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Filing # 62102313 E-Filed 09/27/2017 07:39:48 PM.
IN THE CIRCUIT COURT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO. 16-001745-CA
SCOTT TINGLEY AND
BLANCA TINGLEY,
Plaintiffs,
Vv.
TOYOTA MOTOR SALES USA INC,
Defendant.
/
PLAINTIFFS’ TRIAL BRIEF
I NATURE OF THE CASE
The claim at issue in this lawsuit is Plaintiffs’ claim against Defendant for breach of an
express warranty on the vehicle brought under the federal Magnuson-Moss Warranty Act. The
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seg., (“Warranty Act”) provides to
consumers a private right of action against manufacturers who fail to comply with the terms of
written warranties.! The Warranty Act was enacted on July 4, 1975. The Act came into being
when President Johnson on February 6, 1968 created a “Task Force on Appliance Warranties and
Service.” See H. R. Rep. No. 93-1107, at 24 (1974), reprinted in 1974 U.S.C.C.A.N. 7702, 7707.
President Nixon, a few months after he took office, followed the previous administration in
making the issue of protecting citizens receiving warranties a priority. /d. at 25, 1974
US.C.C.A.N. 7702, 7707.
' Section 2310(d)(1) of the Act provides: “a consumer who is damaged by the failure of a supplier, warrantor, or
service contractor to comply with any obligation under ... a written warranty, implied warranty, or service contract,
may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1).
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What prompted the executive branch of government to act was a rising tide of consumer
complaints, many of which involved the warranties that automobile sellers were supplying. /d. at
26, 1974 U.S.C.C.A.N. 7702, 7708. An FTC investigation found that warrantors were not living
up to their promises, and it issued a 1968 report confirming that fact. /d. at 27, 1974
U.S.C.C.A.N. 7702, 7707. Two months later President Johnson’s Task Force issued its report,
which was based upon a study of over two hundred warranties from fifty manufacturers. /d.,
1974 U.S.C.C.A.N. 7702, 7709. See also Denicola, The Magnuson-Moss Warranty Act: Making
Consumer Product Warranty A Federal Case, 44 Fordham L. Rev. 273 (1975). The study
concluded that “[t]he underlying and basic problem which must be resolved is how to persuade
or compel a manufacturer and the retailer to provide the purchaser of a major appliance with a
meaningful guarantee which they will honor in both letter and spirit subsequent to the sale.”
1974 U.S.C.C.A.N. 7702, 7709. The study also found that companies were aware of consumer
dissatisfaction, yet had taken no action to resolve customer discontent. See 1974 U.S.C.C.A.N.
77102, 7706 (recognizing the “growing source of resentment [in] the inability to get many
[warranted products] properly repaired and the developing awareness that the paper with the
filigree border bearing the bold caption ‘Warranty’ or ‘Guarantee’ was often of no greater worth
than the paper it was printed on”).
In light of the above, President Nixon proposed in March of 1971 a Fair Warranty
Disclosure Act to Congress under which the FTC would be vested with the power to protect
consumers who receive warranties from the sellers of appliances, automobiles and other
products. With public interest growing markedly, and with the investigations of the FTC and the
Task Force completed, Congress began to debate the legislation. From this debate, the Warranty
Act was born.
IL. THE FLORIDA SUPREME COURT AND FOURTH DISTRICT COURT OF
APPEAL HAVE RECOGNIZED A CONSUMER’S RIGHT TO PURSUE A
BREACH OF “LIMITED” WARRANTY CLAIM AS IN THE CASE AT BAR
The plain language of the Warranty Act, its legislative history and years of case law
interpreting the Act, all demonstrate that the Act and its substantive obligations apply to limited
warranties, the same type of warranty that Plaintiff alleges to have been breached in this case.
A. The Plain Language Of The Warranty Act Allows Consumers To Enforce
“Limited” Warranties As Opposed To Only “Full” Warranties.
Pursuant to the plain language of the Warranty Act, the Act applies to all warranties, not
just “full” warranties. Section 2310(d) of the Warranty Act, 15 U.S.C. § 2310(d), provides:
[A] consumer who is damaged by the failure of a supplier,
warrantor, or service contractor to comply with any obligation
under this chapter, or under a written warranty, implied
warranty, or service contract, may bring suit for damages and
any other legal and equitable relief. ..[Emphasis added.]
The Warranty Act does not indicate that only full warranties are covered by the Warranty
Act. Rather, the plain language of the Warranty Act makes it clear that all written warranties
which would include “limited” warranties are covered by the act. The Warranty Act applies to
all warranties as is explained by the definition of warranty as set forth in the act. Specifically,
section 2301(6) of the Warranty Act defines the term “written warranty” as:
[A]ny written affirmation of fact or promise made in connection
with the sale of a consumer product by a supplier to a buyer which
relates to the nature or workmanship and affirms or promises that
such material or workmanship is defect free or will meet a
specified level of performance over a specified period of time, or
any undertaking in writing in connection with the sale by a
supplier of a consumer product to refund, repair, replace, or take
other remedial action with respect to such product in the event that
such product fails to meet the specifications set forth in the
undertaking.
15 U.S.C. § 2301(6). Therefore, the plain language of the Warranty Act makes it clear that
“limited” warranties are covered by the Act. Since Defendant’s warranty is an undertaking to
repair or take other remedial action, it qualifies as a written warranty covered by the Warranty
Act and the Act’s substantive requirements of section 2310(e) discussed below must also apply.
B The Florida Supreme Court In American Honda Motor Company, Inc. v.
Cerasani, Recognized That A Consumer May Pursue A Cause Of Action For
Breach Of A Limited Warranty Under The Magnuson-Moss Warranty Act.
The Supreme Court of Florida held in American Honda Motor Company, Inc. v.
Cerasani, 955 So.2d 543 (Fla. April 12, 2007) that a consumer ofa vehicle has standing to bring
a lawsuit for breach of a /imited written warranty under the Warranty Act. The Court made clear
that there are three (3) categories of consumers that can assert claims under the Act, including
buyers of consumer products such as in the case at bar. /d. In reaching its conclusion, the Court
noted that the Warranty Act was enacted to expand consumer protection and stated the
following:
Congress enacted the MMWA to enhance the enforceability of
warranties on consumer products and protect the “ultimate
user of the product.” Cerasani, 916 So.2d at 845 (quoting
O'Connor v.. BMW of N. Am., LLC, 905 So.2d 235 (Fla. 2d DCA
2005)). The MMWA authorizes a lawsuit for damages and other
equitable relief by “a consumer who is damaged by the failure of a
supplier, warrantor, or service contractor to comply with any
obligation under this chapter, or under a written warranty, implied
warranty, or service contract.” 15 U.S.C. § 2310(d)(1) (2000). The
MMWA's definition of “consumer” is critical in that only a
person or entity defined as a consumer may bring a cause of
action under the Act. To qualify as a consumer who may file
suit under the Act, a person must come within one of the three
alternative categories of consumer:
The term “consumer” means [Category One] a buyer (other than
for purposes of resale) of any consumer product, [Category Two]
any person to whom such product is transferred during the duration
of an implied or written warranty (or service contract) applicable to
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the product, and [Category Three] any other person who is
entitled by the terms of such warranty (or service contract) or
under applicable State law to enforce against the warrantor (or
service contractor) the obligations of the warranty (or service
contract).
15 U.S.C. § 2301(3) (2000) (bold text supplied). An individual
qualifies as a consumer under the MMWA if he or she meets
any of these three definitions. Ryan v. Am. Honda Motor Co., 896
A.2d 454, 456 (N.J.2006).
Id. at 545-46 (emphasis added).
In Cerasani, the Florida Supreme Court found that the plaintiff was a Category Three
Consumer and had standing to bring a cause of action under the Warranty Act for breach of a
limited warranty because he leased his vehicle and could, therefore, enforce the terms of the
warranty as a result of the lease. /d. Although the Court’s analysis centered on the ability of a
/essee to pursue a claim under the Act, the Court made it clear that there are three (3) categories
of consumers that can assert claims under the Act including buyers of consumer products, such
as in the case at bar. Id. In the case at bar, Defendant cannot contest that Plaintiff is a “buyer”
of a consumer product or a Category One consumer. Defendant also cannot contest that it has
allowed Plaintiff as a Category Three Consumer to enforce the terms of the warranty. As
consumers under the Act, Plaintiff would, therefore, be entitled to enforce the Act’s substantive
provisions including section 2310(e) of the Act discussed below. See Cerasani, supra.
c. In Contrast To Chaurasia V. General Motors Corporation, An Arizona
Decision, The Florida Fourth District Court Of Appeal Has Found That The
Warranty Act Creates An Independent Cause Of Action For Limited
Warranty Claims.
The Fourth District Court of Appeal concluded that the Warranty Act creates an
independent cause of action for a breach of limited warranty. In Rentas v. DaimlerChrysler
Corporation, 936 So.2d 747 (Fla. 4th DCA 2006) the court noted that the plain language of the
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Warranty Act provides for a consumer to bring a claim for damages against a warrantor who fails
“to comply with any obligation under [the MMWA)” or against a warrantor who fails “to comply
with any obligation...under a written warranty, implied warranty or service contract.” Id. at
750.2 The court also opined that: “[a]s the Seventh Circuit explained, the MMWA imposes
minimum standards for certain written warranties and provides a remedy for their breach. The
MMWA also allows ‘consumers to enforce written and implied warranties in federal court,
borrowing state law causes of action.’ /d. “Based upon this language, we hold that the
MMWA does provide an independent federal cause of action for breach of warranty.” Id.
