CECILIA M. ALTONAGA, District Judge.
Honda manufactures motorcycles for sale to the public. (See Am. Compl. ¶ 8). One such motorcycle is the Honda Gold Wing, introduced to the market in 1974 and modified in 2001 when model GL 1800 was introduced. (See id. ¶ 9). The Gold Wing GL 1800 ("GL 1800") contains a five-speed manual transmission that uses a sequential gearbox. (See id. ¶ 10). The GL 1800 is marketed as a luxury touring motorcycle and is referred to as a "gentle giant" that offers an "unbelievably smooth, quiet[,] and vibration[-]free" ride. (Id. ¶ 13). Among other boasts, Honda states the GL 1800 sets "the touring motorcycle standard of the world," and is "in a class of its own." (Id.).
However, the GL 1800 suffers from defective design and machining, causing the transmission to suddenly drop gears on its own — a phenomenon known as "ghost shifting." (Id. ¶ 14). This defect in the GL 1800 makes it dangerous and unsuitable for the long-distance riding for which the motorcycle is advertised. (See id. ¶ 15).
Honda has been aware of the GL 1800's defective condition since the time of manufacture. (See id. ¶ 16). Additionally, numerous GL 1800 owners have filed complaints with the National Highway Traffic Safety Administration ("NHTSA") regarding the ghost shifting problem. (See id.). Rather than fix the problem, Honda concealed the defect by assigning the blame for the deficiency on "bent shift forks and other alleged causes which are either symptoms of or unrelated to the cause of the actual defect." (Id. ¶ 42). Even after contacting Honda and its authorized repair stores to complain about the issues with the GL 1800, Plaintiffs were told the motorcycles were not defective. (See id. ¶ 18). Honda failed to disclose and concealed the true nature of the defect — poor design and/or machining of the motorcycle's gears. (See id. ¶ 19).
Prior to making their decision to purchase GL 1800s, Plaintiffs believed the motorcycle was suitable for long-distance touring. (See id. ¶¶ 24, 34). In April 2008, Lucci purchased his pre-owned 2001 GL 1800 from J.R. Harris Trikes Sales of Inverness, an authorized Honda dealership.
The factory warranty
Shortly after Aprigliano purchased his GL 1800, he began experiencing "ghost shifting difficulties" routinely while using his motorcycle, especially while riding in fifth gear. (Am. Compl. ¶ 29). In December 2011, Aprigliano took his GL 1800 to Seminole PowerSports for repair and was advised by a mechanic that there are often GL 1800s in the repair shop with the same problem due to a known manufacturing and design defect in the GL 1800 transmission. (See id. ¶ 30). "Honda informed Aprigliano that the factory warranty, even if in effect, would not have covered the repair." (Id. ¶ 31). After several months of repair to the GL 1800's transmission, Aprigliano received his motorcycle from the mechanic and paid him $3,361.53 for the repairs. (See id. ¶ 32). Honda refused to reimburse Aprigliano for the repair costs. (See id.).
Lucci also experienced "ghost shifting difficulties" with his GL 1800, most often while riding in fifth gear. (Id. ¶ 38). In January 2012, Lucci took his GL 1800 to Seminole PowerSports to have the transmission repaired. (See id. ¶ 39). A mechanic informed Lucci there were other GL 1800s experiencing the same problem. (See id.). Lucci paid $3,098.06 for repair costs related to the transmission. (See id. ¶ 40). To this day, Honda has not addressed the defect in the GL 1800 and has failed to warn its consumers about the existence of the defect or recall the vehicle. (See id. ¶ 44).
Plaintiffs seek monetary compensation for themselves and a class of others similarly situated for the monies paid, the diminution in value, and the costs of repairing their GL 1800s. (See id. 23). Specifically excluded from this proposed class are individuals who suffered personal injury,
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although this pleading standard "does not require `detailed factual allegations,' ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). To meet this "plausibility standard," a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
Honda argues Counts I, II, and III are barred by Florida's economic loss rule. (See Mot. 8-9). As to Count I, Plaintiffs respond that the economic loss rule does not apply to situations where the defect at issue poses a serious risk of physical injury or death. (See Resp. 7). Regarding Counts II and III, Plaintiffs contend the economic loss rule does not apply to claims of negligent misrepresentation and negligent failure to warn because "these torts are independent of a claim for negligence in the design or manufacture [of] the Gold Wing." (Id. 8).
