                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 10, 2013 Session

               ROBERT BEAVER v. FORD MOTOR COMPANY

              Direct Appeal from the Chancery Court for Coffee County
                No. 2011-CV-265      Vanessa A. Jackson, Chancellor


                  No. M2012-02088-COA-R3-CV - Filed July 31, 2013


In this appeal we are asked to construe the scope of the Tennessee Lemon Law and to
determine whether it applies to Plaintiff’s vehicle. For the following reasons, we find the law
applicable to vehicles with a “gross vehicle weight” of 10,000 pounds or less, and we affirm
the trial court’s conclusions that Plaintiff is entitled to protection and relief thereunder.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

James H. Drescher, Brentwood, Tennessee, for the appellant, Ford Motor Company

Charles Craig Northcott, Tullahoma, Tennessee, for the appellee, Robert Beaver
                                               OPINION

                             I.   F ACTS & P ROCEDURAL H ISTORY

        In May of 2010, Robert Beaver purchased a 2011 Ford F-350 Super Duty Crew-Cab
diesel truck from Kidd Ford-Lincoln-Mercury in McMinnville, Tennessee, for $58,438.59.
After he purchased the vehicle, Mr. Beaver had a trailer kit, a bedliner and vent covers
installed on the vehicle and he had the vehicle’s windows tinted.

       According to Mr. Beaver, he began experiencing problems with the vehicle
immediately after the purchase. Primarily, he claims that the truck consumes excessive
amounts of diesel exhaust fluid (“DEF”).1 According to the vehicle’s “Owner’s Guide
Supplement,” which was provided to Mr. Beaver at the time he purchased the vehicle,
“[g]enerally, the DEF tank should be filled during the oil change service interval[,]” and oil
change requirements vary based upon the vehicle’s use: normal use, every 7500 - 10000
miles; severe use, every 5000-7499 miles; and extreme use, every 2500-4999 miles.2 Mr.
Beaver claims that, despite “normal” use, his truck required that DEF be added, on average,
every 3,000 miles. The need for additional DEF was indicated on the vehicle’s instrument
panel although the panel did not yet indicate that an oil change was needed. Mr. Beaver
attempted to rectify the DEF consumption problem by having the vehicle serviced at various
Ford dealerships, including Kidd Ford-Lincoln-Mercury, approximately thirteen times
between July 2010 and January 2012.

        Because he was unsatisfied with the repair attempts, on August 4, 2011, Mr. Beaver
filed a Complaint in the Coffee County Chancery Court against Kidd Ford-Lincoln-Mercury
and Ford Motor Company (sometimes hereinafter “Ford”). Mr. Beaver claimed problems
with the vehicle’s DEF system and with its tires wearing “significant[ly] and uneven[ly,” and
he asserted that he had “experienced other issues with his vehicle which ha[d] contributed
to the substantial impairment of it.” Based upon these factual allegations, Mr. Beaver
asserted claims of breach of contract, breach of warranty, and violations of the Tennessee




        1
         According to a Ford Motor Company field service engineer who testified in this matter, DEF is used
to reduce nitrogen oxides emissions.
        2
         The Owner’s Guide Supplement provides the following “Vehicle use examples”:
Normal use = No, or limited to moderate, load/towing; Flat to moderately hilly roads; No extended idling
Severe use = Moderate to heavy load/towing; Mountainous or off-road conditions; Extended idling; Extended
hot or cold operation.
Extreme use = Maximum load/towing; Extreme hot or cold operation

