The opinion
STATE OF MAINE DISTRICT COURT
KENNEBEC, SS . WATERVILLE
DOCKET NO. CV-2016-81
JEFFREY STEARNS,
Plaintiff
V. DECISION AND JUDGMENT
CC & CC, INC, d/b/a
DNK USED CARS,
Defendant
INTRODUCTION AND PROCEDURAL BACKGROUND
This matter is before the court for decision following a one-day bench trial
held on April 27, 2018. The Plaintiff commenced this action by filing a five-count
complaint on July 1, 2016 against the Defendant alleging the following causes of
action relating to the sale of a used 2007 Ford F-350 diesel truck: violation of the
Unfair Trade Practices Act - 5 M.R.S. §207 et seq. - (Count I); violation of the
Uniform Deceptive Trade Practices Act - 10 M.R.S. §§ 1212 & 1476 - (Count II);
Breach of Warranty - 10 M.R.S. §1476 - (Count III); Unjust Enrichment (Count
IV), and; Fraud (Count V).
The Defendant filed a timely answer on August 8, 2016, and later moved for
summary judgment on April 28, 2017. The Plaintiff filed his response and
opposition to summary judgment on July 5, 2017 and at the same time also moved
to amend his complaint to add Count VI for Breach of Implied Warranty of
Merchantability - 11 M.R.S. §2-314.
In an Order dated October 17, 2017, the court (Stanfill, J.) granted the motion
to amend, granted the motion for summary judgment as to Counts II, IV and V
(Uniform Deceptive Trade Practices Act, Unjust Enrichment and Fraud), but denied
summary judgment as to Counts I and III (Unfair Trade Practices Act and Breach of
Warranty). On February 5, 2018, this case was assigned to the Superior Court for
jury-waived trial.
Trial was held on April 27, 2018 at which the court received the testimony of
Jeffrey Steams; Jason Thibodeau (expert witness); Eric Stevens, and; Deborah
Collman, all called in the Plaintiff's case-in-chief. Joint Exhibits 1-13 and Plaintiff's
Exhibits 1-6 were admitted without objection. The court also received the testimony
of Benjamin Palmquist and Jacob Gagne Adams, both of whom were called by the
Defendant. Post-trial briefs were received by the court on August 6, 2018.
Based upon the evidence presented at trial, and after consideration of the
written arguments of the parties, the court makes the following findings of fact.
FACTUAL FINDINGS
On or about October 27, 2015, representatives of DNK Used Cars, including
Benjamin Palmquist, attended a vehicle auction in Florida at which the Defendant
purchased a 2007 White Ford F-350 King Ranch 4x4 Turbo Diesel truck for a total
cost of $19,400. (Jt. Ex. 1). Mr. Palmquist examined the vehicle prior to the
purchase and also drove the truck after the purchase during the 45 minute "window"
before the sale became final. (Trial Transcript, "T.T." at 163-64). Palmquist
testified that the vehicle had a "green" and "blue" light designation at the auction,
meaning that there were no known mechanical defects and title was not immediately
available. (Id. at 165).
Palmquist crawled underneath the truck and observed no major issues with
the vehicle. He testified that he test drove the truck for approximately 30 minutes,
listened to the motor, looked for damage and/or leaks and used a hand scanning tool
to plug into the on-board diagnostic system. (Id. at 168-69). He concluded that the
truck was in "above average condition," that it was very clean, that the underbody
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was "very good," that there were no leaks or diagnostic codes, that he briefly looked
at the universal joint for broken caps, cracks or excessive buildup or corrosion, and
found none. He testified that the vehicle would not have qualified for a "green" light
designation if it had leaks or engine codes including any injector malfunction. (Id.
at 170-72).
