United States District Court, D. Connecticut
ACE TREE SURGERY, INC., on behalf of itself and others similarly situated, Plaintiff,
TEREX CORPORATION, TEREX SOUTH DAKOTA, INC., and TEREX UTILITIES, INC., Defendant.
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR
W. EGINTON, District Judge.
behalf of itself and a putative class, plaintiff Ace Tree
Surgery, Inc. ("Ace") brings this action against
defendants Terex Corporation, Terex South Dakota, Inc., and
Terex Utilities, Inc. Plaintiff Ace alleges breach of express
and implied warranty, breach of the implied covenant of good
faith and fair dealing, fraudulent misrepresentation,
negligent misrepresentation, fraudulent concealment, unjust
enrichment/restitution, violation of the Connecticut Unfair
Trade Practices Act, violation of the South Dakota Deceptive
Trade Practices and Consumer Protection Law, and violation of
Georgia's Uniform Deceptive Trade Practices Act.
Defendant has moved to transfer the action to the Northern
District of Georgia pursuant to 28 U.S.C. Â§ 1404(a), Â§1406,
and Â§1631. For the following reasons, the motion to transfer
will be granted.
following factual background is culled from the pleadings and
the briefs relevant to the motion to transfer.
Ace Tree Surgery is a Georgia corporation with its principal
place of business in Marietta, Georgia.
Terex Corporation is a Delaware corporation with its
principal place of business in Westport, Connecticut.
Defendant Terex South Dakota is a Delaware Corporation with
manufacturing facilities for the Terex's Hi-Ranger XT in
South Dakota. Terex South Dakota is alleged to be a
subsidiary of Terex Corporation. Defendant Terex Utilities is
an Oregon Corporation with facilities in Tigard, Oregon. It
is alleged to be a subsidiary of Terex Corporation. Terex
Utilities is alleged to be involved in the sale, development
and marketing of Hi-Ranger XTs throughout the nation.
Ace purchased Hi-Ranger XTs in Georgia from authorized Terex
distributors or from Terex Corporation or its subsidiaries.
The Hi-Ranger XT model line is a series of vehicle-mounted
elevating and rotating aerial devices. Hi-Ranger XT allows a
worker to stand in the bucket or platform that is secured to
a boom that is connected to a pedestal mounted to a truck.
is responsible for ensuring that Hi-Ranger XTs have designs
that are safe and that meet the requisite standards for
vehicle-mounted elevating aerial devices. The Hi-Ranger XT
must meet the standard for aerial devices promulgated by the
American National Standards Institute as "ANSI A92.2
American National Standard for Vehicle Mounted Elevating and
Rotating Work Platforms, " ("ANSI A92.2"),
which has been adopted by the Occupational Safety and Health
Administration ("OSHA") as a binding regulation.
The ANSI A92.2 standard, at section 4 "Design
Requirements" subsection 4.2 "Structural Safety
Factors, " requires that the steel structural elements
of an aerial device have a calculated design stress that is
not more than 50% of the minimum yield strength of the steel.
This structural safety factor can be referred to as a
"two to one" or "2:1" safety factor.
alleges that the common design of all Hi-Ranger XTs is
incapable of providing the requisite 2:1 structural safety
factor due to a design defect. However, Terex has failed to
recall all Hi-Ranger XTs and refuses to acknowledge this
serious safety defect.
marketed and sold Hi-Ranger XTs directly to customers and
through a network of authorized dealers. Terex warrants that
all Hi-Ranger XTs comply with OSHA-Adopted standard ANSI
A92.2 in Certificates of Conformity, product manuals and in
metal placards affixed to the Hi-Ranger XT.
Certificate of Conformity states:
This is to certify that the Terex Telelect Inc. unit
designated above has been successfully tested and thoroughly
inspected for conformance with the Terex Telelect Inc.
specifications applicable to this model, for conformance with
all details of the acknowledgment for the unit, and with
applicable regulations of ANSI A 92.2-2001 as of the date
shown. All mechanical and electrical tests have been
performed at Terex Telelect Inc.
also represents compliance with ANSI A92.2 compliance in two
different manuals provided with every Hi-Range XT.
Additionally, Terex makes additional warranties for all
Hi-Ranger XTs in its "Terex-Telelect Warranty" for
"All Products." This warranty provides a lifetime
parts only warranty on structural components:
The following structural members have a LIFETIME parts only
warranty for the original owner after date of shipment from
TEREX-TELELECT: Sub frame, Pedestal, Turntable, Steel and
Fiberglass Booms. The LIFETIME warranty requires an annual
service inspection by an authorized TEREX-TELELECT
distributor and all replacement parts to be original
equipment parts from TEREX-TELELECT. The above listed
components shall have a FIVE (5) YEAR parts only warranty if
the annual service inspection is performed by an approved