Pavel v. Winnebago Industries, Inc.

870 P.2d 856, 127 Or. App. 16, 1994 Ore. App. LEXIS 343
CourtCourt of Appeals of Oregon
DecidedMarch 16, 1994
Docket9112-07856; CA A78282
StatusPublished
Cited by2 cases

This text of 870 P.2d 856 (Pavel v. Winnebago Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pavel v. Winnebago Industries, Inc., 870 P.2d 856, 127 Or. App. 16, 1994 Ore. App. LEXIS 343 (Or. Ct. App. 1994).

Opinion

DEITS, P. J.

Plaintiffs appeal from a summary judgment for defendant vehicle manufacturer in this action under ORS 646.315 et seq (the statute). We affirm.

In 1990, plaintiffs purchased a motor home manufactured by defendant. By early May of the following year, the vehicle had spent approximately 100 days in various repair shops for a variety of necessary repairs and corrective measures. Plaintiffs’ attorney wrote defendant and apprised it of that fact, among others. At no time, however, did plaintiffs provide defendant with advance notice of the need to correct any specific defect or condition. Defendant, therefore, contended that plaintiffs had not satisfied the notice requirement of ORS 646.325(3), which it argues is a condition precedent to obtaining remedies under the statute. The trial court agreed, and granted defendant’s motion for summary judgment.

ORS 646.325 makes the “remedy under the provisions of ORS 646.315 to 646.375 * * * available to a consumer if’ a new vehicle does not conform to manufacturer warranties, the consumer reports each nonconformity to the manufacturer or its representatives “for the purpose of repair or correction,” and, under subsection (3):

“The manufacturer has received direct written notification from or on behalf of the consumer and has had an opportunity to correct the alleged defect. ‘Notification’ under this subsection includes, but is not limited to, a request by the consumer for an informal dispute settlement procedure under ORS 646.355.”

ORS 646.335 provides that, if the manufacturer cannot conform the vehicle to express warranties through repairs or corrections of defects or conditions “after a reasonable number of attempts,” it shall replace the vehicle or accept its return and refund the price paid. ORS 646.345(1) creates a presumption that “a reasonable number of attempts have been undertaken” if:

“(a) The same nonconformity has been subject to repair or correction four or more times by the manufacturer or its agent or authorized dealer, but such nonconformity continues to exist; or
[19]*19“(b) The vehicle is out of service by reason of repair or correction for a cumulative total of 30 or more business days.”

However, under ORS 646.345(4):

“In no event shall the presumption described in subsection (1) of this section apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to cure the defect alleged.”1

Defendant argues that ORS 646.325(3) and ORS 646.345(4) are unambiguous, and that plaintiffs did not provide the “prior direct written notification and opportunity to correct” that those provisions require. Plaintiffs’ argument is more complex. They assert:

“Under the [statute], a consumer is entitled to certain remedies if the manufacturer or dealer is unable to conform a new vehicle to any express warranties. The consumer is also entitled to a presumption of an inability to conform if: (a) the same nonconformity has been the subject of repair four or more times but continues to exist, or (b) the vehicle is out of service by reason of repair for 30 or more business days. ORS 646.345(l)(a), (b).
“A consumer is not entitled to any remedies unless the manufacturer has received written notice from or on behalf of the consumer and has had an opportunity to correct ‘the alleged defect.’ ORS 646.325(3). A consumer is not entitled to a presumption of nonconformity to express warranties unless the manufacturer has received ‘prior written notice’ and an opportunity to ‘cure the defect alleged.’ ORS 646.345(4).
“It is illogical and patently absurd to require ‘an opportunity to cure’ and ‘prior written notice’ when the alleged nonconformity is based on a series of repairs totalling 30 or more business days. Such an interpretation is clearly contrary to the remedial purpose of the statute. It leaves the consumer without a practical remedy when a series of correctable defects knocks the vehicle out of service for 30 or more business days. Under this interpretation the only practical way for a consumer to give ‘prior written notice’ plus an [20]*20‘opportunity to cure the defect alleged’ is to write the manufacturer prior to any repairs being done with a blanket statement that the repairs are commencing and may total more than 30 business days within the balance of the warranty period. The [statute] clearly did not intend this result.
“The right of the manufacturer to ‘cure’ applies only to the ‘alleged defect.’ It does not apply to the inability to conform. Nonconformity based on a series of repairs totalling 30 or more business days does not involve an ‘alleged defect.’ Therefore, a consumer seeking a remedy or a presumption based on repairs totalling 30 or more business days need only show direct written notice by the consumer and should not be required to prove an opportunity to cure.” (Emphasis plaintiffs’.)

We are unable to agree with plaintiffs’ reading of the statute. ORS 646.325(3) and ORS 646.345(4) are not ambiguous, and their unambiguous language can be literally applied consistently with the other provisions of the statutory scheme. Plaintiffs’ argument assumes that the objective of the statute is solely to provide consumers with replacement vehicles or refunds. However, as the notice and other provisions make clear, the statute also contemplates an opportunity for the manufacturer to remedy problems with a vehicle.

Plaintiff argues that, unlike prior notice of specific defects or conditions, it is not possible to notify the manufacturer in advance that future repairs will take more than 30 days to accomplish.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
870 P.2d 856, 127 Or. App. 16, 1994 Ore. App. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pavel-v-winnebago-industries-inc-orctapp-1994.