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Jolovitz v. Alfa Romeo
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 174
Docket:	Ken-99-593
Argued:	September 5, 2000	
Decided:	October 19, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.




LESTER T. JOLOVITZ v. ALFA ROMEO DISTRIBUTORS OF NORTH AMERICA et al.


WATHEN, C.J.

	[¶1]  Plaintiff Lester Jolovitz appeals from a judgment entered in the
Superior Court (Kennebec County, Marden, J.) in favor of defendants Alfa
Romeo Distributors of North America and Forest City Chevrolet on Jolovitz's
claims for violation of the Lemon Law, 10 M.R.S.A. §§ 1161-1169 (1997 &
Supp. 1999);  violation of the Unfair Trade Practices Act, 5 M.R.S.A. §§
205A-214 (1989 & Pamph. 1999); and breach of the implied warranty of
merchantability, 11 M.R.S.A. § 2-314 (1995).  Jolovitz also appeals  from the
court's denial of his motion to reconsider the entry of summary judgment on
additional claims for negligence and punitive damages.  Finding no error, we
affirm.
	[¶2]  The facts as developed at trial may be summarized as follows: 
On August 31, 1990, Jolovitz purchased a 1991 Alfa Romeo 164 sedan from
Forest City.  Jolovitz did not experience any problems with the vehicle from
the date of his purchase until April 1991, when he drove his vehicle to
Forest City and complained of steering wheel vibration. Forest City
eliminated the vibration by balancing the car's tires. Jolovitz returned to
Forest City in September 1991, and complained that the vehicle pulled to
the right.  Forest City corrected the problem with a front end alignment.  In
November 1991,  Jolovitz complained that the car was once again pulling to
the side of the road, and Forest City centered the car's steering wheel on
this visit with a so-called "thrust alignment." In the course of doing this
work, a Forest City technician accidently bent the car's tie rods while it was
on the lift.  As a result of the bent tie rods, the car squeaked when driven. 
Jolovitz immediately informed Forest City of the squeaking and the
technician told him he would have to lubricate the bushings.   On his ride
home from Portland to Waterville, the squeaking returned and Jolovitz took
the car to a Midas dealership a few days later.  A Midas technician informed
Jolovitz that the squeak was caused by bent tie rods. Jolovitz returned the
car to Forest City in December 1991, and Forest City replaced the bent tie
rods and the car's rear suspension and, because of these repairs, also
performed a four wheel alignment. 
	[¶3]  In March 1992, Jolovitz drove the car to Florida.  On the last
day of his stay in Florida, Jolovitz detected a strange noise. Jolovitz took the
car to an Alfa Romeo dealer, and a technician told him that the tires were
cupped and needed to be replaced.  After an unsuccessful attempt to get
either Alfa Romeo or Goodyear to pay for new tires, Jolovitz purchased four
new tires.  At the tire store, Jolovitz was informed that one of the wheel
rims was bent, so he purchased a new rim as well.   He then returned to the
Alfa Romeo dealer for a four wheel alignment.  During his trip to Florida,
Jolovitz claims that he detected for the first time a strong smell of gasoline
in the passenger compartment of the car after he had filled the tank.   The
gasoline smell was not present during the rest of his stay in Florida or
during his return drive to Maine.  
	[¶4]  After returning to Maine, Jolovitz wrote a letter to the manager
of Forest City regarding the tire wear and requested that they reimburse
him for the replacement cost.  Alfa Romeo responded to his request by
arranging for Jolovitz to meet with a field representative in April 1992.  At
the time of this inspection, the car's odometer read 18,326 miles. 
According to Jolovitz, he inquired at about this time whether other owners
of the Alfa Romeo 164 had made similar complaints of either alignment
problems or gasoline odor in the passenger compartment and was informed
by Forest City that Alfa Romeo had sent the 164 out with improper
alignment specifications and that dealers were subsequently notified to
change the specs and perform an alignment on all vehicles coming in for
service, but that neither Alfa Romeo nor Forest City had any knowledge of
complaints about gasoline odor.  Jolovitz continued to have alignment and
intermittent gas odor problems during 1992 and 1993.  At that point, with
34,500 miles on the car, he decided not to use it any longer.
	[¶5]  In November 1993, Jolovitz filed a complaint in District Court,
which was dismissed without prejudice, and in December 1993, filed a new
complaint in Superior Court.  The new complaint sought relief pursuant to
the Lemon Law, the Unfair Trade Practices Act, the implied warranty of
merchantability, and the "implied warranty of fitness for a particular
purpose," and for negligence and punitive damages.  All counts were
asserted against both Alfa Romeo and Forest City except for the Lemon Law
count, which was asserted only against Alfa Romeo. Alfa Romeo and Forest
City each moved for summary judgment, and the Superior Court (Alexander,
J.) granted summary judgment in favor of defendants on the counts for
negligence and punitive damages, but denied defendants' motions with
respect to the remaining counts.
