Opinion
No. CV-07-5006908
September 24, 2008
MEMORANDUM OF DECISION
FACTS
This action arises out of alleged nonconformities with a 2002 Jeep Grand Cherokee owned by the plaintiff, Michelle Heibeck, and manufactured and warranted by the defendant, Chrysler, LLC. The plaintiff commenced this action on October 29, 2007, when a marshal served the writ, summons and complaint on the defendant. In counts one through three of the complaint, respectively, the plaintiff alleges claims against the defendant for violations of: (1) the federal Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 2301 et seq.; (2) the Connecticut Uniform Commercial Code — Sales (UCC), General Statutes § 42a-2-101 et seq.; and (3) the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The alleged nonconformities consist of defects in the vehicle's engine, oil pressure gauge and air conditioner system.
On February 19, 2008, the defendant filed a motion for summary judgment, accompanied by a memorandum of law, in which it argues that all three of the plaintiff's claims are barred by the applicable statute of limitations. The defendant also argues that the plaintiff's CUTPA claim is barred by the economic loss doctrine and that the plaintiff failed to sufficiently establish such a claim. The defendant attached to the memorandum the following: (1) case law; (2) a sworn affidavit from Joseph Carpentieri; (3) an unauthenticated vehicle information detail report for the vehicle in question; (4) unauthenticated owner information reports for the vehicle in question; (5) an unauthenticated 2002 Chrysler Warranty Information booklet; (6) the summons and complaint; and (7) the answer.
On March 6, 2008, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment. The plaintiff attached to the memorandum the following: (1) an unauthenticated retail purchase order for the vehicle in question from Georgetown Jeep; (2) an unauthenticated 2002 Chrysler Warranty Information booklet; (3) unauthenticated service repair documentation from Georgetown Jeep; and (4) case law. The court heard oral argument on this matter on June 23, 2008.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[T]he court, however, may consider not only the facts presented by the parties' affidavits and exhibits, but also the inferences which could be reasonably and logically drawn from them . . ." Id., 381. Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. (Internal quotation marks omitted.)
Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
[T]he party opposing the motion must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party's] affidavits and documents . . . (Internal quotation marks omitted.)
Farmington v. Dowling, 26 Conn.App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
In count two of the complaint, the plaintiff alleges that the defects in the vehicle constitute a breach by the defendant of an express warranty, an implied warranty of merchantability and an implied warranty of fitness for a particular purpose, under the UCC. "Because this [count] involves the sale of goods, it is governed by Article 2 of the Uniform Commercial Code (UCC) General Statutes § 42a-1-101 through 42a-2-725." Sun Hill Industries v. Kraftsman Group, Inc., 27 Conn.App. 688, 693, 610 A.2d 684, cert. denied, 223 Conn. 913, 614 A.2d 830 (1992).
The statute of limitation for the sale of goods can be found in General Statutes § 42a-2-725. Section 42a-2-725 provides in relevant part: "(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." This statute "is the applicable statute of limitations for breach of warranty claims brought under the UCC." Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 165, 464 A.2d 18 (1983).
The defendant, in his motion for summary judgment, alleges that it is entitled to summary judgment on count two because the plaintiff did not commence her action within four years from the date the vehicle was originally tendered, as required by § 42a-2-725. The defendant alleges that the vehicle was originally tendered to its first owner on February 1, 2002, and it was not served with process until October 29, 2007. The defendant further asserts the exception to this statutory requirement — where the warranty explicitly extends to future performance of the goods — does not apply in the present case because the warranty at issue is a repair or replacement warranty.
The plaintiff, in her memorandum in opposition, counters that her breach of express and implied warranty claims under the UCC are not barred by § 42a-2-725 because the exception to the statutory requirement does, in fact, apply to a repair or replacement warranty and the warranties she received from the defendant expressly extended to future performance, in that they provided: (1) that any defects in the vehicle's outer panels, within five years, would be repaired or replaced by defendant's agents; (2) that any defects exhibited by the vehicle's emission system, within eight years, would be repaired or replaced by defendant's agents; and (3) that any defects exhibited by the vehicle, from bumper to bumper, within 100,000 miles would be repaired or replaced by the defendant's agents. The plaintiff, therefore, argues that the statute of limitation provided in § 42a-2-725 did not begin to run until the future performance was breached, which occurred on or about August 31, 2006. As such, the present action was commenced well within four years.
