Opinion
DOCKET NO. A-1250-12T2
04-22-2013
RONALD SELMAN, Plaintiff-Appellant, v. JAGUAR LAND ROVER NORTH AMERICA, LLC, Defendant-Respondent.
Fred Davis argued the cause for appellant (Kimmel & Silverman, PC, attorneys; Jacqueline C. Herritt, of counsel; Alfred J. Tumolo, III, on the brief). James S. Dobis argued the cause for respondent (Dobis, Russell & Peterson, PC, attorneys; Mr. Dobis, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9000-11.
Fred Davis argued the cause for appellant (Kimmel & Silverman, PC, attorneys; Jacqueline C. Herritt, of counsel; Alfred J. Tumolo, III, on the brief).
James S. Dobis argued the cause for respondent (Dobis, Russell & Peterson, PC, attorneys; Mr. Dobis, on the brief). PER CURIAM
Plaintiff Ronald Selman appeals from the summary judgment dismissal of his complaint against defendant Jaguar Land Rover North America, LLC, and the subsequent order denying his motion for reconsideration. We affirm.
On October 7, 2010, plaintiff executed a contract with defendant to lease a new 2010 Jaguar XF (the vehicle). The lease agreement included an express warranty, under which defendant promised to repair or replace, at no cost to plaintiff, any defects in factory-supplied materials or workmanship for four years or 50,000 miles, whichever came first.
On June 20, 2011, defendant replaced the vehicle's power steering pressure hose pursuant to a factory recall. Shortly thereafter, on July 13, 2011, plaintiff reported he experienced "an intermittent vibration in the steering system" when moving "at low speeds (1mph)[,]" which "d[idn']t last long" and occurred "mostly when turning [the] wheel[.]" Defendant performed a full-service inspection and found the left front wheel rim was "slight[ly] ben[t]" and it was "straightened as best as possible[.]" However, no steering column vibration was discerned.
During that same service appointment, the vehicle's fuel tank was replaced based on plaintiff's report of erratic fuel gauge readings.
Other than routine maintenance and unrelated minor repairs, defendant serviced the vehicle eight other times between July 13, 2011 and January 11, 2012. Each of these repairs is asserted to relate to the initial steering system problem. Specifically, on July 13, 2011, at 13,790 miles, defendant repaired damage to the vehicle's left front tire rim; on July 27, 2011, at 15,040 miles, defendant investigated the claimed steering system vibration, but, despite performing a seven-mile road test, was unsuccessful in replicating the claimed complaint; on August 23, 2011, at 17,487 miles, defendant again repaired damage to the vehicle's left front tire rim, and, despite plaintiff's report of a vibration felt when moving at slow speeds and turning the wheel, defendant found the vehicle performed without incident; on September 6, 2011, at 18,801 miles, defendant performed additional wheel and rim repairs; on September 12, 2011, at 19,049 miles, defendant applied anti-friction lube in response to plaintiff's complaint of a brief "shake/shimmy in the steering wheel"; on October 17, 2011, at 23,059 miles, defendant renewed the vehicle's power steering transducer; on December 21, 2011, at 25,158 miles, defendant performed repairs to the vehicle's rear wheels, which had "curb and paint damage[,]" reset the tire pressure, and conducted a one-mile road test in an effort to perceive plaintiff's claimed steering column vibration; and on January 11, 2012, at 26,777 miles, defendant conducted a two-mile road test in its unsuccessful attempt to replicate plaintiff's complaint of a perceived steering wheel "shutter" when turning at low speeds.
Plaintiff filed a three-count complaint against defendant alleging claims under the New Jersey Motor Vehicle Warranty Act (Lemon Law), N.J.S.A. 56:12-29 to -49 (count one); the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C.A. §§ 2301 to 2312 (count two); and provisions of the Uniform Commercial Code (UCC), N.J.S.A. 12A:1-101 to 12-26, for breach of express and implied warranties of fitness for a particular purpose and merchantability (count three).
