# Martell v. General Motors LLC

> District Court, D. Oregon · May 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10393278

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10393278

## How later opinions describe it (automated extraction)

- finding that under a failure to disclose theory, it is artificial to require a plaintiff to plead reliance on information they did not have, the ignorance of which caused their injury

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM MARTELL, individually and on Case No. 3:20-cv-284-SI
behalf of all others similarly situated,
OPINION AND ORDER
Plaintiff,

v.

GENERAL MOTORS LLC,

Defendant.

Kim D. Stephens, TOUSLEY BRAIN STEPHENS PLLC, 1700 Seventh Avenue, Suite 2200,
Seattle, WA 98101; Adam J. Levitt, John E. Tangren, and Daniel R. Ferri, DICELLO LEVITT
GUTZLER LLC, Ten North Dearborn Street, Sixth Floor, Chicago, IL 60602; and W. Daniel “Dee”
Miles III, H. Clay Barnett III, and J. Mitch Williams, BEASLEY, ALLEN, CROW, METHVIN, PORTIS
& MILES PC, 272 Commerce Street, Montgomery, AL 36104. Of Attorneys for Plaintiff and the
Proposed Class.

Kathleen Taylor Sooy and April N. Ross, CROWELL & MORING LLP, 1001 Pennsylvania Avenue
NW, Washington, DC 20004; and Jennifer L. Campbell and Stephanie C. Holmberg, SCHWABE,
WILLIAMSON & WYATT PC, 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204.
Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff William Martell brings this putative class action against General Motors LLC
(GM). In his First Amended Complaint (FAC), Martell alleges violations of the Oregon
Unlawful Trade Practice Act (UTPA), breach of express warranty, fraudulent concealment, and
unjust enrichment. ECF 46. Plaintiff asserts all claims on behalf of an Oregon statewide class.
Plaintiff seeks monetary, declaratory, and injunctive relief.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, GM moves to dismiss
all claims.1 Against Plaintiff’s UTPA claim, GM argues that Plaintiff has not satisfied the
requirements under Rule 9(b) because Plaintiff fails to allege facts showing GM’s knowledge of

the alleged defect at time Plaintiff purchased his GM vehicle or that Plaintiff reasonably relied
on any false or misleading statements. GM also contends that Plaintiff lacks standing to seek
injunctive relief under the UTPA because Plaintiff does not allege a likelihood of continuing or
future harm.2 Against Plaintiff’s claim of breach of express warranty, GM asserts the Plaintiff
does not allege a “design defect” covered under GM’s express limited warranty. Finally, against
Plaintiff’s claim of fraudulent concealment, GM maintains that Plaintiff has not satisfied the
requirements under Rule 9(b) because Plaintiff fails to allege with particularity facts showing
that GM took any active step to conceal any defect, that GM had knowledge of the alleged defect
at the time Plaintiff purchased his vehicle, or that Plaintiff reasonably relied on any false or

misleading statement made by GM. For the reasons stated below, the Court denies GM’s motion
to dismiss.
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual

1 In its motion to dismiss, GM states that it moves to dismiss “all claims” asserted in
Plaintiff’s FAC, but GM does not explicitly discuss Plaintiff’s claim of unjust enrichment.
2 In his response, Plaintiff states that he consents to the dismissal, without prejudice, of
his request for injunctive relief under the UTPA. ECF 52 at 16 n.11. Accordingly, Plaintiff’s
request for injunctive relief is stricken, and the Court need not further address that issue.
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-
Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all
reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon
Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation
marks omitted).
BACKGROUND
In 2011, Plaintiff bought a 2011 Chevrolet Silverado equipped with a Generation IV 5.3
Liter V8 Vortec 5300 LC9 engine (the Subject Engine) from a Chevrolet dealership in The
Dalles, Oregon (the Dealership). Plaintiff’s car was covered by GM’s standard five-year express
warranty. In 2015, Plaintiff noticed that his vehicle was consuming excessive engine oil, and

