Ocana v. Ford Motor Co.Ocana v. Ford Motor Co.
Bromagen & Rathet, Brooks Rathet, William L. Bromagen and Danielle Robinson, Fort Lauderdale, for appellee, Ford Motor Company.
SHEPHERD, J.
We have for review the dismissal with prejudice of a complaint for breach of express and implied warranty, brought under the Magnuson-Moss Warranty Act,
FACTUAL AND PROCEDURAL HISTORY
On August 3, 2005, Ocana entered into an agreement to lease a new 2006 Land Rover from Warren Henry for thirty-six months. The vehicle was delivered with a New Vehicle Limited Warranty from the manufacturer, Ford Motor Company. Subject to certain exclusions, the warranty covered the vehicle for four years or 50,000 miles, whichever came first. It entitled Ocana to repairs and part replacements to correct defects in materials or workmanship at no cost whenever he brought the vehicle to an authorized repair facility during the repair period.
The lease agreement contained no warranty. Instead, in Paragraph 12, the lease contained the following disclaimer:
WARRANTIES
If the vehicle is new, it is covered by the standard manufacturer‘s new vehicle warranty.... We assign to you all rights we have under any of these warranties. You acknowledge that you have received a copy of the indicated warranties.
You expressly agree and understand that you have selected and agreed to lease the Vehicle “AS IS.” WE MAKE NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED AS TO THE VEHICLE OR ANY PART OR ACCESSORY THEREOF. WE MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS OF THE VEHICLE FOR ANY PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER.
One year after Ocana entered into the lease, he sued both Warren Henry and Ford. Ocana alleged he had returned the vehicle to the dealership for repairs at least four times. Although the reasons are not explained in the record—whether dealer request or lessee failure to return for the vehicle—the four sets of Warren Henry repair records attached by Ocana to the complaint reflect that the vehicle remained at the dealership for forty-two of the approximately 365 days between the date Ocana took possession and filing suit. On the other hand, there is no allegation in the complaint that Ford either refused to repair the vehicle or otherwise failed to adequately repair the vehicle under the warranty at any time. Instead, as told to us and to the trial court below, the gravamen of the complaint in this case is that “Ford Motor Company and Warren Henry Automobiles[,] Inc. breached their express and implied warranties [under the MMWA] by failing to repair the vehicle within a reasonable amount of time or
A. Ocana Has Failed to State a Cause of Action Against Ford Motor Company for Breach of Limited Express Warranty or Implied Warranty.
1. The Limited Express Warranty
The MMWA is designed principally to require certain disclosures with respect to written warranties to protect consumers from deceptive warranty practices arising out of state Uniform Commercial Code warranties. The Act does not wholly supplant the state Uniform Commercial Code. See Mesa v. BMW of N. Am., LLC, 904 So. 2d 450, 455 (Fla. 3d DCA 2005). Nor does the Act require a manufacturer or seller to extend a written warranty with its product.
If a written warranty meets certain “Federal minimum standards,” the Act requires that it be labeled “a full (statement of duration) ... warranty.”
(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty;
(2) [S]uch warrantor may not impose any limitation on the duration of any implied warranty on the product;
(3) such warrantor may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and
(4) if the product (or a component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be).
In contrast, the Act is virtually silent with respect to the imposition of requirements on manufacturers or sellers who issue a “limited” warranty. The only prescribed requirement is that such a warranty may not disclaim or limit the duration of an implied warranty to a period shorter than the duration of the express warranty.
The limited express warranty before us provides that Ford will pay for repairs needed to correct defects in materials and workmanship: “[Ford2] warrants that during the warranty period, if a Land Rover vehicle is properly operated and maintained, repairs required to correct defects in factory-supplied materials or factory workmanship will be performed without charge upon presentment for service[.]” To recover for a breach of this warranty, a warrantee therefore must allege and prove that Ford refused or failed to adequately repair a covered item. Here, Ocana alleged only that “PLAINTIFF has taken the VEHICLE to the MANUFACTURER‘S seller/agent on at least four (4) separate occasions.” There is no allegation Ford did not comply with a provision of the express warranty. See Chaurasia, 126 P.3d at 169.
Rather than follow this more traditional pleading pathway, Ocana elected to seek to impose liability on Ford in this case by legally engrafting the Federal minimum standards applicable to “full (statement of duration) ... warrant[ies]” found in
if the product ... contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be).
