Petition for Writ of Certiorari — Beverly Zylstra, et vir, Petitioners v. DRV, LLC
Supreme Court briefNov 5, 2021
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Seventh Circuit
(August 10, 2021) . . . . . . . . . . . . . App. 1
Appendix B Opinion and Order in the United
States District Court Northern
District of Indiana Fort Wayne Division
(May 18, 2020) . . . . . . . . . . . . . . App. 29
Appendix C Judgment in a Civil Action in the
United States District Court for the
Northern District of Indiana
(May 18, 2020) . . . . . . . . . . . . . . App. 59
Appendix D Relevant Portions of the MagnusonMoss Warranty Act, 15 U.S. Code
. . . . . . . . . . . . . . . . . . . . . . . . . . . App. 61
§ 2301 . . . . . . . . . . . . . . . . . . . . . App. 61
§ 2302 . . . . . . . . . . . . . . . . . . . . . App. 64
§ 2310 . . . . . . . . . . . . . . . . . . . . . App. 70
§ 2311 . . . . . . . . . . . . . . . . . . . . . App. 77
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 20-1949
[Filed August 10, 2021]
____________________________________
BEVERLY ZYLSTRA and
)
BERNARD ZYLSTRA,
)
)
Plaintiffs-Appellants, )
)
v.
)
)
DRV, LLC,
)
)
Defendant-Appellee. )
____________________________________)
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:18-cv-00266-WCL-SLC – William C. Lee,
Judge.
____________________
ARGUED DECEMBER 11, 2020
—
DECIDED AUGUST 10, 2021
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit
Judges.
App. 2
ROVNER, Circuit Judge. Bernard and Beverly
Zylstra spent close to $100,000 on a brand-new
recreational vehicle in order to enjoy travel and
recreation during their retirement years. One can
imagine their disappointment when they began to
collect a long list of defects, large and small, as they
began their adventures. As the list grew, so did their
frustration until, on August 27, 2018, they filed suit
against the manufacturer, DRV, LLC, for breach of
express and implied warranties under state law,
violation of the federal Magnuson-Moss Act (MMWA),
and violation of state deceptive practices acts. Although
we sympathize with the frustrations the Zylstra’s
experienced trying to rectify the long list of problems,
we uphold the district court’s grant of summary judgment for DRV, as even in the light most favorable to
the Zylstras, DRV never had a reasonable opportunity
to repair the defects as required under the warranty
and therefore the Zylstras’ claims cannot survive.
I.
The Zylstras purchased their RV from non-party
Bradley Bourbonnais Chevy Hundai RV in
Bourbonnais, Illinois for $91,559.15. The RV came with
a one-year warranty that warranted that the portions
of the RV manufactured by DRV that were not
otherwise excluded would be “free from defects in
material and workmanship supplied and attributable
to DRV during normal use.” R. 28-8. Under the terms
of the warranty, “[w]ritten notice of defects subject to
warranty coverage must be given to the selling dealer
or DRV … within 30 days after the defect is
discovered … no later than 30 days after [the war-
App. 3
ranty] expiration.” Id. In addition, “the owner shall
contact the selling dealer or the Factory if a problem
occurs which may be directly covered by this warranty
with sufficient information to resolve the matter,” and
the owner is required to take the RV to the selling
dealer or factory for repair. Id.
Unlike an automobile, each DRV vehicle is custom
built for the purchaser. Consequently, as with a
custom-built home, there are almost always
adjustments and repairs to be made after the sale.
Thus, after the Zylstras purchased the RV, but before
delivery, the dealer performed some of these tweaks
while waiting for the Zylstras to pick up the vehicle.
The Zylstras neither requested nor knew about these
pre-pick-up repairs and adjustments. The Zylstras
assert that a Bradley salesman later informed them
that the vehicle had been “cannibalized” while on the
Bradley lot, but they do not assert any claims about
specific items that were missing or replaced with
inferior items. R. 28-3 at 13.
Once the Zylstras retrieved the RV, they went for a
two-day camping trip to put the vehicle to the test.
During that trip, they made a punch list of about
seventeen items, most of which were relatively minor,
ranging from items like a missing screw in an overhead
compartment to a leaky toilet valve. Less than a week
after dropping off the RV at the dealer for those
repairs, the Bradley service manager called the
Zylstras to inform them that the technicians had
discovered damage to the roof. A dispute ensued over
who was responsible for the roof damage, and
ultimately the Zylstras decided to make an insurance
App. 4
claim and have the roof repaired at the DRV factory, as
it had quoted a price for the repair that was almost half
of the quote from Bradley. The dealer did not perform
any warranty repairs while awaiting the outcome of
the roof dispute.
When the Zylstras took the RV to the factory repair
shop in Indiana for the roof repair, they learned that
they could take the RV to any DRV authorized dealer
for warranty repairs. On June 27, 2017, they did just
that—bringing the RV to Plaza RV, another authorized
dealer. This was the first time after they picked up the
vehicle that any technicians put their hands on it to
make warranty repairs, which by this point numbered
about eighteen. The Zylstras picked up the RV fifty-one
days later, on June 27, 2017, and took it on an elevenday camping trip to make sure all the repairs had been
successful. During that trip, the Zylstras made a new
punch list of fifteen items. Only two of the items on the
new list also had been on the previous list—a missing
overhead cabinet screw that may have been
mis-identified the first time, and an antenna,
manufactured by a separate company, that was displaying error codes. The remaining sixteen items
included two new items that will become important to
this case. The Zylstras identified them as “Black
Holding Tank Leaks” and “Black Holding Tank Hard to
Close.” R. 28-3 at 9.
On September 11, 2017, the Zylstras dropped the
RV off at Plaza RV once again to repair the new punch
list items, and to add some after-market items that
were outside of the warranty claim and not directly
relevant to the case. The Zylstras informed Plaza RV
App. 5
that they would need the vehicle by January 1 for a
long trip to Texas, and, in fact, they were able to
retrieve the vehicle on December 21, 2017. From there
it went into storage for a week until they left for their
trip.
A week into the Texas trip the Zylstras started to
smell a strong odor after dumping the black sewage
tank—the tank on an RV that holds waste from the
toilet. A few weeks later, Mr. Zylstra discovered that
the black tank valve was leaking at the flange
connections and that sewage had been leaking from the
tank into the insulation throughout the underbelly of
the RV. He could not find a DRV authorized dealer to
repair the leak, but an independent mobile technician
came and completed the repair. The technician
removed the valve gaskets, cleaned the valve seals,
cleaned the valve, and replaced the valve gaskets
between the two flanges.
Soon after that event, the Zylstras contacted Greg
Weldon from DRV to discuss the black tank repairs and
who would shoulder the bill. We describe this dispute
further within, but in the end, the Zylstras did not take
the RV to the dealer or any authorized DRV repair
shop to remedy the leaking black tank or the damage
it caused. To this day, the black tank and related issues
have not been presented to DRV or the dealer to repair.
After the leak, the Zylstras stopped using the RV
out of concern for their health. They contend that it is
not, and never has been, fit for its ordinary purpose of
recreational use. Consequently, on August 27, 2018,
they filed a complaint alleging breach of express and
implied warranty, violation of the Magnuson-Moss
App. 6
Warranty Act (MMWA), and violation of state
consumer protection laws. The district court granted
DRV’s motion for summary judgment on all claims on
May 18, 2020. On appeal the Zylstras allege that
(1) the district court improperly made factual
determinations as to disputed issues of material fact
when granting summary judgment to DRV;
(2) reasonable minds could conclude that DRV
breached its express warranty under state law and
violated the MMWA; (3) the district court committed
reversible error when it failed to conduct a choice of
law analysis regarding the Zylstras’ breach of implied
warranty claim under state law; and (4) reasonable
minds could conclude that DRV violated Indiana’s
Deceptive Consumer Sales Act.
II.
The parties presented dozens of pages of specific
and detailed facts. The presentation of so many
seemingly disputed facts generally prompts us to pause
and ask whether such a case is one to resolve on
summary judgment. See Payne v. Pauley, 337 F.3d 767,
770 (7th Cir. 2003). In this case, however, the disputed
facts are not material to the outcome. We review the
district court’s grant of summary judgment de novo and
will affirm only if we find that there are no genuine
issue of material fact and DRV is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Although
we take the facts in the light most favorable to the
plaintiff, those facts must be supported by sufficient
record evidence. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).
App. 7
A. Breach of warranty.
1. Opportunity to remedy defects.
We begin with the Zylstras’ primary claim that DRV
breached the express warranty under state law. Both
parties contend that Indiana law governs this claim.
Under Indiana law, to prevail on a breach of warranty
claim, the Zylstras must prove “(1) the existence of a
warranty, (2) a breach, (3) causation, and (4) damages.”
Mathews v. REV Recreation Grp., Inc., 931 F.3d 619,
622 (7th Cir. 2019), citing Peltz Const. Co. v. Dunham,
436 N.E.2d 892, 894 (Ind. Ct. App. 1982). A warranty
can be breached, under Indiana law, where “an exclusive or limited remedy fail[s] of its essential
purpose.” Ind. Code § 26-1-2-719(2); Perry v. Gulf
Stream Coach, Inc., 814 N.E.2d 634, 643 (Ind. Ct. App.
2004). “Timely notice of a breach of warranty is a
substantive condition precedent to recovery.” McClure
Oil Corp. v. Murray Equip., Inc., 515 N.E.2d 546, 554
(Ind. Ct. App. 1987).
In order to make a claim of breach of warranty, the
purchaser must give the warrantor a reasonable
opportunity to repair the defects. Mathews, 931 F.3d at
622. The Zylstras contend that this is only true if the
warranty specifically imposes that requirement. In this
case, the warranty requires the purchasers to notify
DRV or a selling dealer of any warrantable issue and to
take the RV to DRV or an authorized dealer for repairs.