"[T]he economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses." Tiara Condo. Ass'n v. Marsh & McLennan Cos. Inc., 110 So.3d 399, 401 (Fla.2013) (citation omitted). The Florida Supreme Court has defined economic losses as "damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits — without any claim of personal injury or damage to other property." Id. (citation and internal quotation marks omitted). The result is that "`a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.'" Id. at 404-05 (quoting Fla. Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899, 901 (Fla.1987)).
Although the economic loss rule has been used in both the products liability context and in cases where the parties were in contractual privity, the Florida Supreme Court recently declared "the economic loss rule applies only in the products liability context." Tiara, 110 So.3d at 407. In Tiara, the Florida Supreme Court discussed the history of the economic loss rule, from its products liability roots in Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (Cal.1965), and East River, 476 U.S. 858, 106 S.Ct. 2295, to its later expansion to contractual privity cases. See Tiara, 110 So.3d at 403-07. The Court noted,
Id. at 405 (quoting Moransais v. Heathman, 744 So.2d 973, 980 (Fla.1999) (internal quotation marks and brackets omitted)). Thus, the Court receded from its prior rulings "to the extent that they have applied the economic loss rule to cases other than products liability." Id. at 407.
The Florida Supreme Court recognized strict products liability as a cause of action in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976). To establish a claim for strict liability in the products liability context, the plaintiff is required to show an injury to someone or something other than the product itself. See Jacobs v. Osmose, Inc., No. 01-944-civ, 2002 WL 34241682, at *2 (S.D.Fla. Jan. 3, 2002). Clearly, this case arises in the products liability context. Plaintiffs' allegations all revolve around an alleged defect in the manufacture and design of motorcycles placed in the stream of commerce by Honda, a manufacturer and distributor of consumer goods. (See Am. Compl. ¶ 2).
However, Plaintiffs do not allege they suffered a personal injury or an injury to property other than "injury" to their GL 1800s. (See generally id.). The only damages allegedly sustained by Plaintiffs are economic losses related to the loss of value to their motorcycles, the purchase price of their motorcycles, the loss of use of their motorcycles, and the costs associated with repairing the motorcycles. (See id. ¶¶ 32, 40, 71, 76, 84, 86, 92). Plaintiffs may not recover these purely economic losses under a strict liability theory. See Pycsa Panama, S.A. v. Tensar Earth Techs.,
Plaintiffs argue the economic loss rule does not require dismissal of their tort claims even though Plaintiffs' GL 1800s have not injured people or damaged other property. (See Resp. 7). Plaintiffs cite Pulte Home Corp., Inc. v. Ply Gem Indus., Inc., 804 F.Supp. 1471 (M.D.Fla.1992), for the contention that the economic loss rule does not apply to situations where the allegedly defective product is "substantially likely to result in personal injury or damage to other property." (Resp. 7 (citing Pulte Home, 804 F.Supp. at 1482)). Plaintiffs misconstrue the meaning of the court's holding. In Pulte Home, the court specifically noted, "[t]he weight of authority states that ... economic loss claims are founded in contract law and warranty law rather th[a]n in tort law." Pulte Home, 804 F.Supp. at 1488 (citations omitted). The court went on to say, "[i]n order for the [c]ourt to find damage beyond economic loss, Pulte will have to prove other damages or personal injury." Id. at 1489 (emphasis added). Although the court denied summary judgment on the issues relating to economic loss and strict liability, the court did so because it was unable to make a determination of damages based on the dearth of facts presented, not because of some substantial hazard inherent in the product. See id.
