James Michael Leasing Company v. Paccar, Incorporated
Filing
Filed opinion of the court by District Judge Dow. AFFIRMED. Joel M. Flaum, Circuit Judge; Ann Claire Williams, Circuit Judge and Robert M. Dow, Jr., District Court Judge*. (*Of the Northern District of Illinois, sitting by designation.) [6623883-1] [6623883] [13-3773]
Case: 13-3773
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Pages: 18
In the
United States Court of Appeals
For the Seventh Circuit
________________________
No. 13‐3773
JAMES MICHAEL LEASING COMPANY LLC,
Plaintiff‐Appellee,
v.
PACCAR, INCORPORATED,
Defendant‐Appellant.
__________________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11‐cv‐00747 — Lynn Adelman, Judge.
__________________________
ARGUED JUNE 2, 2014 — DECIDED NOVEMBER 26, 2014
__________________________
Before FLAUM and WILLIAMS, Circuit Judges, and DOW,
District Judge.
DOW, District Judge. James Michael Leasing Company,
LLC purchased a brand‐new semi‐truck from PACCAR,
Incorporated, in 2007. Approximately four years and 3,000
miles later, James Michael Leasing concluded that the truck
The Honorable Robert M. Dow, Jr., of the Northern District of Illinois,
sitting by designation.
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was a lemon and sought a refund from PACCAR pursuant
to Wisconsin’s Lemon Law, Wis. Stat. § 218.0171.1 PACCAR
agreed to refund the purchase price, but the parties’ dealings
turned sour when a dispute arose over reimbursement of a
$53.00 title fee. This seemingly insignificant quibble
escalated into a debate over the “reasonable allowance for
use” to which PACCAR was entitled and drove a wedge
between the parties that culminated in an interest‐bearing
judgment of $369,196.06, plus $157,697.25 in attorneys’ fees,
for James Michael Leasing. PACCAR contends that it
complied with all relevant provisions of the Lemon Law and
that the district court erred in calculating James Michael
Leasing’s pecuniary loss. We disagree and affirm the
judgment of the district court in all respects.
I.
A.
The facts of this case are largely undisputed. Wisconsin‐
based James Michael Leasing (“JM Leasing”) purchased a
brand‐new, PACCAR‐manufactured 2008 Kenworth T800
semi‐truck from a Wisconsin PACCAR dealer in late August
2007. (PACCAR is organized under the laws of Delaware
and has its principal place of business in Washington; this
case is in federal court under the diversity jurisdiction
statute, 28 U.S.C. § 1332.) JM Leasing financed the purchase
1
Numerous amendments to the Lemon Law took effect on March 1,
2014, including the addition of provisions limiting recovery to the
consumer’s actual pecuniary loss and shortening the time period in
which to bring suit to 36 months from the date the vehicle was first
delivered to the consumer. All citations and quotations in this opinion
use the version of the law that was in effect during the times pertinent to
this suit.
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with a loan from PACCAR Financial Corporation, a wholly
owned subsidiary of PACCAR.
After experiencing trouble with the truck over the next
four years and 3,076 miles, JM Leasing sent PACCAR a
notice seeking refund of the purchase price and other
amounts due under Wisconsin’s Lemon Law, Wis. Stat. §
218.0171. PACCAR received the concededly proper notice on
June 7, 2011. PACCAR’s receipt of the notice triggered a 30‐
day period in which PACCAR was required to “[a]ccept
return of the motor vehicle and refund to the consumer and
to any holder of a perfected security interest in the
consumer’s motor vehicle, as their interest may appear, the
full purchase price plus any sales tax, finance charge,
amount paid by the consumer at the point of sale and
collateral costs, less a reasonable allowance for use.” Wis.
Stat. §§ 218.0171(2)(b)2.b, 218.0171(2)(c). For its part, JM
Leasing, upon receipt of the refund, would be obligated to
return the truck to PACCAR and take any steps necessary to
transfer title back to PACCAR. Wis. Stat. § 218.0171(2)(c).
