The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:19-cv-294-MOC-DCK
THERESA ANNE EVANS and STEVEN )
MICHAEL EVANS, )
)
Plaintiffs, )
)
vs. )
) ORDER
FOREST RIVER, INC., )
)
Defendant. )
_______________________________________ )
THIS MATTER comes before the Court on a Motion for Summary Judgment by
Defendant Forest River Inc. (Doc. No. 9).
I. BACKGROUND
A. Procedural Background
Plaintiffs Theresa Evans and Steven Evans bought a 2017 Forest River Dynamax Isata 3
MC recreational vehicle bearing identification number 8BNPF4CCXGE121979 (the “RV”),
manufactured by Forest River. On September 16, 2019, Plaintiffs filed this action against
Defendant Forest River, a recreational vehicle (“RV”) manufacturer, in the General Court of
Justice, Superior Court Division in Burke County, North Carolina seeking a judgment against
Forest River for $106,912.00, the full purchase price of the RV, plus incidental and consequential
damages, treble damages, and attorneys’ fees. (Doc. No. 1-1 (“the Complaint”)). The total
monetary damages sought by Plaintiffs is $317,842.59.
On October 17, 2019, Defendant filed a notice of removal pursuant to 28 U.S.C. §§ 1332
and 1441 as the United States District Court for the Western District of North Carolina has original
jurisdiction founded upon the diversity of citizenship between the parties and the amount in
controversy exceeds the statutory minimum of $75,000.00, exclusive of interest and costs. On
October 24, 2019, Defendant filed its answer (the “Answer”). (Doc. No. 3).
Plaintiffs’ Complaint alleges that Defendant violated the North Carolina New Motor
Vehicles Act, N.C. GEN. STAT. § 20-351 et seq. (“the Warranty Act”), by refusing to provide a
refund to Plaintiffs for their dysfunctional RV. Furthermore, Plaintiffs allege Defendant’s failure
to provide a refund is unreasonable and, as such, Defendant must pay both treble damages pursuant
to N.C. GEN. STAT. § 20-351.8 and reasonable attorneys’ fees for Plaintiffs.
Defendant responds that the Warranty Act does not apply to the RV purchased by Plaintiffs
because it weighs over 10,000 pounds. Defendant further contends that because the Warranty Act
does not apply, Plaintiffs do not qualify for a refund or treble damages under the statute. Defendant
further argues that even if the RV is a motor vehicle subject to the Warranty Act, Plaintiffs did not
give Defendant the required written notice under both the Warranty Act and the RV’s warranty
and have also failed to give Defendant a final opportunity to remedy the alleged defects.
Defendant filed the pending summary judgment motion on September 1, 2020. (Doc. No.
9). Plaintiffs submitted a Memorandum in Response to the Motion for Summary Judgment on
October 5, 2020. (Doc. No. 16). Defendant then filed a Supplemental Memorandum on November
2, 2020. (Doc. No. 17). A hearing in this matter was held on November 3, 2020. Thus, this matter
is ripe for disposition.
B. Factual Background
On December 29, 2017, Plaintiff Theresa Evans traveled to Carolina Coach and Camper
LLC, located in Claremont, North Carolina and purchased an RV manufactured by Defendant.
(Doc. No. 15 (“Theresa Evans Decl.”) at ¶ 1). The RV was delivered that same day. (Id.). The RV
was placed in the name of both Theresa Evans and her son Michael Evans. (Id. at ¶ 2). The
specified weight of the RV according to the vehicle sticker placed inside the driver’s side door is
9852 pounds (Doc. No. 15, Ex. 1); the specified weight of the RV according to the Federal
Certification Label is 9852 pounds (Doc. No. 10, Ex. 3); and the specified weight of the RV
according to the Certificate of Origin is also less than 10,000 pounds (Doc. No. 10, Ex. 4).
Defendant gave Plaintiffs certain warranties concerning the RV, including those
incorporated within the Warranty Act. (Compl. at ¶ 4). Ms. Evans first noticed substantial water
leak problems with the RV in February 2018. (Theresa Evans Decl. at ¶ 4). She took the RV back
to Carolina Coach and Camper, LLC to address the water problem on February 12, 2018. The
water leaks were at the entry door, the cabinets above the door, the wall by the sink, the back
bedroom, and on the floor and ledge next to the bed in the back bedroom. (Id.). Additionally, the
tv antenna coax was “very poorly sealed on roof.” (Id.). Carolina Coach and Camper, LLC
attempted repair on the seal and tried to dry everything off by removing and replacing ceiling
panels and running an ionizer and dehumidifier for several days. (Id.). The RV was returned to
Plaintiffs on March 5, 2018.
