Opinion
FBTCV176067124S
06-20-2019
Adam T. HECHE v. Hector MALDONADO et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
The plaintiff, Adam Heche, sues the defendant, City Line Auto Body, Inc. (City Line), for negligence (count three), conversion (count four), statutory theft (count five), breach of contract (count six), unjust enrichment (count seven), fraud (count eight), and negligent misrepresentation (count nine). All of these claims arise from City Line’s repair of Heche’s van after it was involved in a collision with a motor vehicle operated by a codefendant, Hector Maldonado, and owned by a codefendant, Esnel Santiago.
This action was initiated by complaint dated June 2, 2017, and the operative pleadings are Heche’s revised complaint, dated March 27, 2018, and City Line’s answer, dated September 27, 2018. The case went to trial on December 20 and 21, 2018. During the trial, after Heche rested his case, the court granted the codefendants’ motion to dismiss for failure to make out a prima facie case as to the element of proximate causation in the negligence claims against each of them. The court also granted City Line’s motion to dismiss the statutory theft claim for failure to make out a prima facie case for the element of intent. City Line is the sole remaining defendant.
The plaintiff previously resolved his separate negligence action for personal injuries against the codefendants. See Heche v. Maldonado, Superior Court, judicial district of Fairfield, Docket No. CV-17-6064860-S. In this action, he sued them for negligence in the repairs to his van.
FINDINGS OF FACT
1. On September 27, 2016, Heche owned a 2015 GMC Savana G van that Maldonado struck head-on on the left front side while Heche was travelling on I-95 in Stratford, Connecticut. Ex. 1 .
2. Heche bought the van used for $23,000. Heche Testimony .
3. After the collision, Heche’s van was towed to City Line. Heche Testimony .
4. City Line is a motor vehicle repair facility. Ortiz Testimony .
5. On or about September 30, 2016, Mike Sardilli, an independent appraiser associated with the firm Duhamel & Duhamel, LLC, went to City Line to inspect the van. Sardilli Testimony; Ortiz Testimony; Ex. C . He disassembled the van, prepared an estimate, and, after finding more damage, prepared two supplements, all for Allstate Insurance Company, the insurer for Santiago. Sardilli Testimony; Ortiz Testimony; Exs. A, B and C . The estimate and supplements totaled $13,437.92. Ex. C.
6. The estimate assumed the use of aftermarket parts. Sardilli Testimony. Insurance companies require their use, except for safety items like airbags, for cars that are more than one year old and that have more than 15, 000 miles on them. Sardilli Testimony .
7. Based on the estimate as supplemented, Allstate paid Heche, who in turn paid City Line, $13,287.92 to repair the van. Heche Testimony; Exs. E, HI, H2, and H3 .
8. Heche did not pay City Line anything out of his own pocket. Heche Testimony .
9. City Line performed repairs on the van and returned it to Heche on or about November 3, 2016. Heche Testimony . City Line told Heche that there was a lifetime warranty on the repairs. Heche Testimony .
10. After that work was done and before returning the van to Heche, John Ortiz, the owner of City Line, took the photographs that are Exhibit F. He also did a line-up point with a laser system and then measured the van from wheel to wheel. Ortiz Testimony . According to Ortiz, the van was then sent to an alignment facility, and it came back "passed." Ortiz Testimony .
11. After he picked up the van on November 3, 2016, Heche immediately noticed that it was difficult to press the brake pedal because there was a bulge in the floor under that pedal. Heche Testimony .
12. On the following Tuesday, Heche took the van back to City Line, where Ortiz used a sledgehammer to flatten the bulge. Heche Testimony . During that same visit to City Line, Heche also complained to Ortiz that the van’s front end was shaking and that he could hear wind coming into the van while he was driving it. Heche Testimony .
