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finding disclaimer conspicuous when written in capital letters
Summary of this case from Krasniqi v. A Better Way Wholesale Autos, Inc.Opinion
No. CV 01-0804335
August 13, 2008
MEMORANDUM OF DECISION
Plaintiff, Mark Newkirk (hereinafter also "Mark") at all times relevant hereto has been the principal and owner of the plaintiff Newkirk Express, LLC (hereinafter also "Newkirk Express").
The plaintiffs initiated this action by complaint dated December 13, 2000 with a Revised Complaint dated July 3, 2003 against the defendant Freightliner of Hartford, Inc. (hereinafter also "Freightliner") claiming in count one, breach of contract, count two claiming a breach of the implied warranties of merchantability and fitness for purpose, count three misrepresentation and count four, violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). Trial was held before this Court on May 21, 2008, June 4, 2008 and June 5, 2008. Briefs and reply briefs were filed by the parties. Briefs and reply briefs were filed by the parties on or about July 18, 2008, July 25, 2008, August 1, 2008 and August 8, 2008.
FACTS
The gravamen of the plaintiffs' complaint is that on February 21, 1997, Freightliner sold to Newkirk Express a commercial trucking vehicle, tractor trailer, being a used freightliner 1993 for a base cash price of $30,000 and with other charges obligated Newkirk Express to a total purchase price of $44,617.99. Subsequent to the date of purchase Newkirk Express obtained title documentation evidencing the fact that the vehicle sold to Newkirk Express by Freightliner was not a 1993 vehicle as described but was in fact a 1991 vehicle. The first count, therefore, is for breach of contract. The second count claims that the vehicle repeatedly broke down and eventually failed completely having been operated, repaired and maintained in the normal course of business, and because it was a 1991 freightliner as opposed to Freightliner's alleged sale of a 1993 freightliner, Freightliner breached the implied warranties of merchantability and fitness for purpose. The plaintiffs thereafter claim misrepresentation and violation of CUTPA.
The plaintiffs' claim as damages is the difference in value between a 1993 vehicle and a 1991 vehicle. Further, there was not only an implied warranty of merchantability and fitness for purpose, but there was an express warranty of 100,000 miles beyond the mileage at the time of the sale. Plaintiffs claim that certain repairs should have been paid by Freightliner, and the 1991 freightliner eventually had to be abandoned because of its inadequacy.
Accordingly, the issues appear to be two in number. One is whether or not the plaintiffs were misled into buying a 1991 freightliner when they had been told that it was a 1993 freightliner, and secondly, whether the condition of the 1991 freightliner was sufficiently poor to result in breached warranties.
STANDARD OF REVIEW
It is well settled law in Connecticut that in a contract action, the burden upon the plaintiff is to prove his/its allegations by a mere preponderance of the evidence. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535 (1999). Also, see Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968), which held that "The plaintiff in a civil case sustain[s] his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induce[s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true." (Emphasis added). This is also known as proof by a preponderance of the evidence.
Additionally, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the Exhibits in this case
ISSUES AND FINDINGS 1. Credibility:
This Court finds that all of the witnesses, two for the plaintiffs and two for the defendant were honest in the way they testified. However, these incidents that are the subject of this action were approximately ten or eleven years ago, and memories can fade. Mark's testimony at times was contradictory and vague due to his less than adequate memory. In contrast defendant's witnesses were more credible. In this case, also, the exhibits appear to have more importance than the testimony.
2. Did the Plaintiffs Have a Right to Rely on the Documents Showing that the Vehicle in Question was a 1993 Vehicle in Light of Other Documents that Indicated it was a 1991 Vehicle?
It is well settled law that parties are entitled to enter into a contract, but even though the contract terms may be unfavorable to one party, the Court cannot modify the contract for that reason.
