Merchants Automotive Group, Inc. v. Alpine Limousine Service, Inc., 083016 NHSUP, 2015-CV-677

Docket Nº:2015-CV-677
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Merchants Automotive Group, Inc. v. Alpine Limousine Service, Inc., et al. v. BMW of N. Am., LLC and BMW of Manhattan, Inc.
Case Date:August 30, 2016
Court:Superior Court of New Hampshire

Merchants Automotive Group, Inc.


Alpine Limousine Service, Inc., et al.


BMW of N. Am., LLC and BMW of Manhattan, Inc.

No. 2015-CV-677

Superior Court of New Hampshire

August 30, 2016




Richard B. McNamara, Presiding Justice

This case arises out of a commercial lease transaction between two businesses. Plaintiff, Merchants Automotive Group, Inc. ("Merchants"), entered an agreement with Alpine Limousine Service, Inc. ("Alpine Limosine") and two of its principals, Doron and Gena Avishay (the "Avishays", collectively, "Alpine"), under which Merchants would purchase automobiles and lease them to Alpine. The lease would be guaranteed by the Avishays. Pursuant to this agreement, Merchants executed contracts with BMW of Manhattan Inc. ("BMW Manhattan" collectively "BMW Defendants") for the purchase of fifteen (15) BMW vehicles. These vehicles were then leased pursuant to a Master Open End Lease Agreement ("MOELA") to Alpine, and the Avishays guaranteed the lease. Under the MOELA, Merchants extended $1, 500, 000 of financing for Alpine's purchase of 15 BMW automobiles.

In December 2015, Merchants brought suit, alleging breach of contract against Alpine and breach of a guarantee agreement against the Avishays. Alpine and the Avishays brought a Third-Party Complaint, pursuant to Superior Court Rule 27, against BMW Manhattan and BMWNA, LLC, the franchisor of BMW. BMW Manhattan and BMWNA LLC moved to dismiss the Third-Party Complaint against them on the grounds of forum

non conveniens1. Merchants joins in the Motion, but in the alternative requests that if the Motion to Dismiss is not granted, the cases be severed. For the reasons stated in this Order, the Motion to Dismiss is DENIED. The Court will defer ruling on the request by Merchants and the BMW Defendants to sever the cases until the parties brief the issue of whether or not the agreement between Merchants and Alpine bars Alpine's breach of warranty claim against Merchants. The Court orders that the parties submit a memorandum on this issue by October 1, 2016.


The lease entered into by Merchants and Alpine Limousine and guaranteed by the Avishays is attached to Merchants' Complaint and its terms do not appear to be in dispute. Several of the terms are germane to this litigation. Under the MOELA, all vehicles were to be registered in Merchants' name during the entire lease term and any certificates of title would be in Merchants' name. Lease, ¶ 6. The MOELA purported to disclaim any warranties; it provides in bold and capitalized type: Lessor makes no representation or warranty of any kind, express or implied, with respect to (a) any vehicle, including, but not limited to the merchantability or fitness for a particular purpose of a vehicle; the design, quality or capacity of the vehicle; or compliance of a vehicle with applicable law . . .

MOELA, ¶ 1.

The agreement also provides that: Customer's vehicle order shall authorize lessor to purchase such vehicles subject to the current warranty of the manufacturer. Lessor hereby assigns the manufacturer's warranty to customer for the lease term. Customer agrees that lessor is not the manufacturer, designer or distributor of the vehicles and that each vehicle (including any specified modification) is of a design specified by customer and suitable for its purposes.

MOELA ¶ 1.

Under the MOELA, except for the lessee's obligations of indemnity, both parties agreed that their sole and exclusive remedy for any cause of action...

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