Furthermore, in Pulte Home, the plaintiffs alleged the defendant's faulty product had caused multiple injuries to other people as a direct result of the alleged defect. See id. at 1482. In contrast, Plaintiffs' allegations contain no mention of any damages to people or property besides the GL 1800s themselves, further distinguishing this case from Pulte Home. The weight of authority requires the Court dismiss Count I as barred by the economic loss rule. See Jacobs, 2002 WL 34241682, at *2 (finding the plaintiff failed to state a cause of action in strict liability where the plaintiff alleged the defendants' product contained chemicals that caused severe injuries, but failed to allege injury to himself or any other property).
Plaintiffs' claims for negligent misrepresentation fare no better. The economic loss rule has been interpreted as "a broad bar to tort claims for damage solely to the product itself." Turbomeca, S.A. v. Era Helicopters LLC, 536 F.3d 351, 357 (5th Cir.2008). Recently, negligent misrepresentation claims were barred by the economic loss rule in the products liability context. See Burns v. Winnebago Indus., Inc., No. 8:13-cv-1427-T-24 MAP, 2013 WL 4437246, at *4 (M.D.Fla. Aug. 16, 2013) (dismissing claims of negligent misrepresentation and fraudulent inducement against defendants, a manufacturer of recreational vehicles and the manufacturer of the vehicle's chassis, where it was alleged the defendants sold the plaintiff a product they knew was defective). Usually claims for negligent misrepresentation are barred by the economic loss rule where, as here, there are claims for breach of warranty alongside tort claims and the allegations contained in both are similar.
Here, Plaintiffs' cause of action for negligent misrepresentation is dependent on the same fundamental allegations contained in the breach of warranty claim — specifically, that Honda breached the terms of its Warranties by providing Plaintiffs with defective motorcycles and failing to repair or replace those motorcycles. As a result, Plaintiffs' claim in Count II is also barred by the economic loss rule. See, e.g., HTC Leleu Family Trust v. Piper Aircraft, Inc., No. 1:12-cv-21118-KMM, 2012 WL 4982633, at *4 (S.D.Fla. Oct. 17, 2012) (finding plaintiff's claims for fraud in the inducement, fraudulent concealment, and negligent misrepresentation were barred by the economic loss rule where the only damages alleged were purely economic losses and the allegations in the complaint in support of those claims all related to the question of "whether [d]efendant breached the agreement by providing a defective [product].").
Plaintiffs argue the Florida Supreme Court's decision in Tiara left undisturbed the exception to the products liability economic loss rule for "independent torts such as negligent misrepresentation." (Resp. 9). The negligent misrepresentation exception to the economic loss rule has its origins in PK Ventures, Inc. v. Raymond James & Assocs., Inc., 690 So.2d 1296 (1997), wherein the Florida Supreme Court held that such an exception to the economic loss rule existed for the buyer of residential property against the seller's real estate agent. See id. at 1296-97. Thus, it appears the exception itself developed against the backdrop of the contractual privity economic loss rule — a fact that may explain the reason Plaintiffs do not cite a single case applying the negligent misrepresentation exception to the economic loss rule in the products liability context.
The Court finds the logic of Burns sounder. After holding the exceptions to the economic loss rule for fraudulent inducement and negligent misrepresentation did not apply in the products liability context post-Tiara, the court stated:
Burns, 2013 WL 4437246, at *4. Given the Tiara court's resounding approval of the economic loss rule in the products liability context, the Court likewise concludes the economic loss rule bars Plaintiffs' claim for negligent misrepresentation under the facts alleged.