The 30‐day period was scheduled to end on July 7, 2011.
On June 28, 2011, PACCAR employee Shawn Miller sent
an e‐mail to JM Leasing employee Janie Kincaid. Miller
advised Kincaid that PACCAR would issue a refund, which
it had calculated as follows:
Purchase price, inclusive of federal excise tax:
Collateral costs:
Interest:
Total:
Less lien payoff through June 30, 2011:
$ 135,847.00
$ 11,764.87
$ 31,777.03
$ 179,388.90
$ 61,647.05
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Total amount due to JM Leasing:
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$ 117,741.85
The next day, Miller further advised Kincaid that
PACCAR planned to mail two checks to JM Leasing, both
payable to JM Leasing. One of the checks, in the amount of
$61,647.05, was intended to fulfill PACCAR’s obligation to
pay off the lien. The other, in the amount of $117,741.85,
represented PACCAR’s calculation of the amount JM
Leasing itself was due.
Kincaid responded to Miller that same day. She informed
him that the refund to JM Leasing was short $53.00, the
amount of a title fee that JM Leasing had paid when it
purchased the truck. Kincaid further advised Miller that JM
Leasing did not want to bear responsibility for paying off the
lien.
On June 30, Miller wrote back that PACCAR would add
the disputed $53.00 to JM Leasing’s refund amount. Miller
also advised Kincaid that the $53.00 increase would be
tempered by a $3,751.24 “reasonable use allowance”
deduction that PACCAR calculated by multiplying what it
deemed to be the full purchase price of the truck
($121,952.00, the invoice price minus the federal excise tax of
$13,895.00) by 3,076, the number of miles the truck had been
driven before a problem was reported, and then dividing the
product by 100,000. PACCAR’s calculation was derived from
Wis. Stat. § 218.0171(2)(b)2.b., which provided that “a
reasonable allowance for use may not exceed the amount
obtained by multiplying the full purchase price of the motor
vehicle by a fraction, the denominator of which is 100,000,
or, for a motorcycle, 20,000, and the numerator of which is
the number of miles the motor vehicle was driven before the
consumer first reported the nonconformity to the motor
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vehicle dealer.” After the $53.00 was added and the $3,751.24
was subtracted, the new amount PACCAR planned to
refund JM Leasing was $114,043.61. Miller advised Kincaid
that a check for that amount, along with the second lien
payoff check, could be delivered to JM Leasing on July 1.
In response, Kincaid sent Miller an e‐mail stating that the
refund check should be delivered to her and reiterating JM
Leasing’s objections to receipt of the lien payoff check.
Kincaid also advised Miller that JM Leasing would return
the truck to PACCAR on July 5. Kincaid did not object to the
amount of the refund check, or to PACCAR’s calculation of
the reasonable use allowance.
On July 1, PACCAR representative Mike Oswald
traveled to JM Leasing to personally deliver the two checks.
Oswald presented the checks to Kincaid and Michael Smiley,
the owner of JM Leasing. Kincaid photocopied the checks
before she and Smiley rejected them. There is some dispute
as to whether Kincaid and Smiley informed Oswald that JM
Leasing contested PACCAR’s reasonable use allowance, but
the parties agree that they at least advised Oswald of their
objection to bearing responsibility for the lien payoff.
In any event, Oswald left with the rejected checks and
notified Miller about the turn of events. Miller instructed
Oswald to return to JM Leasing, re‐offer the refund check,
and advise Kincaid and Smiley that PACCAR was willing to
handle the lien payoff directly. Oswald made a second visit
to JM Leasing the very same day. Kincaid and Smiley again
rejected the $114,043.61 refund check, asserting that the
amount was incorrect. Miller subsequently sent Kincaid an
e‐mail summarizing his understanding (as related by
Oswald) of the day’s events and requesting that Kincaid
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explain why JM Leasing believed that the refund check was
inaccurate.