13. Heche brought his van back to City Line again to address his complaints that air was coming into the van through the door, that the van’s floor was not straightened out, and that the front end was "still rough." Heche Testimony . On this occasion, Heche testified that Ortiz used a sledgehammer or a baseball bat to try to bang the door back into shape. Heche Testimony .
14. Heche testified that he continued to have the same problems with his van, and he next took the van to Firestone for an alignment. Heche Testimony . Firestone found that an eccentric bolt had been stripped, ordered that part, installed it, and then performed the alignment. Heche Testimony . Firestone charged Heche $348.76. Ex. 7d .
15. Heche continued to have problems with the van, and he brought the van back to City Line to address his continuing problems with the van, but he said "nothing was rectified." Heche Testimony . Ortiz also told Heche that, by taking the van to Firestone, he voided the warranty. Heche Testimony; Ortiz Testimony .
16. After that fourth return to City Line, Heche took the van to four other body shops. Heche Testimony . None of them would work on the van. Heche Testimony . Heche attributed their refusal to the frame and the doorpost being bent. Heche Testimony .
17. Ultimately, Heche hired his counsel and had the van inspected on February 19, 2017, by Robert Collins of Wreck Check. Heche Testimony . Collins regularly works with the plaintiff’s counsel. Collins Testimony .
18. Collins inspected the van in Heche’s driveway. Collins Testimony . Collins did not remove anything from the van to see how it was repaired inside. Collins Testimony . He conceded at trial that his inspection would have been more detailed if he took the van apart. Collins Testimony .
19. Collins is a licensed motor vehicle appraiser and was qualified at trial as an expert in vehicle inspections and evaluations. Collins Testimony .
20. Collins testified that he could see that the van was leaning and that he "looked at the way the hood fit the fenders and the way the door fit the opening and all the body lines are off. I measured them." Collins Testimony . He also measured the space between the front tires and the front of each fender and found that one side had a two-inch space whereas the other side had a nearly three-inch space. Collins Testimony . He explained that "the fender didn’t fit because the body wasn’t straight on the frame." Collins Testimony . He said that the van body margins should be flush and parallel, but the van’s margins were asymmetrical, which caused the left door and the hood to not fit properly on the frame. Collins Testimony . He took a series of photographs that documented these statements. Ex. 3a .
21. He concluded that the van’s frame was still damaged and was not restored to factory tolerances. Collins Testimony . Collins opined to a reasonable degree of certainty that the van was not repaired to the standard in the industry. Collins Testimony .
22. Collins opined that the cost to restore the van to its precollision condition would be $24,411.56, based on an hourly rate of $75 for labor and General Motors-manufactured original parts. Collins Testimony . He also opined that the replacement value of the van would be $25,231.60, based on the retail value of a comparable van in the NADA guide. Collins Testimony .
23. Based on Collins’s statement to him that the van was not safe to drive, Heche stopped driving the van in February 2017. Heche Testimony . However, on cross examination, he admitted that he starts it occasionally so that it will not die in the driveway. Heche Testimony .
24. Heche pays an annual registration fee, his town motor vehicle tax, and automobile insurance on the van, totaling $1,361.80 since February 2017. Heche Testimony; Exs. 7a, 7b, and 7c .
25. Collins also determined that the following repairs that were part of the Allstate estimate that City Line did not complete: panel assembly radiator support ($423), panel assembly left side ($72.68), crossmember radiator panel, lower ($222.30), front fender ($139), set up and measure and realign control points (part of frame repair) (6 hours of labor), frame repair (12 hours), and frame refinishing (0.6 hours). Collins Testimony; Exs. 3b and C . Using a $52 per hour labor rate, he calculated that the total cost of these parts and labor was $2,017.63. Exs. 3b and C .
