Laing v. Volkswagen of America, Inc.
| Decision Date | 29 May 2008 |
| Docket Number | No. 1040, September Term, 2007.,1040, September Term, 2007. |
| Citation | 949 A.2d 26,180 Md.App. 136 |
| Parties | Calbert Augustus LAING v. VOLKSWAGEN OF AMERICA, INC. |
| Court | Court of Special Appeals of Maryland |
Shortly after purchasing a 2004 Volkswagen Touareg, appellant, Calbert Augustus Laing, became dissatisfied with the vehicle and, nearly two years later, brought suit against appellee, Volkswagen of America, Inc., the manufacturer. In the complaint filed in February of 2006, appellant alleged three counts of statutory violations for breach of warranties under the Maryland Automotive Warranty Enforcement Act (Maryland Lemon Law)1 and the Magnuson-Moss Warranty Act, a federal consumer protection oriented statute, for the alleged nonconformities.2 In the third count, appellant claimed a violation of the Maryland Consumer Protection Act, which proscribes unfair and deceptive trade practices.3
Appellant filed suit regarding three specific defects of the vehicle, in which he claimed that appellee's failure to remedy those conditions constituted the three mentioned statutory violations. On September 26, 2006, appellee moved for summary judgment. The circuit court denied the motion.
On June 6, 2007, the day trial was to have commenced, appellee renewed the motion for summary judgment at the conclusion of all the evidence. With a jury already empaneled, the circuit court found that the undisputed material facts as established by the submissions pursuant to Maryland Rule 2-501(a) were insufficient to generate an issue of fact for the jury to decide. Without expert testimony establishing a defect, the circuit court determined that appellant failed to establish a warranty claim as a matter of law; summary judgment was therefore entered.
Appellant subsequently filed this appeal, raising the following issue, which we have rephrased and consolidated as follows:
Whether the circuit court erred in granting a motion for summary judgment upon finding that appellant failed to establish legally sufficient evidence to pursue his claims under the Magnuson-Moss Warranty Act, the Maryland Automotive Warranty Enforcement Act4 and the Maryland Consumer Protection Act.
For the following reasons, we affirm the circuit court's decision that each cause of action5 required appellant to prove a defective condition through expert testimony to generate a triable issue for the jury to decide.
In October of 2004, appellant purchased a demonstrator6 2004 Volkswagen Touareg from Darcars College Park Volkswagen (Darcars), operating as College Park Motor Cars, Inc., an authorized dealership of appellee, for $44,584. The odometer had a reading of 5,289 miles at the time of sale. A "Limited New Vehicle Warranty" accompanied the sale of the vehicle and covered the remaining portion of the original new car warranty for four years or fifty thousand miles, whichever occurred first. The limited warranty provided for the repair or replacement of parts with defects in materials or workmanship, except for wheel alignment, tire balancing and repair or replacement of tires. Any Volkswagen dealership was authorized to perform the warranty services. Appellant also purchased a maintenance package from Darcars for $875, which stated an agreement that appellee would provide oil changes, tire balancing and rotation and seasonal inspections and appellant was obliged to avail himself of same as required. Appellant received a pamphlet, titled "Owner Information about Consumer Protection Laws," with information regarding his right to enforce warranties upon notifying appellee, in writing, of any nonconformity.
Over the course of two years, appellant took the vehicle to the dealership "something like [twenty-four] times" for repairs. Repair orders from the dealership document the complaints lodged by appellant on each of those occasions and detail the extent of the services performed. The complaints ranged from pieces of trim on the interior of the vehicle coming loose to more serious issues. The odometer registered approximately 23,000 miles during those two years when many of the "minor" problems were repaired, including the replacement of two broken pieces of trim, application of paint sealant and repair of a loose rail, air bag light, trim on the grill and the horn. According to appellant, there were three other "significant problems," none of which has been resolved: the windshield wiper fluid emitted an odor that made appellant feel nauseous; the tires made "unusual" sounds; and the vehicle hesitated then surged after being stopped.
