Virginia Lawyers Weekly VA Lawyers Weekly
A driver suing defendant manufacturer for injuries she suffered due to failure of the airbag and seatbelt when her 2010 Dodge Avenger sedan collided with an embankment at 55 miles per hour, has failed to state a claim under the Virginia Consumer Protection Act because she has not alleged the knowing falsity of defendant’s alleged misrepresentations; the Lynchburg U.S. District Court dismisses the VCPA claim with prejudice.
Plaintiff’s claim is that defendant made false statements by fraudulently representing and misrepresenting to the public that the vehicle was safe for use, all the while knowing the vehicle contained defective seat belt tensioners and airbags. Plaintiff also alleges fraudulent failure to disclose in that defendant “knowingly and intentionally concealed material facts for more than a year before issuing a recall.”
In order for defendant to have knowingly misrepresented some aspect of the vehicle’s safety to plaintiff, it must have known that the 2010 Dodge Avenger was unsafe at some point prior to allegedly making statements about its safety in 2010 and 2012. Similarly, in order for defendant to have knowingly failed to disclose safety defects, it must have known of the existence of those defects prior to plaintiff’s purchase of the vehicle in 2012.
Plaintiff, however, does not sufficiently allege that any of defendant’s statements or omissions were “intentionally and knowingly” false at these relevant times. Plaintiff asserts defendant knew of the defect in April 2015, several years after the transaction and advertisements at issue. Any conclusory allegations that defendant knew of the safety defects the whole time are undercut by plaintiff’s specific factual assertion that defendant became aware of the defects in April 2015. This logic applies with equal force to plaintiff’s nondisclosure theory. Without allegations that defendant knew of the safety issue prior to its advertisements or the consumer transaction in which plaintiff purchased her vehicle, there cannot be a claim for fraud under the VCPA.
Plaintiff’s claims stemming from misrepresentations made in defendant’s specific advertisements also fail because they do not properly allege how defendant’s claims amounted to a “false representation,” knowing or not. Plaintiff fails to state what representation of defendant’s was actually false. Nothing in the complaint suggests defendant lied about its Five-Star safety rating, the presence of certain features in its vehicle or the fact that it was an IIHS top safety pick, which were the identifiable factual assertions contained in the advertisements. Assuming certain advertisements are falsifiable assertions of fact and not puffery, plaintiff has failed to allege how these general statements about the vehicle’s safety were false.
Plaintiff has had an opportunity to amend this claim, and the court will not allow her another opportunity to amend.
VCPA claim dismissed with prejudice.
Allen v. FCA US LLC (Moon) No. 6:17cv7, May 10, 2017; USDC at Lynchburg, Va.; Robert E. Byrne Jr. for plaintiff; Eric C. Tew for defendant. VLW 017-3-256, 8 pp.
