Frederick Collins v. A–1 Auto Service, Inc. (2011)

MEMORANDUM OF DECISION

On January 19, 2011, the plaintiff, Frederick Collins, filed a two-count complaint alleging breach of warranty and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), against the defendant, A–1 Auto Service, Inc.¹ In the first count, the plaintiff alleges that on May 27, 2006, the plaintiff entered into a purchase agreement with the defendant for a 2006 Toyota Avalon 6. The plaintiff further alleges that six months later he noticed a “knocking” sound in the engine.   The plaintiff returned the vehicle to the defendant's service department repeatedly for routine maintenance and service and regularly advised the defendant of the engine's “knocking” sound.   The defendant consistently advised the plaintiff that the vehicle was performing as designed and had no defect.   Further, the plaintiff claims he was repeatedly told by the defendant's service department that the engine sound was normal and the “knocking” sound the plaintiff heard was the normal operation of the vehicle.   The sound continued to increase in noise level and duration.   The plaintiff continued to contact the defendant and complain, but was told there was no defect and that the vehicle's engine was operating normally as designed by Toyota.   In July of 2010, the plaintiff stopped at a New Jersey dealership with the car, and was told that the “knocking” sound was caused by a VVTI valve clacking due to a defective oil hose that had been recalled.   The plaintiff alleges in count two that the defendant's conduct in repeatedly denying the plaintiff's complaints of the “knocking” sound, and the failure to properly remedy the defective condition of the vehicle, was a deceptive and inappropriate act violative of CUTPA.

On June 3, 2011, the defendant filed a motion to strike count two of the plaintiff's amended complaint on the ground that the plaintiff has not alleged sufficient facts to allege a violation of CUTPA.   The defendant has submitted a memorandum of law in support of the motion.   On June 15, 2011, the plaintiff submitted a memorandum in opposition to the defendant's motion to strike.   On July 6, 2011, the defendant filed a reply memorandum in further support of its motion to strike, and, on July 29, 2011, the plaintiff filed a response.   This matter was heard at the short calendar on August 1, 2011.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).   In ruling on a motion to strike the court takes, “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).

The defendant argues that, in count two of the revised complaint, the plaintiff fails to state a claim for a violation of CUTPA because the plaintiff fails to allege any substantial aggravating factors to elevate his simple breach of warranty claim to a CUTPA violation.   The defendant asserts that the plaintiff merely incorporates by reference the allegations contained in count one for breach of warranty and asserts in a conclusory manner that the defendant's alleged failure to repair the “knocking” noise in the vehicle was a deceptive and inappropriate act, and, therefore, a CUTPA violation.   The defendant further argues that, even assuming the complaint alleged sufficient aggravating circumstances beyond a simple breach of warranty, the CUTPA claim is not viable and must be stricken because the plaintiff fails to allege he suffered an ascertainable loss from the alleged CUTPA violation.

The plaintiff argues in his memorandum in opposition to the defendant's motion to strike that he has sufficiently pleaded a cause of action for CUTPA and that the first count, incorporated by reference into the second count, pleads sufficient facts to establish aggravating circumstances.   The plaintiff contends that, within his complaint, he alleged multiple breaches of warranty which are aggravating circumstances sufficient to elevate a breach of warranty claim to the level of a CUTPA violation.   He argues that he has alleged aggravating circumstances in that the defendant not only failed repeatedly to acknowledge the defect despite the recall, but even tried to convince the plaintiff that there was no defect.   In its reply, the defendant argues that the plaintiff's allegations are insufficient aggravating factors to elevate his claim from a breach of warranty to a CUTPA claim because the warranty could have been breached only at the time of purchase.   In his response, the plaintiff counters that he has pleaded sufficient aggravating factors by alleging deception outside of the breach of warranty.

“General Statutes § 42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).  “Thus, a violation of CUTPA may be established by showing either an actual deceptive practice or a practice amounting to a violation of public policy.”  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).  “A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Internal quotation marks omitted.)  Naples v. Keystone Building and Development Corp., 295 Conn. 214, 227–28, 990 A.2d 326 (2010).

“In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital and Health Center, Inc., supra, 296 Conn. 351.  “A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 569 n.7, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

This court has emphasized that “the Appellate Court has stated both that [t]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation ․ and that not every contractual breach rises to the level of a CUTPA violation.”  (Citations omitted.)   Rosenfield v. Klein, Superior Court, judicial district of New Haven, Docket No. CV 08 5020892 (September 30, 2008, Zoarski, J.) ² Although “[t]here is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, the majority of courts [hold] that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances.”  (Internal quotation marks omitted.)  Greene v. Orsini, 50 Conn.Sup. 312, 315, 926 A.2d 708 (2007).   This court has previously utilized this standard.   See Bacchiocchi v. Altschuler, Superior Court, judicial district of New Haven, Docket No. CV 064018253 (February 23, 2007, Zoarski, J.);   Anatra v. Waldo, Superior Court, judicial district of New Haven, Docket No. CV 96 0390668 (September 11, 1997, Zoarski, J.); ³  Renz v. Milano Development Corp., Superior Court, judicial district of New Haven, Docket No. CV 94 0361546 (October 20, 1994, Zoarski, J.) (12 Conn. L. Rptr. 528).

