Opinion
No. CV03-0476082-S
April 20, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
In this case the plaintiff has brought suit against Subaru of America — the manufacturer of the used vehicle he purchased. He has also brought suit against the car dealer from whom he purchased the vehicle. Subaru of America (Subaru) has now filed a motion for summary judgment directed against the first count (breach of express warranty), the second count (breach of implied warranty), and the third count (violation of the Connecticut Unfair Trade Practices Act (CUTPA), § 42-110a et seq.).
The standards to be applied on a summary judgment motion are well known. Such a motion should not be granted if there is a disputed issue of material fact. Litigants have a constitutional right to trial. On the other hand, where there is no such disputed issue, such a motion should be granted, if warranted, to avoid having a litigation go through the expense and inconvenience of trial.
As a preface to its brief Subaru listed several matters which it claimed were undisputed. The plaintiff does not appear to contest that the facts listed were undisputed. The court will simply quote from the Subaru brief.
1. The plaintiff, Richard Lucas ("Lucas"), purchased from defendant Chase Parkway Garage, Inc. ("Chase") a used 1998 model Subaru Forester ("1998 Forester") which had an odometer reading of 34,173 miles on June 1, 2001. (Complaint ¶ 4; Lucas Dep. at 26, 38; O'Connor Aff. Ex. 2.) Subaru manufactured the 1998 Forester. ( Id.)
2. Subaru provided a "1998 Warranty Maintenance Booklet" ("Subaru Warranty Booklet") to all purchasers of new 1998 Subaru Foresters, including the 1998 Forester ultimately purchased by Lucas. (Complaint ¶ 7; Lucas Dep. at 35-36; Vespertino Aff. ¶ 3 and Ex. A.) Subaru did not make any warranties to Lucas other then those made in the Subaru Warranty Booklet. (Lucas Dep. at 40.)
3. The Subaru Warranty Booklet provides a New Car Limited Warranty on all new 1998 Subaru Foresters. The New Car Limited Warranty expires after three (3) years or 36,000 miles, which ever comes first. (Vespertino Aff. Ex. A at 6; Lucas Dep. at 36.)
4. The Subaru Warranty Booklet provides a Powertrain Limited Warranty on all new 1998 Foresters. The Powertrain Limited Warranty expires after five (5) years or 60,000 miles, which ever comes first. (Complaint ¶ 7; Vespertino Aff. Ex. A at 7; Lucas Dep. at 35.)
5. The Subaru Warranty Booklet provides that its express limited warranties are in lieu of all implied warranties, and that any implied warranties end at the same time as the express limited warranties for a particular part ends. (Vespertino Aff. Ex. A at 12.)
6. On October 15, 2001, after the 1998 Forester had driven a total of approximately 45,596 miles, Lucas replaced the left wheel bearing. (Lucas Dep. at 42-43.)
7. On May 24, 2002, after the 1998 Forester had driven a total of approximately 60,970 miles, Lucas replaced the steering roll. (Lucas Dep. at 43.)
8. In December 2002, after the 1998 Forester had driven a total of approximately 75,300 miles, Lucas replaced the engine because of a blown head gasket. (Lucas Dep. at 41-42; Complaint ¶ 9.)
9. On December 13, 2002, Lucas requested in writing that Subaru provide him with copies of all service adjustment programs pertaining to the engine train warranty and engine block gasket warranty for his 1998 Forester. (Lucas Dep. at 94.)
10. Subaru does not have a service or warranty extension program for either the engine, the wheel bearings, or the steering roll of the 1998 Forester. (Lucas Dep. at 100-02; Vespertino Aff. ¶ 4.)
11. In 2004, Subaru issued a service bulletin entitled "WWP 99 Service Program, February 2004." The WWP 99 Service Program applies to certain Subaru vehicles of model years 1999 through 2002. (Lucas Dep. at 75; Vespertino Aff. ¶ 5.) It does not apply to the 1998 Forester owned by Lucas. (Lucas Dep. at 75; Vespertino Aff. ¶ 5.) The engine of the 1998 Forester is different from the engine installed in the subsequent model year Foresters which are subject to the WWP 99 Service Program. (Vespertino Aff. ¶ 5.)
The plaintiff objects to the motion and has cited portions of his deposition. The court assumes the depositions were given under oath and if that premise is true has no reason to treat the references any differently than an affidavit submitted under oath.