R. 28-8 at 2. It also requires an owner to notify DRV if
the selling dealer is unwilling to resolve a problem
covered by the warranty. Id. Those requirements are,
in fact, requirements to allow a reasonable opportunity
to repair. But even were they not, this court has
App. 8
recently interpreted Indiana state law to require that
the purchaser give the warrantor the opportunity to
repair, and to do so more than two times: “[u]nder
Indiana law, two chances is not a reasonable opportunity to cure the defects such that the warranty failed
of its essential purpose.” Mathews, 931 F.3d at 622,
(citing General Motors Corp. v. Sheets, 818 N.E.2d 49,
53 (Ind. Ct. App. 2004)) (explaining that under
Indiana’s Lemon Law, “[a] reasonable number of
attempts is considered to have been undertaken if the
nonconformity has been subject to repair at least four
times but continues to exist, or if the vehicle has been
out of service for at least thirty business days and the
nonconformity continues to exist.”). The federal district
courts in this circuit have relied on this interpretation
of Indiana law to hold that a warranty does not fail of
its essential purpose unless an RV manufacturer has
been given a reasonable number of attempts to cure the
defect, meaning at least more than two. See, e.g., Smith
v. Nexus RVs, LLC., 468 F. Supp. 3d 1012, 1024 (N.D.
Ind. 2020) (finding that the warranty did not fail at its
essential purpose where the manufacturer corrected all
of the defects in the first attempt, except for one that
required two attempts to fix.); Castagna v. Newmar
Corp., No. 3:15-CV-249 JD, 2020 WL 525936, at *5
(N.D. Ind. Feb. 3, 2020) (noting that the Seventh
Circuit’s opinion in Mathews has stated that two
chances is not a reasonable opportunity to cure
defects.).
It is worth noting that in Mathews, the owners of
the RV encountered a long list of troubling defects.
None of those defects, however, interfered as fully and
completely with the use and enjoyment of the RV as the
App. 9
primary defect that the Zylstras encountered—a
sewage leak that permeated the insulation of the
underbelly of the RV and, according to the Zylstras
facts, made the RV completely unusable for its
intended purpose. Although in Mathews we stated that
“two chances is not a reasonable opportunity to cure
the defects such that the warranty failed of its
essential purpose,” we reserve judgment as to whether,
in the case of a major defect that made the RV
unusable in any manner, we would require the
purchaser to present the vehicle three times. Mathews,
931 F.3d 619, 622. We need not resolve this question
here, as after the RV became contaminated by the
sewage leak, the Zylstras did not present it to DRV
even once.
The Zylstras complain that the Mathews decision is
distinguishable, because (1) the warranty in that case
contained additional requirements; (2) the warranty
contained a back-up remedy containing additional
repairs, and (3) there were multiple unauthorized
repair attempts. We do not see why any of these
differences, if they are, in fact differences, alters the requirement described in Mathews as applied to this
case.
What the Zylstras seem to want, from their long list
of itemized problems with the RV, is a ruling that takes
into account not just the number of attempts and the
number of days out of service, but instead also looks at
the sheer quantity of repair issues, even if they are
timely repaired. It is an understandable position, but
one without current legal support. Moreover, Indiana
law requires owners to give the manufacturer an
App. 10
opportunity to cure. The Zylstras undoubtedly bought
an RV beleaguered by problems. The Zylstras paid almost $100,000 for an RV that was the culmination of a
dream for how to spend their retirement. Once again,
we can only imagine their disappointment at having
invested in a retirement dream riddled with defects.
Nevertheless, the law attempts to strike a reasonable
balance between providing relief to purchasers and
allowing manufacturers the opportunity to fix
remediable problems.
Consequently, we have interpreted Indiana law to
require a warranty holder to give a defendant a
reasonable chance to cure the defects. Mathews, 931
F.3d at 623. And under our interpretation, a reasonable
opportunity to cure, at least in cases where the defects
are somewhat minor, and not affecting full use of the
vehicle, means at least three chances. Id. at 622. We
can conclude, therefore, that in this case the problems
must remain unresolved after the third attempt before
a purchaser can support a claim for breach of warranty.
It is true that the Mathews court pointed to Indiana’s
Lemon Law (which is not directly applicable to RVs) as
support for its interpretation, but courts commonly
analogize from and refer to related statutes in
statutory interpretation. (We note that under Indiana’s
Lemon Law, to which the Mathews court pointed for
the presentation requirement, the defect must be
presented at least four times). The problem for the
Zylstras’ claim is that none of the issues of which they
complain meet these requirements. Either the issue
was never presented to DRV for repair, it was fixed
under DRV’s warranty in three or fewer attempts, or it
App. 11
was presented less than three times and DRV did not
have a sufficient opportunity to repair.
We begin with the easiest to address—the Zylstras’
list of twelve items that they did not discover until
after the date of the last repair. See Zylstra brief at pp
33–34. Although we sympathize with the Zylstras for
what must seem like an ever increasing list of
problems, issues that the Zylstras never presented to
DRV or the dealer for repair cannot form the basis of a
breach of warranty claim. The limited warranty
requires the Zylstras to notify DRV or a selling dealer
of any warrantable issue within the repair period. It is
undebatable that none of these late discovered twelve
items was ever presented to DRV.
The Zylstras also list eleven minor defects that were
subject to repair twice. See items labeled “(2x)” in
Zylstra brief at 32–33. It is unclear which of the alleged
six “repair attempts” enumerated in their brief the
Zylstras count toward the two repair attempts before
technicians laid hands on these items on June 27,
2017.1 But, in fact, each of these eleven items was
remedied the first time a DRV factory repair person attempted repair—when the Zylstras took the RV to
1
It is difficult to follow the Zylstras’ counts of repair attempts. If
we were to count their alleged second and third repair attempts
(which they describe on pages 20-24 of their brief), then all of these
items would have been subject to three repair attempts, and,
according to their list, all repaired in three or fewer attempts. As
we describe further below, however, several of the events that the
Zylstras describe cannot, as a matter of law, be considered repair
attempts. Moreover, any issue resolved in three attempts would
not constitute a breach of warranty.
App. 12
Plaza RV on June 27, 2017. But even were we to give
the Zylstras the benefit of the doubt that DRV had the
opportunity to repair these eleven issues before June
27, 2017, the warranty cannot have failed of its
essential purpose when DRV paid for and successfully
repaired these eleven issues even in two tries, as
alleged. These successfully repaired issues, that DRV
paid for and repaired under warranty in less than three
tries, cannot form the basis of a breach of warranty
claim. Nor, of course, can the many other items listed
in their brief that were repaired on the first try. (By
our count, those total nineteen.)
After eliminating all of these possible sources of a
warranty breach, we are left with six items that fall
under the category of items that the Zylstras claim
were presented but are still not repaired. Those are:
the over-the-air antenna is “showing codes;” crooked
microwave; crooked television; the door hold will not
stay open; the gas switch on the stove is hard to light;
and “black tank leak into the underbelly.” See Zylstra
brief at 33. The over-the-air antenna can be eliminated,
as it was manufactured by a third party and subject to
third party warranties. DRV’s warranty specifically
excludes, “[e]quipment, products, components,
appliances or accessories not originally manufactured
by DRV.” R. 20 at 1. As the warranty goes on to
explain, “Some of these products may be covered under
a warranty by their manufacturers.” Id. The antenna
was not manufactured by DRV, was subject to a
third-party warranty, and thus cannot form the basis
of a warranty breach.
App. 13
The Zylstras concede that they only presented the
problem with the door hold and the gas switch to DRV
on a single occasion, and the crooked microwave and
television twice. See Zylstra brief at 33. For the reasons
we have already articulated, these single and double
presentations cannot form the basis of a claim of
breach of warranty.
We have now eliminated all but the most troubling
defect in this case—that involving the black tank leak.
There is no dispute that the leaking black tank and the
resulting mold have caused significant damage to the
RV, but what we do not know is whether the problems
amounted to a breach of warranty. Nor do we know
whether the damage was caused by a manufacturer or
user error. (The process for emptying, cleaning, and
maintaining the black tank and its connections is
complicated and it must be done properly.) For
purposes of summary judgment, however, we will
assume a manufacturer error.
The first time the Zylstras ever reported any issues
with the black tank was on September 11, 2017, when
they took the RV to Plaza RV to repair approximately
sixteen items. These were issues they identified after
giving the RV a test run on an eleven-day camping trip.
The list of items included, among many others: “Black
Holding Tank Hard to Close; Black Holding Tank
Leak.” R. 28-3 at 9. Plaza RV informed the Zylstras
that it had repaired all of the items and that the
service (other than a few non-warranty, after-market
items) was covered by the warranty.
After picking up the RV from that service
appointment, the Zylstras left for their first extended
App. 14
trip in the RV—a trip to Texas—at the beginning of
January 2018. It was on that trip that they once again
noticed the black tank leak and also a subsequent odor.
When the Zylstras could not find an authorized DRV
repair person who could come to their location, they
eventually hired a mobile technician. Although the
technician cleaned and replaced some valves and parts,
the Zylstras were still concerned about the residue
from the leak.
According to Mr. Zylstra’s deposition testimony,
shortly after the repair, the Zylstras contacted someone
from DRV about the black tank leak. During that
conversation, Mr. Zylstra asked for a guarantee that it
could be cleaned, but the representative of DRV did not
provide one. The deposition testimony was as follows:
Q. At any point in time, did Greg indicate that
DRV wasn’t willing to attempt to address the
smell and the issues?
A. Not that I recall. Just that they couldn’t
guarantee anything that—as far as cleanup.
Couldn’t guarantee that, you know, the unit
wouldn’t be a biohazard problem.
Q. Did Greg use those words, that he “couldn’t
guarantee”—
A. Yes, those were his words, that “DRV
couldn’t guarantee.”
Q. That it wouldn’t be a biohazard problem?
App. 15
A. Yeah, that wouldn’t—that they couldn’t get it
cleaned up. He didn’t say biohazard, but couldn’t
get it cleaned up.
Q. And you took that as a cue and never— or did
you ever schedule any kind of repairs with DRV
or any dealer to try to address the smell issue or
the leak from the tank?
A. No. Because I was—I was looking around to
try to find some information on—you know,
when we—if you have a spill like that in your
RV, what can be done about it? I don’t remember
any subsequent conversations with Greg.
