Jacqueline M. Miller, and another v. J and Q Automotive, Inc., March 9, 2010
2010 Mass. App. Div. 41
Breach of Contract, Warranty of Merchantability, Consumer Protection, G.L.c. 93A, Misrepresentation
The plaintiffs (“the Millers”), purchased a used vehicle from the defendant, J and Q Automotive, Inc. (“defendant”). This action commenced after the vehicle broke down. The complaint alleged breach of contract, violation of G.L.c. 93A, breach of the warranty of merchantability, and misrepresentation. Summary judgment was entered for the defendant. The Millers appealed that ruling. The Appellate Division affirmed summary judgment for the defendant on breach of contract, breach of warranty of habitability and misrepresentation counts. Summary judgment for the defendant on the G.L.c. 93A count was reversed.
Facts
On November 18, 2007, the Millers purchased a motor vehicle from the defendant. They paid $3525.00 for a 1999 Toyota Corolla with 150,337 miles on the odometer. The salesman told the Millers that “[w]e know the vehicle,” that it was “a good car, with a nice, clean engine,” and that they “shouldn't worry about the car.” The defendant stated that they had just done an inspection, that the car was in very good condition, and that a third-party inspection was unnecessary. The defendant would not make any warranties because of the mileage on the car. The written contract contained the sales terms and a warranty of merchantability. Before the contract was signed, the defendant noted in large handwritten print in capital letters on the front “VEHICLE AS IS NO WARRANTY.” The plaintiff signed the contract form near this notation.
On January 3, 2008, the car broke down after having been operated for an additional 2,908 miles since the purchase. The Millers demanded a refund and payment of insurance and towing costs. After sending a G.L.c. 93A demand letter, the Millers commenced this lawsuit.
Breach of contract
No express warranties existed to be breached. The plaintiffs actually asserted and complained of this lack express warranty and the fact that the car was sold “as is.” Summary judgment for the defendant was warranted.
Breach of the implied warranty of merchantability
The claims for breach of contract and breach of the implied warranty of merchantability depended entirely on the Millers' assertion that a knowing breach of the contract or the warranty may be inferred solely from the fact that the engine on a nine year old car with 150,337 miles on it failed after traveling an additional 2,908 miles in six weeks.
A breach of implied warranty of merchant requires proof that the vehicle was defective at the time of sale, and the mere later appearance of a defect is not such proof. Walsh v. Atamian Motors, Inc., 10 Mass. App. Ct. 828, 829 (1980). The Millers suggested in pretrial that an expert witness would be called who could attest to the condition of the vehicle when it was sold. No such witness or affidavit for this witness was produced at the summary judgment motion hearing. Summary judgment for the defendants was warranted.
Misrepresentation
The misrepresentation alleged pertained to the salesman's comments “that the defendant 'knew the vehicle' and that the car was 'a good car with a nice clean engine, and that the plaintiffs shouldn't worry about the car.'”
“A statement on which liability for misrepresentation may be based must be one of fact, not of expectation, estimate, opinion, or judgment” Zimmerman v. Kent, 31 Mass. App. Ct. 72, 79 (1991). The statements alleged here were not enough to sustain the action. Summary judgment for the defendant was warranted.
G.L.c. 93A claim
The defendant argued that the failure of the Millers' other claims necessitate failure of the G.L.c. 93A claim as well. The Appellate Division disagreed.
The contract included a printed statement of the warranty of merchantability. The notation “VEHICLE AS IS NO WARRANTY” is a disclaimer of only express warranties, but implied a limitation on the warranty of merchantability. The defendant's handwritten disclaimer of any warranty constituted an unfair and deceptive act in violation of G.L.c. 93A.
The Appellate Division affirmed summary judgment for the defendant on breach of contract, breach of warranty of habitability and misrepresentation counts. Summary judgment for the defendant on the G.L.c. 93A count was reversed. The action was returned to the trial court for assessment and award of damages to the Millers on the G.L.c. 93A count.
- Prepared by AYK
