Curl v. Volkswagen of America12/2/2005
Judgment: Affirmed.
{ } Appellant, Volkswagen of America, Inc. ("Volkswagen"), appeals from the April 30, 2004 judgment entry of the Trumbull County Court of Common Pleas.
{ } On December 12, 2002, appellee, David Curl, filed a complaint against Volkswagen for (1) breach of written warranty pursuant to the Magnuson-Moss Warranty Act, (2) breach of implied warranty pursuant to the Magnuson-Moss Warranty Act, and (3) violation of Ohio's Nonconformity New Motor Vehicle Law ("Lemon Law").
On January 17, 2003, Volkswagen filed an answer. On December 23, 2003, Volkswagen filed a motion for partial summary judgment on counts two and three of the complaint. On January 22, 2004, appellee filed a brief in opposition to Volkswagen's motion for partial summary judgment and a cross-motion for partial summary judgment on counts two and three of the complaint. On February 3, 2004, Volkswagen filed a reply to appellee's brief in opposition to Volkswagen's motion for partial summary judgment, and an answer to appellee's cross-motion for partial summary judgment on counts two and three of the complaint.
{ } On July 31, 2001, Stadium Lincoln-Mercury ("Stadium"), d.b.a. Stadium Volkswagen, an importer and distributor of vehicles, purchased and took title to a 2002 Volkswagen New Beetle ("Beetle") from Volkswagen, which is engaged in the manufacture, sale and distribution of motor vehicles, and which also is in the business of marketing, supplying, and selling written warranties. Volkswagen's two years or 24,000 mile bumper-to-bumper limited warranty on the Beetle started to run when the vehicle was put into service. Stadium used the Beetle as a rental vehicle.
{ } On March 12, 2002, there was a recall on this model due to the wiring harness short-circuiting and damaging the material that insulates the conductors, creating a possibility of fire. The recall was designed to prevent the antilock break system from breaking down. A voluntary recall is typically instituted by the manufacturer when a product defect or malfunction is likely to cause death or severe bodily injury. Dealers are aware when such recalls are issued, yet Stadium did not perform the recall on the Beetle.
{ } On June 24, 2002, appellee purchased the Beetle from Stadium. The purchase contract had the vehicle listed, by checkmark, as a "rental vehicle," rather than a "new" or "used" vehicle. At the time of purchase, there were 10,435 miles logged on the odometer.
{ } When the Beetle began to smoke on August 19, 2002, appellee towed it to Stadium for service, complaining of a defective engine and ABS system. At that time, the vehicle had been driven 4,149 miles from appellee's date of purchase, for a total of 14,584 miles. The service technician's report stated that "the ABS light came on, the vehicle would not stay running when restarted, and was smoking from the left side. A recall was performed on the ABS system, replacing the melted wire from the control unit, the wiring harness, the ABS hydraulic pump *." The repairs took eighty-four days, until November 12, 2002.
{ } Pursuant to its April 30, 2004 judgment entry, the trial court granted appellee's cross-motion for partial summary judgment and denied Volkswagen's motion for partial summary judgment. It further ordered Volkswagen to take back the 2002 Volkswagen Beetle, refund all monies paid toward the vehicle's purchase, and pay off any loan with any and all lenders. The court granted appellee a hearing to determine damages and leave to file a petition for attorney fees and costs. A hearing on damages for count three was ordered to be set.
{ } On August 3, 2004, by joint stipulation o
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