Zitterbart v. Suzuki

• Citation: 182 Md. App. 495,958 A.2d 372
• Decision Date: 07 October 2008
• Docket Number: No. 897, September Term, 2007.,897, September Term, 2007.
• Parties: David Aaron ZITTERBART, et al. v. AMERICAN SUZUKI MOTOR CORPORATION.
• Court: Court of Special Appeals of Maryland

958 A.2d 372

182 Md. App. 495

David Aaron ZITTERBART, et al. v. AMERICAN SUZUKI MOTOR CORPORATION.

No. 897, September Term, 2007.

Court of Special Appeals of Maryland.

October 7, 2008.

Ronald L. Rowland (Kimmerl & Silverman, P.C., on brief), Owings Mills, for Appellant.

Michael S. Barranco (Pope & Hughes, P.A., on brief), Towson, for Appellee.

Panel: EYLER, DEBORAH S., ZARNOCH, WRIGHT, JJ.

EYLER, DEBORAH S., J.

In the Circuit Court for Harford County, Michelle M. and David A. Zitterbart, the appellants, sued American Suzuki Motor Corporation ("Suzuki"), the appellee, alleging violations of the Maryland Automotive Warranty Enforcement Act, Md. Code (1975, 2005 Repl.Vol., 2007 Supp.), section 14-1501 et seq. of the Commercial Law Article ("CL") ("Lemon Law"); the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. 2301 et seq. ("MMWIA"); and the Maryland Consumer Protection Act ("MCPA"), CL section 13-101 et seq., all arising out of Suzuki's sale and the Zitterbarts' purchase of a Suzuki automobile. The court granted summary judgment in favor of Suzuki on all counts.

On appeal, the Zitterbarts pose four questions,¹ which we have combined and restated:

I. Did the circuit court err in granting summary judgment to Suzuki on the Lemon Law claim and, derivatively, the MCPA claim?

II. Did the circuit court err in granting summary judgment to Suzuki on the MMWIA claim?

For the reasons we shall explain, we hold that the circuit court did not err in granting summary judgment in favor of Suzuki on all claims.

FACTS AND PROCEEDINGS

On July 17, 2004, the Zitterbarts purchased a "demonstrator model" 2004 Suzuki Verona automobile from an authorized Suzuki dealership. The vehicle had 4,849 miles on its odometer. It came with a "New Vehicle Limited Warranty" of 36 months or 36,000 miles, whichever came first, and a "Limited Powertrain Warranty" of 84 months or 100,000 miles, also whichever came first.

Beginning four months later, on November 15, 2004, the Zitterbarts brought the Verona to an authorized Suzuki dealership for the following servicing and/or complaints, and these steps were taken:

• November 15, 2004 (10,575 miles): Check engine light came on and the vehicle was "spitting and sputtering." Dealer "cleared adaptives and set VIN" in the computer. Car returned the same day.

• November 22, 2004 (10,934 miles): Check engine light came on again but went off. Dealer "found check engine light was not on at time of service." Diagnostic codes checked, but "no problems found at this time." Car returned the same day.

• January 17, 2005 (13,579 miles): Car brought in for oil and filter change, lubrication, and tire rotation. Zitterbarts report that the check engine light "comes on and off." Dealer finds "cause: vacuum hose split," and replaces vacuum hose. Car returned the same day.

• May 5, 2005 (18,393 miles): Zitterbarts bring car in complaining of "fe[eling] hesitation and loss of power for about mminute [sic] or so on occasion." Dealer finds fuel filter contaminated with dirt. Replaces oil filter and notes on invoice, "CONDITION OF FUEL FILTER INDICATES CUSTOMER MAY DEVELOP SECONDARY FUEL SYSTEM PROBLEMS FOR THE CONTAMINATION SUCH AS FUEL PUMP, FUEL INJECTORS AND FUEL INJECTION SYSTEM ETC. THESE ARE NOT WARRANTY ITEMS IF DETERMINED CAUSED BY DIRT IN THE FUEL SYSTEM AND FILTER." Car returned the same day.

• July 8, 2005 (21,125 miles): Zitterbarts bring car in with coupon, requesting oil change. They report that check engine light flashed and RPMs jumped. Dealer flushes the fuel injection system and, in checking codes, finds a misfire condition; replaces spark plug. Dealer test drives vehicle and finds "light back on." Clears codes and test drives a second time. Light did not come back on and code did not reset. Dealer finds "no misfire condition at this time." Car was ready the next day (July 9).

• July 11, 2005 (21,151 miles): Zitterbarts return complaining of "check engine light back on" and engine "running rough." Dealer diagnoses "engine misfire" and replaces cylinder head assembly, catalytic converter, and exhaust manifold (all free of charge). Car was ready on July 27.

• July 29, 2005 (21,214 miles): Zitterbarts return stating that check engine light is on. Dealer checks and finds "cause: hose off." Replaces fuel injector (free of charge). Car was ready on August 2.

