Gorman v. Am. Honda Motor Co., Docket No. 303005.

• Decision Date: 06 August 2013
• Docket Number: Docket No. 303005.
• Citation: 839 N.W.2d 223,302 Mich.App. 113
• Parties: GORMAN v. AMERICAN HONDA MOTOR CO, INC.
• Court: Court of Appeal of Michigan — District of US

302 Mich.App. 113

839 N.W.2d 223

GORMAN

v.AMERICAN HONDA MOTOR CO, INC.

Docket No. 303005.

Court of Appeals of Michigan.

Submitted June 11, 2013, at Detroit.

Decided Aug. 6, 2013, at 9:00 a.m.

The Liblang Law Firm, PC (by Dani K. Liblang, Birmingham), for plaintiff.

Driggers, Schultz & Herbst, PC, Troy (by James J. Majernik), for defendant.

Before: JANSEN, P.J., and MARK J. CAVANAGH and MARKEY, JJ.

MARKEY, J.

Plaintiff brought an action asserting breach of warranty and other claims against defendants, alleging that a 2007 Acura MDX she purchased from defendant Acura of Troy was defective. The trial court granted defendants' motion for summary disposition under MCR 2.116(C)(8) and (C)(10) and denied plaintiff's motion for reconsideration. Plaintiff appeals by right. We affirm.

Plaintiff purchased a new 2007 Acura MDX from defendant Acura of Troy on November 17, 2006. Plaintiff alleges that the dealer and defendant American Honda Motor Co., Inc. (Honda), provided warranties covering the vehicle “bumper to bumper” for 4 years or 50,000 miles, whichever came first. Defendants' warranty also extended to all parts installed by an Acura dealer for one year or 12,000 miles, whichever came first. Plaintiff alleges that the primary defect in the vehicle, as demonstrated by its repair history, is the “ active damper system” (ADS), which controls the struts and suspension system and gives the vehicle its smooth ride.

Plaintiff testified at her deposition that her Acura MDX had never broken down and that she had never contacted defendant Acura of Troy to request they take the vehicle back and reimburse her purchase price. Plaintiff also admitted that Acura of Troy had never improperly serviced her MDX.¹ She also testified that the SRS (air bag) message light would turn on and off. Plaintiff took the vehicle to Suburban Acura on April 1, 2010, where a faulty driver's seat sensor was found. Plaintiff testified that the air bag light's illuminating is what finally motivated her to file this lawsuit.

I. TRIAL COURT RULINGS UNDER MCR 2.116(C)(10)

A. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). Under MCR 2.116(C)(10), the motion tests the factual adequacy of a complaint on the basis of the entire record, including affidavits, depositions, admissions, or other documentary evidence. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278, 681 N.W.2d 342 (2004). The trial court in deciding the motion must view the substantively admissible evidence submitted up to the time of the motion in a light most favorable to the party opposing the motion. Maiden v. Rozwood, 461 Mich. 109, 120–121, 597 N.W.2d 817 (1999). “Summary disposition is appropriate ... if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469 Mich. at 183, 665 N.W.2d 468.

Questions of law, including statutory interpretation, are reviewed de novo on appeal. Gen. Motors Corp. v. Dep't of Treasury, 290 Mich.App. 355, 369, 803 N.W.2d 698 (2010).

B. PLAINTIFF'S EXPRESS WARRANTY CLAIMS

Plaintiff first argues that the trial court erred by misconstruing what constitutes a breach of warranty. Specifically, plaintiff contends that while attempts were made to repair the vehicle's problems within the warranty period, the attempts were unsuccessful. Thus, plaintiff argues, the warranty failed its essential purpose. See King v. Taylor Chrysler–Plymouth, Inc., 184 Mich.App. 204, 213, 457 N.W.2d 42 (1990). Plaintiff contends that a material question of fact exists regarding whether the cause of the vehicle's problems after the warranty expired were the result of a defect that existed during the warranty period that went unrepaired. Defendant Honda argues that it honored the manufacturer's obligations under the written warranty for all issues covered during the written warranty period. Thus, defendants contend that the trial court properly ruled: “There is simply no evidence of any breach [of warranty] on the part of either defendant.” Defendants also note that plaintiff relies on an unsworn, unsigned affidavit of an expert, Anthony Zolinski, which cannot be considered on a motion for summary disposition.

