Summary
certifying class of consumers alleging design defects in the placement of fuel tanks in CVPI and other Panther-platform vehicles
Summary of this case from Linert v. FoutzOpinion
No. 4001345
October 4, 2007
MEMORANDUM OF DECISION RE MOTION FOR CLASS CERTIFICATION [#126]
FACTS
This vigorously contested matter involves a request for class certification. On September 12, 2005, the plaintiff, Christopher Annelli, filed an amended class action complaint against the defendant, Ford Motor Company, on behalf of himself and all consumer owners and lessees of model year 1992-2003 Ford Crown Victoria, Mercury Grand Marquis and Lincoln Town Car vehicles registered in the state of Connecticut (the plaintiff is the owner of a 1995 Lincoln Town Car). Therein, the plaintiff alleges that the defendant has violated General Statutes § 42-227, Connecticut's Secret Warranty Act, and General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). Specifically, the plaintiff alleges that the aforementioned Ford-manufactured models are built on what the company describes as its "panther-platform" (vehicles or panther platform vehicles), and that they are essentially the same vehicle in all respects material to this action. The plaintiff contends that the vehicles are "designed with a vertical fuel tank located within what is commonly referred to as the vehicle's `crush zone'" and that "the fuel tank is exposed to crushing forces and sharp metal objects in rear-end collisions, which creates a substantial risk that the fuel tank will be punctured, causing fuel to leak and [contribute] to fuel-fed fires." Simply, the plaintiff alleges that the vehicles' "design creates a significant risk of post rear-end collision fires and other damage . . ." The plaintiff alleges that, on October 22, 2001, the defendant recognized these potential risks by issuing a "technical service bulletin" (TSB) which recommended certain remedial repairs to significantly reduce or eliminate the fuel tank puncture risk. The plaintiff contends that the TSB was sent to the defendant's dealers, and that it stated the defendant would provide the repairs to all 1992-2001 owners and lessees of the vehicles free of charge under a bumper-to-bumper warranty. The plaintiff further alleges that the defendant failed to notify consumers that they were eligible for these free repairs in violation of Connecticut's Secret Warranty Statute, General Statutes § 42-227. The plaintiff contends that, on or about October 22, 2002, the defendant adopted an "upgrade program," limited to "1992-2003 Model Year Crown Victoria Police Interceptor Vehicles" (CVPIs), which purported to eliminate its repair obligations pursuant to the prior TSB. According to the terms of the upgrade program, the plaintiff alleges that the defendant offered a repair kit for CVPI vehicles and other panther platform vehicles used by law enforcement free of charge. The plaintiff, however, contends that the defendant failed to offer the upgrade program and its repair kit to other owners or lessees of panther platform vehicles, including CVPI vehicles, and that the defendant failed to even notify others as to the existence of the upgrade program and the accompanying repair kit. The plaintiff alleges that ever since the defendant adopted the upgrade program, it has refused to offer the repairs delineated in the TSB to owners and lessees of the vehicles, including consumers in the state of Connecticut. In addition, the plaintiff alleges that the defendant has refused to refund any amounts paid by consumers for repairs made pursuant to the TSB, which were performed prior to September 27, 2002, except for repairs made to vehicles used by law enforcement agencies. Accordingly, the plaintiff contends that if consumers seek to obtain either of the repair kits or to have the repairs associated with the end collision problems performed, they must pay hundreds of dollars, without reimbursement from the defendant. Furthermore, the plaintiff alleges that the defendant has failed to provide any notice to affected Connecticut consumers (aside from law enforcement owners and lessees) of the availability of either repair kit or of the dangerous condition which the repair kits were desired to remedy. Thus, the plaintiff alleges that the defendant's conduct is unlawful, unfair and deceptive in violation of § 42-227, Connecticut's Secret Warranty Act, and § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA).
Technical Service Bulletin 01-21-14 recommended the following repairs to the panther platform vehicles: (a) replacement of the park brake cable to axle attaching hex head bolt for 1992-1997 vehicles; and (b) grind the tab from both u-brackets on the rear stabilizer bar.
General Statutes § 42-227(c) provides: "Within ninety days of the adoption of an adjustment program a manufacturer shall notify, by first-class mail, all consumers eligible under such program of the condition in the motor vehicle which is covered by an adjustment program and the principal terms and conditions of the adjustment program."
Upgrade Program 02B02 provided a repair kit for the following additions: (a) axle-mounted shields; (b) fuel tank strap shields; (c) a differential shield: and (d) revised mounting of the evaporative emissions canister for 1998-2003 models.
General Statutes § 42-227(f) provides in relevant part: "A manufacturer who establishes an adjustment program shall implement procedures to assure reimbursement of each consumer eligible under an adjustment program who incurs expenses for repair of a condition subject to the program prior to acquiring knowledge of the program."