R. 23-1 at 75–76. Thus, according to this testimony, the
DRV representative never stated that DRV was not
willing to attempt to address the clean up and odor. R.
23-1 at 75. Nevertheless, the Zylstras did not schedule
any kind of repair with DRV or any dealer after that.
R. 23-1 at 75–76. Mr. Zylstra also testified that they
did not request reimbursement for the repairs and
maintenance done by the mobile repair person. R. 23-1
at 71.
In a later affidavit filed after the deposition, Mr.
Zylstra stated that the representative from DRV agreed
to reimburse the Zylstras under the warranty for the
repair done by the mobile repair person. R. 28-3 at 10.
He also stated, contrary to his deposition testimony,
that the representative from DRV “told me that any
cleanup would not be covered under the DRV
warranty.” Id. The affidavit testimony was as follows:
Soon after, we contacted Greg Weldon from DRV
about the black tank leak and he agreed that
App. 16
DRV would reimburse us under the warranty for
the repair of the leak that had been performed
by Gabriel’s Maintenance. We also discussed the
possibility of the RV going back to the DRV
factory to clean up the sewage that had leaked
into the RV, but during our call with Greg
Weldon on February 5, 2018, he told us that
DRV would not guarantee that they would be
able to clean up the sewage or that the sewage
smell would ever go away. He also told me that
any clean up would not be covered under the
DRV warranty. It was at this point that we lost
all faith in DRV and their ability or willingness
to stand behind their warranty and repair our
RV.
R. 28-3 at 10–11. This later affidavit claim that DRV
refused to cover the clean up under the warranty,
which appears to contradict the earlier deposition
testimony, cannot be the basis for a factual dispute.
Howell v. Smith, 853 F.3d 892, 900, n.18 (7th Cir.
2017) (noting that the court does not allow a party to
contradict deposition testimony with later-filed
contradictory affidavits in order to create “sham issues
of fact with affidavits that contradict their prior
depositions.”).
The Zylstras retort that the affidavit does not
contradict the deposition because in the deposition, Mr.
Zylstra stated that he did “not recall” whether Greg
stated that DRV was not willing to address the smell
and the sewage issues. In the affidavit, he seemed
certain that the DRV representative “told me that any
clean up would not be covered under the DRV
App. 17
warranty.” R. 28-3 at 10. It takes a rather thin knife to
split those hairs.
In any event this factual dispute, should we find
one, would not prevent summary judgment. It is
undisputed that the repair of the black tank valve was
never presented to DRV or the dealer after the Texas
camping trip. Instead, because they “lost all faith in
DRV and their ability or willingness to stand behind
their warranty and repair [the] RV,” the Zylstras did
not schedule any repairs with DRV or any dealer to try
to address the issues from the leak. R. 28-3 at 10–11.
Consequently, because the Zylstras never presented
the RV to DRV for repair after the Texas trip and the
sewage leak, they did not comply with the terms of the
warranty and thus defeated the warranty’s purpose.2
The Zylstras assert that the district court made
factual determinations as to “which repairs to consider
and which repairs not.” Zylstra brief at 18. But as we
noted, even when we have taken each repair attempt in
the light most favorable to the Zylstras, they still have
not provided DRV with a sufficient opportunity to
repair. In this way, this case mirrors that of the recent
decision in Kuberski v. Rev Recreation Grp., Inc., No.
2
On top of this failure-to-present-for-repair question, DRV argues
that the black tank leak in Texas was caused by the Zylatras’
misuse as opposed to a defect attributable to DRV. (A black tank
must be cleaned and maintained properly.) But whether the leak
could be attributable to a warrantable defect or was the result
ofuser error, is a factual question that we cannot address on
summary judgment. For the sake of summary judgment, we will
assume that DRV was responsible for the defect. See Payne, 337
F.3d at 770.
App. 18
20-3127, 2021 WL 3076749, at *4 (7th Cir. July 21,
2021). In that case, we found that the warranty created
bilateral obligations. “The dealer and manufacturer
agreed to repair defects, but the buyer was required to
provide the dealer and manufacturer with notice and
an opportunity to cure the defects.” Id. at *2. We held
that the plaintiff’s failure to give the RV manufacturer
an opportunity to cure the defects defeated the
warranty’s stated purpose. Although the case
referenced North Carolina law on substantial
compliance with a contract, the conclusion is the same
here where the warranty creates the same bilateral
obligations on the parties. As the Kuberski opinion
explained:
In the present case, we can infer from the warranty that in exchange for a promise to repair
any defects, REV expected that the buyer (Kuberski) would notify it of defects and give it an
opportunity to cure. Such a “notice-and-opportunity” regime gives the manufacturer a chance
to make amends with its customer, see what
went wrong with its product, learn from its
errors, and evaluate how its authorized dealers
are performing repairs.
Id. at *3. The Zylstras’ failure to present the RV to
DRV for repair dooms the Zylstras’ claim, just as it did
in Kuberski.
2. Time out of service.
The Zylstras also argue that DRV did not repair the
defects within a reasonable amount of time, leaving the
RV out of service for 230 days, thus defeating the
App. 19
essential purpose of the warranty. This too requires a
seemingly fact-intensive analysis. Taking all of the
facts in the light most favorable to the Zylstras,
however, we conclude, as a matter of law, that the
essential purpose of the warranty was not defeated by
the amount of time out of service.
Calculating the time out of service for an RV is
complicated. Unlike an automobile, many RVs spend
the majority of their time in storage. When a person
takes a car to the repair shop, she expects a quick
turnaround as she likely relies on that vehicle for
employment and daily living. When owners drop off an
RV for repair, however, they may not need the vehicle
for many months, and, in some cases in fact, every day
that the RV sits in the repair shop, is one less day that
the owner must pay for storage. This makes calculating
out-of-service days less straight forward than it would
for an ordinary automobile. But even giving the
Zylstras the benefit of the doubt on all factual matters,
we can determine as a matter of law, that the time that
the RV spent in repair was not so excessive that the
warranty failed of its essential purpose.
For example, included in the Zylstras’ calculation of
230 days out of service are the 52 days between the
time they purchased the RV and the time they were
able to pick it up, after purchasing a truck to tow it.
During this time, DRV performed normal adjustments
and tweaks, but the Zylstras did not request these
repairs or even know about them. Therefore, they did
not notify the dealer as required by the warranty. As a
matter of law these were not warranty claims and the
App. 20
RV was not out of service during the time they were
addressed.
In addition, the time the RV spent at Bradley did
not constitute a reasonable opportunity to cure the
defect as required by the warranty. On April 29, 2017,
the Zylstras brought the RV to Bradley Chevrolet for
punch list repairs. (The Zylstras label this the “Second
Post-Sale Repair Attempt.”) After the RV had been
there for about a week, the dispute about responsibility
for the damaged roof ensued. According to Mr. Zylstra,
once the Zylstras informed Bradley that they would
take the RV to DRV’s factory service center in Indiana
for the roof repair, the service manager told them “they
can just take care of the rest of the problems” on the
punch list. R. 23-1 at 48. The Zylstras picked up the RV
from Bradley on May 20, 2017. According to the
warranty, “If the selling dealer is unwilling to resolve
a problem which the owner is convinced is covered by
this warranty, the owner should write to DRV at the
address listed below with a description of the problem
and attempts made to resolve it.” The Zylstras did not
inform DRV that the dealer was unwilling to resolve
the problems.3 Instead, after the Zylstras were
3
The Zylstras did eventually complain to DRV about the service
it received from Bradley—many months and repairs later—but
that letter merely stated, “When informed that the factory would
be replacing the roof the service manager, Donald Caine, said that
the factory could just fix the other items as well.” R. 28-17 at 2.
Mr. Zylstra’s deposition testimony was in accord: “I had informed
[the service manager] that the factory would be replacing the roof.
He got a little annoyed and said, “Well, they can just take care of
the rest of the problems.” R. 23-1 at 47-48. The Zylstras never
followed up with DRV as was the requirement of the warranty. In-
App. 21
informed of the roof damage and the cost to repair they
“reached out to the factory to have the repairs done at
the factory.” R. 23-1 at 48. Thus, under the facts as
presented by the Zylstras, this was not an adequate
presentation of the issue to DRV.
The Zylstras dropped the RV off at the DRV service
facility in Indiana for the scheduled roof repair on June
21, 2017. (The Zylstras label this the “Third Post-Sale
Repair Attempt.”) The Zylstras asked if the factory
could address the warranty issues as well, but the
factory informed them that they had only scheduled
two days for the roof repair and did not have sufficient
labor available to address the other issues for some
time. R. 34-2. While there, the Zylstras learned that
they could have the warranty items addressed at any
authorized dealer and decided to take the RV to Plaza
RV for repairs rather than wait for the factory to have
time available. These four days, therefore, do not count
toward warranty repairs, as the Zylstras made an
appointment for the non-warranty-related roof repair
only and did not follow up when told that the warranty
repairs, which were outside the scope of the roof-repair
appointment, would take more time. As a legal matter,
a purchaser has not given a warrantor a reasonable
opportunity to repair if he appears at the doorstep of
the manufacturer and demands repair in a timeframe
that is not possible for the warrantor. This is akin to a
patient scheduling a dental cleaning at the dentist and
while there asking if the dentist can also repair a
crown, fill a cavity, and perform teeth whitening. The
stead, they took the RV to another authorized service center where
the warranty items were repaired.
App. 22
dentist, who has only scheduled an hour with a
hygienist for cleaning, has not denied treatment when
she requires the patient to schedule another time for
the remaining treatments.
Instead of following up with the DRV service facility
in Indiana after the roof repair, the Zylstras decided to
take the RV to another authorized dealer, Plaza RV.
