Jolovitz v. Alfa Romeo Distributors

• Citation: 760 A.2d 625,2000 ME 174
• Parties: Lester T. JOLOVITZ v. ALFA ROMEO DISTRIBUTORS OF NORTH AMERICA et al.
• Decision Date: 19 October 2000
• Court: Supreme Judicial Court of Maine (US)

760 A.2d 625

2000 ME 174

Lester T. JOLOVITZ v. ALFA ROMEO DISTRIBUTORS OF NORTH AMERICA et al.

Supreme Judicial Court of Maine.

Argued September 5, 2000.

Decided October 19, 2000.

Harold J. Friedman (orally), Melinda P. Shain, Friedman Babcock & Gaythwaite, Portland, for plaintiff.

John A Graustein (orally), Deirdre M. Smith, Drummond Woodsum & MacMahon, Portland, for defendant, Alfa Romeo.

James C. Hunt (orally), Robinson Kriger & McCallum, Portland, for defendant, Forest City.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

WATHEN, C.J.

[¶ 1] Plaintiff Lester Jolovitz appeals from a judgment entered in the Superior Court (Kennebec County, Marden, J.) in favor of defendants Alfa Romeo Distributors of North America and Forest City Chevrolet on Jolovitz's claims for violation of the Lemon Law, 10 M.R.S.A. §§ 1161-1169 (1997 & Supp.1999); violation of the Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A to 214 (1989 & Pamph.1999); and breach of the implied warranty of merchantability, 11 M.R.S.A. § 2-314 (1995). Jolovitz also appeals from the court's denial of his motion to reconsider the entry of summary judgment on additional claims for negligence and punitive damages. Finding no error, we affirm.

[¶ 2] The facts as developed at trial may be summarized as follows: On August 31, 1990, Jolovitz purchased a 1991 Alfa Romeo 164 sedan from Forest City. Jolovitz did not experience any problems with the vehicle from the date of his purchase until April 1991, when he drove his vehicle to Forest City and complained of steering wheel vibration. Forest City eliminated the vibration by balancing the car's tires. Jolovitz returned to Forest City in September 1991, and complained that the vehicle pulled to the right. Forest City corrected the problem with a front end alignment. In November 1991, Jolovitz complained that the car was once again pulling to the side of the road, and Forest City centered the car's steering wheel on this visit with a so-called "thrust alignment." In the course of doing this work, a Forest City technician accidently bent the car's tie rods while it was on the lift. As a result of the bent tie rods, the car squeaked when driven. Jolovitz immediately informed Forest City of the squeaking and the technician told him he would have to lubricate the bushings. On his ride home from Portland to Waterville, the squeaking returned and Jolovitz took the car to a Midas dealership a few days later. A Midas technician informed Jolovitz that the squeak was caused by bent tie rods. Jolovitz returned the car to Forest City in December 1991, and Forest City replaced the bent tie rods and the car's rear suspension and, because of these repairs, also performed a four wheel alignment.

[¶ 3] In March 1992, Jolovitz drove the car to Florida. On the last day of his stay in Florida, Jolovitz detected a strange noise. Jolovitz took the car to an Alfa Romeo dealer, and a technician told him that the tires were cupped and needed to be replaced. After an unsuccessful attempt to get either Alfa Romeo or Goodyear to pay for new tires, Jolovitz purchased four new tires. At the tire store, Jolovitz was informed that one of the wheel rims was bent, so he purchased a new rim as well. He then returned to the Alfa Romeo dealer for a four wheel alignment. During his trip to Florida, Jolovitz claims that he detected for the first time a strong smell of gasoline in the passenger compartment of the car after he had filled the tank. The gasoline smell was not present during the rest of his stay in Florida or during his return drive to Maine.

