*1 Computer v AM General NETWORK, COMPUTER INC AM GENERAL CORPORATION 7, 2004, Rapids. Docket No. 248966. Submitted December at Grand February 24, 2005, Decided a.m. at 9:05 Network, Inc., brought an Kent action in the Circuit against Infiniti, Corporation Inc., Court General and Pfeiffer raising seeking damages and various claims related to a much repaired by Hummer vehicle manufactured AM General and plaintiff court, leased the from trial Pfeiffer Infiniti. The Kolenda, J., granted summary disposition Dennis C. for the plaintiff appealed defendants. The the dismissal of claims based on express warranty, implied warranty breach of breach of mer- acceptance, chantability, Michigan revocation of the Consumer Act, Michigan and Protection lemon law. Appeals The Court of held: provide warranty, express 1. Infiniti Pfeiffer did not an so summary disposition company proper regarding for that was express warranty. provide
breach of AM General did warranty, provided but each time the Hummer was service, presented plaintiff accepted for and the used it and after service, obviating express warranty thus the claim of breach of against AM General. properly any implied 2. Infiniti Pfeiffer had disclaimed war- ranty merchantability, conspicuously writing, and in so sum- mary disposition theory appropri- on Pfeiffer Infiniti was plaintiff ate. AM was a The warrantor. to file entitled against suit AM General under 15 USC 2310 for written both and implied genuine regard- A warranties. issue of material exists fact ing plaintiffs against claim AM General for breach of warranty Summary disposition for AM General the issue of on implied warranty improper. breach of Summary disposition properly granted 3. for Pfeiffer plaintiffs theory acceptance Infiniti on the of revocation of the provides acceptance the vehicle. MCL440.2967 for revocation of product substantially nonconformity impairs whose its value. duty timely may in a lessee has to revoke not manner using good, good continue hold but must with reasonable case, attempted years care. In this revocation occurred two lease, thirty-month the lessee delivery the vehicle on a after timely revocation That is neither continued to use the vehicle. had by the holding reasonable care as envisioned the vehicle with nor statute. Michigan Consumer no claim under the 4. The has *2 supply Act, seq. act does not 445.901 et That
Protection case, purchased primarily where, an item is protection as in this personal pur- purposes rather than or commercial for business appropriate. Summary disposition poses. law, seq., inapplicable Michigan’s MCL 257.1401 et lemon 5. problem and applies is the same has it to a case where the because repair attempts, a reasonable number of corrected after not been The problem impairs the use or value of vehicle. and the support finding allegation plaintiffs noise does not of wind and, plaintiff vehicle, repair, impaired after use or value of the complaint AM or Pfeiffer further to either General made no problems reported no that continued Infiniti. Because there were exist, lemon law claim. there is no part, part, for further in reversed in and remanded Affirmed proceedings. EJ., dissenting, summary disposition on stated that Hoekstra, warranty merchantability implied the claim of breach of an granted. plaintiffs against appropriately The use AM General was 46,000 miles, many more than of which were of the vehicle totaled 50,000 contemplated approached miles in use off-road. Such 36,000-mile express AM war- the lease and exceeded General’s 3,000-mile checkup ranty. and the vehicle at its The condition of finding by plaintiff preclude the extensive use successfully delivery. was defective at Each vehicle plaintiff. plaintiff completed is unable to at no cost to the possession left the that the vehicle was defective when it establish expert provided and no of either the manufacturer the seller reasons, Judge testimony regarding defects. For the same Hoek- majority question disagreed material fact that a stra plaintiffs claim of breach of exists with Warranty Act, Magnuson-Moss 15 USC 2301 under the majority seq. Judge in all other HOEKSTRA concurred with the et respects. Services, Romano, (by Mark Inc Legal Consumer Winkler), Delezenne, and A. for Christopher Matthew W. Network, Inc. Computer Network v General op Opinion the Court Ladue, (by
Boveri Rice & LLP John D. Murphy Ryan LaDue), for AM General Corporation. EJ,
Before: and GRIFFIN JJ. HOEKSTRA, BORRELLO, J. Plaintiff as of an order appeals right GRIFFIN, granting summary disposition. defendants’ motions affirm in in part part. reverse We
i On June plaintiff, through action of its 29, 2000, Deskovitz, president John leased 2000 Hummer ve- hicle manufactured defendant AM Corpora- thirty-month tion. Plaintiff obtained a expiring lease through Infiniti, December defendant Pfeiffer Inc. But, lease, before filed expiration instant alleging required lawsuit the vehicle re- on at fourteen1 pairs during least occasions lease *3 it was out period that of service for an unreasonable amount of Plaintiff time. asserts that the documentary evidence submitted to defendants’ opposition mo- that tions established the vehicle was out of service for days during thirty-month lease.2 199 problems Plaintiff claimed that with the vehicle neces- sitating repairs engine problems, included starting problems, malfunctioning signals, turn power steering leaks, vibration, fluid steering, excessive defective mal- functioning air gauges, conditioning, defective odom- and speedometer malfunctions, eter heating, defective control, cruise malfunctioning inoperable CD player, rust, excessive and defective painting. Following hear- 1 argument summary At the time of oral on defendants’ motion for disposition, required repairs had on vehicle seventeen occasions. 2 days that the out Defendants claim actual of service are less than although they specify fail to an actual number. App Mich 309 265