The court determined that “a written warranty as defined under the MMWA does not
require privity.” /d. at 751 (emphasis added). Neither subsections 2301(6)(a) nor (b) require the
written warranty to have been made between the original manufacturer and the eventual
consumer seeking to enforce it. /d. The court ultimately held that the Warranty Act creates a
private federal cause of action for a consumer for breach of a limited warranty on a consumer
good. Id. See also Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918 (9th Cir. 2005).
The Fourth District’s position in Rentas was recently fortified and reiterated in
Rastaedt v. Mercedes Benz USA, LLC, 60 So.3d 41 (Fla. 4th DCA 2011). In Rastaedt, the
plaintiff successfully appealed the manufacturer’s motion for judgment in the pleadings. In
reversing the trial court’s decision to dismiss the plaintiff's complaint, the Rastaedt court heavily
relied on the Rentas decision, holding that Section 2310(d)(1) of the Warranty Act creates an
independent cause of action for breach of a limited warranty. /d. Here, this Court should find
? Defendant may rely on Chaurasia v. General Motors Corporation, 126 P.3d 165 (Ariz. App. 2006) for the
proposition that the substantive provisions of the Act do not apply to limited warranties. Defendant’s reliance is
misplaced as several courts including the Fourth District Court of Appeal and the United States Ninth Circuit Court
of Appeals have reached opposite conclusions. See Rentas v. DaimlerChrysler Corporation, 936 So.2d 747 (Fla. 4th
DCA 2006) and Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918 (9th Cir. 2005). Defendant’s
additional reliance on Chaurasia for the proposition that there is no duty of reasonableness owed under the Act is
belied by the plain language of the Act, Florida law, and case law interpreting the Act. See discussion infra.
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that the instant case is legally and factually analogous to both Rentas and Rastaedt as to warrant
similar consideration.
Til. DEFENDANT’S BREACH OF WRITTEN WARRANTY UNDER THE
WARRANTY ACT
Plaintiff alleges that Defendant breached the written warranty issued with Plaintiffs
purchase of the subject vehicle. Under the Warranty Act, an action for breach of written
warranty arises where there is a defect in the warranted product that a warrantor is unable to
repair after a reasonable number of attempts or a reasonable opportunity. 15 U.S.C. § 2310(e);
Rastaedt v. Mercedes Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). See also Mason v.
Porsche Cars of North America, Inc., 688 So.2d 361 (Fla. 5“ DCA 1997), Soldinger v. Aston
Martin Lagonda of North America, Inc., 1999 WL 756174 (N.D. Ill. 1999) and Marchionna v.
Ford Motor Company, 1995 WL 476591 (N.D.IL. 1995). As in this case, an action for breach of
written warranty arises where there is a refusal to repair a covered item ora failure to adequately
repair a covered item. Ocana v. Ford Motor Company, 992 So.2d 319, 324 (Fla. 3d DCA 2008).
A. Existence Of The Written Warranty.
The Warranty Act defines a “written warranty” as:
(A) Any written affirmation of fact or written promise made in connection
with the sale of a consumer product by a supplier to a buyer which relates
to the nature of the material or workmanship is defect free or will meet a
specified level of performance over a specified period of time, or
(B) Any undertaking in writing in connection with the sale by a supplier of a
consumer product to refund, repair, replace or take other remedial action
with respect to such product in the event that such product fails to meet the
specifications set forth in the undertaking, which written affirmation,
promise, or undertaking becomes part of the basis of the bargain between
a supplier and a buyer for purposes other than resale of such product.
15 U.S.C. § 2301(6)(A) and (B); See also 16 C.F.R. § 701.1(c). The evidence will show that
Plaintiffs received a written warranty from Defendant when they took possession of the vehicle.
B Defects In The Subject Vehicle Can Be Proven Circumstantially.
Plaintiffs can prove the existence of defects in the subject vehicle by several means
including circumstantial evidence. Specifically, Plaintiffs will offer into evidence the repair
receipts from Defendant’s authorized dealers to demonstrate the existence of defects in the
subject vehicle. Further, Plaintiffs will testify as to the malfunctions and non-conformities in the
vehicle. It is well established that the defective condition of an automobile, for purposes of
establishing breach of warranty, can be shown by circumstantial evidence. McCarthy v. Florida
Ladder Co., 295 So.2d 707 (2nd Dist. Fl. 1974) (a defect can be inferred from the fact that a new
product performs in such a manner as to preclude any other reasonable inference which would
suggest that the product was not defective; Ford Motor Co. v. Cochran, 205 So.2d 551 (Fla. 2nd
DCA 1967); Firestone Tire & Rubber Co. v. King, 145 G.A. App. 840, 244 S.E.2d 905 (Ct.
App. Ga 1978); Holcumb y. Cessna Aircraft Co., 439 F.2d 1150 (5 Cir. Fl. 1971) (existence of
a defect can be shown by circumstantial evidence); Severn v. Sperry Corporation, 538 N.W.2d
50 (Ct. App. Mich. 1995) (in actions for breach of warranty, jury may infer existence of
defective condition from circumstantial evidence alone); Ouwenga v. Nu-Way Ag, Inc., 604
N.E.2d 1085 (3rd Dist. Ill. 1992) (it is well settled that the defective condition ofa product can
be shown by circumstantial evidence); Alvarez v. American Isuzu Motors, 321 Ill.App.3d 696,
749 N.E.2d 16 (1st Dist. Ill. 2001) (defect may be proven inferentially by direct or circumstantial
evidence); and 4.4.4. Exteriors Inc. v. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975,
978 (Ind. App. 1981).
c. Expert Testimony Is Not Needed To Prove The Existence Of A Defect.
Plaintiff need not present expert testimony to establish a defect in a product. 4.4.A.
Exteriors Inc. vy. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975, 978 (Ind. App. 1981);
see also, General Motors Corporation v. Zirkel, 613 N.E.2d 30 (S.Ct. Ind. 1993) (expert
testimony not required to prove the existence of a defect in an automobile); Lucas v. Firestone
Tire & Rubber Co., 458 F.2d 495 (Sth Cir. 1972) (plaintiff motorist was not required to establish
by expert testimony, as distinguished from other proof, that the tire was defective); and
Vultaggio v. General Motors Corporation, 145 Wis.2d 874, 429 N.W.2d 93 (Ct. App. Wis.
1988).
Plaintiff, also, need not correctly identify the cause and source of the alleged defects.
LarryJ. Soldinger Assoc., Ltd. v. Aston Martin Lagonda of North Am., Inc., No. 97 C 7792, 1999
WL 756174 (N.D. Ill. 1999). In Soldinger, the court looked to the committee comments of the
Warranty Act and opined:
The warranty requires the purchaser to report all defects. The
defect in the Volante was that the driver's door would not open.
Soldinger reported this to Lake Forest. The court will not read
the Act to require that the purchaser of a vehicle must
correctly identify the cause and source of all automotive
defects. The average consumer should not be expected to
acquire the expertise of an automotive mechanic in order to
receive protection under a written warranty.
Soldinger y. Aston Martin Lagonda of North America, Inc., 1999 WL 756174 at *6 (N.D. Ill)
citing to H.R. REP. NO. 93-1107 (1974) /d. (emphasis added). See also Mason v Porsche Cars
North America, Inc., 688 So.2d 361 (Fla. Dist. Ct. App. 1997) (holding consumer need only
identify effect of defect or malfunction, not its cause); Bobby Jones v. Fleetwood Motor Homes,
127 F.Supp.2d 958 (N.D. Ill. 2000); (expert testimony was not required to prove the existence of
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a defect); MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676, 679 (Pa.Super.
1969) (“Proof of a specific defect in construction or design causing a mechanical malfunction is
not an essential element in establishing breach of warranty”) quoting Greco v. Buccioni
Engineering Co., 283 F. Supp. 978 (W.D.Pa. 1967), aff'd, 407 F.2d 87 (3d Cir. 1969); and 4.4.4.
Exteriors Inc. y. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975, 978 (Ind. App. 1981);
Bruffey Contracting Co. v. Burroughs Corp., 522 F.Supp. 769 (D. Md. 1981) (holding computer
buyer did not have to show the precise cause of a computer’s malfunction to prove breach of
warranty) aff'd 681 F.2d 812 (4% Cir. 1982); Fargo Machine & Tool Co. v Kearney & Trecker
Corp., 428 F. Supp. 364 (E.D. Mich. 1977) (holding buyer did not have burden of showing
precise technical reason for malfunction); Guardian Ins. Co. v Anacostia Chrysler Plymouth, 320
A.2d 315 (D.C. 1974) (holding “a specific defective part or condition need not necessarily be
identified”); Capitol Dodge Sales, Inc. v Northern Concrete Pipe, Inc., 346 N.W.2d 535 (holding
“the overheating [of the engine] is of such significance as to constitute a non-conformity without
evidence as to the specific technical cause thereof”); and Sipes v. General Motors Corp., 946
S.W.2d 143 (Tex. App. 1997) (holding circumstantial evidence of defect is sufficient without
showing underlying cause).
D. Under the Warranty Act and Under Florida Law, a Written Warranty is
Breached Where a Warrantor Fails to Repair After a Reasonable Time or
After Being Afforded a Reasonable Opportunity to Cure.