Referencing pages 10 and 11 of the deposition, plaintiff's counsel says that Subarus with the same engine as Mr. Lucas had are now required to add a conditioner. The replacement engine is characterized as a "newer version of the same engine" which broke down. The transcript itself, however, does not explicitly state the replacement engine is the "same engine" that broke down.
Mr. Lucas's testimony at pages 35 and 36 is also referred to where he says that on the day he purchased the car from the dealer he asked for a copy of the Subaru warranty. The dealer did not have it that day but mailed it to him one week later. Lucas said he had no reason to think that what was mailed to him was anything other than the manufacturer's warranty.
At pages 40-45 of his deposition Mr. Lucas describes the breakdown of the head gasket. That occurred in November 2002 when the vehicle had approximately 75,000 miles on it. The car was purchased June 1, 2001 when it had 34,173 miles on it.
At pages 46 to 52 of his deposition Mr. Lucas said that "the first indication" he had that something was wrong was an acrid odor he noticed in the spring of 2002. He said he believed what he smelled "was the radiator fluid leaking through the head gasket into the combustion chamber." He noticed this acrid smell on a day in March or April when he went to visit his granddaughter. The smell lasted a couple of seconds. Mr. Lucas apparently noticed this smell only once.
The defendant Subaru submitted an affidavit of Mr. Vespertino, a service operations manager of Subaru who indicates a service bulletin regarding engines in Subaru Foresters does not apply to 1998 models like that of Mr. Lucas but only to 1999-2002 models.
The plaintiff has also submitted repair bills for various types of service he had done on the car after he bought it, a service bulletin regarding wheel bearings on 1998-2003 Foresters, and an admission by Subaru that wheel bearings for 1998 Foresters "be other than those originally manufactured or installed," Legacy model wheel bearings should be used.
Plaintiff's counsel made reference to the fact that he was procuring the services of an expert for use at trial but no expert report or affidavit was made available for purposes of this motion, no request has been made to supplement what has already been submitted to the court on this motion. The court at oral argument indicated it would decide this motion on the basis of what had been presented by the date of argument.
(1)
The first count against Subaru alleges a breach of an express warranty. It relied on the Subaru warranty booklet for new vehicles which provides a Powertrain Limited Warranty. That warranty expires after five years or 60,000 miles whichever comes first. The engine is part of the powertrain and the count alleges engine malfunction, requiring its replacement.
There is no dispute that the vehicle suffered from a blown head gasket which necessitated the replacement of the engine. There is no apparent dispute that that would be the type of problem subject to coverage under the express warranty. However, the obvious problem for the plaintiff is that the engine was replaced at 75,300 miles, well beyond the warranty coverage period of 60,000 miles. The plaintiff attempts to surmount this problem by further alleging that the "blown head gasket" which led to the problem in the ways described in the complaint "was latent, in that it was not discernable until it manifested itself through overt damage." Thus the express warranty tendered to the plaintiff by the express warranty booklet was breached "as the Forester had a latent defect . . ."
There are several difficulties with the plaintiff's position. On the face of it, it seems that the defendant has established a prima facie case or position requiring dismissal, since the problem arose here after 60,000 miles. As noted the plaintiff seeks to avoid this by claiming a latent defect resulted in the problem. Assuming the viability of such a claim, which will be discussed later, there are nothing but conclusory statements by the plaintiff that the defect was latent. It is not even clear to the court what is meant by latent defect in this context — is a latent defect claimed that is peculiar to 1998 Forester engines in general or just to the engine in this car.
Perhaps relying on some notion of admission by conduct, cf. Cashman v. Terminal Taxi Co., 131 Conn. 31, 33 (1944), the plaintiff suggests Subaru is now requiring a conditioner be added to the very same type of engine in the car when Lucas bought it to forestall gasket damage. But how is the court to conclude the newer engines, concerning which the recommendation is made, is the "same" as that of Lucas's original engine. "Expert testimony is required when the question involved goes beyond the field of ordinary knowledge and experience of the judges and jurors." Lathum Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301 (1991), Franchey v. Hannes, 155 Conn. 663, 666 (1967). The court cannot put aside this requirement based on the conclusory statement of a litigant not otherwise shown to be qualified to render an expert opinion. The defendant has submitted the affidavit of Mr. Vespertino and he makes the assertion that the replacement engine is not the "same" as the "1998" engine in the Lucas car; true, the only hint at his expertise is the man's title as a "Service Operations Manager." The problem for the plaintiff is, however, that the burden is on him to support the sameness of the engine allegation and then to weave it in with the admonition to apply a conditioner to the newer engines — this he has not done.