The claim for negligent failure to warn is similarly barred by the economic loss rule. See Barnext Offshore, Ltd. v. Ferretti Group USA, Inc., No. 10-23869-civ, 2012 WL 1570057, at *4 (S.D.Fla. May 2, 2012) (finding post-sale failure to warn claims are limited by the economic loss rule); accord Turbomeca, S.A., 536 F.3d at 357. Extending the logic of East River to
In support of the viability of Counts II and III, Plaintiffs cite to Nicor Supply Ships Assocs. v. General Motors Corp., 876 F.2d 501 (5th Cir.1989), and Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813 (11th Cir.1984). Neither of these cases supports Plaintiffs' claims. Without opining as to the viability of a negligent failure to warn claim for a defect discovered by the manufacturer some time after the manufacture of a defective product, the court in Nicor Supply Ships affirmed the district court's dismissal of the plaintiff's claim for negligent failure to warn. See Nicor Supply Ships, 876 F.2d at 505. The Fifth Circuit went on to say:
Id., 876 F.2d at 504. Miller Industries is even less helpful to Plaintiffs, as that case was decided before the Supreme Court's decision in East River, and relied heavily on a Fifth Circuit case, Jig Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F.2d 171 (5th Cir.1975), which was overruled by East River. See Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925, 927 (5th Cir.1987) ("The [Supreme] Court ... effectively overruled our own law on the subject articulated in [Jig Third Corp.]...."). For these reasons, the Court is not persuaded by Plaintiffs' arguments.
Honda maintains Count IV should be dismissed because Plaintiffs have not alleged the manifestation of a defect during the warranty period, Honda did not make any express warranties beyond the factory warranty, and Plaintiffs do not allege they provided Honda with notice of the alleged defect. (See Mot. 5-7). Additionally, Honda contends Lucci's claim in Count IV is barred by the statute of limitations. (See id. 5-6). According to Plaintiffs, their claims for breach of an express warranty are within the five-year statute of limitations provided by Florida law. (See Resp. 3). Plaintiffs also argue the advertising materials disseminated by Honda regarding the GL 1800 create express warranties by affirmation that Honda breached. (See id. 4-5).
"A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 525, 112 S.Ct. 2608,
Here, the express limited warranties were intended to benefit subsequent GL 1800 owners. However, the terms of the 1991 Honda Warranties and 2008 Honda Warranties limit the remedies available to GL 1800 owners to the reparation or replacement of defective parts for a three-year period. Plaintiffs have asserted they purchased their GL 1800s after the factory warranties issued by Honda had expired. Plaintiffs cannot plead they experienced any defect during the express warranty periods, much less that they presented their motorcycles to Honda for repair during the warranty periods, as they clearly lacked ownership interests in the motorcycles during the warranty periods.
With regard to the creation of express warranties, "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Fla. Stat. § 672.313(1)(a). Statements made in promotional materials, advertisements, and brochures may be sufficient to create an express warranty if the buyer relies on those statements in making his purchase. See State Farm Ins. Co. v. Nu Prime Roll-A-Way of Miami, Inc., 557 So.2d 107, 108 (Fla. 3d DCA 1990) ("A seller's representations in newspaper advertisements, catalogues, circulars, etc., may become a part of the contract of sale and constitute an express warranty for breach of which the seller will be liable for damages to one who, in making the purchase, relies thereon to his injury." (citation omitted)). Yet, "an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." Fla. Stat. § 672.313(2). Indeed, mere puffery or sales talk is not sufficient to create an express warranty. See Carter Hawley Hale Stores, Inc. v. Conley, 372 So.2d 965, 969 (Fla. 3d DCA 1979) ("[C]ertain affirmations of the seller amount only to `puffing' and do not give rise to warranties, e.g., the `nicest car in town.'"); see also Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (finding a seller's representations that a building was "a very good building" and "an excellent deal" were "clearly statements of opinion" and not actionable).
The statements and representations allegedly made by Honda regarding the GL 1800s are textbook puffery and mere opinion. The majority of the representations alleged by Plaintiffs — such as the GL 1800 is "in a class of its own" and "the world's ultimate touring motorcycle" (Am. Compl. ¶ 13) — equate to boastful statements of opinion and sales talk. Honda's representations related to its "Performance First" campaign (id.) are merely aspirational goals and not statements of fact. The only arguably close statement presented by Plaintiffs is that "Honda refers to the GL 1800 as a `gentle giant' that is `unbelievably smooth, quiet[,] and vibration[-]free.'" (Id.). It appears obvious that no motorcycle can be completely free of vibration while in motion on a roadway, and thus it seems incredulous that any buyer would rely on the veracity of that statement in making a purchase. Even more fatal to the claim, the adverb "unbelievably" qualifies the descriptive adjectives "smooth," "quiet," and "vibration-free," placing the statement squarely in the realm of opinion. How "unbelievably vibration-free" a motorcycle is or is not cannot be quantified, as it is completely subjective to each individual rider. Consequently, these representations cannot form the basis of an express warranty between Honda and Plaintiffs.