The truck was transported back to Maine where it arrived at DNK's place of
business in Farmingdale no later than November 2, 2015. (Jt. Ex. 2). At that time
the truck had mileage on it of 105,148. Id. During this time period the Plaintiff,
Jeffrey Steams, was in the market for a "fairly good size truck" that would be
suitable for towing his 8400-pound, 30-foot Gulfstream camper. (T.T. at 15, 60). He
spoke to Wayne, the sales manager at DNK at the time, who told him that the F-350
should meet his needs. Wayne also told him that the vehicle had to be checked
"bumper to bumper" for mechanical defects, "serviced and ready for the road." Id.
at 16. About a week later the Plaintiff took the truck for a test drive and felt a
vibration. He brought this to the attention of the representative of DNK with him on
the test drive who surmised that it was "just probably the tires because it's been
sitting on the lot awhile." Id. at 18. The Plaintiff testified that the DNK employee
assured him that the vibration would be checked out, although the testimony at trial
was not specific as to where the vibration was corning from prior to the Plaintiff's
trip to North Carolina. Id. At some point, perhaps after he had purchased the truck,
the Plaintiff mentioned the vibration again to DNK and was told again that it was
probably the tires and to give it some time. Id at 30. There was no evidence
presented as to whether anyone at DNK actually inspected the truck for the specific
purpose of identifying the source of the vibration, although there was evidence that
a "used car check" and a state inspection was performed.
In the meantime, one of DNK's mechanics performed a "used car check" on
the truck which included an inspection and possible repair of any "safety items" such
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the brakes, windows, locks, seatbelts, fluid levels, and whatever was necessary to
pass state inspection. (T.T. at 173-74). With respect to this particular vehicle, a
service order was generated that shows that the used car check was completed, that
windshield washer fluid was added, that a state inspection was performed and that
an oil and filter change as done. (Joint Exhibit 2). Total labor was 2.05 hours. 1 Id.
The evidence at trial was somewhat incomplete as the question as to which
mechanic/technician at DNK actually performed the work on the F-350 truck as
reflected in the service order. Nevertheless, the court finds that Jake Gagne Adams
performed at least some of the work including the state inspection since his name
and signature appear on the sticker. (Plaintiff's Exhibit 6). Mr. Adams, however,
had no recollection of ever working on this vehicle. From the court's examination
of the trial exhibits, it can infer that Mr. Adams also performed the used car check
on this vehicle because the technician number on the service order for the inspection
sticker (#208) is the same as that for the used car check. The technician number for
the oil and filter change, however, is different (#243). (Joint Exhibit 2). There was
no evidence presented at trial as to the significance or meaning, if any, of the
different technician #' s identified on the service order, but the court finds that it is at
least possible that two different technicians performed the pre-sale work on the
Plaintiff's truck.
On or about November 17, 2015, the Plaintiff purchased the truck for a total
cost of $27,399, which he paid in cash. (Joint Exhibit 3). The purchase order form
signed by the Plaintiff disclosed that the truck was an "out of state title/purch" and
there were no "known" mechanical defects or damage. The mileage listed on the
• During the trial considerable time was spent on the two dates that appear on the
service order, namely, November 2 and November 17, 2015. In the final analysis, the
cow·t d oes not find any meaningful significance to those Lwo dates. What seems to be
clear is that the inspection sticker was dated, and presumably p repared and affixed to the
truck on November 17, 2015. (Plaintiff's Exhibit 6).
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purchase agreement was 105,171. The Plaintiff was also provided with a "Used
Vehicle Buyer's Guide." (Joint Exhibit 4). That form disclosed that there were no
known mechanical defects and that "THE VEHICLE WAS ACQUIRED AT AN
OUT-OF-STATE AUCTION AND THAT HISTORICAL INFORMATION
REGARDING MECHANICAL DEFECTS AND SUBSTANTIAL DAMAGE IS
NOT AVAILABLE."
The next paragraph, in bold-face capital letters, stated: "IMPORTANT:
THESE ARE THE ONLY PROBLEMS KNOWN TO THE DEALER. ASK IF
YOU MAY GET AN INDEPENDENT INSPECTION BEFORE PURCHASE."
There was no evidence presented at trial that the Plaintiff asked to have an
independent inspection performed. As required by state law, the "Warranty of
Inspectability" box was checked. The next box was also checked and stated: "NO
EXPRESS WARRANTY EXCEPT THAT VEHICLE MEETS STATE
INSPECTION STANDARDS." Immediately below the waiver of any express
warranties the following explanatory language appears: "You will pay for all costs
for any repairs not related to meeting state inspection standards, regardless of any
oral statements about the vehicle. The dealer accepts no responsibility for repairs
except those necessary to pass state inspection." (Joint Exhibit 4).