The plain language of the Warranty Act and case law throughout the nation provide that a
warrantor must effectuate repairs within a “reasonable” amount of time or within a “reasonable”
number of attempts. See 15 U.S.C. § 2310(e). In support of Plaintiffs’ contention that the Act
imposes a duty of reasonableness, Plaintiffs rely on 15 U.S.C. § 2310(e) of the Warranty Act.
To be clear, Plaintiffs do not rely upon § 2304 of the Warranty Act, the only section of the
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Act that applies exclusively to full warranties, to support the incorporation of this reasonableness
standard. As will be demonstrated below, Plaintiffs’ position is in good stead with the majority
of courts of this nation.
E Section 2310(E) Of The Warranty Act Dictates That A Warrantor Must
Effectuate The Obligations Of Its Warranty, IE., Repair, After Being
Afforded A “Reasonable Opportunity” To Do So.
The plain language of the Act makes it clear that a consumer is only required to give a
warrantor a “reasonable” opportunity to cure. See 15 U.S.C. § 2310(e); Rastaedt v. Mercedes
Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). See also Cunningham vy. Fleetwood Homes
of Georgia, Inc., 253 F.3d 611, 618 (11th Cir. 2001) citing § 2310(e) (“First, prior to bringing
suit for breach of warranty, a consumer must give persons obligated under the warranty a
reasonable opportunity to ‘cure’ the failure to comply with the obligations at issue.”).
Accordingly, the incorporation of a “reasonableness” standard is in conformity with the plain
language of the Act. Specifically, section 2310(e) entitled, “Class actions; conditions;
procedures applicable” reads as follows:
No action (other than a class action or an action respecting a
warranty to which subsection (a)(3) of this section applies) may be
brought under subsection (d) of this section for failure to
comply with any obligation under any written or implied
warranty or service contract, and a class of consumers may not
proceed in a class action under such subsection with respect to
such a failure except to the extent the court determines necessary
to establish the representative capacity of the named plaintiffs,
unless the person obligated under the warranty or service
contract is afforded a reasonable opportunity to cure such
failure to comply.
3 Although class actions are discussed in section 2310(e) the section is not limited to just class actions. The title to
section 2310(e) and the plain language of the section as incorporated herein make this clear. The title to section
2310 (e) reads: “Class actions; conditions; procedures applicable.” Each of subjects listed in the title are separated
by semi-colons and the title is not limited to simply class actions.
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15 U.S.C. § 2310(e) (emphasis added).*
When interpreting statutory provisions, a court must first analyze the language of the
statute itself. See State v. Ruiz, 863 So. 2d 1205, 1209 (Fla. 2003); Landreth Timber Co. v.
Landreth, 471 U.S. 681, 684-85, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985); and In re
Maxway Corp., 27 F.3d 980, 982 (4th Cir.1994). “If the statutory language is unambiguous, in
the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily
be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78
L.Ed.2d 17 (1983) quoting United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527,
69 L.Ed.2d 246 (1981).
The Act itself imposes a duty of reasonableness on every written warrantor. As such, the
Act supports the holding that a cause of action for breach of written warranty pursuant to the Act
would accrue when the warrantor fails to repair the product after a reasonable number of
attempts or after being afforded a reasonable opportunity to cure. See 15 U.S.C. § 2310(e);
Rastaedt v. Mercedes Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). Further, the Act
supports the holding that if given a reasonable opportunity to cure a defect a warrantor refuses to
do so, then a cause of action for a breach of warranty claim also accrues. See Ocana v. Ford
Motor Company, 992 So.2d at 322. To hold otherwise would be contrary to the plain language
of the Act.
* As evidenced by the plain language of the statute, Plaintiffs were only required to afford Defendant a reasonable
opportunity to cure. Nowhere in section 2310(e) does it also require that a consumer provide notice to Defendant.
See also discussion infra.
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Should Defendant Rely On Ocana V. Ford Motor Company, It Would
Misstate The Applicable Law By Misconstruing Ocana V. Ford Motor
Company And Ignoring The Applicable Standards Set Forth Under Well-
Settled Florida Case Law In Conformity With 15 U.S.C. § 2310(E), Which
Recognizes A Warrantor Need Only Be Provided A “Reasonable
Opportunity To Cure.”
Plaintiffs anticipate that Defendant will rely on Ocana v. Ford Motor Company in
support of the argument that there is no reasonableness standard with regards to a breach of
warranty action under the Warranty Act. Ocana is neither on point with, nor dispositive to, the
instant matter. In Ocana, a plaintiff brought a cause of action against a car manufacturer for
breach of both an express limited written warranty and an implied warranty. Ocana v. Ford
Motor Company, 992 So.2d 319, 322 (Fla. 34 DCA 2008). There, the appellate court affirmed
the dismissal of the plaintiff's cause of action, opining that a consumer may only recover for a
breach of limited warranty if the manufacturer “refused or failed to adequately repair” the
warranted vehicle. /d.
Perhaps due to the plaintiff's failure to adequately plead the issues in his Complaint and
then frame the issues on appeal, the court in Ocana failed to consider the application of 15
USS.C. § 2310(e) to the limited warranty at issue. Instead the court relied exclusively upon the
language of 15 U.S.C. § 2304, which Plaintiffs recognize only applies to full warranties. Jd.
Importantly, the court in Ocana went to great lengths to emphasize its reliance only on 15 U.S.C.
§ 2304, by stating, “the standards and remedies of section 2304 . . . do not apply to the express
limited warranty in this case.” /d. (emphasis added). The court continued, “because Ocana
erroneously elected to confine his limited express warranty claim for recovery to rise or fall
on the basis of whether §2304 is incorporated into express limited warranties, we affirm the
dismissal with prejudice of this count of his complaint. /d.
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Due to the Ocana plaintiff's reliance on only 15 U.S.C. § 2304 in both his complaint and
briefs before the court, the plaintiff there failed to recognize the application of 15 U.S.C. §
2310(e) to limited warranties. As a result, the court also failed to address §2310(e) and
concluded that limited warranties are only subject to the standard of refusal or adequate repair.
Jd. Unlike the plaintiff in Ocana, Plaintiffs herein do not argue that his claims are brought
pursuant to § 2304 of the Act.
More specifically and to reiterate previous points, Plaintiffs rely on 15 U.S.C. § 2310(e)
of the Warranty Act. Plaintiffs do not rely upon § 2304 of the Warranty Act, which Plaintiffs
concede does not apply to limited warranties, but applies exclusively to full warranties.
Significantly, Plaintiffs’ Complaint, which lays out the allegations asserted against Defendant,
specifically and purposefully omits direction to 15 U.S.C. § 2304. Rather, Plaintiffs precisely
refer to 15 U.S.C. § 2310(e), stating:
qs. Manufacturer was unable and/or failed to adequately repair the defects in
the Accord as provided in Manufacturer’s warranty after being afforded a
reasonable opportunity to cure pursuant to 15 U.S.C. § 2310(e).
(See Plaintiffs’ Complaint at 418). Notwithstanding these allegations, and unlike the plaintiff in
Ocana, Plaintiffs here pled with particularity facts to support Defendant’s failure to adequately
repair, the standard enunciated by Ocana. Plaintiffs explicitly pled the following:
qs. Plaintiffs provided Manufacturer, through its authorized dealership
network, sufficient opportunities to repair the Accord.
416. Manufacturer was unable and/or failed to adequately repair the defects in
Plaintiffs’ Accord as provided in Manufacturer’s warranty.
417. The limited repair or replacement remedy contained with Manufacturer’
warranty failed of its essential purpose pursuant to F.S.A. § 672.719(2)
due to Manufacturer’s failure to repair the Accord within a reasonable
time.
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418 Manufacturer was unable and/or failed to adequately repair the defects in
the Accord as provided in Manufacturer’s warranty after being afforded a
reasonable opportunity to cure pursuant to 15 U.S.C. § 2310(e).
q19 Plaintiffs justifiably lost confidence in the Accord’s safety and/or
reliability, and said defects have substantially impaired the value of the
Accord to Plaintiffs.
420 Said defects could not have reasonably been discovered by Plaintiffs prior
to Plaintiffs’ acceptance of the Accord.
q21 Per the directive in Manufacturer’s written warranty as described above,
Manufacturer designated its authorized dealers as the entities to receive
notice of defects in the Accord for purposes of performing repairs on the
vehicle.
423 As a result of these defects and Manufacturer’s failure to timely repair the
same, Plaintiff notified Manufacturer of the defects in writing prior to
filing this instant lawsuit.
(See Plaintiffs Complaint at J 15-21, 23).
Unlike the plaintiff in Ocana, Plaintiffs here pled facts to support the conclusion that the
subject vehicle was not adequately repaired. As detailed above, Plaintiffs specifically detailed
that despite bringing the Accord to the authorized dealership; Defendant was unable and/or failed
to repair it. Therefore, Defendant’s reliance on Ocana is flawed, as the facts of this case and law
cited are readily distinguishable from Ocana.
G. The Incorporation Of A Reasonableness Standard In The Warranty Act Is
Supported By Court’s Throughout The Nation, Including The State Of
Florida.
Florida courts have justifiably incorporated a “reasonableness” standard on a warrantor’s
repair obligations. See Gates v. Chrysler Corp., 397 So.2d 1187, 1189 (Fla. 4th DCA 1981). In
Gates the Fourth DCA correctly noted:
We come, then, to the third possibility which is the crux of Count
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II, Appellant contends, and we think correctly, that a cause of
action exists under Magnuson-Moss where there has been a breach
of warranty which has not been remedied although the warrantor
has been given a reasonable opportunity to cure the breach.
