Opinion
11-P-2121
12-26-2012
MATTHEW FERREIRA v. CHRYSLER GROUP LLC & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Though there is much to commend the argument by the defendant Somerset Auto Group (Somerset) that the indemnity furnished by G. L. c. 93B, § 8(a), as inserted by St. 2002, c. 222, § 3, is not limited to actions sounding in tort, we need not reach the question, since the dismissal of the plaintiff's action against Chrysler, combined with the plaintiff's subsequent voluntary dismissal of his claim against Somerset, foreclosed satisfaction of a necessary predicate erected by the statute to the right of indemnity created thereby: that 'the basis for liability is finally determined by a court to be solely the result of . . . negligence [in the design or manufacture of a new motor vehicle] by manufacturer [sic] or distributor and not in any way the result of any fault or neglect on the part of the motor vehicle dealer.' In the present case, the plaintiff's complaint (fairly read) asserted claims against both Somerset and Chrysler for defects in the new motor vehicle the plaintiff purchased from Somerset, and also alleged that both failed to remedy the defects within a reasonable time. On Chrysler's motion for summary judgment on the plaintiff's complaint, the motion judge dismissed the plaintiff's claims against it, based in significant part on the uncontroverted affidavit of an expert stating that the allegedly defective fuel gauge was 'operating as designed.' The summary judgment record also indicated that Chrysler (through another dealer) had replaced substantially all components of the fuel gauge before the plaintiff brought the vehicle to Somerset with a request for additional repairs, and that Somerset determined (incorrectly and unfairly, the plaintiff claimed) that no further repairs were needed. Following the order allowing Chrysler's motion for summary judgment, the plaintiff voluntarily dismissed his claims against Somerset.
The statute furnishes a right of indemnity for losses arising out of any claim 'predicated upon the negligent design or manufacture of a new motor vehicle, or any part or component thereof.' A claim that a product is defective typically encompasses such a claim, regardless whether it uses the term 'negligence.' Such a claim may, however, be framed as a breach of warranty claim rather than a tort, and must be so framed if economic loss (loss of the defective product or use thereof) is the only damage claimed. See Bay-State Spray & Provincetown Steamship, Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 109-110 (1989). The construction of the statute Chrysler Group LLC (Chrysler) urges would significantly undermine a primary purpose of the statute. See Tober Foreign Motors, Inc. v. Reiter Oldsmobile, Inc., 376 Mass. 313, 319-320 (1978).
Under our view of the case, we likewise need not address another defense raised by Chrysler on which the motion judge did not comment: that its contractual assumption of liability under 'Lemon Laws' from its predecessor corporation does not require it to be treated as the 'manufacturer' of motor vehicles produced by the predecessor entity, for purposes of G. L. c. 93B, § 8(a).
The plaintiff is not a party to this appeal. Only the summary judgment pertaining to the cross claims is at issue.
As a consequence of the dismissal of the plaintiff's claims against both Chrysler and Somerset, there was no final judicial determination of the relative contribution of either to liability for the claims asserted by the plaintiff, except for the determination that Chrysler was not liable for any loss. Accordingly, the statutory predicate to the application of G. L. c. 93B, § 8(a), has not been met.
The cases cited by Somerset in its reply brief are not to the contrary. Both involved a common-law indemnity claim, rather than a claim under G. L. c. 93B, § 8. See Fireside Motors, Inc. v. Nissan Motor Corp., 395 Mass 366, 370 (1985); Santos v. Chrysler Corp., 430 Mass. 198, 217 (1999). In this appeal, Somerset relies solely on its rights under the statute, and asserts no claim at common law or under its franchise agreement.
Summary judgment on cross claims affirmed.
By the Court (Berry, Green & Meade, JJ.),