The Warranty of Inspectability covered "MAINE STATE INSPECTION
ITEMS ONLY," for a period of 30 days or 1000 miles "WHICHEVER OCCURS
FIRST." The paragraph pertaining to "Implied Warranties" was marked "XX N0." 2
The Plaintiff's signature appears on this form and at trial he acknowledged signing
it. T.T. at 54. At the time of purchase, the Plaintiff expressly declined to purchase
the extended warranty and GAP coverage that was offered to him, and explained his
' The "Guide" also alerted the Plaintiff that a service contract 11 is available at an extra
charge" and if purchased within 90 days of the sale, the Maine "implied warranties"
could not be limited.
5
reasoning at trial as follows: "Why would I when a diesel is good for 300,000
miles?" 3 (T.T. at 56; Joint Exhibit 5). Benjamin Palmquist testified that the
estimated cost of the extended warranty coverage was approximately $2,995. (T.T.
at 183).
Within a matter of days, while the truck was parked in a hotel parking lot in
Waterville, a fairly substantial leak was discovered . It was described at trial as
having a somewhat watery consistency, suggesting that it might have been a
combination of oil and coolant. (T .T. at 20, 155). The Plaintiff took the truck back
to DNK and was told that the problem was an oil plug gasket that needed to be
replaced. According to both the Plaintiff and Ms. Collman, the truck was taken back
to the garage and returned within 5 minutes.
What actually took place in the DNK garage on this occasion was a major
point of contention at the trial. Based on the evidence presented, however, the court
was and is left with more questions than answers regarding this incident. No service
order or other documentation was created with respect to this event and the Plaintiff
was not charged anything for the service. The Plaintiff and Ms. Collman were
suspicious with the explanation given to them because they felt that it should have
taken longer to resolve the problem with the leak, particularly if the oil had to be
drained and replaced.
Benjamin Palmquist, a post-sale/pre-sale inspection specialist with DNK and
who was described by Jacob ("Jake") Gagne Adams as a "jack-of-all-trades"
mechanic, (T.T. at 222), testified that he was in the DNK garage when the Plaintiff's
truck was brought in due to an oil leak complaint. He said that he saw the mechanic
' There can be no doubt that the Plaintiff understood that the Warranty of Inspectability
only covered those items that were11ecessary for the vehicle to pass state inspection as he
w as told before he purchased the truck the t DNK would not replace the fron t hub seals
because they were no t an inspectable item. (T.T. at 57).
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remove the old oil plug and install a new one "as fast as he could" and that the
mechanic "got quite a bit of oil on himself." (T.T. at 185-86). Mr. Palmquist
testified that the loss of oil amounted to approximately 1 Y2 quarts, that the oil was
"topped off," and that the process took 5-10 minutes. (T.T. at 186). On cross
examination, Palmquist testified that he believed the mechanic who performed this
service/operation on the F-350 truck was Jake Gagne Adams. (T.T. at 200).
It was not anticipated that Mr. Adams would be called as a witness at this trial .
He was contacted at the DNK garage at the end of Mr. Palmquist's testimony and
directed to come to court to testify. He ended up being called in the defense case .
The court found Mr. Adams to be a credible witness. Mr. Adams testified that he
has never removed an oil seal plug and replaced it with a new one while the oil was
actively draining. (T.T. at 221-222). Based on the testimony of Mr. Adams the court
finds that he did not remove the oil plug and replace it with a new one on the
Plaintiff's truck as suggested by Mr. Palmquist. Whether such an operation was
performed by some other mechanic at DNK is unknown. Indeed, there is insufficient
evidence as to what actually was done to the Plaintiff's truck on that occasion as far
as the court is concerned .
