Frank Griffin Volkswagen, Inc. v. Smith

• Decision Date: 11 December 1992
• Docket Number: No. 90-979,90-979
• Citation: 610 So.2d 597
• Parties: 17 Fla. L. Weekly D2793, 19 UCC Rep.Serv.2d 410 FRANK GRIFFIN VOLKSWAGEN, INC., a Florida corporation, Appellant/Cross Appellee, v. Jerry T. SMITH, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 597

610 So.2d 597

17 Fla. L. Weekly D2793, 19 UCC Rep.Serv.2d 410

FRANK GRIFFIN VOLKSWAGEN, INC., a Florida corporation Appellant/Cross Appellee, v. Jerry T. SMITH, Appellee/Cross Appellant.

No. 90-979.

District Court of Appeal of Florida First District.

Dec. 11, 1992.

Rehearing Denied Jan. 22, 1993.

J. Michael Lindell of Hayes & Lindell, P.A., Jacksonville, for appellant.

William H. Folsom, Jr., of William H. Folsom, Jr., P.A., Jacksonville, for appellee.

ALLEN, Judge.

The appellant, Frank Griffin Volkswagen, Inc. (Griffin), and the appellee, Jerry T. Smith (Smith), were respectively the seller and buyer of a Volkswagen automobile. Following several unsuccessful efforts to correct mechanical problems with the automobile, Smith filed suit against Griffin and others. The parties challenge various rulings of the trial court during the course of the lawsuit. We affirm each of the rulings except the denial of Griffin's motion for a directed verdict on the count alleging Smith's right to revoke his acceptance under section 672.608, Florida Statutes (1987).

On September 2, 1987, Smith bought a new 1987 Volkswagen automobile from Griffin, an authorized Volkswagen dealer. At the time of purchase, Smith received and signed various documents indicating that Griffin was selling the automobile "as is" and that Griffin was disclaiming all warranties, express or implied, including the warranty of merchantability. The documents clearly indicated that the only warranties on the automobile were those of the manufacturer. Griffin's salesman gave Smith a warranty booklet identifying the warrantor as Volkswagen, and indicating that warranty service was available from any authorized Volkswagen dealer in the United States. The salesman also accurately told Smith that warranty service was available at any Volkswagen dealership. The relevant testimony from Smith was as follows:

Q. Now, concerning the ... warranty booklet ... [,] were you tendered that with respect to the purchase of this vehicle?

A. Yes, sir, I was.

Q. And who gave you that document?

A. The salesman, I believe.

Q. All right. Now, concerning the performance of the warranty, were there any conferences you had with the salesman concerning who would perform that warranty?

A. Yes, sir. They said any authorized Volkswagen dealer could perform warranty work on the car.

Q. And did they indicate to you what you should do if you had any problems with the vehicle within that warranty period?

A. Yes, sir. They said ... take it to any Volkswagen--authorized Volkswagen dealer and they would correct the problem.

Several weeks later, Smith began to experience mechanical problems with the automobile. He took it first to another Volkswagen dealer and then to Griffin for repairs. Each time Smith took the automobile to Griffin, a Griffin employee would prepare a written repair order specifying the problem and the repair work completed. On each repair order, Griffin disclaimed all warranties, express or implied, on the products sold under the repair order and gave notice that any warranty on said products came from the manufacturer. Each repair order also contained the following statement: "We guarantee our service work for 6 mohths [sic] or 6000 miles, whichever comes first."

After numerous repair efforts proved unsuccessful, Smith filed suit against Griffin, Volkswagen, and others. The suit resulted in a jury verdict against Volkswagen for breach of Volkswagen's warranties, and against Griffin on various theories, including revocation of acceptance pursuant to section 672.608, Florida Statutes.

Griffin argues that the trial court erred in denying its motion for a directed verdict on the count alleging Smith's right to revoke his acceptance. Section 672.608(1) provides:

The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:

(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(Emphasis supplied). The first requirement for application of this section is that the goods be "nonconforming." Goods are conforming when they are in accordance with the obligations under the contract. Sec. 672.106(2), Fla.Stat. Griffin's argument is that, because it disclaimed all warranties, it incurred no contractual obligations to Smith which could serve as a basis for his revocation of acceptance. Griffin relies upon cases such as McCormick Machinery, Inc. v. Julian E. Johnson & Sons, Inc., 523 So.2d 651, 656 (Fla. 1st DCA 1988); Konicki v. Salvaco, Inc., 16 Ohio App.3d 40, 474 N.E.2d 347 (1984); Crume v. Ford Motor Co., 60 Or.App. 224, 653 P.2d 564 (1982); and Clark v. Ford Motor Co., 46 Or.App. 521, 612 P.2d 316 (1980), for the proposition that an effective disclaimer of all warranties eliminates any claim that goods are nonconforming, and thereby precludes revocation of acceptance. See also, 1 J. White & R. Summers, Uniform Commercial Code, Sec. 8-4, at 417 (3d ed. 1988). In response to this argument, Smith offers a series of arguments to support his entitlement to revoke his acceptance of the automobile.