(The Zylstras label this the “Fourth Post-Sale Repair
Attempt.”) Even with the facts taken in the light most
favorable to the Zylstras, the visit to Plaza RV does not
support a claim for breach of contract. When the
Zylstras dropped the RV off at Plaza RV on June 27,
2017, they were told that the repair shop was
shorthanded and that it would “be a little bit” before
the RV would be finished. R. 23-1 at 53. The parties did
not agree on a completion date. Plaza RV held the
Zylstra’s RV for fifty-one days, during which time it
attempted repairs of seventeen items that the Zylstras
had submitted. Plaza RV also performed one nonwarranty installation for the Zylstras. This was the
first time any dealer or factory attempted any warranty
repairs of the RV. By the Zylstras’ own account, they
were informed that Plaza RV was shorthanded, and
that the repairs would be delayed. But also by their
own account, they acquiesced to the repair under these
conditions, and they did not notify DRV that the dealer
was unwilling to repair any problems.
After the August 2017 pick-up, the Zylstras went
camping again to make certain everything was working
before their scheduled trip to Texas in January 2018.
During that trip, they compiled a second punch list of
sixteen items, which they presented to Plaza RV when
App. 23
they dropped the RV off on September 11, 2017. (The
Zylstras label this the “Fifth Post-Sale Repair
Attempt.”) Only one warranty item from the first list
appeared on the second list—some screws that were
missing from an overhead compartment. Not only was
this a very minor issue, but also, Mr. Zylstra was not
certain whether Plaza RV had understood which door
was missing the screws the first time. (The antenna
repairs also appeared on both lists, but we have
already determined that the antenna was not covered
under the DRV warranty). This was also the first time
that the Zylstras mentioned any problems with the
black holding tank, which they stated “leaks” and was
“hard to close.” R. 28-3 at 9. During this time at Plaza
RV, the Zylstras also decided to add some after-market
items (a fireplace and some automatic stairs, for
example) which were separate and apart from any of
the warranty repairs and added some repair time to the
clock.
When the Zylstras dropped off their RV at Plaza RV
on September 11, 2017, they told Plaza RV that they
needed the RV to be repaired before the start of
2018—in time for their trip to Texas. Although 102
days is a long time for the RV to be out of service, the
Zylstras made clear that they did not need the RV until
the start of the new year. And, in fact, when Plaza RV
completed the repairs by December 21, 2017 (ten days
before the end of the year), the Zylstras put the vehicle
in storage until they were ready to use it. The Zylstras
claim that their letter to DRV during this repair time
demonstrated that they did not accede to this several
month repair time. This letter, however, only
references having lost “a significant amount of camping
App. 24
enjoyment by not having a usable coach in our
possession,” and does not specifically reference whether
this particular time in the shop at Plaza RV (September 11, 2017 to the date of the letter, October 16, 2017)
had interfered with their camping time or whether they
had intended to have the RV in storage in any event.
R. 28-17 at 2. In sum, the repairs were completed
within the time frame set forth by the Zylstras
themselves and therefore could not have been evidence
of a breach or that the warranty failed of its essential
purpose.
In the end, the Zylstras’ stated breach of express
warranty claim fails because DRV did not have the
required opportunity to repair the warranty items. We
have also considered the days out of service during the
times in which DRV had the opportunity to repair, and
conclude that, as a matter of law, the repair time could
not have caused the warranty to fail of its essential
purpose. For this reason the claims under the
Magnuson Moss Warranty Act also fail. The Act creates
a federal cause of action for any “consumer who is
damaged by the failure of a supplier, warrantor, or
service contractor to comply with any obligation under
[the statute], or under a written warranty, implied
warranty, or service contract.” 15 U.S.C. § 2310(d)(1).
The MMWA depends on the existence of an underlying
viable state-law warranty claim, and so the two claims
can be evaluated together and succeed or fail together.
B. Breach of implied warranty.
For these same reasons, the Zylstras’ implied
warranty claim must fail too. As we have interpreted
Indiana law in the past, just as with a claim for breach
App. 25
of an express warranty, a buyer must give the
warrantor a reasonable opportunity to cure any alleged
defect in order to make a claim of breach of an implied
warranty. Matthews, 931 F.3d at 623. Any other interpretation would make a warrantor strictly liable for
any warrantable defects without being given any
opportunity to cure the defect.
The Zylstras do not make a substantive argument
about the implied warranty claim in their opening brief
and instead raise these issues only in the reply brief.
As such, the substantive argument is waived. Griffin v.
Bell, 694 F.3d 817, 822 (7th Cir. 2012) (“[A]rguments
raised for the first time in a reply brief are deemed
waived.”). In the opening brief, the only issue the
Zylstras raise related to the implied warranty (issue
three on pages 38–40 of their brief), is a claim that the
district court committed reversible error when it failed
to conduct a choice of law analysis regarding the
implied warranty claim. The Zylstras requested that
the district court apply Indiana law, which, as we
described in Mathews, requires a reasonable
opportunity to cure the defect. DRV, on the other hand,
asked the court to apply Illinois law, which requires
privity of contract to bring a claim of implied warranty
of merchantability. See Voelker v. Porsche Cars N. Am.,
Inc., 353 F.3d 516, 525 (7th Cir. 2003) (“Under the law
of Illinois, privity of contract is a prerequisite to recover
economic damages for breach of implied warranty.”).
Under either state law, the Zylstras’ implied breach of
warranty claim fails. The Zylstras did not give DRV an
opportunity to cure. And under Illinois law, the
Zylstras’ claim would have been defeated right out of
App. 26
the gate, as they lacked privity of contract with DRV,
having bought the RV from a dealer.
C. Indiana Deceptive Consumer Sales Act.
The Zylstras’ final claim is that DRV violated the
Indiana Deceptive Consumer Sales Act. Those claims
can be categorized as (1) uncured deceptive acts (which
do not require a showing of an intent to defraud or
mislead); and (2) incurable deceptive acts (which
require such a showing). Ind. Code § 24-5-0.5-2(7) &
(8). The Zylstras allege that the uncured deceptive acts
are (a) breaching an express warranty; (b) breaching an
implied warranty; and (c) violating the MMWA. Because we have concluded that none of these breaches or
violations occurred, these claims fail. And in any event,
the Indiana Supreme Court has stated that a breach of
contract does not suffice to support a claim of false
representation under the Act. McKinney v. State, 693
N.E.2d 65, 73 (Ind. 1998) (“Although these allegations
may support a breach of contract claim, without more
flesh these bare bones do not state claims under the
Act. A broken promise is not ipso facto a false
representation.”).
The Zylstras also allege that DRV committed
incurable deceptive acts by (a) representing that the
RV had performance characteristics, accessories, uses,
or benefits which DRV reasonably knew it did not;
(b) misrepresenting that the RV was of a particular
standard or quality; (c) knowingly misrepresenting the
Zylstras’ warranty rights; and (d) stalling and delaying
a performance obligation under the warranty by refusing to perform repairs.
App. 27
As evidence that DRV misrepresented the
performance and quality of the RV, the Zylstras point
to a brochure that advertises that the RV “offers all the
comforts of home, all the conveniences of a residential
kitchen and the peace of mind knowing that you’ve
chosen the best construction on the market today.”
R. 28-4 at 3 (emphasis in original). But such statements of “unverifiable opinion,” are classic examples of
puffery and are not actionable under the IDCSA.
Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 332–33
(Ind. 2013) (“statements of the seller’s opinion, not
made as a representation of fact— such as claiming a
product is “the best”—are simply puffing which does
not create an express warranty.”) (cleaned up); All-Tech
Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868 (7th
Cir. 1999) (noting that empty superlatives and
meaningless sales patter are not misrepresentations.).
As we noted, RVs are more like new homes than
automobiles in many ways. As with a new home,
adjustments and changes are often required and the
buyer has some time to note and ask for repair or replacement of defective parts. As a result, a long list of
post-production repairs does not necessarily prove that
the RV is of deficient quality. Consequently, we can
conclude that DRV did not commit a deceptive act
under Ind. Code. 24-5-0.5-3(a) through its
advertisements or by representing that the RV was of
a standard or quality that it was not.
Taking the facts in the light most favorable to the
Zylstras, an employee at Bradley Chevrolet
misrepresented to them that they were required to take
the RV to Bradley Chevrolet for any and all warranty
repairs. Incurable deceptive acts require a showing of
App. 28
intent, and the Zylstras did not offer any evidence that
the employee intended to mislead them as opposed to
merely being confused or misinformed. Finally, as to
stalling and delaying warranty repairs, these claims
were discussed and rejected in our discussion of the
reasonableness of the time for repair.
For the reasons stated above, the judgment of the
district court is AFFIRMED in all respects.
App. 29
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
Case No. 1:18-CV-266
[Filed May 18, 2020]
____________________________________
BEVERLY ZYLSTRA and
)
BERNARD ZYLSTRA,
)
)
Plaintiffs,
)
)
v.
)
)
DRV, LLC,
)
)
Defendant.
)
____________________________________)
OPINION AND ORDER
This matter is before the Court on the Motion for
Summary Judgment filed by Defendant DRV, LLC
(ECF 22). Plaintiffs Beverly and Bernard Zylstra filed
a response in opposition (ECF 28) and DRV filed a
reply (ECF 34). Also pending before the Court is the
Plaintiffs’ Motion to Strike (ECF 35), to which DRV
filed a response (ECF 36) and the Zylstras filed a reply
(ECF 39). The motion for summary judgment was fully
briefed on April 3, 2020, and the motion to strike was
App. 30
fully briefed on April 22, so both motions are ripe for
resolution. For the reasons explained below, the motion
for summary judgment is GRANTED and the motion to
strike is DENIED AS MOOT.
BACKGROUND
In March of 2017, Beverly and Bernard Zylstra
purchased a 2016 DRV Mobile Suites recreational
travel trailer (the “RV”). The Zylstras allege in their
Complaint that the RV had numerous problems and
defects, which they discovered soon after they took
delivery and which they allege DRV failed to repair
thereby breaching the warranty terms. This case is fact
intensive, a common characteristic of RV breach of
warranty cases. For that reason, a rather lengthy
presentation of the underlying facts, claims and
defenses is necessary to set the stage, beginning with
the Plaintiffs’ Complaint.
The Zylstras state that “[t]his case involves a
defective 2016 DRV Mobile Suites recreational vehicle
that Defendant warranted and contracted to warrant
but which it was not able to repair within a reasonable
number of chances or a reasonable amount of time and
whose warranty and/or contract Defendant breached.
