Melby v. Hawkins Pontiac, Inc.

• Decision Date: 27 June 1975
• Docket Number: No. 1281--II,1281--II
• Parties: , 17 UCC Rep.Serv. 369 Ward MELBY, a single man, Respondent, v. HAWKINS PONTIAC, INC., Appellant, Tom Hawkins et al., Defendants.
• Court: Washington Court of Appeals

Page 745

13 Wn.App. 745

537 P.2d 807, 17 UCC Rep.Serv. 369

Ward MELBY, a single man, Respondent, v. HAWKINS PONTIAC, INC., Appellant Tom Hawkins et al., Defendants.

No. 1281--II.

Court of Appeals of Washington, Division 2.

June 27, 1975.

Allan L. Overland, Tacoma, for appellant.

R. L. Peters, Peters & Tracy, Tacoma, for respondent.

PEARSON, Judge.

Plaintiff Melby purchased a new Maserati Ghibli from defendant Hawkins Pontiac, Inc., and made a $4,500 cash down payment on the $22,750 purchase price of the automobile. Melby was able to drive the vehicle only 6 days before it became necessary for him to turn it over to the defendant for repairs, which were of indefinite duration. After waiting several months for the repair of his automobile, Melby filed suit. A summary judgment was entered in favor of the plaintiff; Hawkins Pontiac appeals.

The sequence of prejudgment events relevant to this appeal is as follows. Melby purchased the Maserati from the defendant on January 25, 1973. Five days later he returned the car to the defendant for maintenance work. The vehicle was returned to Melby on February 11, 1973. The next day Melby noticed that the oil pressure was low; he again delivered the automobile to Hawkins Pontiac for repair. On May 31, 1973 Melby filed an unverified complaint for damages arising from breach of warranty. Defendant filed an answer denying the substance of Melby's complaint, and as an affirmative defense alleged that the mechanical difficulties with the car were caused by plaintiff's neglect and misuse.

On July 18, 1973 plaintiff served defendant with requests for admissions which were not answered within the 20-day period prescribed in CR 36, but which were answered on September 18.

Plaintiff moved for summary judgment on September 12, 1973; a hearsay affidavit of plaintiff's counsel, verifying and detailing the complaint, accompanied the motion. On September 24, the date of the hearing on the motion, defendant filed opposing affidavits which essentially stated that: (1) plaintiff was advised at the time of purchase to break the car in gently; (2) plaintiff's misuse of the vehicle is evidenced by the fact that during the 6-day period in which plaintiff had possession of the car he drove it 1558 miles; (3) at the time of purchase, plaintiff was advised that the automobile was hand made and hand tooled, making parts difficult to obtain, and plaintiff was further advised that warranty work was a possibility; (4) the crankcase was sent out for repair on plaintiff's order; (5) plaintiff never advised the defendant that he no longer wanted the car; and (6) the summons was ambiguous.

On September 24, 1973 the trial court ruled in favor of the plaintiff on the issue of liability; three hearings on damages and setoff were subsequently held. A written order granting plaintiff rescission of the purchase contract and restitution of amounts paid pursuant to it was entered on November 12, 1973.

The trial court relied on Berg v. Stromme, 79 Wash.2d 184, 484 P.2d 380 (1971) in reaching its decision. ¹ That case held that a new automobile is impliedly warranted to perform with reasonable efficiency, safety and comfort, and that a buyer may have an action for rescission or damages if he is forced to go for an extended period of time without the use of his automobile because of repair work being done to it. See RCW 62A.2--314; RCW 62A.2--315. It seems, however, that whether or not the length of time necessary for repairs is reasonable depends upon the facts and circumstances of the case. Moreover, repairs necessitated by customer misuse would be a defense to an action for breach of warranty.

Defendant's first argument on appeal is that a genuine issue of fact was raised as to both customer misuse and the reasonableness of the delay, thus foreclosing summary judgment under CR 56. Defendant contends further that the trial court should not have considered plaintiff's unverified complaint and the hearsay affidavit of his counsel in ruling on the motion. Meadows v. Grant's Auto Brokers, Inc., 71 Wash.2d 874, 431 P.2d 216 (1967); Carlson v. Milbrad, 68 Wash.2d 847, 415 P.2d 1020 (1966); Loss v. DeBord, 67 Wash.2d 318, 407 P.2d 421 (1965). Although this latter contention is correct, we do not agree that summary judgment was improper in this case. The plaintiff may still rely on the admissions from the defendant in support of his motion. The plaintiff's requests for admissions, because they were not timely answered, must be treated as admitted. CR 36. (Contrary to defendant's suggestion, there is nothing in the record indicating that its failure to timely respond to the requests for admissions was induced or otherwise waived by the plaintiff. Nor is this a case for the rule to be disregarded, as was done in Coleman v. Altman, 7 Wash.App. 80, 497 P.2d 1338 (1972).)

Turning to the substance of the admissions, we find that of critical importance is plaintiff's request number 4, which stated:

That at the time the vehicle was sold to Melby, the motor was defective in that, among other things, the oil pressure gauge indicated a low oil pressure.

If this statement is treated as true, then it precludes any finding that the difficulty arose after purchase because of plaintiff's misuse of the automobile. Even aside from this admission, we do not believe that defendant raised a genuine issue of fact in its affidavits as to customer misuse. The advised to break the car in gently and that he drove the car 1558 miles in 6 days. The affidavits present no basis for the supposition that plaintiff drove the car at an excessive rate of speed, or that driving it long distances was harmful.

Significant to the question of reasonableness in delay in repairs are plaintiff's admission requests numbers 5 and 10:

(7) That the car was returned to Hawkins Pontiac on the 12th day of February, 1973, for necessary engine work that on the 11th of July 1973, the said engine has still not been reassembled, and the car was still in an inoperable condition.

(10) That on February 17, 1973, the defendant, Tom Hawkins, individually, advised the plaintiff that the car would be repaired no later than March 17, 1973.

These admissions provide a sufficient basis for the trial court's conclusion that, as a matter of law, the delay in repairs was unreasonable. In Berg v. Stromme, supra, the court held that it is unreasonable for a new automobile to be in a garage for repairs for 45 days out of the first year of ownership. In the instant case, plaintiff had use of his new automobile for only 6 of the first 197 days of ownership. Even conceding the uniqueness of this automobile, the amount of time spent repairing it was likewise unreasonable.

Defendant's second assignment of error on appeal is that rescission was not a proper remedy in this case because plaintiff elected his remedy by asking for damages only. The election of remedies doctrine provides that if two or more remedies exist which are repugnant and inconsistent with one another, a party will be bound if he has chosen one of them. Lange v. Woodway, 79 Wash.2d 45, 483 P.2d 116 (1971); Labor Hall Ass'n v. Danielsen, 24 Wash.2d 75, 163 P.2d 167 (1945). Affirmance of...