Bostic v. Mallard Coach Co., Inc.

• Decision Date: 27 June 1991
• Docket Number: No. 19790,19790
• Citation: 185 W.Va. 294,406 S.E.2d 725
• Court: West Virginia Supreme Court
• Parties: George W. BOSTIC, Plaintiff Below, Appellant, v. MALLARD COACH COMPANY, INC., Defendant Below, Appellee.

Page 725

406 S.E.2d 725

185 W.Va. 294

George W. BOSTIC, Plaintiff Below, Appellant, v. MALLARD COACH COMPANY, INC., Defendant Below, Appellee.

No. 19790.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1991.

Decided June 27, 1991.

Syllabus by the Court

1. "The purpose behind the West Virginia lemon law statute is to place upon the manufacturer of motor vehicles 'the duty to meet their obligations and responsibilities under the terms of the express warranties extended to the consumers of this State.' W.Va.Code § 46A-6A-1(1) (1986)." Syl. Pt. 1, Adams v. Nissan Motor Corp. in U.S.A., 182 W.Va. 234, 387 S.E.2d 288 (1989).

2. Once a consumer establishes that the manufacturer failed in its duty to repair or replace the vehicle, as specified in W.Va.Code, 46A-6A-3 [1984], then W.Va.Code, 46A-6A-4(a) [1984], provides that the consumer has a cause of action against the manufacturer, provided the manufacturer has had the notice and opportunity to repair the defect as required by W.Va.Code, 46A-6A-5(c) [1984]. W.Va.Code, 46A-6A-4(b) [1984], provides that a consumer "may be awarded all or any portion of the following:

(1) Revocation of acceptance and refund of the purchase price ..., or ... damages for diminished value of the motor vehicle; (2) Damages for the cost of repairs ... (3) Damages for the loss of use, annoyance or inconvenience ...; and (4) Reasonable attorney fees." No particular remedy is dictated by W.Va.Code, 46A-6A-4(b) [1984]; rather, the fact finder is able to select one or more of the remedies provided in the statute.

3. When a jury returns a verdict that lacks a total definitive amount but specifies an amount for damages and payment of specific expenses and costs, and after being directed to give a definitive sum, renders a measurably lower verdict than their first effort by virtue of the jury's failure to understand the cost of an expert witness's fee, it is appropriate for the trial court to enter an additur to assure that the injured party receives the damages originally awarded, or, at the election of the defendant, to order a new trial on the issue of damages alone.

Robert B. Sayre, Beckley, for George W. Bostic.

Stephen P. Swisher, Dunbar, for Mallard Coach Co., Inc.

NEELY, Justice:

George W. Bostic appeals from a Raleigh County jury verdict that awarded him $10,000 in damages and from an additional award of $5,000 for attorney's fees in his suit against Mallard Coach Company, Inc. to rescind the purchase of a recreational vehicle under W.Va.Code, 46A-6A-1 et seq. [1989], our state's lemon law. On appeal, Mr. Bostic contends that revocation and refund of the purchase price of the recreational vehicle was the only acceptable measure of damages and that in addition to the award of his attorney's fees, he should also have been awarded costs, which were about $7,500. Although revocation and refund is not justified, we find that Mr. Bostic should be awarded an additional $3,000 under the original jury verdict and, therefore, we reverse the circuit court and remand the case for an additur of $3,000 or, if Mallard objects, a new trial on the issue of damages alone.

On 28 March 1987, Mr. Bostic purchased a new recreational vehicle manufactured by Mallard from Ben's RV Center of Hurricane, W.Va., an authorized dealer for Mallard. The purchase price of the recreational vehicle was $46,355 and Mr. Bostic paid an additional $3,319 for taxes, insurance and registration. The recreational vehicle came with the following express warranty:

The Warrantor (Mallard Coach Co., Inc.) warrants to the original consumer purchaser for a period of one year from the date of purchase that this Recreational Vehicle (a vehicle unit designed for recreational, camping, travel or seasonal use) shall be free of substantial defects in materials and workmanship attributable to warrantor.

Mr. Bostic contends that the recreational vehicle is dangerous and unstable because the recreational vehicle weighs about 1,100 pounds more on the left side than on the right side. Mr. Bostic returned the recreational vehicle to Ben's about three times; the recreational vehicle was also serviced once by American Campers, another authorized Mallard dealer, and once by General Truck Sales at Mallard's request. The recreational vehicle remained in the repair shop on one occasion for 39 days and General Truck Sales had the vehicle for two weeks. ¹ On 24 February 1988, Mr. Bostic wrote Mallard concerning the defects. A difference of opinion arose concerning the method that would best solve the uneven weight problem. Mallard offered to install leveling blocks, which cost about $100 and Mr. Bostic wanted Mallard to install springs, which cost about $500. American Camper had already installed air bags. Mr. Bostic rejected Mallard's offer and instituted suit to rescind the purchase.