Ms. Evans contacted Defendant upon the discovery of the water leak in February of 2018
and notified them in written emails about the water leak problems. (Id. at ¶ 5). She also noted her
concern about ongoing leaks and potential mold issues. (Id.). She even sent a mold report in writing
to Defendant with evidence of continued water damage to the RV. (Doc. No. 11-1, Plaintiffs
Discovery Responses at 34-43). Ms. Evans requested that they take the RV back and trade it in for
another one or that the contract be rescinded altogether. (Theresa Evans Decl. at ¶ 5; Doc. No. 10,
Ex. 2 at 1). Defendant responded that they deserved an opportunity to repair the water leak at their
facility. (Theresa Evans Decl. at ¶ 5).
The parties decided to have Defendant attempt a repair after Ms. Evans returned from a
planned two-month trip with the RV to visit family from April to early June. (Id. at ¶ 6). While on
her trip in May of 2018, Ms. Evans experienced another substantial problem with water leaks from
a substantial rain event. (Id. at ¶ 8). The rear slide-out also malfunctioned on this trip with the
cause undetermined. (Id. at ¶ 7). Defendant retrieved the RV and took it back to their facility to
attempt a final repair between the approximate dates of June 20, 2019 and July 20, 2018. (Id. at ¶
10).
In August of 2018, Ms. Evans took the RV for a trip to Ohio. (Id. at ¶ 11). She returned
after one day because her refrigerator stopped working and she could not keep food. (Id.). She took
the RV to Tom Johnson’s Camping Center to repair the refrigerator and there discovered that a
water leak from rain had damaged the refrigerator so that it had become inoperable due to water
damage. (Id.). Ms. Evans had the refrigerator repaired.
In September of 2018, Ms. Evans took the RV to Niagara Falls, New York. (Id. at ¶ 12).
Midway through the journey while packing to travel to Pennsylvania, the rear slide-out would not
return. (Id.). It had also been damaged due to water leak problems. (Id.). Ms. Evans had to hire
someone to break the gear rods to get the slide-out to return just so she could drive the RV back
home. (Id.).
On September 22, 2018, Plaintiffs took the RV back to Tom Johnson’s Camping Center
for repair of the failed slide-out and resolution of the water leak problem. (Id. at ¶ 13). Plaintiffs
waited for several months until mid-December for “warranty approval” from Defendant to repair
the RV. (Id.). Plaintiff Ms. Evans continued to write to Defendant by email requesting that they
fix the extensive water leak problems. (Id.; Doc. No. 11-1, Plaintiffs Discovery Reponses, at 46-
50). Finally, after never receiving such approval and after Defendant would not attempt further
repair, Plaintiffs decided to rescind the contract pursuant to their rights under the Warranty Act.
For purposes of the Warranty Act, in the above-described transaction and events: (1)
Plaintiffs were and are “Consumers”; and (2) Defendant was and is the “Manufacturer” of the RV.
See N.C. GEN. STAT. § 20-351.1. The parties dispute whether the RV was and is a “Motor Vehicle”
and a “New motor vehicle,” that weighs less than 10,000 pounds, as those terms are defined in
N.C. GEN. STAT. § 20-351.1.
Despite numerous attempts at repairs by Defendant and its authorized dealer, the RV could
not be used by Plaintiffs for more than 157 days of the first 12-month warranty period due to
substantial water leak problems. (Compl. at ¶ 8). Plaintiffs were only able to use the RV for a total
of approximately 8000 miles during the initial warranty period, over 700 miles of which were
driven while the RV was inoperable as a sleeping and eating camper due to a failed “slide out”
likely caused by the continuous water leak problems. (Id.).
These facts, construed in the light most favorable to Plaintiffs, demonstrate that water leak
problems substantially impaired the value of the RV to Plaintiffs and these problems occurred
within the first 12 months following delivery of the RV to them. (Id. at ¶ 9). The facts further show
that Defendant failed, despite a reasonable number of attempts, to conform the RV to the applicable
warranties. (Id.). Importantly, the facts as alleged also show that Defendant was given a substantial
opportunity to repair the water leak problems at their facility in Indiana. To this day, Defendant
has refused to provide a refund to Plaintiffs.
