Cavanaugh v. Subaru of America, Inc.

Full title: Timothy Cavanaugh et al. v. Subaru of America, Inc.

Court: Superior Court of Connecticut

Date published: May 4, 2017

MMXCV166015243 (Conn. Super. Ct. May. 4, 2017)

Opinion

MMXCV166015243

05-04-2017

Timothy Cavanaugh et al. v. Subaru of America, Inc.

Julia L. Aurigemma, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION TO STRIKE

Julia L. Aurigemma, J.

Defendant Subaru of America, Inc. (" Subaru"), pursuant to Practice Book § 10-42 has moved to strike the complaint filed by plaintiffs, Timothy Cavanaugh, Thomas Chace, Hanna Chace, Irving Cote, Richard Daddona, Jr., Diana Dlugokencky, Anthony Dlugokencky, Peter Krol, Eleonora Minyard, Clifford Minyard, Michael Moskowitz, Paula Work, Athena Peterson, Iris Rivera, Bryan Slight, and Jeffrey Zoglio (collectively, " plaintiffs"), because that complaint fails to state a claim upon which relief can be granted.

Facts

This " group" action asserts claims against Subaru based on each plaintiff's individualized factual allegation. Each plaintiff is seeking damages related to their vehicle's excessive consumption of engine oil. Compl. 1. The Complaint alleges causes of action on behalf of the owners of these vehicles: Timothy Cavanaugh, 2011 Subaru Forester; Thomas and Hanna Chace, 2013 Subaru Crosstrek; Irving Cote, 2013 Subaru Legacy; Richard Daddona, Jr., 2012 Subaru Impreza; Diana and Anthony Dlugokenky, 2013 Subaru Legacy; Peter Krol, 2011 Subaru Forester; Eleonora and Clifford Minyard, 2011 Subaru Forester; Michael Mozkowitz and Paula Work, 2011 Subaru Forester; Athena Peterson, 2014 Subaru Forester; Iris Rivera, 2011 Subaru Forester; Bryan Slight, 2012 Subaru Impreza; and Jeffrey Zoglio, 2013 Subaru Outback. See Compl. 5, 10, 17, 23, 30, 35, 40, 45, 49, 55, 60, 64.

The plaintiffs assert the following individual causes of action:

First Count : " Breach of Warranty Pursuant to the Magnuson-Moss Federal Act 15 U.S.C. § 2301 et seq.";

Second Count :" Breach of Written Warranties Pursuant to Conn. Gen. Stat. Ann. § 42a-2-313 and § 42a-2-318";

Third Count : " Breach of Implied Warranty of Merchantability Pursuant to the Magnuson-Moss Federal Act, 15 U.S.C. § 2301 et seq., and Gen. Stat. Ann. § 42a-2-314";

Fourth Count : " Breach of Express Warranties";

Fifth Count : " Breach of Obligation of Good Faith and Fair Dealing, " and;

Sixth Count : " Breach of Conn. Gen. Stat. 42-110(b)--Unfair and Deceptive Practices."

Discussion of Law and Ruling

The defendant argues that the complaint fails to state a claim for several reasons. First, it argues that all claims must be stricken because they relate to defective products and are subsumed under the Connecticut Products Liability Act (CPLA) and plaintiffs have failed to bring such a claim. They further argue that the breach of express and implied warranty claims fail because the plaintiffs have not alleged privity with Subaru.

A motion to strike contests the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). As such, addressing a motion to strike requires no factual findings. Id. In determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). This does not, however, eliminate the plaintiffs' burden of pleading sufficient facts that, if proven, would support their claims. Commissioner of Labor v. C.J.M. Services, Inc., 73 Conn.App. 39, 64-65, 806 A.2d 1105 (2002) (rev'd in part on other grounds). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, supra, (quoting Novametrix Med. Sys. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992)).

The defendant argues that all the plaintiffs' claims are precluded because the Connecticut Products Liability Act (CPLA) provides the exclusive remedy against product sellers for allegedly defective products. The CPLA explicitly provides that a " Product Liability Claim" includes " all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." Connecticut General Statutes § 52-572m(b). Further, a " Product Liability Claim shall include, but is not limited to, all actions based on . . . breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." See id. (emphasis added). A product liability claim under the CPLA " shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." Connecticut General Statutes § 52-572n(a).

The CPLA provides the exclusive remedy " that must be elected over any common-law action arising from an underlying claim." West Haven School District v. Owens-Corning Fiberglas Corp., No. H-85-1056 (AHN), Id. (D.Conn. July 21, 1988) (quoting Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986)); see also Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, (1989) (" The legislature clearly intended to make [the] products liability act an exclusive remedy for claims falling within its scope"); Motley v. Jaguar Land Rover North America, LLC, No. X03CV0840575525, 2012 WL 5860477, at *8 (Conn.Super.Ct. Nov. 1, 2012) (" The CPLA provides the legal framework for product liability claims in Connecticut and 'was intended to serve as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect' including injuries to the product itself"); Shaw v. Jason Soda Systems, CV 970402436S, Id. (Conn.Super.Ct. Sept. 17, 1998) (" The legislature, in creating this [CPLA] statute, intended to merge the various common-law claims into one product liability cause of action, and intended that this would serve as the exclusive remedy for those persons injured by a defective product"). That is, the CPLA is in derogation of the common law and other remedies. Vitanza v. Upjohn Co., 257 Conn. 365, 381-82, 778 A.2d 829 (2001).

