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Lee v. Mercedes-Benz USA9/16/2005
did not "fail of its essential purpose" within the meaning of OCGA ยง 11-2-719 (2).
In light of the undisputed evidence that MBUSA had legally excluded consequential and incidental damages as a remedy for breach of warranty, the trial court erred in denying its motion in limine. It follows that it was also error to refuse to instruct the jury on the limitation of such damages.
2. Finally, we cannot say that the error was harmless. The measure of damages in a breach of warranty action "is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." In the case at bar, the buyer's order, which was admitted into evidence, shows that Lee paid a total of $51,148.50 for the vehicle, although she testified that she paid $1,000 less. An automotive specialist testified that, based on his evaluation of the excessive number of repair attempts on the vehicle, its value at the time of sale was $26,000. Accordingly, the jury was presented with evidence that the difference between the value of the car as accepted by Lee and the value it would have had if it had been in the condition warranted by MBUSA was $25,148.50. However, the jury was also presented with evidence of consequential and incidental damages. Lee testified that she lost the use of the vehicle on numerous occasions; that she paid $2,600 for an extended warranty; and that she spent approximately $7,300 on repairs that were not covered by the warranty. The jury was charged that " buyer is also entitled to recover incidental or consequential damages suffered as a result of a seller's breach." The jury returned a general verdict of $25,000. Although this sum is warranted by the evidence of the proper measure of damages, it is impossible to determine whether the jury based its award in part on the evidence of incidental or consequential damages, as no special verdict form was requested or submitted to the jury. Therefore, the verdict cannot stand.
Judgment reversed in Case No. A05A1287. Appeal dismissed as moot in Case No. A05A1286. Andrews, P. J., and Phipps, J., concur.
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