This case presents the Court with several issues: (1) whether the RV is a motor vehicle
weighing less than 10,000 pounds under the Warranty Act, (2) whether Plaintiffs met certain
conditions precedent under the RV warranty and the Warranty Act, (3) whether treble damages are
appropriate against Defendant, (4) whether consequential and incidental damages are appropriate
against Defendant, and (5) whether attorneys’ fees may properly be obtained from Defendant. This
Court holds that the RV is a vehicle weighing less than 10,000 pounds under the Warranty Act,
that Plaintiffs have met certain conditions precedent under the warranty and Warranty Act, that
treble damages may be pursued against Defendant, and that consequential and incidental damages
plus attorneys’ fees may also be obtained from Defendant. However, because there are still several
issues of material fact regarding damage to the RV, repair attempts by Defendant, and
correspondence between the parties, the Court does not decide whether Defendant is in fact liable
for the actions alleged in the Complaint. The Court simply holds that this case may move forward
with Plaintiffs pursuing their full requested remedies against Defendant.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When determining whether a genuine issue has been raised, the court must construe all inferences
and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment has the initial burden of demonstrating that there is
no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant has made this threshold demonstration, the non-moving party, to survive the motion for
summary judgment, may not rest on the allegations averred in his pleadings. (Id. at 324). Rather,
the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine
issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-
movant’s position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S.
at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
“Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides, in
pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
FED. R. CIV. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-
movant, the non-movant must show the existence of a factual dispute on every essential element
of her claim.
B. The North Carolina New Vehicle Warranty Act
North Carolina passed the Warranty Act to provide “State and private remedies against
motor vehicle manufacturers for persons injured by new motor vehicles failing to conform to
express warranties.” N.C. GEN. STAT. § 20-351. Under the statute, the remedy of repurchase of the
vehicle or refund of the purchase price is provided where:
[T]he manufacturer is unable, after a reasonable number of attempts, to conform
the motor vehicle to any express warranty by repairing or correcting, or arranging
for the repair or correction of, any defect or condition or series of defects or
conditions which substantially impair the value of the motor vehicle to the
consumer....
N.C. GEN. STAT. § 20-351.3(a). The statute creates a presumption that a “reasonable number of
attempts have been undertaken” if “the vehicle was out of service to the consumer or while
awaiting repair of the nonconformity or series of nonconformities for a cumulative total of 20 or
more business days during any 12-month period.” N.C. GEN STAT. § 20-351.5(a)(2). The
presumption has been referred to as an “initial eligibility hurdle[].” Anders v. Hyundai Motor Am.
Corp., 104 N.C. App. 61, 65 (1991). For the presumption to apply, the consumer must have notified
the manufacturer directly in writing of the defect and allowed the manufacturer a reasonable
period, not to exceed fifteen calendar days, in which to make the repairs. N.C. GEN. STAT. § 20-
351.5(a); see also Hardison v. Kia Motors Am., Inc., 226 N.C. App. 22, 25 (2013). The
manufacturer must clearly and conspicuously disclose to the consumer in the warranty or owner’s
manual that written notification of a nonconformity is required before a consumer may be eligible
for a refund or replacement of the vehicle and the manufacturer shall include in the warranty or
owner’s manual the name and address where the written notification may be sent. N.C. GEN. STAT.
§ 20-351.5(a).
To establish a sufficient claim of breach of warranty under the Warranty Act, Plaintiffs
must bring forth sufficient evidence that they purchased a “new motor vehicle” as defined within
the statute, that has a “defect of condition or series of defects or conditions which substantially
impair the value of the motor vehicle to the consumer, and which occurred no later than 24 months
or 24,000 miles following original delivery of the vehicle.” N.C. GEN. STAT. § 20-351.3(a).
Plaintiffs must also prove that the manufacturer was “unable, after a reasonable number of
attempts, to conform the motor vehicle to any express warranty by repairing or correcting or
arranging for the repair or correction” of the motor vehicle. (Id.). Of particular relevance in this
case, the statute does not apply to “any motor vehicle that weighs more than 10,000 pounds.” N.C.
GEN. STAT. § 20-351.1(3).
