Zitterbart v. American Suzuki Motor Corp.

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: ⁴⁹⁸ 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 MMWLA 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, 2001 (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, 2001 (10,931 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 ⁴⁹⁹ 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'J 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 (21,21) 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. 2 ⁵⁰⁰ 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 non-conforming 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.) ⁵⁰¹ After the summary judgment hearing went forward as scheduled, the court held the matter sub cuña. 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 no t 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 twofold. First, we determine whether there was or was not a ⁵⁰² 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 mutu ⁵⁰³ ally exclusive. Subsection (b) is entitled “Correction of defects.” It provides that, after timely written notice by the consumer of a “nonconformity, defect, or condition” covered by warranty, the consumer shall provide the manufacturer (or factory branch, its agent, or its authorized dealer) an opportunity to cure. CL § 14-1502(b)(l) and (2). Thereafter, the manufacturer “shall correct the nonconformity, defect, or condition at no charge to the consumer, even if repairs are made after the expiration of the warranty period.” CL § 14-1502(b)(3). “The corrections shall be completed within 30 days” of the manufacturer’s receipt of the consumer’s notice.

Id. Subsection (c) of CL section 14-1502 is entitled “Uncorrectable defects.” It covers the situation in which, during the warranty period, the manufacturer is “unable to repair or correct any defect or condition that substantially impairs the use and market value of the motor vehicle to the consumer after a reasonable number of attempts.” In that case, at the consumer’s option the motor vehicle shall be replaced with a comparable one or accepted for return with a refund of the entire purchase price (minus certain specified exceptions). CL § 14-1502(c). The manufacturer may raise as an affirmative defense that the “nonconformity, defect, or condition” “[d]oes not substantially impair the use and market value of the motor vehicle” or “[i]s the result of abuse, neglect, or unauthorized modifications or alterations” of the vehicle.

CL § 14 — 1502(c)(3)(i) and (ii). With respect to subsection (c)’s reference to “reasonable number of attempts” to “repair or correct any defect or condition that substantially impairs the use and market value” of the vehicle, subsection (d) creates (in relevant part) an evidentiary presumption that a reasonable number of attempts has been undertaken if “[t]he same nonconformity, defect, or condition has been subject to repair 4 or more times by the manufacturer ... within the warranty period but such nonconformity, defect, or condition continues to exist.” CL § 14-1502(d)(1). ⁵⁰⁴ In Murphy v. 24th Street Cadillac Corp., 353 Md. 480 , 727 A.2d 915 (1999), the Court of Appeals discussed these Lemon Law provisions in the course of addressing questions arising under identical provisions of the Consumer Motor Vehicle Leasing Contracts Act, CL § 14-2001, et seq. (the “Leasing Contracts Act”). The Court observed: The [L]emon [L]aw remedies for purchases and leases of defective vehicles differentiate between curable defects and those that cannot be repaired.

In the case of curable defects, the [consumer] is required to allow “an opportunity ... to cure ... at no charge to the [consumer].” Thus, for defects that can be cured, [the Leasing Contracts Act] simply requires that the defect be cured free of charge by the manufacturer, dealer, or [seller]. Subsection l]-200](d) [of the Leasing Contracts Act] provides for those situations in which the defect is not subject to correction or remains unrepaired. To take advantage of this subsection, the [consumer] must demonstrate two elements in addition to the existence of a nonconformity or defect and the notice required____First, the defect must be one that “the manufacturer ... is unable to repair or correct ... after a reasonable number of attempts. ” Second, the defect must be one “that substantially impairs the use and market value of the motor vehicle to the [consumer].” If these two facts are proven, the [consumer] is entitled to choose between two remedies-either replacement of the defective vehicle with a comparable vehicle or a return of the vehicle with a refund.... 353 Md. at 489 , 727 A.2d 915 (emphasis added) (further citations to the Leasing Contracts Act omitted). In Evans v. General Motors Corp., 459 F.Supp.2d 407 (D.Md.2006), the federal district court reviewed and summarized the remedies afforded Maryland consumers by the Lemon Law.