We conclude that the trial court did not err by granting defendants summary disposition of plaintiff's express warranty claim on the basis that there was no evidence that defendants failed to honor it. The vehicle's repair history and putative expert testimony are insufficient to create a question of fact on plaintiff's express warranty claim. Plaintiff bore the burden of establishing that defendants breached the written limited warranty, i.e., that during the period of the warranty defendants were notified of a defect that they failed to repair. See MCL 440.2607(4); American Bumper & Mfg. Co. v. Transtechnology Corp., 252 Mich.App. 340, 345, 652 N.W.2d 252 (2002); see also Computer Network, Inc. v. AM Gen. Corp., 265 Mich.App. 309, 317, 696 N.W.2d 49 (2005). Plaintiff does not argue, or identify evidence indicating, that the vehicle was out of service for an unreasonable period of time during the performance of warranty service. Therefore, this case is distinguished from cases like Pack v. Damon Corp., 434 F.3d 810 (C.A.6, 2006) and Kelynack v. Yamaha Motor Corp., 152 Mich.App. 105, 394 N.W.2d 17 (1986), in which vehicles were out of service for extended periods of time during repair efforts.

In this case, the undisputed evidence shows that defects brought to defendants' attention during the warranty period were repaired within a reasonable time and that the vehicle was returned to service without any further complaints from plaintiff. The present case is controlled by Computer Network, Inc., 265 Mich.App. 309, 696 N.W.2d 49, in which every time the plaintiff presented the vehicle to the dealer for service, repairs were made and there was “no evidence that the time allotted for the presented repairs was unreasonable under the particular circumstances.” Id. at 315, 696 N.W.2d 49. Further, “the vehicle was always repaired, returned, accepted, and used. Because there was no question of material fact, summary disposition under MCR 2.116(C)(10) was appropriate.” Id.

Plaintiff's arguments to the contrary are based on speculation and inadmissible evidence. First, plaintiff relies on the vehicle's repair history after the warranty period expired in February 2009. In June and July 2009, when the vehicle had been driven more than 60,000 miles, it was serviced because the ADS message light illuminated. Suburban Acura found stored codes 6–2 and 7–2 caused by an open circuit in the left strut. Defendant Honda apparently agreed to replace the left front strut as a matter of good will, with plaintiff paying $100 toward the repair. On July 28, 2009, when the vehicle had been driven 62,357 miles, plaintiff complained that it was riding rough. Suburban Acura found that the vehicle's upper sway bar connection was loose and tightened it to within specifications. On January 8, 2010, with 72,576 miles on the odometer, plaintiff presented the vehicle to Suburban Acura because various dash warning lights, including the ADS light, were illuminating. Problems relating to the exhaust converter were found and repaired. Suburban Acura also found an unspecified stored code regarding the ADS system, cleared it, and it did not reset. On February 12, 2010, after the vehicle had been driven 74,171 miles, the ADS message light illuminated. Suburban Acura found a stored code of 7–9 and traced the problem to the need to replace the right front and right rear shock coils, which was done.

Plaintiff's reliance on the vehicle's postwarranty repair history is misplaced because there is no evidence of a causal link between them and an unrepaired defect that plaintiff brought to defendants' attention during the warranty period. In a breach of contract case, the plaintiff must establish a causal link between the asserted breach of contract and the claimed damages. See Miller–Davis Co. v. Ahrens Constr., Inc. (On Remand), 296 Mich.App. 56, 71–72, 817 N.W.2d 609 (2012). In this case, there is no evidence the same repairs were made during and after the warranty period, and if they were the same, there was no evidence that the postwarranty repairs were not normal maintenance items as opposed to an unrepaired defect, or that the postwarranty repairs were not necessitated by poor workmanship by nonparty Suburban Acura, which performed all the warranty repairs. “ ‘There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only.’ ” Kaminski v. Grand Trunk W. R. Co., 347 Mich. 417, 422, 79 N.W.2d 899 (1956) (citation omitted). “To be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation.” Skinner v. Square D Co., 445 Mich. 153, 164, 516 N.W.2d 475 (1994). Simply put, the postwarranty repair history creates only speculation and conjecture that defects disclosed to defendants during the warranty period went unrepaired; this is insufficient to create an issue of material fact to survive a motion for summary disposition. MEEMIC Ins. Co. v. DTE Energy Co., 292 Mich.App. 278, 282, 807 N.W.2d 407 (2011).

Neither defendants' expert's report nor the unsigned affidavit of plaintiff's expert assist plaintiff in creating a material question of fact on her breach-of-warranty claim. The report of defendants' expert provided evidence only of the condition of plaintiff's vehicle when he inspected it on September 14, 2010, with 85,645 miles on the odometer. Defendant...