III. DISCUSSION
A. Vehicle Weight
The question of whether Plaintiffs’ RV weighs more or less than 10,000 pounds is outcome
determinative. If the RV is found to weigh more than 10,000 pounds, then the Warranty Act does
not apply to the instant action. As noted above, the Warranty Act applies to “motor vehicles.” The
term “motor vehicle” is defined in N.C. GEN. STAT. § 20-351.1(3) as follows: “‘Motor vehicle’
includes a motor vehicle as defined in G.S. 20-4.01 that is sold or leased in this State, but does not
include ‘house trailer’ as defined in G.S. 20-4.01 or any motor vehicle that weighs more than
10,000 pounds.” (emphasis added). The exact meaning of this vehicle weight statutory provision
is ambiguous. There are a variety of ways to calculate the weight of a motor vehicle including but
not limited to dry weight, gross vehicle weight (“GVW”), and gross vehicle weight rating
(“GVWR”). The Warranty Act does not specify which method of weight measurement is to be
used.
When there is ambiguity in the language of a statute, the ambiguity must be resolved using
the rules of statutory construction, and the “primary rule of construction [is] that the intent of the
Legislature controls.” In re Hardy, 294 N.C. 90, 95 (1978). “The primary goal of statutory
construction is to effectuate the purpose of the legislature in enacting the statute.” Liberty Mut.
Ins. Co. v. Pennington, 356 N.C. 571, 574 (2002). “The legislative purpose of a statute is first
ascertained by examining the statute’s plain language.” Correll v. Div. of Soc. Servs., 332 N.C.
141, 144 (1992). “‘Where the language of a statute is clear and unambiguous, there is no room for
judicial construction and the courts must give [the statute] its plain and definite meaning, and are
without power to interpolate, or superimpose, provisions and limitations not contained therein.’”
State v. Camp, 286 N.C. 148, 152 (1974) (citations omitted).
Within Chapter 20, motor vehicle weight is typically referred to as GVW,1 which is further
defined as the “total weight of a combination (articulated) motor vehicle, including passengers,
fuel, cargo, and attachments.” N.C. GEN. STAT. § 20-4.01(12c). In fact, prior to being rewritten in
2005, N.C. GEN. STAT. § 20-351.1(3) used to reference GVW. The prior version of the statute read:
“‘Motor vehicle’ includes a motor vehicle as defined in N.C. GEN. STAT. § 20-4.01 which is sold
or leased in this State, but does not include ‘house trailer’ as defined in N.C. GEN. STAT. § 20-4.01
or any motor vehicle with a gross vehicle weight of 10,000 pounds or more.”2 (emphasis added).
The legislature’s omission of the “gross vehicle weight” reference, a weight metric explicitly
defined within the Warranty Act, suggests that the legislature may have intended to utilize a
different weight metric for this section of the statute.
Defendant argues for the use of GVWR. The RV has a GVWR of 11,030 pounds. To
support its argument, Defendant notes that GVWR is an industry standard specified by the
manufacturer of a vehicle as the maximum loaded weight a vehicle is capable of hauling. (Daniel
Evans Decl. at ¶ 5). Therefore, using GVWR in this section would eliminate individual disparities
1 “Gross vehicle weight” is utilized as the weight metric in: N.C. GEN. STAT. §§ 20-4.01(5a), 20-
4.01(12a), 20-4.01(28a), 20- 51(10), 20-51(12), 20-86, 20-88(k), 20-88(m), 20-116(g)(2), 20-
116(g)(3), 20-116(h), 20-118, 20-118.3, 20-118.4, 20-123(c), 20-124(f), 20-125.1(c)(2), 20-
129.1(4), 20-129.1(5), 20-129.1(6), 20-129.1(10), 20-175.5, 20-183.2, 20-
305, and 20-305.1.
2 The phrase “gross vehicle weight” was omitted from N.C. GEN. STAT. § 20-351.1(3) by S.L.
2005-436, H.B. No. 1295 “Motor Vehicles – New Motor Vehicle Warranty Act: An Act to
Clarify the Maximum Weight of a Motor Vehicle that is Subject to the New Motor Vehicle
Warranties Act and to Promote the Expeditious Settlement of Claims when the Consumer
Requests the Manufacturer to Repurchase the Motor Vehicle” (2005). Ironically, this
“clarification” effort is precisely what resulted in the ambiguity currently at issue.
between otherwise identical vehicles. (Doc. No. 12 at 9-10). To support this argument, Defendant
relies almost entirely on Erwin v. Tweed, a North Carolina Court of Appeals decision dealing with
the North Carolina Underinsured Motorist statute. 159 N.C. App. 579 (2004).
