NISSAN NORTH AMERICA, INC. APPELLANT
JEANNE LUCILLE HARLAN APPELLEE
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47CV-15-139] HONORABLE RANDY F. PHILHOURS,
Hartline Dacus Barger Dreyer LLP, by: Jeffrey Patterson; and
Wright, Lindsey & Jennings, LLP, by: Michael A. Thompson
and Baxter D. Drennon, for appellant.
Burge, Prevallet & Coleman, by: Robert L. Coleman, for
J. GLADWIN, Judge
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.
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.
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.
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.
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
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.
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.
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.
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
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 ...