On April 25, 2006, the plaintiff filed a motion for class certification, on behalf of himself and all others similarly situated, pursuant to General Statutes § 52-105 and Practice Book §§ 9-7 and 9-8. The plaintiff has submitted a memorandum of law in support of the motion and various documentary evidence. On July 3, 2006, the defendant filed a memorandum of law in opposition. Subsequent thereto, on July 21, 2006, the plaintiff filed a reply brief and various documentary evidence. The matter was heard by this court on June 21, 2007.
DISCUSSION I. Governing Law CT Page 16591
Connecticut law provides for the mechanism of a class action for the adjudication of certain controversies and outlines the requirements needed for the certification of a class. The rules governing class actions in Connecticut include General Statutes § 52-105 and Practice Book §§ 9-7 and 9-8. General Statute § 52-105 states in relevant part that "[w]hen the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all." Furthermore, "[t]he rules of practice set forth a two-step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity — that the class is too numerous to make joinder of all members feasible; (2) commonality — that the members have similar claims of law and fact; (3) typicality — that the [representative plaintiff's] claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately . . . Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority — that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, 275 Conn. 309, 322, 880 A.2d 106 (2005).It is the plaintiff who "bears the heavy burden of establishing that each requirement of the rule[s] is met." Arduini v. Automobile Ins. Co. of Hartford, 23 Conn.App. 585, 589, 583 A.2d 152 (1990). See also Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 626, 894 A.2d 240 (2006). Therefore, "the issue on a class certification motion is whether the class certification requirements of the Practice Book, as interpreted by the appellate courts of this state, have been met." Artie's Auto Body v. Hartford Fire Ins. Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0196141 (October 6, 2006, Adams, J.).
II. The Parties' Arguments
In his memorandum of law in support of the motion for class certification, the plaintiff argues that, pursuant to Practice Book §§ 9-7 and 9-8, he has satisfied the criteria required for certification of a class defined as follows: "All consumers (as defined in § 42-227(a)(1)) residing in Connecticut who own or lease 1992-2003 model year Ford Crown Victoria, Mercury Grand Marquis, or Lincoln Town Car automobiles registered in Connecticut. Excluded from the class are [the defendant], its subsidiaries and affiliates, and any officers and directors thereof as well as any judge presiding over this action, the judge's spouse and immediate family."
Specifically, the plaintiff argues that he has met the "numerosity" requirement as a result of pleading that there are "thousands of members [in] the [c]lass." The plaintiff argues that there are "approximately 3 million [p]anther [p]latform [v]ehicles in the United States" and that "[the defendant has acknowledged] that it has sold 25,673 of the [p]anther [p]latform [v]ehicles to authorized dealerships in . . . Connecticut." The plaintiff further contends that "Connecticut courts have routinely certified classes comprising of thousands of individuals or even as few as approximately one hundred individuals . . . [thus], there can be no question that the [class in this case] is sufficiently numerous."
The plaintiff also argues that he has met the "commonality" requirement because this case "presents numerous common questions of law and fact, including, but not limited to, the following: [1] [w]hether [the defendant's TSB] constitutes an adjustment program within the meaning of and pursuant to the Secret Warranty Act; [2] [w]hether [the defendant's upgrade program] constitutes an adjustment program within the meaning of and pursuant to the Secret Warranty Act; [3] [w]hether [the plaintiff] and the [c]lass are entitled to the benefits provided under [the TSB] and the [upgrade program]; [4] [w]hether [the defendant] violated the Secret Warranty Act and CUTPA; [5] [t]he cost to consumers of self-purchasing [and] obtaining the repairs outlined in the [TSB] and/or [upgrade program]; and [6] [t]he damages to the [c]lass." The plaintiff argues that these are "issues of law and fact [that] are clearly common to the [c]lass and, therefore, satisfy the commonality requirement." Additionally, the plaintiff argues that the questions of whether the defendant failed to notify consumers about their eligibility for the repair programs and/or failed to reimburse consumers who incurred the costs of the repairs, and whether consumers had a right to such notification and/or reimbursement are common to the entire proposed class.
The plaintiff further argues that he has met the "typicality" requirement because his claims arise from "the same events or course of conduct that give rise to the claims of other [c]lass members and are based on the same legal theory." The plaintiff states that he and the other proposed class members were not notified of the availability of the repairs offered through the adjustment programs at issue. Accordingly, the plaintiff argues that he, and other class members alike, have brought forth claims based on this failure of notification and that such claims are based upon the same statutes (the Secret Warranty Act and CUTPA), and the same alleged violation of these statutes. Furthermore, the plaintiff argues that the typicality requirement is supported by the fact that he and all of the class members were allegedly "damaged in the same or similar manner and could present their proof of claim in the same or similar manner."
The plaintiff also argues that the "adequacy of representation" requirement has been satisfied. The plaintiff contends that he "will fairly and adequately protect the interests of the proposed [c]lass." He further argues that as an owner of one of the types of vehicles which are the focus of this litigation he has a "substantial stake in the outcome of this [case] and [that] there are no antagonistic or conflicting claims between [the plaintiff] and the members of the [c]lass." Lastly, in regards to this requirement, the plaintiff argues that his counsel are well-qualified to represent the class in this action and "have extensive experience in consumer and complex class action litigation . . ."