In Erwin, the court interpreted the meaning of the phrase “gross vehicle weight as specified
by the manufacturer” as used in N.C. GEN. STAT. § 58-40-10(1)(b)(1). The defendant contended
that the ambiguous phrase “gross vehicle weight as specified by the manufacturer” should be read
to mean the GVWR appearing on the identification plate on the vehicle, whereas the plaintiff
contended that the phrase should be read as the actual weight of a particular vehicle “weighed at a
weigh station.” 159 N.C. App. at 580-81. The court rejected both parties’ interpretations and found
that a material issue of fact existed as to the “gross vehicle weight as specified by the
manufacturer.” In rejecting both arguments, the court expressly rejected the plaintiff’s
interpretation, finding that the actual weight of the subject vehicle “produces minor inherent
weight inconsistencies between identically designed vehicles,” thereby failing “to provide one, set
standard to be used for that particular vehicle model and is not preferred.” 159 N.C. App. at 586.
Because the court in Erwin emphasized the importance of having consistent weight
measurement for the same vehicle without fluctuations that would result from weighing individual
vehicles (due to gas in the tank or added parts), Defendant contends that GVWR should be used
because it would eliminate inconsistences in weight between identically designed vehicles for the
purposes of applying the Warranty Act. (Doc. No. 12 at 11).
Defendant’s argument fails for three reasons: (1) it fails to consider the overall purpose and
structure of the Warranty Act (2) it ignores critical aspects of the decision in Erwin that weigh
against applying GVWR to the Warranty Act, and (3) using GVWR would lead to absurd results.
The primary purpose of the Warranty Act is not to make it harder for people to obtain
remedies against manufacturers who sell them flawed vehicles; rather, the primary purpose of the
statute is to make it easier for individuals to seek remedies against those who sell lemons to
consumers. Moreover, the structure of the Warranty Act evinces a legislative intent to protect
consumers who purchase motor vehicles manufactured for everyday travel, leisure, or recreational
activities. The Warranty Act explicitly disclaims application to trailer homes and, by pointing to
the definition of motor vehicle in N.C. GEN. STAT. 20-4.01, it impliedly suggests a more lenient
weight-measurement standard than that applied to other vehicles such as commercial vehicles. In
the definitions statute, “commercial motor vehicles” are classified into different categories using
GVWR, but not the section involving simply a “motor vehicle.” See N.C. GEN. STAT. 20-4.01(3d).
It simply does not make sense to determine the weight of a motor vehicle by the maximum weight
it can bear—something that makes a great deal more sense when applied to commercial vehicles
in the business of hauling various materials.
Furthermore, the Erwin decision works against Defendant’s position. In Erwin, the court
specifically rejected the idea that GVWR should be used as the standard for determining whether
a “motor vehicle” weighs more than 10,000 pounds. The court was tasked with interpreting another
provision of the North Carolina General Statutes defining a truck for insurance purposes as a
“private passenger vehicle” where it “has a gross vehicle weight as specified by the manufacturer
of less than 10,000 pounds.”
In Erwin, the defendant argued that the court must look to the GVWR of the motor vehicle
to determine its weight for the purpose of this statutory provision. As in this case, the defendant
argued that the truck in that matter had a GVWR in excess of 10,000 pounds even though the actual
weight of the unloaded motor vehicle may be less than 10,000 pounds. See Erwin, 159 N.C. App.
at 580-81. Defendant makes the same argument in this action. The Erwin court specifically rejected
this argument, holding:
we construe "gross vehicle weight as specified by the manufacturer" to require
evidence of the manufacturer's specified weight of the vehicle alone. This weight
does not include passenger weight or the weight of any load the vehicle is carrying
or capable of carrying at any given time. Only the weight of the vehicle itself is
relevant to the determination of the manufacturer's "gross vehicle weight.”
(Id. at 584). The court went on to point out that if the legislature wanted to use GVWR so that
vehicle weight would be determined by the maximum loaded weight it could safely bear, then the
legislature likely would have utilized that more stringent requirement. (See id.). The same analysis
applies in this case. The legislature did not use the term GVWR or GWR in the Warranty Act
provision in question, but it did narrow the question to “any motor vehicle that weighs more than
10,000 pounds.” Such language most clearly indicates the weight of the vehicle itself, and not how
much weight the vehicle can bear.
