Present: All the Justices
SUBARU OF AMERICA, INC.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971821 June 5, 1998
DEBORA C. PETERS
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
This is the first case we have decided by written opinion under
the Virginia Motor Vehicle Warranty Enforcement Act (the Act), Code
§§ 59.1-207.9 through –207.16:1, since its 1984 adoption. Acts
1984, ch. 773.
The Act, Virginia’s so-called “Lemon Law,” generally provides
that if a consumer has purchased a motor vehicle for nonbusiness
purposes and reports, within a specified period of time, a defect or
nonconformity covered by the motor vehicle manufacturer’s express
warranty, the manufacturer or its agent must perform the repairs
necessary to correct the problem. If the vehicle cannot be
conformed to the warranty after a reasonable number of attempts, the
consumer is entitled to replacement of the vehicle or refund of the
purchase price.
The first state lemon law was enacted by the Connecticut
legislature in 1982. Since that time, a majority of states has
enacted similar legislation, although no two lemon laws are
identical. Noralyn O. Harlow, Annotation, Validity, Construction,
and Effect of State Motor Vehicle Warranty Legislation (Lemon Laws),
51 A.L.R.4th 872, 877 (1987). The General Assembly patterned
Virginia’s Act after Connecticut’s. Carol S. Nance, Note,
Virginia’s Lemon Law: The Best Treatment For Car Owner’s Canker?, 19
U. Rich. L. Rev. 405, 425 (1985).
A consumer suffering a loss by reason of a violation of any
provision of the Act may bring a civil action to enforce such
provision. Code § 59.1-207.14. The Act does not impair or limit a
consumer’s rights under any other law. Code §§ 59.1-207.10 and -
207.13(F).
In 1996, appellee Debora C. Peters filed this action against
appellant Subaru of America, Inc., arising from the plaintiff’s
purchase of a used motor vehicle manufactured by defendant. Even
though plaintiff, in an amended motion for judgment, sought recovery
against defendant on several theories, the case evolved into an
action based solely on the Act and its remedies.
The defendant denied plaintiff is entitled to the relief
sought. Additionally, it filed a pre-trial motion for summary
judgment asserting “the Act applies only to the purchase by a
consumer of a new motor vehicle.” The trial court denied the
motion.
During a jury trial, the court denied defendant’s motions to
strike plaintiff’s evidence both at the conclusion of the
plaintiff’s case-in-chief and at the conclusion of all the evidence.
The jury found in favor of the plaintiff and, after assessing
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attorney’s fees against defendant, the trial court entered judgment
for the plaintiff in the amount of $23,987.35. We awarded defendant
this appeal from the May 1997 judgment order.
The facts are virtually undisputed. The subject of this
controversy is a 1994 Subaru Legacy four-door station wagon.
The first sale of the vehicle occurred on April 7, 1994 when
defendant sold it to Hertz Corporation, Greensboro, North Carolina,
for use as a rental car. The second sale took place in November
1994 when defendant purchased the vehicle from Hertz and consigned
it to the Greensboro Auto Auction for sale. The third sale occurred
in December 1994 when Star Imports, Inc., purchased the vehicle at
auction for resale at the Star Imports dealership in Lynchburg,
Virginia.
The fourth sale was to the plaintiff, a resident of Appomattox
County. On March 20, 1995, she purchased the vehicle from Star
Imports for her “personal use.” The odometer registered 18,919
miles.
At the time of purchase, the plaintiff was entitled to the
benefits of the balance of the defendant’s vehicle warranty. The
warranty’s “basic coverage” lasted for three years or 36,000 miles,
“whichever comes first.” Warranty coverage began on April 7, 1994,
the date the car was “delivered to the first retail purchaser,”
according to the warranty.
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On appeal, defendant assigns error to the trial court’s denial
of the summary judgment motion and denial of its "motion to strike
at the close of the plaintiff's evidence." These assignments of
error present three questions.
The first question is whether the Act applies only to the
purchase of new as opposed to “used” vehicles. We hold that it
applies to both, as will be demonstrated by analysis of pertinent
provisions of the Act.
We look first to the Act’s title, “Virginia Motor Vehicle
Warranty Enforcement Act.” Unlike some other state lemon laws, the
General Assembly made no distinction in the title between “new” or
“used” vehicles. See Connecticut’s lemon law entitled “New
Automobile Warranties.” Conn. Gen. Stat. Ann., Title 42, § 179 et
seq. (West 1992).
