Freedman v. Chrysler Corp.

• Decision Date: 15 March 1989
• Docket Number: No. 85C-MY-23,85C-MY-23
• Citation: 564 A.2d 691
• Parties: Eric V. FREEDMAN, Plaintiff, v. CHRYSLER CORPORATION, Kirkwood Motors, Inc. and Wilmington Trust Company, all Corporations of the State of Delaware, Defendants. Civ. A. . Submitted:
• Court: Delaware Superior Court

Page 691

564 A.2d 691

Eric V. FREEDMAN, Plaintiff, v. CHRYSLER CORPORATION, Kirkwood Motors, Inc. and Wilmington Trust Company, all Corporations of the State of Delaware, Defendants.

Civ. A. No. 85C-MY-23.

Superior Court of Delaware,

New Castle County.

Submitted: March 15, 1989.

Decided: April 24, 1989.

David S. Lank, Theisen, Lank, Mulford & Goldberg, Wilmington, for plaintiff.

Somers S. Price, Jr., and Arthur L. Dent (trial counsel), Potter, Anderson & Corroon, Wilmington, for defendant Chrysler Corp.

John A. Faraone, Wilmington, for defendant Kirkwood Motors, Inc.

Thomas P. Collins, Wilmington Trust Co., Wilmington, for defendant Wilmington Trust Co.

OPINION

MOORE, Justice [sitting by designation pursuant to Del. Const. Art. IV, § 13(2) ].

The defendants, Chrysler Corporation (Chrysler), Kirkwood Motors, Inc. (Kirkwood), and Wilmington Trust Company (the bank), have moved for judgment notwithstanding the verdict ("JNOV") or, alternatively, for a new trial pursuant to Superior Court Civil Rules 50(b) and 59(a).

The plaintiff, Eric V. Freedman, brought this action for breaches of both the express and implied warranties of merchantability for alleged defects in a 1984 Dodge Charger, which he purchased new on February 28, 1984 from Kirkwood. The automobile was manufactured by Chrysler and sold to Freedman for $7,886. Plaintiff made a $2,000 down payment, and financed the balance with the bank. ¹ Plaintiff sought to revoke acceptance of the vehicle pursuant to 6 Del.C. § 2-608.

The case was tried before a jury over a three day period. At the close of plaintiff's case in chief, defendants timely moved for a directed verdict on all counts of the complaint. A directed verdict was granted as to certain claims (Counts IV and V of the Complaint), because plaintiff had failed to present sufficient evidence supporting those allegations.

At the close of defendants' case, defendants renewed their motion for directed verdict on the remainder of the complaint. The motion was denied without prejudice to the defendants to renew the same after trial.

The jury returned a verdict for the plaintiff in the amount of $4,060.11 based solely on the implied warranty claim. The jury found for the defendants on the express warranty claim. However, that judgment was offset by $2,560.11, which the jury found represented the reasonable value of the plaintiff's use of the vehicle for the fourteen months between his purchase of the car and his attempted revocation of acceptance. Thus, the amount of the jury verdict in controversy is $1,500. This is the Court's decision on defendants' post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. For reasons hereafter stated, the motion for judgment notwithstanding the verdict will be granted.

I.

A.

It is well settled in Delaware that when deciding a motion for JNOV, the trial court must view the evidence in a light most favorable to the non-moving party. Moody v. Nationwide Mutual Insurance Co., Del.Supr., 549 A.2d 291, 293 (1988); Gannett Co., Inc. v. Re, Del.Supr., 496 A.2d 553 (1985); Eustice v. Rupert, Del.Supr., 460 A.2d 507, 508 (1983); Parks v. Ziegler, Del.Supr., 221 A.2d 510, 511 (1966); Chrysler Corp. v. Quimby, Del.Supr., 1 Storey 264, 144 A.2d 123 (1958).

With this standard in mind, I turn to an examination of the record.

B.

Between the time that plaintiff purchased the 1984 Dodge Charger on February 28, 1984, and April 25, 1985, the day on which he returned the car to Kirkwood and attempted to revoke his acceptance of the automobile, he experienced several problems with the vehicle. The first was on May 10, 1984, over two months after the car was delivered, when Freedman brought it to Kirkwood for warranty service. Plaintiff stated that he had trouble starting the car, that it hesitated, stalled and generally ran roughly. Also, he had experienced some "grinding" in the transmission. Whether or not these problems were fully corrected on May 10, 1984 is in dispute. For purposes of this motion, I will assume that they were not, as the plaintiff contends. However, it is undisputed that on the seven occasions when the car was in for service, it was unavailable to plaintiff only for the day of such service, i.e. a total of 7 days out of the 14 months (or approximately 420 days) during which plaintiff had full use of the car, and drove it a total of 15,353 miles. Up until the May 10 service, the plaintiff had driven the car 2,012 miles without any complaints to the defendants.

