Vultaggio v. General Motors Corp.

• Decision Date: 27 July 1988
• Docket Number: No. 87-1397,87-1397
• Citation: 145 Wis.2d 874,429 N.W.2d 93
• Parties: Sam VULTAGGIO and Mary Jane Vultaggio, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Fagan Chevrolet-Cadillac, Inc., Defendants- Respondents.
• Court: Wisconsin Court of Appeals

Page 93

429 N.W.2d 93

145 Wis.2d 874

Sam VULTAGGIO and Mary Jane Vultaggio, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION and Fagan Chevrolet-Cadillac Inc., Defendants- Respondents.

No. 87-1397.

Court of Appeals of Wisconsin.

Argued May 18, 1988.

Opinion Released July 27, 1988.

Opinion Filed July 27, 1988.

Lawrence Alan Towers, Milwaukee, for plaintiffs-appellants.

David J. Hase and Robert E. Shumaker (argued), of Foley & Lardner, on brief, Milwaukee, for defendants-respondents. Judith A. Zakens, Office of the Gen. Counsel General Motors Corp., of counsel.

Donald J. Hanaway, Atty. Gen. and William C. Wolford (argued), Asst. Atty. Gen., on brief, for amicus curiae, Department of Justice, State of Wis.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Sam and Mary Jane Vultaggio appeal from a grant of summary judgment dismissing their common-law breach of warranty claims against General Motors Corporation and Fagan Chevrolet-Cadillac, Inc. (collectively G.M.). They also appeal the summary judgment ruling that their claims are not covered under Wisconsin's Lemon Law, secs. 218.015(2)(a) and (b), Stats. (1983-84). The underlying basis of all these claims is that, because of transmission problems, their S-10 Chevrolet pickup truck would not perform a function for which it was expressly warranted, that of satisfactorily towing their travel trailer. Because we conclude that there are genuine issues of material fact in dispute, we reverse and remand for further proceedings. We also hold that the trial court was in error in its interpretation of sec. 218.015.

The Vultaggios purchased a 1984 Chevrolet S-10 pickup truck from G.M. on July 7, 1984. At the suggestion of a G.M. salesperson, the pickup was "specially equipped" to ensure that it could pull the Vultaggios' 3,500 pound trailer. Both warranty and promotional literature were shown to the Vultaggios, representing that the truck could tow 5,000 pounds. In addition, a "truck expert" at Fagan examined the Vultaggios' trailer and stated that a properly equipped S-10 would satisfactorily tow the trailer.

Sam Vultaggio's affidavit alleges that the truck's transmission could not handle the load. The transmission would "discharge fluid, emit smoke and a burning odor, and the transmission housing would get so hot that [Mary Jane Vultaggio] could not rest her feet on that portion of the floor." Over the course of the next year, when the Vultaggios attempted to use the vehicle to pull the trailer, the same symptoms recurred. On one occasion while examining the truck, a G.M. mechanic found the transmission fluid to be "burnt." On another occasion, G.M. inspected the transmission and changed the fluid, but found nothing wrong with the transmission. In March of 1985, the Vultaggios, believing that their pickup was "inadequate," purchased a larger vehicle to pull their trailer.

Following two arbitration proceedings, the Vultaggios commenced this action alleging violations of secs. 218.015, 402.315, 402.608, and 402.719, Stats., 15 U.S.C. sec. 2301 et seq., and Wisconsin common law. The trial court granted summary judgment on all claims, stating that the Vultaggios' affidavits and supporting materials neither established that their trailer's weight was within the warranted towing capacity nor that there was a problem with the transmission related to towing of the trailer.

This court reviews decisions on summary judgment de novo. ¹ United States Fidelity & Guar. Co. v. Goldblatt Bros., 142 Wis.2d 187, 190, 417 N.W.2d 417, 419 (Ct.App.1987). When reviewing a summary judgment, we follow the same methodology as the trial court. That methodology has been described many times. See In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.App.1983). We need not repeat it here. Goldblatt Bros. at 190, 417 N.W.2d at 419. With that methodology in mind, we turn to the issues.

The first issue is whether summary judgment was properly granted as to all claims because there was no evidence of the loaded weight of the Vultaggios' trailer. However, by affidavit, Sam Vultaggio stated that the trailer when empty weighed 3,200 pounds and stated in an answer to interrogatories that "my travel trailer ( ... weighes [sic], even when loaded, about 3,500 pounds.)." Thus, contrary to G.M.'s assertions that there are no facts regarding the loaded weight of the trailer, Vultaggio's statements are sufficient to create a genuine issue of material fact. As such, summary judgment was improperly granted on grounds that the trailer did not weigh less than the warranted towing capacity of the pickup truck.