	[¶6]  Over several years of discovery, Jolovitz learned that there were
other Alfa Romeo 164 owners who experienced similar odor problems with
their cars.  Sometime in the fall of 1996, Jolovitz received a notice of recall
from Alfa Romeo, informing him of defects in the 164's fuel filler hose.
Jolovitz moved to reopen discovery in October 1996, and the Superior Court
granted the motion to allow Jolovitz to examine issues related to the gas
odor and the recall.  During this stage of discovery, Alfa Romeo provided
Jolovitz with several letters of complaint received from other 164 owners,
all of which described, inter alia, problems with strong, intermittent
gasoline odors entering the passenger compartment.  At the conclusion of
discovery and on the basis of this newly discovered evidence, Jolovitz
moved, inter alia, to reconsider or vacate the prior summary judgment on
the claims of negligence and punitive damages and to amend his complaint
to add punitive damages as an additional element to the Unfair Trade
Practice Act as well as a count of common law fraud and deceit.  The court
denied this motion, Jolovitz moved for reconsideration, and the court again
denied the motion.  Following a bench trial and consideration of post-trial
motions, the court entered judgment for Alfa Romeo and Forest City on all
counts of Jolovitz's complaint.
	[¶7]  Jolovitz argues on appeal that the court erred in finding in
favor of Alfa Romeo on the Lemon Law claim. Maine's "Lemon Law" provides
consumers with a statutory right to have the manufacturer, its agent or
authorized dealer make repairs to a new motor vehicle that does not
conform to all express warranties, provided that the consumer reports the
nonconformity to the manufacturer, agent or dealer within two years of the
date the vehicle is delivered to the consumer.  See 10 M.R.S.A. § 1163(1)
(1997).  If the manufacturer, agent or dealer cannot make the vehicle
conform to its warranty provisions "after a reasonable number of attempts"
and the defect or condition complained of "substantially impairs the use,
safety or value of the motor vehicle," then the manufacturer may replace the
vehicle with a comparable vehicle, provided the consumer agrees, or must
accept the return of the defective vehicle in exchange for a refund.  See id. §
1163(2) (Supp. 1999).  The statute provides a presumption that a reasonable
number of repairs have been attempted if either "[t]he same nonconformity
has been subject to repair 3 or more times" within the shorter of the
warranty term, two years from the date of delivery or 18,000 miles or the
vehicle has been out of service due to repairs for 15 or more business days
within this time.  See id. § 1163(3) (1997).  It is an affirmative defense
under the act that "[a]n alleged nonconformity does not substantially impair
the use, safety or value of the motor vehicle."  See id. § 1164. 
	[¶8]  The court concluded as a preliminary matter that because the
gasoline odor was not reported until the mileage on the car exceeded
18,000, it would consider only "the alignment of the wheels, the defect in
the door and the seat mechanism." The court concluded that these alleged
defects did not "substantially impair" the use, safety or value of the car.  The
court relied on the Oxford American Dictionary (1980) to define impairment
as "damaged or weakened" and "substantial" as "being of considerable
amount of intensity or validity."  Appellate counsel for Jolovitz argues that
the proper standard should be that which we derived from the Uniform
Commercial Code: "Any defect that shakes the buyer's faith or undermines
his confidence in the reliability and integrity of the purchased item is
deemed to work a substantial impairment of the item's value." See Inniss v.
Methot Buick-Opel, Inc., 506 A.2d 212, 219 (Me. 1986) (citing 11 M.R.S.A.
§ 2-608(1)). This argument, however, was made for the first time during
oral argument on appeal and was not preserved. See Chadwick-BaRoss, Inc.
v. Martin Marietta Corp., 483 A.2d 711, 717 (Me. 1984).  In any event, we
find no error in the objective standard used by the court. The subjective
standard proposed by Jolovitz may be appropriate in other contexts, but it is
not contemplated by the Lemon Law.  A nonconformity that resists repair
after three attempts will trigger replacement or refund only if the
manufacturer is unable to demonstrate objectively that the nonconformity
has little effect on use, safety or value.  A troublesome appearance item, for
example, could shake the confidence of some consumer but could have little
or no effect on use, safety or value.  Thus, the court did not err in denying
the Lemon Law claim.
