Smith et al v. Chrysler Group, LLC, FCA US LLC et al

Filing 194

MEMORANDUM AND ORDER. The court orders that Judge Giblin's #141 Report and Recommendation on Chrysler's Motion for Summary Judgment Regarding Plaintiffs' DTPA Claim is adopted. Ramona Smith's DTPA claim brought on behalf of Arthur Smith's estate and her claim that Chrysler intentionally violated the DTPA are dismissed with prejudice. All of Chrysler's other grounds for summary judgment asserted in this motion are denied. Signed by Judge Marcia A. Crone on 2/24/17. (mrp, )

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

RAMONA L. SMITH, Individually and as the §
Temporary Administrator of the Estate of her §
deceased husband, Arthur Melton Smith,
§
TARA CHEYENNE SMITH, RAMONA
§
ALLEN, and GLENDA ZIMMER,
§
§
Plaintiffs,
§
§
versus
§
§
CHRYSLER GROUP, LLC, FCA US LLC, §
§
Defendant.
§

CIVIL ACTION NO. 1:15-CV-218

MEMORANDUM AND ORDER
Pending before the court is Defendant FCA US LLC’s (“Chrysler”) Objections to Report
and Recommendation of United States Magistrate Judge (#152). The court referred this matter
to United States Magistrate Judge Keith F. Giblin for consideration and recommended disposition
of case-dispositive pretrial motions (#90). On December 1, 2016, Judge Giblin issued a report
and recommendation (#141) which recommended that the court grant in part and deny in part
Chrysler’s Motion for Summary Judgment Regarding Plaintiffs’ DTPA Claim (#70). Pursuant to
28 U.S.C. § 636(b)(1), the court conducted a de novo review of the magistrate judge’s findings,
the record, the specific objections, and the applicable law in this proceeding. After review, the
court finds that Judge Giblin’s findings should be adopted.
I.

Background
The factual and procedural background of this case was laid out in detail in Judge Giblin’s

report and recommendation and need not be repeated here. On December 16, 2016, Chrysler filed
the instant motion, objecting to Judge Giblin’s findings on two grounds: (1) Chrysler asserts that

Judge Giblin erroneously relied on certain testimony in support of his finding that Plaintiffs had
raised a genuine issue of material fact that Chrysler had knowingly violated the Texas Deceptive
Trade Practices Act (“DTPA”); and (2) Judge Giblin incorrectly determined that Plaintiff Ramona
L. Smith (“Ramona”) was a consumer under the DTPA.
II.

Discussion
Chrysler argues that Judge Giblin erred in finding that a genuine issue of material fact

exists as to the issue of whether Chrysler knowingly violated the DTPA because Judge Giblin cited
the testimony of John Ovcjak (“Ovcjak”), who testified in deposition that Chrysler knew of a
potential rubbing condition in the 2013 Jeep Wrangler (the “Jeep”) as well as the potential for fire
at the time of the “interim fix,” i.e., when Chrysler began installing a “rubber elbow” in the Jeep
in order to remedy the rubbing condition. Chrysler asserts that Ovcjak’s testimony refers solely
to Jeeps that had not been fitted with a rubber elbow and, as such, cannot be used to create a fact
issue that a dangerous rubbing condition existed in Jeeps with the rubber elbow, which Chrysler
asserts includes the Smiths’ Jeep.
Chrysler’s argument is without merit. First, after reviewing Ovcjak’s testimony, it does
not appear that his testimony was limited to Jeeps not outfitted with a rubber elbow, as he testified
that, at the time the Smiths purchased their Jeep, Chrysler was aware of the “potential of
transmission oil cooler lines leaking as a result of a rubbing condition.” Doc. No. 116-1. Second,
Chrysler’s argument assumes that the Smiths’ Jeep had been outfitted with a rubber elbow, which
Plaintiffs’ dispute, noting that, despite Chrysler’s evidence that all Jeeps manufactured after
August 22, 2012, should have included a rubber elbow, no rubber elbow was discovered in the
wreckage of the Smiths’ Jeep. Third, Chrysler’s argument presumes that the presence of the

