Opinion
No. FST CV 07 5004090 S
February 13, 2008
MEMORANDUM OF DECISION
The plaintiff in this action, Melissa Kahn, claims that the defendant, Volkswagen of America, Inc. violated the Connecticut "Lemon Law," breached written warranties, breached implied warranties, breached express warranties, breached the obligation of good faith and fair dealing and violated the Connecticut Unfair Trade Practices Act (CUTPA). She seeks damages and equitable relief including revocation of her acceptance of a 2004 Volkswagen Toureg automobile which she leases.
Her complaint alleges that on May 27, 2004, the plaintiff entered into a lease and warranty agreement with Riverbank Motors Corporation, Inc. (the Dealership) for a new, 2004 Volkswagen Toureg (the "Vehicle"), manufactured by the defendant. The Vehicle came with written "factory warranties" for any non-conformities or defects in materials or workmanship. The plaintiff alleges that the defendant and the Dealership made various other "express warranties" to the plaintiff regarding the quality of the Vehicle. After delivery, the Vehicle experienced various operating problems and malfunctions on myriad occasions during the period from February 2005 to August 2006, including multiple system monitoring lights coming on, engine stalling, problems with shifting, and the Vehicle lurching forward unexpectedly. The plaintiff returned the Vehicle to the Dealership and other Volkswagen dealerships repeatedly for repairs and service of these problems. Despite multiple attempts and a total of forty-nine days in the repair shop, the problems with the Vehicle were never rectified.
Although it was originally named as a defendant, this action has been withdrawn as to Riverbank Motors Corporation, Inc.
In the first count, the plaintiff claims that the Vehicle is defective, that the defendant and Dealership have been unable to fix the problems, and therefore, she is entitled to relief under Connecticut's "Lemon Law," General Statutes § 42-179. In the second count the plaintiff claims that defendant breached written warranties. In the third count the plaintiff claims that the defendant breached implied warranties of merchantability under the Uniform Commercial Code and the Magnuson Moss Warranty Act, 15 U.S.C. § 2308. The fourth count claims breach of express warranties. The fifth count claims breach of the obligation of good faith and fair dealing. The sixth count alleges violations of the Connecticut Unfair Trade Practices Act (CUTPA), Connecticut General Statutes § 42-110(b) et seq. In the seventh count, the plaintiff alleges that she is entitled to revoke her acceptance of the Vehicle.
As relief the plaintiff demands refund of all monies paid to lease the Vehicle, equitable relief in the form of replacement of the vehicle or repair of the Vehicle and extension of all warranties and service contracts, incidental and consequential damages, and, as to the seventh count, revocation of her acceptance of the Vehicle.
The defendant, Volkswagen of America, Inc., filed a request to revise, dated July 24, 2007, seeking a deletion of the first count of the complaint (Lemon Law), or a merger of the allegations into the sixth count (CUTPA violations). In support of its request, the defendant argued that the Lemon Law provides two alternative avenues of obtaining a remedy: to pursue arbitration of its claims; or to file a CUTPA claim. The defendant contended that because the plaintiff had not sought arbitration, its only course of action would be to file a CUTPA claim. As the sixth count asserted that the very same conduct was a CUTPA violation, the first and sixth counts, were according to the defendant, duplicative. On September 24, 2007, the court (Tierney, J.) sustained the plaintiff's objection to the request to revise, stating that "This is better addressed by a motion to strike."
On October 22, 2007, the defendant filed a motion to strike the first, third, fifth, and seventh counts of the plaintiff's complaint and various requests for relief on the grounds that the plaintiff has failed to allege legally sufficient claims upon which relief may be granted. The plaintiff has objected to the defendant's motion and the parties have filed supporting memoranda of law. The matter was heard at short calendar on November 13, 2007.
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). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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.) Batte-Holmgren v. Commissioner of Public Health, supra, 294.