Plaintiff began experiencing engine problems related to the excessive oil consumption. Plaintiff
then took his vehicle to the Dealership for service numerous times. Throughout 2015 and 2016,
the Dealership repeatedly told Plaintiff that his oil consumption level was “normal.”
In late 2016, Plaintiff’s counsel investigated a suspected defect causing Plaintiff’s car to
consume excess oil (the Oil Consumption Defect). In July 2017, the Dealership conducted an oil
consumption test on Plaintiff’s car. Upon receiving the results of this test, which confirmed that
the vehicle was using excessive oil, Plaintiff joined a class action lawsuit in the Northern District
of California (the Sloan Action) on August 31, 2017. See Sloan v. General Motors LLC, Case
No. 3:16-cv-7244-EMC (N.D. Cal.). That court, however, dismissed Plaintiff from the Sloan
Action on February 11, 2020, concluding that under Bristol-Myers Squibb Co. v. Super. Ct. of

Cal., S.F. Cnty., 137 S. Ct. 1773 (2017), the Northern District of California lacked personal
jurisdiction over GM regarding Plaintiff’s claims. See Sloan v. Gen. Motors LLC, 2020
WL 664033 (N.D. Cal. Feb. 11, 2020).
Plaintiff then filed this lawsuit on February 19, 2020, alleging that the Subject Engine is
defectively designed and asserting claims of breach of express warranty, violation of the
Magnuson Moss Warranty Act (MMWA), fraudulent omission, violation of the UTPA, and
unjust enrichment. GM moved to dismiss, which the Court granted in part with leave to amend.
The Court denied the motion with respect to Plaintiff’s claim of unjust enrichment but granted it
with respect to all other claims. Plaintiff filed his FAC on October 20, 2020.
Plaintiff alleges that the primary cause of the Oil Consumption Defect is that the “piston
rings that GM installed within the [Subject Engines] fail to keep oil in the crankcase.” FAC ¶ 8.
Plaintiff also alleges other problems, including issues with the Active Fuel Management System,
the Positive Crankcase Ventilation (PCV) system, the Oil Life Monitoring System, and the oil
pressure gauge indicator on the dashboard. Plaintiff contends that GM knew of and intentionally

concealed the Oil Consumption Defect, and that GM has failed to compensate Plaintiff and the
putative class members for the resulting damage.
DISCUSSION
The Court first discusses GM’s arguments against Plaintiff’s claim of fraudulent
concealment. The Court next turns to GM’s contentions against Plaintiff’s claim under the
UTPA. Finally, the Court addresses GM’s motion against Plaintiff’s claim of breach of express
warranty.
A. Fraudulent Concealment
GM argues that Plaintiff’s fraudulent concealment claim fails because Plaintiff does not
allege facts showing that GM took active steps to conceal any defect, that GM had knowledge of
the alleged defect at the time of sale, or that Plaintiff reasonably relied on any false or misleading

statement made by GM. In addition, GM argues that the allegations in the FAC fail to satisfy the
particularity requirements under Rule 9(b).
1. Active Steps to Conceal
GM argues that Plaintiff fails to allege that GM took steps actively to conceal the Oil
Consumption Defect. Because Plaintiff is bringing a fraudulent concealment claim, he must
allege facts showing GM’s deceptive acts intended to prevent discovery of the concealed
information. Plaintiff responds that in Oregon, “active concealment occurs—even in the absence
of a duty to speak—when a defendant engages in ‘acts which create a false impression covering
up the truth.’” Unigestion Holding, S.A. v. UPM Tech., Inc., 160 F. Supp. 3d 1214, 1226 (D.
Or. 2016) (citations omitted). A claim of concealment differs from claims alleging
misrepresentation or omission by a half-truth in that there is no affirmative representation on
which a plaintiff may rely. See Yeti Enters, Inc. v. Tang, 2017 WL 3478484, at *6 (D. Or.
Aug. 14, 2017) (“active concealment is defined as ‘[a]ny words or acts which create a false

impression covering up the truth, . . . or which remove an opportunity that might otherwise have
led to the discovery of a material fact as by floating a ship to conceal the defects in her
bottom.’”) (quoting Paul v. Kelley, 42 Or. App. 61, 66 (1979) and citing Prosser, Law of Torts
§ 106, at 695 (4th ed. 1971)).
The only act of concealment that Plaintiff alleges is the issuance of Technical Service
Bulletins (TSBs). TSBs are formal, standardized written guidance issued by GM to dealerships
that provide information on the steps and procedures for maintaining GM vehicles. GM issued
twelve TSBs between 2010 and 2014 that address the Oil Consumption Defect. Plaintiff alleges
that these TSBs concealed the Oil Consumption Defect by providing a “solution” that GM knew