26. Ortiz contradicted this testimony. He testified that a vehicle is like a jigsaw puzzle and that all of the parts Collins claimed were missing would have to be installed for the van to be reassembled. Ortiz Testimony . He specifically stated that he installed a panel assembly, radiator support system, crossbar radiator panel, a panel rocker left that he set up and measured, and that he realigned control points. Ortiz Testimony . Exhibit D reflects the purchase of the radiator parts. Sardilli inspected the van twice at City Line and verified that the work he authorized in his repair estimate was being performed. Sardilli Testimony .
27. The parties also dispute what happened with the left front tire of the van. It was blown out during the collision. Ortiz Testimony . To get the van up onto a lift to perform the estimate and the repair work, Ortiz bought a tire on or about October 5, 2016, from Town Fair Tire and installed it. Ortiz Testimony; Exs. D and O .
28. During his third visit to City Line, Heche claims that when he told Ortiz that his front end of his van was shaking, Ortiz told him that he needed a rim for that left front tire and that it would take about a week for it to be delivered. Heche Testimony .
29. Heche testified that he called City Line a "couple of days later" and was told that the rim already had arrived. Heche Testimony .
30. Heche testified that he returned to City Line to have the rim installed. Heche Testimony . The evidence was not clear as to whether a rim actually was installed during that visit.
31. At trial, Heche claimed that while the van was in City Line’s possession for the initial repair, his own spare tire disappeared and he only learned about it when he later went to Firestone for a snow tire changeover. Heche Testimony . He further claimed that the cost of the rim on that spare tire was $98. Heche Testimony . Ortiz denied stealing Heche’s spare tire. Ortiz Testimony .
LEGAL ANALYSIS
Six counts remain of Heche’s revised complaint against City Line. Two counts, count three for negligence and count six for breach of contract, claim that City Line did not properly and completely repair the van. The remaining claims, conversion, unjust enrichment, fraud and negligent misrepresentation, allege that City Line did not undertake several repairs for which it was paid $2,017.63 and that City Line charged Heche $98 for a tire rim that Heche contends was actually the rim from the van’s own spare tire.
I. COUNT THREE: NEGLIGENCE
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153, 155 (1994). "The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Id.
The court holds that City Line had a duty to repair the van to a standard that it could be safely driven. City Line had a duty "to use ordinary care" and "to do the work required with ordinary skill and judgment." Russell’s Express, Inc. v. Bray’s Garage, Inc., 94 Conn. 520, 252, 109 A. 722, 723 (1920) (holding garage liable for negligent work of welder); see also Mangiaracina v. Cappuccetti, 6 Conn.Cir. 47, 49-51, 263 A.2d 710, 711-12 (1969) (affirming plaintiff’s judgment for negligent repair of automobile after accident). City Line breached this duty by failing to properly repair the frame. See, e.g., Matter of White Plains Central Service, Inc. v. People, 149 App.Div.2d 713, 714, 540 N.Y.S.2d 506 (1989); Matter of Lyon Coram Auto Body, Inc. v. New York State Dept. of Motor Vehicles, 147 App.Div.2d 564, 565, 537 N.Y.S.2d 858 (1989).
The court credits Heche’s testimony that the van was not satisfactorily repaired and that, despite four return visits, City Line could not repair the frame. The court also credits Collins’ opinion testimony that the van was not repaired to industry standards. Although Ortiz testified that he did the repairs specified on the estimate and Sardilli testified that he verified that that work was done, neither of them fully refuted the testimony that the frame was not properly repaired. The failure to properly repair the frame was both the cause in fact and the proximate cause of damage to the van.
City Line argues in its posttrial brief that there was no duty to use original parts or to perform a total frame replacement. These arguments, however, relate to the amount of damages to be awarded. They do not address the duty to repair the van so that it was safe enough to drive. Heche has proved that he is entitled to damages for the faulty repair of his van, and the court will address damages later in this memorandum.