When the judges of the Superior Court “have permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances ․ The question ․ becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation ․ Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims ․ and multiple breaches of contract.”  (Citations omitted;  internal quotation marks omitted.)   Eclipse Systems, Inc. v. Harrell, Superior Court, judicial district of Middlesex, Docket No. CV 10 6003857 (May 25, 2011, Wiese, J.) See In Energy Solutions, Inc. v. Realgy, LLC, 114 Conn.App. 262, 274, 969 A.2d 807 (2009).  (“[A] simple breach of contract does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances.”)  ‘A simple contract breach is not sufficient to establish a violation of CUTPA ․ where a count simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either, immoral, unethical, unscrupulous, or offensive to public policy.”  Eclipse Systems, Inc. v. Harrell, supra, Superior Court, Docket No. CV 10 6003857.

“[T]he general rule is that CUTPA liability should not be imposed where the defendant merely has not delivered on a promise (necessarily relating to future performance when made) made at the time the contract was entered into.”   (Internal quotation marks omitted.)  Janet–McComiskey v. Ramm Fence Systems, Inc., supra, Superior Court, Docket No. CV 10 6002771.  “[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation ․ when the aggravating factors present constitute more than a failure to deliver on a promise.”  (Citations omitted.)  Greene v. Orsini, supra, 50 Conn.Sup. 315.   Case law suggests that the plaintiff must allege that the defendant had “a present intent not to deliver on their representations to him or that those representations were intended to induce him.”  Id. In Janet–McComiskey v. Ramm Fence Systems Inc., supra, Superior Court, Docket No. CV 10 6002771, the court found, “[w]hile these allegations might demonstrate a breach of warranties ․ nowhere in the complaint does the plaintiff allege, nor can one infer, that the defendant made promises with the contemporaneous intent not to fulfill those promises.   Thus the court determines the allegations do not constitute aggravating factors or egregious conduct of the type sufficient to state a claim for violation of CUTPA, and the defendant's motion to strike ․ is granted.”

In the present case, the plaintiff's revised complaint incorporates the breach of warranty claim, and merely states that the defendant's repeated actions were, “a deceptive and inappropriate act in direct violation of the Connecticut Unfair Trade Practice Act.” The plaintiff's allegations are lacking facts to elevate the defendant's conduct from a breach of warranty claim to an immoral, unethical, unscrupulous or offensive trade practice that would violate CUTPA.   Although the plaintiff employs the word “deceptive” in count two, the plaintiff has failed to allege facts that indicate any substantial aggravating circumstances.   Notably, the plaintiff has not alleged that the defendant actually knew that his vehicle was defective despite their representations of no existing defect, or that the defendants knew the noise was as a result of a recalled defective oil hose.   There is no factual showing that the defendant's conduct met any of the criteria of the cigarette rule, that is conduct offensive to public policy, immoral, causing substantial injury to the public, or that there were any other aggravating circumstances surrounding the breach of warranty.

The plaintiff argues that he has sufficiently pleaded an ascertainable loss by alleging that his auto was different from the auto for which he bargained.   In its reply, the defendant argues that the plaintiff has not suffered any ascertainable loss because he is basing his CUTPA claim on damages occurring at the time of sale, months before the alleged acts.   In his response, the plaintiff counters by claiming that his ascertainable losses include emotional losses as well as out-of-pocket expenses.

General Statutes § 42–110g(a) provides in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action ․ to recover actual damages.”   (Emphasis added.)  “The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation.”  (Citation omitted;  internal quotation marks omitted.)  Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 593, 821 A.2d 283 (2003).  “For purposes of CUTPA, an ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established.”  Id. “That loss is ascertainable if it is measurable even though the precise amount of the loss is not known.   CUTPA is not designed to afford a remedy for trifles.”   Kelley v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 08 5021701 (August 25, 2009, Wilson, J.) (48 Conn. L. Rptr. 527).  “The ascertainable loss requirement may be met by proof that the plaintiff has purchased an item partially as a result of an unfair or deceptive practice or act and that the item is different from that for which he bargained.”  (Internal quotation marks omitted.)   National Loan Investors, L.P v. Reale, Superior Court, Docket No. CV 98 0577024 (December 3, 1998, Freed, J.) [23 Conn. L. Rptr. 454] See also Hinchcliffe v. American Motors Corp., 184 Conn. 607, 440 A.2d 810 (1981) (where court found buyers of motor vehicle established ascertainable loss because they purchased vehicle due to false representation that vehicle had four wheel drive, court found the defective vehicle was not that for which the plaintiffs bargained).