In order to determine the answer to this question the Court will now review the documents admitted into evidence, some documents at the closing of the sale and some subsequent thereto, as to whether they indicate a model of 1993 or a model of 1991. To do that the Court will divide the documents into two categories as follows:
Certificate of Title Conn. Bill
1993 1991 Plaintiffs' Exhibit 2, Retail Plaintiffs' Exhibits 6 7: Select Installment Contract with Plaintiff, Limited Coverage Registration Mercedes Benz Credit Corporation Including Warranty ("MBCC") which provided the financing and signed 2/21/97 by plaintiff and Kenneth Wilson. Vice President of Freightliner acting on behalf of MBCC. Plaintiffs' Exhibit 8: Odometer Plaintiffs' Exhibit 3, Certificate Disclosure Statement of Insurance Plaintiffs' Exhibit 4, Declarations Plaintiffs' Exhibit 9: of for a Trucker (Insurance Policy) Plaintiffs' Exhibit 5, Temporary Loan Plaintiffs' Exhibit 10: Vehicle (different VIN #) Application for Registration Plaintiffs' Exhibit 11: Power of Attorney Plaintiffs' Exhibit 12: Certificate of Title Plaintiffs' Exhibits 13 14: of Sale (in duplicate) Plaintiffs' Exhibit 16: Invoice of 4/19/97Plaintiffs' Exhibit 17: Invoice of 6/9/97 from Triple D Transportation is when plaintiffs learned it was a 1991 vehicle. Accordingly, there is no point in reviewing any documents dated subsequent to 6/9/97 because there is no way the plaintiffs could have been misled after that date.
It is true that at the closing of the sale on February 21, 1997, the documents had been prepared by Freightliner and signed by the plaintiffs. However, there were three documents, plaintiffs' 2, 3 and 4 at the time of the closing which indicated a 1993 vehicle. Plaintiffs' Exhibit 5, temporary loan of a motor vehicle, has a different VIN # so is irrelevant.
Mark claimed he did not receive copies of most of the closing documents at the time of closing. However, in order to register the truck, he would have needed originals of the certificate of title, registration form, the odometer statement and the bill of sale, all of which identified the truck as a 1991 model. Additionally, all invoices for repair submitted by plaintiff during the trial do not reflect a 1993 model year.
In contrast to the three documents aforementioned there are eight documents setting forth the year of the vehicle as 1991, and most of these were dated the date of the closing. There was some testimony that the wrong year was pointed out to Kenneth Wilson, the Vice President of Freightliner who indicated it was a typographical error, but apparently it was never corrected. Nonetheless, it is difficult for this Court to believe that the plaintiffs were misled as to the year of the vehicle when there were eight documents showing the year 1991 as opposed to only three showing the year 1993. The plaintiffs have the burden of showing they were misled by the documents at the closing, and they have not met that burden by a preponderance of the evidence.
Admittedly Mr. Wilson and his partner, Lindy Bigliazzi, had an advantage over the plaintiffs. Mr. Wilson, who was present at the closing and his partner had twelve years of experience in their business having sold 5,500 similar or the same type of trucks over the twelve-year period. Mark was admittedly new at this process, but that does not excuse him from not reading the closing documents which he has admitted. The year 1991 was there for him to see.
The Court is well aware of the principle that it is not the quantity of the evidence but rather the quality of the evidence that is important. However, for the reasons stated, the quantity of the documents showing a 1991 vehicle is important.
2. Did Freightliner Breach its Warranties to the Plaintiffs?
The short answer is No.
To answer this question the Court makes reference to plaintiffs' Exhibit 6 (the express warranty and the disclaimer of implied warranty and consequential damages) and which was given to the plaintiffs and stares, in pertinent part:
Seller has inspected and serviced the Vehicle prior to delivery. Seller will provide Limited Coverage on Covered Components of the Vehicle for twelve months or 100,000 miles, whichever occurs first, from the date and mileage at time of purchase. Subject to the Terms and Conditions on the reverse, the Coverage will provide reimbursement (in excess of any deductible amount), of parts and labor costs for covered repairs on the engine, transmission, rear axles, cab structure and sheet metal panels, frame rails and cross members, as more specifically described on the reverse side of this certificate.
The reverse side of the warranty as to deductibles states that the purchaser is responsible for the first $50 of each repair. It also states that the warranty given is exclusive and in lieu of all other warranties whether written, oral, or implied including, but not limited to, any warranty of merchantability or fitness for purpose.
Conn. Gen. Stat. § 42a-2-316 provides in pertinent part:
"(2) subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness, the exclusion must be by a writing and conspicuous . . ." Subsection (3) is not relevant.
