Lead Opinion
Thе Blackburns prevailed in an arbitration pursuant to G. L. c. 90, § 7NV6 (1986 ed.) (Lemon Law). General Motors Corporation (GM) appealed the arbitration award to the Superior Court in Norfolk County. G. L. c. 90, § 7N1/2 (6). The Blackburns filed a counterclaim in two counts, one count under G. L. c. 90, § 7N1/2, and one count under G. L. c. 93A (1986 ed.). Both parties moved for summary judgment. Mass. R. Civ. P. 56,
The facts shown in the record are these. On April 17, 1986, the Blackburns рurchased a new 1985 Chevrolet Corvette automobile from Clay Chevrolet (Clay), a Chevrolet dealer. On five occasions from April 22 to June 2, 1986, the Blackburns brought the vehicle to Clay for repairs. The fifth time, on June 2, the Blackburns left with Clay a letter addressed to GM’s Chevrolet Motor Division, demanding that GM repair the defects within seven business days, or replace the vehicle, or refund an amount of money calculated in accordance with the Lemon Law. A representative of Clay agreed to forward the letter to GM. GM received the letter on June 6, 1986.
When the Blackburns reclaimed their vehicle from Clay on June 5, 1986, the defects complained of still existed. On June 6, 1986, GM sent a letter to the Blackburns requesting the Blackburns to communicate with GM “so that we may set a mutually agreeable date, time and place to review your complaint.” The Blackburns did not respond to this letter. On July 28, 1986, the vehicle was towed by Clay to the dealership.
On August 1, 1986, the Blackburns filed a request for arbitration with the Executive Office of Consumer Affairs and Business Regulation. G. L. c. 90, § 7N*/2 (6). The arbitration was held on September 26, 1986, and the arbitrator ruled in favor of the Blackburns. Specifically, the arbitrator found that
General Laws c. 90, § IW/i, provides consumers with a procedure for dealing with a seriously defective new motor vehicle. The statute requires the manufacturer of the vehicle, its agent, or its authorized dealer to repair the nonconforming vehiсle. G. L. c. 90, § 7NVi> (2). A vehicle is nonconforming if it has “any specific or generic defect or malfunction, or any concurrent combination of such defects or malfunctions that substantially impairs the use, market value or safety of a motor vehicle.” G. L. c. 90, § 1WA (1). If the manufacturer, its agent, or authorized dealer fails to conform the vehicle after a reasonable number of repair attempts, the manufacturer is required to accept return of the vehicle and to replace the vehicle or to refund the full contract price subject to adjustments. G. L. c. 90, § IW/2 (3). Under the statute, a reasonable number of repair attempts have been undertaken “if (a) the same nonconformity has been subject to repair three or more times . . . but such nonconformity continues to exist or . . . has recurred . . . or (b) the vehicle is out of service by reason of repair of any nonсonformity for a cumulative total of fifteen or more business days.” G. L. c. 90, § IW/2 (4). The manufacturer is provided with one additional opportunity “not to exceed seven business days” to cure any nonconformity. G. L. c. 90, § IW/2 (4). The final opportunity to repair commences on the day the manufacturer first knows, оr should have known, that the same nonconformity has been subject to repair three or more times but continues to exist, or the vehicle has been out of service for repair for a total of fifteen days ([a] or [b] above). G. L. c. 90, § IW/2 (4).
The Blackburns’ motions for summary judgment required them to establish that there are no genuine issues of material fact and that they are entitled to judgment in their favor. We conclude that they failed in this regard because nothing in the arbitrator’s decision or in any material put before the judge establishes that GM was given the final repair opportunity which, under § 1WA (4), is a prerequisite to a manufacturer’s liability. In view of our conclusion, it is unnecessary for us to address other arguments presented by GM.