We acknowledge that the Fourth District Court of Appeal in Gates stated that “a cause of action exists under Magnuson-Moss where there has been a breach of warranty which has not been remedied although the warrantor has been given a reasonable opportunity to cure the breach.” Gates, 397 So. 2d at 1189 (citing
In contrast to Gates, we find that the majority of the courts around the country that have considered the issue have, in thorough and well-reasoned decisions, refused to apply the “reasonable number of attempts” requirement when the plaintiff holds a limited express warranty. See, e.g., Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004); Milicevic v. Fletcher Jones Imps., Ltd., 402 F.3d 912, 919 n. 4 (9th Cir. 2004); MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 n. 7 (5th Cir. 1979); Owens v. Mercedes-Benz USA, LLC, 541 F. Supp. 2d 869, 874 (N.D. Tex. 2008); Lambert v. Monaco Coach Corp., No. 804CV608T30TBM, 2005 WL 1227485, at *4 (M.D. Fla. May 24, 2005); Gilbert v. Monaco Coach Corp., 352 F. Supp. 2d 1323, 1330 (N.D. Ga. 2004); Chaurasia, 126 P.3d at 170. We consider Gates to be an outlier, and, so far as we (and apparently Appellant‘s counsel) can determine, the only decision contrary to the overwhelming weight of authority available for consideration from other courts all over the United States. We hold that the standards and remedies in
Because Ocana erroneously elected to confine his limited express warranty claim for recovery to rise or fall on the basis of whether
2. The Implied Warranty Claim
Just as the MMWA creates in a consumer the right to pursue a civil action for breach of a written warranty in a court of competent jurisdiction,
“Agency is a legal relationship created by an express or implied agreement or by operation of law whereby the agent is authorized to act for the principal....” Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1296 (5th Cir. 1994). To demonstrate that Warren Henry is the real or actual agent of Ford, Ocana would have to allege and ultimately prove: 1) acknowledgement by Ford that Warren Henry was acting as its agent; 2) acceptance of the undertaking by Warren Henry; and 3) control by Ford over Warren Henry‘s day-to-day activities during the course of the agency. See Goldschmidt v. Holman, 571 So. 2d 422, 424 n. 5 (Fla. 1990). The allegations of the complaint in this case, as they relate to actual agency, fall far short of those necessary to establish a principal-agent relationship between Ford and Warren Henry. Construing the relevant allegations in the light most favorable to Ocana, see Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003) (“When determining the merits of a motion to dismiss, the trial court‘s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.“), Ocana alleges merely that Ford, as the manufacturer, exercises control over: 1) dealer location, size, and number of dealer logos on dealer‘s premises; 2) prizes given to dealer‘s employees; 3) number of bathrooms dealer must make available to the public; 4) training and certification of sales and service personnel; and also requires that its dealers 5) use manufacturer-supplied computer software; 6) report vehicle sales and sale details, including name and address of purchaser and related information, to manufacturer; 7) provide warranty service paid for by Ford Motor Company; and 8) afford Ford the right to enter the dealer‘s business premises to audit the records and operations of the dealership as to sales and service. The complaint is devoid of any allegation of some of the tell-tale signs of a principal-agent relationship, such as the ability of the principal to hire, fire, or supervise dealership employees or dealer ownership. We find the facts alleged by Ocana in his complaint to be remarkably similar to those alleged in Ortega v. General Motors Corp., 392 So. 2d 40, 42 (Fla. 4th DCA 1980). Taking the allegations in a light most favorable to Ocana, we conclude that even if uncontroverted evidence of each was offered at trial, the allegations neither individually nor collectively support the existence of an agency relationship between Ford and Warren Henry. See id.
We reach the same conclusion with respect to Ocana‘s apparent agency contention. Apparent agency exists only if each of the following three elements is present: 1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995). “`Apparent authority’ does not arise from the subjective understanding of the person dealing with the purported agent, nor from appearances created by the purported agent himself; instead, `apparent authority’ exists only where the principal creates the appearance of an agency relationship.” Izquierdo v. Hialeah Hosp. Inc., 709 So. 2d 187, 188 (Fla. 3d DCA 1998) (quoting Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So. 2d 775, 777 (Fla. 3d DCA 1986)).
Here, there is no evidence that the purported principal, Ford Motor Company, made any representation to Ocana, the purported third party. Ocana does not urge otherwise. Rather, Ocana grounds his apparent agency argument on allegations similar to those made in the actual agency portion of his complaint, namely that Ford permitted Warren Henry to hold itself out as an “authorized dealer; display Ford logos and other Ford Motor Company prepared advertising materials on its premises; trained Warren Henry personnel and provided them with technical bulletins; and required automobile purchasers to seek redress of warranty issues in the first instance from the dealer. Based upon these allegations, Ocana finally alleges he had the right to “reasonably conclude[] that DEALER was an agent of MANUFACTURER.” We find the allegations insufficient. See Izquierdo, 709 So. 2d at 188.
Ocana has no state law implied warranty claim prosecutable against Ford under the MMWA.
B. Ocana Has Failed to State a Cause of Action Against Warren Henry Automobiles, Inc. for Breach of Express or Implied Warranty
Ocana‘s challenge to the dismissal of his claims against Warren Henry Automobiles, Inc. can be summarily dispatched. Ocana entered into an “AS IS” lease with Warren Henry. The lease also expressly disclaimed all express or implied warranties with respect to the vehicle. Ocana makes no argument that the disclaimer was not clearly and conspicuously placed in the lease agreement or that the agreement or provision in question is invalid due to fraudulent representation or other unlawful act by Warren Henry.
“Where a contract contains an agreement to buy something `as is,’ causation is generally negated as a matter of law.” Owens, 541 F. Supp. 2d at 871 (citing Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995)). “The theory behind this rule is `[t]hat the sole cause of a buyer‘s injury in such circumstances, by his own admission, is the buyer himself. He has agreed to take the full risk of determining the value of the purchase.‘” Owens, 541 F. Supp. 2d at 871 (quoting Prudential, 896 S.W.2d at 161). Moreover, Warren Henry‘s acknowledgment to its customer that the Land Rover in this case was “covered by the standard manufacturer‘s new vehicle warranty,” together with its assignment of “all rights we have” under the warranty, found in the “WARRANTIES” provision of the lease, see supra p. 3, does not constitute an adoption by Warren Henry of the limited express warranty as its own. See Frank Griffin Volkswagen, Inc. v. Smith, 610 So. 2d 597, 601 (Fla. 1st DCA 1992) (holding that where a dealer intends to disclaim a warranty or refuses to incorporate by reference in its retail buyer‘s order, installment contract, or lease, a manufacturer‘s warranty, the dealer is not a co-warrantor).
We conclude the trial court properly dismissed Ocana‘s complaint against Warren Henry Automobiles, Inc. with prejudice.
Affirmed.