II COUNT SIX: BREACH OF CONTRACT
Heche claims that City Line breached its contract with him. To recover on a breach of contract claim, a plaintiff must prove "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, 1060, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
Heche claims that Exhibit E, a preprinted City Line Repair Order form, is the contract that was breached. That document is stamped "repair vehicle as agreed with the owner for adjustments on estimate." The dollar figures from the original estimate and the two supplements have been handwritten on it with a reduction for $150 for soundproofing and a total of $13,287.92. There is also a handwritten notation that that amount was paid. The only preprinted term that is relevant is the statement "all parts new unless otherwise specified." The estimate specified aftermarket parts, and the court finds that that was "otherwise specified."
Heche claims that this contract was breached because City Line performed the repairs in a poor, substandard manner and it failed to perform $2,017.63 of the repairs in the contract. There is no evidence that Exhibit E expressly set a standard for the performance of the repairs. Heche argues in his post-trial brief that that is an implicit term in the contract, but he cites no authority in support of that proposition. Finally, even if there was such a term in the contract, recovery for that would be redundant of the recovery on the negligence claim.
As for the claim that City Line did not perform $2,017.63 in repairs on the estimate, the court finds that Heche has not carried his burden of proof as to the radiator-related repairs in light of Ortiz’s testimony and Exhibit D, which is the receipt for the parts. The remainder of that amount is labor on the frame that Collins testified was not performed. Ortiz contradicted this testimony, with some corroboration from Sardilli. Because of this conflicting testimony, Heche has not met his burden of proving that City Line did not perform the labor on the frame that was part of the estimate that formed the basis of the contract. Therefore, Heche cannot recover under breach of contract.
III. COUNT FOUR: CONVERSION
In the remaining four counts, Heche claims that City Line was paid $13,287.92 based on the estimate to repair the van, but that it did not perform certain repairs worth $2,017.63 on that estimate. He also claims that City Line charged him $98 for a new tire rim, but that City Line actually took that tire rim from Heche’s own spare tire. Based on these allegations, Heche sues City Line for conversion, unjust enrichment, fraud, and negligent misrepresentation.
To establish City Line’s liability for conversion, Heche must prove the following elements by a preponderance of the evidence:
1) Heche owned the $2017 and the tire rim used by City Line. In other words, that, at the time City Line took possession of the $2017 and the spare tire, Heche owned and was entitled to take immediate possession of the rim;
2) City Line took possession of the $2,017 and the spare tire, which deprived Heche of both of them either permanently or for an indefinite period of time;
3) City Line’s conduct was unauthorized. In other words, City Line’s acts were wrongful, were without Heche’s permission, and without any other lawful authority; and
4) City Line’s conduct caused harm to Heche.
Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623, 639 (2006); News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837, 848 (2004), aff’d, 276 Conn. 310, 885 A.2d 758 (2005). Money can be the subject of a conversion claim as long as the money claimed at one time belonged to the plaintiff or was in the possession of the plaintiff. Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771, 905 A.2d 640.
The court finds that Heche has established the first two elements of his conversion claim, but, for the reasons set forth above in the discussion of the $2017 in the breach of contract section, the court finds that City Line’s actions were not unauthorized. The court finds that City Line did, in fact, buy the radiator parts and install them and that Heche has not met its burden of proof with respect to the labor on the frame repair. As to the tire rim, Heche and Ortiz contradicted one another as to whether City Line used the rim from Heche’s spare tire. In light of the evidence that City Line purchased a tire when the van was first at the garage to get it up on the lift and Sardilli’s testimony about and photograph of the replaced left front tire, the court finds that Heche has not met his burden of proof that the rim worth $98 was taken and used to repair the van. Therefore, Heche cannot recover under conversion.
IV. COUNT SEVEN: UNJUST ENRICHMENT
Heche also seeks to recover, under the theory of unjust enrichment, the $2,017 and the value of the tire rim. Unjust enrichment means that it is contrary to equity and good conscience for the defendant to retain a benefit that has come to him or her at the expense of the plaintiff. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518, 521 (1994). To prove unjust enrichment, a plaintiff must prove that he provided good or services to the defendant, that the defendant benefited from the receipt of those goods or services, that the defendant unjustly did not pay for that benefit, and that the defendant’s failure to pay hurt the plaintiff. Id., 283, 649 A.2d 522.