In addition, the plaintiff argues that he has met the "predominance" requirement since "common questions of law and fact predominate" the litigation of this case. Specifically, the plaintiff argues that "virtually all of the proof in this case [regarding the alleged violations of the Secret Warranty Act and CUTPA] . . . will be common to all of the [c]lass members because the central and overriding determination to be made is whether [the TSB and upgrade program] are adjustment programs and, accordingly, whether the proposed [c]lass is entitled to relief." The plaintiff further argues that "the [c]lass' entitlement to monetary or injunctive relief (including notice) likewise will be proven through generalized evidence regarding the adjustment programs at issue." The plaintiff argues that "most [c]lass members can receive relief simply by requiring [the defendant] to offer the adjustment programs at issue to consumers and provide appropriate notice regarding the same." Moreover, the plaintiff contends that "monetary damages . . . can be easily calculated on a [c]lass-wide basis by determining the average cost of repairs provided by the [adjustment programs] and multiplying that amount by the number of estimated [c]lass members." Accordingly, the plaintiff maintains that common questions of law and fact predominate with respect to liability, as well as damages.
Lastly, the plaintiff argues that he has met the "superiority" requirement. Specifically, the plaintiff argues that "Connecticut courts routinely have recognized that class actions are superior devices for efficiently managing litigation involving large numbers of individuals." The plaintiff also argues that a class action is particularly appropriate in the present case because the defendant has allegedly failed to disclose the existence of certain adjustment programs, and as a result, some class members may not even be aware that the adjustment programs exist and/or have been allegedly implemented in a selective manner. The plaintiff also argues that it would be economically burdensome for each class member to proceed in litigation individually given the monetary amount at issue for each class member. Lastly, the plaintiff contends that the predominance of common issues of fact and law in this case requires it to proceed as a class action.
The defendant counters, in its memorandum in opposition, that the plaintiff has failed to satisfy all of the requirements for class certification, as outlined in Practice Book §§ 9-7 and 9-8. The defendant does not contend that the plaintiff has failed to meet the "numerosity" and "adequacy" requirements. The defendant however, does argue that the plaintiff is "unable to satisfy the commonality, typicality, and predominance requirements because he cannot demonstrate ascertainable loss on a [class-wide] basis." Consequently, the defendant argues that certification of the case as a class action is not the superior method for resolving the dispute, thus the superiority requirement has also not been met.
Specifically, the defendant argues that the "commonality" requirement has not been met because the plaintiff cannot establish the "ascertainable loss" element of his CUTPA claim using common proof. According to the defendant, in order "to recover under CUTPA, a claimant must show that he suffered an ascertainable loss as a result of the unfair or deceptive trade practice, a determination that requires a detailed individual-by-individual analysis that cannot be conducted on a [class-wide] basis." The defendant further argues that "given the infinitesimal risk of a high-speed rear-end collision faced by non-law enforcement owners, it is highly unlikely that any owner will be able to prove that he suffered any loss as a result of [the defendant's] actions." The defendant also argues that "to the extent any owners have experienced an ascertainable loss, it could only be proven via individual proof." The defendant contends that "to demonstrate an ascertainable loss [the plaintiff] must show either (1) that had [the defendant] made each owner aware of the availability of the TSB and [upgrade program] and offered to make both repairs free of cost, [the owners] would have had the repairs performed on [their] vehicle; or (2) that after learning of the TSB or [upgrade program], [the owners] paid to have these repairs performed on his vehicle and [the defendant] then refused to reimburse [them]" for the charges. The defendant argues that "simply demonstrating that [the defendant] did not adequately notify [p]anther platform vehicle owners and lessees about, and offer to pay for, the [TSB or upgrade program] is insufficient — it is necessary to demonstrate that the availability of these repairs would have actually affected the owner's conduct." Consequently, the defendant argues that this showing is impossible to make on a class-wide basis. The defendant further argues that "the determination of whether an individual owner or lessee would have had [the repairs] performed would require a comparison of (1) the time it would take for each owner to take his vehicle to a Ford dealer to have the repairs performed with (2) the particular vehicle's risk of experiencing a high-speed rear-end collision (based on the vehicle's usage and its model and model year) and with (3) each owner's/lessee's individual level of risk tolerance." Consequently, the defendant argues that this analysis would be impossible to carry out on a class-wide basis. As a result of the alleged aforementioned individualized inquiries, the defendant maintains that the "typicality" and "predominance" requirements for class certification have also not been met by the plaintiff. Lastly, the defendant argues that "certifying [this case as] a class action is not the superior method for resolving this dispute." Specifically, the defendant argues that "given the large number of individualized issues, a class trial would quickly become unmanageable." The defendant also argues that these claims are better resolved by the National Highway Traffic Safety Administration (NHTSA).
III. Government Standards
Before the court proceeds with the determination as to whether the plaintiff has established his claim for class action status, some preliminary matters specifically applicable to this motion should be discussed.