	[¶9]  Jolovitz also contends that the court erred in finding in favor of
Alfa Romeo and Forest City on his claim that they violated the Unfair Trade
Practices Act, 5 M.R.S.A. §§ 207-214 (1989 & Pamph. 1999).{1} First, he
argues they violated UTPA because they failed to provide Lemon Law
disclosure notices to him at the time of purchase. The Lemon Law, however,
does not mandate that the manufacturer provide Lemon Law disclosures and
thus any failure of the manufacturer and, particularly the dealer, to make
such disclosure was not a violation of the statute and, accordingly, was not
prima facie evidence of an unfair or deceptive trade practice.  Next, he
argues they violated UTPA because they misrepresented that there were no
other customer complaints relating to gasoline odor.  The court made no
finding that a representative of Alfa Romeo or Forest City made false
statements of fact regarding the existence of other 164 owners with
gasoline odor problems.  The court noted that the only expert evidence
offered in the case suggested that the odor problems experienced by
Jolovitz were caused during refueling or by inappropriate replacement of the
fuel cap.  Because Jolovitz failed to move for further findings of fact on this
issue, we must assume that the court did not find Jolovitz's evidence of
misrepresentation credible.  See Tarbuck v. Jaeckel, 2000 ME 105, ¶ 25,
752 A.2d 176, 183 n.5.  Thus, we find no error in the court's denial of this
claim.
	[¶10]  We also find no error in the court's judgment in favor of Alfa
Romeo and Forest City on Jolovitz's implied warranty of merchantability
claim. Pursuant to 11 M.R.S.A. §§ 2-314(1) & 2-316(2) (1995), a warranty of
merchantability is implied in a sale of goods if the seller is a merchant in the
goods sold and the warranty of merchantability is not expressly excluded in
the contract. Merchantable goods are goods that are "fit for the ordinary
purposes for which such goods are used."  Id. § 2-314(2)(c). Jolovitz argues
that the "multiple problems" with his Alfa Romeo 164 clearly establish that
it was not fit for its ordinary purpose. He complains that the court "never
entered a direct finding on the implied warranty claim."  The court
specifically rejected Jolovitz's contention that, by itself, the repair history on
his vehicle established the existence of a manufacturing defect.  In the
absence of a manufacturing defect, and given the fact that reported
problems were repaired, replaced, or adjusted, the court found that
Jolovitz's car was fit for its ordinary purpose and thus did not violate the
implied warranty of merchantability.  
	[¶11]  Jolovitz also argues on appeal that the court erred by refusing
to grant relief from the summary judgment order on his counts for
negligence and punitive damages and by denying his request to amend his
complaint to add punitive damages as an additional element of his UTPA
claim and to add a new claim for fraud.  We disagree. Jolovitz failed to make
out a claim for negligence with the newly discovered evidence. Because a
claim for punitive damages will not lie unless the plaintiff receives
compensatory or actual damages based on the defendant's tortious conduct,
see DiPietro v. Boynton, 628 A.2d 1019, 1025 (Me. 1993), without a
meritorious claim for negligence, the newly discovered evidence could not
support an independent claim for punitive damages. Likewise, because the
UTPA claim is also without merit, the newly discovered evidence could not
support a claim of punitive damages, even if a UTPA claim could otherwise
support a claim for punitive damages.  In addition, the court denied the
motion to amend because it found that there was no evidence that the
condition underlying the recall for the fuel filler hose existed in this case or
that such failure to disclose, if any, is related to any condition for which
plaintiff seeks recovery. Jolovitz failed to inform the court as to the basis of
the claim of fraud. Although the motion to amend set forth facts that could
support a finding of affirmative misrepresentation, it failed to provide any
evidence regarding the cause of the intermittent gas odor or how it exposed
him to an unreasonable danger.   Thus, we cannot find that the court clearly
and manifestly abused its discretion and that the amendment is necessary to
prevent injustice. See Bahre v. Liberty Group, Inc., 2000 ME 75, ¶¶ 7, 11,
750 A.2d 558, 560, 561; Thibodeau v. Cole, 1999 ME 150, ¶ 5, 740 A.2d
40, 42.   
	The entry is:
					Judgment affirmed.

Attorneys for plaintiff: Harold J. Friedman, Esq. (orally) Melinda P. Shain, Esq. Friedman Babcock & Gaythwaite P O Box 4726 Portland, ME 04112-4726 Attorneys for defendants: John A Graustein, Esq. (orally) Deirdre M. Smith, Esq. Drummond Woodsum & MacMahon P O Box 9781 Portland, ME 04104-5081 (for Alfa Romeo) James C. Hunt, Esq. (orally) Robinson Kriger & McCallum P O Box 568 Portland, ME 04112-0568 (for Forest City)
FOOTNOTES******************************** {1} . The Unfair Trade Practices Act, 5 M.R.S.A. §§ 207-214 (1989 & Pamph. 1999) provides a private remedy to consumers of personal, family or household goods, services or property who suffer "any loss of money or property, real or personal" as a result of an unfair or deceptive act or practice committed in the conduct of trade. See id. §§ 207 (1989) & 213 (Pamph. 1999).