Complaint, p. 2. The Zylstras contend that the RV had
nearly three dozen defects or problems that DRV
allegedly failed to remedy. Their Complaint alleges the
following:
19. Because of the contract and/or
warranty-covered defects, Plaintiffs notified
Defendant and/or one of its authorized servicing
dealers of the numerous defects and on various
App. 31
dates delivered the motor coach into the
possession of Defendant and/or one of its
authorized servicing dealers at their cost and/or
expense beginning shortly after the sale.
20. The RV went into the factory warranty
authorized repair shop on April 29, 2017 for
about 22 days for repair of the following defects:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Gray Tank Valve Not Closing;
Over Air Antenna Showing Codes;
Right Rear Storage Compartment Leaks;
Door Hold Missing Screw in Overhead
Compartment;
Kitchen Drawer Slides Not Working
Properly;
Main Door Mechanism Pinched/Broken
Ribbon Cable;
Fireplace LED Readout Doesn’t Show
Numbers Correctly;
Fireplace Remote Heat Button Inoperative;
Toilet Valve Leaks;
Microwave Installed Crooked;
TV Installed Crooked;
Quarter Round on Stair Loose;
Batteries Do Not Hold Charge;
Grease Cap Broken;
Hub Cap Missing;
Bathroom Drains Slow;
Kitchen Light Cover Missing;
Gas Lift Arms on D/S Basement Door Weak.
21. The RV went into the DRV, LLC factory
repair shop on June 21, 2017 for about 2 days for
repair and replacement of the following defect:
App. 32
• Damaged roof.
22. The RV went into the factory warranty
authorized repair shop on June 27, 2017 for
about 51 days for repair of the following defects:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Gray Tank Valve Not Closing;
Over Air Antenna Showing Codes;
Right Rear Storage Compartment Leaks;
Door Hold Missing Screw in Overhead
Compartment;
Kitchen Drawer Slides Not Working
Properly;
Main Door Mechanism Pinched/Broken
Ribbon Cable;
Fireplace LED Readout Doesn’t Show
Numbers Correctly;
Fireplace Remote Heat Button Inoperative;
Toilet Valve Leaks, Microwave Installed
Crooked;
TV Installed Crooked, Quarter Round on
Stair Loose;
Batteries Do Not Hold Charge;
Grease Cap Broken;
Hub Cap Missing;
Bathroom Drains Slow;
Kitchen Light Cover Missing;
Gas Lift Arms on D/S Basement Door Weak.
23. The RV went into the factory warranty
authorized repair shop on September 11, 2017
for about 102 days for repair of the following
defects:
App. 33
• Vent in Bathroom Tries to Close When
Already Closed;
• Fresh Water Tank Indicator Inop;
• LP Detector Panel Not Calibrated;
• Ceiling Light Cover Loose;
• Molding in Walk In Closet Not Attached;
• Over Air Antenna Showing Codes;
• Door Hold Will Not Stay Open;
• Quarter Round on Pantry Loose;
• 7 Way Plug Cover Broken;
• AM Radio Reception Poor;
• Black Holding Tank Hard to Close;
• Black Holding Tank Leaks;
• Bedroom Drawer Not Closing;
• Gas Switch on Range Opens When Range
Top Open;
• Vent Cap Loose.
24. The RV went into the factory warranty
authorized repair shop on January 26, 2018 for
about 1 day for repair of the following defect:
• Gaskets replaced.
25. Following the last repair, many of the defects
are still not fixed, or were not fixed within a
reasonable amount of time or within a
reasonable number of repair attempts, and the
following new defects have arisen: the leveling
system does not work properly and the power
cord door latch is cracked
...
App. 34
28. After being in the repair shop multiple times
and being out of service a total of about 176 days
or more in the first 10 months and accumulating
about 32 or more warranty-covered defects since
its acquisition, Plaintiffs notified Defendant that
they wanted their money back but Defendant
would not do that.
Id., pp. 5-7.
Based on the foregoing assertions, the Zylstras
brought suit against DRV for 1) “breach of warranty
and/or contract” (id., pp. 2-10), “violation of its
obligations under the Magnuson Moss Warranty Act,
15 U.S.C. 2301, et seq.” (id., p. 10), and a “claim . . . for
violation of applicable state Udap laws, being the
Indiana Deceptive Consumer Sales Act, IC 24-5 et seq.
and/or the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 ILCS 505/1 et seq., and/or
Texas Deceptive Trade Practices Consumer Protection
Act, Tex. Bus. & Com. Code §17.01 et seq., and/or Iowa
Consumer Fraud Act, Iowa Code § 714.16 et seq.” (id.,
pp. 11-13).1
1
“The Magnuson-Moss Warranty Act is a federal statute that,
among other things, permits consumers to sue to enforce state law
warranty obligations.” Mathews v. REV Recreation Group, Inc.,
931 F.3d 619, 621, n. 4 (7th Cir. 2019) (citing 15 U.S.C.
§ 2310(d)(1)). “‘[F]or all practical purposes, the MMWA operates as
a gloss on . . . state law breach of warranty claims.’” Kuberski v.
Allied Recreational Grp., Inc., 2019 WL 3802453, at *3 (N.D. Ind.
Aug. 12, 2019) (quoting Anderson v. Gulf Stream Coach, Inc., 662
F.3d 775, 781 (7th Cir. 2011)). “The disposition of the state law
warranty claims determines the disposition of the MMWA claims.”
Id. (citing Schiesser v. Ford Motor Co., 2016 WL 6395457, at *4
(N.D. Ill. Oct. 28, 2016) (“The ability to sustain a cause of action
App. 35
In Defendant’s memorandum in support of its
motion, DRV presents its side of the story, arguing that
it did not breach any warranty terms because the
Zylstras never afforded DRV reasonable opportunities
to repair the problems. DRV also contends that many
of the problems or defects the Zylstras list were not
even covered under the warranty. Therefore, argues
DRV, the Zyzlstras fail to establish an essential
element of their claims. The following recitation of facts
comes from DRV’s Statement of Undisputed Facts
presented in its Memorandum in Support.
“DRV was the final stage assembler of the RV and
provided a limited warranty covering certain portions
of the RV.” Defendant’s Memorandum in Support, p. 1.
The Zylstras purchased the RV from Bradley
Bourbonnais Chevrolet, Hyundai and RV Center in
Bourbonnais, Illinois, for $86,900. Id., p. 2. The
Zylstras picked up the RV on April 27, 2017, and went
camping for two days. When they picked up their new
RV, a copy of the Limited Warranty and the owner’s
manual were in the vehicle. Id., p. 3. During this initial
camping trip, the Zylstras, who had prior experience
owning an RV, “made a list of things they felt were not
working correctly with their RV.” Id., p. 3. Following
this initial trip, the Zylstras “dropped their RV off at
Bradley Bourbonnais at the end of a weekend along
under the Magnuson-Moss Act is dependent on the existence of an
underlying viable state-law warranty claim.”); see also, In re Gen.
Motors Corp. Dex-Cool Products Liab. Litig., 241 F.R.D. 305, 315
(S.D. Ill. 2007) (holding that the MMWA “in numerous respects is
essentially a vehicle for vindicating state-law warranty claims in
federal court.”).
App. 36
with a list of the items they wanted to have fixed.” Id.,
pp. 3-4. “On Monday or Tuesday the following week, a
representative of Bradley Bourbonnais called Mr.
Zylstra and indicated that there was damage to the
radius area on the roof of the RV. . . . The dealership
denied that the damage had happened on their lot. . . .
Mr. Zylstra believed the damage occurred while on
their lot. . . . Either way, the issue was not a warranty
issue and, ultimately, the Zylstras decided to submit
the claim for damage through their insurance and it
was covered.” Id., p. 4. “The Zylstras delivered the RV
to DRV’s service facility in Indiana to have the roof
replaced between June 21st and June 24th, 2017.” Id.
“The Zylstras then made arrangements with Plaza RV,
an authorized dealer in Iowa, to have their initial list
of warranty issues addressed . . . [and] dropped the RV
off at Plaza RV on June 27, 2017.” Id. “In addition to
requesting the warranty repairs, the Zylstras made
arrangements for non-warranty work to be performed
by Plaza RV, including the installation of some
after-market items. . . . Plaza RV completed repairs
and the Zylstras made arrangements to pick up the RV
on August 16, 2017. The Zylstras did not go through
their list of repairs with anybody at that time–they
simply picked up their RV.” Id., pp. 4-5. The Zylstras
then went camping in the RV for 11 days. “The purpose
of the trip was to go through the RV and make sure
everything was working . . . because the Zylstras had
a long trip to Texas planned for the first of the year and
wanted ‘to make sure everything was ready to go for
that trip.’” Id., p. 5 (quoting Deposition of Bernard
Zylstra, Exh. A (ECF __), p. 59). During this trip, “[t]he
Zylstras created a second list of issues they found . . .
[and] made arrangements to drop off their RV with
App. 37
Plaza RV in September and did so. . . . Only one item
that was on the Zylstra’s first list was also on their
second list. . . . The one ‘repeat’ item was an
adjustment to an overhead cabinet door. . . . As to that
issue, the Zylstras do not know whether Plaza RV
properly understood the problem complained of the
first time or had attempted repairs on the correct
cabinet. And the Zylstras, once again, did not get into
the RV and show Plaza RV the nature of the issue–they
just stood in the shop and talked about the problems
when Mr. Zylstra dropped the RV off.” Id. (citations to
record omitted). The RV was at Plaza from September
until December 21, 2017, at which time the Zylstras
picked it up, placed in storage for one week, and then
embarked on their trip to Texas. During this trip, the
Zylstras “discovered a leak in the valve to the black
(waste) tank of the RV. . . . Mr. Zylstra called and paid
a mobile RV repair technician to fix the valve and stop
the leak. . . . The Zylstras never requested DRV pay
this fee.” Id., p. 6. At this point, “[t]he Zylstras did not
feel confident that DRV would be able to resolve the
issue and decided not to schedule any kind of repairs
with DRV or anyone else to address the issues. . . . The
two lists the Zylstras gave to Plaza RV in June and
September 2017 are the only repairs requested by the
Zylstras as to their RV. . . . Since August of 2018, the
RV has been in storage except for a trip to Texas for an
inspection by one of Plaintiffs’ experts and a local trip
in Iowa for DRV’s expert inspection.” Id. (citing
Bernard Zylstra Depo., ECF No. 23-1, pp. 76-77). DRV
states that “[a]t the time they purchased the RV, the
Zylstras also purchased an extended four year
warranty administered by a third party. . . . That
extended warranty remains in effect as of October 22,
App. 38
2019[,] but the Zylstras have not attempted to mitigate
any damages by making any claims under that
warranty either.” Id., p. 7 (quoting Exhibit A, pp.