The court also believes that the plaintiff's testimony about the acrid smell he noticed on one occasion months before the engine breakdown does not permit the court to make a conjecture, without the benefit of expert testimony, that this was some proof let alone relevant evidence of a latent defect involving the gasket.
But even assuming that there was an issue of fact concerning the existence of a latent defect that would not, in the court's opinion prevent the granting of this motion as to the express warranty count.
The warranty booklet says in relevant part: "These warranties cover any repairs needed to correct defects in material or workmanship reported during the applicable warranty period . . ." As noted, perhaps too many times, that period is "5 years or 60,000 miles whichever comes first" as to the powertrain which includes the engine. The express warranty count alleges a "blown head gasket" which required replacement of the engine.
And in this regard on a later page in the warranty booklet it says:
REPAIRS AT NO CHARGE.
Defective parts will be repaired, or at the option of SOA or your Authorized SUBARU Dealer, replaced with a new or remanufactured part without charge to you for labor or materials.
The word "repairs" in this language should be taken in its ordinary generic sense to include repair of parts which will continue to operate in the car or to repair by replacing a defective part. The language just quoted includes both definitions. Thus the "repairs" that took place here, latent or not, occurred well after the 60,000 warranty period even assuming by non-expert hindsight portraits of future problems occurred within that mileage period.
The plaintiff cannot go outside the express warranties actually made to advance an express warranty theory. As long ago as Albrecht v. Rubinstein, 135 Conn. 243, 246 (1948), the court said that "An express warranty has been defined `as a positive representation of fact which induces a bargain.' 5 Williston Contracts (Rev. Ed.) § 1505." As noted in 67A Am.Jur.2d "Sales," the Uniform Commercial Code, adopted in this state, accepts this definition and says of express warranties under the code:
Express warranties rest on the "dickered" aspect of the individual bargain and go to the essence of the bargain. They are part of the basis of the bargain and are contractural, having been created during the bargaining process.
The warranty booklet was part of the bargain made with the original purchaser. Arguendo he can inherit the benefit of that bargain if privity is no longer a problem, Hamon v. Digliani, 148 Conn. 710 (1961), but he also must accept its limitations.
The plaintiff, if he is allowed to rely on an express warranty theory based on the warranty booklet, must base any claim in terms of that booklet. Since the court concludes that he cannot do so the first count is dismissed.
Perhaps even more basically, at least for this writer, if not for some of the case law, difficulties are created when these definitions of express warranty are coupled with case law that says privity of contract is not required to bring an action against a manufacturer on the basis of a claimed violation of not only an implied but also an express warranty. The difficulties are underlined if Uniform Commercial Code, White Summers, 4th ed. § 9-5, pp. 491-95, is read closely. The non-privity rule as to express warranties seems to be generally accepted, see cases cited at footnote 12, page 496 such as Alberti v. Manufactured Homes, Inc., 407 S.E.2d 819, 825 (N.C., 1991), cf. Hamon v. Digliani, 148 Conn. 710 (1961), Connolly v. Hagi, 24 Conn.Sup. 198 (1963).
But, given the previously referred to definition of express warranty, what could be bargained over or "dickered" about between the manufacturer who might have distributed the product years before a purchaser subsequent to the original purchaser. Insofar as the issue is recognized some cases have at least invented various ways to get around these problems. In Alberti it was found that the manufacturer made representations to the retailer and it "intended its express oral representations to its retailer to be passed on to and induce ultimate consumers to buy (the manufacturer's product)," 407 S.E.2d at page 825. Thus the court-recognized generalities about no need for privity of contract will not satisfy the substantive requirements of an express warranty claim.
