Theos & Sons6/20/2000
Middlesex.
February 8, 2000.
Practice, Civil, Summary judgment. Warranty. Uniform Commercial Code, Sale of goods, Warranty. Sale, Warranty. Agency, Scope of authority or employment, What constitutes.
Civil action commenced in the Superior Court Department on August 4, 1995.
On transfer to the Cambridge Division of the District Court Department, the case was heard by Leah W. Sprague, J., on a motion for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
This action arises from the sale, resale, and alleged negligent repair of a Mack truck. It concerns the effect of a manufacturer's disclaimer of an implied warranty of merchantability on a subsequent purchaser who was unaware of the disclaimer. It also concerns a manufacturer's liability under agency principles for the actions of the manufacturer's authorized parts and service dealer, when that dealer is engaged in nonwarranty repair work.
The plaintiff, Theos & Sons, Inc. (Theos), brought an action for damages to its Mack truck engine, against Mack Trucks, Inc. (Mack), a manufacturer of trucks, its distributor, Manchester Mack Sales, Inc. (Manchester Mack), and Vigor Diesel Injection, Inc. (Vigor), an authorized Mack parts and service dealer. A judge in the District Court granted summary judgment for Mack, without detailing his reasons, and entered final judgment as to Mack pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). Theos appealed to the Appellate Division of the District Court, which affirmed the judgment. We transferred the case from the Appeals Court on our own motion. Theos argues two theories of liability. First, Theos argues that Mack breached an implied warranty of merchantability and that Mack's original disclaimer of this implied warranty is not effective against Theos, a subsequent purchaser unaware of the disclaimer Second, Theos argues under agency theory that Mack is vicariously liable for the dealer's negligent repair of, or failure to repair, the engine and the dealer's breach of express warranties and violations of G. L. c. 93A.
We conclude that Mack's disclaimer of the implied warranty of merchantability given to the original truck purchaser may be enforced against a subsequent purchaser without notice, such as Theos. Because Theos presented no genuine issue of Mack's liability for its dealer's conduct under an agency or any other theory, we affirm the judgment.
1. Facts. The standard of review for a grant of summary judgment is whether, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See, e.g., Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994). We review the facts under that standard.
On August 31, 1989, J.E. Larkin, Inc. (Larkin), purchased from Mack and took delivery of a Mack truck. The terms of sale included a "Mack Mid-Liner Standard Warranty" (warranty) that covered the truck's engine for twenty-four months after delivery and a disclaimer of all other warranties, express or implied, including the implied warranty of merchantability The twenty-four month engine warranty expired on August 31, 1991. On December 17, 1992, Theos bought the truck from Larkin. Theos was neither apprised of, nor provided with, any written copy of the warranty, nor informed of any such disclaimers.
In December, 1993, a Theos driver heard noises coming from the truck's engine compartment and towed the truck to Vigor for repairs, where it
Page 1 2 3 4 5 6 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|