978-1285770178 Case Problem Case CPC-19-07 Part 1

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Wis.App.,2013.
Schweiger v. Kia Motors America, Inc.
Slip Copy, 2013 WL 1149765 (Wis.App.)
v.
KIA MOTORS AMERICA, INC., DefendantAppellantCrossRespondent.
No. 2012AP962.
March 21, 2013.
This case arises from two Wisconsin Lemon Law claims and a federal MagnusonMoss Warranty Act claim that Randal
Schweiger brought against Kia Motors America, Inc. A jury found in favor of Schweiger on one of the Lemon Law claims
and on the Warranty Act claim. The circuit court dismissed the remaining claim. Kia appeals the resulting judgment, and
Schweiger cross-appeals.
(3) whether the jury's damages finding in the special verdict rendered the entire verdict invalid;
(4) whether Kia was entitled to a new trial because the special verdict form was improper; and
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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
all of Schweiger's claims, based on its affirmative defense that Schweiger's claims were barred by Kia's refund offer.FN2
FN1. Schweiger titled his motion a “motion for judgment,” but we treat the motion as one for summary judgment
because it is plain from Schweiger's brief in support of that motion that he relied on evidentiary materials in the rec-
ord. The circuit court and Kia similarly treated the motion as one for summary judgment.
its defense as to all three of Schweiger's claims, the defense fails for the reasons explained starting at ¶ 14 in the text.
12 The circuit court granted summary judgment to Kia on Schweiger's failure-to-refund claim, dismissing that claim
based on the doctrines of election of remedies and unjust enrichment. The court denied Kia's motion on the two remaining
claims that were tried. The court entered judgment accordingly. FN3
lier partial judgment on the jury verdict and asked Kia to draft a judgment to “supplement that judgment,” meaning
the partial judgment. Kia agreed to this procedure.
DISCUSSION
Kia's Appeal
(3) whether the jury's damages finding in the special verdict rendered the entire verdict invalid;
(4) whether Kia was entitled to a new trial because the special verdict form was improper; and
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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
WIS JICIVIL 3304(footnote omitted); see also
then turn to Kia's argument that there was no evidence
that a nonconformity remained unrepaired during the first
year after delivery of the vehicle (the fourth and fifth ele-
separate analysis under the Warranty Act. The
Wisconsin Civil Jury Instructions state the ele-
ments of a Warranty Act claim as follows:
3. that (plaintiff) afforded (defendant) ... a rea-
sonable opportunity to repair the defect or
malfunction;
a. “Nonconformity
30 Kia argues that Schweiger failed to present evi-
dence of a “nonconformity.” “Nonconformity” means, as
31 According to Kia, Schweiger failed to present
evidence of a nonconformity because: Schweiger failed to
introduce evidence of the type of defect covered by Kia's
i. Evidence of Defect in Material or Workmanship
32 We begin with Kia's argument that Schweiger
failed to introduce evidence of the type of defect covered
ship documented that one or more components were
faulty, malfunctioning, or had failed. The dealership re-
peatedly attempted to fix the starting problem, including
FN6. Kia's dealership's service manager testified
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that “PCM” refers to the “power control mod-
ule,” which is “basically a computer on the car
35 Kirichkow further testified, consistent with the
service records, that there were multiple instances in
only about one-eighth full.
37 Kia's dealership's service manager testified that
brought in for service. He also conceded that it is reason-
able for a customer to expect that a vehicle will start
without a problem if the low fuel light is not on.
be reasonable to assume that the vehicle should run when
the fuel light is not on, and that the starting problem was a
“defective condition” for a 2008 Kia Spectra under war-
sumer to keep the fuel tank at least one-quarter full to
avoid starting problems; and that he was unaware of any
automobile manufacturer that advises consumers to keep
the fuel tank at least one-quarter full to avoid starting
41 Based on this evidence, we conclude that a jury
could reasonably infer that the vehicle would not reliably
start when the fuel tank was less than one-quarter full and
that this problem with the vehicle was due to an underly-
lacks merit under Dobbratz Trucking & Excavating, Inc.
v. PACCAR, Inc., 2002 WI App 138, 256 Wis.2d 205, 647
N.W.2d 315. Indeed, although the parties do not cite
unable to remedy and asserted was “normal.” Id., ¶¶ 37.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
all of Schweiger's claims, based on its affirmative defense that Schweiger's claims were barred by Kia's refund offer.FN2
FN1. Schweiger titled his motion a “motion for judgment,” but we treat the motion as one for summary judgment
because it is plain from Schweiger's brief in support of that motion that he relied on evidentiary materials in the rec-
ord. The circuit court and Kia similarly treated the motion as one for summary judgment.
its defense as to all three of Schweiger's claims, the defense fails for the reasons explained starting at ¶ 14 in the text.
12 The circuit court granted summary judgment to Kia on Schweiger's failure-to-refund claim, dismissing that claim
based on the doctrines of election of remedies and unjust enrichment. The court denied Kia's motion on the two remaining
claims that were tried. The court entered judgment accordingly. FN3
lier partial judgment on the jury verdict and asked Kia to draft a judgment to “supplement that judgment,” meaning
the partial judgment. Kia agreed to this procedure.
DISCUSSION
Kia's Appeal
(3) whether the jury's damages finding in the special verdict rendered the entire verdict invalid;
(4) whether Kia was entitled to a new trial because the special verdict form was improper; and
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
WIS JICIVIL 3304(footnote omitted); see also
then turn to Kia's argument that there was no evidence
that a nonconformity remained unrepaired during the first
year after delivery of the vehicle (the fourth and fifth ele-
separate analysis under the Warranty Act. The
Wisconsin Civil Jury Instructions state the ele-
ments of a Warranty Act claim as follows:
3. that (plaintiff) afforded (defendant) ... a rea-
sonable opportunity to repair the defect or
malfunction;
a. “Nonconformity
30 Kia argues that Schweiger failed to present evi-
dence of a “nonconformity.” “Nonconformity” means, as
31 According to Kia, Schweiger failed to present
evidence of a nonconformity because: Schweiger failed to
introduce evidence of the type of defect covered by Kia's
i. Evidence of Defect in Material or Workmanship
32 We begin with Kia's argument that Schweiger
failed to introduce evidence of the type of defect covered
ship documented that one or more components were
faulty, malfunctioning, or had failed. The dealership re-
peatedly attempted to fix the starting problem, including
FN6. Kia's dealership's service manager testified
that “PCM” refers to the “power control mod-
ule,” which is “basically a computer on the car
35 Kirichkow further testified, consistent with the
service records, that there were multiple instances in
only about one-eighth full.
37 Kia's dealership's service manager testified that
brought in for service. He also conceded that it is reason-
able for a customer to expect that a vehicle will start
without a problem if the low fuel light is not on.
be reasonable to assume that the vehicle should run when
the fuel light is not on, and that the starting problem was a
“defective condition” for a 2008 Kia Spectra under war-
sumer to keep the fuel tank at least one-quarter full to
avoid starting problems; and that he was unaware of any
automobile manufacturer that advises consumers to keep
the fuel tank at least one-quarter full to avoid starting
41 Based on this evidence, we conclude that a jury
could reasonably infer that the vehicle would not reliably
start when the fuel tank was less than one-quarter full and
that this problem with the vehicle was due to an underly-
lacks merit under Dobbratz Trucking & Excavating, Inc.
v. PACCAR, Inc., 2002 WI App 138, 256 Wis.2d 205, 647
N.W.2d 315. Indeed, although the parties do not cite
unable to remedy and asserted was “normal.” Id., ¶¶ 37.

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