What the evidence does show, and the court so finds, is that the leak (whatever
its cause) was apparently resolved. The Plaintiff has suggested that someone at DNK
introduced a product known as "stop-leak" into the coolant because when the
technician at Ray Haskell Ford replaced the engine in the vehicle "stop-leak" was
discovered in the thermostat. 4 (T .T. at 110). Mr. Palmquist, however, testified that
DNK does not have "stop-leak" in its garage. (T.T. at 212) . Mr. Adams was not
asked any questions about that subject. Finally, Jason Thibodeau, the expert
• The Plaintiff testified that he was "speculating" that DNK put the "stop-leak" in the
truck based upon the fact that his truck w as serviced and the leak stopped within 5
minutes. (T.T. at 29-30).
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mechanic called by the Plaintiff, acknowledged that there was no way to know how
or when or by whom the "stop-leak" was used on this vehicle, and that if it had been
introduced into the vehicle prior to DNK's purchase of it, DNK would have had no
reason to be aware of it. (T.T. at 110).
The court finds that whatever service was actually performed on the Plaintiff's
truck after it was brought in for the "leak" issue within a few days of purchase, was
not causally related to the engine failure that occurred in December, 2015 as the
Plaintiff was driving back to Maine from North Carolina. 5
A few days later, while the Plaintiff was driving the truck, the "check engine"
light came on. (T.T. at 25). Once again, the Plaintiff returned it to DNK where it
was discovered that the code for the "check engine" light was because the truck was
equipped with an EGR delete kit. (T.T. at 25; Joint Exhibit 12). This device,
presumably installed by the previous owner of the vehicle, affects the truck's
compliance with federal emissions standards. While the presence of such a device
on the truck would make it fail inspection in Cumberland County (because of
additional standards in that county), it would not affect its inspectability in Kennebec
County, nor would it fail state inspection standards. (T.T. at 112). See 29-A M.R.S.
§ 1751 (1) & (2-A). The "check engine" light was reset at DNK and the Plaintiff was
told to expect that it would likely come on again. (T.T. 27).
After the incident with the "check engine" light the Plaintiff, accompanied by
Ms. Collman, drove the truck and the 8400-pound camper to North Carolina to visit
his two sons. On the way down, the vibration in the rear of the vehicle became so
severe that "the rear end of the truck was jumping right up and down." (T.T. at 33).
The Plaintiff brought the vehicle to Lafayette Ford in Fayetteville, North Carolina.
• The court also notes that Mr. Thibodeau testified that a certain amount of oil leakage
is common in trucks of the size of the Plaintiff's F-350. (T.T. at 108-09).
8
(See Joint Exhibits 6, 7 & 8). The dealer determined that the rear universal joint (U
joint) was inoperable and required replacement. A windshield wiper needed to be
replaced as well. The Plaintiff paid $470.76 for these repairs. The dealer also
recommended additional service on the rear hub seal and 0-ring and the front
differential hub seal seals and dust seal, which the Plaintiff declined. The date of
the service at Lafayette Ford was December 16, 2015 and the mileage on the truck
was 108,437, meaning that the Plaintiff had driven the vehicle a total of 3,266 miles
since the time of purchase.
The service technician at Lafayette Ford performed a multi-point inspection
of the truck. It was checked for oil and fluid leaks and none were observed. The
inspection report did not make any reference to the "check engine" light being on.
The court does not recall any testimony from the Plaintiff that he noted the "check
engine light" coming on during his drive down to North Carolina. With respect to
fluids, the inspection report indicated that it "may require future attention" but did
not otherwise elaborate.
After completing the repairs at the dealership in Fayetteville, the Plaintiff and
Ms. Collman began the ride back to Maine in order to be back home for a medical
appointment and for Christmas. By the time they reached New York City the
Plaintiff noticed that the truck had a slight "skip" or hesitation to it and was "blowing
a little smoke." (T.T. at 42). Between N.Y.C. and Maine the skipping became more
pronounced and the truck was "blowing more black smoke." Upon reaching
Gardiner the truck "blew so much smoke that you couldn't even see the guy in the
toll booth." (Id at 43). A mile later, "she died completely." Id.