                                                   -2-
Lemon Law 3 and the Tennessee Consumer Protection Act.4

       A trial was held in the matter in June 2012. In August 2012, the trial court entered an
Order in which it found both that the Tennessee Lemon Law applied to Mr. Beaver’s vehicle
and that he was entitled to relief thereunder. Specifically, the trial court found that the
vehicle suffered from the nonconformities of pulling to the right, uneven tire wear, and
excessive DEF consumption.          Collectively, it found, these nonconformities were
“substantial” and they “substantially impair[ed] the use, value and safety of the [v]ehicle[.]”
Additionally, the trial court found in favor of Mr. Beaver on his breach of warranty and
breach of contract claims, but it found that relief pursuant to these causes of action was
preempted by the relief provided under the Tennessee Lemon Law. The trial court rescinded
the purchase contract and it ordered Ford Motor Company to pay off the balance of Mr.
Beaver’s loan on the vehicle. Additionally, the trial court awarded Mr. Beaver a judgment
for payments made on the vehicle, for accessories added to the vehicle, and for maintenance
costs expended on the vehicle, less a credit to Defendants for reasonable use of the vehicle.5
The trial court, however, dismissed Mr. Beaver’s Tennessee Consumer Protection Act claim,
finding that Defendants had not engaged in deceptive or unfair practices.6 Finally, the trial
court awarded Mr. Beaver $24,120.58 for his attorney fees and expenses. Ford Motor
Company timely appealed to this Court.7


                                         II.   I SSUES P RESENTED

        Ford Motor Company presents the following issues for review, as summarized:

1.      Whether the Tennessee Lemon Law applies to Mr. Beaver’s vehicle; and
2.      Whether Mr. Beaver’s vehicle suffered from a non-conformity which substantially
        impaired its value.




        3
            Tenn. Code Ann. § 55-24-101, et seq.
        4
            Tenn. Code Ann. § 47-18-101, et seq.
        5
         Mr. Beaver was awarded $8,346.00 for his downpayment, $21,081.39 for payments made, $2,706.68
for accessories added, and $2,115.48 for maintenance costs, for a total of $33,821.55. In addition to this
amount, Mr. Beaver was awarded payments made by him post-trial.
        6
            This finding is not challenged on appeal.
        7
            Defendant Kidd-Ford-Lincoln-Mercury did not pursue an appeal in this matter.

                                                        -3-
For the following reasons, we affirm the decision of the chancery court.


                                          III.   D ISCUSSION

                           A. Applicability of Tennessee Lemon Law

       At the outset, we must resolve a question of statutory construction regarding the
vehicle weight classes to which the Tennessee Lemon Law applies. Our Supreme Court
recently discussed the principles guiding statutory interpretation:

                When interpreting a statute, courts “must ascertain and give effect to the
        legislative intent without restricting or expanding the statute’s intended
        meaning.” Our task is to examine the text of the statute and, if the language
        is unambiguous, we simply apply the plain meaning of the words used in the
        statute. As we recently observed, courts “must (1) give these words their
        natural and ordinary meaning, (2) consider them in the context of the entire
        statute, and (3) presume that the General Assembly intended to give each of
        these words its full effect.” Every word in a statute is presumed to have
        meaning and purpose. If, after examining the text of the statute, it becomes
        clear the statute is ambiguous, “we may reference the broader statutory
        scheme, the history of the legislation, or other sources to discern its meaning.”
        “However, these non-codified external sources cannot provide a basis for
        departing from clear codified statutory provisions.”

Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012) (internal citations omitted). Our
review of statutory construction issues is de novo without a presumption of correctness.
Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012).

        On appeal, the parties dispute the applicability of the Tennessee Lemon Law to Mr.
Beaver’s vehicle. When first enacted in 1984, the law contained no vehicle weight
requirement. However, two years later, the General Assembly amended the law to exclude
from its coverage, vehicles with a “gross vehicle weight” exceeding 10,000 pounds.8

        The parties disagree as to which industry measure for weighing vehicles the
legislature actually intended to utilize: curb weight (base or vehicle), gross vehicle weight,
or gross vehicle weight rating. As set forth in the Owner’s Guide for Mr. Beaver’s vehicle,


        8
        Tenn. Code Ann. § 55-24-101(4) (“‘Motor vehicle’ does not include . . . vehicles over ten thousand
pounds (10,000 lbs.) gross vehicle weight”) (emphasis added).

                                                   -4-
and as further established by the evidence at trial, these industry measures are defined as
follows:

        Base Curb Weight is the weight of the vehicle including a full tank of fuel
        and all standard equipment. It does not include passengers, cargo, or optional
        equipment.