Four days later, on July 5, 2011, the first business day
following the Independence Day holiday weekend, Kincaid
responded to Miller’s e‐mail. She advised him that JM
Leasing found the reasonable use allowance excessive and
proposed an alternative deduction of 11.9¢ per mile, or
$364.26.2 Kincaid also informed Miller that JM Leasing
would not return the truck to PACCAR in light of the
parties’ ongoing dispute. Miller responded by explaining
that he had calculated the reasonable use allowance using
the formula set forth in the Lemon Law and asking Kincaid
to reconsider. Kincaid stood firm, but informed Miller how
she had arrived at her number: she had replaced the 100,000
in Miller’s calculation with 1,000,000.
The next day, July 6, the dealership from which JM
Leasing had purchased the truck informed Miller that JM
Leasing had returned the truck. Miller sent Kincaid an e‐
mail indicating that he understood the return of the truck to
constitute an acceptance of PACCAR’s refund in the amount
of $114,043.61. Kincaid demurred by e‐mail the following
day, the final day of the 30‐day period:
In good faith, we parked the truck at the dealer
on Tuesday, July 5th, because I said we would
go to the dealer on Tuesday with the truck. We
expected you to pay us what we had coming.
The amount of $114,043.61 offered by
[PACCAR] is not acceptable or agreeable. The
2 Kincaid performed her calculation using 3,061 miles as the starting
point.
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mileage charge is too high. I made that clear in
our last email as well as previous emails,
including my email of July 5th.
Please send James Michael Leasing a check
immediately in the sum of $117,425.73. This
sum allows for a mileage charge of $369.12 per
my last email. You may deliver the check to
our business [or mail it].
Miller responded to Kincaid’s e‐mail later that day. He
expressed confusion as to why JM Leasing returned the
truck after representing that it was not going to. He
continued:
Since James Michael Leasing will not agree to
accept the check in the amount of $114,043.61
along with Kenworth direct payoff of the
remaining PACCAR Financial lien balance in
the amount of $61,868.30 to resolve this WI LL
complaint, then James Michael Leasing needs
to pick up the truck from the Oak Creek,
Wisconsin dealership as soon as possible. Any
delay in picking up the truck may result in the
dealer charging James Michael Leasing storage
fees.
Miller’s pithy e‐mail was the last salvo in the parties’
increasingly bitter negotiations. JM Leasing retrieved the
truck at some point and filed the instant suit in Wisconsin
state court on July 15, 2011. JM Leasing still has possession of
the truck, which it continues to make payments on.
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B.
PACCAR removed the action to the Eastern District of
Wisconsin. After discovery, the parties filed cross‐motions
for summary judgment. The district court denied PACCAR’s
motion and granted JM Leasing’s in part. The district court
concluded that PACCAR violated Wis. Stat. §
218.0171(2)(b)2.b. by failing to pay off JM Leasing’s lien. It
reasoned that “[t]he only thing the consumer must do to
trigger the manufacturer’s obligation to issue a refund and
pay off the lien within thirty days is offer to transfer title of
the vehicle to the manufacturer.” Because JM Leasing had
fulfilled this requirement on June 7, 2011, the court
concluded that PACCAR had until July 7, 2011 to perform its
statutory duties of issuing a refund check and paying off the
lien. The court therefore found that JM Leasing was entitled
to the damages provided under the Lemon Law: “twice the
amount of any pecuniary loss, together with costs,
disbursements and reasonable attorney fees.” Wis. Stat. §
218.0171(7). Relying on Hughes v. Chrysler Motor Corp., 542
N.W.2d 148, 153 (Wis. 1996), the court deemed JM Leasing’s
“pecuniary loss” to include the full purchase price of the
truck.
In light of its determination that PACCAR violated the
Lemon Law by failing to pay off the lien, the district court
declined to resolve the question of whether PACCAR’s
calculation of the reasonable use allowance also violated the
Lemon Law. The court nonetheless addressed the
reasonableness of PACCAR’s calculation in an attempt to
ascertain the amount of JM Leasing’s “pecuniary loss.” The
court rejected PACCAR’s contention that its calculation
necessarily was reasonable because it tracked the statutory
formula. The court construed the statute to mean that “an
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allowance for use must be both reasonable and not in excess
of the amount produced by the formula.” That is, it treated
the formula in the Lemon Law as a ceiling rather than a
directive or authorization to deduct the amount produced by
the formula produced in every case and specifically
concluded that the deduction was not reasonable simply
because it was calculated pursuant to the statutory formula.