Here, Defendant’s argument that using GVWR protects against the Erwin court’s concern
for “minor inherent weight inconsistencies between identically designed vehicles” is also
misguided. The Erwin court was explaining the importance of the term “as specified by the
manufacturer” in that context. The plaintiff in that case argued that the weight determination for
any case required weighing the specific motor vehicle in question, which they had done and
introduced evidence of. (Id. at 586). The court rejected this argument because it “merely gives the
actual weight of the truck without reference to manufacturer’s specifications,” thereby creating
“minor inherent weight inconsistencies between identically designed vehicles.” (Id.). Instead of
using GVWR or individual vehicle weighing, the court determined that the weight of a vehicle
“may be obtained by examining dealership literature provided by the manufacturer giving the
actual weight of model vehicles adjusted to reflect additional options on the vehicle in question.”
(Id. at 584). The court also stated that “a statement of the weight of the vehicle contained in the
vehicle owner’s manual could be used to show its ‘gross vehicle weight.’” (Id.).
Here, the Court has been provided with “manufacturer specifications” regarding the RV’s
weight. Defendant has specified that the RV’s specified weight (not GVWR) is 9852 pounds. The
Court has also received exhibits demonstrating that the vehicle weighs less than 10,000 pounds.
Finally, in Erwin, the court also held that it would not make sense to apply GVWR to
determine if a vehicle qualified as a personal passenger vehicle because “most vans and pickup
trucks would exceed 10,000 pounds” if GVWR were used. (Id. at 586). To apply GVWR to motor
vehicles would lead to absurd results. Commonly owned motor vehicles like the Ford F-250 and
Ford F-350 pickup trucks have GVWRs of 10,000 pounds or greater,3 which would disqualify
them from the protections of the Warranty Act. Surely the North Carolina legislature did not intend
that only consumers who own small cars or small pickup trucks can recover under the Warranty
Act.
In short, this Court holds that GVWR is not the appropriate weight measurement for
determining the weight of a motor vehicle in the Warranty Act. Instead, the weight of the vehicle
should be determined by examining dealership literature and manufacturer specifications about the
weight of the actual vehicle. Here, dealership literature and manufacturer specifications
demonstrate that Plaintiffs’ RV is less than 10,000 pounds; therefore, Plaintiffs may bring their
claim under the Warranty Act.
B. Conditions Precedent to Trigger Application of the Warranty Act
As indicated above, a claim under the Warranty Act requires proof of a purchase of a “new
motor vehicle,” as defined within the statute, that has a “defect of condition or series of defects or
3 See 2020 Ford F-Series Super Duty Technical Specifications, 6,
https://media.ford.com/content/dam/fordmedia/North%20America/US/product/2020/f-series-
super-duty/2020-Super-Duty-Tech-Specs.pdf
conditions which substantially impairs the value of the motor vehicle to the consumer, and which
occurred no later than 24 months or 24,000 miles following original delivery.” Plaintiffs must also
prove that the manufacturer was “unable, after a reasonable number of attempts, to conform the
motor vehicle to any express warranty by repairing or correcting, or arranging for the repair or
correction” of the motor vehicle. N.C. GEN. STAT. § 20-351.3(a).
The Warranty Act also provides a means to prove presumptively the element that “a
reasonable number of attempts have been undertaken to conform the motor vehicle to the
applicable warranties.” Under this presumption provision, either (1) proof of four or more
unsuccessful attempts to repair or (2) proof that the vehicle was “out of service to the consumer
during or while awaiting repair of the nonconformity or series of nonconformities for a cumulative
total of 20 or more business days during any 12-month period of the warranty,” invokes the
presumption. N.C. GEN. STAT. § 20-351.5(a). As a condition precedent to invoke the presumption,
however, the consumer must prove that they “notified the manufacturer directly in writing of the
existence of the nonconformity or series of nonconformities and allowed the manufacturer a
reasonable period, not to exceed 15 calendar days, in which to correct the nonconformity or series
of nonconformities.”
Defendant contends not only that Plaintiffs cannot trigger the Warranty Act’s presumption
provisions but also that Plaintiffs cannot bring a claim under the Warranty Act. Defendant
advances this assertion with two arguments: that Plaintiffs (1) failed to fully comply with the terms
of the RV warranty by not providing written notice to Defendant at the specific address listed in
the warranty and (2) failed to provide Defendant with a final opportunity to correct the
nonconformities.
