Dale
W. Pecor v. General Motors Corporation
Supreme Court of Vermont
150 Vt. 23; 547 A.2d 1364; 1988 Vt.
LEXIS 97
May 13, 1988, Opinion filed
This is an appeal by General Motors Corporation (manufacturer)
from a decision of the Washington Superior Court affirming the decision
of the Vermont Motor Vehicle Arbitration Board (Board) in favor of Dale
W. Pecor (consumer). Manufacturer contends that the superior court
erred in affirming the Board's decision because it was unsupported by
adequate findings and therefore exceeded the Board's authority, and
that the remedy ordered by the Board was outside its
authority. We affirm in part and reverse in part.
This action was brought under the New Motor Vehicle Arbitration Act
(Act), 9 V.S.A. §§ 4170-4181, which was passed in order to
facilitate an expeditious and inexpensive resolution of automobile
warranty problems. See 9 V.S.A. § 4170. The Act created the
Vermont Motor Vehicle Arbitration Board. The Board
hears disputes and awards refunds or replacement vehicles where
appropriate. Id. at § Although decisions of the Board are
final, they may be appealed to a superior court.
In the instant case, consumer purchased a new 1985 Chevrolet pickup
truck from an authorized General Motors dealer in South Burlington,
Vermont. Shortly thereafter, he filed a demand for arbitration with the
Board pursuant to 9 V.S.A. § 4173. In this demand the consumer
alleged that the truck did not conform to manufacturer's express
warranties for a variety of reasons. He further alleged that the truck
was out of service for reason of repair for a period of more than
thirty days within the express warranty period. Finally, consumer
alleged that the defects substantially impaired his vehicle's use,
market value and safety. He requested a replacement vehicle as relief
pursuant to 9 V.S.A. § 4172(e).
The Board held a hearing and found that the vehicle was out of service
for more than thirty days and ordered the manufacturer to supply
consumer with a replacement vehicle and consequential damages or, if
unable to do so within twenty-five days, to pay a refund and
consequential damages.
Manufacturer did not comply with the Board's order. Instead, thirty
days after the Board issued its order, manufacturer appealed to the
Washington Superior Court pursuant to 9 V.S.A. § 4176(a)(3). It
argued in the superior court that the Board had exceeded its authority
by awarding consumer alternative relief without first finding that the
truck suffered from existing nonconformities which substantially
impaired the use, market value or safety of the vehicle after repair
had been attempted a reasonable number of times. To support the
necessity of such a finding, manufacturer pointed to the language of 9
V.S.A. § 4172(e):
If, after a reasonable number of
attempts, the manufacturer . . . is
unable to conform the motor vehicle to any express warranty by
repairing or correcting any defect or condition covered by the warranty
which substantially impairs the use, market
value, or safety of the motor vehicle to the consumer, the manufacturer
shall . . . replace the motor vehicle . . . or shall
accept return of the vehicle from the consumer and refund to the
consumer the full purchase price. . . .
The superior court affirmed the Board's finding
that the truck's defects, which included excessive vibration, engine
failure when accelerating, and a power steering unit that had to be
completely replaced twice, were "substantial" within the meaning of 9
V.S.A. § 4172(e). The superior court also held that, because the
Board had found that the repair attempts took an "unreasonable amount
of time," (more than thirty cumulative days) liability attached. This
was a correct interpretation of the Act. See id. at § 4173(a).
The Act sets out two alternative ways of establishing a "presum[ption]
that a reasonable number of attempts have been undertaken to conform a
motor vehicle to the applicable warranties . . . ." First, the
presumption arises if "the same nonconformity . . .
has been subject to repair at least three times . . . and the same
nonconformity continues to exist . . . ." The second way in which a
consumer may establish the
presumption is by demonstrating that "the vehicle is out
of service by reason of repair for a cumulative total of 30 or more
calendar days during the term of the express warranty."
Manufacturer argues that, under either method of establishing a
"reasonable number of repair attempts," it is incumbent upon the
consumer to prove existing nonconformities. We disagree. There is no
language in the statute indicating that a consumer must show "existing
nonconformities" when attempting to establish the presumption that a
reasonable number of repair attempts have been made by virtue of the
vehicle having been out of service for thirty or more days. We think
there is good reason for this omission.
Where, as here, a consumer has successfully shown that the purchased
vehicle was out of service for repairs for thirty or more days, the
statute provides that the vehicle does not conform to its warranty. In
other words, if there were no continuing problems, the automobile would
have been made available for return to consumer prior to the thirtieth
day of repair. *
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* Likewise, where a consumer is able to show that the same
nonconformity has been subject to repair four or more times within the
express warranty term, the continuing existence of a substantial
nonconformity after the third repair attempt will have been proven
under 9 V.S.A. § 4172(g)(1).
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