The second servicing of the car, also completed under warranty, was on July 12, 1984, five months after plaintiff bought it. The automobile was never out of use to plaintiff between the May 10 and July 12 repairs. In fact, there is no dispute that it was driven on a daily basis. Servicing was again completed in one day. By July 12 the plaintiff had driven the car nearly 4,000 miles.

The third occasion for service was on August 30, 1984. This time, however, the car was towed to another dealership, allegedly because it failed to start. The invoice that the plaintiff introduced into evidence reiterated the plaintiff's complaint that the car would not start. However, the service order stated that the cause of the problem was a dead battery. No further problems were discovered, nor was any other explanation offered by the plaintiff why the car failed to start. Aside from towing, the only service the car received was a recharge of its battery. There is no evidence whatever that there was a recurrence of any electrical problem causing a dead battery or the need to recharge the battery thereafter.

This Court is mindful of its duty to view the evidence in a light most favorable to the plaintiff. This does not mean, however, that the Court is to supply crucial evidence, where the plaintiff has failed to do so, nor does it mean that the Court is to ignore potentially damaging evidence introduced by the plaintiff which would tend to refute his own claim. Cf. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir.1976), cert. denied 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (court considered uncontradicted evidence adduced by moving party which undermined the non-moving party's prima facie case). See also 5A Moore's Federal Practice, p 50.02 at pp. 50-29--50-30.

The fourth occasion for service was on November 1, 1984, almost nine months after the car's purchase. Plaintiff claims that the mechanical problems which previously existed had not abated. The purpose of the November 1 visit to Kirkwood was to permit Fred Layfield, a Chrysler factory representative, to inspect the car. Plaintiff had contacted Chrysler in October, complaining about the problems he was experiencing with the vehicle. Between the July 12, 1984 and November 1, 1984 service visits, plaintiff testified that he drove the car on a daily basis, compiling in excess of 5,000 miles during that period. In fact, by November 1 the car had been driven over 9,000 miles.

The car was serviced again on November 27, 1984 and December 13, 1984, and for the last time on December 31, 1984. On each of these occasions, the car was never out of plaintiff's use for more than one day. By the December 31 service visit, the car had been driven 11,521 miles. ² All repairs through the December 31 repair were completed under warranty.

On February 8, 1985, plaintiff wrote to the Chrysler Customer Satisfaction Board demanding arbitration of his service related problems. See Plaintiff's Exhibit 13. He met with various representatives of Chrysler up until April 22, 1985, but he did not complete the arbitration procedure. Instead, on April 25, 1985, plaintiff simply returned the car to Kirkwood, after driving it for 15,353 miles, as his purported revocation of the transaction.

Yet, plaintiff admitted that between January 1, 1985, the day following Kirkwood's last service of the car, and April 25, 1985, he drove it nearly 4,000 miles. The one exception being March 22, 1985, when after complaining of the car's failure to start properly, he had it towed to another dealership only to learn that the car was out of gas. Like the episode of the dead battery, once gas was put in the car no further service was required.

In addition to the foregoing mechanical problems, plaintiff also contends that the car's exhaust system, windows, dashboard, driver's seat cushion, and radio were "defective." Yet plaintiff drove this car over 15,000 miles during the fourteen months it was in his possession. The car was never out of use for longer than one day. On two occasions when the car was towed to other dealerships because of its failure to start properly, the first problem was a dead battery, which was simply corrected by recharging the battery, and the second was when the car was out of gas, again a simple correction. Significantly, it is undisputed that the express warranty had expired approximately two months before plaintiff's attempted revocation. If there were indeed any serious mechanical problems with the car, plaintiff's evidence utterly fails, as a matter of law, to support a claim that any such problems substantially impaired his use of the vehicle. Accepting the plaintiff's claims about the remaining "defects", clearly, they were of a non-mechanical nature, and never interfered with the plaintiff's extensive use of the car.

II.

A motion for judgment notwithstanding the verdict ("JNOV") is governed by Superior Court Civil Rule 50(b). ³ The standard for granting a motion for JNOV is the same as that for granting a directed verdict. Cf. Storey v. Camper, Del.Supr., 401 A.2d 458 (1979). Accord 5A Moore's Federal Practice p 50.07 (2d ed. 1989) (construing identical Federal Rule of Civil Procedure 50(a), (b));

The Delaware Supreme Court, in stating the proper standard applicable to granting a JNOV, has held that: "[o]nly where the facts permit reasonable persons to draw but one inference--adverse to the non-moving...