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Curl v. Volkswagen of America12/2/2005
In its third assignment of error, Volkswagen argues that assuming arguendo, that appellee does have a viable cause of action for breach of implied warranty, the evidence does not establish that the Beetle was "so riddled with defects" that the written limited warranty "failed of its essential purpose," as established in Goddard, supra, which Volkswagen claims must be shown before a limited warranty action is permitted.
{ } Volkswagen's reliance on Goddard is unfounded. In Goddard, General Motors ("GM") provided a written warranty that disclaimed certain damages and limited the purchaser's remedies to repair and replacement, as permitted by R.C. 1302.93(A)(1) and 1302.93(C). The vehicle in question had so many problems that GM was unable to repair them completely, and finally, still within the warranty period, the purchaser gave up and ordered a new vehicle. The purchaser filed suit for breach of express warranty, seeking damages disclaimed by the warranty, including compensatory and punitive damages pursuant to R.C. 1302.88(B) and (C). Although the appellate court recognized GM's right to limit its liabilities under R.C. 1302.93(A)(1) and 1302.93(C), the court ruled that such sections must be read in conjunction with R.C. 1302.93(B), which provides that "' here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in Chapters 1301, 1302 [which includes the implied warranty provision] ( *) of the Revised Code.'" Goddard, supra, at 45. The court further held that a limited remedy does not achieve its purpose if the seller is unwilling or unable to repair or replace the defective part within a reasonable time. The court concluded that "where a new car express warranty limits a buyer's remedies to repair and replacement of defective parts, but the new car is so riddled with defects that the limited remedy * fails its essential purpose, the buyer may institute an action to recover damages for breach of warranty under R.C. 1302.88(B) [difference between goods accepted and value if had been as warranted] and * incidental and consequential damages under R.C. 1302.88(C) and 1302.89." Id. at 47. (Emphasis added.)
{ } Appellee need not prove a "failure of essential purpose," as set forth in R.C. 1302.93(B) and explained in Goddard, to reach its breach of implied warranty claim. There is no evidence that Volkswagen's express limited warranty disclaimed any implied warranties, and even if it did, appellee's implied warranty claim is pursuant to the MMWA, which provides in Section 2308(a) that " o supplier may disclaim or modify * any implied warranty to a consumer * if * such supplier makes any written warranty to the consumer with respect to such consumer product[.]" There is an exception that allows implied warranties to be limited to the duration of a written warranty of reasonable duration, which is irrelevant in this case since appellee's warranty had not yet expired as of the filing of the lawsuit.
{ } The evidence in this case establishes that Volkswagen breached its implied warranty that the Beetle was fit for the ordinary purposes for which such vehicle is used. Although Stadium had notice of a recall for a defect likely to cause death or severe bodily injury, it did not perform the recall, and sold the Beetle to appellee with the defect. Less than two months after the purchase, the Beetle failed due to the defect, and it took eighty-four days to repair it. Volkswagen admits that the defect impaired the vehicle's use, safety or value.
{ } Therefore, the evidence is sufficient to permit a finding of breach of implied warranty under the MMWA, and Volkswagen's third assignment of error lacks merit.
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