Volkswagen of America, Inc. v. Dillard

Decision Date08 March 1991
Citation579 So.2d 1301
Parties14 UCC Rep.Serv.2d 475, Prod.Liab.Rep. (CCH) P 12,818 VOLKSWAGEN OF AMERICA, INC. v. Edwin O. DILLARD. 89-1736.
CourtAlabama Supreme Court

H. Dean Mooty, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.

George H.B. Mathews, Montgomery, for appellee.

HOUSTON, Justice.

This is an appeal from a judgment based on a jury verdict entered against Volkswagen United States, Inc., a division of Volkswagen of America, Inc. ("Volkswagen"), in favor of Edwin O. Dillard and awarding him money damages based on a breach of a warranty given on the sale of a new 1987 Volkswagen automobile. We affirm.

Dillard sued Volkswagen, alleging the breach of an express warranty and claiming damages for loss of the value of the car, damages for mental anguish, and attorney fees and costs. The jury returned the following verdict:

"We, the jury, find in favor of [Dillard] and against [Volkswagen] and assess the damages as follows:

"7,000.00 Damages for loss of value to vehicle.

"8,000.00 Compensatory damages for mental anguish.

"It is our intention to award a total amount of damages for $15,000.00."

The trial court entered judgment on the verdict and also awarded attorney fees of $15,000 and costs of $231.81. Volkswagen appealed, arguing that the trial court improperly charged the jury that it could award damages for mental anguish on Dillard's breach of warranty claim. That charge reads as follows:

"[I]n addition to the claims for loss in value [Dillard] has also claimed damages for mental anguish. Compensation for mental anguish proximately resulting from the alleged failure of the essential purpose of the warranty which Volkswagen issued.

"... [W]here a contractual duty is so related with matters of mental concern or apprehensiveness or with the feelings of the parties to whom the duty is owed that a breach of that duty will necessarily or reasonably result in mental anguish or suffering and such matters were reasonably within the contemplation of the parties when the warranty became effective, then in such event, if [Dillard] is entitled to recover, he would be entitled to recover such sum as would reasonably compensate him for such mental anguish...."

The sole issue presented on appeal is whether damages for mental anguish are recoverable in a breach of warranty action relating to the sale of a new automobile.

The facts of the case are essentially undisputed.

In July 1988, Dillard purchased a new 1987 Volkswagen Scirocco automobile for $16,449.56. In connection with this purchase, Dillard received the Volkswagen warranty booklet and a folder in which the warranty was delivered, entitled the "VW Partnership." At the time Dillard purchased the automobile, he said, he thought it would be reliable and safe.

Dillard purchased the automobile from Southern States Collections, the then authorized Volkswagen dealer in Montgomery, which was succeeded by Parks Imports, Inc., as the local Volkswagen dealer. In April 1990, while Dillard's automobile was still under warranty, Parks Imports closed, leaving no Volkswagen dealership in Montgomery. Subsequently, Volkswagen appointed Jack Ingram Motors as its Volkswagen dealer, but kept this information from Dillard, even though his automobile was still in warranty and needed repairs. During the first year Dillard owned the automobile, he turned the automobile in for repair from 12 to 14 times. Repair reports indicate that he turned the automobile in on 21 occasions during the first year and a half. On one occasion, the automobile was kept for two months. Altogether, as of the date of the trial, the automobile had been in the shop for mechanical repairs for a period of four months. Not only had Dillard spoken with numerous people in the local Volkswagen dealerships and with Volkswagen's own representative about the problems with the automobile, but he had also written Volkswagen.

Dillard experienced "a hesitation, stalling, jerking problem" with the car and also "a grinding noise in the gear shift." There was no pattern to the loss of power, hesitation, and stalling problems. According to Dillard, the jerking problem, which occurs in every gear, suggests that there is "air or water in the gas line."