The court holds that Heche cannot prevail on his unjust enrichment claim. First, the fact pattern in this case does not really fit within the elements laid about above. Indeed, it was City Line who provided services and Heche who paid for them. Even if the court tries to fit the $2,017 that Heche claims he paid for work that was not done and the $98 rim he claims was stolen into these elements, for the reasons set forth above as to breach of contract and conversion, Heche has not met his burden of proving that City Line did nothing in exchange for the $2,017 or that it stole the rim. Finally, as to the $2,017, even if the facts here give rise to a claim of unjust enrichment, Heche cannot recover for unjust enrichment because Exhibit E was a written contract between the parties that bars that claim. See Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 515, 735 A.2d 813, 821 (1999).
V. COUNT EIGHT: FRAUD
Heche claims that City Line committed fraud when it claimed that it performed all of the work on the estimate, including the $2017.63 in parts and labor Heche claims was not done, and that it purchased a tire rim for the left front tire. To recover for fraud, a plaintiff must first prove that the defendant made a false representation as a statement of fact. Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145, 166 (2004). Second, a plaintiff must prove that the statement was untrue and known to be untrue by the defendant or that the defendant made the statement with reckless disregard for the truth of the matter. Id. Third, a plaintiff must prove that the defendant made the statement to induce the plaintiff to act on it. Id. Fourth, a plaintiff must prove that he did act on the statement to his injury. Id.
For the reasons set forth above as to breach of contract, conversion, and unjust enrichment, the court finds that Heche has not met his burden of proving that City Line did not do the work at issue or that it stole the rim from the van’s spare tire. Moreover, even if Heche met that burden, he did not introduce any evidence to establish that City Line or Ortiz made false statements with knowledge or with reckless disregard for their truth. Therefore, the court holds that Heche did not prove his fraud claim.
VI. COUNT NINE: NEGLIGENT MISREPRESENTATION
In his final claim, Heche asserts that City Line is liable for the $2,017.63 and the $98 rim based on negligent misrepresentation. To prevail on this claim, a plaintiff first must prove that the defendant made a misrepresentation of fact. Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929, 954 (2005). Second, a plaintiff must prove that the defendant knew or should have known it was false. Id. Third, a plaintiff must prove that he reasonably relied on the information. Id. Fourth, a plaintiff must prove that he suffered pecuniary harm as a result. Id.
As set forth above for the fraud claim, the court finds that Heche did not prove that there was a misrepresentation of fact regarding the parts and labor that made up the $2017.63 or regarding the tire rim. Furthermore, Heche did not establish that that City Line or Ortiz knew or should have known of any falsehood. Accordingly, Heche cannot prevail on his negligent misrepresentation claim.
VII. DAMAGES
The court has found that Heche proved that City Line negligently repaired his van and that this negligence caused harm. The court now must determine the amount of damages to compensate Heche for that harm. The purpose of compensatory damages is "to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165, 1181 (2006). In negligence cases, the rule of damages is that, insofar as money can do it, the plaintiff is to receive fair, just, and reasonable compensation for all injuries and losses, past and future, that are proximately caused by the defendant’s negligence. Leabo v. Leninski, 2 Conn.App. 715, 726, 484 A.2d 239, 246 (1984). "[T]he burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 163, 976 A.2d 723, 735 (2009).
The law on compensatory damages for property damage resulting from an automobile accident provides for the recovery of (1) the difference between the fair market value of the automobile before the accident and after the accident or (2) the cost of the repairs if they restore the automobile to the previous condition. See, e.g., Hammarlund v. Troiano, 146 Conn. 470, 473, 152 A.2d 314, 316 (1959); Damico v. Dalton, 1 Conn.App. 186, 187, 469 A.2d 795, 796 (1984); 4 Restatement (Second), Torts § 928, p. 543 (1979). The parties have not provided any additional authority as to the proper measure of damages in a situation like this where the repair costs were the damages for the original accident, but the repairs were not done properly.