Honda contends Count V should be dismissed because Plaintiffs have not pleaded the elements of fraudulent concealment with the specificity required by Federal Rule of Civil Procedure 9(b). (See Mot. 10). Plaintiffs state they have adequately pleaded a cause of action of fraudulent concealment because the Amended Complaint sufficiently details the common schemes and practices of Honda over the
A complaint alleging fraud "must state with particularity the circumstances constituting fraud." FED.R. CIV. P. 9(b). To satisfy the requirements of Rule 9(b), the complaint must allege:
Brooks, 116 F.3d at 1371. This requires the plaintiff to "plead the who, what, when, where, and how" of the allegedly fraudulent statements or omissions, though the "specific facts related to the defendant's specific state of mind when the allegedly fraudulent statements were made" need only be alleged generally. Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.2008). To prevail on a claim for fraudulent concealment under Florida law:
Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 259 (Fla. 4th DCA 2012) (quoting R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010) (some alterations added)).
Plaintiffs rely on United States v. Prewett, No. 8:07-cv-1575-T-27MAP, 2008 WL 840540 (M.D.Fla. Mar. 28, 2008), for the contention that allegations related to a scheme of fraud spanning several years need not be pleaded with the same level of specificity as in other fraud cases, but may satisfy the requirements of Rule 9(b) where the complaint pleads "allegations containing descriptions of the scheme, common practices of the defendant, the nature and subject of misrepresentations, and examples of misrepresentations...." (Resp. 10 (citing Prewett, 2008 WL 840540 at *1)). Prewett is distinguishable.
Prewett involved defendants whose business prepared fraudulent tax returns for various individuals, partnerships, and corporations. See Prewett, 2008 WL 840540, at *1. In Prewett, the facts alleged by the plaintiff comprehensively detailed the defendants' tax return scheme. In particular, plaintiff alleged the place where the fraud occurred, that the defendants prepared false or fictitious tax returns to reduce their customers' wages for a specified period of time, that they did so to reduce the reported tax liability of their clients, and that they then claimed the omitted income on their clients' individual tax returns.
Here, Plaintiffs have not pleaded facts with the required level of specificity. Plaintiffs plead facts regarding the existence of a defect in the GL 1800's transmission, but fail to plead facts sufficient to establish Honda's knowledge and concealment of the defect, much less that Honda's actions amount to a scheme to defraud its customers. Although Plaintiffs assert "Honda failed to disclose and concealed the true nature of the defect" (Am. Compl. ¶ 19), Plaintiffs do not allege the specifics of Honda's purported scheme, the means Honda used to perpetrate the scheme, or specific facts indicating the existence of the alleged scheme. Regarding the complaints to the NHTSA and those posted on internet forums related to the ghost-shifting problem, which allegedly put Honda on notice of the defective condition of the GL 1800, Plaintiffs do not include a single date for any of these seemingly anonymous complaints. Without these dates, it is impossible for the Court to know whether these complaints put Honda on notice before or after Plaintiffs purchased their GL 1800s. This is particularly troubling considering Plaintiffs otherwise plead Honda's knowledge and concealment of the defect "upon information and belief." (Id. ¶¶ 16, 42). The specificity of the allegations regarding Plaintiffs' pleading of Honda's scheme of fraud pales in comparison to the detail exhibited by the plaintiff's pleading in Prewett. Thus, Plaintiffs have failed to adequately plead a claim for fraudulent concealment with the requisite level of specificity required by the Federal Rules of Civil Procedure.
Accordingly, it is