It is well established that "[o]nly a court may certify a class action." Gianetti v. Bonvicini, Superior Court, judicial district of Fairfield, Docket No. CV 99 0364528 (February 7, 2000, Moran, J.). See Owners-Operators Independent Drivers Ass'n. of America v. State, 209 Conn. 679, 682 n. 2, 553 A.2d 1104 (1989). "[The rule], governing class actions, is a procedural rule, not a matter of substantive law. This obvious underlying principle is important, because whether a class action is proper does not depend on the merits of the litigation. There will almost invariably be disputed questions of fact or law on the merits." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., 244 Conn. 676, 680, 711 A.2d 700 (1998). Therefore, "[i]n determining the propriety of a class action . . . the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met." (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 743, 818 A.2d 731 (2003). Consequently, "[i]n determining whether to certify [a] class a [trial] court is bound to take the substantive allegations of the complaint as true." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 275 Conn. 321. The court is not, however, limited to the pleadings. "On the contrary . . . [t]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the [plaintiff's] cause of action . . . and [sometimes it] may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., supra, 277 Conn. 627. "Although a trial court must undertake a rigorous analysis to determine whether the plaintiff has borne [the] burden successfully . . . it has broad discretion in determining whether a suit should proceed as a class action." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., supra, 244 Conn. 680. See Collins v. Anthem Health Plans, supra, 275 Conn. 320-21. "As long as the trial court has applied the proper legal standards in deciding whether to certify a class, its decision may . . . be overturned [only] if it constitutes an abuse of discretion." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 275 Conn. 321.
Furthermore, "[t]he requirements of the [class certification] rule are to be given a liberal construction." (Internal quotation marks omitted.) Gianetti v. Bonvicini, supra, Superior Court, Docket No. CV 99 0364528. Any "doubts regarding the propriety of class certification should be resolved in favor of certification." Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 743. See Collins v. Anthem Health Plans, supra, 275 Conn. 321.
Additionally, this court acknowledges that "our class action jurisprudence [in Connecticut] is sparse, as most class actions are brought in federal court." Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 737. Therefore, due to the fact that "[our] requirements are substantially similar to the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure, we look to federal case law as an aid to our construction of these requirements." Arduini v. Automobile Ins. Co. of Hartford, supra, 23 Conn.App. 589, 583.
Rule 23 of the Federal Rules of Civil Procedure provides in relevant part: "One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
CT Page 16597
IV. Substantive Analysis of the Plaintiff's Motion Numerosity
Under the numerosity requirement, in order for the court to grant class certification, the "class [should be] so numerous that joinder of all members is impracticable." See Practice Book § 9-7(1). "The issue is one to be resolved in light of the facts and circumstances of the case. The plaintiff [need only] show some evidence or a reasonable estimate of the number of class members." Walsh v. National Safety Associates, Inc., 44 Conn.Sup. 569, 583, 695 A.2d 1095 (1996), aff'd, 241 Conn. 278, 694 A.2d 795 (1997). Furthermore, "[t]here is no `magic number' that automatically fulfills the numerosity requirement of the rule . . . because numerosity is tied to the impracticality of joinder under the particular circumstances of the case." (Citation omitted; internal quotation marks omitted.) Arduini v. Automobile Ins. Co. of Hartford, supra, 23 Conn.App. 590. Prior case law, however, has determined that "[a] class of 80 or 90 members clearly would be so numerous as to make joinder impracticable. Indeed, courts have certified classes consisting of only fourteen members." Hastedt v. Remodeling Contractors Ass'n. Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 99 0156058 (April 3, 2000, McWeeny, J.).Here, the court agrees with the plaintiff that, given the widespread sale of the panther platform vehicles at issue, the numerosity of the class is self-evident. The plaintiff's amended class action complaint alleges that there are thousands of members in the class. Based on the plaintiff's allegations, at least 25,673 panther platform vehicles have been sold to authorized dealerships in Connecticut. There can be no question that the number of Connecticut consumer-residents who own or lease 1992-2003 model year Ford Crown Victoria, Mercury Grand Marquis, or Lincoln Town Car vehicles with Connecticut registrations is sufficiently numerous. Therefore, the court concludes that the plaintiff has met the numerosity requirement.
The court notes that the defendant has not alleged that the plaintiff has failed to meet the numerosity requirement.
Additionally, in relation to the numerosity requirement, there is an implied condition that there must be a class. "A class is deemed to exist if the general outlines of its membership are determinable at the outset of the litigation." Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 581. In the present case, the court finds that the general outline of the class membership is known. In order to qualify as a member of the proposed class, a person must be: (1) a consumer (as defined in General Statutes § 42-227(a)(1)) residing in Connecticut; and (2) an owner or lessee of a Connecticut-registered 1992-2003 model year Ford Crown Victoria, Mercury Grand Marquis, or Lincoln Town Car. General Statutes § 42-227(a)(1) provides: "`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. Pursuant to this definition, purchasers, lessees, and transferees of the applicable vehicles during the duration of the defendant's alleged adjustment programs (2001-present) may be ascertained without too much difficulty. This criteria is sufficiently definite to narrow the class to certain ascertainable persons. The court speculates that possible members may be easily determined via the defendant's corporate sales/lease records and/or the records of the Connecticut Department of Motor Vehicles.
