2015 QCCQ 6041, 2015 QCCQ 6041

Frendo c. Mercedes-Benz Canada inc. 2015 QCCQ 6041 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL No: 500-22-196251-121 DATE: June 30, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ ERIC FRENDO Plaintiff v. MERCEDES-BENZ CANADA INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Eric Frendo ( Frendo ) claims from the Defendant Mercedes-Benz Canada Inc. ( Mercedes ) $28,980.86, representing the cost of replacing the engine to his vehicle. [ 2 ] Mercedes denies the claim on the basis that the engine seized due to the lack of maintenance by Frendo. THE FACTS [ 3 ] On December 10, 2010, Frendo purchases a Mercedes-Benz 2011 GL 350BT vehicle [1] .

A copy of the Contract is given to Frendo as well as a copy of the Extended Limited Warranty Contract [2] and the Mercedes-Benz Limited Warranty Coverage [3] . [ 4 ] On May 12, 2011, after 24,023 km, Frendo brings the vehicle to his Dollard-des-Ormeaux dealership for service [4] . The oil and filter are changed. [ 5 ] On July 27, 2011, while in Sudbury, Ontario, Frendo experiences problems with the suspension of the vehicle and brings the vehicle to Sudbury Fine Cars Limited, an authorized Mercedes dealership. [ 6 ] Frendo retrieves the vehicle five days later.

No charge is requested, as appears from the invoice dated August 2, 2011 [5] . [ 7 ] A few weeks later, after 50,000 km, the service indicator illuminates on the dashboard. [ 8 ] On September 21, 2011, Frendo brings the vehicle to Concept Granby Automobiles ( Concept ), another Mercedes dealership, to replace a broken mirror. [ 9 ] On October 11, 2011, the Ad-Blue light goes on; Frendo again brings the vehicle to Concept for minor repairs [6] . The vehicle registers 50,441 km [7] . [ 10 ] On February 4, 2012, while Frendo is driving, the vehicle suddenly ceases to operate.

The vehicle is again transported to Concept. [ 11 ] Frendo is then advised that, due to his failure to change the oil on a regular basis, the engine has to be replaced, a repair that is not covered by the warranty. [ 12 ] On February 24, 2012, Frendo writes to Mercedes outlining the events regarding the dates at which the vehicle was brought to a Mercedes dealership for service [8] . Mercedes replies on March 26, 2012, reminding Frendo that the only maintenance regarding an oil change was done at 24,023 km, which was 9,000 km overdue [9] . Mercedes adds that the vehicle has been operating for more than 26,367 km.

Mercedes concludes that, as the vehicle was not maintained at the recommended intervals, according to the manufacturer’s specifications, the engine repairs are not covered by the manufacturer’s warranty. [ 13 ] On March 27, 2012, Frendo again writes to Mercedes, to which Mercedes replies on April 26, 2012, again denying that the repairs are covered by the warranty [10] . [ 14 ] Frendo retrieves the vehicle on March 22, 2012. The cost to replace the engine is $28,980.86 [11] , which amount he claims from Mercedes.

THE ANALYSIS [ 15 ] Frendo claims that the Mercedes dealerships defaulted in their obligation to provide adequate service when the vehicle was

brought for repairs. [ 16 ] In this regard, Frendo suggests that when he brought the vehicle to Sudbury Fine Cars Limited, as the vehicle would stay in the shop for four days, he asked the vehicle be serviced. However, the Court notes that the invoice [12] bears no indication that the oil and the filter were changed. [ 17 ] In cross-examination, Frendo was referred to page 297 of the Owner’s Manual [13] , more particularly to the Service messages

Section which reads as follows: The service interval display informs you of the next service due date. If a service due date has been exceeded, you also hear an acoustic signal. The multifunction display shows a service message for a few seconds, e.g. Service A in… mi Service A due now Service A overdue by… mi. [ 18 ] Frendo admits that when the vehicle was serviced in May 2011, a light appeared on the dashboard for four to five weeks and three warning signals had been heard. [ 19 ] Again in August 2011, the second time the vehicle was brought in for repairs at 36,920 km, the three warning lights had gone on.

