Ford Motor Co. v. General Accident Insurance

HARRELL, Judge. On 5 August 1995, International Motors, Inc., trading as Montrose Towing (Montrose or Respondent), purchased a tow truck from Elzenheimer Chevrolet. The tow truck had been ³²³ created by Elzenheimer by adding necessary components to a 1995 Ford F-350 base chassis cab truck that Elzenheimer had purchased from a Ford dealership. Respondent insured the truck with General Accident Insurance Company (General Accident).

On 19 August 1997, the tow truck caught fire as its operator was about to tow a vehicle. As a result of the fire, General Accident determined that the truck was a total loss and payed Montrose for its value. General Accident then sought reimbursement from Ford Motor Company (Ford or Petitioner), the manufacturer of the chassis cab truck, but Ford refused. On 5 May 1998, General Accident, on behalf of Respondent, filed a subrogation claim against Ford in the Circuit Court for Montgomery County alleging negligence, breach of warranty, and strict liability based on a manufacturing defect.

The trial court, after a bench trial, entered judgment in favor of Ford on all claims. General Accident appealed. The Court of Special Appeals affirmed the Circuit Court’s judgment in favor of Ford on the express warranty, negligence, and strict liability claims, but vacated that part of the Circuit’s Court’s judgment with regards to claims of breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. International Motors v. Ford, 133 Md.App. 269, 273, 275 , 754 A.2d 1115, 1117, 1118 (2000).

We granted Petitioner’s petition for writ of certiorari, Ford Motor Company, Inc. v. General Accident, 362 Md. 34 , 762 A.2d 968 (2000), to consider the following questions: 1. Did the Court of Special Appeals err in holding that proof of product defect is not required to sustain a claim for breach of the implied warranty of merchantability, thereby shifting the burden of proof to the manufacturer, even though all prior reported decisions on this issue in Maryland have held that, regardless whether a claim sounds in negligence, strict liability, or implied warranty, a plaintiff must prove the existence of a defect? 2. Did the Court of Special Appeals err in holding that plaintiff made out a claim for breach of the implied warranty of fitness for a particular purpose even though the ³²⁴ alleged “particular purpose” of the product was the same as its ordinary purpose, the product damage was unrelated to the alleged particular purpose, there was undisputed lack of privity between the manufacturer and the plaintiff, and such a claim was never before the trial court? I. On 15 March 1995, Ford sold a 1995 F-350 chassis cab truck 1 it had manufactured to Homer Skelton Ford, Inc., a Ford dealership in Olive Branch, Mississippi.

The truck came with an express “bumper to bumper” warranty that provided, in pertinent part: Authorized Ford Motor Company dealers will repair, replace or adjust all parts on your vehicle (except tires) that are defective in factory-supplied materials or workmanship for 3 years or 36,000 miles (whichever occurs first). Warranty Information Booklet for 1995-Model Ford and Mercury Cars and Light Trucks 5 (1995). The “bumper to bumper” warranty did not cover, in pertinent part, “alteration, misuse, or damage caused by accident” or consequential or incidental damages. Id. at 4, 11-12.

On 16 May 1995, Elzenheimer Chevrolet, located in the State of New York, purchased the truck from Homer Skelton Ford and converted it into a tow truck. To convert the chassis cab into a tow truck, Elzenheimer Chevrolet added, ³²⁵ among other things, a towing bar, boom tow sling, a light illumination bar on top of the pre-existing lights along the body of the truck, a strobe light in the grill, a two-way radio mounted to the dash board, a three-switch electrical panel inside the passenger cab, and a power take-off with controls on the transmission hump. On 5 August 1995, Montrose purchased the truck, as yet unused as a tow truck, from Elzenheimer and insured it with General Accident. On 19 August 1997, the truck, now with 27,600 miles on the odometer, caught fire while its operator, Greg Blum, a Mont-rose employee, was preparing to tow another vehicle.

Mr. Blum had responded to a routine call to Dulles Airport in Virginia to tow a limousine, which had been struck on the driver’s side door by a shuttle bus. When Mr. Blum arrived, he observed that the door to the limousine was stuck in the open position. Before the vehicle could be towed safely, the door of the limousine needed to be closed. It took approximately fifteen minutes to secure the door.

While working on closing the car door, Mr. Blum kept the engine of the tow truck running. This was necessary apparently because the engine must be running in order to use the power take-off to tow a vehicle. 2 He reentered the driver’s compartment of the tow truck to back the truck up to begin the actual hook-up and towing. When Mr. Blum reentered the tow truck to begin the towing process, he noticed steam or smoke coming from under the hood of the vehicle. He checked the engine temperature gauge, but it registered normal.