to be ineffective. If GM had the requisite knowledge, as discussed below, these allegations
plausibly support this element of Plaintiff’s fraudulent concealment claim by showing an act
creating a false impression intending to cover up the truth or remove an opportunity that might
otherwise have led to the discovery of a material fact.
2. Reliance
GM also argues that Plaintiff’s allegations of reliance do not satisfy Rule 9(b). That rule
provides: “In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.” Fed. R. Civ. P. 9(b). “Rule 9(b) serves three purposes: (1) to provide
defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the
filing of complaints ‘as a pretext for the discovery of unknown wrongs’; (2) to protect those
whose reputation would be harmed as a result of being subject to fraud charges; and (3) to
‘prohibit [ ] plaintiff[s] from unilaterally imposing upon the court, the parties and society
enormous social and economic costs absent some factual basis.’” Kearns v. Ford Motor Co., 567
F.3d 1120, 1125 (9th Cir. 2009) (quoting In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th

Cir.1996) (alterations original).
Plaintiff has specified which TSBs undergird his argument with requisite particularity. He
alleges the TSB number, the date of issuance, and the specific “fixes” offered by two TSBs, as
well as the date of issuance of the final relevant TSB, and the number of TSBs addressing the
issue. See FAC ¶¶ 72-76. Thus, GM has been informed about which TSBs Plaintiff is suggesting
constituted fraudulent concealment and that the dissemination of those TSBs to GM dealers, who
relied on them when responding to customer complaints about excessive oil consumption, caused
the alleged concealment. This information provides GM with sufficient notice to defend against
the claim.

GM also argues that Plaintiff has not plausibly alleged reliance. Requiring a Plaintiff who
has been the victim of fraudulent concealment to allege direct reliance on the concealment itself
is anathema to the nature of the claim. See Paul, 42 Or. App. at n.3 (noting that when the truth
has been affirmatively concealed, the right to recover does not depend on a misrepresentation
being conveyed to the plaintiff) (citing Handy v. Beck, 282 Or. 653 (1978)); see also Sanders v.
Francis, 277 Or. 593, 598-99 (1977) (finding that under a failure to disclose theory, it is artificial
to require a plaintiff to plead reliance on information they did not have, the ignorance of which
caused their injury). Any reliance on fraudulent concealment, therefore, is necessarily indirect
and need be pleaded only insofar as it is necessary to plausibly show causation. Here, Plaintiff
has alleged that GM issued TSBs to its dealers and that had GM not concealed relevant
information in those TSBs Plaintiff would not have been damaged (or at least not damaged as
much).
Plaintiff alleges that he continued to operate his car without fully repairing the defective
piston rings after bringing his excessive oil consumption concerns to the attention of the

Dealership, causing ongoing danger and additional repair costs. Plaintiff’s theory of fraudulent
concealment alleges the issuance of TSBs beginning in 2010. Plaintiff contends that, among
other things, by issuing TSBs that GM knew failed to correct the Oil Consumption Defect, GM
prevented car owners, including Plaintiff, from discovering the nature and extent of the defect.
Plaintiff alleges that GM’s issuance of the TSBs “created a false impression as to the cause of
excessive oil consumption in the Class Vehicles, and the severity of the problem. In doing so,
these TSBs covered up the truth of the Oil Consumption Defect and removed opportunities that
might have led to the disclosure of the Oil Consumption Defect.” FAC ¶ 246. Plaintiff also
contends that he, and other putative class members, were injured based on the material omissions

of fact in the TSBs. These allegations plausibly support a claim for fraudulent concealment.
3. Knowledge
GM also argues that Plaintiff has not sufficiently alleged GM’s knowledge of the Oil
Consumption Defect. GM discusses two bases of Plaintiff’s allegation that GM had knowledge
of the defect when Plaintiff bought his vehicle—online consumer complaints and a series of
technical service bulletins (TSBs). GM argues that consumer complaints do not show knowledge
by GM, especially when those complaints related to vehicle models other than the model bought
by Plaintiff or were posted after Plaintiff’s bought his vehicle. GM also asserts that the TSBs
merely “alert dealerships of potential customer complaints” and do not show knowledge by GM
because they “do not suggest that all Class Vehicles had issues or required repairs, or suggest that
the oil consumption experienced by consumers was the result of any defect.”
Plaintiff responds that GM knew that the initial “fixes,” namely piston cleaning, were
ineffective, and Plaintiff alleges that in the FAC. Specifically, Plaintiff alleges that GM knew of
the Oil Consumption Defect beginning in 2008, that an investigation into it was initiated in June