The only evidence of any servicing of the vehicle thereafter was on May 2, 2006 (odometer at 34,754 miles), when the dealer replaced an oxygen sensor.²

On May 23, 2006, the Zitterbarts filed the instant suit. After Suzuki answered, a period of discovery followed, ending on February 2, 2007. On February 16, 2007, Suzuki filed a motion for summary judgment on all counts. By then, Suzuki had identified Ben Perricone, its District Service and Parts Manager, as an expert witness and Mr. Perricone had inspected and test driven the Verona (odometer at 49,991 miles). He also had furnished a report in which he opined that the servicing performed on the car had resolved any "customer concern" and that the car did not have any "uncorrectable defects or nonconforming conditions that substantially impair" its use, safety, or value.

The Zitterbarts had identified Steven Ruch as an expert witness on November 20, 2006. As of the time Suzuki's motion for summary judgment was filed, however, Mr. Ruch had not inspected, test driven, or seen the Verona.

The court scheduled a hearing on the summary judgment motion for March 6, 2007. The day before, the Zitterbarts filed an opposition, supported by an affidavit by Mrs. Zitterbart and a report by Mr. Ruch, which was postdated to March 6. In her affidavit, Mrs. Zitterbart attested that the car was having "hesitation" problems. In his report, Mr. Ruch said he had test driven the car on March 5 (odometer at 51,191 miles) and that its "powertrain system appeared to be operating as designed." Mr. Ruch did not identify any specific defect, condition, or nonconformity of the vehicle. He repeatedly referred to the car's having been serviced for a "defect in the powertrain," without stating the nature of the defect. He opined that the repair history of the Verona made it less valuable than it otherwise would be. (We shall discuss Mr. Ruch's opinions in greater detail below.)

After the summary judgment hearing went forward as scheduled, the court held the matter sub curia. On April 24, 2007, it issued a memorandum opinion and order granting summary judgment to Suzuki on the Lemon Law and MCPA claims but denying summary judgment on the MMWIA claim. With respect to the Lemon Law claim, the court ruled that, although the evidence established that the "dealer serviced the vehicle a number of times, [the Zitterbarts] and their expert cannot point to one specific defect in the vehicle at the present time." The court further ruled that the MCPA claim was wholly derivative of the Lemon Law claim, and therefore could not stand.

The court ruled that the MMWIA claim required application of Maryland warranty law; that the summary judgment record established "that the express warranty to repair any defects in material or workmanship was ultimately adhered to"; and that there was no evidence of "a particular defect currently affecting the vehicle" to support a breach of implied warranty claim. The court concluded, however, that the Zitterbarts might be entitled to incidental damages under section 2304 of the MMWIA, if a trier-of-fact were to find that the car was not repaired within a reasonable period of time. Suzuki filed a timely motion for reconsideration, arguing that section 2304 did not apply. Before that motion was ruled upon, the Zitterbarts filed a stipulation that they had not incurred any incidental damages in any event. Thereafter, on May 11, 2007, the court issued a revised memorandum opinion and order granting summary judgment on all counts.

After filing a timely but unsuccessful motion for reconsideration, the Zitterbarts noted this appeal. We shall include additional facts as necessary to our discussion of the issues.

STANDARD OF REVIEW

We review a circuit court's decision to grant summary judgment de novo. Crickenberger v. Hyundai Motor America, 404 Md. 37, 45, 944 A.2d 1136 (2008). Our review is two-fold. First, we determine whether there was or was not a genuine dispute of material fact on the summary judgment record. Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294, 936 A.2d 343 (2007). A material fact is a fact that, if found one way or the other, will affect the outcome of the case. Miller v. Bay City Property Owners Ass'n, 393 Md. 620, 631, 903 A.2d 938 (2006). Second, if there is no genuine dispute of material fact, we determine whether the party that obtained summary judgment was entitled to judgment in its favor, as a matter of law. Crickenberger, supra, 404 Md. at 45, 944 A.2d 1136.

DISCUSSION

I. Lemon Law Claim

The Maryland Lemon Law defines the "manufacturer's warranty period" as "the earlier of: (i) The period of the motor vehicle's first 15,000 miles of operation; or (ii) 15 months following the date of original delivery of the motor vehicle to the consumer." CL § 14-1501(e).³ The manufacturer's "warranties," as covered by the Lemon Law, are defined as those established in CL sections 2-312 (warranty of title), 2-313 (express warranty), 2-314 (implied warranty of merchantability), and 2-315 (implied warranty of fitness for a particular use). CL § 14-1501(g). A "consumer" includes the purchaser (other than for purposes of resale) of a new motor vehicle and any person to whom a new motor vehicle is transferred during the duration of the applicable warranty. CL § 14-1501(b).

The operative section of the Lemon Law for our purposes is CL section 14-1502, "Automobile warranty enforcement." That statute contains two primary subsections that are mutually exclusive. Subsection (b) is entitled "Correction of defects." It provides that, after timely written...