Furthermore, the court finds that the plaintiff has established that he is a member of the proposed class. The plaintiff claims to have been a consumer-purchaser of a 1995 Lincoln Town Car during the duration of an express warranty-adjustment program applicable to such vehicle. The plaintiff also claims to be a current resident of Connecticut, to be the current owner of the applicable 1995 Lincoln Town Car, and that such vehicle is registered in Connecticut. Accordingly, the plaintiff has established that he is a member of the defined class in this case.
The court disagrees with the defendant's argument that "consumer" is defined, under the Secret Warranty Act, narrowly "to include only that subset of current vehicle owners who at some point during their ownership of the vehicles would have been able to enforce the obligations of the manufacturers' written warranties." General Statutes § 42-227(a)(1) provides: "`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." (Emphasis added.) General Statutes § 42-227(a)(4) provides: "`Adjustment program means any program or policy that expands or extends the consumer's warranty beyond its stated limited OR under which a manufacturer offers to pay for all or any part of the cost of repairing, or to reimburse consumers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability or performance." The plain language of § 42-227(a)(1) indicates that a person need only be a purchaser, lessee, or transferee during the duration of "an express warranty" in order to qualify as a consumer under the statute. It does not limit the scope of such express warranties to only manufacturer's written warranties. Furthermore, the plain language of § 42-227(a)(4) indicates that "adjustment programs" include any program or policy under which the manufacturer offers to pay for repairs that relate to a vehicle's durability, reliability, or performance. This section similarly does not limit the scope of such adjustment programs to only those which expand or extend a manufacturer's written warranty.
Commonality
Under the commonality requirement, "[o]ne or more members of a class may sue as representative parties on behalf of all only if . . . there are questions of law or fact common to the class . . . This requirement is easily satisfied because there need only be one question common to the class." (Citations omitted; emphasis added.) Collins v. Anthem Health Plans, supra, 275 Conn. 323. "The common issue [however] must be one the resolution of which will advance the litigation." Id., 324. "In short, commonality is satisfied where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., supra, 244 Conn. 682. See Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 584 (Commonality "requires only that some common questions exist, not even that such questions predominate.").
Commonality, "only requires that some common issues exist, not that they predominate." Campbell v. New Milford Board of Education, 36 Conn.Sup. 357, 362, 423 A.2d 900 (1980), aff'd, 193 Conn. 93, 475 A.2d 289 (1984).
In the present case, the court concludes that the plaintiff has established that there are numerous questions of law and fact common to the class, including but not limited to: whether the defendant's TSB constitutes an adjustment program within the meaning of and pursuant to the Secret Warranty Act; whether the defendant's upgrade program constitutes an adjustment program within the meaning of and pursuant to the Secret Warranty Act; whether the plaintiff and the class are entitled to the benefits provided under the TSB and the upgrade program; whether the defendant failed to notify consumers about their eligibility for the repair programs and/or failed to reimburse consumers who incurred the costs of the repairs covered under the programs; whether the plaintiff and the class had a right to such notification and/or reimbursement; whether the defendant violated the Secret Warranty Act and consequently CUTPA; if it is found that the defendant violated the Secret Warranty Act, whether the plaintiff and the class suffered an ascertainable loss so as to permit recovery under CUTPA; and lastly, the damages suffered by the class.
Keeping in mind that a plaintiff need only establish that there is one question common to the class in order to meet the commonality requirement, the court concludes that the plaintiff in this case has easily met this requirement. Additionally, each of the aforementioned questions are of the type that, the resolution of which, will advance the litigation. It is also apparent that all of the class members would present to the court similar, if not identical, legal and factual arguments in an effort to establish the defendant's liability in this case.
The court disagrees with the defendant's argument that the "commonality" requirement has not been met because the plaintiff cannot establish the "ascertainable loss" element of his CUTPA claim using common proof, since it is a determination that requires a detailed individual-by-individual analysis. The defendant argues that "to demonstrate an ascertainable loss [the plaintiff] must show either (1) that had [the defendant] made each owner aware of the availability of the TSB and [upgrade program] and offered to make both repairs free of cost, [the owners] would have had the repairs performed on [their] vehicle; or (2) that after learning of the TSB or [upgrade program], [the owners] paid to have these repairs performed on his vehicle and [the defendant] then refused to reimburse [them]" for the charges. The plaintiff properly notes in his reply brief that the "[p]laintiff's burden with respect to ascertainable loss is to establish that the information wrongfully withheld from him and other members of the proposed class had value; a showing of what [the plaintiff] or any other member of the class would have done with that information is not required." In Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981), the court defined "ascertainable loss" as a "deprivation, detriment [or] injury." In the present case, the court already determined in Annelli v. Ford Motor Co., supra, Superior Court, Docket No. CV 4001345, that the "plaintiff has [sufficiently] alleged ascertainable loss resulting from the unlawful acts or omissions of the defendant." The court noted that such loss can be a potential loss, "e.g., the cost of a potential purchase of the repair kit." Furthermore, the focus of the plaintiff's claims is that the defendant failed to provide him and the class with notice of the adjustments programs, to which they were entitled under the Secret Warranty Act, and that the defendant failed to make the programs available on the same terms as it did to others. If legally established, these actions would be deemed to have deprived the plaintiff and the class of something of value — e.g. the right to notification under the Secret Warranty Act. Lastly, whether the plaintiff and the proposed class members have alleged the elements of a CUTPA claim is a question of law common to all.
