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Curl v. Volkswagen of America12/2/2005
an absence of direct privity." Reichhold at 7. We further noted that other courts have extended this holding to permit recovery for breach of implied warranties without privity, and quoted Spring Motors, supra, which held that "'the buyer need not establish privity with the remote supplier to maintain an action for breach of express or implied warranties (under the U.C.C.).'" Id. Finding that an implied warranty existed in this case which was breached, we held that Haas could recover damages under this claim also. Although we did not expressly state that "where there is an implied warranty, the ultimate consumer may recover even with the absence of direct privity," that was the intent of our finding.
{ } Therefore, we hold that lack of privity between appellee and Volkswagen does not preclude a claim under the MMWA for breach of implied warranty, and Volkswagen's second assignment of error is without merit.
{ } Alternatively, we affirm appellee's claim against Volkswagen under Ohio's Lemon Law, R.C. 1345.71 et seq. In Volkswagen's first assignment of error, it argues that appellee's Lemon Law claim is invalid for two reasons. First, Volkswagen alleges that the Beetle is too old to qualify as a "new motor vehicle" since it was previously owned and operated by the dealership. Second, it claims that the "original delivery date" is the date when the dealership, not appellee, received the vehicle.
{ } R.C. 1345.71 is designed "to protect consumers from chronically defective new automobiles." Royster v. Toyota Motor Sales, U.S.A., Inc. (2001), 92 Ohio St.3d 327, 328. "The intent of the statute clearly is to make the consumer whole, and to restore the purchaser to a position he or she occupied before acquiring the lemon." Fortner v. Ford Motor Co. (Feb. 9, 1998), 5th Dist. No. 1997CA00177, 1998 Ohio App. LEXIS 752, at 4. "Consumer" means " he purchaser, other than for purposes of resale, of a motor vehicle; ny lessee * ; ny person to whom the motor vehicle is transferred during the duration of the express warranty that is applicable to the motor vehicle; ny other person who is entitled by the terms of the warranty to enforce the warranty." R.C. 1345.71(A)(1) through (4). Appellee qualifies as a consumer under each but the second category.
{ } The repair duty of a manufacturer giving a warranty is found in R.C. 1345.72(A):
{ } "If a new motor vehicle does not conform to any applicable express warranty and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during the period of one year following the date of original delivery or during the first eighteen thousand miles of operation, whichever is earlier, the manufacturer, its agent, or its authorized dealer shall make any repairs as are necessary to conform the vehicle to such express warranty, notwithstanding the fact that the repairs are made after the expiration of the appropriate time period." (Emphasis added.)
{ } The remedy to consumers for breach this duty is set forth in R.C. 1345.72(B):
{ } "If the manufacturer, its agent, or its authorized dealer is unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any nonconformity after a reasonable number of repair attempts, the manufacturer, at the consumer's option and subject to division (D) of this section, either shall replace the motor vehicle with a new motor vehicle acceptable to the consumer or shall accept return of the vehicle from the consumer and refund each of the following: (1) The full purchase price; (2) All incidental damages, including, but not limited to, any fees charged by the lender or lessor for making or canceling the
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