312 Opinion the Court by brought summary disposition on motions for ing 2.116(C)(10), the trial under MCR defendants both of defen- in favor summary disposition granted court 2.116(C)(8), and one under MCR eight on claims dants 2.116(0(10). MCR claim under
ii the trial court errone- argues that initially Plaintiff MCR under ously summary disposition granted summary 2.116(C)(8), moved for where defendants 2.116(C) (10). argues Plaintiff under MCR disposition authority grant sua the trial court lacked 2.116(C)(8), under MCR summary disposition sponte this subrule was summary disposition given opportunity it was not also because improper disagree. a motion. oppose such We by the necessarily court is not constrained A trial summary dispo moves for party under which subrule that, brings a party where sition. It well-settled wrong under the sub- summary disposition motion for appropriate under the rule, may proceed a trial court Cab is misled. Blair v Checker party subrule if neither (1996); Co, 667, 670-671; 558 Mich App Co, Inc v Contracting Algonac, Electrical Ruggeri case, 12, 18; In this Mich 492 NW2d trial nor prejudiced was neither misled motions under consideration of defendants’ court’s 2.116(C)(8). MCR “ 2.116(C)(8) legal under MCR tests ‘A motion ” v complaint.' Adair
sufficiency
Michigan,
deleted).
(citation
(2004)
105, 119;
680 NW2d
Detroit Bd
Corley
are considered.
alone
pleadings
“
*4
(2004).
Ed,
‘All
274, 277;
In reaching
decision,
our
emphasize
we
that our
review of summary disposition decisions is done de novo.
Quality Products & Concepts
Precision, Inc,
Co v Nagel
(2003).
362, 369;
469 Mich
Moreover,
NW2d 251
even if a trial court errs in granting summary disposition
subrule,
under the wrong
may
this Court
review the
issue under the correct subrule. See
Spiek Dep’t of
Transportation,
9;
338 n
hi for of ex- to claims breach respect plaintiffs With language the warranty, concedes that plaintiff press express 2000 Hummer contained the lease for the Pfe- warranty by defendant language disclaiming any provide Infiniti did not iffer Infiniti. Because Pfeiffer summary disposition plaintiffs express warranty, Pfeiffer Infiniti was warranty against claim express warranted. However, express warranty. offered an General to respect
no material of fact existed with question Deskovitz, warranty. plaintiffs that John breach of repairs at that were principal, deposition testified his warranty that re- never refused. The record revealed made each of the seventeen times the vehicle pairs were ques- there was no presented for service. Because breach, summary to a tion of material fact with (10) 2.116(C) disposition proper. under MCR argues Plaintiff if the time taken nevertheless unreasonable, there a claim for may be repairs of the fact that express warranty, regardless breach argues all made. Plaintiff repairs actually were repairs there is a of fact whether the were question reasonably timely Kelynack made in a fashion. In USA, 105, 111; Corp, Yamaha Motor 152 Mich (1986), that, Court held a limited NW2d this where warranty fails of its essential or de- purpose bargain, either of the value of the the prives party may other remedies under the Uniform parties pursue (UCC), Further, seq. Commercial Code MCL 440.1101 et a manufacturer or dealer has limited its “[w]here obligation... repair replace parts, defective time make the seller does not have an unlimited rather repairs, replace parts but must at 112. Kelynack, supra “[A] within a reasonable time.” v AM fails of purpose its essential where unantici from pated preclude providing circumstances the seller remedy buyer parties agreed, to which buyer in which event the to seek entitled remedies standard warranty provisions.” UCC Severn v 413-414; Corp, App 406, Sperry case, In this there was no evidence indicating that the manufacturer’s limited failed express warranty purpose. contrary, of its essential To the time every vehicle, presented made. this respect, present distinguishable case is from most defective vehicle cases. See v Rod Baxter Imports, Durfee *6 Inc, (Minn, 1977), and cases cited therein. Additionally, there no evidence that the time was allotted for the was presented repairs unreasonable under the particular circumstances. There differ were numerous repairs ent to the vehicle over a lengthy period, most of repairs. which were not repeat Plaintiff relies on the aggregate repair days argue number of to that there is a question fact the repairs of whether time for was unrea However, sonable. it offers no evidence that to the time perform numerous, the individual was unreason specific able for this is not like Ke vehicle. This case 112, at which lynack, plaintiff presented in his supra vehicle for because of a noise and the tapping vehicle was not returned for more than three months. Severn, Nor is case similar to in this which defendant Here, was to repair machinery. unable the vehicle returned, always repaired, Be accepted, used. fact, cause there was question summary no of material 2.116(0(10) under disposition MCR was appropriate.