When Mr. Blum looked up from the gauge, he noticed flames coming from under the hood of the vehicle on the passenger side. 3 After pulling the hood release located under the driver’s side of the dashboard, ³²⁶ he exited the cab and proceeded to the rear of the truck to retrieve a fire extinguisher. When he went to the front of the truck with the extinguisher and attempted to lift the engine hood, he found the hood too hot to touch. He aimed the fire extinguisher towards the flames and completely discharged the extinguisher. The truck was deemed a total loss.

General Accident paid Montrose for its value, stipulated to be $23,880.21. General Accident, the subrogated insurer, thereafter wrote to Ford seeking reimbursement. Ford initially responded that it needed to inspect the vehicle. General Accident voluntarily made the vehicle available to Mr. Samuel, an inspector employed by Ford.

After Mr. Samuel inspected the vehicle and reported, Ford denied the claim. On 5 May 1998, General Accident, on behalf of its insured, Montrose, filed a subrogation claim against Ford in the Circuit Court for Montgomery County. General Accident thereafter filed two amended complaints, the last of which alleged claims for negligence, breach of warranty, and strict liability based on a manufacturing defect. 4 A one-day bench trial was held on 24 June 1999. At trial, General Accident abandoned its claim of a manufacturing defect, claiming instead that a design defect in the Ford vehicle caused the fire. 5 General Accident, it is supposed, ³²⁷ proceeded to trial under claims of negligence, express warranty, 6 implied warranty of merchantability, 7 implied warranty of fitness for a particular purpose, 8 and strict liability. ³²⁸ At trial, General Accident offered evidence, through its expert, Mr. Leshner, that the fire had originated in the blower plenum, 9 a box that houses the blower fan and associated electrical resistors, all of which are part of the heating/air conditioning system.

Specifically, General Accident’s expert opined that the design was defective in that the holes in the cowl vent — the area just in front of the windshield that permits air to travel into the engine compartment — were too large and could have admitted debris such as leaves or other combustible material. According to the expert’s testimony, such combustible material could have come into contact with the electrical resistors, which, if they were hot, could have ignited the material. The expert also explained how he was able to rule out other causes of the fire by examining the parts of the truck that were burned. At the close of General Accident’s case, the trial judge, on Ford’s motion, granted judgment in favor of Ford on General Accident’s strict liability and express warranty claims. 10 In the course of Ford’s defense, its expert, Mr. Ehlert, testified contrary to Mr. Leshner as to the cause and origin of ³²⁹ the initial fire.

He determined that the fire could not have started in the blower plenum, based, in part, on his examination of the truck in which he found highly flammable, but unburned, materials in the blower plenum area and on his analysis of the burn patterns. Though Mr. Ehlert could not determine with reasonable certainty the specific cause of the fire, he opined that he was able to rule out that the fire originated in the blower plenum. At the conclusion of the trial, the judge rejected General Accident’s design defect theory and entered judgment for Ford on the two remaining claims — negligence and breach of the implied warranty. 11 The court concluded that the “fire originated under [the] hood area at least rather than in the cab area,” but could not determine that General Accident had proven by a preponderance of evidence that there was either a design defect or negligence on the part of Ford. The trial judge stated: The Court finds that there has not been such a showing.

The Court listened very carefully to the testimony of both experts with regard to the — to the cowl vents, the — I guess — the way they were constructed and designed in the 1980s and the problems that resulted and the redesign of them into the 1990s and by the time this particular vehicle was manufactured. And the Court is not persuadefd] that ... the cause of that fire was any debris that came through the cowl vents into resistors and that that, if it did, that that was some faulty design or negligence. So in short, the Court simply does not believe the plaintiff met its burden of proof with regard to a showing that there was any negligence either in the design or in any other way ³³⁰ by Ford which was the proximate cause of the particular damage in this case. General Accident’s attorney immediately sought oral clarification, asking the trial judge whether he still was considering the implied warranty claim.

The judge responded: No, the Court finds if — in order to clarify — that there has been no showing that there was any warrantee [sic] which was — which was breached. The Court simply finds that there was an unfortunate, devastating fire, that it originated somewhere under the hood, but the Court does not believe that it is has been persuaded what the cause of that particular fire was and whether it was something that would have been brought within an implied warranty. So the Court does not even reach the question of whether an implied warranty would apply here. But assuming it would, the Court finds that there has been no showing that there has been any kind of a breach of an implied warranty.