2009, and that this investigation identified and confirmed in 2010 that the piston/ring assembly
caused the oil consumption problems. See FAC ¶¶ 98-101. Plaintiff also connects that
knowledge to the issuance of the TSBs:
As discussed above, the TSBs directed dealerships, upon complaint
of oil consumption in the Generation IV Vortec 5300 Engines to
perform a piston cleaning procedure and relatively minor
modifications, which GM knew did not truly address the Oil
Consumption Defect. GM continually released these TSBs through
2014.
FAC ¶ 244 (emphasis added).
Because Rule 9(b) specifically provides that a defendant’s own culpable knowledge may
be alleged generally, the heightened particularity standard does not apply to the allegations of
GM’s knowledge. At this stage of the litigation, the Court need not find that the TSBs
themselves suggested that all vehicles required repairs and the oil consumption problem was the
result of a defect or even that they are sufficient by themselves to prove Plaintiff’s claim. Rather,
the Court must ask whether the issuance of the TSBs and the other allegations of GM’s
knowledge make Plaintiff’s claim that GM had knowledge of the defect facially plausible. The
Court concludes that they do. Plaintiff has alleged sufficient facts to support his claim that GM
had knowledge of the Oil Consumption Defect.
4. Conclusion
Plaintiff sufficiently alleged facts, with enough particularity where required, to support
his claim of fraudulent concealment of the Oil Consumption Defect. Thus, the Court denies
GM’s motion to dismiss Plaintiff’s claim of fraudulent concealment.
B. Oregon Unlawful Trade Practices Act
GM argues that Plaintiff’s UTPA claim does not satisfy Rule 9(b)’s specificity

requirements and that Plaintiff does not allege facts establishing GM’s knowledge of the alleged
defect at the time of sale or Plaintiff’s reasonable reliance. In Pearson v. Philip Morris, Inc.,
relied on by GM, the Oregon Supreme Court analyzed causation and reliance in the context of a
claim involving both alleged misrepresentations and material omissions. 358 Or. 88, 127 (2015).
The court in Pearson explained that a UTPA claim does not itself require reliance, but reliance
must be shown if it is integral to the underlying unlawful trade practice. Id. The court further
noted that under the UTPA, a “plaintiff must suffer a loss of money or property that was caused
by the unlawful trade practice. Whether, to prove the requisite causation, a plaintiff must show
reliance on the alleged unlawful trade practice depends on the conduct involved and the loss
allegedly caused by it.” Id. (emphasis in original).

As discussed above, Plaintiff has adequately pleaded active steps to conceal, GM’s
knowledge, and reliance. The UTPA imposes no additional requirements on the predicate claim
for an unlawful trade practice. Thus, the Court denies GM’s motion to dismiss Plaintiff’s claim
under the UTPA.
C. Breach of Express Warranty
GM argues that Plaintiff’s breach of express warranty claim cannot proceed because
GM’s Five-Year Limited Warranty applies only to manufacturing defects, but Plaintiff alleges a
design defect. See, e.g., FAC ¶ 3 (“the Class Vehicles were engineered to fail”); ¶ 118 (“the
design flaws caus[ed] excessive oil consumption in the Class Vehicles”); and ¶ 230 (“The Oil
Consumption Defect is a uniform design defect that is related to materials.”). Design defects are
distinct from manufacturing defects. A manufacturing defect, for example, occurs when a
manufacturer constructs a single product in a substandard manner, generally resulting in a
deviation from the manufacturer’s intended result or from other seemingly identical products.

