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Nissan North America, Inc. v. Harlan

Court of Appeals of Arkansas, Division IV

April 5, 2017

NISSAN NORTH AMERICA, INC. APPELLANT
v.
JEANNE LUCILLE HARLAN APPELLEE

         APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. 47CV-15-139] HONORABLE RANDY F. PHILHOURS, JUDGE AFFIRMED

          Hartline Dacus Barger Dreyer LLP, by: Jeffrey Patterson; and Wright, Lindsey & Jennings, LLP, by: Michael A. Thompson and Baxter D. Drennon, for appellant.

          Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellee.

          ROBERT J. GLADWIN, Judge

         Nissan North America, Inc. ("Nissan"), appeals the Mississippi County Circuit Court's order denying Nissan's motion to set aside the default judgment filed against it on October 30, 2015. On appeal, Nissan argues that the circuit court erred in denying its motion for three reasons: (1) Nissan's failure to file a timely answer was inadvertent and the result of a mistake or excusable neglect; (2) Nissan has a meritorious defense; and (3) appellee Jeanne Harlan would suffer no prejudice if the default judgment were set aside. Nissan also contends that the circuit court erred in assigning damages for two reasons: (1) portions of the damages awarded are arbitrary and unsupported by evidence and (2) the award of attorney's fees is improper under Arkansas law. We affirm.

         I. Facts

         Harlan filed suit against Nissan alleging that, while she was driving, she was injured when her car, a 2000 Infiniti G20, violently and explosively deployed the front driver and passenger airbags without any collision or other apparent reason. No other vehicle was involved in the incident. Harlan notified Nissan and cooperated in its investigation. She took her car to the Nissan dealership in Blytheville, Arkansas, on July 20, 2012, for an inspection arranged by Nissan.

         Harlan further alleged that on September 10, 2012, Nissan's representative, Joey Ruff, contacted Harlan's attorney by telephone and later confirmed by email that Nissan was responsible for the deployment of the airbag and that Nissan would pay for repairs. Ruff requested that Harlan make an appointment with the Nissan dealership at her convenience. However, on September 12, 2012, Ruff wrote Harlan's attorney that the dealership was not capable of performing the needed repairs, and Harlan's car "is being towed (at no cost to the customer) to Infiniti of Memphis. Once the repairs are completed, the vehicle will be towed back" to the dealership. Harlan alleged that she did not consent to her car being taken to Memphis. Nissan later notified Harlan that a replacement airbag was not available and the vehicle was not safe to drive without one.

         Harlan claimed that Rob Bickens, another Nissan representative, offered to pay her $5950 for her car, along with attorney's fees in the amount of $1500. On December 14, 2012, Bickens increased his offer by $550 to resolve all claims for $8000. Instead of accepting the offer by Nissan, Harlan filed suit.

         The complaint alleged as follows:

15. The Defendant, Nissan North America, Inc., was guilty of fault which was a proximate cause of the unexpected air bag deployment and Plaintiff's resulting damages, which acts of fault include, but are not limited to, the following:
a) Strict liability in tort based on supplying a product in a defective condition which rendered it unreasonably dangerous (see A.C.A. § 16-116-102);
b) Breach of the implied warranty of merchantability; c)Breach of the implied warranty of fitness for a particular purpose; and,
d) Breach of express warranty.
16. Pleading further, Plaintiff states that the Defendant, Nissan North America, Inc., is also at fault and liable to Plaintiff under the theories of breach of contract, promissory estoppel, conversion, and bailment, inasmuch as it represented to the Plaintiff that it would repair the vehicle and return it to her in Blytheville, Arkansas. Instead, Nissan North America, Inc., failed to repair the vehicle; moved the vehicle to Memphis without Plaintiff's consent; and, has kept the vehicle and converted that vehicle to its own use without compensating Plaintiff for the vehicle or the loss of use of the vehicle for almost three (3) years.

         She alleged that she was entitled to damages of $5950 for the value of her car; a reasonable amount for the loss of use of her vehicle; her time and expense incurred in traveling to Memphis-a 160-mile-round trip-to remove items from her car because she had not been told it would be taken there; registration fees, license-tag fees, and sales tax incurred by obtaining another car; and "such other damages as the jury may find to be fair and reasonable under the circumstances." Finally, she sought pre- and postjudgment interest, costs, and attorney's fees.

         Harlan obtained service on Nissan through its registered agent for service of process in Arkansas on August 27, 2015. No answer was filed, and Nissan later alleged that its administrative specialist had inadvertently failed to route the summons to the appropriate individuals in the company. Accordingly, Nissan's legal staff did not receive a copy of the summons, and no answer was filed to Harlan's complaint.

          At the hearing on Harlan's oral motion for default judgment, Harlan testified as to the facts set forth above regarding the airbag deployment and her dealings with Nissan. Photographs of Harlan's arms, depicting burn-like injuries, were introduced into evidence. She also testified that her daughter, a passenger in the car at the time of the airbag deployment, cried because, although she did not sustain any injuries, the deployment caused "such a loud bang."

         She testified that she and Nissan had agreed that the value of the car, as set forth in the National Automobile Dealers Association Used Car Guide, was $5950, and the document depicting this information was admitted into evidence. She also said that Nissan was going to charge her for storing her car at the Infiniti dealership in Memphis, where Nissan had taken it. She said that she arranged to have it towed for $443.30, and the bill was admitted ...


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