Moreover, in Code § 59.1-207.10, a preamble setting forth the
intent of the Act, the General Assembly referred throughout to “a”
motor vehicle and not to a “new” motor vehicle. This is a plain
indication that the Act is meant to apply to the vehicles, new and
used, that qualify for coverage under the Act. For example, the
statute’s first sentence provides: “The General Assembly recognizes
that a motor vehicle is a major consumer purchase, and there is no
doubt that a defective motor vehicle creates a hardship for the
consumer.” Likewise, the statute’s third sentence provides: “It is
further the intent of the General Assembly to provide the statutory
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procedures whereby a consumer may receive a replacement motor
vehicle, or a full refund, for a motor vehicle which cannot be
brought into conformity with the express warranty issued by the
manufacturer.” In both the Act’s title and preamble, the focus is
upon the warranty, and not upon the vehicle’s status as new or used.
The defendant’s reliance on references in the Act to a “new”
motor vehicle, to support its contention that the Act applies only
to new vehicles, is misplaced. The term “new” is employed five
times in the Act. The word is found at four places in Code § 59.1-
207.11, where the terms “lemon law rights period,” “manufacturer’s
express warranty,” “serious safety defect,” and “significant
impairment” are defined; it is found in Code § 59.1-207.12, dealing
with warranty conformity.
However, the word “new” is employed each time in the context of
warranties issued when the vehicle is indeed “new.” Instead of
limiting the Act’s applicability to a “new vehicle,” the Act focuses
upon the new vehicle warranty. In other words, the Act concentrates
on the manufacturer’s written factory warranty for the particular
vehicle, and whether that vehicle can be brought into conformity
with the warranty’s terms.
The second question is whether this plaintiff qualifies as a
“consumer,” as defined in the Act, so that she is entitled to claim
the benefits of the Act.
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According to Code § 59.1-207.11, the term “consumer” means “the
purchaser, other than for purposes of resale, of a motor vehicle
used in substantial part for personal, family, or household
purposes, and any person to whom such motor vehicle is transferred
for the same purposes during the duration of any warranty applicable
to such motor vehicle, and any other person entitled by the terms of
such warranty to enforce the obligations of the warranty.”
The defendant contends the plaintiff is not a “consumer.” It
says, “The purpose of this provision is to preclude the application
of the Act to business vehicles or vehicles used for business
purposes.” Defendant continues: “Hertz Corp., the original owner,
was not a consumer. When Hertz purchased the automobile and placed
it into service as a rental car, the Act no longer applied to the
automobile because it was being used substantially for business
purposes. Accordingly, subsequent purchasers, including Peters, do
not meet the definition of a consumer because no one after Hertz
purchased from a consumer.” In other words, according to defendant,
“Those who purchased ‘downstream’ from Hertz cannot bring a claim
under the Act because they do not qualify as consumers. Peters’
rights under the Act can rise no higher than the rights of her
predecessors in title.” We do not agree with defendant.
We will assume this vehicle had been employed substantially for
business purposes by Hertz, a fact not shown by the record.
Nonetheless, the vehicle’s subsequent sale to a nonbusiness
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transferee caused it to be included within the Act’s “consumer”
definition. The record shows the plaintiff devoted the vehicle to
her personal use for approximately 66% of the total odometer mileage
at the time of trial. This clearly shows the vehicle was “used in
substantial part for personal . . . purposes," according to the
first clause of the definition. Also, she was “any person to whom
such motor vehicle [was] transferred" for those purposes “during the
duration of [the] warranty applicable to such motor vehicle,”
according to the second clause of the definition.
Contrary to defendant’s argument, the definition of “consumer”
nowhere denies benefits to a subsequent transferee who is
“downstream” from a business buyer. Thus, a buyer, such as this
plaintiff, experiencing a “significant impairment,” as defined in
the Act, during the balance of the express factory warranty
qualifies as a “consumer,” whether or not a prior owner had employed
the vehicle for business purposes.
The third question is whether the plaintiff established a claim
for benefits under the Act. Several portions of the Act are
relevant to this issue.
Code § 59.1-207.12 requires conformity to all warranties. It
provides: “If a new motor vehicle does not conform to all
warranties, and the consumer reports the nonconformity to the
manufacturer, its agents, or its authorized dealer during the
manufacturer’s warranty period, the manufacturer, its agent or its
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authorized dealer shall make such repairs as are necessary to
conform the vehicle to such warranties, notwithstanding the fact
that such repairs are made after the expiration of such
manufacturer’s warranty period.”
Code § 59.1-207.13(A) provides that “[i]f the manufacturer, its
agents or authorized dealers do not conform the motor vehicle to any
applicable warranty by repairing or correcting any defect or
condition, including those that do not affect the driveability of
the vehicle, which significantly impairs the use, market value, or
safety of the motor vehicle to the consumer[,] after a reasonable
number of attempts during the lemon law rights period,” the
manufacturer shall either replace the motor vehicle, or accept
return of the vehicle and refund to the consumer the full purchase
price.
