David Bottai v. Wiz Leasing, Inc. (2013)

MEMORANDUM OF DECISION

The plaintiff, David Bottai, filed this substitute complaint against the defendant, Wiz Leasing, Inc., on March 6, 2013 alleging a breach of contract based on the plaintiff's purchase of a 2003 Honda Civic from the defendant on May 15, 2012.   The matter was tried to the court on October 30, 2013.   The plaintiff filed a post-trial brief on November 13, 2013 and defendant filed its brief on November 20, 2013.

The plaintiff, who lives in Charlestown, Rhode Island, testified that online he found an advertisement for the 2003 Honda Civic on Craig's List and on May 15, 2012, traveled to Stratford, Connecticut to inspect the car, arriving at approximately 7:30 p.m. The business was about to close when a salesman named Michael told the plaintiff that there had been interest in the car and that if plaintiff didn't leave a down payment, the automobile might not be there when the plaintiff returned.   Plaintiff tendered a $500.00 down payment on a credit card.   Plaintiff also executed a written purchase order (plaintiff's exhibit 2) dated May 15, 2012, which he signed in eight places and initialed in one place.

The plaintiff returned to Stratford on May 17, 2012 to make the final payment of $5,290.00 and take delivery.   On this occasion the plaintiff executed and signed a “buyer's guide” (plaintiff's exhibit 3) and a “We Owe” form (defendant's exhibit A) which contained a listing of what was owed to the plaintiff (customer) by the defendant.

On the way back to Rhode Island, the plaintiff had difficulties with the automobile, including a side mirror and the passenger side window.   Thereafter, the engine light went on.   The plaintiff telephoned the defendant who told him that he had purchased the vehicle “as is.”   The plaintiff informed the defendant that he was concerned about the emissions inspection in Rhode Island but the defendant told him that the defendant would have no way of knowing what was required in Rhode Island.   During its case, the defendant called one of its mechanics who testified and presented evidence that the subject vehicle passed the Connecticut emissions test.

The plaintiff spent some $1,768.00 on repairs to the automobile in order to pass the Rhode Island inspection.

The plaintiff's claim of breach of contract is undermined by the documentary evidence he presented.   The retail purchase order (plaintiff's Exhibit 2) which plaintiff signed in numerous places provides in part:

“AS IS.” THIS VEHICLE IS SOLD “AS IS.” THIS MEANS THAT YOU WILL LOSE YOUR IMPLIED WARRANTIES.   YOU WILL HAVE TO PAY FOR ANY REPAIRS NEEDED AFTER SALE. IF WE HAVE MADE ANY PROMISES TO YOU, THE LAW STATES, WE MUST KEEP THEM, EVEN IF WE SELL “AS IS.” TO PROTECT YOURSELF ASK U.S. TO MAKE ALL PROMISES IN WRITING.

The above section is all in capital letters on the retail purchase order for motor vehicle and was signed by the plaintiff.   Additionally, the plaintiff signed a section which read, “There are no other promises made to me.”   The plaintiff signed an acknowledgment that the motor vehicle was not guaranteed and again signed a second section entitled “AS IS” as above.

Further, the Buyer's Guide (plaintiff's Exhibit 3) executed and signed by the plaintiff when he took delivery of the vehicle provides:

“AS IS”—NO WARRANTY

YOU WILL PAY ALL COSTS FOR ANY REPAIRS.   THE DEALER ASSUMES NO RESPONSIBILITY FOR ANY REPAIRS REGARDLESS OF ANY ORAL STATEMENTS ABOUT THE VEHICLE.

The Buyer's Guide also contained a section making a service contract available to the plaintiff.   Finally, the Buyer's Guide signed by the plaintiff when he took delivery of the vehicle on May 17, 2012, provided on page 2 an extensive list of some major defects that may occur in used motor vehicles.   The subject motor vehicle was some 9 years old when the plaintiff purchased and took possession of it.

This court will find that the language employed in the purchase order and in the Buyer's Guide is plain and unambiguous.   See Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 13–14 (2008).

In his brief, the plaintiff argues that the defendant breached the implied warranty of merchantability.   The plaintiff's claim is belied by Conn. Gen.Stat. § 42–221(c)3 which precludes application of implied warranties on the sale of used motor vehicles over 7 years of age or older.   In addition, the plaintiff drove the subject motor vehicle over 2,000 miles in the course of some six weeks subsequent to its purchase.

Based on the testimony and evidence submitted during the trial, the court will find that the plaintiff has failed to prove breach of contract by the defendant by a preponderance of the evidence standard.   Accordingly, a verdict for the defendant on the one-count substitute complaint will enter.

SO ORDERED.

HARTMERE, J.

Hartmere, Michael, J.