MOTION TO STRIKE THE FIRST COUNT (LEMON LAW)
The defendant has moved to strike count one on the grounds that Connecticut's "Lemon Law" requires arbitration and does not authorize a private civil action by a consumer directly against a manufacturer. As an initial matter, the plaintiff objects to the motion to strike this count on the basis that Judge Tierney already decided this issue when he sustained the plaintiff's objection to the defendant's request to revise. However, it is clear from the language of the order that Judge Tierney sustained the objection solely on procedural grounds and that his decision did not address the merits of the defendant's contentions as set forth therein. Accordingly, the plaintiff's objection on this basis is overruled and the court will consider the merits of the motion to strike.
The motion to strike the first count raises the issue of whether the Connecticut "Lemon Law" (General Statutes § 42-179 through § 42-190, inclusive) allows for a private civil action. The "Lemon Law" was first enacted in 1982, when the legislature passed Public Act 82-827 (Lemon Law I), which was subsequently codified as General Statutes § 42-179. Motor Vehicle Manufacturer's Ass'n of the United States, Inc. v. O'Neill, 203 Conn. 63 (1987). "For consumer buyers of new motor vehicles, the act provides supplemental remedies of repair, replacement and refund to facilitate the enforcement of express warranties made by the manufacturers of such vehicles." Id.
In 1984, the legislature responded to consumer dissatisfaction with Lemon Law I and enacted Public Act 84-338 (Lemon Law II), now codified as General Statutes §§ 42-181 through 42-184. The dissatisfaction arose from the inability of consumers to obtain remedies under Lemon Law I due to the high cost of litigation, the backlog that then existed in the court system, and the lack of manufacturer-administered arbitration programs. Id. Lemon Law II authorized the Department of Consumer Protection to establish an independent arbitration procedure to settle disputes between consumers and manufacturers of motor vehicles that did not conform to express warranties. Id.
In support of its motion to strike, the defendant contends that there is no indication in the language of Lemon Law II that the legislature ever intended to provide two distinct routes for consumers to enforce the additional obligations imposed on vehicle manufacturers (i.e. 1. through a civil action in superior court; and 2. through arbitration proceedings). The defendant also claims out that there is a "presumption in Connecticut that right of private enforcement does not exist unless expressly provided in a statute" and it is "the [plaintiff that bears] the burden of demonstrating that such an action is created implicitly in the statute." Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246 (2006).
In response, the plaintiff claims that the present statute only provides arbitration as an alternative to a civil action, and therefore, a consumer has the option to seek enforcement of the Lemon Law by filing a civil action or through arbitration proceedings pursuant to General Statutes § 42-181. The plaintiff relies on a Superior Court case, Chrysler Financial v. Bogan, Superior Court, judicial district of New London, Docket No. 543105 (April 15, 1998, Martin, J.), addressing this specific issue. In that case, the court denied the defendants' motion to strike a count in the plaintiff's civil action that alleged a violation of General Statutes § 42-179 and held that a consumer "may choose to either bring a civil action or seek arbitration to enforce the provisions of General Statutes § 42-179." Id. The court considered the Supreme Court's review of the background of the Lemon Law in Chrysler Corporation v. Maiocco, 209 Conn. 579, 585, (1989), and the Supreme Court's observation that "a consumer may bring a grievance to an arbitration panel . . . [The] purpose of [General Statutes § 42-181] is to provide, for consumer purchasers of new vehicles, an alternative to civil litigation . . . Whether to invoke arbitration under the act is a decision for the consumer." (Citations omitted; internal quotation marks omitted.)
The plaintiff urges this court to determine, as did the Superior Court in Chrysler Financial v. Bogan, supra, that the text of the statute and the above-quoted language from Maiocco conclusively establish that a plaintiff may either sue to enforce the provisions of § 42-179, or seek arbitration to enforce the provisions of § 42-179. Although the court agrees that the plaintiff has a right to enforce her rights under General Statutes § 42-179 via a direct civil action, the court reaches this result through a somewhat different analysis.
In construing the statute the court is required, in the first instance to ascertain the meaning from the text of the statute itself. General Statutes § 1-2z. The plain language of General Statutes §§ 42-179 through 42-186, inclusive, does not explicitly provide for private enforcement by a consumer of the obligations set forth in § 42-179 via a civil action.
