Harris v. Darcars of New Carrollton, Inc. et al, No. 8:2016cv03601 - Document 60 (D. Md. 2018)
Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/26/2018. (tds, Deputy Clerk)
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Harris v. Darcars of New Carrollton, Inc. et al Doc. 60 IN THE UNITED STATES DISTRICT COURT FOR THE DISTI~ICT OF MARYLAND Southern Division p 3: SCI 10\3 rES 2 * RICHARD L. HARRIS, * Plaintiff, Case No.: G,III-16-3601 * __ __ v. FILED LOGGED __ __ ENTERED RECEIVED * DARCARS OF NEW CARROLLTON, INC., et al. FEB 26 2018 * Defendants. * * AT GREENBELT CLERK. u.s DISTRICT COURT DISTRICT Of MARYLAND * * * * * * OEPUTY BY * * * * r} " / I * * MEMORANDUM OPINION PlaintifTRichard Carrollton. collectively. warranties L. Harris brings this action against Defendants Inc. ("Darcars") "Defendants"). rcquiring and Chrysler Group. LLC. nlkla FCA US LLC ("ITA alleging that Defendants Warranty Act. 15 U.S.c. PlaintifTalleges refuscd to honor express and implied Delendants ~ 2301 el sell .. and the Maryland violated the Magnuson-Moss Consumer Protcction Act. Law Article ("CL") ~ 13-30 I el self .. and breached express and implicd warranties. Now pending before the Court is Defendants' Plaintiffs US:' them to repair damage to his vehiele caused by a manuf~lcturing defect without cost to Plaintiff. Specifically. Commercial Darcars ofNcw Motion to Strike Defendants' Motion f(lr Summary Expert Opinion. .Judgment. ECF No. 49. and ECF No. 55. No hearing is necessary. Dockets.Justia.com Loc. R. 105.6 (D. Md. 2016). For thc following and denied. in part. and Plaintiffs I. rcasons. Dcfcndants' Motion is grantcd. in part. Motion is dcnied.1 BACKGROUND a ncw 2012 Chryslcr 300 from Darcars in August 01'2012. lOCI' No. Plaintiff purchased 54-2 ~ 3. Thc vehiclc is covcred by exprcss limitcd warrantics including Powertrain sct ttll'th in the warranty booklct. a 36 month / 36.000 milc Basic Limitcd Warranty and a 5 ycar / 100.000 mile Limitcd Warranty (hcrcinaftcr "cxprcss limitcd warrantics"). covcring ..thc cost of all parts and labor nccded to rcpair any itcm on your vchiclc whcn it \eli the manUltlcturing that is dclCctive in matcrials. warranty workmanship or factory prcparation:' Eel' No. 50-1 at 6.~ The booklet also providcs that the buyer "may have somc implied warrantics. the state where your vehicle was sold or is registered:' Id. at 1. Howcver. thc warranties damages. do not eovcr incidcntal or eonsequcntial Plaintiff first cxpcricnced engine problcms while driving the vchiclc. the cngine temperature and the car suddcnly cylinder heads wcrc warped from overhcating nor do they covcr damage in Septcmber of 20 13. Plainti 1'1' tcsti ticd that gauge on thc vehicle's dashboard display. Id. Dat'Cars detcrmined display both an that both and rcplaced thc cylindcr hcads and camshali frce also ECF No. 50-2 at 14. .I'l'l' IOn June 19,2017. the Court held on the booklet states that shut 01'[ ECF No. 54-2 ~ 7. At that timc. PlaintilTsaw engine symbol and "z" symbol on the dashboard of charge. ECF No. 50-3: dcpcnding or misuse. Id. at 5. 18. causcd by abuse. negligcncc. ':iumped" plant J motions hearing and denied Plaintiffs Motion to Remand. ECF No. 29. The Court determined that it has subject matter jurisdiction under the Magnuson-Moss Act because PlainlilT alleged damages 01'$55.000 in his initial Complain!. See ECF No. 47; see aim 15 U.S.c. 2310(d)(3)(II) (civil action by consumer for damages may not be brought under the Magnuson-Moss Act if the alllount in controversy is less than S50.000). 2 Pin cites to documents tiled 011 the Court"s electronic filing system (CJ\,1/ECF) refer to the pagc numbers generated by that systcm. * 2 Approximately one year later. PlaintilTagain experienced engine problems. Plaintiff brought the vehicle back to Darcars on September 4.2014 display seen during the September ECF No. 54-2 ~ 10: ECF No. 50-4. Ilowever. 