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Ace Tree Surgery, Inc. v. Terex Corporation, Terex South Dakota, Inc.

United States District Court, D. Connecticut

March 10, 2016

ACE TREE SURGERY, INC., on behalf of itself and others similarly situated, Plaintiff,
v.
TEREX CORPORATION, TEREX SOUTH DAKOTA, INC., and TEREX UTILITIES, INC., Defendant.

          MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR TRANSFER

          WARREN W. EGINTON, District Judge.

         On 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. § 1404(a), §1406, and §1631. For the following reasons, the motion to transfer will be granted.

         A. BACKGROUND

         The following factual background is culled from the pleadings and the briefs relevant to the motion to transfer.

         Plaintiff Ace Tree Surgery is a Georgia corporation with its principal place of business in Marietta, Georgia.

         Defendant 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.

         Plaintiff 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.

         Terex 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.

         Plaintiff 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.

         Terex 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.

         The 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.

         Terex 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 entity ...

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