Absent express authorization in the statute or a controlling interpretation from the state's appellate courts, the court must look to whether a right of private enforcement is implicit in the statute. In its brief, the defendant points to the presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. See Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246 (2006).
Our Supreme Court has established a three-part test which the court must apply to determine whether the presumption against a private right of action has been overcome by the plaintiff, in such cases. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 250, (1996), cert. denied, 520 U.S. 1103 (1997). Although neither party addresses the applicability of the Napoletano test in their briefs, the court finds that it provides a suitable framework for analyzing and interpreting the relevant statute.
Under the Napoletano test, a court must examine: "First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Rollins v. People's Bank Corp., 283 Conn. 136, 142 (2007); see also Asylum Hill Problem Solving Revitalization Ass'n. v. King, supra, 277 Conn. at 247. In order to overcome the presumption that no private right is implied, it must be demonstrated that "no factor weighs against affording an implied right of action and the balance of factors weighs in [the plaintiff's] favor." (Internal quotation marks omitted.) Rollins v. People's Bank Corp., supra, 283 Conn. at 142. "In examining these three factors, each is not necessarily entitled to equal weight. Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [the plaintiff] to bring a private cause of action despite having failed expressly to provide for one." (Internal quotation marks omitted.) CT Page 2386 Id.
Regarding the first factor, there is no question that the plaintiff belongs to the class of persons for whose benefit the Lemon Law was enacted. The plaintiff, as a lessee of a new motor vehicle, is a "consumer" as the term is defined in General Statutes § 42-179(a)(1). The Lemon Law was enacted to afford greater protection to consumers of motor vehicles. Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 6, (1996) ("The Lemon Law . . . protects purchasers of new passenger motor vehicles."); see also General Motors Corp. v. Dohmann, 247 Conn. 274, 291 (1998) ("[T]he Lemon Law . . . ought to be read broadly in favor of those consumers whom the law [was] designed to protect."). The first factor, therefore, supports the conclusion that there is a private right of action.
Connecticut General Statutes § 42-179(a)(1) provides in relevant part: "'Consumer' means the purchaser, other than for purposes of resale, of a motor vehicle, a lessee of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle, and any person entitled by the terms of such warranty to enforce the obligations of the warranty . . ."
With respect to the second Napoletano factor, whether the legislative history supports the implication of a private right of action, it is clear that the legislature intended that the Lemon Law, as originally conceived, provide such a right. The principal sponsor of Lemon Law I, Representative Woodcock, explained that "if [the Lemon Law is adopted], a Consumer would have the opportunity to bring a civil action for recision of the purchase transaction directly against the manufacturer." (Emphasis added.) 25 H.R. Proc., Pt. 10, 1982 Sess., p. 3121, remarks of Representative John J. Woodcock III. Moreover, in support of the proposed amendment to the original bill that mandated arbitration through a manufacturer's program, if available; see General Statutes § 42-179(j) (revised to 2007); it was argued that "[b]y having this arbitration mechanism, it strengthens the bill itself but still gives the consumer the legal recourse for litigation if their dispute is not settled." (Emphasis added.) 25 S. Proc., Pt. 9, 1982 Sess., p. 2737, remarks of Senator Amelia P. Mustone. A review of the legislative history of Lemon Law II, General Statutes § 42-181, confirms the General Assembly's understanding that under the original Lemon Law, absent a manufacturer-administered arbitration program, "the only remedy that individuals have is to go to court." 27 H.R. Proc., Pt. 11, 1984 Sess., p. 3930, remarks of Representative Maurice B. Mosley.
The question confronting this court, therefore, is whether there is evidence of legislative intent to abrogate this private right of enforcement under Lemon Law I and replace it with arbitration. In hearings on what would become Public Act 84-338, codified at General Statutes § 42-181, it was confirmed that "[t]he purpose of the Lemon Law in Connecticut is to avoid litigation." Conn. Joint Standing Committee Hearings, General Law, 1984 Sess., p. 298, remarks of Senator Robert G. Dorr. The Connecticut Supreme Court reviewed the legislative history and background of General Statutes § 42-181, et seq., and concluded that the purpose of the statute was to "provide . . . an alternative to civil litigation." Motor Vehicle Manufacturer's Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 67-74 (1987). Quoting the legislative history, the Court later noted that the multi-year delay and substantial expense of bringing such a civil claim to court prevented most consumers from obtaining results under § 42-179, prompting the implementation of "an alternative." Chrysler Corporation v. Maiocco, supra, 209 Conn. at 594-95.
