On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8330-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Wefing and Yannotti.
In November 2006, plaintiff Karen B. Turner filed a complaint in the Law Division in which she asserted claims against defendant Mercedes-Benz USA, LLC under the New Jersey Motor Vehicle Warranty Act (Warranty Act), N.J.S.A. 56:12-29 to -49; the Magnuson-Moss Warranty Improvement Act (Magnuson-Moss), 15 U.S.C.A. §§ 2301 to 2312; the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-314; and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Plaintiff appeals from an order entered by the trial court on January 18, 2008, which granted summary judgment in favor of defendant and dismissed all of her claims with prejudice. For the reasons that follow, we affirm.
We briefly summarize the relevant facts. In October 2004, plaintiff leased a 2005 Mercedes C-Class automobile from defendant. According to the lease, the car had an agreed-upon value of $39,422.87. Between October 2004 and June 2006, plaintiff brought the vehicle to defendant on ten occasions, claiming that there were certain problems with the car, including the interior lights, air conditioner, slippage of the gears while the car was in motion, tires, a foul odor allegedly emanating from the air conditioning and heating system, a loose glove compartment box, a loose windshield wiper linkage, and a noise in the steering column.
Defendant's technicians checked the vehicle and corrected without charge any deficiency that the technicians had substantiated. Defendant also retained a consultant to perform an environmental test to check the vehicle for mold and mildew. As a result of the test, the consultant found "no damaging mold" in the car. Moreover, at times, plaintiff was provided a "loaner" car for her use while her car was being serviced.
In October 2006, plaintiff claimed that her daughter had an anaphylactic reaction to an odor allegedly emanating from the vents in the car, which required her hospitalization. Thereafter, plaintiff purchased a new 2007 BMW from DiFeo BMW (DiFeo). The Mercedes was appraised for $28,000, and that amount was credited against the purchase price for the new BMW. DiFeo also agreed to pay the remaining balance due on plaintiff's lease for the Mercedes.
On December 17, 2007, defendant filed a motion for summary judgment. The trial court considered the motion on January 18, 2008, and filed a written opinion in which it concluded that defendant was entitled to judgment as a matter of law on all of the claims asserted by plaintiff in her complaint.
The trial court found that plaintiff had not established any basis for relief under the Warranty Act. The court noted that plaintiff had terminated her lease for the Mercedes; therefore, she could not obtain a refund of the purchase price. Furthermore, plaintiff had never paid for any repair services and she had been given the use of a "loaner" car without charge. Thus, plaintiff could not assert a claim for reimbursement for the warranty repairs or the expenses incurred for a replacement vehicle while her car was being serviced.
The trial court further determined that plaintiff's claims under Magnuson-Moss and the UCC failed because plaintiff had not established that defendant breached any warranty, express or implied. The court noted that defendant had never represented "that the car was in perfect condition." Rather, the vehicle was warranted for "normal use" and defendant had kept its promise to repair all warranted items at no cost to plaintiff.
The court additionally found that plaintiff had not presented sufficient evidence to support her CFA claim because she had not sustained an "ascertainable loss." The court noted that plaintiff had asserted that she terminated the lease for the Mercedes after her daughter allegedly suffered an "allergic reaction" while riding in the car. Plaintiff claimed that she suffered a loss of at least $2,495, which she had paid for the early termination of the lease. The court found that plaintiff's allegation that the car caused her daughter's "allergic reaction" was "purely speculative" and not based on any credible medical evidence.
On January 18, 2008, the court entered an order granting summary judgment to defendant and dismissing all of plaintiff's claims with prejudice. Thereafter, plaintiff filed a motion for reconsideration. The trial court denied that ...