IV respect plaintiffs implied With claim for breach of merchantability, summary warranty disposition Opinion the Court it Infiniti because Pfeiffer for defendant appropriate writing any in conspicuously disclaimed properly MCL 440.2864. merchantability. warranty of implied invalid under 15 USC was not The disclaimer an express that has offered supplier precludes which a limited war- disclaiming modifying warranty from Pfeiffer than duration. any respect other ranty Thus, warranty. provide Infiniti did not material fact with no question there is of an Pfeiffer Infiniti for breach against claim plaintiffs merchantability. Summary disposi- warranty of appropriate. tion was obligated
However, defendant it at- merchantability. While warranty an implied limiting modify implied warranty by tempted to warranty, to those offered under the written remedies 2308. On this disclaimer was invalid under USC this issue, this Court has stated: merchantability warranty requires industry.
goods average quality A sold be of within particular purpose requires of fitness for a they goods purpose be for the are sold fit which intended; advantage type in order to take of this of war- ranty, know, sale, must at the time of the seller *7 particular goods required and purpose for which the are buyer relying or also that is on the seller to select goods. furnish suitable prima implied
To establish a
facie case of breach of
warranty,
goods
a
must show that
were defective
they
possession of the manufacturer or seller.
when
left the
warranty theory,
a defect is established
Under
intended,
product
reasonably
proof that a
is not
fit for its
v AM General
Opinion
Court
of the
reasonably
anticipated or
foreseeable use. Merchantable is
perfect.
synonym
not a
The
merchantabil-
ity
goods
average quality
industry....
are of
is that
in the
accepted,
buyer
goods
As to
the burden is on the
any
warranty.
[Guaranteed
establish
claimed breach of
Products,
385,
App
Gold
Constr Co v
Bond
Mich
(citations omitted).]
(1986)
392-393;
Financial
Inc v
Testimony system serviced 19 times and shows inoperable four to six times more often than the it was system. expert] average [The defendant’s testified that surges power even if some service calls were related to handling system during delivery storage, and/or There total number of service calls here was excessive. also testimony regional managers that one of Gerber’s sales system problem. and a called the a “lemon” system bought by Franz There is evidence the 3235 trade, Engineering pass objection could not without in the ordinary Accordingly, purposes,.... was not fit for its jury reasonably could found . .. Gerber breached its have warranty merchantability. v AM General Although constantly repaired malfunctions, Gerber evi- dence indicates that the number of malfunctions was unusually high, system inoperable during those times, system properly never functioned for the ordinary purpose Therefore, for which it was to be used. *9 persons reasonable deprived could find Gerber Franz En- gineering of the bargain. essential value of their We hold jury properly remedy found the failed of its essential purpose. [Id. at 384-386.]