        Vehicle Curb Weight is the weight of your new vehicle when you picked it
        up from your authorized dealer plus any aftermarket equipment.

        Gross Vehicle Weight is the Vehicle Curb Weight + cargo + passengers.

        Gross Vehicle Weight Rating is the maximum allowable weight of the fully
        loaded vehicle (including all options, equipment, passengers and cargo).

The relevant weights of Mr. Beaver’s truck are undisputed:

        Curb Weight = 7,000 lbs.9
        Gross Vehicle Weight = fluctuated between 7,500 lbs. and 8,740 lbs.10
        Gross Vehicle Weight Rating = 13,300 lbs.


       In its August 2012 Order, the trial court found that the Tennessee Lemon Law applied
to Mr. Beaver’s truck because “the gross vehicle weight of Plaintiff’s Vehicle [was] less than
ten thousand (10,000) pounds at the time the Plaintiff purchased the vehicle.” On appeal,
Ford Motor Company contends that, although the legislature used the term “gross vehicle
weight” in the statute, it could not have actually intended for the law’s applicability to be
determined by a vehicle’s fluctuating gross vehicle weight. Ford contends that a vehicle
should not alternate between coverage and non-coverage based upon the cargo and
passengers currently carried. Instead, it asserts that coverage should be objectively
determined at the time of purchase based upon the vehicle’s “gross vehicle weight rating.”




        9
         It is unclear whether this 7,000 lb. weight includes the after-market equipment added by Mr. Beaver.
In any event, such equipment would not cause the vehicle to exceed 10,000 lbs.
        10
          Mr. Beaver testified that he weighed the vehicle at a recycling center and that the 8,740 pound
figure included the weight of the truck, the weight of Mr. Beaver, the weight of the accessories added to the
truck, and the weight of the cargo being carried, including two bags of soil. The 7,500 pound figure deducted
the weight of Mr. Beaver, the accessories, and the cargo.

                                                     -5-
       In contrast, Mr. Beaver argues that the legislature “clear[ly] and unambiguous[ly]”
used the term “gross vehicle weight,” and therefore that the term should be given its plain
meaning which, according to Mr. Beaver, “is the sum total of the weight of all of the parts
that comprise the vehicle.” Mr. Beaver does not seem to dispute that a vehicle’s “gross
vehicle weight” fluctuates based upon what the vehicle is currently carrying. However, he
argues that this fluctuation does not create coverage questions, as Ford Motor Company
suggests, because the legislature logically intended for a vehicle’s “gross vehicle weight” to
be determined “at the point of purchase” when the vehicle is carrying neither passengers nor
cargo.

        In response, Ford Motor Company contends that adopting Mr. Beaver’s interpretation
reads the term “gross” out of the statute in violation of the statutory construction presumption
that each word included in a statute has a meaning and a purpose. Garrison, 377 S.W.3d at
663. Additionally, Ford Motor Company asserts that “10,001 pounds gross vehicle weight
rating . . . is an important and well-known line of demarcation in the industry[,]” with
vehicles above this weight rating characterized as “commercial vehicles” and vehicles below
this weight rating characterized as “passenger cars.” Without citation, Ford Motor Company
contends that the legislature “incorporated the phrase ‘gross vehicle weight’ to exclude the
largest vehicles–those over 10,000 pounds–from coverage under the Lemon Law” to provide
“certain protections for passenger vehicles, while excluding commercial vehicles from those
protections.”

        While Ford Motor Company is correct that the 10,001 pound weight is sometimes
used as a demarcation line, see, e.g., Tenn. Code Ann. § 55-9-602(h) (classifying a
“passenger motor vehicle, with regard to child passenger restraint systems and seat belts, as
a motor vehicle with a “gross vehicle weight rating” of less than 10,000 pounds), this weight
does not always establish the line between commercial and passenger vehicles. See, e.g.,
Tenn. Code Ann. § 55-50-102(12)(A)(i) (defining a “commercial motor vehicle,” as used
in the Uniform Classified and Commercial Driver License Act, as a motor vehicle with a
“gross vehicle weight rating” of more than 26,000 pounds). We find no indication that the
legislature intended the 10,000 pound gross vehicle weight rating to demarcate between
passenger and commercial vehicles for purposes of Tennessee Lemon Law coverage. In any
event, the statute lends no support to Ford’s argument that the law was intended to provide
protection only for consumers of passenger vehicles.