In the present case, the plaintiff does not allege any facts in his revised complaint that he suffered an ascertainable loss as a result of an unfair or deceptive trade practice.   The plaintiff does not allege that he received something different from that which he had bargained for as a result of the defendant's engaging in unfair or deceptive trade practice.   Further, the plaintiff does not allege that the defendant's representations were the basis of his conduct in purchasing the vehicle.   Paragraphs sixteen through eighteen of the first count of the revised complaint, alleging breach of warranty, asserts damages allegedly suffered by the plaintiff.   The plaintiff, however, has failed to incorporate those allegations into the second count which alleges a CUTPA violation.⁴  Taken on its face, count two fails to allege any ascertainable loss or any actual damage suffered by the plaintiff as a result of the defendant's actions.⁵

For the reasons discussed above, this court grants the defendant's motion to strike count two of the revised complaint because the plaintiff has not alleged sufficient aggravating circumstances nor has he alleged an ascertainable loss that would elevate his breach of contracts claim to a violation of CUTPA.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. The Edison case information sheet indicates two defendants in this case, A–1 Auto Service, Inc. and Toyota Motor Sales USA Inc. Appearances were filed on behalf of each defendant.   Neither the original summons nor the marshal's return refer to Toyota Motor Sales USA, Inc., however as this entity was later impleaded by way of A–1's motion to implead dated February 21, 2011.   On May 31, 2011, A–1 Auto's third-party complaint against Toyota Motor Sales, Inc., was withdrawn..  FN1. The Edison case information sheet indicates two defendants in this case, A–1 Auto Service, Inc. and Toyota Motor Sales USA Inc. Appearances were filed on behalf of each defendant.   Neither the original summons nor the marshal's return refer to Toyota Motor Sales USA, Inc., however as this entity was later impleaded by way of A–1's motion to implead dated February 21, 2011.   On May 31, 2011, A–1 Auto's third-party complaint against Toyota Motor Sales, Inc., was withdrawn.

FN2. The same analysis for breach of contract applies to a breach of warranty claim as evidenced in Superior Court cases.   See, e.g., Janet–McComiskey v. Ramm Fence Systems Inc., Superior Court, judicial district of Stamford–Norwalk (January 3, 2011, Adams, J.) (“the plaintiff's CUTPA claims are not based on a breach of contract, rather they are based on breaches of warranties under the UCC ․”)..  FN2. The same analysis for breach of contract applies to a breach of warranty claim as evidenced in Superior Court cases.   See, e.g., Janet–McComiskey v. Ramm Fence Systems Inc., Superior Court, judicial district of Stamford–Norwalk (January 3, 2011, Adams, J.) (“the plaintiff's CUTPA claims are not based on a breach of contract, rather they are based on breaches of warranties under the UCC ․”).

FN3. In Anatro v. Waldo, supra, Superior Court, Docket No. CV 96 0390668, the plaintiff incorporated their breach of contract claim into the CUTPA claim and alleged facts that this court found to merely go to the plaintiff's breach of contract claim.   Moreover, this court found that those facts did not “specifically [invoke] any of the three prongs of the cigarette rule” and therefore the allegations did not invoke application of the cigarette rule.  Id. “An allegation of an unfair act or practice as opposed to an allegation of a deceptive act or practice or one in violation of the law, invokes application of the cigarette rule.”  Id..  FN3. In Anatro v. Waldo, supra, Superior Court, Docket No. CV 96 0390668, the plaintiff incorporated their breach of contract claim into the CUTPA claim and alleged facts that this court found to merely go to the plaintiff's breach of contract claim.   Moreover, this court found that those facts did not “specifically [invoke] any of the three prongs of the cigarette rule” and therefore the allegations did not invoke application of the cigarette rule.  Id. “An allegation of an unfair act or practice as opposed to an allegation of a deceptive act or practice or one in violation of the law, invokes application of the cigarette rule.”  Id.

FN4. In his revised complaint, the plaintiff incorporated paragraphs one through fifteen of the first count's claim for breach of warranties into the claim for a CUTPA violation alleged in count two..  FN4. In his revised complaint, the plaintiff incorporated paragraphs one through fifteen of the first count's claim for breach of warranties into the claim for a CUTPA violation alleged in count two.

FN5. See Haven Health Center of Litchfield Hills, LLC v. Parente, Superior Court, judicial district of Litchfield, Docket No. CV 03 0091743 (July 25, 2005, Shaban, J.) (where defendant failed to incorporate allegations of damages into third count of revised counterclaim entitled “CUTPA” and accordingly, court granted plaintiff's motion to strike counterclaim)..  FN5. See Haven Health Center of Litchfield Hills, LLC v. Parente, Superior Court, judicial district of Litchfield, Docket No. CV 03 0091743 (July 25, 2005, Shaban, J.) (where defendant failed to incorporate allegations of damages into third count of revised counterclaim entitled “CUTPA” and accordingly, court granted plaintiff's motion to strike counterclaim).

Zoarski, Howard F., J.T.R.