Likewise, in the present case, that, we hold at a minimum, genuine a issue of material fact exists for the by resolution the trier of fact regarding plaintiffs claim against defendant AM General for breach of implied warranty. See also Wilson v Electronics, Marquette Inc, (CA 1990). 8, 630 F2d 575
VI With respect to the two pleaded claims under the Magnuson-Moss Act, Warranty 15 USC 2301 et seq. provides remedies to consumers for breaches of and implied warranties and permits consumers to file suit for damages. A “warrantor” is a “supplier or other person who gives or offers to give a written warranty or may who is or obligated be implied warranty.” 2301(5). 15 USC A “written warranty” is any promise written affirmation of fact or written made in connection with the sale product by of a consumer a supplier buyer ato which relates to the nature of the workmanship material or and promises affirms or such material or workmanship is defect free or will meet a specified performance level of specified period over a time,... any undertaking writing or in connection with by supplier the sale a product refund, of a consumer repair, replace, or take other remedial action with product product to such in the event the fails meet the specifications undertaking.... set forth in the [15 USC 2301(6).] for a to a consumer remedies provides 15 USC breach, by the damaged who is warranty. A consumer warrantor, contractor to or service supplier, a failure of 2301 et seq., under 15 USC any obligation comply with comply with written failing to including other damages warranties, may bring suit 2310(d)(1). purposes For the 15 USC remedies. actually making the warrantor “only USC fact, undertaking promise, affirmation of written warranty, a written deemed to have created shall be be enforced under arising may thereunder any rights and no other such warrantor only against this section 2310(f). person.” See USC case, give Infiniti did not or offer In this Pfeiffer It sold an extended warranty as a warrantor. written Motors, the exclusive offered warranty However, it for AM General. distributor Hummer of the written disputed cannot be “warrantor” Motors, not Pfeiffer extended was General *10 made no written affir- express Infiniti. Pfeiffer Infiniti mations, undertakings respect with promises, replace- respect repair, of the vehicle or with quality ment, obligated also not or refund. Pfeiffer Infiniti was validly it disclaimed implied warranty under an because law, as implied previously warranties state Infiniti MCL 440.2864. Because Pfeiffer was discussed. 2310 could not warrantor, not a an action under 15 USC questions it. There no against be maintained warranty claims respect material fact with to breach Magnuson-Moss Infiniti under the War- against Pfeiffer Therefore, prop- was ranty summary disposition Act. defendant Pfeiffer Infiniti. erly entered in favor of However, AM a warrantor. It defendant General was on undisputed provided it written Thus, to file suit Hummer. was entitled AM 2310(d) AM against General under 15 USC for damages under both written and implied warranties. For these claims, plaintiff alleged that AM General failed to repair properly repair defects and failed to honor warranty. written It alleged also that AM General’s actions constituted a breach of implied warranties. regard to express warranty claim, the record reveals that the vehicle repaired every was time it brought repairs. for Deskovitz admitted that repairs were Thus, never refused. there question was no of material fact with respect to AM any General’s breach of warranty. However, there was a question material fact with respect implied breach of warranty. There was evidence that the vehicle was not of average quality, that it was not fit for the purpose of transportation, it failed to provide transportation, and circumstantial evidence that it was defective when it left the hands of defendant General. Because there a question material fact respect to whether war- ranty breached, summary disposition on plaintiffs claim under the Magnuson-Moss Warranty against Act defendant AM General was erroneously granted.
VII With to revocation of acceptance, summary disposition was appropriate for Pfeiffer Infiniti under 2.116(C)(10).4 MCR provides 440.2967 that a lessee may revoke acceptance of a lot or commercial unit whose nonconformity substantially impairs its lessee, value to the that revocation must occur within a reasonable time after the lessee discovers or should have ground revocation, discovered the that revoca- tion is not notified, effective until the lessor is and that against *11 stipulation Plaintiff dismissed this claim AM General on summary disposition hearing. before the App
322 Mich 309 and duties rights the same has who revokes a lessee had if the lessee involved as goods regard with rejected them. the 2000 Hum that case, assuming arguendo
In this substantially impaired nonconformities alleged mer’s not occur within revocation did plaintiff, its value facts are of law. “Where time as a matter reasonable a reason of what constitutes question undisputed[,] Inc v Ford Gray, of law.” S C question time is a able (1979). Co, 789, 817; 286 Mich NW2d App Motor Co, 224 App Security v First Cas also Moore See (1997) (where reasonable 370, 379; 568 time differ, whether a reasonable may the issue minds minds but, if reasonable jury question, expired has is differ, summary disposition appropriate), cannot Rapids, Nat'l Bank Grand Stoddard Manufacturers 4;n 140, 146-147 593 NW2d Plaintiff leased facts are not dispute. The material Plaintiff did not on June 2000. the 2000 Hummer acceptance to revoke notify Pfeiffer Infiniti of its desire more than 26, 2002, March when the lease was until Plaintiff had the Hum completed. presented two-thirds time, and its mer for numerous before Hummers and their prior experience had principal began plaintiffs principal issues. When various had Hummer, the 2000 as he had having trouble with he was possessed, Hummers he with the 1997 Yet, he until for revocation. waited grounds aware of notifying end Pfeiffer the