Furthermore, the court notes that if the common questions are proven, differing amounts of damages may be claimed among the class members. A scenario where individual questions regarding damages would likely remain after the resolution of common questions does not mean that certification should be denied on the ground that commonality is absent. With respect to the issue of damages, it would not be unusual for members of a class to have different damage claims. "That there may be individual consideration of the issue of damages has never been held to bar certification of a class." Marr v. WMX Technologies, Inc., supra, 244 Conn. 682. "Consequently, the mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible." (Internal quotation marks omitted.) Id.
Typicality
The third requirement, typicality, is satisfied when the representative party's claim "arises out of the same event or practice that gives rise to the claims of the class members and is based on the same legal or remedial theory." (Internal quotation marks omitted.) Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 585. "The representative's claims are only required to be typical of, not identical with, the claims of other class members. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment." (Internal quotation marks omitted.) Id.
Here, both the plaintiff and the proposed class' allegations arise from the same factual contention — that the defendant failed to notify them about their eligibility for the repair programs for their panther platform vehicles and/or failed to reimburse them for the costs they incurred for the repairs that were covered under the programs. Based on these similar events and practices, both the plaintiff and the proposed class members claim that this conduct constitutes a violation of the Secret Warranty Act and thus CUTPA. The plaintiff's claims are more than just typical of the claims of other proposed class members — they are identical. Since the plaintiff has established that his claims against the defendant arise out of the same event or practice that gives rise to the claims of the class members and that such claims are based on the same legal theory, the court concludes that the plaintiff has met the typicality requirement.
Adequacy
Under the adequacy requirement, class certification may be granted only if "the representative parties will fairly and adequately protect the interest of the class." Practice Book § 9-7(4). The adequacy requirement involves a two-step process. "First, [counsel] for the class must be qualified, experienced and generally able to conduct litigation. Second, the class members must not have interests that are `antagonistic' to one another." (Internal quotation marks omitted.) Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 586. See In Re: Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992). In regard to the first step, "[a] class representative has the responsibility of pursuing a resolution of the case for the benefit of the class . . . But the class representative [or rather their counsel] is not required to be a legal expert; Trautz v. Weisman, 846 F.Sup. 1160, 1168 (S.D.N.Y. 1994), nor even a sophisticated person. Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966); Heastie v. Community Bank of Greater Peoria, 125 F.R.D. 669, 676-77 (ND.Ill. 1989). All that is necessary is that the representative party have some minimal level of interest in the case, familiarity with the challenged practices and an ability to assist in decision-making in the conduct of the litigation. Diduck v. Kaszycki Sons Contractors, Inc., 149 F.R.D. 55, 59-60 (S.D.N.Y. 1993)." Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 588.
In the present case, the plaintiff's counsel, the law firm of Shepherd, Finkelman, Miller Shah, LLC, is a well respected and experienced complex litigation law firm, with prior experience in handling class action law suits. Based upon the law firm's practice and in recognition of its experience in handling these types of cases, the court concludes that counsel for the proposed class in this case is qualified, experienced and generally able to conduct litigation. Accordingly, the plaintiff through his counsel will be able to protect, fairly and adequately, the interests of the class members. Furthermore, it appears to the court that the class members do not have any interests that are antagonistic to one another. Based on the foregoing, it is found that the plaintiff has met the adequacy requirement.
The court notes that the defendant has not alleged that the plaintiff has failed to meet the adequacy requirement.
Having determined those prerequisites are satisfied, we now move to the second step of looking at the requirements of Section 9-8 of the Practice Book.
Predominance
Predominance, the fifth requirement, provides in relevant part: "An action may be maintained as a class action if . . . the judicial authority finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members . . ." Practice Book § 9-8. "[T]he fundamental purpose of the predominance inquiry is to determine whether the economies of class action certification can be achieved without sacrificing procedural fairness or bringing about other undesirable results." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 275 Conn. 329. "Predominance is a stricter test than [the] previously discussed commonality. It requires not only that questions common to the class exist but also that they predominate over issues that would relate to only individual members . . . When common questions represent a significant aspect of a case so that they can be resolved for all class members in a single suit, predominance exists." (Citation omitted.) Walsh v. National Safety Associates, Inc., supra, 44 Conn.Sup. 588-89.