Id. (emphasis added). See also Mason y. Porsche Cars of North America, Inc., 688 So.2d 361
(Fla. Sth DCA 1997) (incorporating a duty of reasonableness to effectuate repairs by noting that
a warrantor must remedy defects or malfunctions in a “reasonable number of attempts”). Finally,
it has long been recognized by the Florida Court of Appeals that a car manufacturer does not
have an indefinite amount of time to effectuate repairs to an automobile. The Third DCA in
Orange Motors of Coral Gables v. Dade County Dairies, 258 So.2d 319, 321 (3rd DCA Fla.
App. 1972) made this proposition clear when it opined:
The Florida law in this field is consistent with the law throughout
the United States. “After the purchase of an automobile, the same
should be put in good running condition; that is the seller does not
have an unlimited time for the performance of the obligation to
replace and repair 321 parts. The buyer of an automobile is not
bound to permit the seller to tinker with the article indefinitely in
the hope that it may ultimately be made to comply with the
warranty. 46 Am.Jur. Sales s 732; 77 C.J.S. Sales s 340. At some
point in time, if major problems continue to plague the automobile,
it must become obvious to all people that a particular vehicle
simply cannot be repaired or parts replaced so that the same is
made free of defect.
Courts throughout the nation hold in conformity with Florida courts that a reasonableness
standard exists under the Act for “limited” warranty claims. In fact, The United States Sixth
Circuit Court of Appeals in Kuns v. Ford Motor Co., 13-3364, 2013 WL 6068459 (6th Cir. Nov.
19, 2013), recently noted:
To state a claim under the MMWA, a plaintiff must demonstrate that (i) the
item at issue was subject to a warranty; (ii) the item did not conform to the
warranty; (iii) the seller was given reasonable opportunity to cure any
defects; and (iv) the seller failed to cure the defects within a reasonable
time or a reasonable number of attempts. Indeed, the requirement that a
16
warrantor have an opportunity to cure is codified at section § 2310(e),
which states that “no action...may be brought under subsection (d) of this
section for failure to comply with any objection under any written or
implied warranty...unless the person obligated under the warranty...is
afforded a reasonable opportunity to cure such failure to comply.
Id. at *4 (emphasis added).
In addition, The United States Seventh Circuit Court of Appeals in Anderson v. Gulf
Stream Coach, Inc., similarly held that, “To bring an action under§ 2310(d)(1), the consumer
must give the warrantor a reasonable opportunity to cure its failure to comply with an obligation
under any written or implied warranty.” Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775,
781 (7th Cir. 2011). See also Pearson vy. DaimlerChrysler, 349 Ill.App.3d 688, 813 N.E.2d 230
(Ct. App. Ill. 2004) (looking to section 2-719(2) of the UCC to incorporate a duty of
reasonableness on DaimlerChrysler Corporation’s limited “repair” remedy)°; Jones v. Fleetwood
Motor Homes, 127 F. Supp.2d 958, 963-64 (N.D. Ill. 2000) (describing the inquiry as focusing
on “whether the number of attempts is unreasonable”); Webco Industries, Inc. v. Thermatool
Corp., 278 F.3d 1120, 1131 (10th Cir. 2002) (explaining that under Michigan law pertaining to
“repair or replace” warranties, seller is obligated to effect successful repairs “within a reasonable
time”); Arabian Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 486 (8th Cir.
2002) (applying Nebraska law) (invoking UCC § 2-719(2) and observing that “warranty’s
limited remedy provision failed in its essential purpose” when effective repair did not occur
“within a reasonable time after a defect is discovered”); Bishop Logging Co. v. John Deere
Indus. Equipment Co., 317 S.C. 520, 455 S.E.2d 183, 191 (S.C. App. 1995) (“Where a seller is
given a reasonable chance to correct defects and the equipment still fails to function properly, the
> We note that the Official Comment to UCC § 2-719 states: “[I]t is of the very essence of a sales contract that at
least minimum adequate remedies be available... [U]nder subsection (2), where an apparently fair and reasonable
clause because of circumstances fails in its essential purpose or operates to deprive either party of the substantial
value of the bargain, if must give way to the general remedy provisions of this Article.”
17
buyer is deprived of the benefits of the limited remedy and it therefore fails of its essential
purpose.”); Volkswagen of America, Inc. v. Novak, 418 So.2d 801, 804 (Miss. 1982) (automobile
warranty failed of its essential purpose because manufacturer cannot “continue indefinitely to
repair an automobile which is patently defective”); Ford Motor Co. v. Gunn, 123 Ga. App. 550,
551, 181 S.E.2d 694, 696 (1971) (“it is the refusal to remedy within a reasonable time or lack of
success in the attempts to remedy which ... constitute a breach of warranty”); and see Annot.,
Construction and Effect of New Motor Vehicle Warranty Limiting Manufacturer’s Liability to
Repair or Replacement of Defective Parts, 2 ALR4th § S[b], at 593-599 (1980) (citing cases);
Goren, Buyer’s Right to Revoke Acceptance Against The Automobile Manufacturer For Breach
of Its Continuing Warranty of Repair or Replacement, 7 Ga. L. Rev. 711, 717-718 (1973); 67A
Am Jur 2d, Sales § 924, at 328 (1985) (“[R]epair or replacement of defective parts must take
place within a reasonable time after the warrantor has been given an opportunity to remedy the
defect, or else the warranty will be held to have been broken.”) (describing warranties
accompanying motor vehicle sales).
This very proposition was espoused in Florida by the Fourth District Court of Appeals in
Rastaedt v. Mercedes Benz USA, LLC, 60 So.3d 41 (Fla. 4th DCA 2011). There the court
widened the chasm between Ocana and the instant case, stating quite nonchalantly that “[Section
2310(e) of The Warranty Act], entitled ‘Class actions, conditions, procedures applicable,”
establishes as a precondition to suit, that an individual must give the warrantor reasonable
opportunity to cure the alleged defect. oo Id. at 47, In Rastaedt, the defendant, another
automobile manufacturer, unsuccessfully relied on Ocana in attempting to dismiss the plaintiffs
complaint. The Court in Rastaedt went to great lengths to distinguish Ocana, a case brought
under section 2304 of the Warranty Act, from the facts and law upon which it was called to
18
opine. The Rastaedt court noted that the plaintiff, like Plaintiffs herein, alleged in her complaint
that “[a]s a direct and proximate result of Manufacturer’s failure to comply with its written,
warranty, Plaintiff has suffered damages and, in accordance with 15 U.S.C. § 2310(d)(1),
Plaintiff is entitled to bring suit for damages and other legal and equitable relief.” Jd. at 47. The
court then held that because the claim was brought under section 2310, and not section 2304,
that the statutory language of section 2310, which requires a potential plaintiff to give a
warrantor “a reasonable opportunity to cure the alleged defect,” controlled. /d. Accordingly, and
appropriately, the Rastaedt court did not follow Ocana because the incorporation of a
“reasonableness” standard is in conformity with the plain language of the Act. This court should
find that the instant case is factually and legally analogous to Rastaedt to the extent that
deviation from Rastaedt would not be justified.
H. The Warranty Act’s Incorporation Of The Uniform Commercial Code Also
Imposes On Defendant A Duty To Repair Within A Reasonable Amount Of
Time.
A duty of reasonableness is owed by a warrantor to effectuate timely repairs where a
“repair or replace” warranty is given, signifying the importance of section 2-719(2) of the
Uniform Commercial Code.° Like Defendant’s limited warranty, new-car warranties are sold
“with a provision limiting the liability of the manufacturer or seller to repair or replacement of
defective parts.” Annot., Construction and Effect of New Motor Vehicle Warranty Limiting
©The Warranty Act has long been held to incorporate state law remedies into causes of action under the Warranty
Act. See MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (Sth Cir. 1979) (“T]he legislative history clearly
implies that a resort to state law is proper in determining the applicable measure of damages under the Act”), and
see Am Jur 2d New Topic Service, Consumer Product Warranty Acts § 47 (1984) (“The applicable law for the
determination of damages under the Magnuson-Moss Warranty Act can be found by reference to state law”), Walsh
v. Ford Motor Co., 807 F.2d 1000, 1016 (D.C. Cir. 1986) (“state warranty law lies at the base of all warranty
claims under Magnuson-Moss”), cert. Denied, 482 U.S. 915 (1987); Lara v. Hyundai Motor America, 331 Il.
App. 3d 53, 63 (Ct. App. III. 2002) (“damages will be available to plaintiff pursuant to the UCC”); and Bartow v.
Ford Motor Company, 342 Ill. App. 3d 480 (Ct. App. III. 2003) (“[w]here the Act does not conflict with state law
governing the sales of consumer products, state law--the second tier--then governs”).
19
Manufacturer’s Liability to Repair or Replacement of Defective Parts, 2 ALR4th 576, 580
(1980). The “sole obligation or liability of the warrantor under the warranty is the repair or
replacement of defective parts.” Id.
As it is literally written, the standard new car warranty only requires the manufacturer to
undertake to perform a repair or replacement of parts (without charge to the buyer) whenever it is
called upon to do so as regards a defective condition in the vehicle associated with the materials
in the product or the way it was put together. The warranty, when construed literally, would not
be breached if, for example, a buyer tendered for repair his car’s defective engine to the
warrantor a thousand times, provided that the warrantor attempted to repair the car’s engine each
time, and provided it did so without charging for the repair during the warranty period.