See, e.g., Taylor v. Bos. Sci. Corp., 2020 WL 4592923, at *2 (D. Ariz. Aug. 5, 2020). A design
defect, however, occurs when, for example, a manufacturer builds a product exactly how it was
designed, but the design itself is defective. See, e.g., Davidson v. Apple, Inc., 2017 WL 3149305,
at *21 (N.D. Cal. July 25, 2017). Manufacturing defects are commonly described as defects in
“materials or workmanship.” See, e.g., Bruce Martin Constr., Inc. v. CTB, Inc., 735 F.3d 750,
753-54 (8th Cir. 2013) (“Thus, case law supports the view that, where a product is manufactured
correctly but designed inappropriately, the defect is one of design and not ‘material or
workmanship.’”). Throughout the FAC, Plaintiff alleges only a design defect when describing
the faulty piston rings and other vehicle components causing or contributing to the Oil

Consumption Defect.
Plaintiff and GM disagree as to whether the warranty applies to the design defect alleged
by Plaintiff. The relevant section of the warranty reads as follows:
Repairs Covered
The warranty covers repairs to correct any vehicle defect, not
slight noise, vibrations, or other normal characteristics of the
vehicle related to materials or workmanship occurring during the
warranty period.
FAC ¶ 225.
Plaintiff argues that the text of this clause includes, as it expressly states, “any vehicle
defect” except for “slight noise, vibrations, or other normal characteristics of the vehicle related
to materials or workmanship occurring during the warranty period.” Under Plaintiff’s reading,
the phrase “related to materials or workmanship” modifies the “normal characteristics of the
vehicle” that are excluded from coverage, and “slight noise” and “vibrations” are two examples
of such “normal characteristics of the vehicle related to materials or workmanship.” Because the
Oil Consumption Defect is not a normal characteristic of the vehicle related to materials or

workmanship, similar to slight noise or vibrations, Plaintiff argues, that alleged defect is covered
by the express warranty and not excluded.
GM, however, argues that “related to materials or workmanship” does not apply to the
phrase or list immediately preceding that phrase, but instead modifies “any vehicle defect.”
Under this reading, the clause would still exempt “slight noise, vibrations, and other normal
characteristics of the vehicle” but the phrase “related to materials or workmanship” would not be
read as limited to the modification of those items. GM argues that to read the warranty as
Plaintiff contends would conflict with what a reasonable consumer would expect an express
warranty to cover, that punctuation should not be considered when interpreting a contract, that

GM’s reading has been adopted by most courts considering GM’s various express warranties,
and that Plaintiff’s reading causes the warranty to extend indefinitely.
Before considering GM’s arguments in detail, the Court analyzes the clause itself,
examining it on its own and in the context of entire warranty. See Yogman v. Parrott, 325. Or.
358, 361 (1997) (“To interpret a contractual provision . . . the court follows three steps. First, the
court examines the text of the disputed provision, in the context of the document as a whole. If
the provision is clear, the analysis ends.”) First, the clause sets out a broad array of coverage
(“This warranty covers repairs to correct any vehicle defect”). Then, a comma and the word
“not” are used to separate that broad category of coverage from what is “not” covered (“This
warranty covers repairs to correct any vehicle defect, not . . .”). Next, the category of issues that
are not covered is defined (“slight noise, vibrations, or other normal characteristics of the
vehicle . . .”). Both parties agree up to this point. The dispute arises when the Court is asked to
determine whether the list of exclusions is modified by or is independent of the phrase “related to
materials or workmanship” that immediately follows, without conjunction or punctuation.

Upon a plain reading of the text of the clause, the Court concludes that the phrase
“related to materials or workmanship” modifies the phrase “other normal characteristics of the
vehicle” or, possibly, the longer phrase “slight noise, vibrations, or other normal characteristics
of the vehicle.” Without punctuation or other grammatical convention separating the two
phrases, there is no indication that they are not connected. Proceeding from that understanding,
the Court examines whether the limitation to materials or workmanship applies to modify, or
limit, the phrase “all vehicle defects” such that the clause excludes design defects but includes
manufacturing defects. The Court finds two commonly used canons of construction instructive.
As GM notes, rules of grammar should not be applied to render language in a contract