lease was close to its before circumstances, reason Under the Infiniti revocation. notification minds could not differ over whether able time. within a reasonable occurred failed to Moreover, question is no there claiming after revocation. with its duties comply 440.2967(5) has the a lessee who revokes provides that *12 323 v same to the as if rights goods goods duties rejected. MCL 440.2962 delineates the duties of lessee use upon rejection goods. Continued is goods Rather, 440.2962, not an under MCL option. a lessee goods must hold the with reasonable care for a reason- able time. If no provided by instructions are the lessor time, goods within a reasonable lessor, lessee may goods, ship store the them to the dispose of them and reimburse the lessor. Plaintiff failed to hold the 2000 Hummer with reasonable care or comply Rather, otherwise with its plaintiff duties. con- tinued to use vehicle for the term full of the lease while the suit was pending. reject plaintiffs argument
We that it was entitled to mitigate use the vehicle to damages. MCL 440.2962 does not permit continued use. In Henderson Chrysler Corp, 337, 340-341; 191 Mich App 477 505 NW2d (1991), Court discussed the this differences between a claim for revocation and claim for doing rescission. In so, that, it acceptance good revoked, noted when is a buyer may good resell using or continue it to mitigate damages and cited Machine & Co v Fargo Tool (ED F Kearney Corp, Supp 364, & Trecker 1977), Mich, in support of its In Fargo decision. Ma chine, however, the was clear court that continued use goods after revocation is acceptable only excep in tional circumstances, e.g., where alternative to going continued use was out of business or where the buyer not could find another place live and aban possible. doned use as soon as court in Fargo unequivocally Machine did not state that goods may always be used after revocation. note in both We Miller, 452, 460; Dodge, Colonial Inc v 420 Mich (1984), King, at which supra cites, the held the buyers vehicles with reason able care after revoking acceptance. They did not con- Opinion Court recognizes Even if this Court vehicles. to use the
tinue revocation, use after continued exception circumstances. only exceptional applies exception in this case. circumstances exceptional no There were disposal vehicle at its one other Plaintiff had at least leased vehicle another have obtained and could in its duties Plaintiff failed damages. mitigate not effective. such, revocation was 440.2962. As its fact, material sum- questions no there were Because 2.116(0(10) appropri- under MCR mary disposition ate.
vm
*13
for the
summary
appropriate
was
Finally,
disposition
(MCPA) claims be-
Protection Act
Michigan Consumer
fact whether
no
of material
question
cause there was
The
purposes.
for business
primarily
the lease was
supply protection
does not
MCPA,
seq.,
MCL 445.901 et
or
for business
purchased primarily
item is
where an
ones. Zine v
personal
rather than
purposes,
commercial
261, 273;
IX additionally challenges Plaintiff the trial court’s dis- claim, missal of its “lemon law” 257.1401 seq. MCL et provides: MCL 257.1402 any
If a motor new vehicle has defect or condition that impairs the use or value motor vehicle new to prevents or consumer which motor from new vehicle conforming to the express warranty, manufacturer’s type manufacturer a new motor vehicle of that dealer motor shall vehicle the defect or condition as re- quired initially [MCL 257.1403] if the consumer reported the defect or condition to the manufacturer or the vehicle following new motor dealer within 1 of the time periods, is whichever earlier:
(a) During the term war- manufacturer’s ranty in effect. (b) year later delivery Not than from the date original
new motor vehicle to the consumer. 257.1403(1) provides: If reported a defect condition that the manu- pursuant facturer or new motor vehicle [MCL dealer *14 to 257.1402] continues exist and the motor has new vehicle subjected been to a reasonable number of as deter- 257.1405], [MCL mined under the manufacturer shall days, following applicable: within 30 do either the as (a) purchased,.... If the new motor vehicle was (b) leased, If the new motor vehicle was the consumer right price paid by has the to a refund the lease may agree accept The comparable consumer. consumer to price for the lease a refund in lieu of replacement vehicle accept replacement agrees to paid. If the consumer except be altered agreement shall not vehicle, lease the vehicle. identification of respect to the 257.1403(5) provides: number that a reasonable presumed be It shall repair a defect or to attempts been undertaken have following occurs: if 1 of the condition (a) substantially or condition The same defect vehicle to the the new motor impairs use or value of 4 more subject repair a total of or to has been consumer dealer motor vehicle by manufacturer or new times repair attempt to years date of the first within to condition, condition continues and the defect or defect or defect made Any repair performed on the same exist. included in calculat- 257.1406] shall be pursuant [MCL to repairs under this section. The consumer ing number of availing representative, himself or before or his or her 257.1401], remedy provided [MCL under herself of a repair defect attempt to the same any the third time after notification, by condition, give return written shall service, repair of the need receipt to the manufacturer in order to the manufac- or condition allow of the defect The the defect or condition. opportunity to cure turer an notify as reason- the consumer as soon manufacturer shall facility. repair ably reasonably After possible of a accessible facility, designated repair delivery to the of the vehicle days repair defect or has 5 business manufacturer condition. (b) because of motor vehicle is out of service The new days during days parts more
repairs for a total of 30 or
warranty,
or within
the term of the manufacturer’s
consumer,
deliveiy
original
year
from the date of
consumer,
represen-
or her
or his
whichever is earlier.