The plaintiffs have brought a product liability action but have plead multiple counts barred by the CPLA's exclusivity provision. Plaintiffs assert that their " vehicles' engines contain a manufacturing defect, " Compl. 70, and claim that damage has occurred to their vehicles as a result, see id. 74 (claiming wear to piston rings), 78 (alleging decline in engine performance and that supposed defect " may have caused additional damage to the subject vehicles' engine). The allegations in the complaint fall within the scope of the CPLA. See Connecticut General Statutes § 52-572m(b), (d).

In Counts I through V, the plaintiffs allege claims sounding in breach of warranty that arise from the manufacturer design, and marketing of the plaintiffs' vehicles. Compl. at 1-17. Those claims fall within the scope of the CPLA. Gagner v. Chrysler Corp., CV94 031 56 38 S, Id. -5 (Super. Dec. 5, 1994) (striking claims for negligent design, breach of implied warranty, breach of express warranty, and design defect). Count VI, which alleges a violation of CUTPA is also subsumed by the CPLA. The plaintiffs claim that Subaru engaged in deceptive practices when, among other things, it purportedly " [s]old defective subject vehicles." Compl. 136. That claim falls within the scope of the CPLA. Likewise to the extent the plaintiffs' claims appear to be based on alleged misrepresentations regarding their vehicles or the repairs thereto, they are subsumed by the CPLA. See Convention of the Episcopal Diocese v. Minwax Co., No. CV 94534705S, Id. (Conn.Super.Ct. Hartford Apr. 4, 1994) (a claim that a product manufacturer made false representations in advertising, labeling, and brochures " is simply one facet of the overall allegation of product liability").

Counts I through VI of complaint are subsumed by the CPLA. The complaint is hereby stricken for failure to properly allege a single count violation of the CPLA.

The defendant argues that to the extent any of plaintiffs' claims are not subsumed by the CPLA, the warranty claims in Counts I, II, III, and IV fail as a matter of law because the plaintiffs fail to plead privity of contract with Subaru of America. " [P]rivity is required to establish a claim for breach of express [or implied] warranty." Fraiser v. Stanley Black & Decker, Inc., 109 F.Supp.3d 498, 506 (D.Conn. 2015) (citing Hartford Casualty Insurance Co. v. PureTech Waters of Am., LLC, No. CV116 021419S, 2012 WL 1435221, at *3 (Conn.Super.Ct. Mar. 30, 2012) (" [I]n order to sustain an action for breach of express or implied warranty there has to be evidence of a contract between the parties, for without a contract there [can] be no warranty")). The privity requirement is relaxed for personal injury claims, Fraiser, 109 F.Supp.3d at 506. However, the plaintiffs do not claim personal injuries. Therefore, they must allege privity to survive a motion to strike. See Hartford Casualty Insurance Co. supra ; Kahn v. Volkswagen of Am., Inc., No. FSTCV075004090S, Id. (Super.Ct. Feb. 13, 2008); United Technologies Corp. v. Saren Engineering, Inc., No. X06CV020173135S, 2002 WL 31319598, at *3 (Conn.Super.Ct. Sep. 25, 2002) (requiring privity for warranty claims involving only economic losses).

Here, no plaintiff alleges they purchased their vehicle directly from Subaru. See, e.g., Compl. 5, 10, 17, 23, 30, 35, 40, 45, 55, 60, and 64. If the plaintiffs have any valid breach of warranty claims, the dealerships at which they purchased or leased their vehicles are the proper parties to the suit, not Subaru. See Kahn, supra (" By its terms, General Statutes § 42a-2-314 creates a warranty that is enforceable, if at all, by the Dealership").

The plaintiffs have attached new documents to their memorandum in opposition to motion to strike and now point to those warranty documents to support their contention that the dealerships from which the plaintiffs' vehicles were purchased were the agents of Subaru. Speaking motions to strike have long been forbidden by our rules of practice. Mercer v. Cosley, 110 Conn.App. 283, 292, n.7, 955 A.2d 550 (2008), citing Tilo Co. v. Fishman, 164 Conn. 212, 213, 319 A.2d 409 (1972). Since those warranty documents were not plead, the court cannot consider them in ruling on a motion to strike.