2013 incident. unlike the 2013 incident. the engine temperature off. ECF No. 54-2 ~ 10. Additionally. York. PlaintilTdrove alier seeing the same dashboard gauge did not flicker and the engine did not shut PlaintilTtestiJied that. one day prior. while driving in New the I)-(mt end of the vehicle over a cement stop. damaging the vehicle. ECF No. 50-2 at 6_7.3 Darears provided and free repair estimate. indicating warped due to "intensive the underside Plaintiff with a Recommended that its technicians Action Plan found that both cylinder hcads were over heating and low compression:' there was a slow leak in the radiator. and the radiator mount bracket was bent. ECF No. 50-5 at 3 (Recommended Plan): see also ECF No. 50-4 (Inspection pinpricks" PlaintilTthat c1arilied that they found ..two the repair would not be covered under the vehicle's the damage was caused by an accident. cost $8.478.31. Erie Insurance. ECF No. 50-2 at 7. and estimated warranty because that the repair would ECF No. 50-5 at 3. Alier receiving conducted Invoice). The technicians Action in the radiator hosing and a hole at the top of the radiator. ECF No. 50-2 at 7. Darcars then informed accident. of the repair estimate. PlaintifT Jiled a claim with his insurance company. I<:H damage to the vehicle's engine and radiator caused by the af<:Jrementioned ECF No. 50-15 at 4. Mishon I lorton. a material damage appraiser an inspection of the vehicle on September for Eric Insurance. 8. 2014. lOCI' No. 50-6 at 5. Horton observed that there was a hole in the radiator. the upper radiator hose was leaking. and a Darear mechanic had perl<:JrIned a pressure test whereby the radiator exhibited 50-6 at 7-8: see also ECF No. 50-II a "heavy leak:' (I lorton photos of radiator leak). Eric Insurance lOCI' No. ultimatcly Plaintiff had also. on prior occasions. damaged the underside of the vehicle but Darcars had not previously informed him that he caused any major damage. See ECF No. 11: ECF No. 5-l-~~ Q. J , .J denied Plaintiffs claim on November 25.2014. hitting the ccment stop. but rather appeared breakdown determining that the damages to be thc result of wcar and tear and mechanical or Illilure. ECF No. 50-15 at 5. Eric Insurance's decision was subsequently Administrative Law Judge Michael D. Carl is on appeal to the Maryland Administration on August 10.2016. PlaintifT has dcsignated inspected Troy Johnson and this damage could not have had anything 28. 2016./d. tested the coolant system to determine Id. at 4. Johnson therefore determined parts or workmanship Defendants 2014 accident] was minor Id. at 5. He whether the radiator leaked occurred at the engine internal that "based upon the lact the 2014 was similar to the enginc failure in 2013. it is morc likely than not that the 2014 engine failure was due to defective defective at 4. Johnson to do with the eventual engine Illilure:' and could not find any leaks. The only leak I could determine engine malfunction Insurance as an expert witness. ECF No. 50-13. Johnson opined that .. , t]he damage inflicted on the vehicle [Ii'om the September head and/or gasket:' upheld by ECF No. 50-15. the vehicle in the IlllI 01'2015 and again on December further stated that he "pressure were not related to manulactured parts and/or workmanship related to the 2013 repair to the engine:' have designated or due to Id. at 5. FCA US technical advisor Joscph Morton as an expert witness. ECF No. 55-I. Prior to Morton's involvement. conducted a pre-suit inspection summary. ECF No. 56-2. Morton concurred inspection on February 21. 2017. ECF No. 55-1 at 4. i\'lorton obscrved damage to the underside of the vehicle. including on September FCA US technical advisor Kenny Kase 22. 2016 and prcpared a preliminary with Kase's prior rcport and conducted the radiator. and opined in his July 10.2017 declaration the radiator caused a coolant leak which in turn caused the engine to overheat. ~ 9. While Morton's inspection vehiclc rcport his own that damagc to Eel' No. 50-14 did not reveal a leak in the radiator. ECF No. 55-I. Morton relied 4 on. in part. observations made by Darcars' technicians and Horton who concluded that the radiator was leaking shortly alier the accident. lOCI'No. 50-14 ~ 9. Morton prcsumed that the leak and overheating of the engine would have been displaycd through the vehicle's temperature gauge and further opined that Plaintiffs continued use of the vehicle caused the engine to I~lil. Id. ~ 10. II. STANDARD OF REVIEW "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material t~lctand the movant is entitled to judgment as a maller of law:' Fed. R. Civ. 1'. 56(a). "This standard provides that the mere existence of sOllie alleged I~lctualdispute between the parties will not defeat an otherwise properly supported motion Il>rsummary judgment: the requirement is that there be no genuine issue of lIIalerial fact:' Anderson \'. Uher/y Lobhy. /nc .. 477 U.S. 242. 247-48 (1986) (emphasis in original). Thus. "Itlhe party opposing a properly supported motion Illr summary judgment 'may not rest upon the mere allegations or denials of Ihisl pleadings.' but rather must 'set lorth speeilic facts showing that there is a genuine issue Illl' trial. ... BouciJall'. Bal/illlore Rm'en.l' Foo/hall ('Iuh. !llC.. 346 F.3d 514. 