Goff, J.
Designed to promote high standards of business conduct, discourage unscrupulous dealing by sellers, and protect consumers against economic loss arising from defective goods, the implied warranty of merchantability is a “cornerstone of commercial law.” Accordingly, state law requires any warranty disclaimer by the seller to be clear and conspicuous. And as an added layer of protection for those who invoke it, the federal Magnuson-Moss Warranty Act (or MMWA) provides consumers with a right of action to sue for damages and attorney’s fees when the seller breaches the implied warranty.
The seller here, a used car dealer, expressly disclaimed all warranties in a written “buyers guide,” selling the vehicle “as is.” But given ambiguities in that document, we hold that the dealer did not effectively disclaim the implied warranty of merchantability. We further hold that, on the record here, fact issues remain as to whether the dealer had a reasonable opportunity to cure its failure to comply with its implied-warranty obligation. We thus vacate summary judgment for the dealer, direct the trial court to enter partial summary judgment for the buyer on the warranty-disclaimer issue, and remand for determination of whether the dealer had a reasonable opportunity to cure. Finally, should the buyer ultimately prevail in his action, we further direct the trial court to assess damages and reasonable attorney’s fees to which he may be entitled.
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Here, Thomas argues that Valpo “did not disclaim the implied warranty of merchantability” because the purported exclusion in the Sales Agreement expressly states that it does not apply if “THE SELLER EXTENDS A WRITTEN WARRANTY OR SERVICE CONTRACT WITH[IN] 90 DAYS FROM THE DATE OF THIS CONTRACT.” Appellant’s Br. at 9, 11 (quoting App. Vol. 2, p. 24) (alterations added). And even if the Sales Agreement could be read to exclude the implied warranty, he insists that the MMWA invalidates any such attempt because Valpo entered into a service contract with O’Malley. Id. at 11. Valpo rejects both these assertions and argues, as an independent basis for affirming summary judgment, that Thomas offered “no reasonable opportunity for [Valpo] to cure” the Car’s purported defects, as the MMWA requires. Appellee’s Br. at 10–11.
I. As a matter of contract interpretation, Valpo did not effectively disclaim the implied warranty of merchantability.
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As noted above, the Buyers Guide stated that the Car was being sold “AS IS,” with Valpo providing no “WARRANTY FOR ANY REPAIRS AFTER SALE.” App. Vol. 2, p. 105. The Sales Agreement, on the other hand, disclaimed all warranties, express or implied, “UNLESS THE SELLER EXTENDS A WRITTEN WARRANTY OR SERVICE CONTRACT WITHIN 90 DAYS FROM THE DATE OF THIS CONTRACT.” Id. at 76. This variation between the two documents—disclaimer without exception under the Buyers Guide and disclaimer with certain exceptions under the Sales Agreement—triggers the Sales Agreement’s conflict clause, rendering the terms of the Buyers Guide controlling. But whether language in the Buyers Guide sufficiently disclaims all warranties is another question.
The Buyers Guide (a copy of which we append to this opinion) lists three separate warranty options for the Car…Among these options, the only box checked is the one adjacent to the “AS IS—NO DEALER WARRANTY” option. Id. However, this checkmark does not make the disclaimer clear and unambiguous. To the contrary, we find two things that inject ambiguity into the document. First, although the “SERVICE CONTRACT” option is left unchecked, the language accompanying that option expressly informs the buyer that such an option is “available for an extra charge” and that, if the buyer purchases a service contract “within 90 days” of buying a vehicle, “implied warranties” under the law “may give [the buyer] additional rights.” Id. Second, directly under the “DEALER WARRANTY” option (the second option listed above), the Buyers Guide includes a hand-written notation stating that the “customer has purchased a 24/24,000 mile Wynn’s warranty.” Id.
Taken together, this information—the “implied warranties” that come with a service contract and the hand-written details of the “Wynn’s warranty”—renders the Buyers Guide ambiguous…
For the reasons above, we hold as a matter of law that Valpo did not effectively disclaim the implied warranty of merchantability. [Footnote omitted.]
II. Fact issues remain as to whether Valpo had a reasonable opportunity to cure the defects.
The MMWA expressly prohibits a party from bringing an action “for failure to comply with any obligation under any written or implied warranty or service contract” except when “the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply.” 15 U.S.C. § 2310(e) (emphasis added).
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The MMWA does not define “a reasonable opportunity to cure.” And Indiana state courts have had no opportunity to squarely address the issue. So we turn to the pertinent statutory text and federal case law to guide our analysis.
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From this assessment of the pertinent statutory text and case law, we conclude that, in claims alleging breach of implied warranty, a buyer need only show to the satisfaction of the factfinder that the seller had “a reasonable opportunity to cure” its failure to comply with its warranty obligations. 15 U.S.C. § 2310(e) (emphasis added); see Anderson, 662 F.3d at 780 n.3 (suggesting that section 2310 contemplates only one reasonable opportunity to cure). And the buyer can meet this burden of proof by showing that he explicitly asked the seller to cure (i.e., repair, replace, or refund) or that he notified the seller of the purported defect and the seller proposed no remedy in response. [Footnote omitted.]
Here, the facts most favorable to Thomas show that he had notified Valpo of what he “had learned from the mechanic” and expressly gave them “an opportunity to rectify the situation” as they deemed “fit,” and that Valpo itself made an offer to cure by offering a partial refund for the Car, which O’Malley rejected. [Footnote omitted.] See App. Vol. 2, p. 202; App. Vol. 3, pp. 124–25. From this evidence, we hold that, at the very least, there’s a genuine issue of material fact as to whether Valpo had a reasonable opportunity to cure its failure to comply with the implied warranty of merchantability, making summary judgment for Valpo improper.
Conclusion
For the reasons above, we vacate summary judgment for Valpo, direct the trial court to enter partial summary judgment for Thomas on the warranty-disclaimer issue, and remand for determination of whether Valpo had a reasonable opportunity to cure. In the event Thomas “finally prevails” in his action, we further direct the trial court to assess damages and reasonable attorney’s fees to which he may be entitled. See 15 U.S.C. § 2310(d)(2).
Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.