The Plaintiff called Wayne at DNK and told him that he had blown the motor
on the truck and asked if DNK could help. According to the Plaintiff, Wayne said:
"There is nothing we can do." (T.T. at 44). The vehicle was inoperable and was
eventually towed to Ray Haskell Ford in Waterville, arriving there on December 20,
9
2015 with a mileage reading of 109,443, having been driven 4,272 miles since its
purchase by the Plaintiff. (Joint Exhibit 10). The vehicle would not leave Ray
Haskell Ford until January 11, 2016, at which time the Plaintiff paid $21,729.29 for
a new engine and other related repairs. Initially, it was thought that replacing the
fuel injectors would solve the problem, but that turned out not to be the case. The
invoice from Ray Haskell Ford explained what was done to repair the truck:
Replaced all injectors. Tested. Cylinder 5 misfire still present, injector
code gone. Ran relative compression test, cylinder 5 very low at 3 lbs.
Customer authorized pulling head and diagnosing further. Removed
head found heat damage to head, exhaust valve, piston and plug in
cylinder five. Found evidence of head gasket leaking as well in
cylinders 3, 5 and 7. Due to excessive damage recommend complete
engine replacement. Note, found partial delete kit, EGR cooler was
removed and replaced with coolant bypass prior to arriving at
dealership. Turbo bolts were loose. Upon removal of bad engine also
found stop leak in cooling system. Removed and replaced complete
engine assembly, flushed coolers, heater core, radiator and CAC. Test
drove. Concern resolved.
Jason Thibodeau was the senior master Ford technician who worked on the
Plaintiff's truck while it was at Ray Haskell Ford. It was his opinion that one of the
injectors was "hanging open" causing "unregulated amounts of fuel" to be "dumped"
into the cylinder resulting in much hotter combustion thereby causing damage to the
engine, including a melted piston. (T.T. at 84-85). Mr. Thibodeau opined at trial
that he believed that this was the result of the quality of the oil, but he acknowledged
that at his deposition he had testified that the problem was related to an electrical
fault inside the engine and he confirmed at trial that was still a possibility. (T.T. at
101).
The court found Mr. Thibodeau to be a generally credible witness. The one
area, however, in which the court found his testimony to be somewhat problematic
was in how much weight or reliance should be given to his opinions as to what DNK
10
should have known or been aware of when it had possession of the vehicle a little
over 4200 miles and about one month earlier.
For example, Mr. Thibodeau was dubious that an oil change had actually been
performed by DNK as indicated in Joint Exhibit 2, roughly 4200 miles prior to the
engine in the truck suffering a catastrophic failure. (T .T. at 89-90). He based this
on the consistency of the oil he observed after the engine failure. In particular, he
emphasized that the oil he saw was darker and thicker than he would have anticipated
at 3000-4000 miles. He explained that the oil he saw was more consistent with oil
at 10,000 to 12,000 miles. Unlike Mr. Adams, however, Mr. Thibodeau did not
provide any explanation of how oil in a turbo diesel vehicle differs from oil in a
regular gas engine. (T.T. at 240-41).
As another example, Mr. Thibodeau testified about oil from the truck leaking
down the rear of the engine block over a long period of time which should have been
seen by DNK. (T.T. at 87-89, 93-94). The truck, however, was inspected for oil
leaks by Lafayette Ford just days before the engine failure and none were noted on
the multipoint inspection report. (Joint Exhibit 6). Moreover, Mr. Thibodeau
testified that it would not be surprising to have oil leaks in a truck of this size and
such leakage would have to reach a certain threshold level before it would cause the
truck to fail state inspection standards. (T.T. at 108-09).
With respect to the u-joint, Mr. Thibodeau theorized that there was a problem
with it when it left DNK's lot (T.T. at 116), but he also acknowledged that the wear
and tear on a u-joint is a gradual process and he could not say what the condition of
the u-joint was when the truck was still in DNK's possession. (T.T. at 120).
Ultimately, the technician performing the used car check and the state inspection
must use discretion in deciding whether the wear and tear has become excessive.
(T.T. at 120).
11
Regarding the misfiring injector, Mr. Thibodeau testified that if there was no
misfiring at DNK he would not expect DNK to recognize the problem. Similarly, if
there had been misfiring while the truck was at Lafayette Ford, he would expect that
it would have been revealed on the multipoint inspection. (T.T. at 102-03).
