The magic of privity in express product warranty claims: a plaintiff's perspective.

• Author: Reis, John W.
• Position: Florida

It is difficult to imagine that a national vehicle manufacturer or any manufacturer can issue an express warranty to a first purchaser but not honor its terms.

The law of Florida is increasingly clear on at least one point in the product liability arena. Implied warranties are generally not enforceable if there is no privity between the claimant and the manufacturer (with some exceptions). (1) But what of express warranties? Indeed, what of express manufacturer warranties that come with the product to the first retail purchaser? Surely, an express, written product warranty with the manufacturer's name on it accompanying a brand new product sold to the first retail purchaser through an authorized dealer or retailer is enforceable against the manufacturer, is it not? Not according to many manufacturers. And the case law is just murky enough for manufacturers to succeed sometimes with that argument.

A Working Hypothetical

Before considering the case law, consider the following hypothetical. A pick-up truck catches fire while parked unattended with no keys in the ignition. The fire is the result of a clear product defect. Indeed, the truck manufacturer, Giant Motor Company, sent a recall on the truck the very day of the fire--too late for the truck's owner, Mr. Trucker. Trucker bought the truck new last year at a Giant dealership called World Giant. Trucker hires attorney Lil Lawyer to pursue a claim against Giant. Lawyer sues Giant for, among other counts, breach of implied warranty and breach of an express four-year warranty issued by Giant on the vehicle. Lawyer does not sue the dealership because the dealer issued a disclaimer stating that buyer's only remedies are the remedies set forth in Giant's express four-year warranty.

Giant hires the behemoth firm of Bigg Wynn to defend the case. The Bigg Wynn lawyers file a motion to dismiss all counts arguing that the economic loss rule bars all tort counts and the privity rule bars all warranty claims. Lil Lawyer is dumfounded as she reads the motion. Bigg Wynn argues that Trucker's purchase through "middleman" World Giant defeats privity with Giant and thus defeats even the express warranty count. The Bigg Wynn lawyers argue that the express written warranties Giant extends to purchasers of new Giant trucks are unenforceable in the State of Florida unless the buyer buys the truck either through mail order or directly at Giant's facility in Michigan. To Lil Laywer, the argument seems just plain wrong. But is it? Lil Lawyer reads on.

According to Bigg Wynn, the case law is clear. A warranty claim--whether implied or express--against a supplier of a product is barred if there is no privity between the injured party and the supplier. Bigg Wynn relies heavily on language from T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995). In that federal case, the plaintiff was injured from a defective penile implant which plaintiff did not purchase from the manufacturer, but had surgically implanted by a doctor. Although the written opinion does not clarify whether a manufacturer's written warranty was delivered as part of the deal, it does make the following broad statement:

The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant. Kramer v. Piper Aircraft Corp., 520 So. 2d 37 (Fla. 1988); West v. Caterpillar Tractor Company, 336 So. 2d 80 (Fla. 1976). "Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties." Intergraph Corp. v. Stearman, 555 So. 2d 1282, 1283 (Fla. 2d DCA 1990). (2)

Deconstructing T.W.M.

Lil Lawyer notes that the doctor in T.W.M. probably was not in the business of dealing penile implants to direct purchasers, unlike her case involving a direct sale through an authorized dealer of Giant products.

Lil Lawyer pulls the cases cited in T.W.M. Upon close scrutiny, none of them--not Kramer or West or Stearman--supports the broad language in T.W.M. Kramer involved injured passengers on a plane who purchased the service of air travel, not a product governed by the Uniform Commercial Code, as in her case. West simply established a cause of action for strict liability in the absence of privity of contract. Stearman is a total of five sentences long, the fourth of which simply states, "Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties." (3)

Stearman describes the case as one of misrepresentation and breach of warranty pertaining to a computer system sold by Intergraph to John E. Stearman, whereas the claimant was Stearman, P.A. which acquired the system used through John Stearman. Not only was Stearman, P.A., not in privity with Intergraph, but it acquired the system second hand, either through a gift or a sale by John Stearman (the opinion does not state which). Unlike in Lil Lawyer's case, the plaintiff was not a first purchaser who purchased through a retailer or dealer.

Lil Lawyer then reviews the cases cited in Stearman: Affiliates for Evaluation & Therapy, Inc. v. Viasyn Corp., 500 So.2d 688 (Fla. 3d DCA 1987), and Brown v. Hall, 221 So.2d 454, 458 (Fla. 2d DCA 1969). Neither involves express warranty claims and neither state that express warranty claims require privity...