525 (4th Cir. 2003) (quoting Fed. R. Civ. 1'. 56(e» (alteration in original). On a motion tor summary judgment. the Court must "view the evidence in the light most l~lVorabIcto ... the nonmovant. and draw all inlerenees in her favor without weighing the evidence or assessing the witness' credibility:' Dennis \'. Colulllhia ('olle/on ,\/ed. ('Ir .. Inc.. 290 F.3d 639. 644-45 (4th Cir. 2002). The moving party bears the burden of showing that there is no genuine issue as to any material fact. No genuine issue of material I~lctexists if the non-moving party fails to make a sufficient showing on an essential clement of his case as to which he would have the burden of proof. See ('elo/ex ('orp. \'. Calrel/. 477 U.S. 317.322-23 5 (1986). III. DISCUSSION Plaintiffs three claims all center on the same basic premise-that caused by a manufacturing defect covered under the vehicle's express limited warranties Warranty Act. See breach of these warranties under the Magnuson-Moss conSlllller who is damaged by the failure of a supplier. warrantor. contract. may bring suit for damages pursuant and other legal and equitable Consumer Protection 231 O(d)( I) ("'a implied warranty. relief'). to comply or service In Count II. Plaintiff Act for failure to repair the ,'ehicle to the terms of the ex press lim ited warrant ies. In Count III. Plai nt ifTbri ngs a state law claim for breach of the express limited warranties warranty of merchantability implied warranties. * 2-714 and breach of the implied law governs whether Defendants breached any of its express or See Criekel7berger ". Ifl'ul7dai Molor America. 944 A.2d 1136. 1142 (Md. 2008) C'Magnuson-Moss waiTanty provisions"): Act supplements Zillerbal'/ Spec. ApI'. 2008) (citing CL ... under CL * 2-715. under For all Counts. Maryland warranty * or service contractor under this chapter. or under a written warranty. brings a claim under the Maryland or the See ECF No. 27. In Count I. Plaintiff brings a claim f()J" implied warranty of merchantability. with any obligation the engine failure was ** la Magnuson-Moss l'. State law with regard to its limited and implied Americal7 Suzuki Molor Corp .. 958 A.2d 372. 384 (Md. Ct. 2-313-315 1 claim ("when a consumer is the beneliciary is merely a means f()r the consumer 6 of a limited to pursue the substantive warranty remedies (Plaintiff acknowledging in the Maryland Commercial that Count III is identical to Countl).~ A. Breach of Express and Implied Warranties Defendants warranty establish (Counts I and III) claim that they are entitled to summary judgment claims based on Plaintiffs Under Maryland inability to demonstrate (referencing on Plaintiirs a defect attributable law. to recover for breach of an express or implied warranty. that. at the time of the sale. the vehicle contained Defendants see also ECF No. 27 ~ 20 Code"»: and causally related to Plaintiffs damages. a defect that was both attributable to Crickellherxer. 944 A.2d at 1143-44 the "three product litigation basics"): see also Harrisoll \'. Bill Caims l'ol1liac of sufficient for a jury to infer that the vehicle was defective the time of manufacture). competent to Defendants. I'laintilTmust lvlarIOlI'l/< .'ixhts. /IIC •• 549 A.2d 385. 390 (Md. Ct. Spec. ApI'. 1988) (plaintitTmust evidence breach of expert testimony Delendants argue that "under Maryland to establish in the original material or workmanship and that the defect existed at law. the plaintilTmust a prima Illcie case that his vehicle surtered of any of its systems:' present produce li'mll a defect ECF No. 50 at 14 (citing Gelleral Motors Corp .. 459 F. Supp. 2d 407 (D. Md. 2006»). According to Dcfendants. opinion lacks an adequate fllctual basis to support Plaintiffs that the vehiclc's contained defect because Johnson f\'(I/1.\' 1'. a manufllcturing between the defect and the manufacturer's contention Johnson's engine was unable to orter proof of the nexus act or omission causing the delect. See Ca/'ler I'. Shoppers Food Warehouse. 727 A,2d 958. 