G.M. also contends that summary judgment was appropriate as to all claims because the Vultaggios failed to set forth sufficient evidentiary facts establishing that the problems complained of resulted because the pickup is not capable of towing up to 5,000 pounds as warranted. G.M. argues that Sam Vultaggio's lay opinion describing the symptoms he observed was not "sufficient to raise a genuine issue of fact as to the existence of a warranty defect." G.M. submits that an expert opinion is necessary.

We do not agree. Expert testimony "is not necessary unless the subject matter is outside the realm of the ordinary experience of mankind, and requires special learning, study or experience." Kujawski v. Arbor View Health Care Center, 132 Wis.2d 178, 181, 389 N.W.2d 831, 832 (Ct.App.1986), rev'd on other grounds, 139 Wis.2d 455, 407 N.W.2d 249 (1987). When the matters to be proven are within the area of common knowledge and lay comprehension, a lay opinion may suffice. Olfe v. Gordon, 93 Wis.2d 173, 180, 286 N.W.2d 573, 576 (1980). We hold that this is the case here.

Sam Vultaggio stated by affidavit that when he tried to tow the trailer, the transmission made loud noises, discharged fluid and smoke, and the floor of the vehicle became so hot that his wife could not rest her feet on the floor. He further stated that when the truck was serviced in Florida, "excessive metal" was found in the transmission pan. In addition, repair records of G.M. indicate that their mechanics found the transmission fluid to be "burnt" after the Vultaggios complained of transmission problems while pulling the trailer. Finally, in an answer to interrogatories, Sam Vultaggio reported that when returning from Florida after having problems with the transmission, he was only able to reach speeds between 35 to 40 miles per hour.

In our opinion, a lay person, as a matter of common experience, can readily draw an inference that a truck is incapable of towing the trailer as warranted based upon the facts reported by Sam Vultaggio. The grant of summary judgment, based upon the conclusion that there were no facts giving rise to claims for relief on breach of warranty grounds, was inappropriate.

We now turn to the "lemon law" claims. The trial court construed that law to mean that the Vultaggios' allegations could not come under the auspices of the act. We will discuss each allegation in turn.

The Vultaggios first allege a violation of sec. 218.015(2)(b), Stats. (1983-84). ² Section 218.015(2)(b) provides in relevant part:

If after a reasonable attempt to repair the nonconformity cannot be repaired, the manufacturer shall, at the direction of the consumer, either replace the motor vehicle with a comparable new motor vehicle or accept return of the motor vehicle and refund the full purchase price plus any amounts paid by the consumer at the point of sale and all collateral costs associated with the repair of the nonconformity less a reasonable allowance for use to the consumer....

This subsection allows the consumer a refund or replacement of an auto that cannot be repaired even though a reasonable attempt has been made by the manufacturer to repair it.

The Vultaggios contend that they are entitled to a refund or replacement under sec. 218.015(2)(b), Stats., because a nonconformity in their truck has not been repaired after a reasonable attempt to repair. The Vultaggios allege that a nonconformity exists because their truck would not successfully tow their 3,500 pound trailer though warranted to two 5,000 pounds. They claim that a reasonable attempt to repair exists because their truck was "out of service" for at least thirty days due to this nonconformity.

G.M. makes three responses to that argument. First, it cites sec. 218.015(1)(h), Stats., which defines reasonable attempt to repair:

"Reasonable attempt to repair" means any of the following occurring within the term of an express warranty applicable to a new motor vehicle or within one year after first delivery of the motor vehicle to a consumer, whichever is sooner:

1. The same nonconformity with the warranty is subject to repair by the manufacturer or any of its authorized motor vehicle dealers at least 4 times and the nonconformity continues.

2. The motor vehicle is out of service for an aggregate of at least 30 days because of warranty nonconformities.

Thus, unless a manufacturer has had four chances to repair the same defect without success, ³ or the vehicle is out of service for thirty days, a reasonable attempt to repair has not been offered to the manufacturer. Hartlaub v. Coachmen Indus., Inc., 143 Wis.2d 791, 798, 422 N.W.2d 869, 871 (Ct.App.1988).

G.M. asserts that the truck was not "out of service" as defined in sec. 218.015(1)(h)2, Stats. It contends that out of service means "out of service ... because of corrective repairs." It cites Legislative Reference Bureau Brief 83-4, at 2, and concludes that to be out of service, a vehicle must be unavailable for the consumer's use because of the performance of corrective repairs.

G.M.'s reliance on Legislative Reference Bureau Brief 83-4 is misplaced. The brief was prepared after passage of sec. 218.015, Stats., and is inconsistent with the statute's legislative history. As originally introduced, 1983 Assembly Bill 16, which as amended became 1983 W...