       As stated above, where statutory text is unambiguous, we must apply the plain
meaning of the words used. Garrison, 377 S.W.3d at 663. Although the legislature has used
the term “gross vehicle weight rating” in other statutory contexts, see, e.g., Tenn. Code Ann.
§§ 55-9-204, 55-9-217, 55-9-405, it did not use this term to categorize the vehicles entitled
to protection under the Tennessee Lemon Law. We must construe the statute without any

                                              -6-
“forced or subtle construction which would extend or limits its meaning.” Bryant v. Baptist
Health Sys., 213 S.W.3d 743, 749 (Tenn. 2006) (citing Nat’l Gas Distrib., Inc. v. State, 804
S.W.2d 66, 67 (Tenn. 1991)). Adopting Ford Motor Company’s position would do just
that–it would preclude from protection not only vehicles actually weighing more than 10,000
pounds, but also those vehicles capable of weighing more than 10,000 pounds. Because the
legislature clearly and unambiguously chose another industry measure–“gross vehicle
weight”–to demarcate between Tennessee Lemon Law protection and non-protection, we
decline to read the word “rating” into the statute.

       This interpretation is consistent with a very similar case from another jurisdiction. In
Joyce v. Ford Motor Co., 198 Cal.App. 4th 1478, 131 Cal.Rptr.3d 548 (Cal. App. 3 Dist.
2011), the California Court of Appeals considered the applicability of the Song-Beverly
Consumer Warranty Act (the “Act”),11 California’s lemon law, to the Ford F-250 truck
purchased by plaintiff Joyce. The Act, which applied to “new motor vehicle[s]” defined the
term, in relevant part, as follows:
       “New motor vehicle” means a new motor vehicle that is bought or used
       primarily for personal, family, or household purposes. “New motor vehicle”
       also means a new motor vehicle with a gross vehicle weight under 10,000
       pounds that is bought or used primarily for business purposes by a person[.]

Id. at 556 (quoting Civ. Code, § 1793.22, subdivision (e)(2)) (emphasis added).

        The Joyce vehicle had an invoice shipping weight of 6,787 pounds, and even after
plaintiff added certain after-market accessories, the vehicle did not weigh 10,000 pounds.
Id. at 558. In Joyce, Ford Motor Company did not dispute that plaintiff’s vehicle actually
weighed less than 10,000 pounds. Instead, as in this case, Ford argued that the phrase “gross
vehicle weight” was intended to mean “gross vehicle weight rating” and therefore, that
plaintiff’s vehicle, which had a gross vehicle weight rating of 10,000 pounds, was not
entitled to protection under the Act. Id. The California Court of Appeals was unpersuaded
by Ford’s argument, finding that the phrase “‘gross vehicle weight’ is clear and
unambiguous. . . .” and that “the plain and ordinary meaning of ‘gross vehicle weight’ is the
overall total amount that the vehicle weighs.”12 Id. at 558-59. The Court rejected Ford’s
assertion that “gross vehicle weight” was not a universally applied term, noting that the


        11
             Civ. Code, §§ 1790, 1793.2, subd. (d)(2).
        12
          The Court relied, in part, on the dictionary definitions of the terms “weight” and “gross”:
“Merriam-Webster’s Collegiate Dictionary, 11th Edition, defines the word ‘weight’ to mean ‘the amount that
a thing weighs.’ This dictionary also defines ‘gross’ to mean ‘overall total exclusive of deductions.’” Joyce,
131 Cal.Rptr.3d at 559 (citing Merriam-Webster’s 11th Collegiate Dict. (2006) pp. 1419, col. 1; 513, col. 2).