The court then entered final judgment for Ford. General Accident’s subsequent written revisory motion on the issues of breach of express and of implied warranty was denied. On General Accident’s appeal, the Court of Special Appeals affirmed the Circuit Court’s judgment in favor of Ford on the claims of breach of express warranty, negligence, and strict liability. International Motors, 133 Md.App. at 275 , 754 A.2d at 1118 .

The intermediate appellate court, however, with regard to the claims of breach of the implied warranty of merchantability, § 2-314, supra note 7, and the implied warranty of fitness for a particular purpose, § 2-315, supra note 8, vacated the trial court’s judgment and remanded the case “for resolution of [the] implied warranty claims.” International Motors, 133 Md.App. at 273 , 754 A.2d at 1117 . The intermediate appellate court noted that the Circuit Court found, as a fact, that the fire originated under the hood ³³¹ of the truck, not in the cab/passenger area. 12 International Motors, 133 Md.App. at 275 , 754 A.2d at 1118 . As such, the Court of Special concluded that “[o]n the basis of that not clearly erroneous factual finding, we are persuaded that the circuit court should not have entered judgments in favor of Ford on the implied warranties of fitness and merchantability claims.” International Motors, 133 Md.App. at 275-76 , 754 A.2d at 1118 . The Court of Special Appeals reasoned that the trial court reached the improper conclusion that General Accident did not prove “by a preponderance of the evidence that it was either a defect or negligence by the ... defendant” as, according to the Court of Special Appeals, General Accident did not have to prove a specific manufacturing or design defect “to prevail on an implied warranty claim.” International Motors, 133 Md.App. at 276 , 754 A.2d at 1118 (internal quotation marks omitted).

The Court of Special Appeals noted that the statutory definition of the implied warranty of merchantability does not contain the words “defect” or “defective condition.” Id. The court concluded that “[t]he words ‘defect’ or ‘defective condition’ do not appear anywhere in this section of the code, and Maryland case law does not require such proof.” Id. The court then determined that General Accident “was also provid ³³² ed protection under the implied warranty of fitness for a particular purpose.” Id. Noting that the words “defect” or “defective condition” do not appear in this statutory definition either, the court reasoned that General Accident did not have to prove a defect.

Id. In so concluding, the court reasoned: “Ford manufactures chassis cabs with knowledge that they will be modified in some form or another. Ford was aware that Elzenheimer had, in the past, purchased Ford chassis cabs for the purpose of turning them into tow trucks. Thus, Ford impliedly warranted that the truck would be fit for usage as a tow truck.

Here, the evidence showed that Ford breached its implied warranty of fitness for a particular purpose when (1) General [Accidentas insured was using the truck as a tow truck, and (2) the truck unexpectedly caught on fire. The circuit court was persuaded that the fire started in the engine compartment of the truck while the truck was idling. The truck was being used ‘normally’ at that time, and trucks do not normally catch on fire while idling.” International Motors, 133 Md.App. at 276-77 , 754 A.2d at 1119 . The court concluded that implied warranties “exist so consumers can recover in cases like this one without having to prove the particular defect that caused the problem.” International Motors, 133 Md.App. at 277 , 754 A.2d at 1119 .

The court allowed as how post-sale modifications may constitute a valid defense to a warranty claim, but that the burden is on the manufacturer, Ford in the instant case, to prove such a defense. International Motors, 133 Md.App. at 277 , 754 A.2d at 1119 . Although Ford presented such evidence at trial, the court concluded that the record “does not indicate that the circuit court resolved the issue of whether the fire was caused by alterations or modifications after Ford had sold the truck. It is therefore necessary for the circuit court to determine whether the fire was caused by post-sale modifications to the truck.” Id.

The Court of Special Appeals ultimately remanded the case to the circuit court to determine “whether Ford has an alteration or modification ³³³ defense to the area where the fire originated, i.e. ‘under the hood area.’ ” Id.

