January 30, 2009
JOHN B. FERRARI, PLAINTIFF-APPELLANT,
AMERICAN HONDA MOTOR CO., INC., DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 2, 2008
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, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In Count Two of his complaint, plaintiff claims Honda breached its express warranty when it failed to remedy the tapping noise in plaintiff's vehicle, despite many opportunities to do so. Honda maintains the noise plaintiff complains of is normal and not a defect. Because the noise is not a defect, Honda argues, the express warranty has not been triggered and thus cannot have been breached.
In opposition to defendant's motion for summary judgment, plaintiff presented only his expert report as evidence of the defect. Plaintiff's expert accompanied plaintiff on a road test and reviewed the vehicle's service records. The expert observed "an abnormal tapping noise from the engine," which he opined was caused by "excessive piston to cylinder wall clearance." He concluded the vehicle's "use, value, and safety ha[d] been impaired" and calculated a $4,530 decrease in the value of the car based on a change from "excellent" to "fair" in the vehicle's Kelley Blue Book rating, based on the vehicle's repair history.
The motion judge found plaintiff's expert's report, which refers to an abnormality and offers an opinion as to the cause of the abnormality, to be an inadmissible net opinion.
The net opinion rule provides that an expert's "bare conclusions, unsupported by factual evidence" are inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The rule often focuses upon "the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Ibid. In this regard, the net opinion rule requires the expert witness "to give the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).
Here, plaintiff's expert opined the noise was abnormal and caused by excessive piston to cylinder wall clearance after accompanying plaintiff on a test drive and examining the vehicle's service records. Plaintiff's expert did not examine the pistons or measure the distance from piston to cylinder wall. Plaintiff's expert failed to cite any specifications or standards for acceptable piston spacing.
Plaintiff's expert failed to support his conclusion that the noise was caused by a piston slap with factual evidence of excessive piston to cylinder wall clearance or reference to any authority. Further, plaintiff's expert failed to explain why the noise was abnormal or why the noise caused a decrease in the value of the vehicle. Because plaintiff's expert presented only his "bare conclusion" that the noise is abnormal, plaintiff's expert rendered an inadmissible net opinion. A net opinion cannot be used to satisfy a plaintiff's burden when faced with a motion for summary judgment. Polzo v. County of Essex, 196 N.J. 569, 583-84 (2008); Smith v. Estate of Kelly, 343 N.J. Super. 480, 496-98 (App. Div. 2001). Because plaintiff failed to present evidence sufficient to carry his burden, Honda was entitled to summary judgment as a matter of law.
In Count Three of his complaint, plaintiff alleges defendant breached the implied warranties of merchantability and fitness for a particular purpose. Honda argues it has not breached the implied warranty of merchantability because the vehicle is fit for its ordinary purpose, and denies the applicability of the implied warranty of fitness for a particular purpose to these facts.
The warranty of merchantability, N.J.S.A. 12A:2-314, "simply means that the thing sold is reasonably fit for the general purpose for which it is manufactured and sold." Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 370 (1960). In other words, merchantability means "that the article sold should be of the general kind described and reasonably fit for the general purpose for which it should have been sold." Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J. Super. 313, 321 (App. Div. 1956). No published case in this jurisdiction defines the ordinary purpose of a passenger vehicle. Plaintiff urges us to follow other jurisdictions and include "basic transportation" or "reliable transportation" as a particular purpose of a passenger vehicle.
The only evidence plaintiff presents in support of his claim that his vehicle is not fit for its ordinary purpose is his expert's conclusion that "[t]he use of [plaintiff's] car has been substantially impaired by its immediate and repeated failure to operate as designed or intended, the number of times it has had to be returned attempting to have the same conditions corrected, and by difficulty obtaining repairs from authorized Honda repair facilities." At plaintiff's deposition, however, plaintiff stated that the vehicle in question had never broken down, never failed to start, and had never left plaintiff stranded because it failed to operate.
Plaintiff has not presented any evidence showing that his vehicle is not fit for its ordinary purpose. Without a demonstration of a genuine issue of material fact, plaintiff cannot overcome summary judgment. The warranty of fitness for a particular purpose, N.J.S.A. 12A:2-315, applies
[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. [N.J.S.A. 12A:2-315.]
The warranty is not triggered when the buyer communicates to the seller that the buyer intends to use the goods for their ordinary purpose.
A 'particular purpose' differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. [N.J.S.A. 12A:2-315, comment 2.]
Plaintiff purchased the vehicle for business and personal use. The "business purpose" for which the vehicle was used was not defined, but plaintiff described himself as a "sports consultant" and general manager of a basketball team. In his brief, plaintiff asserts he purchased the car for "reliable transportation."
Here, plaintiff has failed to identify that the Honda Pilot is not fit for its ordinary purpose as a passenger vehicle. Plaintiff has also failed to identify a particular purpose for which he purchased the vehicle. Transportation, even reliable transportation, is what most consumers hope to gain when they purchase a passenger vehicle. The purpose described by plaintiff for the vehicle is no different than the ordinary purpose of a passenger vehicle.
Plaintiff has not demonstrated a genuine issue of material fact as to defendant's breach of the implied warranty of fitness for a particular purpose. We, therefore, affirm the September 20, 2007 summary judgment order.