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RONEKER v. KENWORTH TRUCK CO.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


September 18, 1996

EARL RONEKER, Plaintiff,
v.
KENWORTH TRUCK COMPANY and DETROIT DIESEL CORP., Defendants.

The opinion of the court was delivered by: HECKMAN

DECISION AND ORDER

 The parties have consented to have the undersigned conduct all further proceedings in this matter, including entry of judgment, in accordance with 28 U.S.C. ยง 636(c). Defendants Kenworth Truck Company ("Kenworth") and Detroit Diesel Corp. ("DDC") have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendants' motions are granted in part and denied in part.

 BACKGROUND

 Plaintiff is a self-employed truck driver. On December 31, 1992, he purchased a 1993 Kenworth T600B truck, which contained an engine manufactured by DDC. Kenworth's warranty agreement covering the sale provided:

 

Except for engine, engine brake, automatic transmission, tires, wheels and/or rims, and fifth wheel, which are warranted directly to you by their respective manufacturers, . . . [the vehicle] will be free from defects in materials and workmanship during the time and mileage periods set forth in the Warranty Schedule and appearing under normal use and service.

 

* * *

 

Your sole and exclusive remedy against Kenworth . . ., arising from your purchase and use of this vehicle, is limited to the repair or replacement of defective materials or workmanship at Authorized Kenworth Class 8 Dealers . . . .

 

WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY

 

EXCEPT FOR THE ABOVE WARRANTY, KENWORTH . . . MAKE[S] NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND MAKE[S] NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

IT IS AGREED THAT KENWORTH . . . SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES including, but not limited to: loss of income; damage to vehicle, attachments, trailers and cargo; towing expenses, attorney's fees and the liability you may have in respect to any other person.

 (Item 24, Ex. F(B)).

 The DDC warranty covering the engine *fn1" provided:

 

Defects

 

This warranty covers Engine REPAIRS to correct any malfunction occurring during the WARRANTY PERIOD resulting from defects in material or workmanship.

 

Repairs

 

To obtain warranty repairs, you must request the needed repairs within the WARRANTY PERIOD from an authorized DDC service outlet. Only new genuine parts or remanufactured parts or components supplied or approved by DDC will be used. DDC may, at its discretion, replace rather than repair components. . . .

 

* * *

 

Incidental or Consequential Damages

 

DDC is not responsible for incidental or consequential costs or expenses which the owner may incur as a result of a malfunction or failure covered by this warranty, such as communication expenses, meals, lodging, overtime, towing, loss of use of the Engine or vehicle ("downtime"), loss of time, inconvenience, cargo loss or damage, and other similar costs and expenses.

 

Other Limitations

 

The performance of REPAIRS is the exclusive Owner's remedy under this warranty. DDC does not authorize any person to assume or create for it any other obligation or liability in connection with the Engine or the Accessories.

 

THIS WARRANTY AND THE EMISSIONS CONTROL WARRANTY ARE THE ONLY WARRANTIES APPLICABLE TO THE ENGINE AND ACCESSORIES AS USED IN ON-HIGHWAY VEHICLE APPLICATIONS. [DDC] MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. [DDC] SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AS DESCRIBED ABOVE.

 (Item 21, Ex. A).

 Plaintiff claims that he began having problems with the truck almost immediately after he bought it. On October 19, 1993, plaintiff's attorney Susan M. Hassinger, Esq., wrote to Mr. Daniel Perryman, Service Manager for Kenworth of Indianapolis, Inc. (The Kenworth dealership from whom plaintiff bought the truck), detailing the following problems:

 

1. Despite three front-end alignments and at least 15 service visits, the steering wheel shimmied and plaintiff had to purchase new steering tires twice before reaching 100,000 miles.

 

2. The engine was consuming five times the normal amount of oil, and plaintiff had to have an oil pan leak repaired. His attorney stated in the letter that plaintiff "does not want the motor to be overhauled. [Plaintiff] purchased a brand new vehicle, not one with an overhauled, refurbished motor."

 

3. The transmission did not properly shift from 7th to 8th gear, it "hammered" when going into gear, it "howled" at various speeds, and the gearshift lever vibrated and rattled.

 

4. The hood was repaired for misalignment, but a piece of the hood was still missing.

 

5. The electronic tachometer "wandered."

 The letter stated that, in light of these problems, plaintiff was "seeking replacement with a new vehicle . . . because it appears that with so many things wrong within the first year of operation, it is quite clearly a lemon and does not meet Kenworth's high standards or its warranties" (Item 20, Ex. F).

 The repair invoices produced by plaintiff during discovery in this case (attached as Ex. F. to Item 24) indicate the following: DATE MILEAGE PROBLEM EXHIBIT 1/4/93 2,431 doors, air leak, J (attached to fuel gauge Item 24, Ex. F) 1/19/93 8,157 oil leak, timer D 1/26/93 11,154 axle gasket leak J 2/1/93 13,377 oil leak D 2/4/93 14,236 oil leak G 3/1/93 24,650 front and rear I alignment 3/8/93 28,143 front alignment J 4/12/93 39,905 vibration, air J compressor 4/23/93 45,073 window L regulator, hood 8/20/93 87,984 fuel filter base N 9/8/93 90,881 air restriction D gauge 2/3/94 149,052 forward K differential 5/3/94 170,377 oil leak F 5/9/94 " air conditioning M

19960918

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