"The thrust of the arbitration process is to provide equal protection of the law for all new car buyers. To date only 7 of 26 manufacturers offer arbitration. This is indeed a big problem, because with our five to seven year backlog in our court systems, with the cost of litigation sky-rocketing, with the average price of new cars being $11,000 . . . it has become incumbent upon us to provide the public with a process where they can resolve new car warranty problems.
"The courts have not been able to do this . . . the industry is not doing it. The arbitration process that is being offered today is a totally integrated and coordinated approach to the abuses and problems that we have uncovered in the past 18 months." 27 H.R. Proc., Pt. 11, 1984 Sess., pp. 3931-32, remarks of Representative John J. Woodcock III.
The plain meaning of the word "alternative" is "one of the things, propositions, or courses of action that can be chosen." Random House Dictionary of the English Language (2nd Ed. 1987). Accordingly, the court concludes that in Chrysler Corporation. v. Maiocco, supra, the court held that the arbitration procedure created in 1984 and set forth in General Statutes § 42-181 was a separate "course of action that can be chosen." As discussed above, under Lemon Law I, the primary procedure for enforcement of the obligations set forth in General Statutes § 42-179 was a civil action. These circumstances indicate that, as the Supreme Court stated originally in O'Neill, supra, 203 Conn. at 70, arbitration is intended to be an alternative to, rather than a replacement of, civil litigation.
As a matter of construction, "remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Chrysler Corporation v. Maiocco, 209 Conn. 579, 595-96 (1989); see also Deschenes v. Transco, Inc., 284 Conn. 479, (2007) ("a remedial statute . . . should be construed generously to accomplish its purpose"). "[T]he Lemon Law is a remedial statute that ought to be read broadly in favor of those consumers whom the law [was] designed to protect." (Internal quotation marks omitted.) General Motors Corp. v. Dohmann, 247 Conn. 274, 291, (1998). To interpret the Lemon Law, as a whole, as foreclosing a consumer's ability to bring a private civil action would impede realization of the protective purposes of the statute. Conversely, the allowance of civil actions as well as arbitration provides to consumers the opportunity to subscribe to the efficiencies of arbitration that prompted the enactment of General Statutes § 42-181, while permitting a consumer to elect the procedure he or she deems appropriate.
Moreover, Connecticut's Lemon Law is conspicuously devoid of explicit language requiring arbitration. The legislature has demonstrated the "ability to use appropriate explicit language to confer exclusive jurisdiction . . ." Commission on Human Rights Opportunities v. Board of Education, 270 Conn. 665, 721-22 (2004) (noting not less than thirty examples from the General Statutes). When the legislature has not done so, however, courts should be "reluctant to infer exclusivity of remedy from an ambiguous remedial statute." Id., 719. In General Statutes § 42-181, the legislature neither included any language indicating that Department of Consumer Protection-supervised arbitration would be the exclusive forum for enforcing General Statutes § 42-179, nor did it expressly permit or foreclose other routes to obtaining those remedies. Instead, in General Statutes § 42-181(b) it provided an arbitration procedure that a "consumer may initiate." As the legislature has not provided explicit direction either way, the court should be reluctant to limit the rights of the consumers the law was intended to protect. Logically, the absence of express legislative intent to eliminate private enforcement is a strong indication that the legislature did not intend such a precipitous change and merely set out to supplement the right to private enforcement. This approach appears to be particularly appropriate in cases, such as this one, in which the right that would be foreclosed existed prior to the enactment of the statute that arguably abrogates it.