The plaintiffs have not pleaded any facts alleging the existence of contractual privity between themselves and Subaru nor any fact establishing any agency relationship. Counts I through IV, which allege breach of express and implied warranty claims, fail as a matter of law, creating an additional basis for striking those claims. See Ossolinski v. Ford Motor Co., No. LLICV126006285S, 2014 WL 4638171, at *7 (Conn.Super.Ct. Aug. 12, 2014) (entering judgment for defendant Ford where " [t]here was no evidence of a contract between the plaintiffs and Ford, nor [was] there sufficient evidence that [the dealership] was acting as an agent of Ford at the time of the sale").

The defendants argue that in addition to failing to allege privity, Count III, for breach of the implied warranty of merchantability under the Magnuson Moss Act and the Connecticut Uniform Commercial Code (" UCC"), fails to state a claim for which relief can be granted. The plaintiffs have not alleged that their vehicles were rendered inoperable or otherwise experienced meaningful problems with operation. They only allege that they have had to replenish the engine oil more often than commonly necessary. The defendant argues that those allegations, even if true, do not render the plaintiffs' vehicles unmerchantable.

Under the UCC, the implied warranty of merchantability requires that a product be reasonably " fit for the ordinary purposes for which such goods are used." Connecticut General Statutes § 42a-2-314(2)(c). That standard is an objective one, based upon industry standards and not a plaintiff's personal beliefs. See Caring Ways Adult Daycare Ctrs., Inc. v. Saybrook Auto Sales, Docket No. CV040103721, Id. (Super. Oct. 25, 2005). " Such a warranty does not guarantee that the product will fill a buyer's every expectation; rather, it only 'provides for a minimal level of quality.'" Szymczak v. Nissan North America, Inc., No. 10 CV 7493 (VB), Id. (S.D.N.Y. Dec. 16, 2011); Chiarelli v. Nissan N. Am., Inc., No. 14-CV-4327, Id. -26 (E.D.N.Y. Sep. 25, 2015) (holding " there is simply no question that the vehicles were fit for their intended purpose" where they " were each operated for over five years (or more) and for tens of thousands of miles"); Nelson v. Nissan North America, Inc., 894 F.Supp.2d 558, 566-67 (D.N.J. 2012) (" Merchantability does not mean that the goods are exactly as the buyer expected, but rather that the goods satisfy a minimum level of quality") (quoting Sheris v. Nissan North America, Inc., No. 07-2516, 2008 WL 2354908, at *6 (D.N.J. June 2, 2008) (" [T]he implied warranty of merchantability is breached only when a defect 'renders the vehicle unfit for its ordinary purpose of providing transportation for its owner'"). " Thus, where a car can provide safe, reliable transportation it is generally considered merchantable." Hornberger v. General Motors Corp., 929 F.Supp. 884, 888 (E.D.Pa. 1996) (internal quotation marks omitted); accord Skeen v. BMW of North America, LLC, No. 13-cv-1531, 2014 WL 283628, at *16 (D.N.J. Jan. 24, 2014); see also Clark v. BMW of North America, LLC, No. B248593, 2014 WL 3907922 (Cal.Ct.App. Aug. 12, 2014) (" Since cars are designed to provide transportation . . . where a car can provide safe, reliable transportation, it is generally considered merchantable"); Cholakyan v. Mercedes-Benz USA, LLC, 796 F.Supp.2d 1220, 1241-42 (C.D.Cal. 2011) (vehicle " need not be perfect in every detail so long as it 'provides for a minimum level of quality'").

The plaintiffs do not allege that their cars do not provide a minimum level of quality, or reliable and safe transportation. They allege only that their vehicles consume more oil than expected. One can reasonably infer from that pleadings that each plaintiff has been driving his or her vehicle successfully for at least two years, and several plaintiffs have driven their vehicles for over four years. See, e.g., Compl. 23 (alleging plaintiff Daddona purchased vehicle on January 7, 2012). No plaintiff alleges an engine failure or any other condition preventing safe or reliable transportation. The failure of Count III to state a claim for the breach of the implied warranty of merchantability is an additional ground on which that Count is stricken.

The defendant argues that Counts I and III fail to state a claim for breach of a state law warranty claim, and, therefore, cannot state a claim for a violation of the Magnuson-Moss Warranty Act. " The Magnuson-Moss Warranty Act, does not create implied warranties; it merely provides a cause of action for breach of an enforceable implied warranty. State law, rather than Magnuson-Moss, governs the creation and enforcement of implied warranties." Ossolinski, 2014 WL 4638171, at *10 (Conn.Super.Ct. Aug. 12, 2014) (citing Kahn, 2008 WL 590469); Abraham v. Volkswagen of America, Inc., 795 F.2d 238, 249 (2d Cir. 1986)); Oscar v. BMW North America, LLC, 274 F.R.D. 498, 509 (S.D.N.Y. 2011) (" The MMWA does not create additional bases for recovery, but rather federalizes existing state law causes of action"). As discussed above, Count I and III fail to state claims for breach of warranty. Therefore, they also fail to state claims for breach of the MMWA, which serves as an additional basis on which to strike those claims.

For the foregoing reasons, the complaint is stricken.