“meaningless” or “absurd.” See Jarrard v. Cont’l Cas. Co., 250 Or. 119, 124 (1968). Instead, the
Court here looks to these canons to provide a framework for understanding the logical, non-
absurd ways in which one might construe the warranty clause.
First, the series qualifier canon provides that “when there is a straightforward, parallel
construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier
normally applies to the entire series.” Antonin Scalia and Bryan A. Garner, Reading the Law 147
(1st ed. 2012). Here, “related to materials or workmanship” is the relevant postpositive modifier.
For “related to materials or workmanship” to apply to “any vehicle defects” under this canon of
interpretation, “any vehicle defects” must be part of a straightforward, parallel construction that
involves all nouns or verbs in a series and precedes the post-positive modifier so that it is so
modified. Two nouns (“noise, vibrations”) precede the modified phrase (“other normal
characteristics of the vehicle related to materials or workmanship”), but these nouns are set apart
from a third noun (“vehicle defects”) by a comma and the word “not.” The word “not” following
a comma distinguishes the word “noise” from the phrase preceding the comma, which cannot be

said to be part of a parallel construction.
To hold otherwise, the Court would need to find that the word “not” modified the
slightness of the noise. To accomplish this, GM would have needed to join “not” and “slight”
with a hyphen (“all vehicle defects, not-slight noise, vibrations”). To make such a
transformational change would require the Court to find that there was a punctuation error so
obvious that the sentence was essentially rendered absurd or contradictory. See, e.g., Biomass
One, L.P. v. S-P Const., 103 Or. App. 521, 526 (1990) (a court may read punctuation into a
contract when there is such an “obvious typographical error” that the sentence is unreadable and
the correction of the error creates one, unambiguous meaning). That is not the case here.

On the contrary, inserting a hyphen after “not” so that all vehicle defects became part of
series constructed in parallel would then suggest that the coverage extended to all vehicle
defects, more than slight noise, vibrations, or other normal characteristics of the vehicle related
to materials or workmanship. This is not the reading GM advocates, and it makes little sense.
Under that reading, the warranty becomes highly expansive, covering all defects and “normal
characteristics of the vehicle” that resulted from the manufacturing process. This is not the one,
unambiguous meaning that the clause is meant to have, and the Court will not insert punctuation
to make it so.
Second, the separation of the last noun in the series with the words “or other” implies that
the noun or nouns preceding “or other” are a type of thing described by the noun following “or
other.” Here, the doctrine of ejusdem generis is informative. As Scalia and Garner helpfully
explain, the “ejusdem generis canon applies when a drafter has tacked a catchall phrase at the
end of an enumeration of specifics[.]” Scalia and Garner provide several examples where “or

other” or “or any other” are used in this fashion. Scalia & Garner, supra, at 201. This is precisely
what is done in the clause, where slight noise and vibrations are two examples of normal
characteristics of the vehicle related to materials or workmanship, and such normal
characteristics are not covered by the text of the express warranty.
Plaintiff’s interpretation is further validated by use of the term “materials or
workmanship,” or slight variants thereof, throughout the warranty. See Eagle Indus., Inc. v.
Thompson, 321 Or. 398, 405 (1995) (“The court looks at the four corners of a written contract
and considers the contract as a whole with emphasis on the provision or provisions in
question.”). When a certain construction is consistently used throughout a document, the reader

can infer that when that construction differs in one passage, the alteration was intentional and
carries a distinct meaning. Several clauses throughout the warranty addressing specific
components of the vehicle or specific vehicle types clearly state that only defects caused by
materials or workmanship are covered. See, e.g., ECF 31-2 (Exhibit B, GM Five-Year Limited
Warranty) p. 11 (“The tires supplied with your vehicle are covered by General Motors against
defects in material or workmanship”); p. 16 (“Windshield cracks will be covered for the first 12
months, regardless of mileage if caused by defects in material or workmanship.”), p. 19 (“This
Voltec warranty covers repairs to correct any Voltec component defect related to materials or
workmanship occurring during the 8 year or 100,000 miles (160,000 kilometers) term”); p. 20
(“This Hybrid warranty covers repairs to correct any Hybrid component defect related to
materials or workmanship occurring during the 8 year or 100,000 miles (160 000 kilometers)
term”). These clauses show that when GM intends to only cover defects in materials or
workmanship, it does so without requiring any additions or revisions to achieve that meaning.
Thus, the Court finds that according to the plain meaning of the relevant clauses, examining

