02-1413 Schonscheck v. Paccar, Inc., d/b/a Kenworth Truck Company

Listen to this article

“Here, Kenworth argued in its summary judgment motion that Schonscheck’s demand was defective, and alluded to its inability to understand what relief Schonscheck sought. However, Kenworth did not claim that Wis. Stat. sec. 218.0171(2)(b)(2) requires a consumer to expressly choose between a refund or replacement. Whether we designate the ‘consumer must elect’ contention as an argument, an issue, or a theory the trial court was blindsided.

Although the engine in plaintiff’s truck was not covered in Kenworth’s express warranty, Kenworth is nevertheless liable for nonconformities to that engine because a manufacturer cannot simply exclude all major parts from its warranty to avoid lemon law liability.

“To do so would put consumers back in the area of ‘inadequate, uncertain and expensive remedies.’ We therefore conclude that the language of the lemon law unambiguously makes Kenworth liable for nonconformities to the Cummins engine even though the engine is not covered in the Kenworth’s express warranty. …

“Although Schonscheck has been able to make twenty-three trips with the truck, the truck has not functioned properly since Schonscheck’s first trip. The truck was presented to Kenworth on at least twenty-one different occasions and was out of service for at least forty-nine days. Schonscheck testified that he purchased this truck to increase the number of trips he took per year. He stated that loads were available for him, but he had to turn down three to five loads due to the truck being in the shop. Based on this testimony, the jury could reasonably conclude that the truck’s use and value were substantially impaired.”

Judgment for plaintiff is affirmed.

Recommended for publication in the official reports.

Dist III, Brown County, Atkinson, J., Peterson, J.

Attorneys:

For Appellant: Frank J. Daily, Milwaukee; Patrick W. Schmidt, Milwaukee; Jeffrey Oxford Davis, Milwaukee; Patrick S. Nolan, Milwaukee

For Respondent: Mark Romano, Garden City, MI