963 (Md. 1999) (expert testimony "has no probative ~ Under the Magnuson-Moss Act. an implied \varranty is defined ~s "an implied ,\"urmnty under state law:" 15 U.S.C. ~ 230 I. Written warranties are divided into full and limited warranties. but the Act only provides minimum standards for full \\'arrantics. IS U.S.C. 2303. Defendants' wan'anty was conspicuously labeled as a limited \\tarranty. and Plaintiff does 110t argue otherwise. S(!c! ECF No. 50-1 '115: IS U.S.c. ~ 2303(a)(2) ("'Ifthe written warranty does not Illeet the Federal minimum standards for warranty sel fOl1h in section 2304 oflhis title, Ihen it shall be conspicuously designated a 'limited warranty .... ). As such, the Act "requires no less than Maryland !.eJ' Law in order to establish breach of a limited or implied warranty as to a consumer product:' CrickeJ1hl!, ..•• \'. Hyul1dai ,\lOlaI' America. 944 A.2d I t36. 1145 (Md. 2(08). * 7 force unless there is a sufticient basis upon which to support"" the conclusions offered) (citations omitted). Delendants' principle concern with Johnson's to identify a "particular Specifically, deICct" attributable expert opinion is that Johnson was unable to Defendants' Johnson opined that the vehicle's act or omission. engine contained a leak caused by a warped head or tailed head gasket but did not specify the exact part that was defective, caused by a defect in the material itself or the workmanship, Iromthe originalmanufacturc deposition transcript)5 whether the delect was and whether the deICct stemmed of the vehicle or the 2013 repair. ECF No. 50-12 at 5-6 (Johnson Furthermore, while Johnson acknowledged leaking radiator can lead to the same damage observed possibility ECF No. 50 at 15. that driving a vehicle with a in PlaintilTs vehicle, he dismissed this even in the lilce of evidence that the radiator had been leaking. ECF No. 50-12 at 9- 10; see also id. at 12 (Johnson dismissing Despite Delendants' testimony, arguments, DaI'Cars' Rccommended in reviewing Johnson's Action Plan as "sales talk"). statement ECF Nos. 54-3, 50-12, the Court finds that Johnson's an adequate lactual basis, See Wood I'. is well settled that the trial judge-not adequate and deposition expert opinion is supported by Toyota, 760 A.2d 315, 321 (Md. Cl. Spec. App. 2000) (,.It the expert witness-determines whether there exists an lactual basis It)r the opinion at issue."). Johnson docs not presume that simply because the engine was damaged, conclusion a manulilcturing delect must have been the cause. Rather. Johnson"s that the damagc was due to a detect in the cylinder heads or head gaskets was based on his observation that he could hear coolant leaking into the engine block and that the damage 5 Defendants further argue that if the manufacturing defect was the result oflile 2013 repair. PlaintilTcan ollly recover under a claim of negligent repair. not breach ofwarml1ty. ECF No. 58 at 9. Ilowcvcr. Plaintiff submits page 18 of Defendants' subject \varranty. which provides that exchanged pm1s used in warranty rcpnirs have the sallle \varranties as new parts. ECr- No. 5-1.-1. Defendants omitted this page frol11 the exhibits provided with its motion for sUlllmary judgment and do not respond to Plaintitrs argument to this point in its reply brief. ECF No. 58. Moreover. Plaintiff's receipt for work performed in 2013 indicates Therefore. the Court assumes tlw,t any work performed covering the rest of the vchicle. that the P~1I1swere replaced in 2013 is covered by under \varranty. ECF No. 50-3. thc samc c.\prcss limited warrant il:s was similar to what was previously 50-12 at 5-6. (/: warranty Eml1S. sustained ECr No. in 2013 and covered under the warranty. 459 F. Supp. 2d at 411 (disregarding expert testimony on breach of claim when expert failed to offer an opinion as to whether the vehicle suffered defect during the warranty period and if that detect resulled in a diminution value). Johnson also had an adequate engine failure-he conducted from a in the vehicle's factual basis to dismiss a leaking radiator as a cause of the or observed a pressure test on three separate occasions and did not find any evidence that the radiator was leaking and further opined that the damage sustained the undercarriage of the vehicle was minor and would not have caused engine fllilure. ECF No. 54-3 'i~ 5. 9. That Johnson cannot pinpoint the exact part that was delective was attributed to the material itself or the workmanship render his opinion irrelevant. 1993) (allowing See Wa/son expert testimony I'. manufacturing material does not setting forth multiple potential sources of a design delect decide that it is more probable beyond mere speculation that would enable a than not that the damage was caused by a Co .. 779 A.2d362. 370 (Md. 2001)). DelCndants that cast doubt on the weight of Plaintiffs be persuasive with its installation delect. Crickenherger. 