"These standards inform us that a court should engage in a three-part inquiry to determine whether common questions of law or fact predominate in any given case. First, the court should review the elements of the causes of action that the [plaintiff seeks] to assert on behalf of the putative class . . . Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief . . . Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate." (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 275 Conn. 331-32. Pursuant to the foregoing standards, the court evaluates whether the plaintiff has met the predominance requirement.
In his amended class action complaint, the plaintiff alleges the following causes of action: (1) that the defendant violated Connecticut's Secret Warranty Act, § 42-227, by failing to notify consumers of their alleged eligibility for certain repairs under two adjustment programs, and by offering these repairs free of charge to certain owners and lessees and not others, including the plaintiff; and (2) that the defendant, therefore, has committed a per se violation of CUTPA, § 42-110a et seq.
Section 42-227(h) of the Secret Warranty Act provides: "A violation of any of the provisions of this section shall be deemed an unfair or deceptive trade practice under chapter 735a."
In order to succeed on his first claim, that the defendant violated the Secret Warranty Act, the plaintiff must establish that the TSB and upgrade program issued by the defendant constitute "adjustment programs" within the meaning of the Secret Warranty Act, § 42-227(a)(4) and that he was eligible for either of the programs. In addition, the plaintiff must establish any one of the following: (1) that the defendant failed to establish a procedure in this state whereby the affected consumers shall be informed of the adjustment programs applicable to panther platform vehicles and shall be entitled to receive a copy of any service bulletin or index thereof upon request. See § 42-227(b); (2) that the defendant failed to, within ninety days of the adoption of the adjustment programs, to notify, by first-class mail, all consumers eligible under such programs of the condition in the panther platform vehicles which is covered by the adjustment programs and the principle terms and conditions of the adjustment programs. See § 42-227(c); (3) that the defendant has failed to properly notify its dealers of the scope of the adjustment programs, which resulted in the dealer failing to disclose to consumers seeking repairs for a particular condition at its repair shop, the principal terms and conditions of the defendant's adjustment programs covering such condition. See § 42-227(e); or (4) that the defendant failed to implement procedures to assure reimbursement of each consumer eligible under the adjustment programs who incurred expenses for repair of the condition subject to the adjustment programs prior to acquiring knowledge of the programs. See § 42-227(f).
Section 42-227(a)(4) of the Secret Warranty Act provides: "`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 part of the cost of repairing, or to reimburse consumers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability or performance, other than service provided under a safety or emission-related recall campaign. This term does not include adjustments made by a manufacturer on a case by case basis."
Section 42-227(b) of the Secret Warranty Act provides: "A manufacturer shall establish a procedure in this state whereby a consumer (1) shall be informed of any adjustment program applicable to his motor vehicle and (2) shall be entitled to receive a copy of any service bulletin or index thereof upon request."
Section 42-227(c) of the Secret Warranty Act provides: "Within ninety days of the adoption of an adjustment program a manufacturer shall notify, by first-class mail, all consumers eligible under such program of the condition in the motor vehicle which is covered by an adjustment program and the principal terms and conditions of the adjustment program."
Section 42-227(e) of the Secret Warranty Act provides: "A dealer shall disclose to a consumer seeking repairs for a particular condition at its repair shop, the principal terms and conditions of the manufacturer's adjustment program covering such condition if the dealer has received a service bulletin concerning such adjustment program or otherwise has knowledge of it."
Section 42-227(f) of the Secret Warranty Act provides: "A manufacturer who establishes an adjustment program shall implement procedures to assure reimbursement of each consumer eligible under an adjustment program who incurs expenses for repair of a condition subject to the program prior to acquiring knowledge of the program. Such reimbursement shall be consistent with the terms and conditions of the particular program."
In order to succeed on his second claim, that the defendant committed a CUTPA violation, the plaintiff must prove that: (1) the defendant engaged in "unfair or deceptive acts or practices in the conduct of any trade or commerce" See General Statutes § 42-110b(a); and (2) that he, and the proposed class members claiming entitlement to relief under CUTPA, have suffered an "ascertainable loss" as a result of the defendant's acts or practices. See General Statutes § 42-110g(a).
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
General Statutes § 42-110g(a) provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
Having outlined the elements of the plaintiff's causes of action, the court turns to the issue of whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement.
In regard to the plaintiff's cause of action under Connecticut's Secret Warranty Act, the issue of whether the TSB and upgrade program are "adjustment programs" can be resolved with generalized proof. It is a fact specific inquiry that may be resolved through the defendant's corporate records. Furthermore, since this issue pertains to all of the proposed class members, in exactly the same way, there is no need for individual-based proof The determination of whether the plaintiff and the proposed class members were/are entitled to the repairs stipulated in the alleged adjustment programs, or more generally, whether civilian (non law enforcement related), purchasers, lessees and transferees are entitled to the defendant's repair programs, is an issue that may be readily determined using generalized proof since it involves construing the programs' stipulated terms and conditions. Furthermore, the claim that the defendant failed to provide proper notification to the plaintiff and the other proposed class members of the alleged adjustment programs can also be supported by generalized evidence on a class-wide basis. Such evidence includes the defendant's internal policies and procedures. Lastly, the claim that the defendant failed to implement procedures to reimburse eligible consumers for the costs incurred in obtaining the repairs, can be supported by generalized evidence of the defendant company's policies and practices.