The court was unable to fully resolve the matter, however, as
issues of fact remained as to what would constitute a
reasonable use allowance in this case.
PACCAR filed a motion for reconsideration, which the
district court denied. In doing so, the district court rejected
PACCAR’s contentions that JM Leasing’s “pecuniary loss”
was limited to the difference between the dueling reasonable
use allowances proposed by the parties and that a penalty of
twice the purchase price—nearly $300,000 in this case—
violated the Due Process Clause. Subsequent to the court’s
order, the parties stipulated that JM Leasing’s “pecuniary
loss” was $184,598.03. This figure included the $135,847.00
“full purchase price,” the originally contested $53.00 title
fees, $11,767.87 in “collateral costs,” and $38,805.16 that JM
Leasing had paid on its lien, less a reasonable use allowance
of $1,875.00.3 This district court doubled the “pecuniary loss”
to arrive at a damages award of $369,196.06. The court
added $2,730.24 in prejudgment interest through October 31,
2011, the date JM Leasing made a settlement offer; $4,627.90
in statutory costs; and $2,029.45 in litigation costs. PACCAR
did not object to any of these amounts. The court also
3 It is unclear from the stipulation and the district court’s opinion how
the parties arrived at this reasonable use allowance, which we note is
approximately halfway between the values they originally proposed.
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awarded JM Leasing 5% interest on the damages from
November 1, 2011 forward, and $146,081.25 in attorneys’
fees through May 15, 2013. The court later awarded JM
Leasing an additional $11,616 in attorneys’ fees, for a total
fee award of $157,697.25. Accordingly, the district court
entered judgment in favor of JM Leasing in the amount of
“$536,280.90 plus 5% interest on the amount of $369,196.06
from November 1, 2011 until that amount is paid.” PACCAR
timely appealed.
II.
PACCAR contends that its overtures to JM Leasing and
assurances that it would pay off the lien were sufficient to
satisfy its obligations under the Lemon Law. It further
contends that it was not required to pay off the lien until JM
Leasing accepted its proffered refund check, that its
calculation of the reasonable use allowance was in
compliance with the strictures of the Lemon Law, and that
JM Leasing’s “pecuniary loss” is limited to the difference
between the amount PACCAR tendered within the statutory
period and “what was properly due and owing under the
statute.”
Each of these contentions amounts to a challenge to the
interpretations of the Lemon Law that the district court
made in its summary judgment ruling. “We review de novo
the district court’s decision to grant summary judgment as
well as the interpretation of state law on which that decision
rests.” Rodas v. Seidlin, 656 F.3d 610, 625 (7th Cir. 2011). Our
ultimate aim is to apply the Lemon Law as it has been
interpreted by the Wisconsin Supreme Court. Burzlaff v.
Thoroughbred Motorsports, Inc., 758 F.3d 841, 847 n.4 (7th Cir.
2014). “In the absence of an authoritative interpretation from
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the Wisconsin Supreme Court,” we must interpret the
Lemon Law “as we think the state’s highest court would
construe it.” Laborers Local 236, AFL‐CIO v. Walker, 749 F.3d
628, 634 (7th Cir. 2014). In doing so, we may look to
decisions of the Wisconsin Court of Appeals for guidance
unless there are persuasive reasons to believe that the high
court would disagree with them. Weigle v. SPX Corp., 729
F.3d 724, 737 (7th Cir. 2013).
