Opinion
21-P-402
03-03-2022
Donald CAMERON v. FCA US LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Donald Cameron, appeals from the award of summary judgment in favor of the defendant, FCA US LLC (FCA), concerning the plaintiff's claim for violation of the Massachusetts lemon law, G. L. c. 90, § 7N 1/2, as well as violation of G. L. c. 93A, § 2. On appeal, Cameron argues the judge erred in: (1) requiring him to present expert testimony on the defects of his vehicle in order to survive summary judgment on the lemon law claim, and (2) allegedly failing to address Cameron's other claim for relief under G. L. c. 93A, § 2. We affirm.
Cameron filed a motion for summary judgment, which the defendant timely opposed. FCA filed a cross motion for summary judgment. However, Cameron did not file an opposition to that motion, and instead, relied solely upon his own motion for summary judgment papers. FCA argues, without citation to case law, that Cameron's failure to file an opposition to FCA's cross motion renders his appellate arguments waived. We disagree. As the moving party on the cross motion for summary judgment, FCA still bore the burden of establishing that there exists no genuine issue of material fact, entitling it to judgment as matter of law. See Drakopoulos v. United States Bank Nat'l Ass'n, 465 Mass. 775, 777 (2013). This burden exists even where the motion for summary judgment is unopposed. See Stop & Shop Supermkt. Co. v. Loomer, 65 Mass. App. Ct. 169, 171-172 (2005). While it certainly would have been prudent for Cameron to file an opposition to FCA's cross-motion for summary judgment, we decline to treat Cameron's appellate arguments as waived, and we instead reach their merits.
1. Lemon law claim. The Massachusetts lemon law states that "[i]f a motor vehicle does not conform to any applicable express or implied warranty, and the consumer reports the nonconformity to the manufacturer of the vehicle, its agent or its authorized dealer during the term of protection, the manufacturer, its agent or its authorized dealer shall effect such repairs as are necessary to conform the vehicle to such warranty." G. L. c. 90, § 7N 1/2 (2). Where the manufacturer, its agent or authorized dealer fails to remedy the nonconformity after a "reasonable number of attempts," the lemon law requires the manufacturer to accept return of the vehicle from the consumer, and offer either a replacement vehicle, or a refund for the defective vehicle. See G. L. c. 90, § 7N 1/2 (3).
Cameron initially alleged that a squeaking noise from the steering column constituted a nonconformity, as defined by G. L. c. 90, § 7N 1/2 (1), entitling him to a refund for his vehicle. However, it is undisputed that the vehicle's steering column squeak was ultimately resolved after three repair attempts, and more importantly, the State-certified arbitrator found that the squeak did not substantially impair the use, market value, or safe operation of the vehicle. Where the steering column squeak did not substantially impair the use, market value, or safe operation of the vehicle, it does not meet the statutory requirements for a nonconformity under the lemon law. See G. L. c. 90, § 7N 1/2 (1).
The arbitrator found, and Cameron's counsel conceded at oral argument, that the steering column squeak had been fully resolved.
Moreover, the findings of fact from the State-certified arbitrator are prima facie evidence that the requirements for violation of the lemon law have not been satisfied. See Ford Motor Co. v. Barrett, 403 Mass. 240, 242 (1988). See also G. L. c. 90, § 7N 1/2 (6). While this prima facie evidence does not by itself establish that there exists no genuine issue of material fact, the burden was on Cameron to provide additional evidence to rebut such prima facie evidence and demonstrate that the squeak substantially impaired the use, market value, or safe operation of the vehicle. See Ford Motor Co., supra at 243. Cameron provided no such additional evidence. Therefore, the award of summary judgment to FCA was proper with respect to this issue. See id.
Cameron's only evidence to rebut the arbitrator's findings of fact consisted of his own self-serving and conclusory affidavit. The affidavit made no mention, and therefore provided no proof, as to how the steering column squeak impaired the use, market value, or safe operation of the vehicle, as required by G. L. c. 90, § 7N 1/2 (1). Accordingly, the affidavit was insufficient to create a genuine issue of material fact on this issue. See rule 56 (e) (nonmoving party must set forth specific facts showing there exists "a genuine issue for trial").
Cameron also alleged that the vehicle suffered from an ignition defect, which ultimately caused the vehicle to shut down during operation and collide with a guardrail. On appeal, he claims that the award of summary judgment to FCA on this issue based on Cameron's lack of expert testimony, was improper. We disagree.