As to the third Napoletano factor, the inference that civil actions are authorized is supported by the statutory scheme of the Lemon Law. General Statutes §§ 42-179(j), 42-186, and 42-180 support the conclusion that arbitration before the Department of Consumer Protection is not necessary to obtain the remedies set forth in General Statutes § 42-179. Section 42-179(j) renders unavailable the remedies of a refund to the consumer or replacement of the vehicle if the "manufacturer has established an informal dispute settlement procedure which is certified by the Attorney General" and the consumer "has not first resorted to such procedure." Notably, there is no analogous provision that refers to the Department of Consumer Protection arbitration procedure established by General Statutes § 42-181. Section 42-186 imposes obligations on a consumer who is a lessee and brings "any action . . . against a manufacturer of a motor vehicle . . . based upon the alleged breach of an express or implied warranty made in connection with the lease of such motor vehicle pursuant to section 42-179 . . ." and allows a lessor to "petition the court to be made a party to the proceedings." (Emphasis added.) This language contemplates a private civil action in court rather than arbitration before a panel. Similarly, General Statutes § 42-180 authorizes a court to award attorneys fees in a breach of warranty action by a consumer against the manufacturer of an automobile.
General Statutes § 42-180 provides: "In any action by a consumer against the manufacturer of a motor vehicle, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale or lease of such motor vehicle, the court, in its discretion, may award to the plaintiff his costs and reasonable attorneys fees or, if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorneys fees to the defendant."
Upon review of the three Napoletano factors, the court finds that none militates against a finding that the Lemon Law allows for enforcement through a civil action. The court concludes that a consumer is not required to submit to arbitration and may bring a civil action against a manufacturer to enforce the rights set forth in Connecticut's Lemon Law. Accordingly, the defendant's motion to strike the plaintiff's first count is denied.
MOTION TO STRIKE THE THIRD COUNT (IMPLIED WARRANTIES)
In the third count, the plaintiff asserts a claim for breach of implied warranties under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., and the Uniform Commercial Code. The defendant has moved to strike the third count on the grounds that plaintiff cannot state a legally sufficient cause of action for breach of implied warranties. The defendant makes two principal arguments in support of its motion to strike: 1) that although it made express warranties, it did not extend implied warranties to the plaintiff; and 2) that the plaintiff may not bring an action for breach of implied warranties sounding in contract against a party with whom it is not in contractual privity.
In response the plaintiff claims that the Magnuson-Moss Warranty Act guarantees that consumers who receive express warranties enjoy implied warranty protection as well, and that Connecticut law no longer enforces a privity requirement for breach of contractual implied warranty actions.
A. Implied Warranties
Contrary to the plaintiff's position, the Magnuson-Moss Warranty Act does not itself create implied warranties. It merely provides a cause of action for breach of an enforceable implied warranty. 15 U.S.C. § 2310(d)(1). State law, rather than Magnuson-Moss, governs the creation and enforcement of implied warranties. Abraham v. Volkswagen of America, Inc., 795 F.2d 238, 249 (2d Cir. 1986).
In her complaint the plaintiff alleges that "[t]he Vehicle was subject to implied warranties of merchantability, as defined in 15 U.S.C. § 2308 and U.C.C. 2-314 and 2-318, running from the Defendants to the Plaintiff." It appears that the plaintiff's claim is that the purported implied warranty she seeks to enforce is derived from the underlying sale of the vehicle from the defendant to the Dealership (the lessor in the lease transaction), and that she is entitled to enforce such a warranty as a third-party beneficiary to that transaction. This inference may be drawn from the fact that Article 2 of the Uniform Commercial Code applies to the sale of goods and § 2-318 addresses the rights of third-party beneficiaries to enforce a seller's warranties.
15 U.S.C. § 2308 imposes restrictions on a warrantor's ability to limit the duration and effect of implied warranties. In the Magnuson-Moss Warranty Act, "implied warranty" is defined in 15 U.S.C. § 2301(7) as "an implied warranty arising under State law (as modified by sections 108 and 104(a)) [ 15 U.S.C. §§ 2308 and 2304(a)] in connection with the sale by a supplier of a consumer product."