It is important to remember that this was the way the automobile manufacturers in
America intended for the warranty to be understood. It was a “limited” warranty, one permitted
by Uniform Commercial Code § 2-719(1)(a), which states that a seller may limit the buyer’s
remedies to the “repair or replacement of non-conforming goods or parts.”’ The history of the
new car warranty has been one of judicial constructions that aim at making the warranty conform
to the reasonable expectations of buyers. See generally Goren, Buyer’s Right to Revoke
Acceptance Against The Automobile Manufacturer For Breach of Its Continuing Warranty of
Repair or Replacement, 7 Ga. L. Rev. 711, 719 (1973) (“These courts have effectively construed
the parts warranty as one of performance and have extinguished the limiting aspects originally
intended by the warrantor.”).
7 The warranty was originally drafted in the 1960°s by the Automobile Manufacturers’ Association and subsequently
adopted, with minor variations, by all U.S. car makers. For a discussion of the history of the origins of the standard
automobile “repair or replace” warranty, see Goren, Buyer’s Right to Revoke Acceptance Against The Automobile
Manufacturer For Breach of lis Continuing Warranty of Repair or Replacement, 7 Ga. L. Rey. 711, 712 & n. 2
(1973).
20
John Goren accurately summarized the judicial treatment of the limited automobile
materials and workmanship warranty when he stated as follows:
The new car warranty essentially provides that the manufacturer
warrants the vehicle against defects in material and workmanship
for a limited period of time and that the manufacturer at its own
option will repair or replace any parts found to be defective. The
warranty includes disclaimer and limitation of remedies provisions
which state that repair or replacement is expressly in lieu of all
other warranties and
Preview
Filing # 62102313 E-Filed 09/27/2017 07:39:48 PM. IN THE CIRCUIT COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 16-001745-CA SCOTT TINGLEY AND BLANCA TINGLEY, Plaintiffs, Vv. TOYOTA MOTOR SALES USA INC, Defendant. / PLAINTIFFS’ TRIAL BRIEF I NATURE OF THE CASE The claim at issue in this lawsuit is Plaintiffs’ claim against Defendant for breach of an express warranty on the vehicle brought under the federal Magnuson-Moss Warranty Act. The Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seg., (“Warranty Act”) provides to consumers a private right of action against manufacturers who fail to comply with the terms of written warranties.! The Warranty Act was enacted on July 4, 1975. The Act came into being when President Johnson on February 6, 1968 created a “Task Force on Appliance Warranties and Service.” See H. R. Rep. No. 93-1107, at 24 (1974), reprinted in 1974 U.S.C.C.A.N. 7702, 7707. President Nixon, a few months after he took office, followed the previous administration in making the issue of protecting citizens receiving warranties a priority. /d. at 25, 1974 US.C.C.A.N. 7702, 7707. ' Section 2310(d)(1) of the Act provides: “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under ... a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). 1 What prompted the executive branch of government to act was a rising tide of consumer complaints, many of which involved the warranties that automobile sellers were supplying. /d. at 26, 1974 U.S.C.C.A.N. 7702, 7708. An FTC investigation found that warrantors were not living up to their promises, and it issued a 1968 report confirming that fact. /d. at 27, 1974 U.S.C.C.A.N. 7702, 7707. Two months later President Johnson’s Task Force issued its report, which was based upon a study of over two hundred warranties from fifty manufacturers. /d., 1974 U.S.C.C.A.N. 7702, 7709. See also Denicola, The Magnuson-Moss Warranty Act: Making Consumer Product Warranty A Federal Case, 44 Fordham L. Rev. 273 (1975). The study concluded that “[t]he underlying and basic problem which must be resolved is how to persuade or compel a manufacturer and the retailer to provide the purchaser of a major appliance with a meaningful guarantee which they will honor in both letter and spirit subsequent to the sale.” 1974 U.S.C.C.A.N. 7702, 7709. The study also found that companies were aware of consumer dissatisfaction, yet had taken no action to resolve customer discontent. See 1974 U.S.C.C.A.N. 77102, 7706 (recognizing the “growing source of resentment [in] the inability to get many [warranted products] properly repaired and the developing awareness that the paper with the filigree border bearing the bold caption ‘Warranty’ or ‘Guarantee’ was often of no greater worth than the paper it was printed on”). In light of the above, President Nixon proposed in March of 1971 a Fair Warranty Disclosure Act to Congress under which the FTC would be vested with the power to protect consumers who receive warranties from the sellers of appliances, automobiles and other products. With public interest growing markedly, and with the investigations of the FTC and the Task Force completed, Congress began to debate the legislation. From this debate, the Warranty Act was born. IL. THE FLORIDA SUPREME COURT AND FOURTH DISTRICT COURT OF APPEAL HAVE RECOGNIZED A CONSUMER’S RIGHT TO PURSUE A BREACH OF “LIMITED” WARRANTY CLAIM AS IN THE CASE AT BAR The plain language of the Warranty Act, its legislative history and years of case law interpreting the Act, all demonstrate that the Act and its substantive obligations apply to limited warranties, the same type of warranty that Plaintiff alleges to have been breached in this case. A. The Plain Language Of The Warranty Act Allows Consumers To Enforce “Limited” Warranties As Opposed To Only “Full” Warranties. Pursuant to the plain language of the Warranty Act, the Act applies to all warranties, not just “full” warranties. Section 2310(d) of the Warranty Act, 15 U.S.C. § 2310(d), provides: [A] consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and any other legal and equitable relief. ..[Emphasis added.] The Warranty Act does not indicate that only full warranties are covered by the Warranty Act. Rather, the plain language of the Warranty Act makes it clear that all written warranties which would include “limited” warranties are covered by the act. The Warranty Act applies to all warranties as is explained by the definition of warranty as set forth in the act. Specifically, section 2301(6) of the Warranty Act defines the term “written warranty” as: [A]ny written affirmation of fact or promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking. 15 U.S.C. § 2301(6). Therefore, the plain language of the Warranty Act makes it clear that “limited” warranties are covered by the Act. Since Defendant’s warranty is an undertaking to repair or take other remedial action, it qualifies as a written warranty covered by the Warranty Act and the Act’s substantive requirements of section 2310(e) discussed below must also apply. B The Florida Supreme Court In American Honda Motor Company, Inc. v. Cerasani, Recognized That A Consumer May Pursue A Cause Of Action For Breach Of A Limited Warranty Under The Magnuson-Moss Warranty Act. The Supreme Court of Florida held in American Honda Motor Company, Inc. v. Cerasani, 955 So.2d 543 (Fla. April 12, 2007) that a consumer ofa vehicle has standing to bring a lawsuit for breach of a /imited written warranty under the Warranty Act. The Court made clear that there are three (3) categories of consumers that can assert claims under the Act, including buyers of consumer products such as in the case at bar. /d. In reaching its conclusion, the Court noted that the Warranty Act was enacted to expand consumer protection and stated the following: Congress enacted the MMWA to enhance the enforceability of warranties on consumer products and protect the “ultimate user of the product.” Cerasani, 916 So.2d at 845 (quoting O'Connor v.. BMW of N. Am., LLC, 905 So.2d 235 (Fla. 2d DCA 2005)). The MMWA authorizes a lawsuit for damages and other equitable relief by “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract.” 15 U.S.C. § 2310(d)(1) (2000). The MMWA's definition of “consumer” is critical in that only a person or entity defined as a consumer may bring a cause of action under the Act. To qualify as a consumer who may file suit under the Act, a person must come within one of the three alternative categories of consumer: The term “consumer” means [Category One] a buyer (other than for purposes of resale) of any consumer product, [Category Two] any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to 4 the product, and [Category Three] any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract). 15 U.S.C. § 2301(3) (2000) (bold text supplied). An individual qualifies as a consumer under the MMWA if he or she meets any of these three definitions. Ryan v. Am. Honda Motor Co., 896 A.2d 454, 456 (N.J.2006). Id. at 545-46 (emphasis added). In Cerasani, the Florida Supreme Court found that the plaintiff was a Category Three Consumer and had standing to bring a cause of action under the Warranty Act for breach of a limited warranty because he leased his vehicle and could, therefore, enforce the terms of the warranty as a result of the lease. /d. Although the Court’s analysis centered on the ability of a /essee to pursue a claim under the Act, the Court made it clear that there are three (3) categories of consumers that can assert claims under the Act including buyers of consumer products, such as in the case at bar. Id. In the case at bar, Defendant cannot contest that Plaintiff is a “buyer” of a consumer product or a Category One consumer. Defendant also cannot contest that it has allowed Plaintiff as a Category Three Consumer to enforce the terms of the warranty. As consumers under the Act, Plaintiff would, therefore, be entitled to enforce the Act’s substantive provisions including section 2310(e) of the Act discussed below. See Cerasani, supra. c. In Contrast To Chaurasia V. General Motors Corporation, An Arizona Decision, The Florida Fourth District Court Of Appeal Has Found That The Warranty Act Creates An Independent Cause Of Action For Limited Warranty Claims. The Fourth District Court of Appeal concluded that the Warranty Act creates an independent cause of action for a breach of limited warranty. In Rentas v. DaimlerChrysler Corporation, 936 So.2d 747 (Fla. 4th DCA 2006) the court noted that the plain language of the 5 Warranty Act provides for a consumer to bring a claim for damages against a warrantor who fails “to comply with any obligation under [the MMWA)” or against a warrantor who fails “to comply with any obligation...under a written warranty, implied warranty or service contract.” Id. at 750.2 The court also opined that: “[a]s the Seventh Circuit explained, the MMWA imposes minimum standards for certain written warranties and provides a remedy for their breach. The MMWA also allows ‘consumers to enforce written and implied warranties in federal court, borrowing state law causes of action.’ /d. “Based upon this language, we hold that the MMWA does provide an independent federal cause of action for breach of warranty.” Id. The court determined that “a written warranty as defined under the MMWA does not require privity.” /d. at 751 (emphasis added). Neither subsections 2301(6)(a) nor (b) require the written warranty to have been made between the original manufacturer and the eventual consumer seeking to enforce it. /d. The court ultimately held that the Warranty Act creates a private federal cause of action for a consumer for breach of a limited warranty on a consumer good. Id. See also Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918 (9th Cir. 2005). The Fourth District’s position in Rentas was recently fortified and reiterated in Rastaedt v. Mercedes Benz USA, LLC, 60 So.3d 41 (Fla. 4th DCA 2011). In Rastaedt, the plaintiff successfully appealed the manufacturer’s motion for judgment in the pleadings. In reversing the trial court’s decision to dismiss the plaintiff's complaint, the Rastaedt court heavily relied on the Rentas decision, holding that Section 2310(d)(1) of the Warranty Act creates an independent cause of action for breach of a limited warranty. /d. Here, this Court should find ? Defendant may rely on Chaurasia v. General Motors Corporation, 126 P.3d 165 (Ariz. App. 2006) for the proposition that the substantive provisions of the Act do not apply to limited warranties. Defendant’s reliance is misplaced as several courts including the Fourth District Court of Appeal and the United States Ninth Circuit Court of Appeals have reached opposite conclusions. See Rentas v. DaimlerChrysler Corporation, 936 So.2d 747 (Fla. 4th DCA 2006) and Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918 (9th Cir. 2005). Defendant’s additional reliance on Chaurasia for the proposition that there is no duty of reasonableness owed under the Act is belied by the plain language of the Act, Florida law, and case law interpreting the Act. See discussion infra. 6 that the instant case is legally and factually analogous to both Rentas and Rastaedt as to warrant similar consideration. Til. DEFENDANT’S BREACH OF WRITTEN WARRANTY UNDER THE WARRANTY ACT Plaintiff alleges that Defendant breached the written warranty issued with Plaintiffs purchase of the subject vehicle. Under the Warranty Act, an action for breach of written warranty arises where there is a defect in the warranted product that a warrantor is unable to repair after a reasonable number of attempts or a reasonable opportunity. 15 U.S.C. § 2310(e); Rastaedt v. Mercedes Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). See also Mason v. Porsche Cars of North America, Inc., 688 So.2d 361 (Fla. 5“ DCA 1997), Soldinger v. Aston Martin Lagonda of North America, Inc., 1999 WL 756174 (N.D. Ill. 1999) and Marchionna v. Ford Motor Company, 1995 WL 476591 (N.D.IL. 1995). As in this case, an action for breach of written warranty arises where there is a refusal to repair a covered item ora failure to adequately repair a covered item. Ocana v. Ford Motor Company, 992 So.2d 319, 324 (Fla. 3d DCA 2008). A. Existence Of The Written Warranty. The Warranty Act defines a “written warranty” as: (A) Any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or (B) Any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product. 15 U.S.C. § 2301(6)(A) and (B); See also 16 C.F.R. § 701.1(c). The evidence will show that Plaintiffs received a written warranty from Defendant when they took possession of the vehicle. B Defects In The Subject Vehicle Can Be Proven Circumstantially. Plaintiffs can prove the existence of defects in the subject vehicle by several means including circumstantial evidence. Specifically, Plaintiffs will offer into evidence the repair receipts from Defendant’s authorized dealers to demonstrate the existence of defects in the subject vehicle. Further, Plaintiffs will testify as to the malfunctions and non-conformities in the vehicle. It is well established that the defective condition of an automobile, for purposes of establishing breach of warranty, can be shown by circumstantial evidence. McCarthy v. Florida Ladder Co., 295 So.2d 707 (2nd Dist. Fl. 1974) (a defect can be inferred from the fact that a new product performs in such a manner as to preclude any other reasonable inference which would suggest that the product was not defective; Ford Motor Co. v. Cochran, 205 So.2d 551 (Fla. 2nd DCA 1967); Firestone Tire & Rubber Co. v. King, 145 G.A. App. 840, 244 S.E.2d 905 (Ct. App. Ga 1978); Holcumb y. Cessna Aircraft Co., 439 F.2d 1150 (5 Cir. Fl. 1971) (existence of a defect can be shown by circumstantial evidence); Severn v. Sperry Corporation, 538 N.W.2d 50 (Ct. App. Mich. 1995) (in actions for breach of warranty, jury may infer existence of defective condition from circumstantial evidence alone); Ouwenga v. Nu-Way Ag, Inc., 604 N.E.2d 1085 (3rd Dist. Ill. 1992) (it is well settled that the defective condition ofa product can be shown by circumstantial evidence); Alvarez v. American Isuzu Motors, 321 Ill.App.3d 696, 749 N.E.2d 16 (1st Dist. Ill. 2001) (defect may be proven inferentially by direct or circumstantial evidence); and 4.4.4. Exteriors Inc. v. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975, 978 (Ind. App. 1981). c. Expert Testimony Is Not Needed To Prove The Existence Of A Defect. Plaintiff need not present expert testimony to establish a defect in a product. 4.4.A. Exteriors Inc. vy. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975, 978 (Ind. App. 1981); see also, General Motors Corporation v. Zirkel, 613 N.E.2d 30 (S.Ct. Ind. 1993) (expert testimony not required to prove the existence of a defect in an automobile); Lucas v. Firestone Tire & Rubber Co., 458 F.2d 495 (Sth Cir. 1972) (plaintiff motorist was not required to establish by expert testimony, as distinguished from other proof, that the tire was defective); and Vultaggio v. General Motors Corporation, 145 Wis.2d 874, 429 N.W.2d 93 (Ct. App. Wis. 1988). Plaintiff, also, need not correctly identify the cause and source of the alleged defects. LarryJ. Soldinger Assoc., Ltd. v. Aston Martin Lagonda of North Am., Inc., No. 97 C 7792, 1999 WL 756174 (N.D. Ill. 1999). In Soldinger, the court looked to the committee comments of the Warranty Act and opined: The warranty requires the purchaser to report all defects. The defect in the Volante was that the driver's door would not open. Soldinger reported this to Lake Forest. The court will not read the Act to require that the purchaser of a vehicle must correctly identify the cause and source of all automotive defects. The average consumer should not be expected to acquire the expertise of an automotive mechanic in order to receive protection under a written warranty. Soldinger y. Aston Martin Lagonda of North America, Inc., 1999 WL 756174 at *6 (N.D. Ill) citing to H.R. REP. NO. 93-1107 (1974) /d. (emphasis added). See also Mason v Porsche Cars North America, Inc., 688 So.2d 361 (Fla. Dist. Ct. App. 1997) (holding consumer need only identify effect of defect or malfunction, not its cause); Bobby Jones v. Fleetwood Motor Homes, 127 F.Supp.2d 958 (N.D. Ill. 2000); (expert testimony was not required to prove the existence of 9 a defect); MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676, 679 (Pa.Super. 1969) (“Proof of a specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty”) quoting Greco v. Buccioni Engineering Co., 283 F. Supp. 978 (W.D.Pa. 1967), aff'd, 407 F.2d 87 (3d Cir. 1969); and 4.4.4. Exteriors Inc. y. Don Mahurin Chevrolet & Oldsmobile, 429 N.E.2d 975, 978 (Ind. App. 1981); Bruffey Contracting Co. v. Burroughs Corp., 522 F.Supp. 769 (D. Md. 1981) (holding computer buyer did not have to show the precise cause of a computer’s malfunction to prove breach of warranty) aff'd 681 F.2d 812 (4% Cir. 1982); Fargo Machine & Tool Co. v Kearney & Trecker Corp., 428 F. Supp. 364 (E.D. Mich. 1977) (holding buyer did not have burden of showing precise technical reason for malfunction); Guardian Ins. Co. v Anacostia Chrysler Plymouth, 320 A.2d 315 (D.C. 1974) (holding “a specific defective part or condition need not necessarily be identified”); Capitol Dodge Sales, Inc. v Northern Concrete Pipe, Inc., 346 N.W.2d 535 (holding “the overheating [of the engine] is of such significance as to constitute a non-conformity without evidence as to the specific technical cause thereof”); and Sipes v. General Motors Corp., 946 S.W.2d 143 (Tex. App. 1997) (holding circumstantial evidence of defect is sufficient without showing underlying cause). D. Under the Warranty Act and Under Florida Law, a Written Warranty is Breached Where a Warrantor Fails to Repair After a Reasonable Time or After Being Afforded a Reasonable Opportunity to Cure. The plain language of the Warranty Act and case law throughout the nation provide that a warrantor must effectuate repairs within a “reasonable” amount of time or within a “reasonable” number of attempts. See 15 U.S.C. § 2310(e). In support of Plaintiffs’ contention that the Act imposes a duty of reasonableness, Plaintiffs rely on 15 U.S.C. § 2310(e) of the Warranty Act. To be clear, Plaintiffs do not rely upon § 2304 of the Warranty Act, the only section of the 10 Act that applies exclusively to full warranties, to support the incorporation of this reasonableness standard. As will be demonstrated below, Plaintiffs’ position is in good stead with the majority of courts of this nation. E Section 2310(E) Of The Warranty Act Dictates That A Warrantor Must Effectuate The Obligations Of Its Warranty, IE., Repair, After Being Afforded A “Reasonable Opportunity” To Do So. The plain language of the Act makes it clear that a consumer is only required to give a warrantor a “reasonable” opportunity to cure. See 15 U.S.C. § 2310(e); Rastaedt v. Mercedes Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). See also Cunningham vy. Fleetwood Homes of Georgia, Inc., 253 F.3d 611, 618 (11th Cir. 2001) citing § 2310(e) (“First, prior to bringing suit for breach of warranty, a consumer must give persons obligated under the warranty a reasonable opportunity to ‘cure’ the failure to comply with the obligations at issue.”). Accordingly, the incorporation of a “reasonableness” standard is in conformity with the plain language of the Act. Specifically, section 2310(e) entitled, “Class actions; conditions; procedures applicable” reads as follows: No action (other than a class action or an action respecting a warranty to which subsection (a)(3) of this section applies) may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract, and a class of consumers may not proceed in a class action under such subsection with respect to such a failure except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply. 3 Although class actions are discussed in section 2310(e) the section is not limited to just class actions. The title to section 2310(e) and the plain language of the section as incorporated herein make this clear. The title to section 2310 (e) reads: “Class actions; conditions; procedures applicable.” Each of subjects listed in the title are separated by semi-colons and the title is not limited to simply class actions. 