COMPUTER NETWORK INC V AM GENERAL CORPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
COMPUTER NETWORK, INC.,
February 24, 2005
AM GENERAL CORPORATION and PFEIFFER
Kent Circuit Court
LC No. 02-003432-CP
Official Reported Version
Before: Hoekstra, P.J., and Griffin and Borrello, JJ.
HOEKSTRA , P.J., (dissenting).
Because I would affirm the dismissal of this case, I respectfully dissent.
Regarding plaintiff 's claim for breach of an implied warranty of merchantability against
defendant AM General, I would hold that summary disposition was appropriately granted. Here,
plaintiff leased a model H1 Hummer, which is essentially an off-road military vehicle that is sold
to the public. Plaintiff took delivery of this vehicle on June 29, 2000, at which time the Hummer
had been driven a total of thirty miles. On August 9, 2000, plaintiff presented the vehicle for its
regularly scheduled 3,000-mile service check, and in addition complained only of an air
conditioning problem, a loose Velcro strip on the tailgate, and condensation on the dashboard.
Ultimately, the vehicle was driven more than 46,000 miles, many of which were off-road,
throughout the entire thirty-month lease period. Such use approached the 50,000 miles
contemplated in the lease and exceeded AM General's 36,000-mile express warranty. Although
this Hummer was undoubtedly less than perfect, its condition shortly after delivery and its
extensive use by plaintiff during the period of the lease preclude a finding that the vehicle was
defective at delivery. Moreover, even though numerous repairs were necessary, each repair was
successfully completed at no cost to plaintiff. Under these circumstances, I conclude that
plaintiff is unable to establish that the vehicle was defective when it left the possession of either
the manufacturer or the seller. See Guaranteed Constr Co v Gold Bond Products, 153 Mich App
385, 393; 395 NW2d 332 (1986). Further, unlike the majority, I find that Int'l Financial Services
Inc v Franz, 515 NW2d 379 (Minn App, 1994) aff 'd in part and rev'd in part on other grounds
534 NW2d 261 (Minn, 1995), in which the plaintiff offered expert testimony indicating that the
product at issue there "required an unusual amount of service" and suffered an "'unacceptable'"
amount of "'down' time," is distinguishable. See id. at 383 (emphasis added). In this case,
however, plaintiff offered no expert testimony regarding whether the Hummer was defective as a
result of the number and type of repairs or the length of time that it was out of service, even
though the vehicle was designed for the military and was used off-road.
For the same reasons, I also disagree with the majority regarding whether a question of
material fact existed with respect to plaintiff 's claim of breach of implied warranty under the
Magnuson-Moss Warranty Act, 15 USC 2301 et seq.
In all other respects, I agree and join with the majority.
/s/ Joel P. Hoekstra