Finally, Mr. Thibodeau recognized that the Plaintiff's vehicle could have
passed inspection and then broke down 30 days later because passing state inspection
standards is "not a guarantee." (T.T. at 113).
Thus, while the court found Mr. Thibodeau to be a knowledgeable and skilled
master service technician, his opinions were based on his work on the truck after it
had experienced a catastrophic engine failure. As a result, he had the benefit of being
able to dismantle the engine and make observations that neither DNK nor Lafayette
Ford were able to make. For that reason, the court has closely analyzed the totality
of the evidence to determine whether the Plaintiff has met his burden of proof as to
his remaining causes of action. The remaining counts before the court for decisions
are Counts I, III and VI. The court will address each cause of action in tum.
DISCUSSION
Count I - Unfair Trade Practices Act (UPTA)
Title 5 M.R.S §207 declares unlawful "unfair or deceptive acts or practices in
the conduct of any trade or commerce ...." Section 213 authorizes a private cause
of action by anyone who purchases goods "primarily for personal, family or
household purposes and thereby suffers any loss of money or property ... as a result
of the use or employment by another person of a method, act or practice declared
unlawful by section 207 ." The statute allows for the award of actual damages as
well as attorney's fees and costs .6
'The Defendant has argued that, at the very least, the Plain tiff is not entitled to any
award of attorney's fees because he failed to comply with the written demand for relief
12
Whether a trade practice is unfair or deceptive is a question of fact. Binette v.
Dyer Library Ass'n. 688 A.2d 898, 906 (Me. 1996). As the Law Court has pointed
out on more than one occasion, "[t]he UPTA does not contain a definition of either
the term 'unfair' or 'deceptive."' State v. Weinschenk, 2005 ME 28, ~ 15,868 A.2d
200; State v. Shattuck, 2000 ME 38, ~ 13, 747 A.2d 174. Rather, whether an act or
practice is unfair or deceptive in violation of UPTA "must be made by the fact-finder
on a case-by-case basis." Id.
An unfair act or practice "(1) must cause, or be likely to cause, substantial
injury to consumers; (2) that is not reasonably avoidable by consumers, and; (3) that
is not outweighed by any countervailing benefits to consumers or competition."
Weinschenk, 2005 ME 28, ~ 16. A deceptive act or practice "is a material
representation, omission, act or practice that is likely to mislead consumers acting
reasonably under the circumstances." Id. at~ 17. See also Benner v. Wells Fargo
Bank, N.A., 2018 U.S. Dist. LEXIS 52716 *36, n.16 (March 29, 2018) (Torresen,
CJ.). A material representation, omission, act or practice "involves information
that is important to consumers and, hence, likely to affect their choice of, or conduct
regarding, a product." In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 164 (1984).
Finally, an act or practice may still be deceptive notwithstanding a defendant's good
faith or lack of intent to deceive. Binette, 688 A.2d at 906.
The court finds that the Plaintiff has failed to show by a preponderance of the
evidence that the Defendant employed any unfair or deceptive act or practice within
the meaning of the UPTA in connection with the sale of the F-350 Ford truck. The
Plaintiff has argued that the truck was "breaking down" shortly after it was
purchased and that the Defendant knew or should have known of the various defects
with the vehicle.
as required by 5 M.R.S. §213(1-A). In light of the court's ultimate decision under Count I
of the amended complaint, it is not necessary to address this issue.
13
The Plaintiff's argument, however, ignores the fact that the Defendant did not
represent that the truck was free of all defects, nor did it represent that it was aware
of all potential defects in the vehicle. Indeed, the Defendant made it clear to the
Plaintiff that the truck he was buying had been acquired by DNK at an out of state
auction and historical information about the vehicle was not available.
The Plaintiff has argued that his expert opined that the oil leakage had been
on-going for a long period of time and, therefore, DNK should have been aware of
it if it had done a competent inspection of the vehicle. This testimony, however,
must be balanced against the fact that Mr. Thlbodeau himself testified that oil leaks
in trucks like this one are common and do not necessarily mean that the truck would
fail inspection standards. Moreover, Lafayette Ford did not make note of any leaks
when it inspected the truck on December 16, 2015,just a few days before the engine
in the truck failed.