Although he had turned the automobile in for repairs, these problems continued. Because the automobile "cut off" and "stopped" when he pulled out in front of oncoming traffic, he had to make allowances for the possibility that the automobile might not accelerate properly. On occasion, when the car "died," Dillard could not get it to crank and was forced to push the automobile out of the street until the automobile reached normal operating temperatures--oftentimes, he had to wait as long as 15 or 20 minutes. The automobile broke down one night and he had to walk home, the walk taking approximately three hours.

In addition to the problems heretofore discussed, the automobile also had a problem that caused white or light blue smoke to come out of the exhaust. The severity of the problem varied, but, at its worse, Dillard described the problem as follows:

"On several occasions, I've had cars behind me and I didn't know it because of the smoke. And I wanted to change lanes to get over to the right-hand side of the road to get off the road sometimes, and I didn't know cars [were] coming up on me or cars were right in back of me."

When the automobile was smoking badly and was stopped at a light, it filled with smoke, which Dillard tried to combat by opening the window and vents and by turning on the air conditioner "full blast." There was no way to predict when the smoking problem was going to occur.

The automobile did not idle properly--it would race, slow down, and then race. The automobile had a sun roof that leaked when it rained, so that Dillard used plastic to try to keep the rain out.

Dillard contends that the automobile's "stalling, cutting off, [and] losing power in the face of on coming traffic has caused him anxiety, embarrassment, and anger"; that "He has had near misses in driving his car as a result of its loss of power"; and that "When that happens it frightens him." Dillard also contends that the automobile's performance caused him frustration and disappointment and that the automobile had not been reliable or dependable, had put his life in jeopardy, had not provided him with safe transportation, and had caused him to worry. In fact, according to Dillard, it is the worst situation that he has ever been in in his life.

A Volkswagen representative testified that automobile owners have more emotional attachment to new cars than to used ones; that the situation he observed concerning the automobile's hesitation would have frustrated him; that he had no doubts about the legitimacy of the "stack full" of complaints about the performance of the automobile; that he agreed Dillard had some reason for questioning the durability and reliability of this particular automobile; and that Dillard's ownership of the automobile had been anything but pleasurable for a good portion of the time. In fact, with respect to the claim found in the VW brochure on the 1987 Volkswagen Scirocco that "[a] nationwide network of authorized Volkswagen dealers stands" behind the car, Volkswagen's representative testified that that "hasn't been the reality of the situation here."

Specifically, the Volkswagen representative testified as follows:

"Q. If a person operating [an automobile that] pulls out in the face of oncoming traffic and the [automobile] stalls, hesitates--has the problem that you found when you drove [Dillard's automobile]--would you anticipate that that would cause the operator of the [automobile] mental concern and worry and apprehension about his physical well-being?

"A. Yeah, I'd be worried the car was going to run into me."


Although the general rule in Alabama is that mental anguish is not a recoverable element of damages arising from breach of contract, this Court has traditionally recognized the following exception to the rule:

" 'The general rule is that damages cannot be recovered for mental anguish in an action of assumpsit. The ground on which the right to recover such damages is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. "Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded." ' "

B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala.1979) (citations omitted) (emphasis added), quoting F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 657, 141 So. 630, 631 (1932), which was quoted in Stead v. Blue Cross-Blue Shield of Alabama, 346 So.2d 1140, 1143 (Ala.1977).

These cases have not required mental anguish to be corroborated by the presence of physical symptoms. Rather, the only requirement in such cases is the presentation of evidence of mental anguish. Thereafter, the question of damages for mental anguish becomes a question of fact for the jury to decide. B & M Homes, Inc., supra. For actions on contracts for the repair or construction of houses or dwellings or the delivery of utilities thereto, where the breach affected habitability, see Orkin Exterminating Co. v. Donavan, 519 So.2d 1330 (Ala.1988); Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1987); Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986); B & M Homes, Inc. v. Hogan, supra; Alabama Water Service Co. v. Wakefield, 231 Ala. 112, 163 So. 626 (1935); Becker Roofing Co. v. Pike, 230 Ala. 289, 160 So. 692 (1935); F. Becker Asphaltum Roofing Co. v. Murphy, supra; Hill v....

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