[¶ 4] After returning to Maine, Jolovitz wrote a letter to the manager of Forest City regarding the tire wear and requested that they reimburse him for the replacement cost. Alfa Romeo responded to his request by arranging for Jolovitz to meet with a field representative in April 1992. At the time of this inspection, the car's odometer read 18,326 miles. According to Jolovitz, he inquired at about this time whether other owners of the Alfa Romeo 164 had made similar complaints of either alignment problems or gasoline odor in the passenger compartment and was informed by Forest City that Alfa Romeo had sent the 164 out with improper alignment specifications and that dealers were subsequently notified to change the specs and perform an alignment on all vehicles coming in for service, but that neither Alfa Romeo nor Forest City had any knowledge of complaints about gasoline odor. Jolovitz continued to have alignment and intermittent gas odor problems during 1992 and 1993. At that point, with 34,500 miles on the car, he decided not to use it any longer.

[¶ 5] In November 1993, Jolovitz filed a complaint in District Court, which was dismissed without prejudice, and in December 1993, filed a new complaint in Superior Court. The new complaint sought relief pursuant to the Lemon Law, the Unfair Trade Practices Act, the implied warranty of merchantability, and the "implied warranty of fitness for a particular purpose," and for negligence and punitive damages. All counts were asserted against both Alfa Romeo and Forest City except for the Lemon Law count, which was asserted only against Alfa Romeo. Alfa Romeo and Forest City each moved for summary judgment, and the Superior Court (Alexander, J.) granted summary judgment in favor of defendants on the counts for negligence and punitive damages, but denied defendants' motions with respect to the remaining counts.

[¶ 6] Over several years of discovery, Jolovitz learned that there were other Alfa Romeo 164 owners who experienced similar odor problems with their cars. Sometime in the fall of 1996, Jolovitz received a notice of recall from Alfa Romeo, informing him of defects in the 164's fuel filler hose. Jolovitz moved to reopen discovery in October 1996, and the Superior Court granted the motion to allow Jolovitz to examine issues related to the gas odor and the recall. During this stage of discovery, Alfa Romeo provided Jolovitz with several letters of complaint received from other 164 owners, all of which described, inter alia, problems with strong, intermittent gasoline odors entering the passenger compartment. At the conclusion of discovery and on the basis of this newly discovered evidence, Jolovitz moved, inter alia, to reconsider or vacate the prior summary judgment on the claims of negligence and punitive damages and to amend his complaint to add punitive damages as an additional element to the Unfair Trade Practice Act as well as a count of common law fraud and deceit. The court denied this motion, Jolovitz moved for reconsideration, and the court again denied the motion. Following a bench trial and consideration of post-trial motions, the court entered judgment for Alfa Romeo and Forest City on all counts of Jolovitz's complaint.

[¶ 7] Jolovitz argues on appeal that the court erred in finding in favor of Alfa Romeo on the Lemon Law claim. Maine's "Lemon Law" provides consumers with a statutory right to have the manufacturer, its agent or authorized dealer make repairs to a new motor vehicle that does not conform to all express warranties, provided that the consumer reports the nonconformity to the manufacturer, agent or dealer within two years of the date the vehicle is delivered to the consumer. See 10 M.R.S.A. § 1163(1) (1997). If the manufacturer, agent or dealer cannot make the vehicle conform to its warranty provisions "after a reasonable number of attempts" and the defect or condition complained of "substantially impairs the use, safety or value of the motor vehicle," then the manufacturer may replace the vehicle with a comparable vehicle, provided the consumer agrees, or must accept the return of the defective vehicle in exchange for a refund. See id. § 1163(2) (Supp.1999). The statute provides a presumption that a reasonable number of repairs have been attempted if either "[t]he same nonconformity has been subject to repair 3 or more times" within the shorter of the warranty term, two years from the date of delivery or 18,000 miles or the vehicle has been out of service due to repairs for 15 or more business days within this time. See id. § 1163(3) (1997). It is an affirmative defense under the act that "[a]n alleged nonconformity does not substantially impair...