# Libby v. Keystone RV Company

> District Court, D. Oregon · October 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10391303

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

| IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

DONALD LIBBY and
JESSIE LIBBY,
Case No. 1:19-cv-00642-CL
Plaintiffs,

OPINION and ORDER
KEYSTONE RV COMPANY,

Defendant.
CLARKE, Magistrate Judge.
Plaintiffs Donald and Jessie Libby bring this cause of action for breach of express and
implied warranties against defendant Keystone RV Company after purchasing a fifth wheel RV
trailer. Full consent to magistrate jurisdiction was entered on August 21, 2019 (#13). The case
comes before the Court on a motion for summary judgment (#6) submitted by the defendant. On
October 22, 2019, the Court held an oral argument hearing on the motion. For the reasons
below, the defendant’s motion (#6) is DENIED.

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LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine .
dispute as to any material of fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 247 (1986). The
moving party has the initial burden of showing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076
(9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may
only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d
796, 800 (9th Cir. 2002), An issue of fact is genuine “if the evidence is such that a reasonable □
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to
the opposing party to set forth specific facts showing that there is a genuine issue for trial. Jd. at
250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion
for summary judgment. Taylor y. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts
which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether
a party has met its burden, the court views the evidence in the light most favorable to the non-
moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).
BACKGROUND
Plaintiffs purchased a new 2016 Keystone RV Cougar fifth wheel (“Fifth Wheel’’) on
April 23, 2016. Complaint, J 4. The Fifth Wheel came with a Keystone RV Limited One Year
Warranty. Diaz Decl. 3. The Limited Warranty provided Plaintiffs with service and defect
repair coverage for one year from the date of purchase. Jd., Ex. A. It also provides:

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ANY ACTION TO ENFORCE THIS LIMITED WARRANTY
OR ANY IMPLIED WARRANTY SHALL NOT BE
BROUGHT MORE THAN NINETY (90) DAYS AFTER
EXPIRATION OF THE ONE (1) YEAR TERM OF THIS
LIMITED WARRANTY OR WITHIN ONE (1) YEAR OF
THE DATE OF BREACH, WHICHEVER IS SOONER.
As part of the purchase transaction, plaintiffs signed a Retail Installment Contract, a purchase
agreement, and Keystone RV’s Retail Warranty Registration. Complaint, Ex. 4; Eldridge Decl.,
Exs. A, B. The Keystone RV Retail Warranty Registration that plaintiffs signed noted the
purchase date was May 18, 2016. Eldridge Decl., Ex. B.
After purchase of the vehicle, the Fifth Wheel experienced “various defects and non-
conformities,” which “include but are not limited to a defective roof that causes repeated
leaking.” Compl. { 8. Plaintiffs allege that despite “being given more than a reasonable number
of attempts / reasonable opportunity to cure said defects, non-conformities, and conditions, [the
defendant] failed to do so and thus the warranty failed its essential purpose.” Compl. 10.
Plaintiffs claim that, as a result, the Fifth Wheel cannot be used as intended at the time of the
sale, and the use and value of the Fifth Wheel has been diminished or substantially impaired.
Compl. { 12. Plaintiffs filed this action on March 27, 2019. (#1).
DISCUSSION
The defendant brings a motion for summary judgment claiming that Plaintiffs’ claims are
untimely under the terms of the Limited Warranty. Plaintiffs, in response, assert that the time
limitation provision contained in the Limited Warranty is unconscionable. The Court agrees
with Plaintiffs.
I. Plaintiffs’ claim for breach of express warranty is timely because the time limitation
provision contained in the Limited Warranty is unconscionable and the statutory
time limitation will be applied instead.

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In Oregon, the test for unconscionability has both procedural and substantive
components:
Procedural unconscionability refers to the conditions of contract
formation and involves a focus on two factors: oppression and
surprise. Oppression exists when there is inequality in bargaining
power between the parties, resulting in no real opportunity to
negotiate the terms of the contract and the absence of meaningful
choice. Surprise involves the question whether the allegedly
unconscionable terms were hidden from the party seeking to avoid
them.
“Substantive unconscionability” generally refers to the terms of the
contract, rather than the circumstances of formation, and the
inquiry focuses on whether the substantive terms unfairly favor the
party with greater bargaining power.
Livingston v. Metropolitan Pediatrics, LLC, 234 Or. App. 137, 151, 227 P.3d 796 (2010)
(citations omitted); see also Vasquez—Lopez v. Beneficial Oregon, Inc., 210 Or. App. 553, 566—
67, 152 P.3d 940 (2007). “Thus, both procedural and substantive unconscionability are relevant,
although only substantive unconscionability is absolutely necessary.” Vasquez-Lopez, 210 Or.
App. at, 567, 152 P.3d at 948. Additionally, with that proviso, “each case is decided on its own
unique facts.” Id.
1. The time limitation provision is procedurally unconscionable.
Under Oregon law, take-it-or-leave-it contracts are not necessarily procedurally
unconscionable. See Wilson v. Bristol-Myers Squibb Co., No. 3:17-CV-2054-SI, 2018 WL
2187443, at *5 (D. Or. 2018); Sprague v. Quality Restaurants Nw., Inc., 213 Or. App. 521, 526
(2007) (“We therefore conclude that, procedurally, the agreement was no more unconscionable
than the typical employment, consumer, or service contracts that are a common feature of

contemporary commercial life and that Oregonians sign (and Oregon courts enforce) as a matter
of course.”). Here, the bargaining power between the parties is clearly unequal, and Plaintiffs

