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Lee v. Mercedes-Benz USA9/16/2005
ANDREWS, P. J., PHIPPS and MIKELL, JJ.
A jury returned a general verdict for $25,000 in favor of Pamela Lee in her breach of warranty action against Mercedes-Benz USA, LLC ("MBUSA") under the Magnuson-Moss Warranty Act, 15 USC § 2301 et seq. The trial court entered judgment on the verdict and declined to award attorney fees. In Case No. A05A1286, Lee appeals the denial of her request for attorney fees. In Case No. A05A1287, MBUSA cross-appeals the judgment entered on the verdict, arguing that the trial court erred by denying its motion in limine to exclude evidence of incidental and consequential damages and by charging the jury, over objection, that Lee could recover those damages even though they were excluded under the warranty. We agree with MBUSA and reverse the trial court's judgment.
1. MBUSA argues that evidence of Lee's incidental and consequential damages should not have been admitted because the recovery of such damages was excluded by the vehicle's warranty, which states in pertinent part:
NO PAYMENT OR OTHER COMPENSATION WILL BE MADE FOR INDIRECT OR CONSEQUENTIAL DAMAGE SUCH AS, DAMAGE OR INJURY TO PERSON OR PROPERTY OR LOSS OF REVENUE WHICH MIGHT BE PAID, INCURRED OR SUSTAINED BY REASON OF THE FAILURE OF ANY PART OR ASSEMBLY WHICH MAY BE REPAIRED OR REPLACED IN ACCORD WITH THE TERMS OF THIS WARRANTY.
Some states do not allow the exclusion or limitation of incidental or consequential damages or limitation on how long an implied warranty lasts, so the above limitation may not apply to you.
Although as a general rule, incidental and consequential damages are recoverable in a breach of warranty action, the recovery of such damages may be limited or altered by the parties' contract. Georgia law expressly permits manufacturers of consumer goods to disclaim liability for consequential damages "unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." As the case at bar does not involve personal injury , the only issue is whether the warranty's exclusion of consequential and incidental property damages is "unconscionable." Pursuant to OCGA § 11-2-302 (1), the question of whether the exclusion is unconscionable is a matter of law for the court to determine. Although MBUSA argued in its motion that the clause at issue was not unconscionable, the trial court did not rule on this question when it denied the motion.
We find no evidence of unconscionability. It has been held that where, as here, the exclusion of liability for incidental or consequential damages is printed in boldface, capital letters and advises the purchaser that the exclusion may not apply to her, the exclusion is not unconscionable. We similarly hold that in the case at bar, the exclusion of liability for incidental or consequential damages is not unconscionable.
Lee apparently does not contend that the exclusion is unconscionable; rather, she argues that is invalid under OCGA § 11-2-719 (2), which provides: "Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." However, this provision applies in cases where the seller attempts to exclude all express or implied warranties. In this case, MBUSA's warranty stated: "THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO 48 MONTHS OR 50,000 MILES FROM THE DATE OF INITIAL OPERATION, WHICHEVER EVENT SHALL FIRST OCCUR." The implied warranties, though limited in duration, were not excluded. Therefore, the limitation
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