Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—6th Cir.: Consumer fails to state Magnuson-Moss Warranty Act claim against Ford over shattering rear windows, (Nov 21, 2013)

By Jeffrey May, J.D.

The U.S. Court of Appeals in Cincinnati has rejected a putative consumer class action suit against Ford Motor Company for violations of the federal Magnuson-Moss Warranty Act (MMWA) based on a purported defect that caused the rear liftgate window on Mercury Mariners to “explode and shatter.” Summary judgment in favor of Ford was affirmed in a not-for-publication opinion (Kuns v. Ford Motor Co., November 19, 2013, Cole, G.).

At the outset, the appellate court noted that the district court had jurisdiction over the Ohio consumer’s action notwithstanding the MMWA’s jurisdictional limitations. The MMWA required that a complaint list at least one hundred named plaintiffs; however, only the plaintiff was named in the case. As a result, the lower court held that it had jurisdiction under the Class Action Fairness Act (CAFA) and not under the MMWA. The appellate court agreed that there was subject matter jurisdiction over the plaintiff’s claims, noting that a general rule had developed that CAFA effectively superceded the MMWA’s more stringent jurisdictional requirements.

The appellate court also concluded that CAFA’s $5 million amount-in-controversy requirement was satisfied. In light of the potential class of 800,000 members, “any relief exceeding $5.78 per class member” would satisfy the requirement, according to the appellate court. The plaintiff alleged that repair of her shattered window cost her $250 and her insurance company $358.52.

The plaintiff claimed that the rear liftgate window on her vehicle shattered twice. A year after the car was purchased, the window broke while the plaintiff’s husband was closing the rear liftgate. The plaintiff took her car to a repair shop not associated with Ford to have the glass replaced because she believed that the warranty would not cover the repair. Just over a month after the first incident, the rear window shattered again while the liftgate was being closed. This time, the plaintiff asked the dealership to replace the window at no charge to her. The dealership initially refused, explaining that the initial repair had not been made by a Ford-authorized entity. However, the glass was ultimately replaced free of charge.

With respect to the first incident, the plaintiff failed to state a claim under the MMWA because she did not give Ford the opportunity to cure the defect as required by the statute. Although the plaintiff argued that any request for a cure would have been futile in light of Ford’s policy that window breakages were not typically covered by the new vehicle warranty, the statutory requirement could not be waived simply because a plaintiff subjectively determined that demand would be futile.

As for the second breakage, Ford eventually provided the repairs without charge “within a reasonable time and reasonable number of attempts.” Although the dealership initially refused to replace the window after the second incident, that was not unreasonable, since the broken window was a non-factory part. Ultimately, the plaintiff’s vehicle was repaired within a week of the breakage.

The case is No. 13-3364.

Attorneys: Dennis E. Murray, Jr. and Margaret M. Murray (Murray & Murray Co., L.P.A.) for Nancy Kuns. Janet L. Conigliaro and Krista L. Lenart (Dykema Gossett PLLC) and Elizabeth B. Wright, Eric S. Daniel, and Jennifer Mountcastle (Thompson Hine LLP) for Ford Motor Co.

Companies: Ford Motor Co.

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