                                                         -7-
truck’s owner’s manual, like the manual in the instant case, defined the terms separately, and
differently, as follows:

       GVW (Gross Vehicle Weight) means the Vehicle Curb Weight + cargo +
       passengers.

       GVWR (Gross Vehicle Weight Rating) means the maximum allowable weight
       of the fully loaded vehicle (including all options, equipment, passengers and
       cargo).

Id. at 559. The Court concluded that “the term ‘gross vehicle weight’ is [] universally
understood [and] applied in the industry. . . . And it does not mean ‘gross vehicle weight
rating.’” Id. at 560. Because it was undisputed that the plaintiff’s truck actually weighed less
than 10,000 pounds, the Court of Appeals concluded that the trial court had erred in granting
Ford Motor Company’s motion for nonsuit. Id. at 561.

       As stated above, the actual weight of Mr. Beaver’s vehicle was less than 10,001
pounds. Because his vehicle fell below the 10,001 pound threshold set forth in the Tennessee
Lemon Law, we find the trial court correctly determined that Mr. Beaver’s vehicle is entitled
to protection thereunder.

                     B. Non-Conformity and Substantial Impairment

       Having determined that the Tennessee Lemon Law applies to Mr. Beaver’s vehicle,
we must now consider Ford Motor Company’s argument that the trial court erred in finding
that Mr. Beaver’s vehicle suffered from a non-conformity which substantially impaired its
value. In considering this issue, we presume the correctness of the trial court’s factual
findings unless the evidence preponderates against them–that is, unless the evidence supports
another factual finding with greater convincing effect. Tenn. R. App. P. 13(d) (2013);
Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001); Watson v. Watson, 196 S.W.3d 695, 701
(Tenn. Ct. App. 2005) (citations omitted). Additionally, we accord great weight to the trial
court’s credibility determinations. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods.,
LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App. 2002). We review a trial court’s conclusions of
law under a de novo standard upon the record with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

      The Tennessee Lemon Law provides for the replacement or return of substantially
impaired motor vehicles. The law states in relevant part:



                                              -8-
      (a) The manufacturer must replace the motor vehicle with a comparable motor
      vehicle or accept return of the vehicle from the consumer and refund to the
      consumer the full purchase price if:

      (1) The nonconformity, defect or condition substantially impairs the motor
      vehicle; and

      (2) The manufacturer, its agent or authorized dealer is unable to conform the
      motor vehicle to any applicable express warranty after a reasonable number of
      attempts.

Tenn. Code Ann. § 55-24-103(a). The law further provides that “‘[s]ubstantially impair’
means to render a motor vehicle unreliable or unsafe for normal operation or to reduce its
resale market value below the average resale value for comparable motor vehicles[.]” Tenn.
Code Ann. § 55-24-101(6).

      Regarding non-conformity, the trial court found as follows:

              This Court also finds that Plaintiff purchased a new 2011 Ford F350
      diesel truck . . . from Defendants on May 19, 2010. The Vehicle was covered
      by a manufacturer’s warranty at the time of purchase. This Court further finds
      that Defendants provided Plaintiff with an owner’s manual and a supplement
      thereto at the time of his purchase of the Vehicle for the purpose of explaining
      the expectations for the performance and maintenance schedule of the Vehicle.

             This Court also finds the testimony of Plaintiff, Robert Beaver, to be
      very credible. Specifically, this Court finds that Plaintiff drove, operated and
      used his Vehicle in the manner to which he testified. This Court finds that he
      only used the Vehicle to pull a trailer on one occasion. This Court finds that
      his explanation as to why he did not use the Vehicle to pull the trailer for
      which he bought the Vehicle to be credible. This Court finds that his
      testimony regarding the problems he experienced with the Vehicle to be
      credible and that his Vehicle in fact depleted its supply of diesel exhaust fluid
      on average of approximately every three thousand (3,000) miles. The distance
      which the Vehicle traveled before the diesel exhaust fluid was expended varied
      between as little as less than one thousand (1,000) miles and no more than just
      over five thousand (5,000) miles. . . .