Virtually each time that the vehicle was taken to the dealer for servicing, the dealer rotated the tires at appellant's request. Nearly every 3,000 miles, appellant scheduled oil changes and had general maintenance services performed as recommended by the manufacturer.
On January 20, 2005, three months after appellant purchased the vehicle, appellant complained to the dealership of odors from the window washer fluid and exhaust fumes. The dealer inspected the vehicle, but found no leaks. Appellant feared that, because window washer fluids contain poisonous substances, "constant inhaling of the substance can be a very serious health hazard." Two months later, appellant returned to the dealership to complain again of the odor. This time, the dealership suggested that appellant utilize the recirculation setting on his heating and cooling system to prevent exterior odors from penetrating the interior of the vehicle. As part of the services performed on that day, the dealer rotated the tires.
On June 8, 2005, the dealer once again rotated the tires. Days later, appellant returned, this time complaining that the tires were making an "unusual sound." Appellant claimed that, at first, the dealer did not "take the problem very serious[ly]." When appellant returned on June 22, 2005, one of the dealer's technicians road tested the vehicle and concluded that the noise was caused by "cupping" or, in other words, the uneven wearing of the tread. The dealer informed appellant that cupping could not be corrected, but that it could be avoided by rotating the tires every 4,000 miles. Per appellant's request, the tires were rotated and balanced.
On August 24, 2005, rather than going directly to the dealer, appellant contacted "the people at Volkswagen" and persuaded them to pay to replace the tires. At that time, the odometer registered 14,714 miles. Appellee informed appellant that the tires were not covered under warranty, but agreed to replace two of the tires as a matter of goodwill as long as appellant paid for their installation.
The replacement of the two tires "temporarily" corrected the problem. Nearly 6,000 miles later, the cupping problem recurred. In early September of 2005, appellant contacted the manufacturer of the tires and persuaded it to replace the other two tires. The manufacturer sent appellant to Merchant's Tire & Auto Centers, one of their suppliers, to perform the installation.
Appellant's most significant complaint was that, whenever he attempted to accelerate "the car would sit" and "then after a brief period of about ten seconds or so, it would jump off." The hesitation problem was brought to the dealer's attention on three different occasions. The first time was on or about August 22, 2005. Appellant informed the dealer that he typically noticed hesitation in the mornings when it was cold outside. The dealer attempted to duplicate the hesitation by keeping the vehicle overnight and test driving it in the morning; however, the dealer's test concluded that the vehicle was performing according to specifications. The second time that appellant complained about the hesitation problem was in mid-September of 2005. In addition to hesitation, appellant reported that there was a "slight shimmy on the steering."7 To correct the shimmy, the dealer balanced the tires. Despite these efforts, appellant claims that the shimmy persisted. On that visit, the dealer also diagnosed the hesitation as a computer problem and, therefore, installed new computer parts. Shortly after the repairs, the hesitation problem recurred and appellant returned the vehicle for servicing. This time, the dealer diagnosed the hesitation problem as an electrical malfunction in the fuel pump and then replaced the fuel pump. In mid-October of 2005, when appellant lodged his third complaint, the dealership informed appellant that they would need to schedule a test drive with a district representative from their regional office to try to ascertain the problem. Appellant was never contacted to schedule the test drive.8 On that same visit, appellant notified the dealer about the window washer fluid odor and the vibration of the tires. Once again, the dealer rotated the tires.
Appellant also experienced other problems with the Touareg. In December of 2005, the dealer repaired the parking brake by replacing a cable. In January of 2006, appellant took the vehicle to the dealership, complaining that the locking system failed and that a piece of trim had fallen off the mechanism that operates the seat belt. The dealer replaced the trim, but determined that the locking system was performing to specifications. In March of 2006, the dealer repaired the brake lights and, three months later, it repaired squeaky door hinges. In September of 2006, the dealer repaired the light inside the trunk that was falling off.
The genesis of this appeal is the lawsuit to redress the unrepaired conditions. On February 22, 2006, appellant filed a complaint in the circuit court, alleging the three statutory violations, seeking...
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