Annelli v. Ford Motor Co., No. 4001345 (CT 7/22/2005)

• Decision Date: 22 July 2005
• Docket Number: No. 4001345,4001345
• Court: Connecticut Supreme Court
• Parties: Christopher Annelli v. Ford Motor Company Opinion No.: 89653

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Unpublished Opinion

Christopher Annelli v. Ford Motor Company Opinion No.: 89653

No. 4001345

Superior Court of Connecticut

Judicial District of New London at New London

July 22, 2005

MEMORANDUM OF DECISION

D. MICHAEL HURLEY, JUDGE TRIAL REFEREE.

On November 4, 2004, the plaintiff, Christopher Annelli, on behalf of himself and others similarly situated, filed a one-count class-action complaint against the defendant, Ford Motor Company. In count one, the plaintiff alleges, inter alia, that the defendant violated General Statutes §42-227,¹ Connecticut's Secret Warranty Act, and General Statutes §42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff alleges that he brought this action on behalf of himself and for the benefit of all consumers who own or lease the following vehicle models: the Ford Crown Victoria, Mercury Grand Marquis and Lincoln Town Car models built between the years 1992 and 2003. Specifically, the plaintiff alleges, inter alia, the following. The aforementioned models were built on a "Panther-platform" design. The models built on the Panther-platform design are identical in all respects material to this action. The design of Panther-platform vehicles creates a significant risk of post rear-end collision fires, and the defendant has "designed a repair kit for these vehicles and has adopted [an adjustment] program to make the repair kit available free of charge for Panther-platform vehicles registered to certain law-enforcement agencies in the United States, including law enforcement agencies in Connecticut." "The repair kit is designed for all 1992-2003 Panther-platform vehicles and does not represent a case by case adjustment" made by the defendant. The repair kit was designed to "address the conditions causing post-collision fire risks and to enhance the Panther-platform vehicles' safety, durability, reliability and performance." The defendant, however, refuses to notify other Connecticut consumers affected by the rear-end collision problem about the repair kit's availability. Consumers, other than law enforcement agencies, must incur hundreds of dollars to obtain the kit and have it installed. The defendant fails to implement procedures to ensure reimbursement of consumers eligible under the adjustment program. The plaintiff alleges that the defendant has no intention of reimbursing consumers for these expenses, or for expenses incurred by owners or lessees before they obtained knowledge of the defendant's adjustment program. The plaintiff alleges that the defendant's conduct is unlawful, unfair and deceptive in violation of subsection (h) of the Connecticut Secret Warranty Act, General Statutes §42-227 and CUTPA, General Statutes §42-110a et seq., causing the plaintiff and the members of the class to suffer ascertainable losses.

On December 17, 2004, the defendant filed a motion to strike the plaintiff's complaint on the grounds that: (1) the complaint is legally insufficient and fails to state a claim upon which relief can be granted under the facts alleged; and (2) Connecticut's Secret Warranty Act is preempted by the Federal Safety Act. With the motion, the defendant filed an accompanying memorandum of law. On January 24, 2005, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. On March 24, 2005, the defendant filed a memorandum of law in reply to the plaintiff's opposition.

DISCUSSION

The purpose of a motion to strike "is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). In addition, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "In dealing with a motion to strike, a court must give to the complaint every reasonable inference to sustain its legal sufficiency." Etter v. Advest, Inc., Superior Court, judicial district of New London, Docket No. 561512 (October 29, 2002, Corradino, J.) (33 Conn. L. Rptr. 321, 322).

The defendant argues that the plaintiff has not alleged actual damages or that he incurred any expenses for repairs to his vehicle and, therefore, he lacks standing because he alleges no direct injury. The plaintiff argues that he does not need to allege actual damages, only that he has suffered an "ascertainable loss."

The plaintiff alleges that the defendant has violated Connecticut's Secret Warranty Act which is, consequently, a per se violation of CUTPA. See General Statutes §42-227(h) (where a violation of §42-227 is deemed a deceptive and unfair practice under CUTPA). To bring a claim under CUTPA, as the plaintiff has, requires that the plaintiff allege ascertainable damages, not necessarily actual damages.

"General Statutes §42-110b(a) provides in relevant part: No person shall engage in unfair methods of competition and unfair or deceptive acts or practice in the conduct of any trade or commerce. General Statutes §42-110g(a) provides in relevant part: Any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." (Emphasis in original; internal quotation marks omitted.) Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 592-93, 821 A.2d 283 (2003).

"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an `ascertainable loss' due to a CUTPA violation . . . [T]he words `any ascertainable loss' [however] . . . do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 593. "`Loss' has a broader meaning than the term `damage.' . . . For purposes of CUTPA, [a]n ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established." (Citation omitted.) Id. "[O]ur Supreme Court [does] not require that a claimant make a purchase to establish an ascertainable loss; it defined `ascertainable loss' in much broader terms." (Emphasis in original.) Id., 597.

In Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997), the Connecticut Supreme Court found that a loss of potential customers constitutes an injury, deprivation or detriment that is "capable of being discovered, observed or established." The Court held further that the "fact that a plaintiff fails to prove a particular loss or the extent of the loss does not foreclose the plaintiff from obtaining injunctive relief and attorneys fees pursuant to CUTPA if the plaintiff is able to prove by a preponderance of the evidence that an unfair trade practice has occurred and a reasonable inference can be drawn by the trier of fact that the unfair trade practice has resulted in a loss to the plaintiff." (Emphasis in original.) Id. In the present case, the plaintiff has alleged ascertainable loss resulting from the unlawful acts or omissions of the defendant. The loss can be a potential loss, e.g. the cost of a potential purchase of the repair kit. Therefore, the plaintiff has sufficiently alleged an ascertainable loss as required by §42-110g and has standing under CUTPA.

The defendant also argues that the upgrade kit that it provides to law enforcement agencies is a forward looking enhancement to improve police officer safety through research and testing of police practices, and developmental work on police vehicles. The upgrade kit, the defendant argues, is "to make a safe car safer," and that because the upgrade kit is forward looking it cannot constitute an adjustment program as defined in §42-227(a)(4). In addition, the defendant argues, the upgrade kit is not an adjustment program and is not violative of the Secret Warranty Act unless the defendant has already designated the civilian consumer plaintiff eligible under an adjustment program; the upgrade kits were never intended for, nor offered to, consumers other than law enforcement agencies. The plaintiff argues that the Secret Warranty Act does not differentiate between civilian vehicle owners and law enforcement vehicle owners where the defendant endeavors to pay for the cost of a repair kit addressed at specific issues arising with the Panther-platform design. Moreover, the plaintiff argues that he has alleged that the design of law enforcement vehicles and civilian vehicles are of identical design, and that every owner or lessee should receive benefit from an adjustment program. This court agrees with the plaintiff.

Section 42-227(a)(4) provides in relevant part: "`Adjustment program' means any program or policy that expands or extends the consumer's warranty beyond its stated limit or under which a manufacturer offers to pay for all or any...