Warranty Defense

Our warranty defense practice has handled numerous cases involving:

  • Vehicle Warranty Defense
  • Uniform Commercial Code (UCC)
  • Magnuson Moss Act
  • Breach of Implied Warranty
  • Breach of Contract
  • Lemon Law Defense
  • Deceptive and Unfair Trade Practices

Over our years of practicing in these areas of law, we have developed a database of consulting and expert witnesses, discovery requests and responses, and a knowledge of available defenses critical to success, including lack of privity, inadequate notice, lack of opportunity to cure, warranty disclaimers, limitations of remedies and arbitration provisions. The attorneys at Bromagen & Rathet, P.A. are familiar with the right defenses to raise and how to prove them at the motion to dismiss, summary judgment and trial stages. Our experience in regularly handling warranty and Lemon Law cases offers the client cost-effective, efficient and high quality representation.

Over the past two years, the Law firm of Bromagen & Rathet, P.A. has successfully argued motions on behalf of its clients in jurisdictions throughout the State of Florida. The motions included motions for dismissal of claims, to set aside verdicts and JNOV, for final summary judgments, to strike jury demands, for protective orders, to compel discovery, to preserve evidence and to strike attorneys’ fees. The list below highlights a few of Bromagen & Rathet, P.A.’s successfully argued motions and orders entered on behalf of its clients for the years 2008 to 2009.

Orders Granting Motions to Dismiss Claims:

  • Robert Diaz v. Ford Motor Company, March 7, 2008 - Palm Beach County, FL.
  • Vincent and Genevieve Turano v. Ford Motor Company, April 7, 2008 - Leon County, FL.
  • Sandra Gonzalez v. General Motors Corporation, June 12, 2008 - Orange County, FL.
  • Charles Doster v. Ford Motor Company, September 2, 2008 - Lake County, FL.
  • Wilson’s Towing v. Ford Motor Company, December 4, 2008 - Duval County, FL.

Orders Granting Final Summary Judgment:

  • Orran James v. Volkswagen of America, Inc., August 6, 2008 - Leon County, FL.
  • Wade and Dianna Whiddon v. Ford Motor Company, September, 2008 - Dixie County, FL.

Orders Granting Motions to Strike Jury Demands:

  • Jason Jex v. Hyundai Motor America, January 7, 2009 - Hernando County, FL.
  • Pauline Pauwels v. American Suzuki Motor Corporation, February 6, 2009 - Ocala, FL.
  • Ressler’s Tree Service v. Ford Motor Company, February 9, 2009 - Ocala FL.

Order Granting Motion for Protective Order:

  • Patrick Valle v. Ford Motor Company, November 3, 2008 - Volusia County, FL.

Orders Granting Motions to Compel:

  • Patrick Valle v. Ford Motor Company, April 14, 2008 - Volusia County, FL.
  • Wade and Diana Whiddon v. Ford Motor Company, August 5, 2008 - Dixie County, FL.
  • Henry Lee and Mary Thomas Wyche v. Ford Motor Company and Tallahassee Auto Investors, LLC, d/b/a All- American Ford, January 9, 2009 - Volusia County, FL.
  • Neil Perello v. Ford Motor Company, January 28, 2009 - Dade County, FL.

Orders Granting Motions to Preserve Evidence:

  • Neil Perello v. Ford Motor Company, December 2, 2008 - Dade County, FL.
  • Cecilio Avila v. Ford Motor Company, January 23, 2009 - Broward County, FL.

Order Granting Motion to Strike Attorneys’ Fees:

  • Henry Lee and Mary Thomas Wyche v. Ford Motor Company and Tallahassee Auto Investors, LLC d/b/a All-American Ford, October 21, 2008 - Volusia County.

Please contact us if you would like to discuss any of the orders or would like copies

Below are notable appellate decisions in Florida breach of warranty cases from 2008-2009.

Breach of Express and Implied Warranty

Ocana v. Ford Motor Company, 2008 Fla. App. LEXIS 15127 (Fla. 3d DCA 2008).

In Ocana, Plaintiff sued for breach of express warranty and breach of implied warranty under the federal Magnuson-Moss Warranty Act (“MMWA”). The trial court dismissed Plaintiff’s complaint and Plaintiff refused to amend the complaint leading to the Court dismissing Plaintiff’s complaint with prejudice. The Plaintiff then appealed the trial court’s dismissal with prejudice.

The 3rd District Court of Appeal made several rulings regarding Plaintiff’s claims under the MMWA. First, in regard to Plaintiff’s breach of express warranty claims, the Court ruled that, under Florida law, there can be no cause of action for breach of an express limited warranty unless the consumer can allege and prove that the manufacturer did not comply with the limited express warranty’s terms. To recover for a breach of this warranty, a warrantee therefore must allege and prove that Ford refused or failed to adequately repair a covered item. Therefore under a cause of action for breach of a limited warranty to repair or replace defective parts a Plaintiff would have to prove that the warrantor refused to repair or replace parts free of charge. The Court also ruled that the requirement under the MMWA that a warrantor repair an item within a reasonable amount of repair attempts applied only to “full” warranties as defined by the MMWA and did not apply to items covered under a “limited” express warranty.

Next the Court analyzed Plaintiff’s breach of implied warranty claims. In Ocana Plaintiff pled a general agency theory based upon Ford Motor Company’s Sales and Service Agreement between the dealership and Ford. The theory was essentially that these contractual obligations created agency and thus the dealership was Ford Motor Company’s sales agent. If the Court were to rule that the dealership was Ford’s sales agent, then Ford might not be able to disclaim implied warranties under the MMWA. However, the 3rd District Court of Appeal ruled that, even if Plaintiff proved all the agency allegations contained in the Plaintiff’s complaint, Plaintiff would still, as a matter of law, not overcome Florida’s privity requirement.