First, Smith contends that when Griffin's salesman advised him that warranty service was available at any authorized Volkswagen dealership, Griffin thereby incurred a contractual obligation to successfully repair any defects covered under the Volkswagen warranty. We reject this argument. While oral representations will sometimes create contractual obligations, Seekings v. Jimmy GMC of Tucson, Inc., 130 Ariz. 596, 638 P.2d 210 (1981), the salesman's representations here provide no basis for obligating Griffin under the manufacturer's warranty. The salesman's statements can only be interpreted as an explanation of the manufacturer's warranty. Where a dealer has properly disclaimed all warranties, the delivering, presenting, or explaining of a manufacturer's warranty, without more, does not render the dealer a co-warrantor by adoption, Motor Homes of America, Inc. v. O'Donnell, 440 So.2d 422, 427 (Fla. 4th DCA 1983), rev. denied, 451 So.2d 849 (Fla.1984), nor does it create a contractual obligation which can serve as a basis for a buyer's later revocation of acceptance. Should we hold otherwise, an automobile dealer would effectively be precluded from disclaiming responsibility for the warranties of the manufacturer, despite the fact that section 672.316, Florida Statutes, authorizes a dealer to do so.

We are also unpersuaded by Smith's contention that Griffin adopted Volkswagen's warranty as a result of certain language in the dealer agreement existing between Volkswagen and Griffin. The agreement, admitted into evidence below, obligates Griffin to "make the text of the VW/US Warranties part of its contracts for sale of Authorized Products," and "comply with the provisions of the Volkswagen Dealer Warranty Manual," the warranty booklet given to Smith at the time of purchase which explained Volkswagen's limited warranty and promised that said warranty would be honored by any authorized Volkswagen dealer in the United States. We acknowledge that in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Ventura v. Ford Motor Corp., 180 N.J.Super. 45, 433 A.2d 801 (1981); Freeman v. Hubco Leasing, Inc., 253 Ga. 698, 324 S.E.2d 462 (1985); General Motors Acceptance Corp. v. Jankowitz, 216 N.J.Super. 313, 523 A.2d 695 (1987); and Felde v. Chrysler Credit Corp., 219 Ill.App.3d 530, 162 Ill.Dec. 565, 580 N.E.2d 191 (1991), appeal denied, 143 Ill.2d 637, 167 Ill.Dec. 398, 587 N.E.2d 1013 (1992), the courts determined that despite the dealers' attempts to disclaim all warranties, they had nevertheless adopted the automobile manufacturers' warranties and were liable thereunder to the disappointed buyers. In each of those cases, however, there was language in the dealer's sales contract with the buyer which reflected the dealer's intent to incorporate, by reference, the manufacturer's warranty.

In Henningsen, for example, the dealer disclaimed all warranties in the purchase contract, but in the same document "agree[d] to promptly perform and fulfill all terms and conditions of the owner service policy." The owner service policy, given to the buyer at the time of delivery of the automobile, repeated the manufacturer's warranty set out in the purchase contract and added a paragraph by which the dealer extended that warranty to the buyer in the same manner as if the word "Dealer" appeared in place of the word "Manufacturer." The court concluded that the dealer's intent was to incorporate the provisions of the owner service policy into the purchase contract. It went on to hold that because the disclaimer in the purchase contract was inconspicuous and the limited remedy afforded by the manufacturer was unconscionable, both the disclaimer and the manufacturer's limited remedy were void as against public policy. Henningsen, 161 A.2d at 96-97. Similarly, in Ventura, the dealer disclaimed all warranties in its sales contract but, at the same time, agreed "to promptly perform and fulfill all terms and conditions of the owner service policy." The court concluded that, even assuming that the dealer's disclaimer was conspicuous and not unconscionable, the dealer's reference in the sales contract to the manufacturer's warranty amounted to the dealer's "written warranty" under the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act, sections 2301 to 2312, Title 15, United States Code Annotated (West 1982). Ventura, 433 A.2d at 809. Because the dealer had extended a written warranty within the meaning of that act, its attempted disclaimer of the implied warranty of merchantability was ineffective. 15 U.S.C.A. Sec. 2308(a)(1). In Freeman, the dealer...