30-31). DRV states that after filing their Complaint in
this case on August 27, 2018, the Zylstras “retained the
services of several experts, including an expert to
provide opinions on the existence of issues in the RV,
Rodney Simmons. Mr. Simmons discusses 23 potential
issues with the RV in his report as currently existing in
the RV. . . . Mr. Simmons opines that each of the issues
he identifies as existing in the RV can be repaired. Id.,
pp. 6-7.
In summary, DRV contends that it never breached
any warranty terms because the Zylstras never
afforded DRV (or Plaza RV or another authorized
repair shop) adequate opportunities to address and
repair the many issues the Zylstras claim existed with
the RV. According to DRV, it “did not breach the
limited warranty as a matter of law because Plaintiffs
did not provide a reasonable opportunity to cure.” Id.,
p. 10. DRV insists that “because no reasonable
opportunity has been afforded for repair, as a matter of
law, summary judgment is appropriate.” Id., p. 12. In
addition to the alleged lack of opportunity to cure, DRV
insists that many of the problems with the RV that the
Zylstras (or their expert) identified were not covered by
the warranty anyway, and so cannot form the basis for
any breach of warranty claim. Id., pp. 13-18.
The parties’ briefs focus primarily on arguments
about the number of times the RV was in for service
and for how long. While this is a factual dispute, it is
resolved on the evidence and does not require
App. 39
submission to a jury. The Zylstras insist that the RV
was serviced six times, while DRV contends that “[t]he
two lists the Zylstras gave to Plaza RV in June and
September 2017 are the only repairs requested by the
Zylstras as to their RV.” While that factual dispute is
complicated by the Zylstras’ use of questionable
arithmetic (as the Court will explain below), the
dispositive issue before the Court is straightforward, to
wit: whether the Zylstras afforded DRV, or another
authorized repair shop, reasonable opportunities to
repair the alleged warranty issues.
SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when “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). Disputes
concerning material facts are genuine where the
evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court
construes all facts in a light most favorable to the
non-moving party and draws all reasonable inferences
in favor of the non-moving party. See id. at 255. In
addition, not all factual disputes will preclude the
entry of summary judgment, only those that “could
affect the outcome of the suit under governing law.”
Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001)
(citation omitted).
A party opposing summary judgment may not rely
merely on allegations in its pleadings, but must
“marshal and present the court with evidence she
App. 40
contends will prove her case.” Goodman v. Nat’l Sec.
Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2001).
Summary judgment “is the put up or shut up moment
in a lawsuit[.]” Springer v. Durflinger, 518 F.3d 479,
484 (7th Cir. (citations omitted). Rule 56 “mandates the
entry of summary judgment . . . against a party who
fails to make a showing sufficient to establish the
existence of an element essential to that party’s case,
and on which that party will bear the burden of proof
at trial. In such a situation, there can be ‘no genuine
issue as to any material fact,’ since a complete failure
of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
DISCUSSION
DRV argues it is entitled to summary judgment on
all of the Zylstra’s claims. DRV insists that it fixed any
problems with the RV that were presented to it for
repair (or more precisely, presented to Plaza RV, an
authorized servicer), but that the majority of defects
the Zylstras complain about were never presented to
DRV so the company had no opportunity to repair
them. DRV’s argument is summarized in the following
paragraph:
Plaintiffs’ complaint asserts DRV breached its
warranty and, in doing so, violated the
Magnuson Moss Warranty Act and consumer
protection statutes of Indiana, Illinois, Iowa
and/or Texas. After the lawsuit was filed, the
Plaintiffs hired three expert witnesses and now
allege the existence of other new issues that
App. 41
were, like the black tank valve leak, not
presented to DRV or an authorized dealer for
repairs during the warranty. But, to sustain a
claim for breach of warranty, Plaintiffs must
have given DRV a reasonable opportunity to
repair an alleged defect. Plaintiffs, by their own
admission, did not do this. Absent an
opportunity to repair, there can be no breach of
warranty. As breach of warranty is the predicate
of all of Plaintiffs’ claims, summary judgment in
appropriate as a matter of law.
Defendant’s Memorandum in Support (ECF 23), p. 2.
In support of its argument, DRV relies in large part
on the case of Mathews v. REV Recreation Group, Inc.,
931 F.3d 619 (7th Cir. 2019). In Mathews, this Court
granted summary judgment in favor of the defendant
RV manufacturer on the plaintiffs’ breach of warranty
claims, concluding that the plaintiffs had failed to
present sufficient evidence showing that REV was
afforded a reasonable opportunity to repair the many
problems the Mathews alleged existed with their RV.2
2
The Mathews, represented by the same attorneys representing
the Zylstras, brought the same claims: state law claims for breach
of express and implied warranties, and claims for violations of the
IDCSA and the Moss-Magnuson Warranty Act. Despite the
Zylstras’ attempts to distinguish Mathews (see Plaintiffs’
Response, p. 9), the dispositive issue in both cases is the same: did
the defendant have reasonable opportunities to repair the alleged
defects? The answer in both cases is also the same: they did not,
and the plaintiffs’ claims fail to survive summary judgment for
that reason.
App. 42
The Seventh Circuit affirmed this Court’s decision,
concluding as follows:
We are sympathetic to the Mathews; they were
sold an RV that had problems from the day that
they bought it. But because they have not
established that REV breached its express or
implied warranties–or any other law–we agree
with the district court that their claims fail.
931 F.3d at 624. Both this Court and the Seventh
Circuit determined that the evidence failed to establish
that the Mathews had afforded REV reasonable
opportunities to repair the long list of problems the
Mathews alleged existed with their RV, and that this
failure was fatal to their claims. The circumstances,
and the result, are the same in this case; the Zylstras
present plenty of evidence of problems with their RV,
but they failed to provide DRV with sufficient
opportunity to address those problems. Absent
reasonable opportunity to cure, the Zylstras’ breach of
warranty claims fail.
In Cimino v. Fleetwood Enterprises, this Court
(Judge Springmann) explained as follows:
In order to prevail on a claim [for breach of
warranty], the Plaintiffs have the burden of
establishing, by a preponderance of the evidence,
five elements: (1) the Plaintiffs complied with
the terms of the warranty; (2) the motor home
contained a defect covered by the warranty;
(3) the Defendants were given a reasonable
opportunity to perform the necessary repairs;
(4) the Defendants were unable to repair the
App. 43
defect within a reasonable time or after a
reasonable number of attempts; and (5) the
Plaintiffs have suffered damage.
Cimino v. Fleetwood Enterprises, Inc., 542 F.Supp.2d
869, 882 (N.D. Ind. 2008) (italics added). If a plaintiff
fails to present sufficient evidence showing that the
defendant had reasonable opportunities to perform
repairs and failed to do so, the defendant is entitled to
summary judgment because the plaintiff has failed to
establish an element of his claim. See Marchionna v.
Ford Motor Co., 1995 WL 476591, *4 (N.D. Ill. 1995)
(holding that “[t]he Magnuson-Moss Act provides that
in the case of a recurrent problem, the warrantor . . . is
entitled to make ‘a reasonable number of attempts’ to
repair the defect before being required to refund or
replace the product or component[]” and that three
attempts over a period of 11 months was not sufficient
under the circumstances); Cimino, 542 F.Supp.2d 869,
n. 4 (citing Evans v. GMC, 459 F.Supp.2d 407 (D. Md.
2006) (holding that four opportunities is a reasonable
number of attempts to cure); Hoopes v. Gulf Stream
Coach Inc., 2017 WL 6884317, at *2 (N.D. Ind. Apr. 13,
2017) (four repair attempts in five month period
constituted reasonable opportunity); Bordoni v. Forest
River, Inc., 2020 WL 1821231, at *3 (N.D. Ind. Apr. 10,
2020) (defendant dealer not entitled to summary
judgment where dealer had seven attempts to address
the plaintiff’s complaint and RV was out of service for
at least 140 days); Castagna v. Newmar Corp., 2020
WL 525936, at *5 (N.D. Ind. Feb. 3, 2020) (“the
Seventh Circuit has held as a matter of law that even
‘two chances is not a reasonable opportunity to cure the
defects[.]’”) (quoting Mathews, 931 F.3d at 622).
App. 44
To reiterate, the Zylstras argue that their RV was
subject to six repair attempts and was out of service for
somewhere between 176 and 232 days. In their
Complaint, the Zylstras calculate the number of repair
attempts and the amount of time the RV was out of
service as follows:
• “The RV went into the factory warranty authorized
repair shop on April 29, 2017 for about 22 days[.]”
Complaint, ¶ 20.
• “The RV went into the DRV, LLC factory repair
shop on June 21, 2017 for about 2 days for repair
and replacement of the following defect: Damaged
roof.” Id., ¶ 21.
• “The RV went into the factory warranty authorized
repair shop on June 27, 2017 for about 51 days for
repair[.]” Id., ¶ 22.
• “The RV went into the factory warranty authorized
repair shop on September 11, 2017 for about 102
days for repair[.]” Id., ¶ 23.
• “The RV went into the factory warranty authorized
repair shop on January 26, 2018 for about 1 day for
repair of the following defect: Gaskets replaced.” Id.,
¶ 24.