Defendant’s arguments fail at the summary judgment phase for three reasons: (1) Plaintiffs
have put forward a sufficient forecast of evidence to invoke the Warranty Act’s presumption of
liability provisions, (2) the presumptive liability established under this portion of the Warranty Act
is not the exclusive remedy of the Act, and (3) individual warranties cannot contract away specific
statutory protections. In other words, even if the Court held that Plaintiffs have not put forward
sufficient evidence to establish presumptive liability under N.C. GEN. STAT. § 20-351.5, Plaintiffs
may still proceed with their claim for damages pursuant to N.C. GEN. STAT. § 20-351.3, which
establishes the general elements of the claim under the Warranty Act. See N.C. GEN. STAT. § 20-
351.5(b).
Less than two months after the date of purchase of the RV, Plaintiff Theresa Anne Evans
contacted Defendant by written email about her strong concerns about water leak problems with
the RV. Ms. Evans even hired a mold and water damage expert to inspect the RV and provided
that written report to Defendant. The RV stayed for repair at the dealer’s shop for over 20 days for
that initial repair. Ms. Evans requested that Defendant take back the RV due to the water leak
problems. The parties agreed that they would try further repair at the manufacturer's facility. In
June and July 2018, Defendant had the RV at their facility to attempt repair of the water leak
problems for more than the 15 days contemplated within the presumption provisions of the
Warranty Act.
After Defendant attempted repair for over fifteen days, the RV failed again. On a trip to
Niagara Falls, Ms. Evans had to hire someone to break the rods of the rear slide-out just so she
could drive home. The RV then sat at a dealer's repair shop from September 22, 2018 to mid-
December 2018. According to the facts when read in favor of the non-movant, Plaintiffs attempted
to contact Defendant multiple times during this period to secure a commitment from Defendant
that Defendant would cover the repairs that continued to stem from the water leak problems the
RV had previously suffered. Ms. Evans sent numerous written emails to Defendant requesting
repair during this long time period. Instead of responding to Plaintiffs or authorizing repairs, it
appears that Defendant refused to authorize repair.
Defendant contends that the writing to the manufacturer required under N.C. GEN. STAT. §
20-351.l(a) must be made to the address provided by the manufacturer. Defendant contends that
since Plaintiffs’ written notice to them of the nonconformities was by emails and not to the address
they specifically put within their written documents, Plaintiffs’ claim must entirely fail. This
argument failed in Hardison where a written letter concerning the defects with the motor vehicle
were sent to a different address than the one specified by the manufacturer within its express
warranty. See 226 N.C. App. at 27-28. The North Carolina Court of Appeals held that the fact that
the manufacturer actually received the notice proved that “there is no genuine issue of fact as to
the sufficiency of plaintiff's notice of the nonconformity under N.C.G.S. § 20-351.5.” Id. at 27.
Defendant here also received clear notice of Plaintiffs’ concerns and the problems plaguing the
RV.
Defendant further contends that it was not provided the right to attempt a final repair as to
the rear slide-out. Defendant frames the problems with the RV as a series of separate
nonconformities and not necessarily related water-leak issues. However, in construing the facts in
the light most favorable to the non-movant, this Court notes that the RV did not suffer from several
separate problems; rather, the RV suffered several symptoms of the same nonconformity—a severe
water leak problem. Furthermore, the facts make clear that Defendant was given several
opportunities to repair the RV to conform it to applicable warranties and failed to do so.
Not only was Defendant given over a month to repair the RV at its own facility, but
Defendant also refused to attempt any further repairs for over three months from September to
December of 2018. Defendant did not request another attempt to repair until it received a letter
from Plaintiffs’ counsel demanding they provide Plaintiffs the remedies provided by the Warranty
Act. In other words, it appears that Defendant invoked its right to final repair only as a defense to
its refusal over a period of three months to authorize a final repair. Plaintiffs reached out to
Defendant multiple times from September to December of 2018 to attempt to give Defendant an
opportunity to make a final repair, but Defendant never took any action to begin or authorize a
repair. Therefore, this Court holds that Plaintiffs both gave Defendant notice and an opportunity
for a final repair. As such, Plaintiffs may move forward with their claim of presumptive liability
under N.C. GEN. STAT. § 20-351.5. For the same reasons that Plaintiffs may move forward with
this claim, they may also move forward with their more general claim under the Warranty Act
under N.C. GEN. STAT. § 20-351.3.