Frendo also admits that he did not review the invoice to see if the oil or the filter had been changed. [ 20 ] Frendo admits that, when he brought the vehicle to Concept, in September 2011, the service light was on and he did not ask the dealership to service the vehicle, as he assumed the vehicle had been serviced in August by Sudbury Fine Cars Limited. [ 21 ] When he returned to Concept, in October 2011, to have the Ad-Blue light dealt with, the service light was on.

Frendo admits that when he left the dealership the Ad-Blue light was off but the service light was still on. [ 22 ] Jacques Chabot, Regional Director for Mercedes reviewed the several invoices submitted by Frendo. He confirms that in May 2011, when the oil and oil filter were changed, the service was over due by 9,000 km. Also, between this oil change and the engine failure in February 2012, the vehicle had travelled 65,500 km and no service was performed on the vehicle, concerning the oil or the filter. [ 23 ] Mr.

Chabot had the engine examined by Tony McQuillan, Manager, Remanufacturing Centre for Mercedes, who indicates in his Expert Report the following: the engine found very heavy sludge in inside engine with blocked oil ports to crankshaft causing the main bearing to seize… Engine is not repairable and must be replaced, all failure stems from lack of oil maintenance causing engine oil to sludge which caused a lack of lubrication to the critical parts of the engine. [ 24 ] Mr.

Chabot also refers the Court to Mercedes -Benz Service Booklet [14] , highlighting the instructions given to the owner of the vehicle, namely: Page 4 . When scheduling a service appointment with your authorized Mercedes-Benz Dealer, always indicate the service type that appears in the multifunction display. This will help the authorized Mercedes-Benz Dealer to

schedule your vehicle maintenance in most efficient manner. Page 4 . Please note any maintenance work not performed or not performed at the specified interval which results in the failure of the warranted component(

s) or system(

s) in question may not be covered by the Mercedes-Benz Vehicle Limited Warranty. Page 14 . Engine oil and filter change : Change the engine oil and oil filter according to the specifications outlined in this booklet for your vehicle. If oil consumption should increase, determine the cause and take necessary corrective steps. Do not reset the Maintenance System service indicator if the oil is topped up or changed outside the respective km interval or 1 year. Page 20 .

Maintenance Service Descriptions : Service 3 – at every 15,000 km or 1 year. [ 25 ] Frendo argues that he had a reasonable expectation that when he brought the vehicle to a Mercedes dealership and the service light was on, this would be dealt with. [ 26 ] Frendo also argues that in September and October 2011, when the vehicle was brought in for service, he had a legitimate expectation that the service was not required as it had been serviced in August, in Sudbury Fine Cars Limited. [ 27 ] The Court does not agree with Frendo’s position.

The Mercedes-Benz Service Booklet clearly specifies that the owner of the vehicle has the responsibility of maintaining proper service on the vehicle, namely to have the oil changed every 15,000 km. [ 28 ] Moreover, in the Extended Limited Warranty Contract [15] , at paragraph 4 of the Exclusion

Section , it is explicitly provided that the following items are not covered by the warranty : lack of proper maintenance, as described in the Owner’s/Operator’s Manual and Service/Maintenance Booklet. [ 29 ] The Court concludes that the engine failure is entirely due to Frendo’s negligent maintenance of the vehicle. Frendo admitted he did not review the invoices he received after his several visits to the dealerships. Moreover, he was never charged for and never paid for any oil change. Several thousand kilometers elapsed before any service was done and he ignored the service lights that clearly appeared

on the dashboard. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff’s action; WITH COSTS. __________________________________ DIANE QUENNEVILLE, J.C.Q. Me Glenn M. Derstenfeld BARON ABRAMS Lawyer for the Plaintiff Me Andrei Pascu McMILLAN S.E.N.R.C.L. Lawyer for the Defendant