On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4296-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, C.L. Miniman and Baxter.
Plaintiff John B. Ferrari is the owner of a 2005 Honda Pilot EX/L. Complaining that the engine makes an abnormal noise that the manufacturer has not fixed, he filed a complaint alleging breach of warranty and consumer fraud. He appeals from an order granting summary judgment to defendant and dismissing his complaint. We affirm.
Plaintiff purchased his 2005 Honda Pilot EX/L from Harry Klause Cars & Trucks (Klause) in June 2005. After researching various vehicles, plaintiff decided to purchase a Honda Pilot. Plaintiff claims he heard a tapping noise in the vehicle engine as he drove the vehicle off Klause's lot.
Plaintiff's vehicle is covered by a three year/36,000 mile (whichever comes first) express warranty. The warranty states "Honda will repair or replace any part that is defective in material or workmanship under normal use."
Plaintiff asserts the vehicle exhibits "an abnormal tapping noise from the engine," caused by "a severe and chronic piston slap condition." From October 26, 2005 to October 25, 2006, plaintiff brought his vehicle to authorized Honda dealerships and repair facilities eight times seeking repair of the noise and other minor repairs. Sometimes, repair technicians did not hear the noise. Other times, the noise was heard and noted, but plaintiff was advised the noise was normal. On February 13, 2006 and March 13, 2006, a Honda representative drove plaintiff's vehicle and reported the noise was "normal engine noise" and the vehicle was "operating as designed."
Dissatisfied with defendant's response, plaintiff sought legal redress.
Plaintiff filed a complaint against American Honda Motor Co., Inc. (Honda), the manufacturer of the car, alleging breach of express and implied warranties under the Motor Vehicle Warranty Act,*fn1 N.J.S.A. 56:12-29 to -49 (Count One), the Magnuson-Moss Federal Trade Commission Improvement Act, 15 U.S.C.A. §§ 2301 to 2312 (Count Two), the Uniform Commercial Code, N.J.S.A. 12A:1-101 to 12A:12-26 (Count Three), and the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (Count Four). Having been granted partial summary judgment in its favor on Counts One and Four on December 1, 2006, Honda moved for summary judgment on the remaining claims. In a concise oral opinion, the judge granted summary judgment on Counts Two and Three on September 20, 2007. The judge explained that the Magnusson-Moss Warranty Act claim failed because plaintiff was unable to demonstrate that the piston slap heard on some occasions fell outside of the normal performance standards of the vehicle as asserted by Honda. He found that Honda never failed to meet the provided warranty.
Addressing the Uniform Commercial Code (UCC) implied warranty claim, Judge Nelson C. Johnson found that the vehicle never broke down or left plaintiff stranded. He also found that the vehicle always provided safe and dependable transportation. Therefore, plaintiff could not establish that Honda breached the implied warranties of merchantability and fitness for a particular purpose. Judge Johnson also denied plaintiff's motion for reconsideration.
Plaintiff appeals only the September 20, 2007 order. On appeal, plaintiff argues that the trial court erred in finding plaintiff had failed to raise a genuine issue of material fact and granting summary judgment to defendant on Count Two, plaintiff's express warranty claims, and Count Three, plaintiff's implied warranty claims.
When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2. When reviewing an order of summary judgment, an appellate court applies the same standards used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, ...