The parties agree that JM Leasing is a “consumer” within
the meaning of the Lemon Law and that the truck at issue is
a lemon. Under the plain text of the Lemon Law then in
effect, JM Leasing had a right to seek from PACCAR either
replacement of the truck or a refund. See Wis. Stat. §
218.0171(2)(b)2. JM Leasing chose the latter and made an
offer to transfer title of the truck to PACCAR. See Wis. Stat. §
218.0171(2)(c). JM Leasing’s offer triggered an obligation for
PACCAR to do the following, within 30 days:
Accept return of the motor vehicle and refund
to the consumer and to any holder of a
perfected security interest in the consumer’s
motor vehicle, as their interest may appear, the
full purchase price plus any sales tax, finance
charge, amount paid by the consumer at the
point of sale and collateral costs, less a
reasonable allowance for use. Under this
[provision], a reasonable allowance for use
may not exceed the amount obtained by
multiplying the full purchase price of the
motor vehicle by a fraction, the denominator of
which is 100,000 or, for a motorcycle, 20,000,
and the numerator of which is the number of
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miles the motor vehicle was driven before the
consumer first reported the nonconformity to
the motor vehicle dealer.
Wis. Stat. § 218.0171(2)(b)2.b. “When the manufacturer
provides the … refund, the consumer shall return the motor
vehicle having the nonconformity to the manufacturer and
provide the manufacturer with the certificate of title and all
endorsements necessary to transfer the title to the
manufacturer.” Id. § 218.0171(2)(c). The Lemon Law
authorizes consumers to “bring an action to recover for any
damages caused by a violation,” and instructs the court to
award to a prevailing consumer “twice the amount of any
pecuniary loss, together with costs, disbursements and
reasonable attorney fees, and any equitable relief the court
determines appropriate.” Id. § 218.0171(7).
In describing the pre‐amendment version of the statute at
issue, the Wisconsin Supreme Court observed that “[e]ven
among lemon laws, all of which are geared toward
consumer protection, Wisconsin’s Lemon Law is particularly
pro‐consumer in a number of ways.” Marquez v. Mercedes‐
Benz USA, LLC, 815 N.W.2d 314, 322 (Wis. 2012). For
instance, the version of the law at issue here permits the
recovery of double damages, attorneys’ fees and costs, and
lacks both affirmative defenses and mechanisms to obtain
sanctions against consumers who bring claims in bad faith.
Id. As the Wisconsin Supreme Court further explained, “the
Wisconsin legislature has expressed a strong preference for
the interests of a consumer who purchased a lemon over the
interests of the manufacturer who produced the lemon.” Id.
Accordingly, the Wisconsin Supreme Court has held that the
Lemon Law “squarely places the burden on the
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manufacturer to provide a refund within the 30‐day
statutory period.” Id.
PACCAR contends that it carried that burden by timely
tendering the $114,043.61 check to JM Leasing and accepting
responsibility for paying off (but not actually paying off) JM
Leasing’s lien. We do not believe that the Wisconsin
Supreme Court would agree. That court begins and ends its
statutory analyses with the text of a statute when the plain
meaning is clear. Tammi v. Porsche Cars N. Am., Inc., 768
N.W.2d 783, 791 (Wis. 2009). The plain text of the Lemon
Law obligates manufacturers like PACCAR to “refund to the
consumer and to any holder of a perfected security interest in the
consumer’s motor vehicle, as their interest may appear, the full
purchase price plus any sales tax, finance charge, amount
paid by the consumer at the point of sale and collateral costs,
less a reasonable allowance for use.” Wis. Stat. §
218.0171(2)(b)2.b. (emphases added). This language requires
manufacturers to actually refund the money due within 30
days, not simply to agree to do so. Moreover, it requires
them to refund the money directly to the holder of the
security interest rather than leaving the consumer “to sort it
out with the lender.” Marquez v. Mercedes‐Benz USA, LLC,
751 N.W.2d 859, 862–63 (Wis. Ct. App. 2008); cf. Estate of
Riley ex rel. Riley v. Ford Motor Co., 635 N.W.2d 635, 638 (Wis.
