RONALD BUNTING v. DAIMLER CHRYSLER COMPANY, LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3590-07T33590-07T3

RONALD BUNTING,

Plaintiff-Appellant,

v.

DAIMLERCHRYSLER COMPANY, LLC

formerly DAIMLERCHRYSLER

CORPORATION,

Defendant-Respondent.

______________________________

 

Argued February 24, 2009 - Decided

Before Judges Skillman and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Docket No.

L-550-07.

Amy L. Bennecoff argued the cause for

appellant (Kimmel & Silverman, attorneys;

Ms. Bennecoff, on the brief).

Douglas D. Suplee argued the cause for

respondent (Marshall, Dennehey, Warner,

Coleman & Goggin, attorneys; Mr. Suplee, on

the brief).

PER CURIAM

Plaintiff appeals the trial court's order for summary judgment dismissing his claims arising out of the purchase of a new Chrysler motor vehicle and alleged failure of defendant to make repairs. We affirm.

Because the purchase and service history of the vehicle is documented, the facts are essentially undisputed. We view all disputed facts most favorably to plaintiff as long as admissible evidence supports plaintiff's version. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff purchased a 2002 Town and Country van from a Chrysler dealer on May 28, 2002. With the vehicle, he received two warranties, a three year or 36,000 mile basic limited warranty that covered the vehicle as a whole, and a seven year or 100,000 mile powertrain limited warranty that covered certain specified parts of the vehicle, including the engine and transmission.

On September 19, 2002, after driving the van 5,931 miles, plaintiff brought it back to the dealer complaining that it was pulling to the right. The dealer checked the tire pressure and wheel alignment at no cost to plaintiff. The pulling problem was not fixed, however, and plaintiff returned three weeks later, on October 10, 2002, when the odometer showed 7,469 miles. The dealer arranged for warranty repairs, again at no cost to plaintiff, and this time, the pulling problem was fixed. Plaintiff had no further complaints about pulling for more than four years and 90,000 miles.

Four years after these initial repairs, plaintiff had some recall repairs done by a Chrysler dealer at no charge. About eight weeks later, on November 8, 2006, with 94,285 miles on the odometer, plaintiff returned to the dealer and sought repairs for a transmission leak. He believed that the recall repairs had caused a transmission problem. The Chrysler dealer replaced a transaxle solenoid assembly under the terms of the powertrain warranty.

On November 21, 2006, with 94,901 on the odometer, plaintiff returned again complaining that the transmission was banging and the power steering "was hard to use." The dealer reprogrammed the transmission control module under the powertrain warranty. Concerning the steering, the dealer informed plaintiff that his vehicle needed a new power steering rack, which was not covered by any warranty in effect at that time. Plaintiff declined that service.

Plaintiff's next service visit was on February 6, 2007, with 97,720 miles on the vehicle. He complained of erratic shifting and noise from the steering rack. The dealer performed warranty service on the transaxle to recondition the transmission and again informed plaintiff that the steering rack needed to be replaced. Plaintiff again declined the service.

On March 10 and 26, 2007, plaintiff went back to the dealer and complained of erratic shifting and pulling. Service personnel test-drove the vehicle and told plaintiff that they did not find either problem.

Plaintiff filed suit on April 4, 2007, against the manufacturer of the vehicle, DaimlerChrysler Company, LLC, alleging violations of: (1) the New Jersey Motor Vehicle Warranty Act ("Lemon Law"), N.J.S.A. 56:12-29 et seq., (2) the federal Magnuson-Moss Warranty Improvement Act ("Magnuson-Moss"), 15 U.S.C.A. 2301 et seq., (3) warranty provisions under the Uniform Commercial Code ("UCC"), N.J.S.A. 12A:2-314, 2-315, and (4) the New Jersey Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 et seq.

The trial court correctly analyzed plaintiff's several claims and concluded that no genuine issues of material fact were presented in the summary judgment record that must be resolved by a jury. Brill, supra, 142 N.J. at 540. We dispose of plaintiff's claims with brief reference to each.

The two service visits for a pulling problem within the applicable two year or 18,000 mile period covered by the Lemon Law, N.J.S.A. 56:12-31, do not prove a presumptive nonconformity of the vehicle, N.J.S.A. 56:12-33a(1), or a failure to repair a nonconformity within a reasonable time, N.J.S.A. 56:12-32, or a "defect or condition which substantially impairs the use, value or safety of a motor vehicle," N.J.S.A. 56:12-30.

As to the UCC and Magnuson-Moss warranty claims, the evidence does not show that either express warranty "fail[ed] of its essential purpose," N.J.S.A. 12A:2-719(2), or that the vehicle contained "a defect or malfunction after a reasonable number of attempts by the warrantor to remedy" the problem, 15 U.S.C.A. 2304(a)(4). See G.M.A.C. v. Jankowitz, 216 N.J. Super. 313, 336-40 (App. Div. 1987); Chatlos Sys., Inc. v. Nat'l Cash Register Corp., 635 F.2d 1081, 1085 (3d Cir. 1980).

Plaintiff's uncorroborated subjective complaints about erratic shifting and pulling do not create a genuine issue of material fact regarding failure to make repairs covered by warranty. Assuming that the jury accepts plaintiff's complaints, the evidence still does not identify any source of the problems. Plaintiff does not have any testimony from a mechanical expert to establish the cause of erratic shifting or pulling. Unlike the circumstances in Spring Motors Distrib. v. Ford Motor Co., 98 N.J. 555, 586 (1985), and G.M.A.C. v. Jankowitz, supra,, 216 N.J. Super. at 336, the warranty in issue here is not the basic warranty that covered all functions and parts of the motor vehicle. Rather, only the powertrain warranty was in effect at the time of plaintiff's complaints in 2006 and 2007 and that warranty did not cover the entire vehicle. After more than 94,000 miles, a vehicle may develop problems that are not caused by a part that is covered by warranty.

Plaintiff's arguments about implied warranties of merchantability and fitness for a particular purpose under the UCC require no discussion. Again, the age and use of the car do not allow those claims under the factual circumstances of this case.

Finally, plaintiff has no CFA claim. Even if he had a mechanical expert to identify the cause of the shifting and pulling problems that he alleged as of March 2007, that evidence would at best show a breach of warranty. It would not establish any aggravating factors to elevate a breach of warranty to a consumer fraud violation. See Palmucci v. Brunswick Corp., 311 N.J. Super. 607, 616 (App. Div. 1998); D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 31 (App. Div. 1985).

 
Plaintiff has no viable claim under any of the statutes alleged.

Affirmed.

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A-3590-07T3

March 16, 2009