remedy
tative,
availing
herself of a
himself or
before
257.1401],
has
and after the vehicle
provided
[MCL
facility,
days
for at least 25
been out of service
receipt
return
service
give
notification
shall
written
repair of the defect or
of the need for
the manufacturer
*15
Network v AM 327
opportu-
condition in order to allow the manufacturer an
nity to cure the defect or condition. The manufacturer shall
notify
reasonably possible
the consumer as soon as
of a
reasonably
repair facility.
delivery
accessible
After
designated repair facility,
vehicle to the
the manufacturer
days
5
has business
to
defect
condition.
statutory language
If
is
it
unambiguous,
generally
is
presumed that
the Legislature intended the plainly
meaning, and a
expressed
court must enforce the stat
Creek,
ute
Stanton v
611,
as written.
Battle
Mich
(2002).
615;
The
tois
ascer
give
Legislature.
tain and
effect to the intent of the
step
determining
specific
first
in
intent is to look to the
language
statutory language
of the statute. When
is clear
judicial
unambiguous,
interpretation
and
vary
plain
to
meaning
precluded.
“Statutory language
the statute is
reasonably
should be
purpose
construed
and the
of kept
be
statute should
in mind.” ...
a
Provisions of statute
isolation, but, rather,
are not
in
in
construed
the context
provisions
give
other
of the same statute to
to
effect
purpose of the whole enactment. [Alcona Co v Wolverine
Production, Inc,
App
Environmental
233 Mich
246-
(1998) (citations omitted).]
247; 590
Statutory terms that are
by
otherwise defined
a
not
given
plain
ordinary
statute must be
their
mean
ings. Cox v Flint Bd of Hosp
1, 18;
Managers, 467
MCL is clear and unambiguous pro- viding that, if reported a condition under MCL 257.1402 subject continues exist the motor vehicle was a reasonable number of as determined MCL 257.1403(5), provided. is remedy Plaintiff fails to Opinion op the Court 257.1403(5) designed to calculate
recognize MCL is subject to reasonable has been when motor vehicle provision It is under which repairs. number of not provided. remedies brought claims are 257.1403(5) statutory scheme. only part a whole demonstrating existence of a reasonable addition to *16 257.1403(5)(a) or number of under either MCL condi- reported (5)(b), that a showing there must be to 257.1402 continues exist before tion MCL 257.1403(1). remedy obtained. MCL may be report- of plain language requires MCL 257.1402 of that the use or ing impair conditions value to consumer the from prevent vehicle the or vehicle MCL does express warranty. 257.1402 conforming “substantially” refer or impair not conditions that use to value, only impair conditions that use or value. but Deskovitz, on behalf year, plaintiff, Within the first of conditions, numerous or undis- reported defects which vehicle, the putedly the use or value of includ- impaired thermostats, ing faulty engine shaking highway at heating conditioning or air malfunctions. speeds, During time, reported “wind noise.” plaintiff this also alleged the not the support finding But record does that “wind the or value of the vehicle. impaired noise” use present any Plaintiff to evidence that the vehicle’s failed as of value was diminished a result the wind noise. Further, the that a was made evidence established noise, no plaintiff to eliminate or minimize the made further to Pfeiffer complaint either General or at any Additionally, Infiniti time thereafter. it is undis- through- to the vehicle puted that continued use clearly out the life of the lease. The wind noise did not There is impair question the use of vehicle. no material fact with to whether wind noise was It reported a condition or defect under MCL 257.1402. not. was v AM Opinion Court question