Also as White and Summers note "it is clear that an advertisement can be part of the basis of the bargain" and perhaps a subsequent purchaser can reasonably rely on express warranty theory by pointing to manufacturer advertising. But even at that White and Summers note that the comment 3 to § 2-313 (our § 42a-2-213) "basis of bargain" presumption, is limited to "affirmations of fact made by the seller about the goods during a bargain . . ." In the usual case one would not regard an advertisement as being made `during a bargain,' and therefore no statement in an advertisement would normally qualify for the presumption (of an express warranty) that may be authorized in Comment 3. At minimum a plaintiff in such a case should have to testify that he (she) (or his (her) agent) knew of and relied upon the advertisement in making the purchase." Id., pp. 494-95.
Also a case has held that if the retailer, the used car dealer, made express warranties they could bind the manufacturer upon a showing that the dealer was an agent of the manufacturer for purpose of making the express warranties. Cf. Kari-Bick Kitchens Bath, Inc. v. Genini Coatings, Inc., 547 N.W.2d 640 (Mich., 1995). None of these factors have been raised by the plaintiff in this case. There is no claim that he relied on general manufacturer advertisements about the reliability and long-lasting qualities of the powertrain and its engine. There is no evidence as to the nature of the agency relationship, if any, with the dealer. There is nothing to indicate the manufacturer required used car dealers to even distribute the warranty booklet to prospective customers although it could be said that should have fairly been expected by the manufacturer.
If liability is imposed on a manufacturer on an express warranty theory despite absence of the foregoing factors, we are not dealing with any "basis of the bargain" finding which is supposed to underpin that theory. Rather by fiat there is a finding of an express warranty. In fact, as many of the cases cited in White and Summers indicate, this is exactly what the cases seem to do after repeating the rubric about no privity requirement.
How this can be done without at least establishment of some of the factors just discussed is confusing to this court. Perhaps a theory can be put forward to the effect that the manufacturer should expect that the warranty booklet would run with and be made available to all subsequent purchasers. But creation of such a presumption would seem to lie in the definitional domain of implied warranty theory — that is, something imposed by law not the result of a bargain between seller (here manufacturer) and purchaser. Even at that how could such an argument be made here — the plaintiff buyer says he did not receive the warranty booklet until a week after the sale.
(2)
In the second count the plaintiff makes a breach of implied warranty under § 42a-2-314 of the General Statutes.
In this count various allegations are made against the defendant Subaru and the dealer Chase. Under the statute the plaintiff asserts a breach of the implied warranty of merchantability for costs associated with repairing the engine, the wheel bearings and the steering roll. Such a warranty exists in all contracts of sale under subsection (a) of the statute but may be modified pursuant to subsection (2) of § 42a-2-316. Subaru claims it did so with the following language in the warranty booklet.
THESE WARRANTIES ARE LIMITED IN DURATION TO THE TIME PERIOD OF THE WRITTEN WARRANTIES, THESE WARRANTIES ARE IN LIEU OF ALL OTHER OBLIGATIONS, LIABILITIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE END AT THE SAME TIME COVERAGE ON THE PARTICULAR COMPONENT ENDS.
The defendant's argument is quite straightforward and is supported by the exhibits. Quoting from the Subaru brief it says that:
The Subaru Warranty Booklet conspicuously provides that the purchaser is limited to only the limited warranties expressly made in the booklet and that such limited warranties are to the exclusion of all other warranties, including the implied warranty of merchantability. Moreover, the Subaru Warranty Booklet provides that any implied warranty of merchantability terminates at the same moment that the express limited warranty terminates.
( Id.) As discussed above, Lucas replaced the engine over 15,000 miles after the expiration of the Powertrain Limited Warranty. (Lucas Dep. at 42; Complaint ¶ 9.) Similarly, he replaced the wheel bearings and steering roll well after the expiration of the 36,000 miles basic coverage. (Lucas Dep. at 42-43.) Accordingly, Lucas's claim for breach of implied warranty fails because Subaru conspicuously limited its warranties to only those covered repairs made during the express warranty periods set forth in the Subaru Warranty Booklet.
The plaintiff in response argues that Subaru cannot disclaim the implied warranty. Plaintiff's deposition testimony indicates that he did not receive the warranty booklet "until a week after the sale of the car was consummated." He argues that in order for a disclaimer or modification of an implied warranty to be "conspicuous" under § 42a-2-316(2) it must be "available at the time of sale, `mere delivery of a printed and unexecuted form after the sale has been consumated would not bind the purchaser.'" Sensabaugh v. Morgan, Inc., 165 A.2d 914 (Md., 1960), Miller v. Andy Burger Motors, Inc., 370 S.W.2d 654 (Mo.App.), and the case of Koellmer v. Chrysler Motors Corp, 6 Conn. Cir. 478, 485 (1970), are cited. See also Section 125 of White L. Summers at pp. 639-40.
