Before Thomas, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Thomas, P.j.
DATE OF JUDGMENT: 11/19/1997
TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE
COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - INSURANCE
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF FORD MOTOR COMPANY
¶1. State Farm Mutual Automobile Insurance Company and James E. Penton, Jr. appeal the circuit court's summary judgment dismissal of their claims against Ford Motor Company, raising the following issues as error:
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF FORD MOTOR COMPANY ON APPELLANTS' STRICT LIABILITY AND NEGLIGENCE THEORIES OF RECOVERY FOR THE DESTRUCTION OF PENTON'S VEHICLE WHICH WAS CAUSED BY A DEFECTIVE REAR SEAL.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF FORD MOTOR COMPANY REGARDING ITS BREACH OF ITS EXPRESS WARRANTY AGAINST DEFECTIVE FACTORY-SUPPLIED MATERIALS OR WORKMANSHIP.
III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF FORD MOTOR COMPANY ON THE ISSUE OF BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY.
¶2. We affirm in part and reverse and remand in part.
¶3. On August 18, 1994, James E. Penton, Jr. purchased a used 1994 Ford Thunderbird from Dearman Ford, Inc. At the time of purchase, the vehicle had approximately 19,250 miles on it. A new vehicle limited warranty was issued covering the 1994 Ford Thunderbird. Penton purchased the car primarily for his wife, although he also drove it.
¶4. About a month after purchase, Penton began noticing smoke coming from the vehicle after driving it. Penton assumed the car was leaking oil. Sometime in late September or early October 1994, Penton brought the car into the Dearman Ford for service. He informed the dealership that the car was leaking oil. Penton was told the repair shop was closed, and an appointment was scheduled to effectuate the repairs. Penton's wife later brought the car back to the dealership at the appointed time but was told she did not have an appointment. A new appointment was made for November 3, 1994.
¶5. On the morning of the November 3, 1994, Penton was driving the car when he hit "a coon or something in the road." Penton noticed the smell of something burning and pulled the car off the road. When Penton popped the hood he could see fire coming from the engine. The fire eventually engulfed the entire car causing damages in the amount of $16,588. At the time of the fire the vehicle had approximately 23,000 to 25,000 miles on it.
¶6. After paying his $250 deductible, Penton was compensated for his loss by State Farm in the amount of $16,338. State Farm sought recovery of the amount it paid to Penton from Ford Motor Company and Dearman Ford. Penton sought recovery of his $250. The claims of State Farm and Penton were premised on theories of strict liability and negligence in tort, breach of an express warranty *fn1 , and breach of an implied warranty of merchantability.
¶7. On February 12, 1997, Ford filed a motion for summary judgment on all claims levied against it. Dearman Ford did not pursue a motion for summary judgment. In its summary judgment motion Ford argued that the claims for strict liability and negligence in tort were prohibited by the economic loss doctrine and Mississippi's products liability statute. Ford further alleged that the claim for breach of an express warranty was barred due to the exclusion in the warranty for damage caused by fire. Finally, it alleged any claim for breach of an implied warranty was barred due to the mileage of the vehicle. A hearing was held taking up the motion on September 18, 1998. The motion was granted dismissing all claims against Ford, and this appeal ensued.
¶8. We conduct a de novo review of the record to determine whether the trial court properly granted a motion for summary judgment. Nationwide Mut. Ins. Co. v. Garriga, 636 So. 2d 658, 661 (Miss. 1994); Pace v. Financial Sec. Life, 608 So. 2d 1135, 1138 (Miss. 1992); Short v. Columbus Rubber & Gasket Co., 535 So. 2d 61, 63 (Miss. 1988). The de novo review includes looking at the evidentiary matters and viewing them in the light most favorable to the party against whom the motion has been made. Nationwide Mut. Ins. Co., 636 So. 2d at 661. The movant has the burden of proving that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993). "Summary judgment is appropriate if the evidence before the Court--admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc.--shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Rockwell v. Preferred Risk Mutual Ins. Co., 710 So. 2d 388, 389 (Miss. 1998) (citing Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990)).