This issue is controlled by the Supreme Court's decision in Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 (1998). In Flagg, the plaintiffs brought breach of warranty claims against the defendant on the basis that the gas turbine engines they purchased from the defendant did not operate efficiently and economically. Id., 129-30. The defendant moved for summary judgment on the ground that the warranty claims were barred by the four-year limitation of § 42a-2-725 because the plaintiffs failed to commence the action within four years of the date the defendant delivered the engines to them. Id., 130. The trial court held that the warranty claims were time-barred, except for the plaintiffs' allegation that the defendant breached the clause requiring the defendant "for a period of one year from the date of acceptance of the engines, to repair or replace defective material and equipment." Id., 133. The matter proceeded to trial on this clause and a directed verdict was entered for the defendant on the basis of insufficient evidence. Id., 131.
On appeal, the plaintiffs claimed that the clause in the purchase agreement for repair or replacement of defective material or equipment was an express warranty of future performance, so that discovery of the breach must await the time of such performance and the cause of action accrues when the breach is or should have been discovered. Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 147-48. The Supreme Court, however, stated:
[W]e must consider the relationship between the repair and replacement clause and the provisions of § 42a-2-725. Without establishing such a relationship, the plaintiffs cannot prevail on their warranty claim. The ultimate issue raised by the defendant's motion for summary judgment must be decided by determining the date of accrual of the plaintiffs' warranty claims for defective performance of the engines themselves. The defendant argues, and we agree, that the repair or replacement clause contains no terms that, as a matter of law, would constitute an explicit warranty of future performance, as § 42a-2-725(2) requires. In the event of defects in the engines, the clause describes no more than a contractual commitment by the defendant, for a limited period of time, to provide remedies additional to those provided by article 2 of the Uniform Commercial Code. It is irrelevant that the plaintiffs have attached a warranty label to the clause. Putting a [warranty] tag on a [non-warranty clause] will no more change its essential character than calling a bull a cow will change its gender . . . In light of its plain language, we conclude that the clause cannot be construed either as a new warranty of performance or as an additional commitment for future performance of other implied or express remedies.
Although this question is one of first impression for this court, decisions in other jurisdictions support our construction of the repair and replacement clause. State courts around the country have concluded that such clauses provide a buyer no relief other than that expressly promised by the language of the clause. Consequently, they too have held that a promise to repair or replace, unless it contains express language to the contrary, is not a promise of future performance with respect to § 42a-2-725(2) . . . Accordingly, we reject the plaintiffs' contention that the repair or replacement clause in the purchase agreement tolls the running of the statute of limitations under § 42a-2-725. (Citations omitted; internal quotation marks omitted.)
Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 149-51.
Likewise, in the present case, the warranties that the plaintiff relies on provided that the defendant would repair certain defective parts on the plaintiff's vehicle if the defect arose within the time, or miles, specified therein. None of the warranties contain language that amounts to an explicit representation as to the future performance of the vehicle or any of its parts. The warranties do not provide, for example, that the defendant warrants that the parts will not break down for at least five, or eight years, or 100,000 miles. Instead, the warranties state that if one of the parts breaks down within five or eight years (depending on the part), or 100,000 miles, the defendant will repair and replace it. Accordingly, the repair and replacement warranties relied upon by the plaintiff in this case are not the type that extend to the future performance of the vehicle. See Meier v. Daimler Chrysler Co., Superior Court, judicial district of New Haven, Docket No. CV 07 5013338 (May 7, 2008, Holden, J.) ( 45 Conn. L. Rptr. 592).
The same is true for the plaintiff's breach of implied warranty claims, as such warranties are also subject to the four-year limitation of § 42a-2-725; Beckstein v. Potter Carrier, Inc., supra, 191 Conn. 165; which, for such claims, begins to run on the date of delivery. See Gulash v. Stylarama, Inc., 33 Conn.Sup. 108, 116, 364 A.2d 1221 (1975). Consequently, the four-year limitations provision of § 42-2-725(1) applies to the plaintiff's claim for breach of express and implied warranties under the UCC. As the plaintiff did not commence the present action within four years of the date of the tender of delivery of the vehicle, the claim is barred by the applicable statute of limitations. Therefore, the court grants the defendant's motion for summary judgment on count two.
In count one of the complaint, the plaintiff alleges that the defects in the vehicle also constitute a breach by the defendant of a written warranty or service contract in violation of the Magnuson-Moss Act. The defendant argues that it is entitled to summary judgment on count one because it is also time-barred by § 42a-2-725. The plaintiff counters that the statutory exception to § 42a-2-725 applies to this claim as well.
