George A. Pickering, Inc. v. Blue Hill Lincoln-Mercury, Inc.

1984 Mass. App. Div. 145, 1984 Mass. App. Div. LEXIS 77
CourtMassachusetts District Court, Appellate Division
DecidedMay 31, 1984
StatusPublished
Cited by3 cases

This text of 1984 Mass. App. Div. 145 (George A. Pickering, Inc. v. Blue Hill Lincoln-Mercury, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George A. Pickering, Inc. v. Blue Hill Lincoln-Mercury, Inc., 1984 Mass. App. Div. 145, 1984 Mass. App. Div. LEXIS 77 (Mass. Ct. App. 1984).

Opinion

Silva, J.

This is an action arising out of the sale of a 1981 Lincoln Mark IV sedan. The complaint sets forth four (4) separate causes of action. Count I seeks money damages for an alleged breach of the implied warranty of merchantability, G.L.c. 106, §2-314. Count II seeks a revocation of acceptance of the contract pursuant to G.L.c. § 2-608 and a return of the purchase price of Eighteen Thousand Three Hundred and Seventy-Five Dollars ($18,375.00). Counts III and IV both allege violations of G.L.c. 93A, §§9 and 11.

A finding was entered for the plaintiff in the sum of Four Thousand Five Hundred Dollars ($4,500.00) oncounts I and II, and triple damages of Thirteen Thousand Five Hundred Dollars ($13,500.00) plus attorney’s fees of Five Thousand Seven Hundred and Fifty Dollars ($5,750 00, on count III, for a total of $19,250.00.

Since all of the counts arose from the same transaction, recovery was restricted to count III. Subsequently, the defendant filed motions for a new trial or in the alternative to amend judgment and to dismiss, all of which were denied. The award of attorney’s fees was made after a separate hearing.

[146]*146The trial judge made the following findings of fact and conclusions of law.

1. On or about August 9,1980, the Ford Motor Company caused to be shipped to the defendant, Blue Hill Lincoln Mercury, Inc., a new 1981 Lincoln Mark IV series, Sedan, Serial Number 1MRBP96F-3BY602347.
2. The defendant corporation is engaged in the business of selling new and used motor vehicles with principal offices located in Canton, Massachusetts.
3. During the first week of September 1980, said motor vehicle arrived at the defendant’s place of business in an undamaged condition.
4. Thereafter, the Lincoln was placed by the defendant in its outside lot adjacent to its showroom.
5. Shortly thereafter, while said vehicle was so situated, it was vandalized along with several other similarly situated new vehicles.
6. The damage consisted of severe gouging and scratching of certain painted surfaces of the vehicle, namely, the rear deck (trunk) lid, the right rear quarter panel, the right front fender, the left rear quarter panel and the left door.
7. The defendant after discovery, promptly, notified the Canton Police and its insurance carrier.
8. On or about October 29, 1980, the defendant delivered said vehicle to Automotive-Specialties Auto Body of Hyde Park, Massachusetts, for repair of the gouged and scratched surfaces.
9. Thereafter, the vehicle was returned to the defendant’s lot and placed in the new car showroom for October 31,1980.
10. On November 10, 1980, the plaintiff, in the person of its president, went to the defendant’s showroom to purchase a new luxury vehicle. Upon inspection of the vehicle, the plaintiffs officer lifted the hood and noticed (a) fresh tear of paint. Upon inquiring, he was told that the paint was factory fresh and would never need repainting.
11. On November 10, 1980, the plaintiff purchased said vehicle paying after discount by the defendant of $2,286.00, $17,500.00 for same, plus a sales tax of $875.00. Before leaving with the new purchase, the salesman was informed of paint peeling around the edges of the lettering on the trunk and more peeling at joints and chrome trim areas. The salesman informed the plaintiff, ‘Don’t take the vehicle to the car wash, wash by hand.’
12. Between November 12, 1980 and March 10,1981, the plaintiff returned the vehicle to the defendant for new car warranty work on approximately five occasions. That among the complaints were various chrome trim and lettering falling from the vehicle and peeling paint.
13. That on each occasion when the plaintiff complained of peeling paint, the plaintiff was informed that the paint was, factory fresh, clear finish paint,’ was highly scratch resistant, and would never need waxing. The defendant, through its agents, added, ‘nothing done to the paint job since it left the factory.’ The only action taken by the defendant with respect to the peeling paint was to use “touch-up’ paint in February of 1981 on the affected areas.
14. On or about the first of March 1981, the plaintiff consulted with [147]*147one, Robert Crosby, owner of Body Craft, Inc. with twelve years of experience in the field of automotive repair and restoration and was informed by Mr. Crosby upon inspection that, ‘the car had been repainted, that the entire car, save for the roof, had been repaired’ and that “whoever repainted, did not sand close to the molding and around the script lettering, the repaint is dead dried and has resulted in a dull finish.’
15. That as a result of Mr. Crosby’s findings, the plaintiff arranged a meeting at the offices of the defendant on March 10,1981. It was at this meeting that the plaintiff was informed of the events surrounding the damage to the vehicle and its subsequent repainting in October of
1980. The defendant after first representing that only two or three panels had been repainted, later admitted that five panels had been repainted, but at all times denied “the entire vehicle’ save for the roof had been repainted. The defendant offered to repaint the vehicle to the plaintiff’s satisfaction together with a car to use during repair, at the close of the meeting.
16. That within twenty-four hours after the meeting of March 10, 1981, the plaintiff consulted with his counsel and caused to be sent to the defendant a letter of revocation dated April 23,1981, .. . which alleged non-conformity based upon, ‘body’ damage resulting in paint-peeling and substantial impairment of value.
17. That on April 30, 1981, the defendant responded in writing, (defendant’s exhibit #3) herein incorporated by reference, by its attorney, denying that the vehicle sustained ‘body’ damage prior to the sale and denying non-conformity substantially impairing value and rejecting the revocation of acceptance. However, the defendant did offer, “to remedy any painting problem to your client’s (plaintiffs) satisfaction and to supply another vehicle while any necessary work was being performed,’ ‘a reiteration of the offer made at the conclusion of the March 10,1981 meeting.’
18. Subsequently, on May 5,1981, the plaintiff caused to be sent to the defendant a written demand for relief under Chapter 93A, setting forth substantially the same complaints as set forth in its letter of revocation of April 23,1981.
19. On May 12, 1981, the defendant responded,... in writing, making the following tender of settlement, ‘to remedy any painting defect found to exist upon inspection ... without cost to your client’s (plaintiff’s) satisfaction, and to supply a substitute vehicle to your client (plaintiff) while all necessary work is being performed.’
20. That on August 6,1981, the plaintiff caused to be filed at the Quincy Division of the District Court Department a complaint filed in the instant action.
21. On August 12,1981, the defendant was duly served a summons and a .copy of the complaint.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Richard Lundgren, Inc. v. American Honda Motor Co.
4 Mass. L. Rptr. 477 (Massachusetts Superior Court, 1995)
Rosen v. Gold Star Wholesale Nursery, Inc.
1992 Mass. App. Div. 213 (Mass. Dist. Ct., App. Div., 1992)
Giannattasio v. Bob Brest Buick, Inc.
1987 Mass. App. Div. 217 (Mass. Dist. Ct., App. Div., 1987)

Cite This Page — Counsel Stack

Bluebook (online)
1984 Mass. App. Div. 145, 1984 Mass. App. Div. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-a-pickering-inc-v-blue-hill-lincoln-mercury-inc-massdistctapp-1984.