Plaintiff's expert, Steven Ruch, an Automotive Service Excellence (ASE) Master Repair Technician, inspected the vehicle on February 22, 2012. In addition to a visual inspection, Ruch interviewed plaintiff then conducted a nine-mile road test. In his report, Ruch explained he "could not duplicate [the] abnormal steering condition" described by plaintiff.
Based on his evaluation, Ruch opined
the car was originally sold with a defective power steering line. When that steering line was replaced the power steering system was not bled properly, which damaged the hydraulic steering pump. This is a common problem when the steering system is not b[led] properly. It results in the pump losing efficiency at high load condition such as when turning at slow speeds. The pump will not be able to put out the required pressure[,] which results in a shudder / vibration when turning. To repair its current defect the power steering pump
should be replaced and the system would need to be bled properly.
. . . .
Based on the inability of Jaguar to resolve this vehicle's warrantable defects after a reasonable amount of opportunities had been afforded, it is my opinion that the vehicle's warranty has failed its purpose and has been breached. The purchase of a motor vehicle is a major, high cost consumer transaction. The inability of the manufacturer to live up to the vehicle's warranty and correct its defective condition in a reasonable amount of time . . . creates a major hardship and an unacceptable economic burden on the consumer.
Ruch asserted the defect caused the "market value of [plaintiff's] vehicle [to be] substantially impaired[,]" and "to a reasonable degree of mechanical certainty[,]" plaintiff's vehicle "with its defects would be considered in 'Fair' condition[,]" as opposed to the "'Excellent' condition" one would expect of a new car. Estimating the difference to be roughly equivalent to 15% of the vehicle's value, Ruch quantified plaintiff's damages stating, "the diminution in value of this vehicle, as warranted and as delivered is equal to no less than $4,971.00."
The parties were scheduled to participate in a mandatory arbitration on June 27, 2012. Prior to the arbitration, defendant moved for summary judgment, with the motion returnable on July 13, 2012.
During the motion hearing, defense counsel argued the vehicle's repair history demonstrated the majority of the impairment involved the vehicle's rims and tires. Beginning with plaintiff's first July 13, 2011 complaint, "the left front rim had a slight bend . . . that's what caused [the] problem." Other repairs occurred from plaintiff "banging against the curb with [the] rims[,]" causing them to bend. With respect to the steering defect, defendant pointed out no one, not even plaintiff's expert, had confirmed the alleged vibration and concluded "there are no non-conformities defined as substantial impairments in the value, safety or use during the Lemon Law period of protection." Further, "at no time was any warranty repair refused" and "not only did Jaguar do everything that was asked of them [sic] under the warranty, they [sic] even replaced and repaired some of these rims that [plaintiff] bent by himself as a result of an abuse[.]" Finally, defendant argued "if this vehicle . . . is unsafe, you're not going to drive it 23,000 miles a year[,]" as plaintiff did.
Plaintiff countered, maintaining "the vehicle was brought in eight times over . . . a year for a vibration concern." He suggested that alone raised a jury question of whether, applying the Lemon Law or Magnuson-Moss Act standards, the repair history refutes that "the vehicle was repaired . . . in a reasonable amount of time." Plaintiff also argued the warranty was breached because the vehicle was subjected to repair eight times within the warranty period.
Following argument, Judge Vincent LeBlon initially adjourned the matter to allow plaintiff to cure defects in the affidavit filed in opposition to summary judgment. Thereafter, the judge issued an order granting summary judgment and dismissing plaintiff's complaint, supported by a written opinion.
Judge LeBlon found no materially disputed facts. Considering the questions of whether the complained of conditions constituted nonconformities as defined by the Lemon Law, and the reasonableness of time taken for repair, he accepted the facts in a light most favorable to plaintiff, but found no evidence of the claimed vibration or wheel shimmy. Accordingly, he concluded there was no evidence to support plaintiff's statutory or contract claims. Plaintiff's motion for reconsideration was also denied. This appeal ensued.
On appeal, defendant argues summary judgment was prematurely granted because discovery was incomplete and disputed material facts were presented to support claims under the Lemon Law and the UCC.