By Plaintiffs’ calculations, then, the RV was in a repair
shop for some “176 days or more.” The Zylstras up the
ante in their brief in opposition to summary judgment
by insisting that they “presented the RV for repair
under DRV’s warranty a total of 6 times over a period
of 232 days[.]” Plaintiffs’ Brief in Opposition, p. 4
(italics added).
App. 45
DRV argues that both numbers–176 days and 232
days–are exaggerated and contradicted by the
evidence. DRV argues that the Zylstras’ calculations as
to the number of service visits and the duration of
those visits are misleading because they include in
those calculations visits that had nothing to do with
warranty repairs. DRV insists that “Plaintiffs attempt
to conflate the amount of time the RV was at dealers
with DRV’s performance under its warranty. . . . Only
the amount of time attributable to DRV for authorizing
and allowing warranty repairs would be relevant to a
discussion of whether DRV performed within a
‘reasonable amount of time.’” Defendant’s Reply, pp.
10-11.
DRV argues that the Zylstras’ calculation of the
number of days the RV was out of service “is fraught
with problems. The first of which is Plaintiffs’
contention that the RV was out of service for ‘232 days.’
It is unclear how this number is calculated[.] . . . But it
seems to include time completely unrelated to warranty
repairs such as: (1) the 52 days the RV was at the
selling dealer in storage in March and April 2017 so as
to allow the Plaintiffs time to purchase a truck capable
of towing it; and (2) the 21 days the RV was at Bradley
Bourbonnais when Plaintiffs dropped it off without an
appointment and no repairs were performed due to the
dispute between Plaintiffs and that dealer.” Id., p. 10.
DRV concludes that “[o]nly the amount of time
attributable to DRV for authorizing and allowing
warranty repairs would be relevant to a discussion of
whether DRV performed within a ‘reasonable amount
of time.’” Id., p. 11. Finally, while DRV acknowledges
that the Zylstras took the RV to Plaza RV on two
App. 46
occasions for repair work, the company argues that “the
evidence in this case demonstrates that the time the
RV spent at Plaza RV was not solely related to
warranty repairs and so it is inaccurate to count all
time at a dealer as being ‘out of service’ for warranty
repairs.” Id., p. 12. In short, DRV argues that the
Zylstras are fudging the numbers in order to support
their assertion that the RV was out of service for “232
days.”
DRV is correct–the Zylstras’ calculations do not hold
water. In support of their calculations, the Zylstras
present a written time line they prepared listing what
they contend were the number of times and duration
that the RV was serviced. Plaintiffs’ Response (ECF
No. 28-7). That time line includes periods of time when
the RV, while in the custody of either Bradley
Bourbonnais, Plaza RV or DRV, was not being serviced,
and which do not count as opportunities to repair.
The first of those, as DRV points out, is the 52 days
the RV was in the custody of Bradley Bourbonnais from
about March 6 until April 27. Id. The Zylstras include
this period of time when calculating the number of days
the RV was in for service. Id. But as DRV notes, this
52-day period was due to the fact that when the
Zylstras purchased the RV on March 6 they did not
have a truck capable of towing the RV, and Bradley
Bourbonnais stored it for them until they purchased a
truck. In his deposition, Bernard Zylstra testified as
follows:
Q: What was the game plan as far as delivery of
the RV?
App. 47
A: We did not have a vehicle to tow it at the
time, and we discussed with Jerry whether we
could store it there for a short period of
time . . . .
Q: At that point in time, March 6th, had you
already ordered a new truck?
A: No.
Q: And when did you actually take possession of
the RV?
A: I think it was the 27th of April. It was the
first time we took it off the lot.
Bernard Zylstra Depo. (ECF 23-1), pp. 31-32. Zylstra
also testified that during this period of time, he paid to
have Bradley Bourbonnais “install a satellite receiver
dish[]” but that was not a warranty matter. Id., p. 32.
Accordingly, this period of time did not constitute the
first “reasonable opportunity” for DRV or its authorized
dealer to make any warranty repairs and the Zylstras
wrongly include it in their calculation.3
3
This fact is also undisputed. In his deposition, Mr. Zylstra
testified as follows:
Q. And so prior to your pickup of the RV and ultimate delivery of
the RV, is it accurate that Bradley Bourbonnais was also
performing repairs to the vehicle to get it ready to deliver to you?
A. Well, we didn’t–we hadn’t produced any kind of a repair list.
The only thing that I do know of is they installed that satellite dish
receiver on the top. I don’t–I don’t know of anything that they
were doing in the time that it was stored over there with them
other than that.
App. 48
As to the April 29 visit, DRV notes that no
repairs–warranty or otherwise–were done to the RV
during this visit “[b]ecause of [a] difference of opinion
and because of a disagreement over the amount
Bradley Bourbonnais proposed to charge to repair the
damage [to the roof], no warranty repairs were ever
performed by Bradley Bourbonnais.” Defendant’s
Reply, p. 4 (boldface in original). Accordingly, that
22-day period did not involve any repair attempts and
cannot form the basis for any breach of warranty claim.
While the Zylstras had compiled their first list of
problems and presented that list to Bradley
Bourbonnais when they dropped off the RV on April 27,
the dispute about the roof damage–and Bradley
Bourbonnais’s high estimate for repairing it–resulted
in the Zylstras deciding to take the RV directly to the
DRV factory for repair of the roof and to address their
first list of warranty issues. Regarding this visit, Mr.
Zylstra testified as follows:
Q. . . . How did you [and Bradley Bourbonnais]
resolve the [roof] issue?
A. Well, it was resolved by–my insurance
company just went ahead and covered it through
comprehensive.
Q. Did you . . . discuss any of the other repairs
that needed to be completed on this List 1?
A. After we had decided to have the factory do
the roof repair/roof replacement, we had a little
discussion that didn’t go well.
Bernard Zylstra Depo. (ECF No. 23-1), p. 86.
App. 49
Q. Tell me about that discussion
A. I had informed [the Bradley Bourbonnais
representative] that the factory would be
replacing the roof. And he got a little annoyed
and said, “Well, they can just take care of the
rest of the problems.” And I said, “The last I
knew they didn’t have time. They just had it
scheduled for the roof.” And that was the last of
the discussion, basically.
Q. And was it your sense that he was upset
because he wasn’t making the money on the roof
replacement?
A. Yes, he was. Because he had quoted me twice
as much as the factory did.
Q. And so in between, though, you being
informed of that damage and that conversation
that didn’t go well, you had reached out to the
factory to have the repairs done at the factory?
A. Correct.
Id., pp. 47-48. It is undisputed, then, that after
receiving a high estimate to repair the roof, the
Zylstras decided to take the RV to DRV’s factory to
have the roof repaired and to have their first list of
alleged problems addressed by DRV. Since Bradley
Bourbonnais did not have an opportunity to repair the
warranty issues, due to the Zylstra’s decision to take
the RV to DRV, this visit cannot be the basis for any
breach of warranty claim.
App. 50
The Zylstras also include in their time line an
assertion that the RV was out of service for two days in
June of 2017 while the roof damage was repaired at
DRV. But while the Zylstras and Bradley Bourbonnais
had a difference of opinion about the cause of the roof
damage, it is undisputed that the damage was not
covered by the warranty, and so this work also did not
constitute an opportunity to repair warranty items.
After making arrangements in early May,
immediately following the disagreement with Bradley
Bourbonnais, to have the roof repaired at DRV’s
factory, the Zylstras delivered it to DRV on about June
21. At that time, the Zylstras learned–for the first time,
they assert–that they could take the RV to any
authorized DRV dealer to have the warranty items on
their first list repaired. The Zylstras decided to take
the RV to Plaza RV, an authorized dealer in Iowa that
was closer to the Zylstra’s home, to have their initial
list of warranty issues addressed. The RV remained at
Plaza RV from June 27 until August 16, and the
Zylstras count this period of time–approximately 50
days–as time the RV was “out of service” for warranty
repairs. However, as DRV points out, it is undisputed
that “[i]n addition to requesting the warranty repairs,
the Zylstras made arrangements for non-warranty
work to be performed by Plaza RV, including
installation of some after-market items.” Defendant’s
Memorandum, pp.4-5 (citations to record omitted).
Thus, not all of that time period was devoted solely to
warranty repairs. That fact notwithstanding, this visit
to Plaza RV from June to August was the first time the
Zylstras afforded an authorized repair shop to address
their first list of problems.
App. 51
The Zylstras also include in their time line the
period of time the RV was at Plaza RV from September
11, 2017, until December 21, 2017. The Zylstras insist
that this 102-day period was due to warranty repairs.
However, as DRV again correctly notes, the inclusion
of this entire period is problematic for two reasons:
first, because the work done by Plaza RV included not
only the repair (or attempted repair) of warranty items,
but also additional, non-warranty work requested by
the Zylstras, “including the installation of new entry
steps that were unrelated to any warranty issues.”
Defendant’s Memorandum, p. 5 (citing Bernard Zylstra
Depo., pp. 63-64). Also, it is undisputed that when the
Zylstras delivered the RV to Plaza RV on September
11, they understood that Plaza RV was very busy and
would have to keep the RV for a period of time in order
to complete the warranty work the Zylstras sought.
The Zylstras agreed, telling Plaza RV that they needed
the RV back in time for their scheduled trip to Texas in
December. Based on that understanding, the RV
remained at Plaza RV for about 102 days. Accordingly,
DRV correctly asserts that not all of that time is
properly included as time “out of service” in the
Zylstras’ calculations. The Zylstras “told Plaza RV they
needed the RV back for their trip to Texas (i.e., by the
first of the year).” Id., (citing Bernard Zylstra Depo.,
pp. 63-64). As DRV notes, “Plaza RV met this deadline
and the Zylstras picked up the RV on December 21,
2017.” Id., p. 6. So, not all of this time is properly
included in the Zylstra’s calculation of the amount of
time the RV was out of service. Still, this work at Plaza
RV did constitute a second opportunity to make
warranty repairs.