Although named in the original complaint, the Dealership is no longer a party to this action. In her complaint or argument in opposition to the motion to strike has the plaintiff not alleged a breach of warranty against the Dealership or otherwise claimed that a warranty, enforceable against the defendant manufacturer, arose from the lease transaction she entered into with the Dealership. Such warranties are created in lease transactions pursuant to Article 2A of Connecticut's Uniform Commercial Code, General Statutes § 42a-2A-101 et. seq. See, in particular, General Statutes § 42a-2A-503 and § 42a-2A-504. The applicability of the Magnuson-Moss Warranty Act to lease transactions is an issue that has been widely contested in numerous jurisdictions in both state and federal court, but Connecticut courts have yet to address it.
General Statutes § 42a-2-314 establishes that a warranty of merchantability from the seller to the buyer is implied in all contracts for the sale of goods. "A breach of this warranty occurs, if at all, at the time of sale . . . or when [the goods] leave the manufacturer's control." (Citations omitted.) Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 546 (2000). However, the plaintiff was not the buyer in the sale made by the defendant manufacturer, the Dealership was. By its terms, General Statutes § 42a-2-314 creates a warranty that is enforceable, if at all, by the Dealership.
General Statutes § 42a-2-314 provides in relevant part:
(1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind . . .
(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade.
The plaintiff also relies on General Statutes § 42a-2-318 as a basis for her alleged right to enforce the warranty. Section 42a-2-318, however, only extends the right to enforce the seller's warranty to "any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such a person may use, consume, or be affected by the goods and who is injured in person by breach of warranty." The plain language explicitly limits the extension of the right of enforcement to individuals who are family members or guests in the Dealership's home and who suffer personal injuries as a result of a breach of the warranty. Therefore, the plaintiff has not pleaded facts which bring her within the application of General Statutes § 42a-2-318, nor do the facts alleged give rise to any such inference.
Moreover, plaintiff has not pled any alternative theory pursuant to which she may enforce any implied warranty derived from the sale of the vehicle to the Dealership. Cf. Russo v. Danbury Auto Haus, Inc., Superior Court, judicial district of Danbury, Docket No. 29 82 51 (June 10, 1994, Hull, J.T.R.) (In which the court held a manufacturer liable for breach of express warranties under General Statutes § 42a-2-313 where warranty terms provided coverage to original and subsequent owners of vehicle and the dealership had assigned its rights under the warranty to the plaintiff lessee.). Accordingly, the court finds that plaintiff has failed to show that an implied warranty of merchantability was created between the plaintiff and the defendant, or that the plaintiff is entitled to enforce the warranty between the defendant and the Dealership as a beneficiary of that contract.
B. Privity
Even if the court were to find that the plaintiff had the right to enforce an implied warranty of merchantability against the defendant, the court would be constrained to agree with the defendant's second claim that such an action is barred by the lack of privity between the plaintiff and the defendant. The court agrees with the defendant that Connecticut law has maintained a privity requirement that prevents parties who are not in contractual privity with the warrantor from enforcing any implied warranty. See Rosenthal v. Ford Motor Co, Inc., 462 F.Sup.2d 296, 309 (D.Conn. 2006) (noting differences between common-law tortious implied warranty claim and contractual implied warranty claim include the abolition of a privity requirement in the former); Koellmer v. Chrysler Motors Corporation, 6 Conn. Cir. 478, 485, cert. denied, 160 Conn. 590 (1971). Similarly, a contractual or buyer-seller relationship between the parties is required to maintain a claim under Article 2 of the UCC which governs the sale of goods. Sylvan R. Shemitz Designs, Inc. v. Newark Corp., Superior Court, judicial district of New Haven, Docket No. 055001029 (May 24, 2006, Blue, J.) (41 Conn. L. Rptr. 440).
Connecticut's general rule requiring privity is subject to certain limited exceptions. For example, after reviewing developments in Connecticut law, District Judge Clarie held that the privity requirement is not etched in stone and the doctrine is only applied to situations in which alternative remedies that do not require privity are available. Utica Mutual Ins. Co. v. Denwat Corp., 778 F.Sup. 592, 595-96 (D.Conn. 1991). Courts applying Connecticut law have also recognized that it may be possible to satisfy the privity requirement by pleading facts which establish an agency relationship between a vehicle manufacturer and the Dealership. Koellmer v. Chrysler Motors Corporation., supra, 6 Conn. Cir. 485-86. "The existence of an agency relationship is one of fact." Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006). In Koellmer, however, a directed verdict in favor of the manufacturer was upheld due to the plaintiff's failure to prove an agency relationship where the manufacturer made express written warranties but all direct dealings surrounding the completion of the transaction were between the plaintiff and the dealer. Koellmer v. Chrysler Motors Corporation, supra, 486.