11 15 U.S.C. § 2310(e) (emphasis added).* When interpreting statutory provisions, a court must first analyze the language of the statute itself. See State v. Ruiz, 863 So. 2d 1205, 1209 (Fla. 2003); Landreth Timber Co. v. Landreth, 471 U.S. 681, 684-85, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985); and In re Maxway Corp., 27 F.3d 980, 982 (4th Cir.1994). “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983) quoting United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). The Act itself imposes a duty of reasonableness on every written warrantor. As such, the Act supports the holding that a cause of action for breach of written warranty pursuant to the Act would accrue when the warrantor fails to repair the product after a reasonable number of attempts or after being afforded a reasonable opportunity to cure. See 15 U.S.C. § 2310(e); Rastaedt v. Mercedes Benz USA, LLC, WL 1661179 (Fla. 4th DCA 2011). Further, the Act supports the holding that if given a reasonable opportunity to cure a defect a warrantor refuses to do so, then a cause of action for a breach of warranty claim also accrues. See Ocana v. Ford Motor Company, 992 So.2d at 322. To hold otherwise would be contrary to the plain language of the Act. * As evidenced by the plain language of the statute, Plaintiffs were only required to afford Defendant a reasonable opportunity to cure. Nowhere in section 2310(e) does it also require that a consumer provide notice to Defendant. See also discussion infra. 12 Should Defendant Rely On Ocana V. Ford Motor Company, It Would Misstate The Applicable Law By Misconstruing Ocana V. Ford Motor Company And Ignoring The Applicable Standards Set Forth Under Well- Settled Florida Case Law In Conformity With 15 U.S.C. § 2310(E), Which Recognizes A Warrantor Need Only Be Provided A “Reasonable Opportunity To Cure.” Plaintiffs anticipate that Defendant will rely on Ocana v. Ford Motor Company in support of the argument that there is no reasonableness standard with regards to a breach of warranty action under the Warranty Act. Ocana is neither on point with, nor dispositive to, the instant matter. In Ocana, a plaintiff brought a cause of action against a car manufacturer for breach of both an express limited written warranty and an implied warranty. Ocana v. Ford Motor Company, 992 So.2d 319, 322 (Fla. 34 DCA 2008). There, the appellate court affirmed the dismissal of the plaintiff's cause of action, opining that a consumer may only recover for a breach of limited warranty if the manufacturer “refused or failed to adequately repair” the warranted vehicle. /d. Perhaps due to the plaintiff's failure to adequately plead the issues in his Complaint and then frame the issues on appeal, the court in Ocana failed to consider the application of 15 USS.C. § 2310(e) to the limited warranty at issue. Instead the court relied exclusively upon the language of 15 U.S.C. § 2304, which Plaintiffs recognize only applies to full warranties. Jd. Importantly, the court in Ocana went to great lengths to emphasize its reliance only on 15 U.S.C. § 2304, by stating, “the standards and remedies of section 2304 . . . do not apply to the express limited warranty in this case.” /d. (emphasis added). The court continued, “because Ocana erroneously elected to confine his limited express warranty claim for recovery to rise or fall on the basis of whether §2304 is incorporated into express limited warranties, we affirm the dismissal with prejudice of this count of his complaint. /d. 13 Due to the Ocana plaintiff's reliance on only 15 U.S.C. § 2304 in both his complaint and briefs before the court, the plaintiff there failed to recognize the application of 15 U.S.C. § 2310(e) to limited warranties. As a result, the court also failed to address §2310(e) and concluded that limited warranties are only subject to the standard of refusal or adequate repair. Jd. Unlike the plaintiff in Ocana, Plaintiffs herein do not argue that his claims are brought pursuant to § 2304 of the Act. More specifically and to reiterate previous points, Plaintiffs rely on 15 U.S.C. § 2310(e) of the Warranty Act. Plaintiffs do not rely upon § 2304 of the Warranty Act, which Plaintiffs concede does not apply to limited warranties, but applies exclusively to full warranties. Significantly, Plaintiffs’ Complaint, which lays out the allegations asserted against Defendant, specifically and purposefully omits direction to 15 U.S.C. § 2304. Rather, Plaintiffs precisely refer to 15 U.S.C. § 2310(e), stating: qs. Manufacturer was unable and/or failed to adequately repair the defects in the Accord as provided in Manufacturer’s warranty after being afforded a reasonable opportunity to cure pursuant to 15 U.S.C. § 2310(e). (See Plaintiffs’ Complaint at 418). Notwithstanding these allegations, and unlike the plaintiff in Ocana, Plaintiffs here pled with particularity facts to support Defendant’s failure to adequately repair, the standard enunciated by Ocana. Plaintiffs explicitly pled the following: qs. Plaintiffs provided Manufacturer, through its authorized dealership network, sufficient opportunities to repair the Accord. 416. Manufacturer was unable and/or failed to adequately repair the defects in Plaintiffs’ Accord as provided in Manufacturer’s warranty. 417. The limited repair or replacement remedy contained with Manufacturer’ warranty failed of its essential purpose pursuant to F.S.A. § 672.719(2) due to Manufacturer’s failure to repair the Accord within a reasonable time. 14 418 Manufacturer was unable and/or failed to adequately repair the defects in the Accord as provided in Manufacturer’s warranty after being afforded a reasonable opportunity to cure pursuant to 15 U.S.C. § 2310(e). q19 Plaintiffs justifiably lost confidence in the Accord’s safety and/or reliability, and said defects have substantially impaired the value of the Accord to Plaintiffs. 420 Said defects could not have reasonably been discovered by Plaintiffs prior to Plaintiffs’ acceptance of the Accord. q21 Per the directive in Manufacturer’s written warranty as described above, Manufacturer designated its authorized dealers as the entities to receive notice of defects in the Accord for purposes of performing repairs on the vehicle. 423 As a result of these defects and Manufacturer’s failure to timely repair the same, Plaintiff notified Manufacturer of the defects in writing prior to filing this instant lawsuit. (See Plaintiffs Complaint at J 15-21, 23). Unlike the plaintiff in Ocana, Plaintiffs here pled facts to support the conclusion that the subject vehicle was not adequately repaired. As detailed above, Plaintiffs specifically detailed that despite bringing the Accord to the authorized dealership; Defendant was unable and/or failed to repair it. Therefore, Defendant’s reliance on Ocana is flawed, as the facts of this case and law cited are readily distinguishable from Ocana. G. The Incorporation Of A Reasonableness Standard In The Warranty Act Is Supported By Court’s Throughout The Nation, Including The State Of Florida. Florida courts have justifiably incorporated a “reasonableness” standard on a warrantor’s repair obligations. See Gates v. Chrysler Corp., 397 So.2d 1187, 1189 (Fla. 4th DCA 1981). In Gates the Fourth DCA correctly noted: We come, then, to the third possibility which is the crux of Count 15 II, Appellant contends, and we think correctly, that a cause of action exists under Magnuson-Moss where there has been a breach of warranty which has not been remedied although the warrantor has been given a reasonable opportunity to cure the breach. Id. (emphasis added). See also Mason y. Porsche Cars of North America, Inc., 688 So.2d 361 (Fla. Sth DCA 1997) (incorporating a duty of reasonableness to effectuate repairs by noting that a warrantor must remedy defects or malfunctions in a “reasonable number of attempts”). Finally, it has long been recognized by the Florida Court of Appeals that a car manufacturer does not have an indefinite amount of time to effectuate repairs to an automobile. The Third DCA in Orange Motors of Coral Gables v. Dade County Dairies, 258 So.2d 319, 321 (3rd DCA Fla. App. 1972) made this proposition clear when it opined: The Florida law in this field is consistent with the law throughout the United States. “After the purchase of an automobile, the same should be put in good running condition; that is the seller does not have an unlimited time for the performance of the obligation to replace and repair 321 parts. The buyer of an automobile is not bound to permit the seller to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. 