In this case although the plaintiff was aware of the existence of a warranty booklet at the time of sale there is no indication in his deposition or in any other evidence that he knew of the limitations provision on implied warranties or that its provisions played any part in his purchase negotiations with the dealer.
A manufacturer is a "merchant" under the code (see § 42a-2-104) given its broad language and thus subject to the code's implied warranty strictures (§ 42a-2-314). Hamon v. Digliani, supra, held rules of privity did not bar suit on both express and implied warranty claims. If the analytical leap is taken that, even where proof of agency as to the dealer vis-a-vis the manufacturer is not established, a subsequent purchaser can disclaim warranty limitations when the dealer does not present the booklet containing those limitations at the time of sale, an insurmountable problem still remains for the plaintiff.
A manufacturer cannot be held to be an insurer of the operation of a motor vehicle for its operating life which may go on for years and through subsequent sales having nothing to do with the original sale to the original purchaser. In fact what may be a due process corrective is provided to the broadest implications of the removal of privity requirements when an issue such as this is raised, i.e., subsequent purchaser from dealer does not get warranty booklet and thus disclaims limitations on implied warranty. Thus in Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537 (2000), the court quoted from a federal case and said the following:
The implied warranty of merchantability holds merchants liable to the extent their goods fail to conform to the ordinary purpose for which they are supposed to be used. UCC § 2-314. A breach of this warranty occurs, if at all, at the time of sale . . . or when they leave the manufacturer's control . . . Thus, the critical question with regard to this warranty is what the ordinary purpose for which the goods were to be used and were the goods suited for that purpose when they left (the defendant's control). This is properly a question for the jury.
Id. pp. 545-49. (Emphasis by this court.)
Of course the burden is on the plaintiff to show that at the time of sale by the "merchant" manufacturer the engine was in a defective state. To say this is a question of fact that should be left to the jury at this juncture will not suffice. As previously discussed no expert evidence has been presented to show a latent defect. The plaintiff has merely provided a collection of bills which have nothing to do with engine condition or repair prior to the date of engine failure and previously discussed deposition testimony of an acrid smell noticed months before the engine broke down. At the time of the engine breakdown the car had been driven 75,000 in a car that was about four years old. The court at the summary judgment stage cannot resort to speculation as to whether all things being equal, absent any evidence of how this vehicle was used and whether that might have an effect on the engine's gasket, a jury question is presented on the engine breakdown claim.
As to the implied warranty claim involving the steering roll and wheel bearings, it should first be observed that the steering roll was replaced at over 60,000 miles — query on what basis can the court conclude the car, as to this undefined part, was defective at the time it left the manufacturer's control. As to both this latter item and the wheel bearing which was replaced at almost 46,000 miles there was no compliance with § 42a-2-607(3) which requires notice to Subaru within a reasonable time of discovery of a defect. The notice came with the litigation which was commenced in April 2003. Even apart from these observations as to the wheel bearing and the steering roll no expert evidence is presented to show a defect at the time of sale. All that has been offered in a response to interrogatories by Subaru to the effect that it recommends that wheel bearings for the model that is the subject of this suit be other than those originally manufactured or installed. But this "admission" had to be at least five years after the car was first sold and indeed at some time during the litigation and thus over five years from the time of original sale. The court cannot guess at to the average safe life expectancy of this part, whether the recommendation was made out of an excess of caution, whether there was a recall of the product, or whether the recommendation was based on a desire to obtain merely longer use (without the need for replacement) than would be possible with the original wheel bearings which otherwise might be perfectly satisfactory by industry standards. The second count is dismissed.
(3)
The third count claims a violation of the Connecticut Unfair Trade Practices Act (§§ 42-110a et seq.) "as made applicable by Conn. General Statutes § 42-227h." The latter subsection says that "(h) a violation of any of the provision of this section shall be deemed an unfair or deceptive trade practice under chapter 735a" (i.e., § 42-110a).