Other jurisdictions have liberally reduced the role of the privity requirement in breach of implied warranty actions sounding in contract. For example, some courts have found that the extension of the express warranty makes the manufacturer "a party to the retail contract and removes the privity objection as to both express and implied warranties" on the reasoning that the consumer, having received the express warranty, should be entitled to rely on the manufacturer for implied warranties absent a disclaimer. 3 J. McDonnell E. Coleman, Commercial and Consumer Warranties (2007) § 24.02(1)(b); citing Chrysler Corporation v. Wilson Plumbing Co., 132 Ga.App. 435, 208 S.E.2d 321 (1974) (manufacturer's extension of express warranty through dealer creates privity for implied warranties); Hornberger v. General Motors Corp., 929 F.Sup. 884 (E.D.Pa. 1996) (allowing car lessees to proceed against the manufacturer on an implied warranty theory where the manufacturer had extended an express warranty to the lessees). See also Szajna v. General Motors Corp., 115 Ill.2d 294, 503 N.E.2d 760 (1986) (illogical to allow privity defense to implied warranty actions where Magnuson-Moss Warranty Act bars disclaimer of implied warranties). "Other courts, [however], refuse to allow the express warranty to remove the privity defense as to implied warranty claims, probably because they are unwilling to infer consent to implied warranty exposure based on the giving of an express warranty." J. McDonnell E. Coleman § 24.02(1)(b); citing, e.g., Koellmer v. Chrysler Motors Corporation, supra, 6 Conn. Cir. 478 (no finding of privity despite manufacturer's extension of express warranty to consumer); Johnson v. Anderson Ford, Inc., 686 So.2d 224 (Ala. 1996); Richard W. Cooper Agency, Inc. v. Irwin Yacht Marine Corp., 46 N.C.App. 248, 264 S.E.2d 768 (1980) (all holding that manufacturer's extensions of express warranty through dealerships do not create privity for implied warranties).
Despite the trend in other jurisdictions to dispense with the privity requirement in contractual breach of implied warranty actions, Connecticut maintains the requirement except under limited circumstances which are not present in this case. There is no allegation in the complaint of an agency relationship between the Dealership and manufacturer nor is it alleged that the plaintiff has no alternative means to obtain a remedy. The no alternative remedies exception also appears particularly inapplicable in light of the plaintiff's claim of breach of express warranty claim set forth in the second count of her complaint.
C. Conclusion
The court finds that the plaintiff is precluded from maintaining the claim for breach of implied warranty set forth in her third count, on both grounds raised by the defendant. Accordingly, the motion to strike the third count is granted.
MOTION TO STRIKE THE FIFTH COUNT (GOOD FAITH UNDER THE UNIFORM COMMERCIAL CODE)
In her fifth count, the plaintiff alleges that by failing to timely repair the vehicle or offer an appropriate settlement, the defendant failed to perform its obligation in good faith in violation of Uniform Commercial Code § 1-203. The court notes that the allegations of the fifth count are limited to violations of the UCC and do not include allegations of violations of common-law requirements of good faith. The defendant argues that this count should be stricken because 1) the plaintiff failed to cite to the relevant Connecticut statute as required by Practice Book § 10-3(a), and 2) there is no underlying contract between the parties that the defendant performed or attempted to enforce in bad faith.
With regard to defendant's first argument, Practice Book § 10-3(a) states: "When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." The requirements of P.B. § 10-3 have been held to be directory rather than mandatory, particularly when, in the context of the case, the defendant is clearly apprised of the plaintiff's theory of liability. Spears v. Garcia, 263 Conn. 22, 26 (2003) The Supreme Court has held that "[a]s long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." Mazurek v. Great American Ins. Co., 284 Conn. 16, 28 (2007). In the context of this case, it is clear that the fifth count is founded on General Statutes § 42a-1-304 (Connecticut's codified designation of UCC § 1-203). Accordingly, the motion to strike on that ground must be denied.