46 Am.Jur. Sales s 732; 77 C.J.S. Sales s 340. At some point in time, if major problems continue to plague the automobile, it must become obvious to all people that a particular vehicle simply cannot be repaired or parts replaced so that the same is made free of defect. Courts throughout the nation hold in conformity with Florida courts that a reasonableness standard exists under the Act for “limited” warranty claims. In fact, The United States Sixth Circuit Court of Appeals in Kuns v. Ford Motor Co., 13-3364, 2013 WL 6068459 (6th Cir. Nov. 19, 2013), recently noted: To state a claim under the MMWA, a plaintiff must demonstrate that (i) the item at issue was subject to a warranty; (ii) the item did not conform to the warranty; (iii) the seller was given reasonable opportunity to cure any defects; and (iv) the seller failed to cure the defects within a reasonable time or a reasonable number of attempts. Indeed, the requirement that a 16 warrantor have an opportunity to cure is codified at section § 2310(e), which states that “no action...may be brought under subsection (d) of this section for failure to comply with any objection under any written or implied warranty...unless the person obligated under the warranty...is afforded a reasonable opportunity to cure such failure to comply. Id. at *4 (emphasis added). In addition, The United States Seventh Circuit Court of Appeals in Anderson v. Gulf Stream Coach, Inc., similarly held that, “To bring an action under§ 2310(d)(1), the consumer must give the warrantor a reasonable opportunity to cure its failure to comply with an obligation under any written or implied warranty.” Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 781 (7th Cir. 2011). See also Pearson vy. DaimlerChrysler, 349 Ill.App.3d 688, 813 N.E.2d 230 (Ct. App. Ill. 2004) (looking to section 2-719(2) of the UCC to incorporate a duty of reasonableness on DaimlerChrysler Corporation’s limited “repair” remedy)°; Jones v. Fleetwood Motor Homes, 127 F. Supp.2d 958, 963-64 (N.D. Ill. 2000) (describing the inquiry as focusing on “whether the number of attempts is unreasonable”); Webco Industries, Inc. v. Thermatool Corp., 278 F.3d 1120, 1131 (10th Cir. 2002) (explaining that under Michigan law pertaining to “repair or replace” warranties, seller is obligated to effect successful repairs “within a reasonable time”); Arabian Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 486 (8th Cir. 2002) (applying Nebraska law) (invoking UCC § 2-719(2) and observing that “warranty’s limited remedy provision failed in its essential purpose” when effective repair did not occur “within a reasonable time after a defect is discovered”); Bishop Logging Co. v. John Deere Indus. Equipment Co., 317 S.C. 520, 455 S.E.2d 183, 191 (S.C. App. 1995) (“Where a seller is given a reasonable chance to correct defects and the equipment still fails to function properly, the > We note that the Official Comment to UCC § 2-719 states: “[I]t is of the very essence of a sales contract that at least minimum adequate remedies be available... [U]nder subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its essential purpose or operates to deprive either party of the substantial value of the bargain, if must give way to the general remedy provisions of this Article.” 17 buyer is deprived of the benefits of the limited remedy and it therefore fails of its essential purpose.”); Volkswagen of America, Inc. v. Novak, 418 So.2d 801, 804 (Miss. 1982) (automobile warranty failed of its essential purpose because manufacturer cannot “continue indefinitely to repair an automobile which is patently defective”); Ford Motor Co. v. Gunn, 123 Ga. App. 550, 551, 181 S.E.2d 694, 696 (1971) (“it is the refusal to remedy within a reasonable time or lack of success in the attempts to remedy which ... constitute a breach of warranty”); and see Annot., Construction and Effect of New Motor Vehicle Warranty Limiting Manufacturer’s Liability to Repair or Replacement of Defective Parts, 2 ALR4th § S[b], at 593-599 (1980) (citing cases); Goren, Buyer’s Right to Revoke Acceptance Against The Automobile Manufacturer For Breach of Its Continuing Warranty of Repair or Replacement, 7 Ga. L. Rev. 711, 717-718 (1973); 67A Am Jur 2d, Sales § 924, at 328 (1985) (“[R]epair or replacement of defective parts must take place within a reasonable time after the warrantor has been given an opportunity to remedy the defect, or else the warranty will be held to have been broken.”) (describing warranties accompanying motor vehicle sales). This very proposition was espoused in Florida by the Fourth District Court of Appeals in Rastaedt v. Mercedes Benz USA, LLC, 60 So.3d 41 (Fla. 4th DCA 2011). There the court widened the chasm between Ocana and the instant case, stating quite nonchalantly that “[Section 2310(e) of The Warranty Act], entitled ‘Class actions, conditions, procedures applicable,” establishes as a precondition to suit, that an individual must give the warrantor reasonable opportunity to cure the alleged defect. oo Id. at 47, In Rastaedt, the defendant, another automobile manufacturer, unsuccessfully relied on Ocana in attempting to dismiss the plaintiffs complaint. The Court in Rastaedt went to great lengths to distinguish Ocana, a case brought under section 2304 of the Warranty Act, from the facts and law upon which it was called to 18 opine. The Rastaedt court noted that the plaintiff, like Plaintiffs herein, alleged in her complaint that “[a]s a direct and proximate result of Manufacturer’s failure to comply with its written, warranty, Plaintiff has suffered damages and, in accordance with 15 U.S.C. § 2310(d)(1), Plaintiff is entitled to bring suit for damages and other legal and equitable relief.” Jd. at 47. The court then held that because the claim was brought under section 2310, and not section 2304, that the statutory language of section 2310, which requires a potential plaintiff to give a warrantor “a reasonable opportunity to cure the alleged defect,” controlled. /d. Accordingly, and appropriately, the Rastaedt court did not follow Ocana because the incorporation of a “reasonableness” standard is in conformity with the plain language of the Act. This court should find that the instant case is factually and legally analogous to Rastaedt to the extent that deviation from Rastaedt would not be justified. H. The Warranty Act’s Incorporation Of The Uniform Commercial Code Also Imposes On Defendant A Duty To Repair Within A Reasonable Amount Of Time. A duty of reasonableness is owed by a warrantor to effectuate timely repairs where a “repair or replace” warranty is given, signifying the importance of section 2-719(2) of the Uniform Commercial Code.° Like Defendant’s limited warranty, new-car warranties are sold “with a provision limiting the liability of the manufacturer or seller to repair or replacement of defective parts.” Annot., Construction and Effect of New Motor Vehicle Warranty Limiting ©The Warranty Act has long been held to incorporate state law remedies into causes of action under the Warranty Act. See MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (Sth Cir. 1979) (“T]he legislative history clearly implies that a resort to state law is proper in determining the applicable measure of damages under the Act”), and see Am Jur 2d New Topic Service, Consumer Product Warranty Acts § 47 (1984) (“The applicable law for the determination of damages under the Magnuson-Moss Warranty Act can be found by reference to state law”), Walsh v. Ford Motor Co., 807 F.2d 1000, 1016 (D.C. Cir. 1986) (“state warranty law lies at the base of all warranty claims under Magnuson-Moss”), cert. Denied, 482 U.S. 915 (1987); Lara v. Hyundai Motor America, 331 Il. App. 3d 53, 63 (Ct. App. III. 2002) (“damages will be available to plaintiff pursuant to the UCC”); and Bartow v. Ford Motor Company, 342 Ill. App. 3d 480 (Ct. App. III. 2003) (“[w]here the Act does not conflict with state law governing the sales of consumer products, state law--the second tier--then governs”). 19 Manufacturer’s Liability to Repair or Replacement of Defective Parts, 2 ALR4th 576, 580 (1980). The “sole obligation or liability of the warrantor under the warranty is the repair or replacement of defective parts.” Id. As it is literally written, the standard new car warranty only requires the manufacturer to undertake to perform a repair or replacement of parts (without charge to the buyer) whenever it is called upon to do so as regards a defective condition in the vehicle associated with the materials in the product or the way it was put together. The warranty, when construed literally, would not be breached if, for example, a buyer tendered for repair his car’s defective engine to the warrantor a thousand times, provided that the warrantor attempted to repair the car’s engine each time, and provided it did so without charging for the repair during the warranty period. It is important to remember that this was the way the automobile manufacturers in America intended for the warranty to be understood. It was a “limited” warranty, one permitted by Uniform Commercial Code § 2-719(1)(a), which states that a seller may limit the buyer’s remedies to the “repair or replacement of non-conforming goods or parts.”’ The history of the new car warranty has been one of judicial constructions that aim at making the warranty conform to the reasonable expectations of buyers. See generally Goren, Buyer’s Right to Revoke Acceptance Against The Automobile Manufacturer For Breach of Its Continuing Warranty of Repair or Replacement, 7 Ga. L. Rev. 711, 719 (1973) (“These courts have effectively construed the parts warranty as one of performance and have extinguished the limiting aspects originally intended by the warrantor.”). 7 The warranty was originally drafted in the 1960°s by the Automobile Manufacturers’ Association and subsequently adopted, with minor variations, by all U.S. car makers. For a discussion of the history of the origins of the standard automobile “repair or replace” warranty, see Goren, Buyer’s Right to Revoke Acceptance Against The Automobile Manufacturer For Breach of lis Continuing Warranty of Repair or Replacement, 7 Ga. L. Rey. 711, 712 & n. 2 (1973). 20 John Goren accurately summarized the judicial treatment of the limited automobile materials and workmanship warranty when he stated as follows: The new car warranty essentially provides that the manufacturer warrants the vehicle against defects in material and workmanship for a limited period of time and that the manufacturer at its own option will repair or replace any parts found to be defective. The warranty includes disclaimer and limitation of remedies provisions which state that repair or replacement is expressly in lieu of all other warranties and