CHARLESTON – Merchants who sell warranties can limit them to original purchasers, according to the Supreme Court of Appeals.

On Nov. 24, three of five Justices relieved Advance Auto Parts from responsibility for a battery in a truck a customer sold.

"At the moment the original purchaser sold the battery, Advance's limited warranty, by its express terms, ceased to exist," Justice Brent Benjamin wrote.

Chief Justice Robin Davis and Justice Thomas McHugh agreed with his opinion.

Dissenting Justice Margaret Workman called it anti-consumer judicial activism.

Dissenting Justice Menis Ketchum wrote that Advance set forth a limitation on its website but not on the receipt at the point of purchase.

In 2004, the Advance store in Weirton sold an Autocraft battery to Jeep owner Scott McMahon for $49.

The receipt stated, "24 month free replacement, 72 month pro-rated."

It directed McMahon to the website for warranty information.

The website stated, "Your warranty begins the day you purchase the battery, and expires at the end of the warranty period printed on your original receipt, or when you sell your vehicle, whichever comes first."

McMahon soon sold his Jeep to Karen John, wife of Wheeling lawyer Joseph John.

The battery died, and the Johns went to an Advance store seeking a replacement under the warranty.

Store personnel said they couldn't replace it without a receipt, so the Johns bought a new battery.

McMahon later provided the receipt to Karen John, and Joseph John took it to Advance.

Store manager Donn Free told Joseph John he wasn't entitled to relief because he wasn't the original purchaser.

McMahon reimbursed the Johns for the new battery, and Joseph John filed suit on McMahon's behalf against Advance and Free in Ohio Circuit Court.

McMahon alleged breaches of express and implied warranties, fraud, and violations of consumer protection law.

He sought to recover the replacement cost, expenses he incurred in trying to have the warranty honored, and damages for annoyance, inconvenience and aggravation.

Joseph John amended the complaint, adding wife Karen as plaintiff and proposing a class action.

He quoted state law that no action for breach of warranty shall fail because of a lack of privity between the consumer and the party against whom the claim is made.

Circuit Judge Arthur Recht granted summary judgment to McMahon and Karen John.

"Advance shall be required to abide by its warranty notwithstanding the person attempting to assert the warranty may not have been the original purchaser," he wrote.

Advance sought review at the Supreme Court of Appeals, and the Justices denied it.

They decided to tackle the case when Recht certified a question to them.

He asked if the law applies to a suit by a subsequent purchaser where the warranty limits its availability to original purchasers.

Recht answered in the affirmative, but the Justices answered in the negative.

Benjamin wrote that state law defines a consumer transaction as a sale or lease to a natural person for personal, family, household or agricultural purposes.

"Under this definition, only McMahon is the consumer in terms of the sale of the battery," Benjamin wrote.

Karen John did not participate in a consumer transaction with Advance, he wrote.

Dissenter Workman found that Karen John was definitely a consumer.

"Karen John bought the battery in the car as part of a sale for personal or family purpose," she wrote.

She wrote that the decision would have far reaching implications on the availability of the Consumer Protection Act to those it was enacted to protect.

Dissenter Ketchum worried that consumers without internet access wouldn't be able to obtain the warranty limitations.

He wrote that Advance could modify the warranty on a daily basis without notice.

Davis filed a concurring opinion to argue that Workman and Ketchum mischaracterized the relevant law.

She wrote that it allows an injury suit against a manufacturer or a distributor, even if the customer didn't buy the product from anyone in the distribution chain.

"However, no language in this statute expressly or implicitly states that a merchant cannot create an express warranty that limits replacement or repair of a product to the original purchaser," she wrote.

Ancil Ramey of Charleston and Karen Kahle of Wheeling, both of Steptoe & Johnson, represented Advance Auto Parts.

Anthony Werner, of Bachmann Hess Bachmann & Garden in Wheeling, represented McMahon and Karen John along with Joseph John.

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