them through two canons of construction, and looking at them within the four corners of the
warranty, the express warranty shows that GM has created a carve-out from its coverage of all
vehicle defects, so that minor and normal characteristics of a vehicle that might result from small
deviations in workmanship or materials during the manufacturing process, such as slight noise or
vibrations, are not considered defects and are thus not covered under the express warranty.
GM argues that to read the warranty as Plaintiffs contend would conflict with what a
reasonable consumer would expect a warranty to cover. This is because, GM asserts, a
reasonable consumer would only expect a warranty to cover “defects . . . related to materials or
workmanship.” Plaintiff replies by stating, on the contrary, a reasonable consumer would expect

a warranty to cover major issues resulting from flawed design, such as the Oil Consumption
Defect.
GM’s construction is more likely than Plaintiff’s to contradict the expectations of a
reasonable consumer. To reach its meaning, GM suggests that a reasonable consumer would
make two leaps. First, according to GM, a reasonable consumer would insert a comma between
vehicle and “related to materials or workmanship” so that the phrase “related to materials or
workmanship” modifies “any vehicle defect” rather than “normal characteristics of a vehicle.”
Second, GM asserts that a reasonable consumer would make this revision to reduce the scope of
the express warranty’s coverage to manufacturing defects only. GM, however, offers no reason
for why a reasonable consumer would not expect their express warranty to include faulty design,
and further why a reasonable consumer would rewrite the plain text of an express warranty to
reduce its coverage. GM also has not explained how a reasonable consumer, under this
interpretation, would understand the warranty’s coverage of the phrase “slight noise, vibrations,
and other normal characteristics of the vehicle.”

Plaintiff’s reading reflects common sense notions of what an express warranty would
likely cover when not otherwise limited by the text of that warranty. A reasonable consumer is
likely to understand that their express warranty does not cover small, “normal” issues, including
slight noise or vibrations, that result from the materials or workmanship and are not tantamount
to a defect. That such “normal” characteristics resulting from materials or workmanship might
arise and be excluded from coverage due to their “slight” nature does not contradict a reasonable
consumer’s expectation. Further, that such slight and normal issues would result from materials
or workmanship is sensible. The Court also is not persuaded that a reasonable consumer would
expect an express warranty not to cover a design defect, and GM has offered only minimal
argumentation (and no evidence) to that effect.

GM also argues that punctuation should not be considered when interpreting a contract.
GM’s assertion is not persuasive. GM cites two cases. In Biomass One, L.P. v. S-P Const., 103
Or. App. 521, 526 (1990), the court specifically stated that an “obvious typographical error”
made the sentence unreadable, and that upon the insertion of the missing semi-colon the sentence
had one, unambiguous meaning. That is not the case here, where the relevant text is readable and
understandable as written and there is no obvious typographical error. That the clause does not
carry the meaning GM wants it to carry (or perhaps even intended it to carry) is not an “obvious
typographical error,” and the Court will not add or disregard punctuation in an otherwise logical
sentence to construct a new meaning to suit the will of the drafter. GM also cites In re Grogan,
2013 WL 5630627 (BAP 9th Cir. 2013), a bankruptcy case in which the court determined that
Christmas trees were included in contract language governing “[a]ll trees, bushes, vines and
other permanent plantings.” In addition to concluding that Christmas trees would be included
even if “permanent plantings” modified “trees,”3 the court found that the word “permanent” may
modify the word “trees” even without the serial comma after the word “vines” and that a strict

reading of the clause according to the doctrine of the last antecedent did overcome other indicia
of meaning in the contract. Grogan provides no relevant guidance on the issue now before this
Court.
In addition, GM contends that its reading has been adopted by the “vast majority” of
courts and that the cases of Weiss v. Gen. Motors4 and McKee v. Gen. Motors,5 which adopted
the reading that Plaintiff advocates, are outliers. GM cites several cases in which courts
considered the shortened version of the warranty presented in Plaintiff’s original complaint or
entirely separate warranty text, rather than the full warranty clause now before the Court. In none
of these cases did the court analyze the text of the full warranty clause.6 The Court has not