The Court explained that in order to demonstrate a dealership is the real or actual agent of Ford, a Plaintiff must prove 1) acknowledgement by Ford that the dealer was acting as its agent; 2) acceptance of the undertaking by the dealership; and 3) control by Ford over the dealer’s day-to-day activities during the course of the agency. Id. The Ocana Court found that the Plaintiff alleged that Ford control over 1) dealer location, size, and number of dealer logos on dealer’s premises; 2) prizes given to dealer’s employees; 3) the number of bathrooms dealer must make available to the public; 4) training and certification of sales and service personnel; and also required that its dealers 5) use manufacturer-supplied computer software; 6) report vehicle sales and sales details, including name and address of purchaser and related information, to manufacturer; 7) provide warranty service paid for by Ford Motor Company; and afford Ford the right to enter the dealer’s business premises to audit the records and operations of the dealership as to sales and service. Id. The Court further stated that the Plaintiff had not alleged the tell-tale signs of a principal-agent relationship, such as the ability of the principal to hire, fire, or supervise dealership employees or dealer ownership. Id.

The 3rd District Court of Appeal found the same with respect to the Plaintiff’s apparent agency arguments. The court stated that apparent agency exists only if all of the three following elements are present: 1) A representation by the purported principal; 2) reliance on the representation by a third party; and 3) a change in position by the third party in reliance on the representation. Id. The court stated that apparent authority does not arise from the subjective understanding of the person dealing with the purported agent, nor from the appearances created by the purported agent himself; instead apparent agency exists only where the principal creates the appearance of an agency relationship. Again, the court found that even if it assumed all Plaintiff’s allegations to be true that it would be insufficient as a matter of law to establish apparent agency. Therefore the 3rd District Court of Appeal has clearly ruled that a general agency theory based upon a contractual relationship between a manufacturer and a dealer does not overcome Florida’s privity requirements thus allowing a Plaintiff to sue a manufacturer for breach of implied warranty.

Florida Proposals for Settlement/Offers of Judgment

Under the MMWA a finally prevailing Plaintiff may be entitled to recover attorney’s fees. However what constitutes a finally prevailing party has not yet been firmly established by the Courts.

Florida law allows defendants to serve Proposals for Settlement/Offers of Judgment on plaintiffs. If a plaintiff rejects the offer and does not recover a judgment in the amount of more than 75% of the offer, the plaintiff might have to pay the offeror’s attorneys’ fees.

Proposals for Settlement/Offers of Judgment can offer a settlement amount that includes attorneys’ fees. In other words, an offeror can offer $10,000 total, including all the fees incurred. Proposals for Settlement can also be served exclusive of attorneys’ fees. In other words, an offeror can offer $10,000 excluding attorneys’ fees. The offer might then agree that plaintiff is entitled to fees and can seek a reasonable amount from the court. Or, the offer can state that plaintiff might be entitled to fees and that entitlement and an amount should be left up to the court. Or, the offer can deny that the plaintiff is entitled to any fees, but that the court must make such a final determination.

There has been a great deal of controversy in Florida with respect to Proposals for Settlement/Offers of Judgment in general. Specifically, there has been controversy in the context of offers made in MMWA cases where the act appears to require a judgment as a pre-condition to entitlement to fees. Issues include whether acceptance of a Proposal for Settlement/Offer of Judgment precludes a plaintiff from being deemed a “finally prevailing party,” whether it leaves open the possibility that a plaintiff may be deemed a “finally prevailing party,” or whether acceptance automatically makes a plaintiff a “finally prevailing party”.

Three different Florida District Courts of Appeal have weighed in on the topic and have given different answers.

In San Martin v. DaimlerChrysler Corp., 983 So. 2d 620 (Fla. 3rd DCA 2008), the 3rd District Court of Appeal ruled that acceptance of a Proposal for Settlement exclusive of attorney’s fess may entitle a plaintiff to fees. The Court explained that acceptance of the Proposal for Settlement would pass the threshold question of whether a Plaintiff could receive fees but it was within the trial court’s discretion to decide whether or not the Plaintiff should receive attorney’s fees.

In Mady v. DaimlerChrysler Corp., 976 So.2d 1212 (Fla. 4th DCA), the Fourth District Court of Appeal ruled that the Plaintiff’s acceptance of a Proposal for Settlement exclusive of attorney’s fees did not make the Plaintiff a finally prevailing party and thus the Plaintiff was not entitled to recover attorney’s fees under the MMWA. The Court ruled that a finally a party finally prevailed under the MMWA by obtaining a judgment on the merits or entering into a consent decree and that a predicate settlement did not satisfy this requirement and thus the Plaintiff was not entitled to recover his attorney’s fees.

In Dufresne v. DaimlerChrysler Corp., 975 So.2d 555 (Fla. 2nd DCA 2008), the 2nd District Court of Appeal held that acceptance of a Proposal for Settlement was the equivalent of a consent decree as the Court retained jurisdiction to enforce the terms of a settlement agreement. Therefore the Court ruled that a Plaintiff who accepted a Proposal for Settlement exclusive of attorney’s fee was not precluded from claiming entitlement to attorney’s fees under the MMWA.

The three District Courts of Appeal are in conflict with one another so the Florida Supreme Court has granted Certiorari and will review these decisions in the near future. The Supreme Court’s decision will have a great impact on the viability of exclusive proposals for settlement and the strategy of manufacturers in breach of warranty lawsuits under the MMWA. We will continue to monitor this matter and provide an update once the Florida Supreme Court renders its decision.  

 

 

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