II

Implied Warranty of Merchantability The Court of Special Appeals erred in holding that proof of a specific product defect is not required to maintain a claim for breach of the implied warranty of merchantability. This Court long has held that a plaintiff asserting a breach of the implied warranty of merchantability must prove that the product was defective. Although the Court of Special Appeals accurately noted that the words “defect” and “defective condition” do not appear expressly in § 2-314(2)(c), supra note 7, it erred in maintaining, without citation, that “Maryland case law does not require proof of a defect.” Moreover, the language of the Maryland statutes, and their accompanying comments, governing implied warranties do not support the Court of Special Appeals’s notion that implied warranties exist to relieve plaintiffs in such cases of their evidentiary burdens of production or persuasion. For instance, in Hacker v. Shofer, 251 Md. 672, 676-77 , 248 A.2d 351, 354 (1968), we stated: It is undoubtedly the settled law that to recover on an express warranty the burden of proof is on the plaintiff to establish that the article sold did not at the time of the sale conform to the representations of the warranty.

This rule of law applies with equal force to an implied warranty. Id. (emphasis added) (internal quotation marks omitted) (quoting Great Atlantic and Pacific Tea Co. v. Adams, 213 Md. 521, 525-27 , 132 A.2d 484 (1957)); see also, e.g., Virgil v. “Kash N’ Karry” Service Corp., 61 Md.App. 23, 32 , 484 A.2d 652, 657 (1984), cert. denied, 302 Md. 681 , 490 A.2d 719 (1985) (“It is the plaintiffs burden to establish that it is more probable than not that the defect existed at the time of sale.”). The Court of Special Appeals improperly shifted the plaintiffs burden of proof onto the manufacturer to demonstrate that the event causing injury or property damage was not caused by any defect that originated with the manufacturer. ³³⁴ We consistently have held that a plaintiff must prove the existence of a defect at the time the product leaves the manufacturer to recover on an implied warranty claim, as well as with regard to strict liability and negligence claims. 13 For instance, in Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 608-09 , 332 A.2d 1, 10 (1975), we stated: In short, then, to allow the jury to decide whether there was a breach of warranty, there must be some evidence beyond mere speculation which would enable the jury to rationally decide it is more probable than not that the defect existed at the time of sale, which in this case, would have been when the bottles were delivered to the retailer.

Id., see, e.g., Giant Food, Inc., 273 Md. at 608 , 332 A.2d at 10 (emphasis added) (stating that “irrespective of the theory of recovery — negligence or implied warranty — a prerequisite to recover against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer’s control” (internal quotation marks omitted) (quoting Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123 , 499 P.2d 539, 542 (1972))); Eaton Corp. v. Wright, 281 Md. 80 , 92 n. 3, 375 A.2d 1122 , 1128 n. 3 (1977) (explaining that, in a strict liability action as well as in a breach of warranty action, the plaintiff must prove a product defect ³³⁵ when delivered); see also, e.g., Wood v. Toyota, 134 Md.App. 512, 517-18 , 760 A.2d 315, 318 (2000) (“In a products liability case, the plaintiff must prove ‘(1) the existence of a defect; (2) the attribution of the defect to the seller; (3) a causal relation between the defect and the injury.’ ” (quoting Jensen v. American Motors Corp., 50 Md.App. 226, 234 , 437 A.2d 242 (1981))); Harrison v. Bill Cairns Pontiac, 77 Md.App. 41, 50 , 549 A.2d 385, 390 (1988) (explaining that to recover on an implied warranty or strict liability claim a plaintiff in a products liability case must prove “(1) the existence of a defect, (2) the attribution of the defect to the seller, and (3) a casual relation between the defect and the injury” (internal quotation marks omitted) (quoting Virgil, 61 Md.App. at 30 , 484 A.2d 652 )); Robert E. Powell & M. King Hill, Jr., Proof of a Defect or Defectiveness, 5 U. Balt. L.Rev. 77 (1975) (stating that “[pjroduct liability cases are based upon theories of negligence, breach of warranty and strict liability, or a combination of these theories” and that “[w]hile each theory is distinct, a brief examination of each will show that they all require proof that the product was defective when it left the hands of the manufacturer, and that the defective condition was the proximate cause of the injuries or damages of which the plaintiff complains”). In a case factually similar to the one at hand, the Court of Special Appeals in Harrison v. Bill Cairns Pontiac, 77 Md.App. 41, 50 , 549 A.2d 385, 390 (1988), supra, reiterated the usual need to prove the three “product litigation basics”— defect, attribution of defect to seller, and a causal relationship between the defect and the injury — regardless of whether the theory of liability is breach of implied warranty of merchantability or strict liability. (Citing Virgil, 61 Md.App. at 30 , 484 A.2d 652 ). 14 On 21 September 1982, the plaintiffs purchased a ³³⁶ used 1978 Mercury Zephyr, with 58,855 miles on the odometer, from the defendant, a Pontiac dealership. 15 Harrison, 77 Md.App. at 43 , 549 A.2d at 387 .