Heche’s expert, Collins, testified as to alternative theories of damages: the cost to properly repair the van to its precollision condition or the cost to replace the van. Based on the law discussed above, the court finds that the cost to properly repair the van to its precollision condition is the proper measure of damages. However, the court finds that the Collins’ estimate (Ex. 4) is too high. First, it uses a labor rate of $75 per hour. The court finds that the $52 per hour labor rate City Line actually used here is more reasonable. Therefore, instead of $14,790 in labor costs based on the rate of $75 per hour, the total labor costs should be $10,254.40.
City Line also criticizes Collins’ report for relying on the prices for General Motors-manufactured original parts rather than aftermarket parts. The court is sympathetic to this argument, but City Line did not provide the court with any evidence of the cost of aftermarket parts instead of the cost of original parts in the report. "Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty ... Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier ... this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount." (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinksy, supra, 116 Conn.App. 163, 976 A.2d 735. The court can compare a few of the items with the original estimate and supplements. Ex. C. For example, the front bumper in Collins’ report costs $359.13 and in the estimate, it costs $305. The left park lamp in Collins’ report is $76.98, and in the estimate, it costs $66. Similarly, the difference for the right park lamp is $65.32 in Collins’ report, and $56 in the estimate. In each case, the aftermarket part is about 86 percent of the cost of the original part. Accordingly, the court will award 86 percent of the parts cost in the Collins’ report.
City Line also argues that there was no duty to replace the frame. Although the court agrees that frame replacement was not in the contract with City Line, the court also finds that the frame had not been properly repaired, and the court credits Collins’ testimony that a frame replacement is necessary to restore the van to its precollision condition and make it safe to drive again. Therefore, the court will leave the frame replacement, subject to the adjustment for aftermarket parts, in the damages calculation. The court will, however, remove the radiator support of $432.23 from that calculation based on its finding that City Line bought that item and installed it. Therefore, as to the parts in Collins’ report, the court reduces the $8,812.09 total by $432.23 to $8,379.86, and further reduces that amount by 14 percent to $7,206.67. Taking into account the reduction of the labor costs, the compensatory damages award for the negligent repair is $7,206.67 (parts), $457.63 (tax), $10,254.40 (labor), $40 (materials) and $210 (sublet) for a total of $18,168.70.
Because Heche only prevailed on his negligence claim, he only can recover for harm "of the same general nature as the foreseeable risk created by the defendant’s negligence." Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270, 273 (1973). The court finds that the damages just discussed constitute harm of the same general nature as the foreseeable risk created by City Line’s failure to properly repair the van’s frame. However, the insurance premium, motor vehicle taxes, motor vehicle registration and Firestone repair (Exs. 7a-7d) are too remote or represent costs that would have been incurred even if the van had been properly repaired. Heche argues that these are consequential damages, citing section 917 of the Restatement (Second) of Torts. That section, however, provides that a plaintiff may recover damages that are proximately caused by tortious activity. See 4 Restatement (Second), supra, § 917, comment (a), p. 497. It does not provide for consequential damages. Indeed, Heche has not cited, and the court is not aware of, any authority that provides for consequential damages in the tort context. Accordingly, the court will not award these damages.
CONCLUSION
The court finds that the plaintiff, Adam Heche, has proved that the defendant, City Line, was negligent in its repair of Heche’s van, and, therefore, judgment shall enter in favor of Heche on count three of Heche’s revised complaint in the amount of $18,168.70. The court finds no basis to award the other items requested in Heche’s demand for relief, except that he may submit a bill of taxable costs. As for counts four, six, seven, eight, and nine, judgment shall enter in favor of City Line.