944 A.2d at 1143 (citing Ford ,\foroI' CO, I'. General Acciden/lnsurance arguments or whether the delect Sunhealll Corl'. 816 F. Supp. 384. 388 (D. Me!' causing a fire). Thus. Plaintiff provides evidence jury to rationally associated to to ajury. the existence e\'idence. ofa manulacturing introduce a number of and while these arguments may detect remains a genuine dispute of fact that cannot be resolved on a motion t()r summary judgment." Because the Court finds th<1tJohnson"s expert opinion has sliflicicllt evidentiary support. the COllrt need not fully address Defendants' argument that. in the absence of expert testimony. Plainti IT may not bring a manu Hlcluring defect claim. ECF No. 50 at 14. Nonetheless. the C01ll1 notes that under Maryland law. a plaintiff may rely 011 "an inference ora defect based on the happening Dran accident. where circulllstantial evidence tends to eliminate olher causes, such as misuse or alteration" Harrison. 54<) /\.2d at J()O. While expert testimony is required "whcn thc subject of the inference is so particularly related to some science or profcssion that it is beyond the ken of the average layperson:' it is not required for "matters of wh ich the jurors would be aware by virtue of COllllllon knowledge:" Wuod 1'. 7(~\,oltl Alolor Corp .. 760 A.2d 315. 318-19 (Md. Ct. Spec. App. 20(0) (internal quotations and citations omitted); set! also Laing 1', "olk.nl'ugt!l1 nfAmerh'(l. II/C.. 949 /\.2d 26. 39-40 (Md, Ct. Spec. /\pp. h <) H. Maryland Regardless Maryland Protectioll of whether Dcfcndants Consumer Protcction unfair and deceptivc warranties Consumer Act Claim (COUlit II) brcachcd the express or implied warrantics. Act claim cannot survi\'e. trade practices when reprcscnting and that in the event oCmalCunction unfair or deceptive dcccptive DeCendants' Law:' that the vehicle came with cxprcss limited Protection breach oCthc warranty. trade practicc. ""[Tlhe only allowance claims through evidence period. the vehicle would be Act prohibits the usc oC without more. is not an unl~lir or the Consumcr oCa breach of warranty Protcction is the specilic rcfercnce Emns. 4591'. Supp. 2d a1414 (holding that breach oCwarranty deceptive Maryland Act makes f(,r proving to thc Maryland Automotivc Warranty that unCair or deceptive Enforeemcnt DeCcndants misrepresentcd Act. also known as thc Maryland is granted in I~l\'or oCthc Defendants of the Lemon Law). Plainti 1'1' has not Lemon Law. and the rccord provides no indication the scope of the warranty or condition sale. Thus. summary judgmcnt see also trade practices include violations While Plainti Cfmay dispute whether the damage is covcred undcr the warranty. brought a claim under the Maryland Lemon is not an unl~lir or tradc practicc whcn scller did not know oCalleged delcct at time oCsak): CL ~ 13-30 I(14 )(xi) (providing used in the sale or otfer o("sale oCCOnSUlllCrgoods. CL ~ 13- trade practices 303(1 )-(2). Howcver. Plaintiff alleges that Defendants during the warranty fully repaid at no cost. ECF No. 27 '\17. Thc Consumer PlaintiJrs that of the vehicle at the time oC on Count II. C. Recovery of ConsC<luential Damages Plaintiff seeks recovery ineidcntal damages oCthe cost to rcpair the engine. as well as conscquential such as a rcntal car and Icasing ehargcs. towing expcnses. and credit card intcrest. 2008) (noting that an inference may reasonably he dra\vll that the product is inherently defective when. for example. a new vehicle malfunctions and results in an accident). Therefore. even if Johnson's eXpCt1 opinion is ullable to identify a spccilic defect in the engine. the circumstantial evidence surrounding the damage could sUPP011 an inference oflhe existence ora manufacturing defect. 10 and vehicle storage fees. ECF No. 27 '1'16. 7: .1'1.'1.' ECF No. 34. The vehicles' olso warranty booklet provides that: The warranties contained in this booklet arc the only express warrantics that Chryslcr Group LLC (Chrysler) makes for your vehicle. Thesc warranties give you specitic legal rights. You may also have other rights that vary Ii'om state to state. For example. you may have some implied warranties. depending on the state where your ,'ehicle was sold or is registered. These implied warranties arc limited. to the extent allowed by law. to the time periods covered by the express written warranties contained in this booklet. ... Your warranties don't cover any incidental or consequential damages connected with your vehicle's failure. either while under warranty or alierward .... Some states