HUNTINGTON -– A South Carolina business has asked the federal court to dismiss a case in which a Cabell County man claims the company refused to fix a defective truck it manufactured.
Andrew Johnson claims he has had numerous problems with the 2007 Utulimaster Body and Freightliner custom made van he purchased from Freightliner Custom Chassis Corporation for his job with FedEx.
One problem is "an extremely loud and ominous popping noise in the front end," the complaint Johnson filed Jan. 5 in Cabell Circuit Court states.
And even though the tire expectancy on Johnson's car should be 30,000 miles, he has to replace his tires between 12,000 and 25,000 miles on average, the suit states.
Johnson claims he has brought the van more than six times to three authorized Freighliner dealerships in Cross Lanes, Ceredo and Charleston where he was told a leaf spring was installed either upside down or backward.
However, none of the dealerships have been able to correct the problem, according to Johnson's complaint.
So, on Nov. 2, Johnson sent Freightliner a letter and gave the company "a 'last chance' to cure these problems before initiating suit," the suit states.
Because Freightliner refused to do anything, Johnson filed suit.
But Freightliner claims the suit should be dismissed for a number of reasons.
First, it claims Johnson failed to make claim upon which relief can be granted.
In its answer to Johnson's complaint, the company denies Johnson's allegations against it.
Johnson's complaint may be prohibited because the claims he makes in the suit may have resulted because of negligence on his part or on someone else's, the company alleges in its answer.
Before the problems began, the van may have been altered or modified in some way that caused the problem, according to the company's answer.
Johnson's complaint is barred because of his failure to fulfill conditions precedent to comply with the terms of limited warranties, the answer states.
"Any and all implied warranties were appropriately disclaimed by this defendant," the answer states.
Because the vehicle was purchased for commercial use, the consumer protection provisions Johnson cited are not applicable, Freightliner contends.
In his suit, Johnson claims he was forced to rent other transportation to perform his FedEx ground delivery duties while his vehicle was worked on at Freightliner's dealerships.
The defect in Johnson's van is a violation of an implied warranty, Johnson claims.
In the two-count suit, Johnson is seeking unspecified damages under the West Virginia "Lemon Law," warranty law and the Magnusson Moss Warranty Act, including rescission of the contract, reimbursement of all monies paid and payoff of his $46,511,40 loan to the credit union.
He is also seeking damages for annoyance and inconvenience and loss of use, attorney fees, pre-judgment interest, costs and further relief the court deems just.
Freightliner removed the suit to United States District Court because it involved citizens of different states and because the amount in controversy exceeds $75,000.
The company is asking that the case be dismissed with prejudice and that it be awarded its costs, attorneys' fees and other relief the court deems just.
Johnson is represented by Timothy P. Rosinsky of the Rosinsky Law Office in Huntington.
Freightliner is represented by William J. Cooper and Susan Wong Romaine of Flaherty, Sensabaugh and Bonasso in Charleston.
U.S. District Court case number: 3:09-0059