The arbitrator concluded that the Blackburns’ letter delivered to Clay on June 2,1986, was notice to GM, and that, therefore, GM’s final repair opportunity began on that date. If, indeed, notice to Clay was notice to GM, GM’s repair opportunity would have commenced not on June 2, but at an earlier time when Clay first became aware that three repair attempts had been unsuccessful. It appears clear that, if notice to Clay was necessarily notice to GM as well, GM failed to make use of the seven business day opportunity for repairs provided by § 1WA (4). The critical question, then, is not whether GM’s final repair oрportunity commenced on June 2, when the Blackburns’ letter addressed to GM was delivered to Clay, or instead, commenced on June 6 when GM received the letter. The critical question is whether GM’s final repair opportunity
The arbitrator’s determination that GM’s final repair opportunity commenced on June 2 was not a finding, but was a ruling of law. The arbitrator made no findings that GM had expressly or impliedly authorized Clay to receive notice on GM’s behalf, and there were no other materials before the judge establishing such agency. GM submitted two relevant affidavits in connection with the summary judgment motions, but GM’s affidavits tended to show an absence of agency. In one, Robert Clay stated that he was the owner of Clay Chevrolet, that the Blackburns purchased the automobile from his dealership, and that Clay Clevrolet was an independent dealer which was neither owned nor controlled by GM. In the other, Wayne M. Martin, a customer assistance area service manager for GM, stated that he received the Blackburns’ letter on June 6, 1986, and sent a reply, to which the Blackburns did not respond. The affidavit also stated: “June 6, 1986 was the first time GM knew or should have known it had one final opportunity to repair, because it is not a policy or practice of any dealership ... to advise GM of problems with a vehicle .... GM was not given a final opportunity to repair as rеquired by law.”
We reject any argument that § 1WA (5) expressly or by implication makes the dealer the manufacturer’s agent for the purpose of receiving the notice contemplated by § IW/2 (4). Section IW/2 (5) provides that “[n]o consumer shall be required by any manufacturer, its agent or its authorized dealer to give notice directly to a manufacturer of the existence of any nonconformity before resorting to state-certified, new car arbitration.” It is worth noting that § IW/2 (5), as well as §§ IW/2 (2), (3), and (4), refers to manufacturers, agents, and authorized dealers in the alternative, thus strongly suggesting that authorized dealers are not necessarily agents. We should not rеadily assume statutory redundancy.
The argument based on § 1WA (5) seems to be that the commencement of arbitration would be inappropriate unless the manufacturer’s seven day repair opportunity has already
We conclude that the Blackburns failed to establish for summary judgment purposes that GM received notice of its final repair opportunity before June 6, 1986, when GM received the Blackburns’ letter. We also conclude that the Blаckburns have not established that GM had a realistic seven-business day repair opportunity commencing on June 6. The Blackburns do not contend otherwise. Therefore, summary judgment dismissing GM’s complaint was erroneous and must be reversed. Also, since the Blackburns’ counterclaim, by its express terms, is based оn the alleged failure of GM to comply with § 1WA, and no such failure has been established, the summary judgment for the Blackburns on count 2 of their counterclaim also must be reversed.
So ordered.
Notes
Both parties filed affidavits in support of their motions. The Blackburns’ affidavit incorporated the arbitrator’s decision.
Dissenting Opinion
(dissenting, with whоm Hennessey, C.J., and Abrams, J., join). I disagree with the court’s restrictive reading of the provisions of G. L. c. 90, § 7N1/2 (4) & (5) (1986 ed.). General Laws c. 90, § 1WA (4), provides: “ [T]he manufacturer shall be afforded one additional opportunity, not to exceed
General Laws c. 90, § 7n1/2 (5), states: “No consumer shall be required by any manufacturer, its agent or its authorized dealer to give notice dirеctly to a manufacturer of the existence of any nonconformity before resorting to state-certified, new car arbitration.” By specifically exempting a consumer from giving notice directly to a manufacturer of a nonconformity, the Legislature necessarily made the deаler a party to receive notice that the statutory requirements indicating a nonconformity had been met. For this limited purpose, the Legislature made the dealer an agent of the manufacturer. Consequently, we should apply the well established principle that notice to an аgent is notice to the principal. Restatement (Second) of Agency § 9(3) (1958). 2 Mecham, Agency § 1803 (2d ed. 1914). Jamrog v. H.L. Handy Co.,
It is unfortunate, I think, that the court takes a restrictive approach on this issue. General laws c. 90, § 1WA, the Lemon Law, is a remedial statute and, as such, should be construed liberally. Batchelder v. Allied Stores Corp.,
Perhaps the only hope consumers have in this regard is that an enlightened Legislature will rectify the court’s mistake. I dissent.
In its brief, GM does not argue that its final opportunity to repair did not terminate on June 5 but was extended for seven days after June 2. Even if GM had, the statute requires repairing, not writing or talking.