             ....



                                             -9-
              This Court finds that the Plaintiff’s Vehicle suffered from substantial
      nonconformities. This Court finds that the Vehicle, pursuant to the owner’s
      manual and its supplement provided by the Defendants to the Plaintiff, should
      have been able to travel seven thousand five hundred (7,500) to ten thousand
      (10,000) miles before requiring any servicing relative to the diesel exhaust
      fluid. This Court finds it is reasonable for the Plaintiff and other consumers
      to rely on the owner’s manual for determining the performance to which the
      Vehicle is expected to conform. This Court finds that the Vehicle exhausted
      its supply of diesel exhaust fluid on average of every three thousand (3,000)
      miles which should only occur if the Plaintiff was operating the Vehicle in
      extreme manner as defined by the owner’s manual and supplements. This
      Court specifically finds that the Plaintiff operated his Vehicle in what is
      described as normal vehicle use by Ford Motor Company in its owner’s
      manual and supplements. This Court further finds credible the Plaintiff’s
      testimony that he brought the Vehicle to Ford Motor Company authorized
      dealerships specifically requesting repairs for this substantial nonconformity
      on more than three (3) occasions and that Ford Motor Company had ample
      opportunity to repair the substantial nonconformity but failed to do so.
      Additionally, this Court finds that Plaintiff’s Vehicle also suffered from
      nonconformities of pulling to the right and uneven tire wear. This Court finds
      that the pulling to the right and uneven tire wear by themselves would not be
      a substantial nonconformity but, when taken together with each other and with
      the nonconformity relative to the diesel exhaust fluid expenditure, rendered
      this Vehicle to have a substantial nonconformity. This Court finds that the
      nonconformity substantially impairs the use, value and safety of the Vehicle
      in that the rapid depletion of the Vehicle’s diesel exhaust fluid caused the
      Vehicle to operate at no more than fifty-five miles per hour and then at idle
      only. This substantial impairment of the use of the vehicle cannot be predicted
      and causes safety concerns and loss of value in the vehicle.

On appeal, Ford Motor Company argues that Mr. Beaver failed to establish: (1) that the
vehicle was non-conforming; and (2) that the non-conformity substantially impaired the
vehicle.




                                           -10-
                                          1. Non-Conformity

       On appeal, Ford does not challenge the trial court’s finding that the vehicle “suffered
from nonconformities of pulling to the right and uneven tire wear.”13 Instead, it focuses upon
DEF depletion, and it argues that Mr. Beaver’s own testimony is contrary to the trial court’s
finding that the vehicle exhausted its DEF supply, on average, every 3,000 miles. According
to Ford, Mr. Beaver’s testimony demonstrated only that thirty-two gallons of DEF were
added to his vehicle at eight service visits over a two-year period during which the truck was
driven nearly 46,000 miles. Thus, according to Ford Motor Company, DEF was exhausted
every 6,000 miles–as opposed to every 3,000 miles.

       Alternatively, Ford seems to argue that evidence of excessive DEF depletion, alone,
is insufficient to establish a non-conformity without evidence that the vehicle’s catalytic
reduction system, to which DEF is added, was defective. Ford points out that Mr. Beaver
presented no evidence that any of the dealerships which serviced the vehicle identified a
defect within the vehicle’s selective catalytic reduction system, and that Ford’s own
examination of the vehicle found the “[selective catalytic reduction] system is functioning
as designed with no defects.” Ford asserts that even if a defect existed initially, Mr. Beaver’s
testimony indicated that such defect may have been cured.14 Finally, Ford argues that Mr.
Beaver should have been required to present expert testimony regarding non-conformity
because Mr. Beaver’s “subjective belief” that the vehicle was non-conforming was
insufficient to establish his claim in light of “evidence that the subject vehicle [was] working
as designed.”