In Harrison , less than a year after the plaintiffs purchased the used vehicle, “a fire ignited either within or behind the instrument panel on the dash of the vehicle.” Harrison, 77 Md.App. at 44 , 549 A.2d at 387 . The plaintiffs sued the manufacturer on multiple theories, including negligence, implied warranty of merchantability, and strict liability. Harrison, 77 Md.App. at 47 , 549 A.2d at 388 . The plaintiffs’ expert opined that the fire was caused by an electrical short circuit occurring behind the instrument cluster, based on his conclusion that that was the only triggering event that could have caused a fire in the area of origin.

Harrison, 77 Md.App. at 44 , 549 A.2d at 387 . The plaintiffs’ second expert also opined that the fire was a result of a defect in the electrical system in the car, though he was unable to identify specifically what the defect was. Harrison, 77 Md.App. at 45-47 , 549 A.2d at 387-88 . The trial court granted summary judgment to the manufacturer on all counts.

The Court of Special Appeals affirmed, determining that the evidence of an electrical short and the expert’s opinion that an electrical fire would not normally result in the absence of a product defect was insufficient to permit an inference of a product defect in a five year old car with over 58,000 miles on it. Harrison, 77 Md.App. at 51-53 , 549 A.2d at 390-91 . The court explained that “[plaintiffs] ³³⁷ must present evidence sufficient for a jury inference that the vehicle was defective and that this defect existed at the time of manufacture.” Harrison, 77 Md.App. at 50 , 549 A.2d at 390 . In examining such evidence, the court explained: An inference of a defect may be drawn from the happening of an accident, where circumstantial evidence 16 tends to eliminate other causes, such as product misuse or alteration ....

It is axiomatic, however, that “proof of a defect must arise above surmise, conjecture, or speculation ...; and one’s right to recovery may not rest on any presumption from the happening of an accident.” Harrison, 77 Md.App. at 51 , 549 A.2d at 390 (citation omitted) (second alteration in original) (quoting Jensen, 50 Md.App. at 232 , 437 A.2d 242 ). Applying the above stated law to the evidence in the record, the Court of Special Appeals concluded that a defect could not be inferred: [The appellants] have been unable to show that what might possibly have happened did probably happen. Reduced to its simplest form, their argument is that because a one-car accident happened without apparent cause, the manufacturer must be to blame. Such a theory is not supported by established principles of common-law negligence or strict liability or breach of warranty.

It is simply wishful thinking. Harrison, 77 Md.App. at 54 , 549 A.2d at 392 (alteration in original) (quoting Jensen, 50 Md.App. at 234-35 , 437 A.2d 242 ). ³³⁸ III. Implied Warranty of Fitness for a Particular Purpose A. Preservation Petitioner argues that Respondent’s claim relying on the implied warranty of fitness for a particular purpose should not have been considered by the Court of Special Appeals, and concomitantly should not be entertained by this Court, because a claim for breach of that warranty neither was pleaded nor presented to the trial court. Moreover, Petitioner continues, Respondent points to no extraordinary circumstances or fairness considerations warranting review.

Petitioner’s non-preservation argument is flawed fundamentally. Petitioner, as appellee in the Court of Special Appeals, did not argue in its brief there that Respondent’s claim for breach of the implied warranty of fitness for a particular purpose “was never before the trial court.” Accordingly, the intermediate appellate court reached and decided, on the merits, in its reported opinion Respondent’s implied warranties arguments. 17 We granted certiorari, at Petitioner’s behest, to consider the merits of the issue. Petitioner’s relevant question, framed in its successful certiorari petition (supra, at Page 323), questioned inter alia implicitly the circuit court’s judgment and expressly the Court of Special Appeals’s decision on the resolution of the merits of the implied warranty of fitness for a particular purpose claim. Thus, we shall decide this question on its merits.

