Tina and Thad Crowe appeal from the trial court’s order granting summary judgment to defendant CarMax Auto Superstores, Inc. The record shows that the Crowes purchased a 1999 Dodge Durango automobile from CarMax on October 5, 2002. They received a 30-day/1000 mile express warranty from Carmax, and they purchased a 18-month/18,000 mile “Mechanical Repair Agreement” MRA. The obligor on this extended warranty was Consumer Program Administrators, Inc., not CarMax. Over the course of the next year, the Crowes brought the vehicle to CarMax and other repair facilities numerous times for a variety of repairs. All repairs made within the original and extended warranty periods were made without cost to the Crowes, except for deductibles, although those were sometimes waived. Nevertheless, the Crowes contend they lost confidence in the vehicle, and on May 30, 2003, the Crowes filed a complaint against CarMax, asserting claims for breach of implied and express warranties under the Magnuson-Moss Warranty Act and Georgia law. The trial court granted summary judgment to CarMax on both the express and implied warranty claims, and the Crowes do not challenge that ruling insofar as it pertains to their express warranty claims. However, the Crowes challenge the grant of summary judgment on their implied warranty claim, contending that they have established a viable claim under the Magnuson-Moss Warranty Act. The Magnuson-Moss Warranty Act allows a “consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under . . . an implied warranty . . .to bring suit for damages and other legal and equitable relief.” 15 USC § 2310 d 1 The Act defines “implied warranty” as “an implied warranty arising under State law . . . in connection with the sale of a supplier of a consumer product.” 15 USC § 2302 7 To recover, therefore, the Crowes must show that CarMax breached the implied warranty of merchantability arising under Georgia law. See id; see also Sharpe v. Gen. Motors Corp. , 198 Ga. App. 313, 314 3 401 SE2d 328 1991 Magnuson-Moss Warranty Act ‘relates to damages , not liability, and provides for consumers’ recovery of costs and attorney’s fees in successful action for breaches of warranty under state law ‘. Dildine v. Town & County Truck Sales, Inc. , 259 Ga. App. 732, 733-734 577 SE2d 882 2003.
We recently considered the implied warranty of merchantability under Georgia law in the case of Soto v. Carmax Auto Superstores, Inc., __Ga. App.__ Case Number A04A1642, decided March 1, 2005: Under OCGA § 11-2-314 1, “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. This warranty protects consumers from defects or conditions existing at the time of sale.” Citations, punctuation, and footnotes omitted. Dildine v. Town & Country Truck Sales, 259 Ga. App. at 734. In Jones v. Marcus , 217 Ga. App. 372, 373 1 457 SE2d 271 1995, this court held that “it is obvious that the alleged defect or condition must have existed at the time of the sale.” Id. at 373 1. This is logical, because it is clear that “the implied warranties warrant against defects or conditions existing at the time of sale, but they do not provide a warranty of continuing serviceability. Cit.” Id. It follows that proof that the vehicle was defective when it was sold is an essential element of the Crowes claim for breach of the implied warranty of merchantability. See also McDonald v. Mazda Motors , 269 Ga. App. 62, 68 2 b 603 SE2d 456 2004 physical precedent only latent defect existing at time of sale essential to recovery on claim of breach of implied warranty; Simpson v. Hyundai Motor America , 269 Ga. App. 199, 204 1 b 603 SE2d 723 2004. Soto v. Carmax , slip op. at 3-4