The court explained that, “[i]n a case where a vehicle repurchase is sought” — that is, under CL section 14-1502(c)— the plaintiffs bear the burden of proving several elements, including the existence of an incurable defect. In Murphy ⁵⁰⁵ [, supra, 353 Md. at 489 , 727 A.2d 915 ], the Court of Appeals of Maryland interpreted the statute to require (1) the existence of a defect, (2) the defect must be one that the manufacturer is unable to fix after a reasonable number of attempts, and (3) the defect must be one that substantially interferes with the use and market value of the vehicle. 459 F.Supp.2d at 412 (emphasis added). In the case at bar, it is undisputed that the Verona reached 15,000 miles on its odometer sometime after January 17, 2005, and before May 5, 2005, which was less than 15 months after delivery. Accordingly, the car was covered by the Lemon Law warranty enforcement provisions from the date of purchase, on July 17, 2004, to the date it reached 15,000 miles.

In granting summary judgment in favor of Suzuki on the Lemon Law claim, the circuit court concluded that there was no genuine dispute of material fact as to whether there existed a present, incurable defect, condition, or nonconformity in the Verona. The Zitterbarts’ own evidence (Mr. Ruch’s report) showed that there was no defect (incurable or not) in the car’s powertrain as of the date he test drove it (March 5, 2007). In Mr. Ruch’s words, the powertrain “appeared to be operating as designed.” Suzuki’s expert had opined that, as of the date he test drove the vehicle (February 8, 2007), it had no defect, condition, or nonconformity whatsoever. Mrs. Zitterbart’s attestation, by affidavit, that the vehicle currently was experiencing a “hesitation problem” was not admissible evidence of a defect, condition, or nonconformity that needed to be repaired or was not reparable.

Any such evidence would have to be established by expert testimony. See Laing v. Volkswagen of America, Inc., 180 Md.App. 136, 163-64 , 949 A.2d 26 (2008) (consumer’s complaint alone that car had “hesitation problem” was insufficient without support of expert testimony to prove a defect); see also Crickenberger, supra, 404 Md. at 52-53 , 944 A.2d 1136 . The court determined, “[T]o successfully assert a Lemon Law claim, all of the statutory conditions must be met, and in this case, [the ⁵⁰⁶ Zitterbarts] ha[ve] not set forth facts demonstrating that the vehicle is currently defective.” On appeal, the Zitterbarts contend the court erred in granting summary judgment for Suzuki on the Lemon Law claim for several reasons, not all of which bear a logical relationship to each other, but which we shall attempt to organize by their relationship to the remedies set forth in CL sections 14-1502(b) and (c). Before doing so, we shall summarize the essential opinions given by Mr. Ruch in his March 6, 2007 report.

According to Mr. Ruch, the service visits of November 15, 2004, November 22, 2004, and January 17, 2005, were the first, second, and third “repair attempts] performed under warranty on the vehicle’s powertrain defects.” He does not identify or describe what the “powertrain defects” are. With respect to the May 5, 2005 visit (at which the Verona had over 15,000 miles on its odometer), Mr. Ruch lists the Zitterbarts’ complaint as “[v]ehicle has a hesitation and loss of power while driving — Technician verified the condition and replaced the vehicle’s fuel filter.” He observes that the technician’s comment “blam[es] the vehicle’s powertrain defect on contaminated fuel” as a “ ‘scapegoat’ for the vehicle’s real powertrain defect that they [sic] could not diagnosis [sic].” He opines: “By this time [May 5, 2005], Ms. Zitterbart’s new Suzuki had been presented to the authorized Suzuki repair facility four (4) times for the same defect that continued to exist.” Again, the “powertrain defect” is not described. Mr. Ruch goes on to describe the visits of July 8, July 11, and July 29, 2005, as the fifth, sixth, and seventh “repair attempts]” on the vehicle’s “powertrain defects.” Based upon his review of the servicing documents, he opines: The warranty repair history of this vehicle paints a clear picture that the powertrain system defect that this vehicle was sold with was not properly diagnosed by the authorized Suzuki repair facility. By this time [July 29, 2005], the subject vehicle had been returned seven (7) times for the same defect and has been out of service almost one month. ⁵⁰⁷ Mr. Ruch states that one purpose of his inspection of the Verona “was to confirm the condition of the vehicle and/or its current defects”; and (as we have noted), during the inspection and test drive, “the vehicle’s powertrain system appeared to be operating as designed.” He reports speaking to Mrs. Zitterbart about any “current concerns” and her responding that the vehicle “will hesitate at times and is actually scheduled for repairs.” 4 Mr. Ruch did not report experiencing any hesitation problem with the Verona during his test drive.

Mr. Ruch reasons that the good condition of the vehicle at the time of his test drive, including the absence of any powertrain problem, means that the previously