During the trial, Luther McGinty, a professional engineer testifying for Mr. Bostic, said that the recreational vehicle weighed 1,100 pounds more on the left or driver's side and that the uneven weight could cause braking problems, steering problems and problems controlling the vehicle in windy conditions or on winding roads. Mr. McGinty, based on his testing of the recreational vehicle, demonstrated that the vehicle leaned to the driver's side and leaned when turning.

Mallard refuted Mr. McGinty's findings with testimony from James Krider, a professional engineer who is a design consultant for motor homes, including Mallard. Mr. Krider acknowledged that the recreational vehicle had unbalanced weight but said that the floor plan of the vehicle makes a balanced weight unlikely. Because of the unbalanced weight of recreational vehicles, the chassis manufacturer, Chevrolet, said that consideration be given to spacer blocks to level the chassis.

However, Mr. Krider said that his examination of the recreational vehicle showed the chassis was level. Mr. Krider said the front of the recreational vehicle or the "fiberglass cap needs to be adjusted." The fiberglass cap "bolts on to the motor home with no regard to the chassis. It just bolts to the box portion of it. So, while the front cross member or the chassis is level, the bumper and the cap, that physically sits, needs to be adjusted back to make it level with regard to the chassis." According to Mr. Krider, the problem is cosmetic and does not make the recreational vehicle unsafe. Mr. Krider noted that the air bags installed by American Camper were under-inflated, which "has a tendency to [make the recreational vehicle] plow, oversteer and not corner correctly."

After Mr. Krider's testimony, Mr. Bostic reexamined the recreational vehicle and testified that it leaned "an inch to an inch and a half" to the driver's side. Mr. Bostic said that the bumper was welded to the frame by extensor and the right extensor went up and the left extensor went down. Mr. Bostic said "if the cab is off down here, then the whole top of the thing has to be off because it's all one piece."

The jury returned a verdict in favor of Mr. Bostic that awarded him "$4,659.00 + Eng Fees, Lawyer fees, fix Cap & bumper." ² After the verdict was rejected because it was not a sum certain, the jury then awarded Mr. Bostic $10,000. ³ By order entered 4 June 1990, the Circuit Court refused to set aside the jury verdict and damage award, awarded Mr. Bostic $5,000 for reasonable attorney's fees and refused to award $7081.58 to Mr. Bostic for his expert witness's fee.

Mr. Bostic appeals on two grounds:

(1) Mr. Bostic maintains that the only measure of damages allowed when a defect is likely to cause death or serious bodily injury is the replacement of the flawed vehicle with a comparable new motor vehicle; and

(2) Mr. Bostic also maintains that his costs for an expert witness's fee should be awarded to him.

Although we do not agree that Mr. Bostic should have been awarded a new vehicle, we find that the jury intended to award Mr. Bostic about $4,600 in addition to his repair costs and his fees for his expert witness and attorney. In order to preserve the jury's assessment of damages as shown by the first version of the verdict, we find that the circuit court should have added an additional $3,000 or, if Mallard objected, ordered a new trial on the issue of damages alone.

I

W.Va.Code, 46A-6A-1 et seq. (1989), entitled "Consumer Protection-New Motor Vehicle Warranties," is based on the public policy that "places upon the manufacturer of motor vehicles 'the duty to meet their obligations and responsibilities under the terms of the express warranties extended to the consumers of this State.' " Syllabus Point 1, in part, Adams v. Nissan Motor Corp. in U.S.A., 182 W.Va. 234, 387 S.E.2d 288 (1989). The manufacturer's duty to repair or replace a new vehicle is specified in W.Va.Code, 46A-6A-3 [1984], which provides:

(a) If a new motor vehicle purchased in this State on or after the first day of January, one thousand nine hundred eighty-four does not conform to all applicable express warranties and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer during the term of the express warranties or during the period of one year following the date of original delivery of the new motor vehicle to a consumer, whichever is the later date, the manufacturer, its agent or its authorized dealer shall make the repairs necessary to conform the vehicle to the express warranties, notwithstanding the fact that the repairs are made after the expiration of the warranty term.

(b) If the manufacturer, its agents or its authorized dealer are unable to conform the new motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use or market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the new motor vehicle with a comparable new motor vehicle which does conform to the...