do not allow limitations on how long an implied warranty lasts. so the above limitations may not apply to you . .'II.'I.' ECF No. 50-1 at 5. Defendants consequential argue that the language in thc cxpress limited warranties damages in accordance language of the warranty exclusions Implied Warranties Two Maryland Commercial WatTanty. Under ~ 2-719(3). or exclusion those warranties." A11II1ol1)' Pools or modifying Maryland by Maryland damages damages Code whether a for breach of an implied unless the under ~ 2-316.1 (2). a seller of consumer an implied warranty. or the "remedies courts have considered I()r breach of ~ 2-316.1 independently. \' . .'1111.'1.'11011.455 A.2d 434. 441 (Md. 1983) (holding implied warranty of merchantability law. may be limited or excluded However. the the Court appear to be in conflict regarding consequential is unconscionable."? Although that can be recovered. under the MaIJ'land Commercial "consequential goods is barred 1i'0I11excluding arc permitted Code provisions seller may bar a buyer from recovering limitation law. ECF No. 50 at 20. Although places clear limits on the damages must decide whether the identilied l. with Maryland properly excludcs that contractual SI.'I.'. I.'.g. disclaimer of was inelTective under ~ 2-316.1 without considering 7 This provision also states that a "[Ilimitation of consequential damages for injur:' to the person in the case of consumer goods is prima facie unconscionable ... :" Sc!e ~ 2-719(3). Although the vehicle here meets the definition of a consumer good .. H'e * 9~ I02. the injury was not 10 a person. II consequential damages): ApI'. 1988) (upholding a "consumer" Boalel Induslries. Inc. \'. lIesler. 550 A.2d 389. 400 (Md. Cl. Spec. warranty's exclusion and recovery of consequential reconciling of ~ 2-316.1). applicability damages of manufacturers' Ii'om a Maryland state court ~ 2-316.1 (2) with ~ 2-719(3). appear to cover overlapping applies to both express and implied warranties. seller from "modify[ing] merchantability]." the consumer's 1'. by imposing Defendants In contrast. ~ 2-316.1 (2) expressly ... and ~ 2-719(3) f()r breach of implied warranties. damages." damages for breach of the implied under ~ 2 719(3) because ~ 2-316.1 (2) only prohibits the limitation rell/edies. which. they contend. is distinguishable ECF No. 58 at 13 (citing I'alapsco Designs. Inc. In Palal'Sco. this Court considered a is not. the Court will apply ~ 2- on the recovery of consequential Defendants' prohibits Cardal/. 826 F.3d 721. 735 (4th Cir. 2016). Given that argue that they may exclude consequential (D. Md. 2(03)). damages the specific tcrms ofa statutory cannot modify any remedies a prohibition of consequcntial that for breach of [the implied warranty of construction ~ 2-316.1 (2) is specific to implied warranties. 316.1 (2). meaning that Defendants areas. it is noteworthy lor the limitation remedies "As a rule of statutory scheme govern the general ones," D.B. 472.478 not but noting that subject warranty was made prior to ~ 2- 719(3) docs not speei fy whether its allowance warranty because Plaintilrwas limitation on implied warranty this Court is not aware of any decisions While the two provisions including damages covered under ~ 2-316.1 ): McCarly \'. KOiTelle. Inc.. 347 A.2d 253. 259 n.7 (Md. Cl. Spec. API'. 1975) (considering promulgation of consequential Ii'om a limitation 1'. or modification or modification o I' dOli/ages. DOli/inion Wireless. loc .. 276 F. Supp. 2d reliance on I'alapsco for this proposition a potentially of is unpersuasive. similar conflict bet\\'een ~ 2-719(2) and ~ 2- Alternatively. because ~ 2-316.1 (2) provides that lefms modifYing remedies for breach of an implied \\/arranty are unenforceable. the Court considers that such terms would be unconscionable under '2-719(3) and likewise It disallowed. 12 719(3). Whereas ~ 2-719(3) permits a seller to limit or exclude consequential 719(2) provides that when an "cxclusive remedy may be had as provided ltails J or limited remedy in Titlcs 1 through ~ 2- damages. of its essential purpose. 10 of [the Maryland thus. seeming to expand the range of remedies to include consequential Commercial damages Codc]:' despite the language of ~ 2-719(3). See id at 476. While the Court held thaI a provision excluding consequential damages survives as an independent consequential damages evcn where ~ 2-719(2) is triggcrcd by a Illilure of an exclusive remedy. id. the Court did so without explicitly "remedies" and "damages'" And the Court's in Titles 1 through than a more general provision. prohibits the limitation applying ~ 2-316.1 (2). Defendants' warranty the exclusion any material distinction of additional remedies. contlicting of a consluner's provision of or limited between given that ~ 2- See ~ 2-719(2) (a "rcmedy 10 of this article") (cmphasis the seemingly explicitly addressing allowing tinding thcrc seems reasonable. 