       After reviewing the evidence in this case, we disagree with Ford’s assertion that Mr.
Beaver offered only his “subjective belief” that the vehicle was non-conforming. The trial
court specifically credited Mr. Beaver’s testimony, and his testimony established that he
operated the vehicle in a “normal” manner15 such that oil changes and DEF additions should


        13
          Ford generally phrases the issue on appeal as “Whether Beaver presented sufficient evidence to
establish a ‘non-conformity’ that ‘substantially impaired’ his vehicle, as required by § 55-24-103(a) of the
Tennessee Code?” However, pulling to the right and uneven tire wear are not mentioned in its brief.
        14
          Curiously, Mr. Beaver’s testimony cited for this assertion is as follows:
        Q: Other than continuing to replace the DEF, what, if any, other action did any of the
        authorized dealers or Ford take to correct this issue?
        A: One time when . . . I took [the vehicle] to Russell Barnett Ford I was told that they had
        replaced some type of parts in the DEF system, but I don’t know what those parts are.
        15
         The trial court’s finding that Mr. Beaver operated his vehicle normally is apparently not challenged
on appeal.

                                                    -11-
have been required only every 7,500 to 10,000 miles. His testimony further demonstrated
that, on numerous occasions, his vehicle’s instrument panel warned of the need for additional
DEF although the need for an oil change was not yet indicated. Rather than lasting 7,500
miles, Mr. Beaver’s vehicle warned of the need for additional DEF at the following vehicle
mileages: 4,883 miles, 8,144 miles, 12,764, 13,720 miles, 19,413 miles, 23,623 miles, 26,780
miles, and 29,178 miles. These intervals between DEF warnings range from as little as 956
miles to only 5,693–not 7,500 miles.16 The evidence presented by Mr. Beaver also
established that DEF was added to his vehicle at least eleven times between July 2010 and
January 2012 during which his vehicle traveled 34,814 miles, indicating an average DEF life
of 3,165 miles. In sum, the evidence fully supports the trial court’s factual finding that Mr.
Beaver’s truck “exhausted its supply of diesel exhaust fluid on average of every three
thousand (3,000) miles[.]” In any event, even if Ford is correct that DEF was exhausted every
6,000 miles, this number, nonetheless, falls below the standard set forth in the Owner’s
Guide Supplement.17

        We find the evidence of excessive DEF depletion is sufficient to establish a non-
conformity, and we reject Ford’s apparent contention that Mr. Beaver was required to
uncover the defect giving rise to the non-conformity. Additionally, because the non-
conformity in this case is apparent from simple mathematical calculations, we reject Ford’s
assertion that Mr. Beaver was required to present expert testimony regarding the non-
conformity issue. See Tenn. R. Evid. 702 (“If scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert . . . may testify in the form of an opinion or
otherwise.”); State v. Scott, 275 S.W.3d 395, 411-12 (Tenn. 2009) (“Where expert testimony
is merely an iteration of what would be within the [trier or fact’s] common sense, the
admission of such evidence does not assist, much less substantially assist, the trier of fact to
understand the evidence or determine a fact at issue.”). Compare Dodd v. Chrysler Group
LLC, No. 1:11-cv-01073-JDB-egb, 2012 WL 1565640, at *6 (W.D. Tenn. 2012) (granting
summary judgment to the defendant on plaintiff’s Tennessee Lemon Law claim, noting that
plaintiff had offered only his personal belief that jerking and rough shifting due to
transmission issues substantially impaired his vehicle’s use, value, and or safety, and stating
that expert proof was required because these issues were “beyond the common knowledge


        16
         The service records presented were entirely consistent with Mr. Beaver’s testimony that his vehicle
warned of the need for DEF after as little as 956 miles and that the longest distance it went between DEF
warnings was 5,693 miles.
        17
         In its reply brief, Ford Motor Company argues that the DEF addition guidelines set forth in the
Owner’s Guide Supplement should not be used to establish conformity or non-conformity. This issue was
not properly raised in Ford’s initial appellate brief, and in any event, we reject Ford’s argument that its own
vehicle manual cannot provide the DEF depletion rate standard to which the vehicle should conform.