Ct. App. 2001) (“[D]elivery of a refund check to a
dealership’s sales manager is not the equivalent of a timely
delivery of a refund check to the consumer.”). PACCAR
points to Herzberg v. Ford Motor Company, 626 N.W.2d 67, 72
(Wis. Ct. App. 2001), for the proposition that a party that
“stands ready” to comply with its obligations under the
Lemon Law satisfies its statutory duties. In Herzberg,
however, the party that “stood ready” to comply with its
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obligations was the consumer. In light of the Wisconsin
Supreme Court’s determination that the manufacturer must
bear the burden of providing the refund, we cannot
conclude that a manufacturer’s assurance that it will do so is
sufficient to fulfill its obligation under the Lemon Law. See
Church v. Chrysler Corp., 585 N.W.2d 685, 688 (Wis. Ct. App.
1998) (stating that the Lemon Law “clearly requires that the
manufacturer issue a refund within thirty days of the
consumer’s offer to transfer title”).
We are equally unpersuaded by PACCAR’s suggestion
that JM Leasing’s “rejection of the refund amounts, coupled
with its unequivocal pronouncement that it would not
return the vehicle, relieved PACCAR of its otherwise
concomitant duty to pay off the lien.” The Lemon Law
obligates the consumer to return the vehicle or certificate of
title to the manufacturer only “[w]hen the manufacturer
provides the new motor vehicle or refund.” Wis. Stat. §
218.0171(2)(c). Thus, JM Leasing’s refusal to return the
vehicle did not absolve PACCAR of its duty to fulfill its
statutory obligations. The parties’ duties are linked, as
PACCAR suggested during oral argument, but the link is a
sequential one pursuant to which the manufacturer must
take the lead. PACCAR has not expressly argued that JM
Leasing acted to intentionally thwart its attempts to comply
with the Lemon Law, and absent such a contention (or
evidence in support thereof) we hew to the Wisconsin
Supreme Court’s practice of limiting manufacturers’
“excuses” for noncompliance. Marquez, 815 N.W.2d at 323.
When parties cannot agree on the correct amount of a
refund, the manufacturer has two options: “(1) pay the
amount demanded by the purchaser within the thirty‐day
period; or (2) pay the amount which the manufacturer
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deems appropriate within the thirty‐day period.” Church,
585 N.W.2d at 689. Playing chicken with the consumer
regarding the amount of the refund and the return of the
vehicle is not a viable alternative to those narrow options. As
the Wisconsin Supreme Court has stated, the manufacturer
“must weigh very carefully when ‘to hold ‘em and when to
fold ‘em,’” Tammi, 768 N.W.2d at 794 (quoting Kenny
Rogers, The Gambler, on The Gambler (United Artists 1978)),
and PACCAR made a bad bet here.
In reaching this conclusion, we hasten to add that we do
not endorse JM Leasing’s conduct here. It neglected to clarify
its rationale for declining PACCAR’s proffered checks,
inexplicably returned the truck after informing PACCAR
that it would not, and generally gave PACCAR a bit of a
runaround. In fact, both parties engaged in tit‐for‐tat
gamesmanship that turned what should have been a fairly
routine business transaction into the proverbial federal case,
with all of the attendant financial and emotional costs that
go with that territory. The task of the federal courts in this
case has been to give effect to the Wisconsin legislature’s
“strong preference for the interests of a consumer who
purchased a lemon over the interests of the manufacturer
who produced the lemon.” Marquez, 815 N.W.2d at 322. And
while JM Leasing, a reasonably sophisticated business entity,
may not be the typical “consumer” that the legislature had in
mind when it crafted the broadest reaches of the Lemon
Law, it nonetheless is entitled to the full protection of the
statute. Unfortunately for PACCAR, that protection in this
case comes at the price of particularly “potent
consequences.” Tammi, 768 N.W.2d at 791. Setting these
consequences is a matter for the Wisconsin legislature,
which, as we briefly noted above, recently has trimmed back
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some of the more generous consumer protections in the
statute. See supra, at fn.1; Church, 585 N.W.2d at 689.