719(2) only appears to open up the possibility ma)' be had as provided provision. addcd). Ilcrc. rather is more specitic as it is unenti)rceable. exclusion remedy for an implied warranty. Thereforc. of consequential damages for brcach of its implicd 9 2. Is the Exclusion of Consequential Ihmages in the Express Limited \Varrant)' Unconscionable While ~ 2-316.1 (2) prohibits a limitation provision does not apply to cxpress warranties. on rcmcdies tiJr implicd warrantics. that Thus. ~ 2-719(3) docs apply to thc cxprcss '/ Defendants rely 011 two other cases to suppon its contention. but neither case is pcrsunsivc. SL'l' ECF No. 50 <112021 (citing Bond \', Nihco. Inc., 623 A.2d 731 (Md. Ct. Spec. App. 1993) and 8url1 \', Ford ,lImo,. Co .. No. 4:07CV000387. 2008 WI. 373659 (W.D. Va. Feb. 11.2008». tn BOIld. the Maryland Court of Appeals upheld a seller's exclusions of incidental and consequential damages: however. the court recognized thallhc sale of goods was in a "colllmercial context:' and it did not consider ~ 2-316.1. Bond. 623 A.2d at 739. In Burl!. the U.S. District Court for the Western District of Virginia. in considering \vhethcr Plaintiff satisfied the amount in controversy requirement within the Magnuson-Moss Act. found that a car manufacturer's disclaimer of consequential damages \""aspermissible under Virginia's Commercial Code. which adopted the U.C.C. and mirrored ~ 2-719(3), Burlf. 2008 WL 373659. at *5 (citing V A Code ~ 8.2-719(3)). However. the court did not consider breach of an implied warranty of merchantability. and the Virginia Commercial Code does not contain an analogous restriction on the exclusion or modification of\varranties as found in ~ 2-316.1 orthe Maryland Comlllercial Code. , 1 -' warranty and permits exclusion ofconscquential damagcs unless it is unconscionablc. Plaintilrs Amcndcd Complaint fails to set forth any facts suggesting that Defcndants' cxclusion of consequcntial damages for the exprcss limited warrantics was either substantivcly or proccdurally unconscionable. See ECF No. 27. Specifically. thcre is nothing in the terms of the contract that is oppressivc or unfair. See l'atapsco. 276 F. Supp. 2d at 478-79 ("The underpinnings of the 1ll1conscionability doctrine arc thc prevention of oppression and unlilir surprise:'): see also Kru~er 1'. SI/baru ofAlllerica. IlIc.. 996 F.Supp. 451. 458 (E.D. Pa. 1998) (finding that similar limitation of consequential damagcs in an cxprcss warranty for car purchase was not unconscionable because it did not unreasonably liwor car manulilcturer and Plaintiff received warranty book at timc of sale). I'laintilTalso admitted that hc rcceivcd a copy ofthc walTanty and discussed its terms with the sales representativc. See ECF No. 58-4 at 8: see also IValther \'. Smweigll Balik. 872 A.2d 735. 744 (Md. 2005) (procedural unconscionability deals with the proccss of making a contract and looks "much like fraud or duress in contract formation") (citation omitted). As such. Defendants pcrmissibly limited the terms of its express limitcd walTantics. and Plainti 1'1' may not recover consequential damages pursuant to any breach of thc cxprcss limitcd warrantics. D. I'laintifrs Motion to Strike I'lainti ITmoves to strike a portion of Morton' s July 10. 2017 declaration. ECF No. 50-14 '19. where he opincs that the engine damage was caused by a coolant leak f()lIowing damage to the radiator. See ECF No. 55. I'laintiffargues that Morton's Expert Designation Disclosure ("Disclosure"). ECF No. 55-1. providcd by Defendants during discovery on March 1. 2017. did not indicate that Morton "would render opinions that 'damage to the radiator caused a coolant 14 leak. The damage sustained workmanship by the radiator was not caused hy any defect in material or to the delcndants .... ECF No. 55-2 at I (citing ECF No. 50-14 '[9). attributable Under Federal Rule of Civil Proccdurc repOI1 during discovery containing the basis for those opinions, a complete 26(a)(2), an expCI1 witness must providc a wriltcn statcment of all opinions the witness will express. and the facts or data considercd Fed, R. Civ. P. 26(a)(2)(B)(i). (ii). In addition. a pal1y has an ohligation repOI1 if it learns that "in some material respect the disclosure incorrect. and if the additional or response has not otherwise is incomplete the expel1 or becn made known to II/c .. 