 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nissan Motor Company v. Fry8/17/2000
ce, sponsorship, approval or certification of goods or services in violation of section 17.46(b)(2) of the DTPA;
(b) in representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities which they do not have, in violation of section 17.46(b)(5) of the DTPA;
(c) in representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another, in violation of section 17.46(b)(12) of the DTPA; and
(d) in representing that a guarantee or warranty can involve rights, or remedies, which it does not have or involve, in violation of section 17.46(b)(19) of the DTPA.
(3) whether Nissan breached the implied warranty of merchantability under Section 2.314(b)(3) of the Texas Business and Commerce Code because the subject seat belt systems were not reasonably fit for their intended purposes or fir for the ordinary purposes for which such goods were used (i.e. providing safe transportation and protecting occupants from injury in collisions); and
(4) whether Nissan sold vehicles equipped with inadequate warnings and instructions for the use of the two point passive restraint system equipped with a separate manual lap belt.
Plaintiffs' allegations are based on a common course of conduct of manufacturing and selling a defective product, and additionally that such product was allegedly marketed through a common course of similar misrepresentation. Accordingly, the commonality requirement of Rule 42(a)(2) is satisfied.
By its first issue, Nissan contends the trial court abused its discretion by identifying breach of warranty, defectiveness, and DTPA representations as common questions when:
(a) appellees have failed to plead a viable breach of warranty claim;
(b) the class includes used vehicle purchasers who cannot assert implied warranty claims;
(c) class members received varying warnings and instructions regarding seat belt usage, and these varying warnings and instructions are the basis of the class claims;
(d) the record contains no evidence that any class member received any relevant express warranty; and
(e) the record contains no evidence that any class member received any relevant untrue representation.
Rule 42(a)(2) does not require that all or even a substantial portion of the legal and factual questions be common to the class. Rainbow Group, Ltd. v. Johnson, 990 S.W.2d 351, 358 (Tex. App.-Austin 1999, pet. dism'd. w.o.j.); FirstCollect, 976 S.W.2d at 372. It requires only that some legal or factual questions be common to the class. Rainbow Group, 990 S.W.2d at 358; Reserve Life Ins. Co. v. Kirkland, 917 S.W.2d 836, 842 (Tex. App.-Houston [14th Dist.] 1996, no writ). The commonality requirement means that an issue of law or fact exists that inheres in the complaints of all the class members. Entex, 990 S.W.2d at 919; Microsoft, 914 S.W.2d 602 611 (Tex. App.-Texarkana 1995, writ dism'd w.o.j.). Questions common to the class are those which, when answered as to one class member, are answered as to all class members. Entex, 990 S.W.2d at 919; Chilek, 966 S.W.2d at 122; Weatherly, 905 S.W.2d at 648. The common issue may be one of law or fact; there need not be common issues of law and fact. FirstCollect, 976 S.W.2d at 300; Wente v. Georgia-Pac. Co., 712 S.W.2d 253, 255 (Tex. App.-Austin 1986, no writ). A single common question could provide grounds for class action. FirstCollect, 976 S.W.2d at 300; Rio Grande Valley Gas, 962 S.W.2d at 641; Microsoft, 914 S.W.2d at 611. The commonality requirement is generally conside
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|