For the sake of completeness, we address PACCAR’s
remaining contentions. First, PACCAR contends that JM
Leasing’s “pecuniary loss” is limited to the difference
between the parties’ calculated use allowances. “The statute
is silent as to whether pecuniary loss includes the purchase
price of the vehicle.” Hughes v. Chrysler Motors Corp., 542
N.W.2d 148, 150 (Wis. 1996). But the Wisconsin Supreme
Court has held that “the legislature intended to include the
purchase price of the car as pecuniary damages.” Id. at 151;
see also Burzlaff, 758 F.3d at 847 (“Hughes held that ‘pecuniary
loss’ as used in the damages provision of the Lemon Law
included the purchase price, not merely the costs flowing
from the defect.”). The court explained that if the contrary
conclusion were reached, the Lemon Law would fail in its
purpose to significantly improve upon the remedies
available to consumers, manufacturers would have little if
any incentive to promptly comply with the statute, and
consumers would have little incentive to seek compensation
for violations of their statutory rights. See id. at 151–52.
Unlike PACCAR, we do not find Hughes distinguishable on
the basis that the manufacturer in that case did not offer any
refund until after the 30‐day window had closed. The Hughes
manufacturer’s argument that the consumer’s “pecuniary
loss should be limited to the out‐of‐pocket expenditures [he]
made during those 35 days,” Hughes, 542 N.W.2d at 153, is
very similar to that raised by PACCAR here: that damages
should be limited to so‐called actual loss rather than what is
provided in the statute. Given the text of the statute and the
interpretations of it by the Wisconsin Supreme Court, we
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cannot conclude that JM Leasing’s “pecuniary loss” should
be restricted here.
Finally, PACCAR contends that its calculation of the
reasonable use allowance necessarily complied with the
requirements of the Lemon Law because it was made
pursuant to the formula set forth in the Lemon Law. See Wis.
Stat. § 218.0171(2)(b)2.b. PACCAR acknowledges that the
district court “did not address whether PACCAR violated
the statute when it calculated the refund using that
formula,” and we are not in the business of resolving
matters of state law that the district court did not pass upon
and that are not strictly necessary to the resolution of the
appeal. (This is particularly true where the parties stipulated
that $1,875.00, an amount other than that prescribed by the
formula, is a “reasonable use allowance for the plaintiff’s use
of 2008 Kenworth T800 that is the subject of this action.”) We
nonetheless note that the Wisconsin Supreme Court has
characterized the formula as “creating a ceiling on the
amount that may be deducted as ‘a reasonable allowance for
use’ from a refund of the full purchase price,” Tammi, 768
N.W.2d at 793 (quoting Wis. Stat. § 218.01717(2)(b)2.b.), not
as a safe harbor for manufacturers. “The ceilings provided in
the statute are not inflexible,” and “‘reasonable allowance
for use’ is not a precise term,” id. at 797, even though the
formula itself is quite precise. As the district court observed,
“[o]nly in cases like the present one, in which the vehicle
being returned has a useful life well in excess of 100,000
miles, will the formula produce an arguably excessive
deduction for use.” These are the very types of cases in
which the “not inflexible” nature of the ceiling lends itself to
negotiation and compromise between the parties—at the
cost of only a few thousand dollars.
Case: 13-3773
Document: 31
Filed: 11/26/2014
18
Pages: 18
No. 13-3773
Again, we recognize that the atypical nature of the
vehicle at issue in this case led to an award that far exceeds
the amounts awarded in the mine run case. But statutes of
general applicability often are blunt instruments, and the
Wisconsin Supreme Court has made it clear that “[a]
manufacturer that fails to comply timely with a consumer’s
demand under (2)(b)2. assumes the risk of paying twice the
vehicle’s full purchase price and other items mentioned in
(2)(b)2.b.—namely, ‘any sales tax, finance charge[s], amount
paid by the consumer at the point of sale and collateral
costs’—plus the consumer’s reasonable attorney fees, plus
other ‘costs’ and ‘disbursements’ and even possible
‘equitable relief,’ plus its own attorney fees, if any.” Tammi,
768 N.W.2d at 793‐94.
III.
For all of the reasons stated above, the judgment of the
district court is AFFIRMED.
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