C. Availability of Treble Damages
For the same reasons as discussed above, Plaintiffs may move forward with their claim for
treble damages. For treble damages to be awarded pursuant to the Warranty Act, it must be found
that the manufacturer “unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3.” N.C.
GEN. STAT. § 20-351.8(2). The North Carolina Supreme Court has held that a manufacturer does
not act unreasonably when it “cooperate[s] with plaintiffs and address[es] their concerns in a
prompt and honest manner as soon as it was notified of their dissatisfaction.” Buford v. Gen.
Motors Corp., 339 N.C. 396, 404 (1994).
Here, Defendant claims that it promptly and adequately responded to all of Plaintiffs’
concerns when those issues were brought to Defendant’s attention. (Doc. No. 12 at 15). In making
this argument, Defendant points to various repair attempts and communications with Plaintiffs.
Plaintiffs contend that Defendant has not been prompt in its responses and has never adequately
responded to their concerns. (Doc. No. 16 at 14-15). In making this argument they point to
Defendant’s inability to repair the RV, delay in approving repairs for the RV, and inattention to
communications sent to Defendant by Plaintiffs. (Id.).
Construing the facts in the light most favorable to the non-movant, it appears that
Defendant failed on several occasions to deal with Plaintiffs’ concerns in a prompt and honest
manner, as evidenced by the numerous delays in responding to Plaintiffs and in Defendant’s failure
to repair the RV. Therefore, this Court holds that Plaintiffs may proceed with their claim against
Defendant for treble damages.
D. Availability of Consequential and Incidental Damages
Defendant wrongly contends that Plaintiffs may not pursue consequential and incidental
damages because the express warranty of the RV disclaimed such damages. The Warranty Act
expressly provides that manufacturers who are found liable under the statute must pay “[a]ny
incidental damages and monetary consequential damages.” N.C. GEN. STAT. § 20-351.3(a)(4).
The warranties guaranteed by the Warranty Act are in addition to the express warranties
provided by contract between manufacturers and consumers. Defendant cannot use a warranty
contract to override statutory protections. If this were so, all manufacturers would simply disclaim
all of the damages protections provided to the consumer by the Warranty Act. This would render
the statute meaningless.
Moreover, the RV warranty acknowledges that its waiver of consequential and incidental
damages will not apply in states where such a waiver is not permissible. (Doc. No. 10, Ex. 1).
Because the Warranty Act explicitly provides all consumers purchasing a motor vehicle with the
protection of consequential and incidental damages, waiver of those damages in situations covered
by the Warranty Act is not permissible in North Carolina. As such, the RV warranty’s disclaimer
of consequential and incidental damages cannot apply to Plaintiffs’ purchase.
In short, the Court holds that Plaintiffs may proceed with their claim for consequential and
incidental damages against Defendant.
E. Attorneys’ Fees
The Warranty Act makes clear that the prevailing party may obtain attorneys’ fees from
the losing party if (a) “[t]he manufacturer unreasonably failed or refused to fully resolve the matter
which constitutes the basis of such action; or (b) [t]he party instituting the action knew, or should
have known, the action was frivolous and malicious. N.C. GEN. STAT. § 20-351.8. In Hardison, the
court found that the award of attorneys’ fees was improper per N.C. GEN. STAT. § 20-351.8(3)(a)
where the manufacturer addressed the consumer’s concerns in a “prompt and honest manner.” 226
N.C. App. at 28 (internal citations omitted). For the same reasons that Plaintiffs may move forward
with their claims for treble damages and consequential and incidental damages, Plaintiffs may
move forward with their claim for attorneys’ fees against Defendant. Construing the facts in the
light most favorable to the non-movant, the events of this case indicate that Defendant has not been
prompt or honest in its attempts to repair the RV or its communications with Plaintiffs.
IV. CONCLUSION
To be clear, the Court does not resolve this case in favor of either party. The Court simply
holds that Plaintiffs may proceed on all claims against Defendant. For the reasons stated herein,
Defendant’s Motion for Summary Judgment is DENIED.
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Summary Judgment, (Doc. No. 9), is DENIED.
Signed: December 10, 2020
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