Bishop v. American Honda Motor Co., Inc.
| Decision Date | 21 November 2012 |
| Docket Number | AANCV116008392S. |
| Court | Connecticut Superior Court |
| Parties | Timothy A. BISHOP v. AMERICAN HONDA MOTOR CO., INC. et al. |
UNPUBLISHED OPINION
The plaintiff has moved to strike several special defenses of the defendant, American Honda Motor Co., Inc., which were filed on January 11, 2012. The plaintiff moves to strike the second special defense to each of Counts Five, Six, Seven and Eight. The second special defense to these counts allege that the plaintiff is barred from recovering from the defendant American based on acts or omissions of third persons over whom American exercised no control and for whose conduct American is not responsible, including but not limited to the installation of aftermarket components in the subject vehicle. The plaintiff argues that this special defense is insufficient because it pleads facts inconsistent with those alleged in the Complaint.
The plaintiff moves to strike the Third Special Defense to each of Counts Five, Six, Seven and Eight. The Third Special Defense alleges that the vehicle was misused pursuant to General Statutes § 52-572l.[1] The plaintiff claims this special defense is insufficient because it does not allege that any misuse was not foreseeable.
The plaintiff also moves to strike the Fourth Special Defense to each of Counts Five, Six, Seven and Eight as legally insufficient in that this special defense alleges that third parties altered or modified the product by installing " aftermarket components" which caused damage pursuant to General Statutes § 52-572p.[2] The plaintiff argues that no party alleges facts to suggest that anyone other than the plaintiff or defendants modified or altered the subject vehicle and the statute per its terms, excludes the plaintiff.
The plaintiff moves to strike the Fifth Special Defense to each of Counts Five, Six, Seven and Eight. This special defense alleges that the plaintiff is barred from recovery based upon his alleged spoliation of evidence. The plaintiff argues that while spoliation of evidence may give rise to a jury instruction and an adverse inference, it is not a claim that the plaintiff has no cause of action.
The plaintiff also moves to strike the Sixth, Seventh, Eighth Ninth and Tenth Special Defenses to Count Five. These Special Defenses relating to the plaintiff's claims for punitive damages. The plaintiff argues they are legally insufficient because punitive damages awards are constitutionally valid. They cannot be attacked by special defenses claiming otherwise and such special defenses are not a claim that the plaintiff has no cause of action.
The plaintiff lastly moves to strike the Seventh Special Defense to Count Eight, which alleges that the plaintiff's claim in unjust enrichment is barred because there is no privity of contract. The plaintiff argues that this special defense is also legally insufficient because privity of contract is not required to recover on the legal theory of unjust enrichment.
The plaintiff has filed an eight-count complaint against the defendants American Honda Motor Company, Incorporated (" American") and Milford Imports, Incorporated, doing business as Courtney Honda (" Courtney). The first four counts are against Courtney and allege: (1) negligent misrepresentation; (2) a breach of the implied covenant of good faith and fair dealing; (3) a claim pursuant to the Connecticut Unfair Practices Act (" CUTPA"); and (4) breach of warranty. Counts Five through Eight are brought against American and allege: (1) a violation of CUTPA; (2) breach of implied warranty of merchantability; (3) breach of express warranties; and (4) unjust enrichment. This memorandum of decision relates only to Counts Five through Eight as against American. [3]
On or about July 13, 2007, the plaintiff purchased a new 2007 Honda Civic Hybrid motor vehicle from Honda of Westport, an affiliate of American. The plaintiff alleges the reason for his purchase of this model vehicle was specifically for the advertised gas mileage and environmental impact of this vehicle. The cost of the vehicle was approximately $27 000.00. At the time of the purchase the vehicle contained a window sticker containing information relating to the vehicle's fuel economy, which stated that the vehicle's fuel economy ranged from 49 miles per gallon in the city to 61 miles per gallon on the highway. The sticker also stated that the annual fuel cost for the vehicle was $795.00. In addition to the three-year factory warranty offered by American, the plaintiff purchased an extended warranty at a cost of $1, 429.00.
In November 2010, the plaintiff began noticing an issue with the Vehicle Integrated Motor Assist (" IMA") battery. The IMA indicator light came on notifying the plaintiff of a problem. The additional insurance purchases by the plaintiff covered the IMA battery in the event a replacement was needed. The plaintiff took the vehicle to Courtney Honda for service of the IMA issue. Courtney replaced the vehicle's regular battery and found no other problems in the vehicle regarding the IMA battery.
On or about December 28, 2010, the plaintiff again brought the vehicle to Courtney, as the IMA light came on again. Courtney told the plaintiff a software update was necessary in order for the IMA system to perform properly and for the vehicle to achieve the advertised gas mileage. The plaintiff initially refused, citing his own independent research which indicated that the software update essentially made the IMA battery ineffective and significantly reduced the gas mileage of the Honda Civic Hybrid. Courtney's representative or employee assured the plaintiff that the software upgrade would fix the IMA issue and provide the vehicle with better gas mileage than the plaintiff was currently getting. Based on this representation, the plaintiff agreed to the software upgrade.
Following the upgrade of the IMA battery software, the plaintiff again noticed issues with the IMA system. The IMA did not " kick-in" and was registering dashboard readings of 0 miles per gallon while the vehicle was going downhill whereas the vehicle had previously registered a very high miles per gallon reading under similar conditions. In addition, the vehicle's mile per gallon calculator indicated that the vehicle under normal driving conditions was achieving considerably less miles per gallon than was advertised, as well as considerably less miles per gallon than the vehicle had previously attained prior to the IMA battery software upgrade.
The plaintiff again brought the vehicle to Courtney for service due to the gas mileage problem. The plaintiff spoke with the same individual who had recommended the software upgrade at a previous visit. This representative/employee of Courtney made additional representations to the plaintiff. The employee told the plaintiff to disregard the miles per gallon information on the dashboard as fluctuations in the price of gasoline affected the miles per gallon readings. This representative of Courtney at the service desk also stated that the gauges reflecting the gas mileage and the IMA's battery charge were unreliable and that the plaintiff should trust the representations of this employee/representative that the vehicle was performing as it should. Lastly, for the first time, this employee advised the plaintiff that the software upgrade did, in fact, prevent the IMA system from working until the vehicle had been driven for at least 10 miles.
The plaintiff claims that, to date, the subject vehicle continues to get significantly less fuel efficiency as compared to the advertised gas mileage, and the vehicle no longer gets the gas mileage that it did get prior to the software upgrade. The plaintiff also claims that the vehicle periodically suffers from a low battery, loss of power and other abnormalities that did not exist when the vehicle was new.
The standard of review on a motion to strike is well established. " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
" [W]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a [pleading] challenged by a ... motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, supra, 295 Conn. 252-53, 990 A.2d 206 (2010). Legal conclusions in a pleading are not deemed to be admitted. See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
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