Though our refusal to decide Petitioner’s late blooming suggestion of non-preservation is based on the fact that the Court of Special Appeals was not presented with that argument and accordingly reached and decided the issue, and the fact .that we accepted certiorari of the issue inclusive of a challenge on the merits, we also note that it is not entirely ³³⁹ clear that the issue was not properly preserved at trial. Petitioner correctly states that Respondent did not request, explicitly or specifically, relief under an implied warranty of fitness for a particular purpose theory in its initial complaint, its amended complaint, its Second Amended Complaint, or at trial. Respondent’s first complaint and amended complaint simply stated that one of its vehicles was “severely damag[ed] by a fire which was caused by a manufacturing defect of Ford Company, Inc.,” and that Ford was responsible for the $26,482.21 in damages due to the manufacturing defect. 18 As noted, supra note 4, the Second Amended Complaint states: Plaintiff sues Defendant for negligence for failing to exercise reasonable car in manufacturing a product which caused damage to the Defendant’s vehicle, for breach of warranty for selling a product which caused property damage and also for strict liability in tort under the authority of United [States] Gypsum Company v. Mayor and City Council of Baltimore, 336 Md. 145 , 647 A.2d 405 (1992) [1994]. The Defendants placed a defective product on the market which caused property damage and which created a substantial and unreasonable risk of death and personal injury.

Unlike the first two complaints, the Second Amended Complaint does make clear that Respondent was suing for negligence, strict liability, and breach of warranty, 19 but does not clarify which types of breach of warranty — implied warranty of merchantability, implied warranty of fitness for a particular purpose, and/or express warranty. 20 Petitioner seems to con ³⁴⁰ cede, however, that Respondent “submitted claims to the trial court consisting of strict liability, negligence, breach of an express warranty, and breach of the implied warranty of merchantability.” Petitioner’s Br. at 17-18. At trial, as noted supra, when the trial court partially granted Petitioner’s motion for judgment at the close of Respondent’s case, supra p. 328, n. 10, the trial judge stated: “I will reserve ruling on ... the implied as well.” It appears that the trial judge was referring to the implied warranty claim or claims. After all of the evidence was presented, and the trial judge rendered his decision in favor of Petitioner, Respondent’s trial attorney engaged in the following exchange with the court: [RESPONDENT’S TRIAL ATTORNEY]: Your Honor, may I seek clarification? THE COURT: Yes. [RESPONDENT’ TRIAL ATTORNEY]: Your Honor recalls that you had indicated that the implied warranty of merchantability you were reserving.

I do not believe that that claim requires a showing of negligence, and I just want a clarification of whether that claim is still viable. Are you still considering that claim? THE COURT: No. Okay, thank you for that. I will clarify.

No, the Court finds if — in order to clarify — that there has been no showing that there was any warrantee [sic] which was-which was breached. The Court simply finds that there was an unfortunate, devastating fire, that it originated somewhere under the hood, but that the Court does not believe that it is has been persuaded what the cause of that particular fire was and whether it was something that would have been within an implied warranty. So the Court does not even reach the question of whether an implied warranty would apply here. But assuming it ³⁴¹ would, the Court finds that there has been no showing that there has been any kind of an breach of an implied warranty.

(Emphasis added). Although Respondent’s attorney inquired specifically regarding the implied warranty of merchantability, the trial court responded with a general ruling regarding “any implied warranty” claims. It appears that Respondent is correct in stating that the trial court did not refer to or discuss either implied warranty theory in its ruling, nor did it give reasons why the claims were rejected. On 28 June 1999, the day after the bench trial and the trial judge’s ruling, Respondent’s attorney filed a Motion for Reconsideration, in which he discussed distinctly the implied warranties of merchantability and fitness for a particular purpose.

He did so again, on 12 July 1999, in his Supplemental Motion for Reconsideration. Petitioner’s attorney, on 14 July 1999, filed a Response to Plaintiffs Motion for Reconsideration, in which Petitioner seemingly acknowledged that Respondent had sued Petitioner “on several theories: breach of express warranty, breach of implied warranty, breach of the warranty of merchantability, negligence, and strict liability.” Petitioner’s attorney there did not assert that Respondent’s argument regarding an implied warranty of fitness for a particular purpose theory was not before the trial court; instead, it appears to us that Petitioner recognized a second claim for implied warranty in stating that Respondent had sued on several claims, including “implied warranty [and] breach of the warranty of merchantability.” On 2 August 1999, the trial court judge generally denied Respondent’s revisory motion. Prom this record, it appears that the trial judge considered and decided the issues of both implied warranty theories generally. B. Sufficient Evidence Petitioner alternatively argues that there was insufficient evidence to support a claim of implied warranty of fitness for a particular purpose.

The Court of Special Appeals determined that, as to the implied warranty of fitness for a particular ³⁴² purpose, § 2-315, supra note 8, Respondent did not have to prove a defect in order to prevail under this theory. International Motors, 133 Md.App. at 276 , 754 A.2d at 1118 . The intermediate appellate court surmised: Ford manufactures chassis cabs with knowledge that they will be modified in some form or another. Ford was aware that Elzenheimer