In regard to the plaintiff's cause of action under CUTPA, if the plaintiff and other class members were able to succeed on their claim that the defendant violated the Secret Warranty Act, such violation would be deemed an unfair or deceptive trade practice, thus no proof would be needed to establish the first element of the CUTPA claim. See General Statutes § 42-227(h). The kind of proof needed to establish the second element of the plaintiff's CUTPA claim, the ascertainable loss element, however, merits further analysis.
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. Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981). Thus, to be entitled to any relief under CUTPA, a plaintiff must prove that he has suffered an "ascertainable loss" due to a CUTPA violation. Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 593, 821 A.2d 283 (2003). (Internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 275 Conn. 334-35. "[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." (Internal quotation marks omitted.) Larobina v. Home Depot, USA, Inc., supra, 76 Conn.App. 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.
In the present case, the plaintiff has sufficiently alleged ascertainable loss resulting from the alleged 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, or the defendant's refusal to perform the repairs in the absence of the plaintiff's assumption of the costs. Moreover, if the plaintiff is able to establish that the defendant unlawfully failed to notify him and other consumers as to the availability of, and their eligibility for, the alleged adjustment programs, the "deprivation" of such notification may be deemed an ascertainable loss — this would be a class-wide injury. Therefore, the ascertainable loss element of the CUTPA claim may be proven using generalized evidence.
See Annelli v. Ford Motor Co., supra, Superior Court, Docket No. 4001345.
Based on the foregoing, the court concludes that all of the elements of the causes of action in the case, that bear on the defendant's liability to each class member, turn on common issues of law or fact that may be proved by generalized evidence, and that these issues predominate. Accordingly, it is apparent, that after adjudication of the class-wide issues there will be no individualized claims. Therefore, predominance has been established.
Superiority
To satisfy superiority, the sixth requirement, the plaintiff must establish that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Practice Book § 9-8. "Although the [plaintiff] must satisfy both the predominance and superiority requirements of Practice Book § 9-8, these criteria are intertwined . . . If the predominance criterion is satisfied, court generally will find that the class action is a superior mechanism even if it presents management difficulties." Collins v. Anthem Health Plans, supra, 275 Conn. 347.
"Where common issues predominate and parties are numerous . . . the superiority of class action over individual lawsuits is obvious." Hastedi v. Remodeling Contractors Ass'n. Inc, supra, Superior Court, Docket No X06 CV 99 0156058 (April 3, 2000, McWeeny, J.). See Campbell v. New Milford Board of Education, supra, 36 Conn.Sup. 370.
Based on the previous analysis of the predominance requirement, in which the court concluded that numerous common questions of law and fact will be the object of this litigation, the court concludes that a class action is the superior method to utilize in adjudicating this case.
CONCLUSION
Based on the foregoing, a class action appears to be the most expeditious way to resolve the litigation. Accordingly, the motion for class certification is granted and the attached order is issue.
CT Page 16607
ORDER
AND NOW, this 4th day of October 2007, upon consideration of Plaintiff's Motion for Class Certification, Plaintiff's supporting Memorandum of Law and all other papers submitted in support of Plaintiff's Motion, as well as any papers filed in opposition to Plaintiff's Motion, after having heard the parties, it is HEREBY ORDERED that Plaintiff's Motion for Class Certification is GRANTED.
Pursuant to Conn. Gen. Stat. § 52-105 and Practice Book §§ 9-7 and 9-8, the Court hereby certifies the following Class in this case:
All consumers (as defined in C.G.S. § 42-227(a)(1)) residing in Connecticut who own or lease 1992-2003 model year Ford Crown Victoria, Mercury Grand Marquis, or Lincoln Town Car automobiles registered in Connecticut. Excluded from the Class are Defendant, its subsidiaries and affiliates, and any officers and directors thereof, as well as any judge presiding over this action, the judge's spouse and immediate family.
The Court hereby holds and determines that it is appropriate for this case to proceed as a class action for the reasons set forth in the Memorandum of Decision on the Motion issued herewith.
Plaintiff, Christopher Annelli, is hereby appointed as a representative plaintiff to represent the interests of the Class and Plaintiff's counsel, Shepherd, Finkelman, Miller Shah, LLC, is hereby appointed as Lead Counsel to represent Plaintiff and the Class and to prosecute this action on their behalf.
Plaintiff is ordered to prepare for court approval, after further hearing, a proposal for a notice to the class and a proposed form of notice.
Said proposed notice shall advise each class member that: (1) the court will exclude a member from the class if the member so requests by a specified date; (2) the judgment, whether favorable or not, will include all members who do not request to be excluded; and (3) any member who does not request to be excluded may, if the member desires, enter an appearance through counsel.
IT IS SO ORDERED.