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did not engage in negotiations over the terms of the Limited Warranty, but those facts alone do □
not make it procedurally unconscionable. There is no indication that the contract formation
involved any fraud or duress or coercion. However, there is also no evidence that the Limited
Warranty was given to Plaintiffs at the time of purchase, nor were Plaintiffs given the
opportunity to read the terms and accept or reject them. Additionally, the specific time limitation
provision was buried on the second page of the Limited Warranty, under the heading, “Damages
Disclaimer.” Diaz Decl., Ex. A. Therefore, overall, the Court finds that there was sufficient
oppression and surprise to constitute procedural unconscionability in this case.
2. The time limitation provision is substantively unconscionable.
The Limited Warranty’s time limitation provision is substantively unconscionable
because it does not comply with the statute of limitations for warranty claims. The State of
Oregon’s version of the Uniform Commercial Code includes UCC § 2-725, which governs
statutes of limitations in Contracts for Sale. ORS 72.7250. Oregon courts have held that the
limitation period set out in ORS 72.7250(1) applies to breach of warranty actions. See., e.g.,
Permapost Products Co. v. Osmose, Inc., 116 P.3d 909, 912-13 (Or. App. 2005). The statute
provides that “by the original agreement the parties may reduce the period of limitation to not
less than one year but may not extend it.” ORS 72.750(1). As discussed below, here, the Limited
Warranty’s limitation period was not part of the original agreement. Even if it were part of the
original agreement, it is unreasonable because it would functionally limit the time period to less
than one year, except in rare cases.
a. The time limitation period was not part of the “original agreement.”
“Where a written instrument refers in specific terms to another writing, the other writing
is a part of the contract.” Nw. Pac. Indem. Co. v. Junction City Water Control Dist., 295 Or. 553,

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558 (1983). Further, contracting parties are obligated to read the contract and if they assent
without so doing, they cannot come into court later and successfully contend that their agreement
was different than expressed in writing. Franklin v. W. Pac. Ins. Co., 243 Or. 448, 453 (1966).
In Brown v. BYRV, Inc., the plaintiff argued that she should not be bound by the terms of
the Tiffin Warranty because she had no opportunity to read or sign the warranty itself at the time
of agreement. Civ. Case No. 3:14-CV-01213-AC, 2015 WL 4507159, at *8 (D. Or. July 24,
2015). However, the plaintiff conceded that she signed the Tiffin Form, which, by its terms,
specifically acknowledged that the signer read the Tiffin Warranty, understood the provisions
contained therein, and agreed to be bound by those terms. /d. The.court held that the plaintiff,
having signed the Tiffin Form, could not come to Court and argue to the contrary; the Tiffin
Form explicitly assented to the terms of the Tiffin Warrant, therefore the terms of the Tiffin
Warranty were held to be part of the “agreement.” Jd.
The facts of this case are materially distinguishable from the Brown case. Here, the
purchase agreement for the Fifth Wheel states, “The only warranties applying to this vehicle are
those offered by the manufacturer.” Eldridge Decl., Ex. A. This is the only reference to any
watranty in the purchase agreement. /d. Nothing in the purchase agreement certifies that the
purchasers were given or had an opportunity to read the terms of the warranty or the Owner’s
Manual,! nor does it state that they acknowledge or assent to such terms. /d. On or about the
time of purchase, Plaintiffs also signed and submitted Keystone RV’s Retail Warranty
Registration (‘““Warranty Registration”). Eldridge Decl., Ex. B; Diaz Decl. 4. The Warranty
Registration does not state any of the terms or limitations of the warranty, nor does it certify that
the purchasers were given or had an opportunity to read or agree to such terms. It is a form that