                                                     -12-
of a layman.”). The trial court’s conclusion that Mr. Beaver’s vehicle was non-conforming
under the Tennessee Lemon Law due to pulling to the right, uneven tire wear, and excessive
DEF depletion is affirmed.

                                     2. Substantial Impairment

        Having found Mr. Beaver’s vehicle to be non-conforming, we must lastly consider
whether the non-conformities “substantially impair” the vehicle–that is, whether they render
it either unreliable or unsafe for normal operation, or “reduce its resale market value below
the average resale value for comparable motor vehicles[.]” Tenn. Code Ann. § 55-24-
101(6). The trial court apparently found that, collectively, the non-conformities of pulling
to the right, uneven tire wear, and excessive DEF depletion substantially impaired the
vehicle’s reliability, its safety, and its resale market value.18

      On appeal, Ford Motor Company argues that the trial court erred in “deferr[ing]
primarily to [Mr.] Beaver’s subjective beliefs that his truck’s selective catalytic reduction
emissions system continued to make the vehicle unreliable or unsafe for normal operation”
and that expert testimony regarding safety and reliability should have been required.
Additionally, it contends that the trial court erred in finding a loss of resale value because Mr.
Beaver received an offer to purchase his truck “for exactly what he thought the truck
[without non-conformities] was worth.”

       At trial, Mr. Beaver testified that when he purchased the vehicle, a representative from
Kidd Ford-Lincoln-Mercury provided him with the Owner’s Guide Supplement and directed
him to rely upon such “as far as maintenance of the exhaust system relative to adding
DEF[.]” Specifically, he stated that the representative directed him to and highlighted a
section entitled “DEF warning messages and vehicle operations” which provided:

        WARNING: Diesel Exhaust Fluid (DEF) must be refilled when low or
        replaced when contaminated or the vehicle speed will be speed limited to 55
        mph (80 km/h). In these conditions, drive with caution and refill DEF
        immediately. If the DEF becomes empty or contaminated fluid is not replaced,
        the vehicle will become limited to idle speed only once stopped. In these
        conditions, be cautious where you stop the vehicle because you may not be
        able to drive long distances and will not be able to maintain highway speeds
        until DEF is refilled or replaced.



        18
         The trial court found that the nonconformities “substantially impair[ed] the use, value and safety
of the Vehicle.”

                                                   -13-
        Mr. Beaver testified that the vehicle is designed to provide an instrument panel
warning when the remaining DEF life is less than 800 miles. He stated that he not only
repeatedly received the warning when the vehicle’s DEF should have had well over 800
miles remaining, but also that on at least two occasions, the DEF warning did not provide an
accurate service indicator. For example, he testified that a 799-mile warning appeared, but
by the time he reached a service dealership sixty to seventy miles away, the instrument panel
indicated the need for additional DEF in only 300 miles. On another trip to South Dakota,
the warning indicator “dropped from the 800 [miles] down to around 300[,]” requiring Mr.
Beaver to halt his overnight drive and spend the night in his vehicle waiting for a service
dealership to open.

       It is unclear from the testimony presented whether, at any point, Mr. Beaver’s vehicle
actually began to idle or was limited to fifty-five miles per hour. This lack of evidence
notwithstanding, we find Mr. Beaver’s vehicle was clearly, at a minimum, unreliable. Mr.
Beaver could not predict when a DEF warning would appear, and when such a warning did
appear, he could not depend upon the mileage indicator to determine when DEF would be
depleted. This lack of reliability was of particular concern to Mr. Beaver when he traveled,
requiring him to purchase back-up DEF to avoid becoming stranded. We reject Ford’s
assertion that Mr. Beaver could not establish the vehicle’s unreliability absent expert
testimony. Based upon our findings of non-conformity and substantial impairment due to
unreliability, we affirm the trial court’s conclusion that Mr. Beaver was entitled to relief
under the Tennessee Lemon Law. The judgment of the trial court is affirmed and all
remaining issues are pretermitted.


                                    IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellant, Ford Motor Company, and its surety, for which
execution may issue if necessary.

                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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