That is exactly what the defendant Freightliner did. In bold letters and capital letters on the reverse side of Plaintiff's Exhibit 7 the following is stated:
"THE FOREGOING LIMITED COVERAGE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE." Conn. Gen. Stat. § 42a-2-719 states in pertinent part: "(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable . . ."
Assuming arguendo that there was an implied warranty of merchantability, which the Court does not find, the plaintiffs, nevertheless, did not submit any evidence that the truck was not of merchantable quality. The plaintiff, Mark, used the vehicle until it failed in June of 1998. At that point, which was approximately sixteen months from the date of purchase, the plaintiffs had earned nearly $110,000.00 and put approximately 184,000 miles on the truck, the latter being well beyond the 100,000 mile warranty limitation in the express warranty. Further, the evidence shows that as of November 19, 1997, the 100,000 mileage limitation had been reached, and the vehicle did not fail until June 1998.
Also, in Plaintiff's Exhibit 7, the following language is in bold and in all capital letters: "FREIGHTLINER WILL NOT BE LIABLE FOR . . . SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING . . . LOSS OF TIME, WORK, PROFITS OR ANTICIPATED PROFITS . . . LOSS OF VEHICLE USE . . ."
Under these paragraphs, the plaintiff is limited to the express warranty and cannot claim lost time, work, profits or anticipated profits or loss of vehicle use.
Plaintiffs' Exhibit 8, the Odometer Disclosure Statement, shows at the time of purchase on February 21, 1997, the mileage was 559,801. Therefore, the express warranty expired on February 21, 1998 or at 659,801 miles, whichever occurred first. Based upon the documents in evidence, the only possible repairs under the express warranty are as follows: $ 22.01
The invoice is plaintiffs' Exhibit 18, but the work done is not shown, so this amount cannot be included.
The remaining invoices are either beyond the one-year time limitation or there is no indication as to the mileage. In addition, some of the invoices are clearly not covered under the warranty.
Further, and most important, the plaintiffs did not submit expert testimony as to what was included in the express warranty. Therefore, there is not sufficient evidence for the Court to even find that the $435 is due.
3. Is the Doctrine of Equitable Estoppel a valid claim against the defendant?
The short answer is No.
Plaintiff cites Bozzi v. Bozzi, 177 Conn. 232, 242 (1979), as follows:
Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done.
This court does not believe that the defendant pointed out a row of trucks and said that they were 1993 models. Further, whatever might have been said in the documents, three in number, as indicated, that the vehicle was a 1993 model, was not intended or calculated to induce another to believe, in this case the plaintiffs, that it was a 1993 vehicle. There was no intention to mislead or calculation to mislead the plaintiffs. Further, there were eight documents showing the year 1991 as opposed to only three showing the year 1993. If the defendant had intended or calculated to induce the plaintiffs to believe that the vehicle was a 1993 vehicle, then it certainly wouldn't have eight documents, which the plaintiff, Mark, should have read, showing it to be a 1991 vehicle. If the plaintiffs relied on the 1993 documents when the 1991 documents were clearly provided to them, then their reliance was misplaced.
4. Did the defendant meet its burden of proof on its counterclaim seeking reformation of the contract between the parties?
The short answer is No.
As stated by the defendant:
"A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of a mutual mistake, or a mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other." Lopinto v. Haines, 185 Conn. 527, 531 (1981). "The standard of proof is clear, substantial and convincing." Id. at 534.
The Court finds that this was not a mutual mistake, that if there was a mistake it was on the part of the plaintiff, Mark, but it was not coupled with actual or constructive fraud or inequitable conduct on the part of the other. There was no inequitable conduct on the part of the defendant. Accordingly, defendant has not met its burden of proof by clear, substantial and convincing evidence that it is entitled to reformation of the contract. Therefore, on the counterclaim, judgment is entered for the plaintiffs.
CONCLUSION
For the foregoing reasons, judgment is entered for the defendant on all counts of the complaint. Judgment is entered for the plaintiffs on the defendant's counterclaim. Note: The Court would like to thank both counsel for their professionalism, attention to detail, and their strong efforts on behalf of their clients.
The Court is not persuaded by the claims of misrepresentation, violation of CUTPA and breach of contract. Assuming arguendo that there was a breach of contract, it would not be violative of any part of the "cigarette rule," and, therefore, there is no violation of CUTPA.