Roberts v. Enterprise Rent-a-car Co.
840 N.E.2d 541
Mass.
2006
Check Treatment

Lead Opinion

Cowin, J.

This is the sequel to Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187 (2002) (Roberts I). In that case, we held that Enterprise Rent-A-Car Company of Boston, Inc., did not violate G. L. c. 90, § 32E ½, by placing certain statutorily required language regarding collision damage waivers on the so-called “ticket jacket” page of its automobile rental agreements. The case was before us on direct appellate review on a report by а judge in the Superior Court to the Appeals Court of his order granting partial summary judgment for Scott Roberts on that issue. We vаcated the judge’s order and remanded the case for further proceedings.

While Roberts I was pending here, the same judge allowed a motion to consolidate another Superior Court action (Barry Hershenow & another vs. Enterprise Rent-A-Car Company & another) with this action, the piece of the Roberts I litigation that remained pending in the Superior Court while the judge’s report was before us. The consolidated actions were then stayed in the trial court pending our decision. After Roberts I was decided, the parties filed several ‍​​​‌‌​​​‌‌​​​​​​​‌‌‌​​​​‌‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‍motions described in the margin.1

The judge grantеd Enterprise’s motion for judgment on the pleadings. He ruled that there is no private right of action under G. L. c. 90, § 32E ½, and that a violаtion of that statute does not give rise to a private claim under G. L. c. 93A. He also denied Roberts’s motion for partial summary judgment and granted Enterprise’s motion for summary judgment for those reasons.2 The judge made essentially the same rulings in the consolidated (Hershenow) action, thereby disposing of that ac tian as well. Roberts (and the plaintiffs in the Hershenow action) appealed. We transferred the cases to this court on our own motion and they were briefed and argued together here. We have since ordered that they be severed for purposes of decision. Today we decide both.

We need not resolve in this case whether the judge was correct to order judgment for Enterprise on the grounds that he did.3 Here, as in Hershenow v. Enterprise Rent-A-Car Co. of Boston, ante 790 (2006), Enterprise argues that there is an alternative basis on which to uphold the judgment, namely, that Roberts has not ‍​​​‌‌​​​‌‌​​​​​​​‌‌‌​​​​‌‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‍suffered an “injury” within the meaning of G. L. c. 93A, § 9. We agree and affirm the judgment for Enterprise on that basis.

The “injury” requirement of G. L. c. 93A, § 9, is discussed at lеngth in the Hershenow opinion, supra at 797-802. Roberts stands on different, even weaker, ground than the plaintiffs in the Hershenow case. The alleged wrong of which he cоmplains is Enterprise’s failure to display the statutorily required language regarding collision damage waivers in a manner сonsistent with the statute. The purpose of displaying this information prominently in the manner called for by the statute is to ensure that automobile renters are made aware of certain reasons why it might be unnecessary for them to purchase a collision damage waiver. The goal is to educate consumers who purchase collision damage waivers. Even if we assume, arguendo, that the required language was not correctly displayed in the addendum form of Enterprise’s rental agreement, Roberts nevertheless has suffered no “injury” within the meaning of G. L. c. 93A, § 9, for the simple reason (undisputed оn this record) that, on the only occasion he rented an automobile from Enterprise using the addendum form of the agrеement, he did not purchase a col lision damage waiver.4 In other words, Roberts is claiming a G. L. c. 93A violation with respect to a produсt he did not even purchase. His pursuit of such claim violates the principle that G. L. c. 93A, § 9, does not “authorize purely ‘vicarious suits by self-constituted private attorneys-general. ’ ” Leardi v. Brown, 394 Mass. 151, 161 (1985), quoting Baldassari v. Public Fin. Trust, 369 Mass. 33, 46 (1975). Nothing in Hershenow, supra at 790; Aspinall v. Phillip Morris Cos., 442 Mass. 381 (2004); or Leardi v. Brown, supra, requires a different result.

The judgment for Enterprise is therefore affirmed on the ground that ‍​​​‌‌​​​‌‌​​​​​​​‌‌‌​​​​‌‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‍Roberts has suffered no cognizable “injury” under G. L. c. 93A, § 9.

So ordered.

Notes

Roberts filed a motion for partial summary judgment, claiming that Enterprise’s plaсement of the required language on an addendum page of its rental agreements (distinct from the “ticket jacket” page at issue in Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187 (2002), during a certain time period violated G. L. c. 90, § 32E ½. Enterprise filed a motion for judgment on the pleadings, assеrting that G. L. c. 90, § 32E ½, the basis of the first count in Roberts’s complaint, does not provide a private right of action, and that a сlaim under G. L. c. 93A, the basis of the second count of the complaint, cannot be predicated on a violatiоn of G. L. c. 90, § 32E ½. Enterprise also moved for summary judgment on the merits, contending that the placement of the required language on the addendum page did not violate G. L. c. 90, § 32E ½.

The judge expressly indicated in his order that his ruling on Enterprise’s summary judgment motion wаs “not on the merits of the motion,” but instead was linked to the reasons for his ruling on the motion for judgment on the pleadings. There hаs been no ruling on the merits of Roberts’s contention that the addendum form of the rental agreement violated G. L. c. 90, § 32E ½, and G. L. c. 93A.

In the рlaintiffs’ consolidated brief, Roberts does not even press his claim ‍​​​‌‌​​​‌‌​​​​​​​‌‌‌​​​​‌‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‍that there is a private right of action under G. L. c. 90, § 32E ½, аnd the Hershenow plaintiffs expressly concede that there is no private right of action under that -statute. See Mаss. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) (“The appellate court need not pass upon questions or issues not argued in the brief”). The sole remaining claim asserted by Roberts is that an alleged violation of G. L. c. 90, § 32E ½, can support a claim under G. L. c. 93A, i.e., thаt the absence of a private right of action in G. L. c. 90, § 32E ½, does not itself preclude a claim under G. L. c. 93A based on thе violation of c. 90, § 32E ½.

The record contains evidence of only one rental by Roberts using the addendum form of the agrеement. It is plain from the face of the document that Roberts expressly declined to purchase the collision damage waiver ‍​​​‌‌​​​‌‌​​​​​​​‌‌‌​​​​‌‌‌​​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‍by initialing the box that stated “renter accepts damage responsibility.” Roberts does not contend otherwise. The document also correctly reflects that Roberts was not charged for a collision damagе waiver.



Concurrence Opinion

Greaney, J.

(concurring, with whom Spina, J., joins). I concur in the result in this case because the plaintiff did not purchase a collision damage waiver. I do not join in this opinion to the extent that it implies approval of the result and reasoning in Hershenow v. Enterprise Rent-A-Car Co. of Boston, ante 790 (2006), and I do not do so for the reasons stated in my dissent therein.