The court is not persuaded by the suggestion that DNK, in essence, created a
fictitious service order documenting that it changed the oil and filter when, in fact,
it did not.
The warranty that the Plaintiff received was limited to the warranty of
inspectability as required by 10 M.R.S. §1474, in chapter 217. A violation of that
chapter "shall constitute a violation of Title 5, chapter 10, Unfair Trade Practices
Act." 10 M.R.S. §1477(1). The court finds that the Plaintiff has not demonstrated
by a preponderance of the evidence that the Defendant violated the warranty of
inspectability. The fact that there were issues with the truck, including a leak and a
non-specific vibration, does not prove that the vehicle did not meet state inspection
standards at the time it was purchased by the Plaintiff and for the first 1000 miles.
This is true as it applies to the windshield wiper replacement and the u-joint
replacement that became necessary when the truck was taken to Lafayette Ford. The
Maine Motor Vehicle Inspection Manual requires that a vehicle should be rejected
14
for an inspection sticker if any wiper blade is "worn." Similarly, a vehicle should
be rejected if the universal joints show "excessive wear or play." See Classes A &
E Motor Vehicle Inspection Standards, 16-222 Chapter 1, Section 170 (8) (A) (3)
(Windshield Wipers) and (10) (G) (13) (Springs, Torsion Bar, Shocks, Bushings and
Axles). In both instances, the technician performing the inspection must make a
judgment call as to whether the item in question is excessively worn. As the
Plaintiff's expert stated, an inspection sticker is not a guarantee that the truck will
not break down 30 days later. In short, the evidence before the court falls short of
showing, more likely than not, that the Defendant engaged in unfair or deceptive
acts or practices in connection with its sale of the F-350 truck to the Plaintiff.
Coant III - Breach of Warranty of Inspectability - 10 M .R.S. §1474
Title 10 M.R.S. §1474(1) mandates that a dealer of used motor vehicles, as
defined in section 1471(2), warrants that the vehicle was inspected in accordance
with 29-A M.R.S. § 1751, and any rules promulgated pursuant thereto and that the
vehicle meets those inspection standards. The warranty of inspectability may not be
excluded, limited, modified or waived. 10 M.R.S. § 1474(2).
For the reasons already stated, the court finds that the Plaintiff has not satisfied
his burden of proving by a preponderance of the evidence that the Defendant failed
to perform its obligations under the warranty of inspectability as required by 10
M.R.S. §§ 1474(1) & 1476(1).7
1
Th e Defendant further argu es that th Plaintiff is precluded from bi-inging an action
under 10 M.R.S. §1476 becau se he £ailed to comply with the written notice as required by
section 1476(3)(B ). Becau se the court has found that the Plaintiff has not m et its burden
of p roof on th e meri ts of this cau se of action there is n o n eed to address this issue.
15
Count VI - Breach of Express and Implied Warranties of
Merchantability
In Count VI of his amended complaint, the Plaintiff has asserted a cause of
action based on express warranties under 11 M.R.S. §2-313 and the implied warranty
of merchantability under 11 M.R .S. §2-314.
In the court's view, the Plaintiff has not presented sufficient evidence to
establish that any express warranty was made or violated by the Defendant. The
evidence from the Plaintiff at trial supported the view that he was looking for a good
sized truck capable of towing his 8400-pound Gulfstream camper. At most, the
Plaintiff showed that the salesman pointed him towards the F-350 truck, which
would be a suitable "good-sized" truck for towing such a camper. Beyond that,
however, the Plaintiff has not established any express warranty with respect to the
mechanical condition of the truck. On the contrary, the evidence was clear that no
express warranties were given except the warranty of inspectability. (Joint Exhibit
4).
With respect to the implied warranty of merchantability, this was expressly
excluded. (Joint Exhibit 4). DNK was within its rights to exclude the implied
warranty of merchantability. 11 M.R.S. §2-316(5) and 10 M.R.S. §1473.