There was also no fact material whether any reported conditions under MCL 257.1402 continued to his deposition, exist. At Deskovitz testified wind noise he continued exist when turned lease, Hummer at the end its but he could not recall any problems other at time the vehicle the lease Thus, only ended. defect condition that continued to exist the “wind previously noted, noise.” As however, there no evidence that this defect or impaired condition the use value the motor vehicle plaintiff. 257.1402. Plaintiff maintains that “the service invoices show that engine defects continued to exist” after they were reported and numerous repairs attempted. were There evidence, no however, any engine defects or conditions, which reported pursuant to MCL 257.1402, continued to exist at either time the complaint was filed or the time the case was dismissed. cursory, Plaintiffs argument, one sentence that action- “engine able exist, defects” continued to is unsupported *17 by citation of the record or other evidence. Deskovitz testified that he not could recall any continuing problems other than wind noise at the of end the lease. Further, the service receipts demonstrated that the specific en- gine reported troubles within one of year delivery the vehicle repaired and ceased to exist. Because the evidence did any engine not indicate that defect or condition reported that was within year one of delivery 257.1402, under MCL exist, plaintiff continued to 257.1403(1) not entitled relief under MCL for engine defects. sum, there reported were no defects under MCL
257.1402 that continued Thus, recovery to exist. 247.1403(1). precluded under MCL It is therefore un- necessary to consider whether a reasonable number of App 265 Mich Dissenting Opinion E J. Hoekstra, under MCL as determined place took
257.1403(5).
x the trial court abused Finally, plaintiff argues it failed to allow it to amend its its discretion when its Plaintiff never moved amend com- complaint. therefore, and, we cannot conclude plaint, Eklund, its Collucci v trial court abused discretion. (2000). 3; 654, 240 Mich 661 n App NW2d Moreover, identify any does not the nature of plaintiff amendments, thereby determi- precluding a proposed be futile. any nation whether amendment would We Caldwell v therefore consider issue abandoned. 132; 124, Chapman, part. in part Affirmed and reversed Remanded for opinion. further this We do proceedings consistent with jurisdiction. not retain J.,
BORRELLO,
concurred.
HOEKSTRA, EJ.
Because I would affirm
(dissenting).
case,
I respectfully
dismissal
this
dissent.
claim for
Regarding plaintiffs
breach
merchantability
against defendant AM
I
General,
summary disposition
hold that
would
Here,
model HI
granted.
plaintiff leased a
appropriately
Hummer,
essentially
military
an off-road
ve-
which is
public.
delivery
hicle that
sold to the
Plaintiff took
29, 2000,
this
on
at
time the
vehicle
June
which
thirty
Hummer had been driven a total of
miles. On
August 9,
for its
presented
vehicle
3,000-mile
check, and in
regularly scheduled
service
*18
v AM
Dissenting Opinion by Hoekstra, E J.
complained only
addition
air conditioning
an
prob
lem,
strip
tailgate,
a loose Velcro
on the
and conden
the
sation on
dashboard. Ultimately,
the vehicle was
46,000 miles,
driven more
many
than
which
were
off-road,
the
throughout
thirty-month
entire
lease
period.
approached
50,000
Such use
miles contem
plated in
lease and
36,000-
exceeded
General’s
mile express warranty. Although this Hummer was
undoubtedly less than perfect,
its condition shortly
delivery
after
by plaintiff
its extensive use
during
period
preclude
the lease
finding
vehicle
at delivery. Moreover,
was defective
even
though
repairs
necessary,
numerous
each repair
at
successfully completed
no cost
plaintiff.
Under
circumstances,
these
I
plaintiff
conclude that
is
unable to establish that the vehicle was defective when
left
possession
it
of either
manufacturer or the
seller. See Guaranteed Constr Co v Gold Bond Prod
ucts,
Mich App
393;
For the I disagree major- same also with the ity regarding whether a question of material fact ex- *19 Hoekstra, EJ. Dissenting Opinion claim of breach plaintiffs
isted with Warranty Magnuson-Moss under the Act, 15 2301 et seq. USC join I with the respects, agree
In all other majority.