534 F. Supp. 2d 616. 622 (D. Md. 2008), Techl/%gies Morton's information to supplement Fcd. R. Civ. P. 26(c)( I leA): see a/so COI1/ech S/ol'11l1l'l1ler SO/UIi<JIlS. /I1C. \'. the other partics." Ba)'sl/I'eI' or corrective by the witness in forming them. Disclosurc does not affimlatively state that damagc to thc radiator caused a coolant Icak. In fact. Morton states that he was unable to confirm. hut could not rule out. a coolant leak whcn inspecting the vehicle in February 01'2017. ECF No. 55-1 at 4. However. Morton states that he "concurs was driven for an extended with the prior expert report of Mr. Kenny Kase that the vehicle period without a propcr amount of coolant, which caused the cnginc to overheat and fail." Id. He also states that in f(Jnlling his opinions. upon pertinent pleadings. discovery filed or takcn in this malter. the service history of the vehicle. as well as any expert reports generatcd by the plaintilTs 3. A review of Kasc's expert report. and other discovery PlaintitTwas "he may review and rcly expert(s) in this action." Id. at taken in this matter. makes clear that on notice that Morton may rely on evidence suggesting that a leaking radiator led to the engine failure. Defendants December 13.2016. provided Kase's preliminary vehicle rcport summary prior to the start of discovery. to Plaintiff on See ECl' No. 56-2. Kase statcd that whilc hc 15 was also unable to observe a leak in the radiator. the dealership's initial inspection report indicated a slow leak in the radiator. and it was his expcrt opinion that the engine failed "as a result of being in the Ihlllt end collision and not a defect in product or workmanship. Due to thc accident damaging the lower radiator mount and radiator. the engine coolant leakcd out of the damaged radiator causing the engine to overheat." ECF No. 56-2 at 4. All of the information supporting Kase's expert opinion. which was adopted by Morton. was available to the Plainti ff prior to the completion of discovery. Darcars' Recommended Action Plan clearly states that its technicians "found radiator slow leaking due to accident." ECF No. 50-5 at 3. Delcndants also indicated that they may rely on materials received Ii'om Erie Insurance as rclated to Plaintiffs insurance claim dispute. ECr: No. 56-5: ECF (Defendants' Response to Plaintiffs 10.56-6 at 3 First Request for Documents). These materials include photos lrom Horton showing damage to the underside of the vehicle. ECr: No. 50-8: 50-9: 50-10: 50-II. While Morton's July 10. 2017 declaration also relies on Horton's deposition. which occurred on June 6.2017. aner Defcndants provided Morton's Disclosure to Plaintiff nothing set forth in Morton's declaration advances any materially di fferent theories or facts in support of his position. Therefore. Morton's Disclosure provided Plaintiff with ample notification to support his expert opinion that the damage to the engine was caused by a leaking radiator not otherwise attn'b uta bl e to a manu f" actunng d e I" 10 . ect. III Even ifMorton's Disclosure failed to disclose his opinion on the It:al\ing radiator. such non.disclosure was harmless. In IJresla l', Wi/minx/on Trust Co .. the Fourth Circuit provided that district courts arc guided by the follO\\'ing factors in determining \\-'hether a party's non.disclosurc \vas harmless: I) surprise to the opposing pm1y: 2) ability oftl1at party to cure the surprise: 3) extent to which the evidence would disrupt trial; 4) and the importance of the evidence. Bresler. 855 F.3d 178. 190 (4th Cir. 2017) (citing S. SlulL's Ruck &- Fhlllre. 111c.\'.. (,,'her1l1un-Williums Co., 318 F.3d 592, 597 (4th Cir, 2003)). While Monon's stalement in question is certainly impol1anl. the record shows that Plaintiffwas aware of this theory of failure. was able to depose MOJ1on 1O further inquire into his opinion, and Plaintiffs claim survives Defcndanls' motion for summary judgmcnt hercin. 16 IV. CONCLUSION For the foregoing reasons, Defendants' Motion to for Summary Judgment. ECI' No. 49. shall be granted. in part. and denied in part, and Plaintiff-s Motion to Strike. ECF No. 55. shall be denied. A separate Order follows. Dated: FebruaryZ ~- b. 2018 , GEORGE J. HAZEL United States District Judge 17
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