' The actual terms of the Limited Warranty are contained in Chapter 2 of the Keystone RV Company
Owner’s Manual. Diaz Decl., Ex. A.
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contains the names and addresses of the parties, the Vehicle Identification Number, make, and
model of the Fifth Wheel, and nothing else. Unlike the plaintiffs in Brown, Plaintiffs here knew
that a warranty existed, but nothing they signed acknowledged or agreed to any terms of that
warranty at the time of purchase. Therefore, the time limitation provision was not part of the
“original agreement.”
b. The time limitation provision is not reasonable because it effectively
limits the consumer’s time to file a claim to less than one year.
Even if the time limitation provision could be considered part of the “original
agreement,” it is invalid because it is not reasonable. Hatkoffv. Portland Adventist Med. Ctr.,
252 Or. App. 210, 222 (2012) (“{P]arties are free to contractually limit the timeframe in which to
bring a claim, and that limit will be enforced unless unreasonable.”), Under the plain language
of the statute, parties may reduce the period of limitation, but may not reduce it to “less than one
year.” ORS 72.750(1).
Here, the Limited Warranty’s time limitation provision states:
Any action to enforce this limited warranty or any implied
warranty shall not be brought more than ninety (90) days after the
expiration of the one (1) year term of this limited warranty or
within one (1) year of the date of breach, whichever is sooner.
Based on this provision, there are a few basic scenarios that demonstrate that a purchaser would
be required to bring an action almost immediately upon discovery of a defect. First, as Plaintiffs
suggest, if this is considered a standard manufacturer’s warranty, where accrual of a defect claim
occurs upon delivery, see ORS 72.750(2)’, a purchaser could discover a defect in the eleventh
month of ownership and then have less than one month to allow for repair attempts and also
2“ breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly
extends to future performance of the goods and discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or should have been discovered.” ORS
72.750(2). Whether the claim accrues at the time of delivery or at the time of discovery of the defect is
not material to the Court’s decision in this case.
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bring a claim. Alternatively, as the defendant suggests, if the Limited Warranty “explicitly
extends to future performance,” see id., thereby allowing accrual of the claim at the time of
discovery, the time limitation would be extended, but only by 90 days. The phrase in the
provision, “whichever is sooner,” results in an outcome where no claim can ever be brought
more than 90 days after expiration of the warranty’s one-year term. Thus, even in the best-case
scenario, a defect in the Fifth Wheel would have to be discovered before the third month of
ownership; any defect discovered after the third month would give the purchaser less than one
year to bring a claim.
Additionally, in all practical reality, the Court acknowledges Plaintiffs’ contention that,
once a defect is discovered, “RV’s are often out of service for months at a time.” It would be a
rare case indeed where a defect is discovered and the manufacturer is given the opportunity to
repair the defect yet fails to do so, all within the first three months of ownership. By contrast, it
is more likely that the defect is discovered during the one-year term of the warranty and the
manufacturer attempts to repair over the course of several months. With the added possibility of
multiple repair attempts, the 90-day time limitation could fully expire before a purchaser even
receives the RV back from the manufacturer. Such a limitation is not reasonable and does not
comply with the statutory requirement that a purchaser be given “not less than one year” to bring
a warranty claim.
3. To remedy the unconscionable provision, the Court rejects it, and applies the
statutory time limitation instead.
The Oregon Court of Appeals has held that courts are permitted “to refuse to enforce an
unconscionable contract, to enforce it without the unconscionable term, or to limit the
application of the unconscionable term to avoid an unconscionable result.” Carey v. Lincoln
Loan Co., 203 Or. App. 399, 423, 125 P.3d 814, 829 (2005), aff'd, 342 Or. 530, 157 P.3d 775

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(2007). Here, the Court rejects the unconscionable time limitation and refuses to enforce it.
Without that provision to restrict Plaintiffs’ time to bring a claim, the default statutory time
limitation for a warranty or other written contract is four years. ORS 72.7250(1) (“An action for
breach of any contract for sale must be commenced within four years after the cause of action
has accrued.”),
Plaintiffs purchased? the Fifth Wheel in April of 2016, and brought this action in March
of 2019, less than three years later. Plaintiffs’ express warranty claim is therefore timely.
I. Plaintiffs’ claim for breach of implied warranty is timely because the Limited
Warranty time limitation does not comply with the Magnuson-Moss Warranty Act.
The Magnuson-Moss Warranty Act provides: ,

For purposes of this this chapter . . ., implied warranties may be
limited in duration to the duration of a written warranty of
reasonable duration, if such limitation is conscionable and set forth
in clear and unmistakable language and prominently displayed on
the face of the warranty.
15 U.S.C. § 2308(b).
In this case, the same language in the Limited Warranty that purported to limit the time to
bring a claim for breach of the express warranty also purported to limit the time to bring a claim
for any implied warranties. The Court has already determined that the time limitation was
unreasonable and unconscionable. Additionally, the Court does not find that the provision was
set forth in clear and unmistakable language, nor was it prominently displayed on the face of the
warranty. The time limitation was contained on the second page of the Limited Warranty (which
was set forth in Chapter 2 of the User’s Manual), under the heading “Damages Disclaimer.” It
was essentially hidden from plain view and buried in between other warranty terms. Therefore,

3 Because the claim is timely regardless of whether it accrued at the time of delivery or at the time of
discovery of the defect, the Court need not address or decide the moment of accrual.
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the time limitation does not apply. Plaintiffs’ claim for breach of the implied warranty is timely
for the same reasons above.
ORDER
For the reasons stated above, the defendant’s motion for summary judgment (#6) is
DENIED. Plaintiffs’ claims are timely and may proceed in this action.
It is so ORDERED and DATED this ZO day of Octob& 2019,
. Loo
KGL
MARK D. CLARKE
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391303. Public record. Not legal advice.