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“Because the plaintiffs have not suffered a failure of the allegedly defective tires on their vehicles, their claim for breach of implied warranty of merchantability is legally insufficient and must be dismissed,” Judge John W. Herron wrote in Grant v. Bridgestone/Firestone Inc., a case in the Pennsylvania’s Court of Common Pleas’ Commerce Program. Herron, however, did allow a claim under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law to go forward because under the liberal construction of that law, the plaintiffs alleged an ascertainable loss. Herron said Pennsylvania law follows the majority rule requiring a plaintiff to establish that a product malfunctioned for a claim of implied warranty of merchantability to survive. The five plaintiffs did allege economic damages because they had to pay out of pocket to replace potentially dangerous tires, plaintiffs’ attorney Robert W. Sink of Fort Washington, Pa., said, and they were never reimbursed by Ford or Bridgestone/Firestone. But none of the plaintiffs ever experienced a blowout or tire tread problem and none alleged that they suffered any physical injuries. The plaintiffs claimed that they were trying to avoid accidents by replacing the tires last summer, when complaints about the separation of Bridgestone/Firestone tire treads and related injuries and deaths made national news. States such as Michigan and Tennessee allow a claim of unmerchantability for a mere breach of warranty, i.e., that the consumers bought an unmerchantable product, according to Herron’s opinion. In these states, plaintiffs have to allege and prove that the tires or vehicles are defective; they don’t have to prove manifestation of the defect. But in Pennsylvania, Herron said, quoting another case, “a breach of implied warranty of merchantability theory … states that a merchant is ‘only liable for harm caused by a defect in their product.’” The defect must “manifest itself,” he continued, or, in other words, the product must malfunction. Because the plaintiffs never suffered from a tire malfunction, Herron dismissed the warranty claim. In analyzing the UTPCPL claim, Herron said it was helpful to refer to the opinion of U.S. District Judge Sarah Evans Barker of Indiana, because she is “confronting claims similar to those alleged here” in a national class action. While Gus Grant and the other plaintiffs alleged that the out-of-pocket expenses they paid were their damages, Ford and Bridgestone contended that those damages did not “rise to the level of being an ascertainable loss” so as to sustain a viable UTPCPL claim. Herron disagreed, relying on Barker’s opinion, which said that “to state a consumer protection cause of action, plaintiffs need plead only ‘loss.’” Barker said she agreed with the Supreme Court of Connecticut’s interpretation of the Connecticut Unfair Trade Practices Act. The Connecticut court said that a loss occurs “whenever a consumer has received something other than what he has bargained for.” In the tire class action she is dealing with, Barker said, the plaintiffs “expected to receive tires and [Ford] Explorers ‘of a particular standard or quality’ but actually received tires and Explorers of a lower standard or quality,” which she called a classic example of consumers receiving something other than what they had bargained for. “This alleged diminution in value satisfies the loss requirement,” Barker said. Both the Tennessee and Michigan consumer laws require only that plaintiffs allege a loss, not manifest injury, she said. Herron said Barker’s reasoning is echoed in Pennsylvania law, “even though the commonwealth’s case law on the subject is not as well-developed.” However, he said, the case law on the Pennsylvania UTPCPL states that the law is “to be construed liberally to effect its object of preventing unfair or deceptive practices” and that “even where damages are not easily quantified or where a claim has failed to quantify the damages suffered, a UTPCPL claim does not fail as a matter of law.” Given those broad guidelines, he said, “the court believes that Pennsylvania law is in accord with the conclusions of Judge Barker and that the plaintiffs have alleged an ‘ascertainable loss’ as required by the UTPCPL.” Dylan Walker of Cabaniss Conroy is local counsel for Ford; Morton Daller of Daller Greenberg in Fort Washington are representing Bridgestone/Firestone. Sink said the plaintiffs would shortly be filing a state class certification motion in the case.

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