Subsection (B) of the foregoing statute creates a presumption
that may be employed, if needed, by a consumer to establish "a
reasonable number of attempts" and significant impairment under
subsection (A). As relevant, subsection (B) provides: “It shall be
presumed that a reasonable number of attempts have been undertaken
to conform a motor vehicle to any warranty and that the motor
vehicle is significantly impaired if during the period of eighteen
months following the date of original delivery of the motor vehicle
to the consumer either: 1. The same nonconformity has been subject
to repair three or more times by the manufacturer, its agents or its
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authorized dealers and the same nonconformity continues to exist;”
or “3. The motor vehicle is out of service due to repair for a
cumulative total of thirty calendar days. . . .”
The “lemon law rights period” is defined as “the period ending
eighteen months after the date of the original delivery to the
consumer of a new motor vehicle. This shall be the period during
which the consumer can report any nonconformity to the manufacturer
and pursue any rights provided for under this chapter.” Code
§ 59.1-207.11.
The word “nonconformity” is defined as “a failure to conform
with a warranty, a defect or a condition, including those that do
not affect the driveability of the vehicle, which significantly
impairs the use, market value, or safety of a motor vehicle.” Id.
Dwelling on the presumption set forth in § 59.1-207.13(B), and
other language of the subsection, the defendant argues the plaintiff
failed to establish that the “same nonconformity” was “subject to
repair” three times during the 18-month lemon law period. This
argument is without merit.
The case was not submitted to the jury on the presumption.
Instead, the jury was instructed on the provision of subsection (A)
of the statute requiring replacement of the vehicle or refund of the
purchase price if there was a failure to conform the vehicle to the
warranty “after a reasonable number of attempts during the lemon law
rights period.”
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The evidence was sufficient to allow the jury to find, without
the benefit of the presumption, that the defendant or its agents
were afforded a reasonable number of attempts to conform the vehicle
during the 18-month period commencing April 7, 1994 and ending
October 7, 1995. It is unnecessary to embark upon a detailed
recital of the evidence of plaintiff’s unsuccessful efforts to have
defendant and its dealers conform the vehicle to defendant’s
warranty. Through her testimony supplemented by documentary
evidence, the plaintiff established she experienced "constant"
problems with the operation of the vehicle following its purchase.
She repeatedly reported defects to defendant and its dealers.
These reports commenced June 2, 1995 ("brakes were messing up") and
continued: June 19 — "motor was coughing and then it was going into
neutral"; July 20 — "motor was still cutting off and the
transmission . . . was jerking and would go in and out of neutral";
July 26 — "transmission was still slipping and cutting off and the
brakes were still the same thing because they had never fixed them";
August 30 — brake problems and "remanufactured transmission was put
in it"; and September 8 — "transmission was whining."
Additionally, the plaintiff made repeated complaints beyond the
basic lemon law rights period because the warranty problems had not
been corrected by defendant or its agents. Code § 59.1-207.13(C)
provides, “The lemon law rights period shall be extended if the
manufacturer has been notified but the nonconformity has not been
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effectively repaired by the manufacturer, or its agent, by the
expiration of the lemon law rights period.” The plaintiff notified
the defendant by letter dated September 18, 1995 of the “constant
problems with my car.” She wrote: “My car cuts off while you are
driving & when you slow down it will cut off. The transmission goes
into neutral while you are driving. The car jerks when you pull
off. The brakes grab and do not properly stop my car.”
Finally, in arguing plaintiff failed to establish the necessary
elements of a claim under the Act, defendant maintains plaintiff did
not "prove a nonconformity covered by the warranty." The warranty
covers "any repairs needed to correct defects in material or
workmanship reported during the applicable warranty period which
occur under normal use." Defendant argues plaintiff merely
"testified about her complaints, but admitted that she was not a
mechanic or expert." According to defendant, plaintiff offered no
testimony "regarding the applicability of the warranty to the
alleged nonconformity." We disagree.
Our previous summary of the facts demonstrates there was
abundant evidence presented by the plaintiff, testimonial and
documentary, to permit the jury to find that the engine,
transmission, and brake problems resulted from defects in material
or workmanship. Indeed, numerous repair orders and invoices from
Star Imports, and an Amherst Subaru dealer to which plaintiff also
took the vehicle for repair, show that, in most instances, plaintiff
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was not charged for work done in connection with her complaints.
For example, plaintiff was not charged for replacing the
transmission in August 1995. The jury was justified in concluding
that, because no charges were assessed, the dealers considered the
warranty applied to the nonconformities about which complaint was
made.
Consequently, we conclude the trial court did not err, and the
judgment below will be
Affirmed.
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