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rubber elbow completely eradicated any alleged defect in the Jeep, as well as Chrysler’s obligation
to inform Plaintiffs of the potential issues and dangers present in the Jeep, conclusions that
Plaintiffs contest and that the court is unwilling to reach. In short, based on the testimony of
Ovcjak, as well as the other evidence presented before this court and the magistrate judge, a
genuine issue of material fact exists as to whether Chrysler knowingly violated the DTPA,
rendering summary judgment inappropriate at this time. Therefore, Chrysler’s objection is
overruled.
Second, Chrysler maintains that Judge Giblin erred in relying on Wellborn v. Sears
Roebuck & Company in determining that Ramona Smith, the decedent’s wife, is a consumer under
the DTPA. 970 F.2d 1420, 1426-27 (5th Cir. 1992). In Wellborn, the United States Court of
Appeals for the Fifth Circuit held that a minor killed after he was crushed by a garage door opener
had standing as a consumer under the DTPA because the door, while not purchased solely for the
minor’s benefit, was used by the minor and purchased, in part, to provide additional security for
him. Id. Judge Giblin determined that Wellborn was analogous to the facts of this case because
Ramona Smith, while not the primary driver of the Jeep, was involved in its purchase, drove it
on several occasions, and it was purchased partially for her benefit. Chrysler reasserts its
arguments made to Judge Giblin that Ramona Smith was only minimally involved in the Jeep’s
purchase and was only an incidental beneficiary to the Jeep’s purchase, repeating its contention
that Chamrad v. Volvo Cars of North America, in which the fiancé of the owner of a Volvo was
found not to be a consumer under the DTPA because he was not involved in the vehicle’s purchase
in any manner and only drove the vehicle once prior to the automobile accident at issue in the
case, was controlling precedent. 145 F.3d 671, 671 (5th Cir. 1998).

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As an initial matter, the court notes that Judge Giblin also found that, as the decedent’s
wife, Ramona Smith could show consumer status if the proceeds used to purchase the Jeep were
community funds. Mendoza v. Am. Nat’l Ins. Co., 932 S.W.2d 605, 608 (Tex. App.—San
Antonio 1996, pet. denied). Chrysler does not address this issue in its objection. Although
evidence regarding the Jeep’s purchase was not presented to the magistrate judge, Judge Giblin
nonetheless found that this case was similar to Wellborn, and, thus, Ramona Smith was a
consumer under the DTPA. The court agrees with Judge Giblin’s analysis and conclusion. Even
assuming that Arthur’s separate property was used to purchase the Jeep, Ramona Smith was
sufficiently involved in its purchase and use in order to qualify as more than an incidental
beneficiary, particularly in light of her testimony that the Jeep was intended at least in part for her
benefit. Accordingly, Chrysler’s objection is overruled.
III.

Conclusion and Order
Consistent with the foregoing analysis, the court ORDERS that Judge Giblin’s Report and

Recommendation on Chrysler’s Motion for Summary Judgment Regarding Plaintiffs’ DTPA Claim
(#141) is ADOPTED. Chrysler’s objections (#152) are OVERRULED. Based on these findings,
the court further ORDERS that Chrysler’s Motion for Summary Judgment Regarding Plaintiffs’
DTPA Claim (#70) is GRANTED IN PART and DENIED IN PART, as laid out in Judge Giblin’s
report and recommendation. Specifically, Ramona Smith’s DTPA claim brought on behalf of
Arthur Smith’s estate and her claim that Chrysler intentionally violated the DTPA are DISMISSED
WITH PREJUDICE. All of Chrysler’s other grounds for summary judgment asserted in this
motion are DENIED.

Signed this date
Feb 24, 2017

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