The plaintiff claims Subaru violated § 42-227 because pursuant to the statute the plaintiff specifically requested in writing whether or not Subaru "had issued any service bulletin or an Adjustment Program on: engine train warranty, engine block/gasket warranty" and "despite the explicit request (Subaru) to date (has) refused, neglected or failed to provide any information."
As regards this claim, the defendant submitted an affidavit from its service operations manager. Attached to the affidavit is a copy of a warranty booklet applicable to the subject 1998 Forester. The affidavit of Mr. Vespertino states:
3. . . . Other than the warranties made in the Subaru Warranty Booklet Subaru did not make any other warranties with respect to the 1998 Forester.
4. Subaru does not have a service or warranty extension program for either the engine, wheel bearings, or the steering roll of the 1998 Forester.
5. In 2004, Subaru issued a service bulletin entitled "WWP 99 Service Program, February 2004." The WWP 99 Service Program applies to certain Subaru vehicle of model years 1999 through 2002. It does not apply to the 1998 Forester owned by Lucas. The engines installed in the 1998 Foresters, including the one purchased by Lucas, are different from the engines installed in subsequent model year Foresters which are subject to the WWP 99 Service Program.
The plaintiff has submitted no counter affidavit or documentation to indicate that an adjustment program regarding warranties was instituted by Subaru regarding 1998 Foresters.
Section 42-227 is entitled "Automobile manufacturers' warranty adjustment program." An adjustment program is defined in subsection (4).
(4) "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.
The plaintiff argues that § 42-227 does not differentiate between those cases where an adjustment program exist and those where it does not exist. It is the prescribed statutory duty for (Subaru) to reply to the consumer.
This observation finds no support in the language of the statute. After defining an adjustment program the statute contains the following prescriptive sections:
(b) 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.
(c) 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 conditions in the motor vehicle which is covered by an adjustment program and the principal terms and conditions of the adjustment program.
(d) Each manufacturer either directly or through its authorized agent shall cause to be given to the original purchaser of a new motor vehicle, at the time of purchase, a notice outlining the provisions of this section and the rights and remedies provided hereunder. The written notice shall be deemed sufficient if done in substantially the following form:
"Sometimes (insert manufacturer's name) offers a special adjustment program to pay all or part of the cost of certain repairs beyond the terms of the warranty. Check with your dealer to determine whether any adjustment program is applicable to your motor vehicle."
(e) 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.
(f) 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.
If there is no adjustment program in existence the manufacturer has no duty to advise the consumer of its non-existence and the consumer cannot claim any rights under a program that is non-existent.
The act is not violated if the consumer just asks if such a program exists and receives no response when in fact no such program exists. It just will not suffice to say that an act requiring a manufacturer to inform a consumer of an adjustment program is turned into a duty to reply to a consumer inquiry as to whether such a program exists in a situation where it does not. The purpose of the act was to require manufacturers to inform consumers, for good reason, of the existence of adjustment programs; it should not be turned into a CUTPA windfall for consumers who merely inquire as to whether such a program is in effect.
The plaintiff also argues that a WWP 99 Service Program existed for the model years 1999 through 2002 and then says Subaru asserts "without saying how the 1998 engine differs from engines installed in subsequent model years." But the burden is on the plaintiff to show the engines are the same and a question of fact is not raised by a bald assertion that such a question exists without evidence or documentation to support the assertion. Furthermore, even if the engines are the "same" the point is Subaru did not institute an adjustment program for the 1998 model year.
The only basis for the CUTPA violation is the asserted violation of § 42-227 which cannot be found. Beyond that there can be no CUTPA violation, no basis for it is presented. It can hardly be argued mere failure to respond to a consumer inquiry as to whether such an adjustment program exists violates CUTPA — there is hardly a reliance factor or unjustly denied expectations argument to be made, since, as just observed, § 42-227 has not been violated.
In any event there is no occasion for the court to consider whether an "ascertainable loss of money or property" or "actual damages" can be found under CUTPA or cases like Criscuolo v. Shaheen, 46 Conn.Sup. 53 (1999) ( 24 Conn. L. Rptr. 307), because a predicate for their consideration is a determination that an unfair or deceptive act has occurred — that has not been shown and the third count is dismissed.
The motion for summary judgment filed by Subaru is granted.
Corradino, Judge