As the Magnuson-Moss Act does not contain a statute of limitations, the court is guided by "the usual rule that, when Congress has failed to provide a statute of limitations for a federal cause of action, a court `borrows' or `absorbs' the legal time limitations most analogous to the case at hand." Lampf, Pleva, Lipkind, Prupis Petigrow v. Gilbertson, 501 U.S. 350, 355, 111 S.Ct.2773, 115 L.Ed.2d 321 (1991); see also Lopes v. Farmer, 284 Conn. 384, 388 (2008).
In accordance with this rule, various courts have concluded that the most appropriate statute of limitations from which to borrow for [a] Magnuson-Moss Act claim is the four-year limitation in [the state] Uniform Commercial Code § 2-725; Murungi v. Mercedes Benz Credit Corp., 192 F.Sup.2d 71, 79 (W.D.N.Y. 2001); as it is the closest analogous state limitations period. Id., 78; see also cases cited therein. (Internal quotation marks omitted.)
Meier v. Daimler Chrysler Co., supra, Superior Court, Docket No. CV 07 5013338 [ 45 Conn. L. Rptr. 592].
In Connecticut, that limitations provision is § 42a-2-725. Accordingly, as with the plaintiff's claim in count two, the plaintiff's failure to commence the present action within four years of the date of the tender of delivery of the vehicle renders count one untimely. Thus, the court grants the defendant's motion for summary judgment on count one as well.
In count three of the complaint, the plaintiff alleges that the defendant committed unfair or deceptive acts in violation of CUPTA. Specifically, the plaintiff alleges that said acts and practices include, but are not limited to:
[1] Defendant's representation that the vehicle contained a valid warranty, which would cause effective warranty repairs to be made within a reasonable time and within the warranty period was untrue; [2] Defendant's representation that the vehicle contained, as a remedy, an effective warranty which would cause effective warranty repairs to be made within a reasonable time and warranty period was false; [3] Defendant's representation that the vehicle was fit for ordinary purposes was untrue; [4] Defendant's representation that the vehicle was merchantable was untrue; [5] Defendant, who had a legal obligation to [p]laintiff under the written warranty, breached, avoided and/or attempted to avoid its obligation to the [p]laintiff; and [6] Defendant exhibit a pattern of inefficiency, stalling and/or incompetency with regard to its warranty repair work.
The defendant argues that it is entitled to summary judgment on count three because: (1) the claim is barred by the limitations provisions of § 42a-2-725 and/or § 42-110g(f); (2) the plaintiff failed to establish such a claim; and (3) the claim is barred by the economic loss doctrine. The plaintiff counters that § 42a-2-725 does not apply to a CUPTA claim and her claim is timely under CUTPA's own three-year statute of limitations provided in § 42-110g(f) because a CUPTA claim is an occurrence statute and the violation did not occur until the defendant failed to repair on August 31, 2006. The plaintiff also asserts that the she has effectively pleaded CUTPA and the economic loss doctrine is not applicable.
In regards to the defendant's first argument, it is clear that the statute of limitations that applies to count three is § 42-110g(f), as it
applies to all claims brought under CUTPA without regard to the nature of the underlying unfair trade practice that has been alleged.Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606-07, 894 A.2d 335 (2006), aff'd on other grounds, 284 Conn. 193, 931 A.2d 916 (2007). Section 42-110g provides in pertinent part:
(a) Any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by [ § ]42-110b, may bring an action . . . to recover actual damages . . . (f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
Accordingly, the plaintiff is correct in that this is an occurrence statute.
To demonstrate [its] entitlement to summary judgment on timeliness grounds, the defendant, through [its] affidavit, [needs] to establish that there was no viable question of fact concerning the plaintiff's obligation to have brought [his] action . . . no later than three years . . . from the [occurrence of a violation].
Rockwell v. Quinter, 96 Conn.App. 221, 232, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The plaintiff has alleged that the defendant and its dealership engaged in unfair trade practices on August 31, 2006, in regard to the problems she had with getting the vehicle's defects repaired. The defendant has failed to submit an affidavit or any other evidence that establishes that this alleged conduct did not occur more than three years before the plaintiff commenced this action. When a defendant that is seeking summary judgment on the basis of limitations does not submit evidence that
eliminate[s] all factual issues raised by the allegations of the complaint the burden of proof never [shifts] to the plaintiff. As such, [she] was not obligated to present evidence to survive summary judgment, but instead, could rest on those allegations alone.
Id., 233.
Accordingly, in the present case, it is not appropriate for the court to grant the defendant's motion for summary judgment as to count three on the ground of limitations.