Cameron relies upon Gliottone v. Ford Motor Co., 95 Mass. App. Ct. 704, 709-710 (2019), for the proposition that no plaintiff claiming a violation of the Massachusetts lemon law need present expert testimony to survive a motion for summary judgment. However, this reliance is misplaced. In Gliottone, we held that the inquiry into whether expert testimony is required to demonstrate a nonconformity in the vehicle is one that is fact dependent. See id. at 709. Indeed, in some circumstances, an expert is not required where "a rational juror, without an expert, can understand the facts necessary to decide whether a plaintiff has demonstrated an actionable defect or malfunction." Id. Therefore, while expert testimony is "not always" necessary to demonstrate a nonconformity, there are circumstances in which a plaintiff may, in fact, be required to present expert testimony to demonstrate a defect in his or her vehicle. See id. See also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 717 (1991) (plaintiff needed expert testimony to demonstrate car suffered from defect at time of manufacture or sale that caused "unexplained fire").
In Gliottone, the plaintiff's truck suffered from a defect where the vehicle "was unable to start, stalled, and lost power." 95 Mass. App. Ct. at 709. However, such defects began only three weeks after the date of purchase, when the vehicle "had at most 1,461 miles on it." Id. Here, Cameron's alleged ignition issue began several months after his lease began, and only after the vehicle had suffered from a previous steering column squeak, which had been the subject of three prior repairs. Cameron's affidavit, which vaguely claimed that an ignition defect caused the vehicle to shut down and crash, was not sufficient to permit a rational juror, without the aid of expert testimony, to "clearly ... conclude that the vehicle was defective or had a malfunction when sold" (emphasis added). See id. at 709.
More importantly though, and contrary to Cameron's claim, the judge did not grant summary judgment solely for a failure to present expert testimony. The Massachusetts lemon law statute unequivocally requires the consumer to provide the manufacturer with a reasonable number of attempts to repair the vehicle's nonconformity prior to the consumer being entitled to seek a refund. See G. L. c. 90, § 7N 1/2 (3). Here, the judge properly concluded that FCA was not provided with a reasonable number of attempts to repair the nonconformity, as the ignition issue was the subject of only one repair, and the technician was unable to duplicate and experience the defect. Compare Gliottone, 95 Mass. App. Ct. at 705-707 (plaintiff survived summary judgment on lemon law claim where vehicle was subject of numerous repairs, in which technicians were able to duplicate and observe vehicle's alleged defect on numerous occasions).
At bottom, the mere occurrence of automotive problems is not sufficient to demonstrate a defect in the vehicle at the time it was purchased. See Walsh v. Atamian Motors, Inc., 10 Mass. App. Ct. 828, 829 (1980). Where the alleged ignition defect was not subject to a reasonable number of repair attempts, Cameron's lemon law claim concerning the ignition defect, like his claim concerning the steering column squeak, fails as matter of law. See G. L. c. 90, § 7N 1/2 (4). Therefore, we discern no error in the judge's award of summary judgment in favor of FCA.
2. General Laws c. 93A claim. Finally, Cameron claims that the grant of summary judgment was improper because the judge failed to address the merits of his claim for relief under G. L. c. 93A, § 2. We disagree.
It is well settled that where a plaintiff's G. L. c. 93A claim is wholly derivative of a meritless statutory or common-law claim, the c. 93A claim must also fail as matter of law. See, e.g., Park Drive Towing, Inc. v. Revere, 442 Mass. 80, 85-86 (2004) (claim for violation of c. 93A for alleged "unfair and deceptive conduct surrounding the breach of contract" must fail as matter of law where no enforceable contract existed between parties); Flemming v. Greystar Mgt. Servs., L.P., 100 Mass. App. Ct. 469, 475 (2021) (where plaintiff could not establish violation of security deposit statute, derivative c. 93A claim also lacked merit); Fernandes v. Rodrigue, 38 Mass. App. Ct. 926, 928 (1995) (c. 93A claim not actionable where it was "absorbed in and vanishe[d] with" meritless negligent misrepresentation claim).
Here, Cameron's c. 93A claim stems entirely from his statutory claim that FCA failed to comply with the requirements of the Massachusetts lemon law. In his complaint, Cameron alleges no unfair or deceptive conduct on the part of FCA other than the alleged failure to comply with the lemon law by neglecting to "make reasonable efforts to inspect, repair, and re-purchase" his vehicle. Therefore, the factual bases of the two claims are so intertwined that the failure of Cameron's lemon law claim is fatal to his c. 93A claim. See Macoviak v. Chase Home Mtg. Corp., 40 Mass. App. Ct. 755, 760 (1996) (plaintiff has "no reasonable expectation of proving a violation of c. 93A" where plaintiff's underlying claim for fraud stemming from inaccurate property appraisal also failed as matter of law).
Therefore, the judge properly granted summary judgment in favor of FCA on the c. 93A claim.
Judgment affirmed.