As a second ground, the defendant argues that General Statutes § 42a-1-304 does not apply to the plaintiff and defendant because the relationship between a non-seller warrantor and a buyer is not subject to the UCC. The defendant further contends that the plaintiff has not pleaded facts that would support a claim for breach of such an obligation. In her opposition to the motion to strike, the plaintiff argues that the UCC provision regarding the obligation of good faith is relevant to a transaction in which the defendant manufacturer leased a defective motor vehicle to the plaintiff. In this regard the court notes that this version of the facts squarely contradicts the allegations of the complaint, in which the plaintiff alleged that she leased the vehicle from the Dealership, rather than from the defendant.
General Statutes § 42a-1-304 provides: "Every contract or duty within this title imposes an obligation of good faith in its performance and enforcement." Article 1 of the UCC (General Statutes § 42a-1-101 et seq.), only "applies to a transaction to the extent that it is governed by another article of this title." General Statutes § 42a-1-102.
The plaintiff has failed to plead the existence of any relationship between the plaintiff and defendant that would be governed by either Article 2 or Article 2A of the UCC. Accordingly, the provisions of General Statutes § 42a-1-304 are not applicable and the defendant's motion to strike the fifth count must be granted.
MOTION TO STRIKE THE SEVENTH COUNT (REVOCATION OF ACCEPTANCE)
In the seventh count, the plaintiff asserts a claim against the defendant for revocation of acceptance. In their respective briefs, the parties agree that in this case, the claim may only survive if the plaintiff has sufficiently alleged the existence of an agency relationship between the Dealership and the manufacturer. See Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112 (1976). Although the plaintiff has not set forth even a conclusory allegation of an agency relationship in her complaint, she nevertheless argues that such a relationship may be inferred from the facts pleaded.
The Connecticut Supreme Court recently restated the basic principles for determining the existence of an agency relationship in Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 893 A.2d 389 (2006). "[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Citations omitted; internal quotation marks omitted.) Id., 543-44.
Since the plaintiff has failed to allege that the Dealership was the agent of the defendant or to plead facts from which such an agency relationship could be inferred, the defendant's motion to strike the seventh count is granted.
CLAIMS FOR RELIEF CT Page 2395
The court has granted the defendant's motion to strike the third count (breach of implied warranty of merchantability under Magnuson-Moss Warranty Act and the UCC) and the fifth count (breach of obligation of good faith and fair dealing under the UCC). Accordingly, the allegations of those counts cannot serve as a basis for any relief. The defendant also claims that the plaintiff's prayers for relief should be stricken with respect to the second, fourth and sixth counts.With respect to the second and fourth counts, the plaintiff demands money damages, equitable relief and incidental and consequential damages under the UCC. Inasmuch as neither the second count nor the fourth count is not based on the UCC the plaintiff is not entitled to incidental and consequential damages under the provisions of that statute and the motion to strike her prayer for such relief under those counts is granted. However, the plaintiff is entitled to demonstrate her entitlement to money damages and equitable relief. Accordingly, the motion to strike her prayers for such relief is denied.
In the sixth count (CUTPA violations) of her complaint, the plaintiff requests money damages, attorneys fees, equitable relief, punitive damages and incidental and consequent damages.
General Statutes § 42-110g(a) provides that a party who is a victim of acts prohibited by CUTPA "may bring an action . . . to recover actual damages." In addition to actual damages, it is within the court's discretion to award costs and reasonable attorneys fees, as well as injunctive or other equitable relief in addition to or in lieu of damages. General Statutes § 42-110g(d).
With respect to the plaintiff's prayers for relief, the defendant's motion to strike is granted with respect to the claims for incidental and consequential damages under the second and fourth counts and with respect to all claims for relief under the stricken third and fifth counts. In all other respects the motion to strike prayers for relief is denied.