MVSRA claim fails where defendant 'performed' service

By Correy E. Stephenson
BridgeTower Media Newswires
 
DETROIT—The Motor Vehicle Service and Repair Act (MVSRA) does not permit the imposition of liability on a defendant that performs a service, albeit negligently, a panel of the Michigan Court of Appeals has ruled.

In Anaya v. Betten Chevrolet, Inc., the panel vacated a directed verdict in favor of the plaintiff — and accompanying $40,000 damages award —and remanded for entry of an amended judgment in favor of the defendants.

The published opinion was written by Judge Mark T. Boonstra, joined by Judges Jane E. Markey and Stephen L. Borrello.

Background

In October 2013, Samuel Anaya and Doris Myricks took her automobile to Betten Chevrolet for service and maintenance.
Service technician Matt Root performed a tire rotation but did not properly tighten the lug nuts on the left front wheel of the vehicle, according to the COA opinion.

Myricks drove away with Anaya as her passenger.

About two blocks from the dealership, the left front wheel came off the vehicle, which caused it to skid and hit a curb. Anaya complained of severe low back and leg pain following the accident.

Legal action

Anaya sued the dealership and Root, alleging that they had breached their duties to properly perform vehicle maintenance, rotate the tires and secure the tires to the vehicle, causing him various injuries and damages.

He later amended his complaint to additionally allege that the defendants violated the MVSRA. Specifically, he claimed the defendants ran afoul of MCL 257.1307a by charging for a repair that was not performed and by failing to perform a promised repair within the period of time agreed or a reasonable time.

Prior to trial, the defendants admitted that they breached their duty not to perform the tire rotation negligently.

A jury trial was held on the issues of causation and damages relating to Anaya’s negligence claim. At the close of plaintiff’s proofs, the defendants moved for a directed verdict.

The Muskegon Circuit Court denied the motion and instead granted Anaya’s motion for a directed verdict, ruling that he had presented sufficient evidence that the defendants violated the MVSRA by charging for a repair that was not performed.

Jurors then returned a $40,000 damage award for Anaya and the court added attorney fees and costs in excess of $70,000.

The defendants appealed.

Analysis

The COA began with the text of the MVSRA, which provides: “A motor vehicle repair facility ... shall not, directly or through an agent or employee, do any of the following: (a) Charge for repairs that are in fact not performed ... (e) Fail to perform promised repairs within the period of time agreed, or within a reasonable time, unless circumstances beyond the control of the facility prevent the timely performance of the repairs and the facility did not have reason to know of those circumstances at the time the contract was made.”

However, the statute does not define the term “perform.”

Consulting a dictionary to aid its interpretation, the COA said the word “generally refers to completion of an action according to an established procedure; the term does not imply that the action has been completed properly, successfully or without mistake.”

Further, the term “perform” as used in context by the Legislature didn’t support the plaintiff’s position that the repairs must be performed successfully or without error, the court said.

“Our review of the statute as a whole supports the conclusion that the Legislature intended to regulate repair procedures and to insure that customers were only charged for repairs that were necessary and were actually performed, as well as to protect an individual from unknowingly driving a vehicle repaired with substandard parts or an unrepaired malfunction,” the COA wrote. “This language does not support the trial court’s conclusion that a facility violates MCL 257.1307a by performing a repair negligently; indeed, such a conclusion would transform every negligent repair into a statutory violation.”

There was no evidence presented at trial that Root did not remove the tires and replace them on different axles or sides of the vehicle, as required by a tire rotation, the court noted.

In fact, the defendants admitted they replaced the lug nuts but failed to tighten them sufficiently and plaintiff’s counsel advised the jury in his opening statement that Root failed to use the torque wrench to tighten them.

“We conclude, under the plain language of MCL 257.1307a, that defendants ‘performed’ a tire rotation, albeit negligently,” the COA wrote. “There is no support for the trial court’s determination that a tire rotation is not ‘performed’ if a service person fails to sufficiently tighten the lug nuts on one tire. To accept the trial court’s interpretation would essentially turn every incorrectly performed repair into a violation of MVSRA. We do not believe that comports with the Legislature’s intent as expressed in the language of the statute.”

The court also considered the defendant’s argument that the plaintiff could not bring a claim under the MVSRA because Anaya was not a customer of the defendants or the owner of the vehicle.

MCL 257.1336 creates a cause of action for a “person” injured as a result of a motor vehicle repair facility’s violation of MVSRA, the COA explained, and does not require that the injured person be a customer of the motor vehicle repair facility or the owner of the vehicle.

Adding additional support to this determination, a separate portion of the statute — MCL 257.1331 — creates a separate cause of action and limits recovery specifically to customers.

“We presume that the Legislature’s use of different terms is intentional,” the COA wrote.

Attorney comments

Westland attorney Donald M. Fulkerson, who represented the plaintiff, expressed his disappointment with the fact the COA didn’t consider Anaya’s second claim under the MVSRA, alleging that the defendants made a material misrepresentation of fact to Myricks.

“Inexplicably, the court did not even address the claim, which was in our briefs and discussed at oral argument,” Fulkerson said. “I am at a loss as to how the panel neglected or decided not to consider one of the two alternative bases for the plaintiff’s statutory claim, especially considering this is a published opinion and they reversed and remanded in favor of the dealership.”

The COA has already denied the plaintiff’s motion to reconsider, but Fulkerson plans to file an application for leave to appeal the decision to the Michigan Supreme Court.

David M. Shafer, who represented the defendants, did not respond to a request for comment.