In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortg. Corp. v. Chaudhri, 4 00 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). See also R. 4:46-2(c) (entitling moving party to judgment as a matter of law "if the pleadings . . . show that there is no genuine issue as to any material fact challenged").
We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on the issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
The Lemon Law, premised on the Legislature's finding that "the purchase of a new motor vehicle is a major, high cost consumer transaction and the inability to correct defects in these vehicles creates a major hardship and an unacceptable economic burden on the consumer[,]" N.J.S.A. 56:12-29, is designed to ease a consumer's efforts to obtain rectification of defects. See DiVigenze v. Chrysler Corp., 345 N.J. Super. 314, 323 (App. Div. 2001) (describing manufacture's obligation to rectify), certif. denied, 171 N.J. 442 (2002). The Lemon Law requires new vehicle manufacturers "to correct defects originally covered under warranty which are identified and reported within a specified period[,]" and provides "procedures to expeditiously resolve disputes" between consumers and manufacturers when reported defects "are not corrected within a reasonable time," by providing "specific remedies where the uncorrected defect substantially impairs the use, value, or safety of the new motor vehicle." N.J.S.A. 56:12-29.
To effectuate these objectives, the Lemon Law "imposes an affirmative obligation upon the manufacturer of a vehicle to repair substantial defects within a reasonable time[,]" DiVigenze, supra, 345 N.J. Super. at 323, within this frame-work:
If a consumer reports a nonconformity in a motor vehicle to the manufacturer . . . or its dealer or distributor, during the first 24,000 miles of operation or during the period of two years following the date of original delivery to the consumer, whichever is earlier, the manufacturer, . . . shall make, or arrange with its dealer or distributor to make, within a reasonable time, all repairs necessary to correct the nonconformity.
[N.J.S.A. 56:12-31.]
Following the report of a nonconformity to the manufacturer, "[t]he manufacturer then has three attempts or a cumulative total of 20 calendar days, whichever occurs first, to repair the nonconforming vehicle." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 254 (2005) (citing N.J.S.A. 56:12-33). "If the manufacturer is unable to repair the vehicle within the statutory timeframe, the consumer is entitled to a full refund of the purchase price of the vehicle in addition to 'any other charges or fees' associated with the ownership of the vehicle." Ibid. (quoting N.J.S.A. 56:12-32). See also N.J.S.A. 56:12-33a(1) (presuming the manufacturer "is unable to repair or correct a nonconformity within a reasonable time if, within the first 24,000 miles of operation or during the period of two years following the date of original delivery . . . [s]bstantially the same nonconformity has been subject to repair three or more times"). A consumer meets this burden "by producing evidence that the nonconformity 'continues to exist' after the specified number of repairs or time out of service." DiVigenze, supra, 345 N.J. Super. at 324 (quoting N.J.S.A. 56:12-33b).
A "nonconformity" is "a defect or condition which substantially impairs the use, value or safety of a motor vehicle." N.J.S.A. 56:12-30. Thus, to recover, a plaintiff "must demonstrate that the nonconformity substantially impairs the value" of the vehicle. G.M.A.C. v. Jankowitz, 216 N.J. Super. 311, 333 (App. Div. 1987) (citations omitted). "An important factor is whether the nonconformity 'shakes the buyer's confidence' in the goods." Berrie v. Toyota Motor Sales, U.S.A., Inc., 267 N.J. Super. 152, 157 (App. Div. 1993) (quoting Jankowitz, supra, 216 N.J. Super. at 338). See also DiVigenze, 345 N.J. Super. at 333 ("The mixed subjective/objective test . . . allows the factfinder to consider a consumer's reasonably shaken confidence in the vehicle as a factor in determining substantial impairment[.]" (citation omitted)).