3 “First, the language in § 4 of Harvest’s Security Agreement, “[a]ll trees, bushes, vines
and other permanent plantings” is broad enough to include Christmas trees as either “trees” or
“permanent” trees for purposes of the UCC reasonable identification test.” Grogan, 2013
WL 5630627 at *8.
4 418 F. Supp. 3d 1173 (S.D. Fla. 2019).
5 376 F. Supp. 3d 751 (E.D. Mich. 2019).
6 Szep v. Gen. Motors LLC, 2020 WL 5834876, at *6 (N.D. Ohio Sept. 30, 2020) (“GM’s
limited warranty covers ‘repairs to correct any vehicle defect . . . related to materials or
workmanship occurring during the warranty period.’” without analyzing the entire clause to
discern meaning); Harris v. Gen. Motors LLC, 2020 WL 5231198, at *3 (W.D. Wash. Sept. 2,
2020) (finding that the phrase materials and workmanship refers to manufacturing defects, not
design defects); Hindsman v. Gen. Motors LLC, 2018 WL 2463113, at *5 (N.D. Cal. June 1,
2018) (considering a warranty that provided “The warranty covers repairs to correct any vehicle
defect related to materials or workmanship occurring during the warranty period.”); Feliciano v.
Gen. Motors LLC, 2016 WL 9344120, at *4 (S.D.N.Y. Mar. 31, 2016) (No analysis of full
located any cases in which a court considered and analyzed the complete clause of the express
warranty at issue here and found that it only covered defects in materials or workmanship.
GM’s final argument7 in favor of its reading is that inclusion of the time limitation in the
clause renders Plaintiff’s reading internally contradictory. The final clause in the list reads “or
other normal characteristics of the vehicle related to materials or workmanship occurring during

the warranty period.” GM argues that to read the clause following “all vehicle defects, not . . .”
as a carve-out would mean that the coverage of “all vehicle defects” would extend indefinitely
because no time limiting language would apply.
Plaintiff responds that the warranty itself contains other clauses governing the time period
for coverage, and that there is no reason to infer that the disputed provision should be read to
override that language or to create an absurd result. The Court agrees with Plaintiff. The
inclusion of time-limiting text in a provision already covered by time-limiting test may be
redundant and unnecessary, but it does not contradict or render absurd the plain text and meaning
of the clause when considered under the other terms of the express warranty, which provide that

warranty clause); Acedo v. DMAX, Ltd. & Gen. Motors LLC, 2015 WL 12696176, at *23 (C.D.
Cal. Nov. 13, 2015) (considering whether warranty coverage of materials and workmanship
applies to design defects without analyzing the full clause under this Court’s consideration); In re
Motors Liquidation Co., 2013 WL 620281, at *6 (Bankr. S.D.N.Y. Feb. 19, 2013) (considering
the Glove Box Warranty which provided coverage of “any vehicle defect related to materials or
workmanship occurring during the warranty period.”) (emphasis original); In re Gen. Motors
Corp. Anti-Lock Brake Prod. Liab. Litig., 966 F. Supp. 1525, 1532 (E.D. Mo. 1997), aff’d sub
nom. Briehl v. Gen. Motors Corp., 172 F.3d 623 (8th Cir. 1999) (“[W]ritten warranty which
promised the vehicles were “to be free of defects in materials and workmanship at the time of
delivery.”).
7 GM states in its pending motion to dismiss and in its reply brief that this Court’s prior
opinion held that the warranty only applied to manufacturing defects, not design defects. The
Court made no such holding. Instead, the Court found that the words “materials and
workmanship” refer to manufacturing, rather than design, without interpreting the way that this
term applied within the entire warranty clause as it is now presented before the Court.
the entire warranty is only valid for a limited period. GM argues that the Court may not interpret
an express warranty in a way that renders one of its terms or provisions superfluous. In doing so,
GM asks the Court instead to construct an entirely new meaning that is different from the one
suggested by a plain reading of the clause itself and the warranty as a whole. The Court declines
to rewrite an entire clause, changing its meaning in significant ways, to avoid a redundancy

drafted by GM. Thus, the Court denies GM’s motion to dismiss Plaintiff’s breach of warranty
claim.
CONCLUSION
The Court denies General Motor’s Motion to Dismiss First Amended Class Action
Complaint (ECF 51).
IT IS SO ORDERED.

DATED this 7th day of May, 2021.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393278. Public record. Not legal advice.