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

Wis.App.,2013.

Schweiger v. Kia Motors America, Inc.

Slip Copy, 2013 WL 1149765 (Wis.App.)

v.

KIA MOTORS AMERICA, INC., Defendant–Appellant–Cross–Respondent.

No. 2012AP962.

March 21, 2013.

This case arises from two Wisconsin Lemon Law claims and a federal Magnuson–Moss 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

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

WIS JI—CIVIL 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., ¶¶ 3–7.