Finally, the court is not persuaded that the Plaintiff "froze" his rights under
the warranty of inspectability by returning the truck to DNK after the oil leak was
discovered and the "check engine" light came on. The leakage stopped and was not
noticed again, even after the truck was driven to North Carolina and inspected by
Lafayette Ford. The existence of the EGR delete kit was not prohibited by state
inspection standards applicable to Kennebec County. The non-specific vibration the
Plaintiff noticed in his test drive of the truck may (or may not) have been related to
the ultimate failure of the u-joint 3200 miles later on the trip to North Carolina.
Nevertheless, there was insufficient evidence that the vehicle did not meet inspection
16
standards at the time it was sold to the Plaintiff and within the first 1000 miles of
use.
In the final analysis, the Plaintiff purchased a used vehicle which he knew had
been obtained at an out of state auction. He did not seek to have the truck examined
or inspected by an independent mechanic/technician. He expressly declined to
purchase extended warranty coverage on the vehicle and chose to accept the limited
warranty of inspectability, having been informed that he would "pay all costs for any
repairs not related to meeting state inspection standards." (Joint Exhibit 4).
The court is left with a lack of persuasive evidence to conclude, by a
preponderance of the evidence, that the Defendant breached the only warranty it
gave to the Plaintiff, and is left to the realm of speculation. That is simply not enough
to satisfy the Plaintiff's burden of proof.
CONCLUSION
For the foregoing reasons, the entry is:
Judgment for the Defendant on Counts I, III and VI of the Plaintiff's Amended
Complaint.
The Clerk is directed to incorporate this Decision and JudgJBent into the
docket of this case by notation reference in accordance with M
Dated: September 19, 2018
William R. Stokes
Justice, Superior Court
Fnter~r.f on the. docket 9~
17
JEFFREY STEARNS - PLAINTIFF DISTRICT COURT
C/0 CHARLES T FERRIS ESQ 11 PARK STREET WATERVILLE
WATERVILLE ME 04901 Docket No WATDC-CV-2016-00081
Attorney for: JEFFREY STEARNS
CHARLES FERRIS - RETAINED
FERRIS GURNEY AND CROOK PC DOCKET RECORD
11 PARK STREET
WATERVILLE ME 04901
vs
CC AND CC INC DBA DNK USED CARS - DEFENDANT
CHARLES F CLARK, CORP CLERK, 530 MAINE AVENUE
FARMINGDALE ME 04344
Attorney for: CC AND CC INC DBA DNK USED CARS
MATTHEWS WARNER - RETAINED
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
Filing Document: COMPLAINT Minor Case Type: CONTRACT
Filing Date: 07/01/2016
Docket Events:
07/01/2016 FILING DOCUMENT - COMPLAINT FILED ON 07/01/2016
07/05/2016 Party(s): JEFFREY STEARNS
ATTORNEY - RETAINED ENTERED ON 07/01/2016
Plaintiff's Attorney: CHARLES FERRIS
07/05/2016 Party{s): CC AND CC INC DBA DNK USED CARS
SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 06/23/2016
08/17/2016 Party(s): cc AND cc INC DBA DNK USED CARS
ATTORNEY - RETAINED ENTERED ON 07/21/2016
Defendant's Attorney: MATTHEWS WARNER
08/17/2016 Party(s): cc AND cc INC DBA DNK USED CARS
MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 07/21/2016
Defendant's Attorney: MATTHEWS WARNER
TO FILE ANSWER
08/17/2016 Party(s): CC AND CC INC DBA DNK USED CARS
RESPONSIVE PLEADING - ANSWER FILED ON 08/08/2016
Defendant's Attorney: MATTHEWS WARNER
08/19/2016 Party(s): cc AND cc INC DBA DNK USED CARS
MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 08/17/2016
VALERIE STANFILL, JUDGE
08/19/2016 ORDER - COURT ORDER ENTERED ON 08/17/2016
VALERIE STANFILL, JUDGE
DEFENDANT'S DEADLINE TO ANSWER THE COMPLAINT TO BE EXTENDED UNTI AUGUST 8, 2016. COPY ATTY
FERRIS AND ATTY WARNER
Page 1 of 7 Printed on: 09/21/2018