We easily dispose of plaintiff's contention the court should have declined to enter summary judgment prior to the conclusion of discovery. Hermann Forwarding Co. v. Pappas Ins. Co., 273 N.J. Super. 54, 64 (App. Div. 1994). Plaintiff did not raise this issue before Judge LeBlon. It is well-established we will decline to consider non-jurisdictional questions or issues "not properly presented to the trial court when an opportunity for such a presentation is available[.]" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). More important, unlike Hermann, where we found "the critical factual issues were not fully developed[,]" obviating entry of summary judgment, supra, 2 73 N.J. Super. at 64, here, the ability to demonstrate a defect would not be aided by further discovery. See J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996) (finding when "the incompleteness of discovery is raised as a defense" and the "likelihood that further discovery would supply the necessary information" is shown, summary judgment should not be granted).
Next, we reject plaintiff's suggestion that summary judgment was erroneously granted. No evidence of a defect that "substantially impair[ed] the use, value or safety" of the vehicle or interfered with its operation or enjoyment has been shown. See e.g., Berrie, supra, 267 N.J. Super. at 157 (holding "a condition in which a car stalls and [would not] restart when parked on an incline impairs the use and value of the car and shakes [one's] confidence in it").
Here, the vehicle's service records clearly demonstrate the concerns reported, diagnostic findings, repairs performed, and functionality of the vehicle throughout the warranty period. During his first year of ownership, plaintiff drove the vehicle in excess of 23,000 miles, apparently unhampered by the claimed defect. Further, despite the replication of conditions as described by plaintiff, defendant and plaintiff's expert could not trigger the vibration. Although plaintiff's multiple repair requests based on a flaw in the steering system were recorded, a majority of the repairs made centered on bent wheel rims resulting from misuse. For the matter to be submitted for the jury's consideration of whether an alleged defect constituted a substantial impairment pursuant to the Lemon Law, there must be evidence of a defect. Plaintiff's proofs failed in this regard.
We also find no evidential support for the breach of express and implied warranty claims. We conclude plaintiff's arguments to the contrary are meritless.
"The UCC provides for express warranties regarding the quality of the goods, N.J.S.A. 12A:2-313, and implied warranties of merchantability, N.J.S.A. 12A:2-314, and fitness for a particular purpose, N.J.S.A. 12A:2-315." Jankowitz, supra, 216 N.J. Super. at 327. To establish a claim for breach of the implied warranty of merchantability, a plaintiff must demonstrate the product was not "fit for the ordinary purposes for which such goods are used[.]" N.J.S.A. 12A:2-314(2)(c).
A plaintiff may recover for breach of warranty "if the non-conformity either substantially impaired the value of the [vehicle], N.J.S.A. 12A:2-608, or circumstances caused the limited remedy of repair or replacement of parts to fail of its essential purpose, N.J.S.A. 12A:2-719(2)[.]" Jankowitz, supra, 216 N.J. Super. at 331 (citing Ramirez v. Autosport, 88 N.J. 277, 288-90 (1982)).
A breach of warranty claim under the UCC also gives rise to a cause of action under the Magnuson-Moss Act, 15 U.S.C.A. § 2304(e), which essentially broadens the remedies available to a plaintiff. Id. at 331-32 (citations omitted). Specifically, "if the product (or a component part thereof) contains a defect or malfunction, after a reasonable number of attempts to remedy defects or malfunctions of the product, the consumer may elect a refund including reasonable incidental expenses." Id. at 330 (citing 15 U.S.C.A. § 2304(d)).
As noted, even assuming an uncorrected vibration was present at times then disappeared "immediately," plaintiff has presented no evidence which satisfies his burden of proving the vehicle did not perform as warranted, Jankowitz, supra, 216 N.J. Super. at 336, or was not "reasonably fit for the general purpose for which it is manufactured and sold." Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 370 (1960)). Consequently, plaintiff failed to demonstrate "a substantial impairment in value" as required by N.J.S.A. 12A:2-608(1). Palmucci v. Brunswick Corp., 311 N.J. Super. 607, 613-14 (App. Div. 1998). See also Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975) (precluding "revocation for trivial defects").
Finally, we reject the notion that Ruch's report sufficiently created a factual dispute for the jury's deliberation. Ruch tested the vehicle and admits he could not establish and document a steering vibration. Thus, his conclusions opining on the cause of the alleged vibration are unsupported by factual evidence. See Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) ("[A]n expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION