General Motors Corp. v. Zirkel

602 N.E.2d 1069, 1992 Ind. App. LEXIS 1704, 1992 WL 336062
CourtIndiana Court of Appeals
DecidedNovember 19, 1992
DocketNo. 48A05-9108-CV-273
StatusPublished
Cited by1 cases

This text of 602 N.E.2d 1069 (General Motors Corp. v. Zirkel) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Motors Corp. v. Zirkel, 602 N.E.2d 1069, 1992 Ind. App. LEXIS 1704, 1992 WL 336062 (Ind. Ct. App. 1992).

Opinions

BARTEAU, Judge.

General Motors Corporation (“GM”) appeals the trial court’s judgment in favor of Dorothy and Jack Zirkel (the “Zirkels”) on their complaint for damages under Ind. Code 24-5-13-1 et seq., commonly known as the Indiana Lemon Law. We restate the issues on appeal as:

1. Whether the evidence supports the trial court’s conclusion that the Zirkels’s car has a nonconformity which was subjected to repair at least four times and which continues to exist;
2. Whether the trial court erred in calculating the amount of the refund; and
3. Whether the evidence supports the amount awarded as attorney fees.
We reverse.

FACTS

Dorothy and Jack Zirkel purchased a new 1988 Cadillac Seville from Ed Martin Cadillac-Oldsmobile, Inc. (“Ed Martin”), an authorized General Motors dealer, on August 22, 1988. From the date of purchase through February, 1989, the Zirkels brought the car back to Ed Martin at least twenty times because of dissatisfaction with the brakes. Invoices show that the brakes were repaired on September 23, 1988 and October 12, 1988. On those two occasions, the Zirkels’s complained that the brakes were “pulsating” to a stop. The problem was diagnosed as excessive wear on the brakes, perhaps from the driver “riding” the brakes. The brake rotors were refaced and the brake pads were scuffed. These were the only two repairs involving the brakes until February, 1989 when the car was involved in an accident.

The accident occurred when. Dorothy Zirkel attempted to stop the car at a light and rear-ended the car in front of hers. At the time of the accident Dorothy did not mention to anyone, including the police officer who took the accident report, that she failed to stop because the brakes did not work. Sometime after the accident and while the car was in the body shop Dorothy did report to Ed Martin and to GM that she believed she had the accident because the brakes did not work. Consequently, when the car was sent to the service department after having the body work done, Ron Hinton, Ed Martin’s service manager, had the brakes checked. Based on his conversation with Dorothy and prior to checking the car he made a notation on the invoice sheet that the brakes would not stop the car.

Upon inspecting the brakes, the service technician found them to be in good working condition and not in need of repair. However, Hinton instructed the technician to replace the rotors, the pads, and the brake booster assembly in an attempt to make the Zirkels happy with the car. Hinton explained that he had the rotors and pads replaced because rust had built up while the car was in the shop for the body work. Because the rotors and pads had been refaced and scuffed twice before, Hinton believed it would be safer to replace them rather than to reface and scuff them again. The booster assembly was replaced with a 1989 booster assembly as a measure to make the pedal have a “harder” feel because Dorothy Zirkel had made complaints that the brakes sometimes felt “soft.”

While the car was in the shop, Ed Martin gave the Zirkels a 1989 Cadillac to drive which the Zirkels took to Florida for vacation. The Zirkels had no complaint with the brakes on the loaner car. The brake replacement was made on their car on March 31, 1989 and the car was then re[1071]*1071turned to the Zirkels when they returned from Florida in May. Mrs. Zirkel said the car was returned to Ed Martin about six times after the February accident. On June 5, 1989 the car was taken to Ed Martin with the complaint that the brakes were "hard, sometimes spongy." The invoice notes that the service technician was not able to duplicate the complaint and no repairs were made to the brakes. The Zirk-els brought the car in again on July 11, 1989 with the complaint "brake pedal sometimes soft." Again, the complaint could not be duplicated when the car was taken for a test drive and no problems with the brakes were found. No other invoices evidence that the car was brought in for repair work. Ed Martin prepares invoices only when repair work is performed. Invoices for June 5 and July 11 were prepared even though no repairs were made to the brakes because repairs unrelated to the brakes were performed. After returning the car on July 11 the Zirkels were tired of dealing with the car and left it at Ed Martin. It was still at the dealer's at the time of trial.

The only evidence that the brakes were defective came from the Zirkels. Each of the experts that testified said that the excessive wear of the rotors and pads within the first two months was typical of a driver adjusting to the feel of the four wheel dise braking system of the Cadillac and that while the brakes may feel different or "funny" to the driver, the condition did not affect the braking ability of the car.

STANDARD OF REVIEW

When a party has requested specific findings of fact and conclusions of law under Ind. Trial Rule 52(A), as GM has here, the reviewing court cannot affirm the judgment on any legal basis; rather, the court must determine whether the trial court's findings are sufficient to support the judgment. Vanderburgh County Bd. of Comm'r v. Rittenhouse (1991), Ind.App., 575 N.E.2d 663, 665. In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions of law entered on the findings. DeHaon v. DeHaan (1991), Ind.App., 572 N.E.2d 1315, 1320, reh'g denied. Too, findings of fact may be assailed as clearly erroneous when the record lacks any facts or reasonable inferences to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id.

LEMON LAW

The Indiana Motor Vehicle Act, commonly known as the Lemon Law, is found at IC. 24-5-18-1 et seq. Lemon Laws have been enacted across the country in response to the problem "that onee the buyer has bought a lemon, the dealer or manufacturer, for any number of reasons, is either unwilling or unable to take all steps necessary toward giving the buyer what the dealer and the manufacturer promised: a defect free, safe and reliable automobile reasonably worth its purchase price." Harold Greenberg, The Indiana Motor Vehicle Protection Act of 1988: The Real Thing for Sweetening the Lemon or Merely a Weak Artificial Sweetener?, 22 Ind.L.Rev. 57, 58 (1989). Generally, the Indiana Lemon Law provides that if a motor vehicle suffers from a "nonconformity" within the first eighteen months or 18,000 miles the manufacturer must correct the "nonconformity." If the "nonconformity" cannot be corrected, the buyer is entitled to a replacement vehicle or a refund.

Relevant to the precise issues raised in this case, the Indiana Lemon Law provides that:

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Related

General Motors Corp. v. Zirkel
613 N.E.2d 30 (Indiana Supreme Court, 1993)

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Bluebook (online)
602 N.E.2d 1069, 1992 Ind. App. LEXIS 1704, 1992 WL 336062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-motors-corp-v-zirkel-indctapp-1992.