia during his visit to PK's facility. As an initial matter, I reject PK's argument that the statements of these two employees must be discounted because neither had actual authority to make representations on behalf of PK in the first place. Irrespective of actual authority, PK does not dispute that Correia was introduced to Clark and Buerge — respectively the operator and mechanic for the 1998 Model — during his visit to PK's facility, and that Clark in particular was introduced by Shea as the person with the most experience with the truck. On this basis, Correia's belief in the apparent authority of both, and in particular of Clark, to make representations regarding the truck on behalf of PK, was eminently reasonable. See, e.g., Rodowicz v. Mass. Mutual Life Ins. Co., 192 F.3d 162, 177 (1st Cir. 1999); Commonwealth Aluminum Corp. v. Baldwin Corp., 980 F. Supp. 598, 611-13 (D.Mass. 1997); Kansallis Finance Ltd. v. Fern, 421 Mass. 659, 665-66 (1996).
That said, only one alleged statement by Clark or Buerge necessitates separate treatment from the analysis above: namely, Clark's representation to Correia that the truck typically removed 70,000 to 100,000 linear feet of markings per day. Again, TM alleges that in PK's actual experience with the truck, as in TM's later experience, the truck's marking removal rate fell far short of this range. Although neither allegation is referenced in TM's Complaint — both being newly made after discovery in this case — amending TM's Complaint to meet the obligations of Fed.R.Civ.P. 9(b) proscribed is not proscribed and I will not consider the necessity to refine the pleadings further a bar to my evaluation of them.
I note that TM also alleges that Clark later told Williams that the truck "would do 100 [sic] feet all day." I consider TM's evidence in this regard problematic, however: the snippet of Williams' deposition testimony that TM submits does not identify Clark, and is entirely unclear as to the conditions under which the alleged statement was made.
As to the substance of TM's allegations, PK does not appear to dispute that Clark told Correia that the truck typically removed 70,000 to 100,000 linear feet of markings per day. Also, despite PK's attempt to portray it differently, the summary of the production of the 1998 Model on various PK jobs that it submits reveals that the truck rarely achieved removal production in the range quoted over the course of a single day, and almost never during a single eight hour shift (as Correia could have assumed Clark to be representing).
PK does make some effort to portray Clark's statement as the product of leading questions by Correia, founded on representations about the 1992 Prototype earlier made to him by MRL.
Nevertheless, it is obvious marking removal rates are singularly difficult to predict in large part because of variety in conditions. In this setting, despite the illusory mathematical precision suggested by linear foot references, a broadly stated "typical" figure could fairly be characterized as seller puffing. See supra note 15. I note, in this connection, that just before Correia spoke with Clark, Shea himself for this reason had declined to quote Correia such a rate. This evidence is properly to be considered with reference to TM's reasonable reliance, however; and I will take it up under that heading. For now, I find there to be, on the basis of PK's own experience with the 1998 Model, arguably a genuine issue of material fact concerning whether Clark misrepresented to Correia the marking removal rate that the truck would typically achieve.
C. TM's Reliance
To succeed on its intentional misrepresentation claim, TM must also prove that it relied on a false representation of material fact to its detriment. See Zuckerman, 35 F. Supp.2d at 144. Having found an arguably genuine issue as to whether Clark did misrepresent the marking removal rate that the truck would typically achieve, I turn now to whether TM has raised at least a genuine issue as to its reasonable reliance on that representation.
PK has adduced evidence of the difficulty of predicting marking removal rates primarily consists of the testimony of Shea, Gonitzke, and James Spielman, an MRL employee who helped to develop the specifications for the 1998 Model, to that effect. Representative is the following excerpt from Spielman's testimony:
You could go out and do 200,000 feet in one day and only 25,000 the next day, for all the variables that you run into, the traffic control, the weather, the restricted working hours, the material you're trying to take off, potential mechanical problems, labor problems . . . .
PK also notes that Correia admitted at his deposition that marking removal rates vary depending on the material being worked on and the weather.
TM, for its part, submits a letter dated September 30, 1997 from Spielman to PK discussing the desired specifications for the 1998 Model in which Spielman asks:
How much removal would you like to accomplish in an eight hour period? 50,000 lineal feet? 75,000 lineal feet? 100,000 lineal feet plus? The amount desired will of course be the major design factor. Hydraulic powerplant, horsepower, number of grinder "heads" and chassis size will be determined by this.
PK argues strenuously against viewing this letter as proof that removal rates can be predicted, citing Spielman's own explanation that he was merely trying to get a sense of the size of truck and degree of horsepower that PK was seeking. It is apparent from Spielman's letter, even when read in the light most favorable to TM, that removal rates are not entirely predictable, and, at a minimum, depend upon a variety of factors.