The defendant's next argument is that the plaintiff's CUPTA claim must be dismissed because the plaintiff has only made breach of warranty allegations, which are insufficient to establish a CUPTA violation. However, in this case, at least some of the plaintiff's allegations of misrepresentations, as previously provided, are distinct from her breach of warranty allegations. Accordingly, the defendant's motion for summary judgment as to count three on this ground is denied.
Finally, in regards to the defendant's third argument, i.e, the plaintiff's CUTPA claim is barred by the economic loss rule, the court must deny the defendant's motion on this ground as well.
CT Page 15466
[T]he economic loss doctrine . . . is a judicially created doctrine which prohibits recovery in tort where the basis for the tort claim arises from violation of a contract and damages are limited to purely economic losses as opposed to personal injury or property damages . . . There is an issue [as to] whether . . . the doctrine has been adopted in Connecticut. Without labeling the concept as the `economic loss doctrine,' the Supreme Court has twice declined to apply the concept to claims of negligent misrepresentation arising out of breach of contract claims. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218-19, [ 520 A.2d 217]) (1977) and William Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, [ 657 A.2d 212] (1995). But in Flagg Energy Development Corp. v. General Motors Corp., [ supra, 244 Conn. 153], without mentioning either D'Ulisse-Cupo or Williams Ford, Inc., the court, with reference to the `economic loss rule,' affirmed the striking of negligent misrepresentation and CUPTA counts in the context of a claim for breach of contract and breach of warranty damages relating to allegedly defective gas turbine unites manufactured by the defendant. The court accepted the defendant's position that the plaintiff in that context was limited to its remedies under the Uniform Commercial Code . . . and that the misrepresentation and CUPTA claims were inconsistent with the UCC and therefore displaced by §§ 42a-1-103 and 42a-2-721 of the Connecticut UCC.
Hoydic v. B E Juices, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 4010104 (February 27, 2008, Jennings, J.).
Specifically, in Flagg, the Supreme Court stated that it agreed
with the holdings of cases in other jurisdictions that commercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentation . . . These authorities are particularly persuasive in the circumstances of this case, in which the misrepresentations and CUTPA claims depend upon allegations of fact that are identical to those asserted in their claim [for breach of contract]. (Citations omitted.)
Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 153-54.
"Since the decision in Flagg, no appellate authority has addressed whether the economic loss doctrine is recognized in Connecticut . . . Consequently, a split of authority has emerged [in the Superior Court] as to whether the ruling in Flagg bars tort claims for economic loss in non-product liability cases . . . [In several cases, the court has found] that the holding in Flagg amounts to a recognition of the doctrine and warrants an extension of the doctrine well beyond product liability cases . . . There is also a line of case [which is the majority] that refuses to adopt the economic loss doctrine or adopts the doctrine in limited circumstances . . . The latter line of cases relies on the following reasoning . . . Upon close examination, [the decision in Flagg] cannot be reasonably read to create a general rule barring all tort claims based in whole or in part upon alleged breaches of contract . . . Instead, it can only be read to bar such claims in the particular circumstances there at issue, it wit: where both the plaintiff and the defendant are sophisticated commercial parties, and their dispute arises from the defendant's allegedly defective performance under a contract for the sale of goods. (Emphasis in the original; internal quotation marks omitted.)
Paliwoda v. Mathews, Superior Court, judicial district of Fairfield, Docket No. CV 02 0398249 (October 16, 2006, Gilardi, J.).
Pursuant to this reasoning, judges have refused to extend the economic loss doctrine in cases in which the plaintiff, like the plaintiff in the present case, is not a sophisticated party and is not seeking to recover for commercial damages. See Paliwoda v. Mathews, supra, Superior Court, Docket No. CV 02 0398249. Additionally, other judges have held that the doctrine does not bar claims that are distinct from plaintiff's breach of contract claims. See Triton Environmental, Inc. v. Dalton Enterprises Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0482647 (January 10, 2005, Levin, J.) ( 38 Conn. L. Rptr. 518, 523). Again, in the present case, as explained above, at least some of the plaintiff's allegations of misrepresentations are distinct from her breach of contract allegations. As such, count three is not barred by the economic loss rule. See Meier v. Daimler Chrysler, supra, Superior Court, Docket No. CV 07 5013338.
For the aforementioned reasons, the defendant's motion for summary judgment on count three is denied.
CONCLUSION
The defendant's motion for summary judgment on counts one and two are granted. The defendant's motion for summary judgment on count three is denied.