The unpredictability and unreliability of removal rates was earlier brought to Correia's attention by Shea who "specifically recall[s]" telling Correia, prior to Correia's conversation with Clark, that:
it is impossible to quote a production rate for line removal because of the varying factors of type of material, thickness of material and pavement with which you're removing it from.
Given this cautionary observation, it is impossible to characterize TM's treatment of Clark's later estimate of a broadly stated removal rate as an adequate basis to give rise to reasonable reliance upon a representation by PK. In particular, I find TM's rationalization that Shea knew less about the 1998 Model than its operator, Clark, to be unavailing. At a minimum, TM ought to have followed up on Clark's estimate with Shea, which there is no suggestion that it did. The disparity between the two responses required further inquiry before there could be reasonable reliance on either. The belated assertion of "reliance" upon Clark's estimate appears little more than a pretext to avoid summary judgment on the misrepresentation claims. I find no genuine issue of material fact to suggest that reliance upon Clark's generalized statement of the removal rate was reasonable.
D. Conclusion
Even read in the fashion most sympathetic to plaintiff's claims, I find no basis to permit them to go to trial. There is no sufficient showing of actionable misrepresentation; and to the degree any misrepresentation is arguable, there has been no showing of reasonable reliance.
IV. TM's CLAIM OF UNJUST ENRICHMENT (COUNT V)
Because TM has not prevailed on its intentional misrepresentation claim, there is no occasion for the contract between TM and PK to be voided and consequently TM cannot prevail on its unjust enrichment claim.
V. TM's CHAPTER 93A CLAIM (COUNT VII)
I recognize that under Mass. Gen. Laws ch. 93A "the definition of an actionable 'unfair or deceptive act or practice' goes far beyond the scope of the common law action for fraud and deceit." V.S.H. Realty, 757 F.2d at 417 (quoting Staney v. Westwood Auto, Inc., 366 Mass. 688, 703-04 (1975)). This general statement is put in sharp relief by 940 Code Mass.Regs. 3.16(2), promulgated under Chapter 93A, § 2(c) and made applicable to transactions between businesses by § 11, which assigns Chapter 93A liability for failing "to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction." The allowance of a cause of action even in the absence of a duty to disclose represents a major difference, of course, between a Chapter 93A claim and an ordinary fraud claim under Massachusetts law. See V.S.H. Realty, 757 F.2d at 417.
Nevertheless, "a defendant's allegedly unfair conduct must at least come within shouting distance of some established concept of unfairness[.]" Cummings, 244 F.3d at 25 (internal quotation omitted).
In addition to the alleged intentional misrepresentations that my analysis above rejects, TM's Chapter 93A claim may also cover, under the broader scope set forth at 940 Code Mass.Regs. 3.16(2), two non-disclosures which I have found do not support TM's claim of intentional misrepresentation, but which TM alleges would have been material to its decision to purchase the 1998 Model: namely, the fact that PK had changed the size of the grinding heads on the truck, and the fact that Buerge considered the grinding apparatus operator's cabin to be "definitely hot."
I will first address the two non-disclosures TM raises. As to the modification of the size of the grinding heads, I have noted uncontroverted testimony that the heavier weight of the heads would not, with simple operating adjustments, have led to more breakage of grinding bars and teeth than before. For its Chapter 93A claim, TM contends that PK's modification of the grinding heads at least would have been material to TM's decision to purchase the truck precisely because of the need for such operating adjustments, and because of other weight-induced problems that TM alleges. As for Buerge's testimony that the grinding apparatus operator's cabin was "definitely hot," I have noted that Buerge nonetheless could not recall that the temperature level of the hydraulic hoses running through the cabin had ever caused problems to the hydraulic system itself. For its Chapter 93A claim, TM contends that Buerge's impression of the temperature level within the cabin at least whom have been material to TM's purchase of the truck because it would have put TM on notice that there might be some problem with the hydraulic hoses, which it alleges has proven to be the case.
In both instances, TM engages in strained reasoning to try to demonstrate why it would have considered the information in question to be material. And TM does not offer any additional perspective on why PK's purported non-disclosures are sufficient to invoke a Chapter 93A claim. See L.B. Corporation v. Schweitzer-Mauduit International, Inc., 121 F. Supp.2d 147, 154 (D.Mass. 2000). The failing is especially acute here because TM has failed to raise a genuine issue that PK in fact faced any problems with the modified grinding heads, or heat-induced interference with the truck's operations. Accordingly, I find as a matter of law that PK's non-disclosures do not support TM's Chapter 93A claim.
VI. CONCLUSION
For the reasons set forth more fully above, Defendant P.K. Contracting's motion for summary judgment is ALLOWED.