App. 52
It is also undisputed, as DRV points out, that the
Zylstras chose to hire a mobile repair technician to
clean and replace the valve seals on the “black tank”
while the Zylstras were on their trip to Texas in
January of 2018. DRV argues that “[t]he Plaintiffs
count this mobile technician repair as ‘warranty
service’ but the evidence indicates the Plaintiffs hired
the technician and paid him themselves. . . . There is
no evidence DRV approved this work under its
warranty. Mr. Zylstra’s affidavit indicates that DRV
later agreed to pay this bill but this contradicts his
earlier deposition testimony and ought not to be
considered.” Defendant’s Reply, p. 7, n. 6. The “black
tank” is the wastewater holding tank, essentially a
portable septic tank. While on their trip to Texas the
Zylstras discovered that the seals on the black tank
were leaking and causing a smell. They hired a mobile
RV technician to service the tank and Mr. Zylstra
spoke with a representative of DRV about the issue.
Mr. Zylstra testified about this issue, and how it was
addressed, in his deposition:
Q. And then you took your trip to Texas between
January 1 of ‘18 and March 7th of ‘18; correct?
A. Correct.
Q. And was it during this trip that you had the
mobile repair?
A. Yes.
Q. So walk me through the issues with the RV
that led to the mobile repair.
App. 53
A. We did a black tank and gray tank dump
about a week after we were there, and shortly
after that dump, I started to smell something
that I initially thought was maybe a dead rodent
in the unit. I had noticed when we did the dump
on the black tank, it had been leaking, because
I ended up with black tank–when I took the
stopper out to hook up the sewage pipe. That
went on for quite a while. Probably three weeks
or so. . . . [I] [c]alled around to several of the RV
dealers to try to find somebody who could work
on it, and they recommended this Gabriel
Maintenance that would actually come out to the
park and work on it there, which they did.
...
Q. So what did Gabriel do when they came out?
A. What he did was take the valve out, took the
seals that are in the valve, cleaned them up,
cleaned the valve up, had me go ahead and shut
the valve completely, and then he replaced the
valve between the two flanges.
Q. And did you pay Gabriel for that repair?
A. Yes.
Q. And did you seek reimbursement of that
payment from DRV?
A. I don’t believe we have.
Q. Did you ask for it, though?
App. 54
A. I don’t think so. Because the last
conversation I had with Greg Weldon [a DRV
representative], I don’t believe we talked about
reimbursement.
Bernard Zylstra Depo. (ECF No. 23-1), pp. 69-71. Mr.
Zylstra further testified as follows:
Q. And what did Gabriel tell you as far as
further work or repairs that would be needed
due to the black tank leak?
A. None.
Q. None. Did he tell you none or he just didn’t
say anything?
A. Just–well, he just didn’t say anything about
any further . . .
Q. And after those repairs, did you still have
any issues related to that black tank leak?
A. Not directly. Because we didn’t use the RV
after that.
...
Q. And so did you contact anyone about getting
the issues resolved?
A. Well, then, in the last conversation I had
before we came back from Texas with Greg
Weldon, we had discussed some alternatives
about repairs and so forth, and I just asked him
the question, “Can you guarantee that we can
get this thing cleaned up underneath and
whatever it takes to”–you know, “Is there some
App. 55
kind of a spray that we could use to make sure
that there wasn’t any biological problems?” or
whatever. And he said that they couldn’t
guarantee anything. That was basically my cue
that we got a bigger problem here.
Q. Did you tell Greg that when you were having
that conversation?
A. Yeah. I kind of–we kind of got into a
discussion about it, you know, if we can’t get this
cleaned up, you know, that’s a big problem.
Q. And what did Greg tell you?
A. Well, he kind of agreed. You know, there
wasn’t a whole lot he could–we could say. I
mean . . .
Q. At any point in time, did Greg indicate that
DRV wasn’t willing to attempt to address the
smell and the issues?
A. Not that I recall. Just that they couldn’t
guarantee anything that–as far as cleanup.
...
Q. And you took that as a cue and never–or did
you ever schedule any kind of repairs with DRV
or any dealer to try to address the smell issue or
the leak from the tank?
A. No. Because I was–I was looking around to
try to find some information on–you know, when
we–if you have a spill like that in your RV, what
App. 56
can be done about it? I don’t remember any
subsequent conversations with Greg.
Q. Outside of the work that we’ve talked about,
which is principally the two Plaza RV repairs
and the Gabriel mobile visit, did you have
anyone perform other maintenance on the RV
that’s not reflected on Exhibit 1?
A. Other than the factory, no.
Id., pp. 69-76. It is undisputed, then, that the only
repair or attempted repair of the black tank leak. Even
though Mr. Zylstra testified that he notified DRV about
the problem, he also conceded that the service by
Gabriel’s Maintenance was the only time a repair or
attempted repair was done on the black tank.
Finally, Mr. Zylstra testified as follows:
Q. And since February of 2018, when you were
talking on the phone with Greg, have you
presented the RV to DRV or any of DRV’s
authorized dealers for repairs?
A. No.
Q. And why haven’t you either previously or
now just taken the RV to get it fixed?
A. My wife and I were totally disgusted with the
outcome of all the attempts to repair this unit.
Because of that, we didn’t trust any of them
anymore to do the right thing.
Id., pp. 82-83. The Zylstras concede, then, that due to
their frustration and lack of faith that DRV or another
App. 57
authorized dealer could repair all the items the
Zylstras claimed were wrong with the RV, they did not
seek any additional service, i.e., did not provide DRV or
another authorized servicer with any other
opportunities to repair those items.
This Court echos the sentiment expressed by the
Seventh Circuit in Mathews when that Court stated
that it “sympathized with the Mathews plight; they
bought a lemon.” Mathews, 931 F.3d at 619. However,
like the Mathews, the Zylstras “have not shown that
[Defendant] failed to honor its warranties[.]” For that
reason, the Zylstras fail to establish an essential
element of their claims: that DRV had a reasonable
number of opportunities to address the issues and
failed to do so. And, again like the Mathews, the
Zylstra’s “remaining claims under the IDCSA and
Magnuson-Moss Warranty Act, which were based on
the same arguments, fail as well.” Mathews, 931 F.3d
at 623. Accordingly, DRV is entitled to summary
judgment.
Plaintiffs’ Motion to Strike.
The Zylstras argue in their motion to strike that
DRV, in its reply brief, included “three new arguments
and legal theories not contained in its initial brief[]”
and moves the Court to strike the portions of DRV’s
brief discussing those arguments or theories, or
“alternatively, grant Plaintiffs leave to submit a
sur-reply[.] Plaintiffs’ Motion to Strike (ECF No. 35),
pp. 1-2. Specifically, the Zylstras contend that DRV
“raised the following three (3) new arguments and legal
theories regarding: (1) the application of agency law to
the issue of ‘reasonable time’ for repairs, (2) the
App. 58
appropriate choice of law analysis to be applied to
Plaintiffs’ breach of implied warranty claim, and (3) the
viability of Plaintiffs’ IDCSA claim.” Id., pp. 2-3. The
Court does not agree with the Zylstra’s contention that
DRV’s arguments are truly “new” and presented for the
first time in DRV’s reply, with the arguable exception
of the discussion of agency law, which did not factor
into the Court’s analysis. In the end, though, the
motion to strike is moot, since none of the allegedly
new arguments or theories the Zylstras challenge had
any affect on the Court’s analysis or conclusion.
Accordingly, the motion to strike is denied as moot.
CONCLUSION
For the reasons set forth above, the motion for
summary judgment filed by Defendant DRV, LLC is
GRANTED and the motion to strike filed by Plaintiffs
is DENIED AS MOOT.
Date: May 18, 2020.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana
App. 59
APPENDIX C
UNITED STATES DISTRICT COURT
for the
Northern District of Indiana
Civil Action No. 1:18-cv-00266
[Filed May 18, 2020]
____________________________________
BEVERLY ZYLSTRA,
)
BERNARD ZYLSTRA,
)
)
Plaintiffs,
)
)
v.
)
)
DRV, LLC,
)
Defendant
)
____________________________________)
JUDGMENT IN A CIVIL ACTION
The court has ordered that (check one):
___ the plaintiff _____________________________ recover
from the defendant ____________________ the amount
of dollars $_______, which includes prejudgment
interest at the rate of _____% plus post-judgment
interest at the rate of _____% along with costs.
___ the plaintiff recover nothing, the action is
dismissed on the merits, and the defendant recover
costs from the plaintiff _____________________________.
App. 60
X Other: Judgment ENTERED in favor of Defendant,
DRV, LLC, and against Plaintiffs, Beverly Zylstra and
Bernard Zylstra.
This action was (check one):
___ tried to a jury with Judge ________________
presiding, and the jury has rendered a verdict.
___ tried by Judge ________________ without a jury and
the above decision was reached.
X decided by Judge William C. Lee on a Motion for
Summary Judgment by Defendant.
DATE: May 18, 2020
ROBERT N. TRGOVICH,
CLERK OF COURT
By: s/ L. Higgins-Conrad
Signature of Deputy Clerk
App. 61
APPENDIX D
RELEVANT PORTIONS OF THE
MAGNUSON-MOSS WARRANTY ACT
15 U.S. CODE
15 USCS § 2301
Definitions
For the purposes of this title [15 USCS §§ 2301 et
seq.]:
(1) The term “consumer product” means any tangible
personal property which is distributed in commerce and
which is normally used for personal, family, or
household purposes (including any such property
intended to be attached to or installed in any real
property without regard to whether it is so attached or
installed).
(2) The term “Commission” means the Federal Trade
Commission.
(3) The term “consumer” means a buyer (other than for
purposes of resale) of any consumer product, any
person to whom such product is transferred during the
duration of an implied or written warranty (or service
contract) applicable to the product, and any other
person who is entitled by the terms of such warranty
(or service contract) or under applicable State law to
enforce against the warrantor (or service contractor)
the obligations of the warranty (or service contract).
App. 62
(4) The term “supplier” means any person engaged in
the business of making a consumer product directly or
indirectly available to consumers.
(5) The term “warrantor” means any supplier or other
person who gives or offers to give a written warranty or
who is or may be obligated under an implied warranty.
(6) The term “written warranty” means—
(A) any written affirmation of fact or written
promise made in connection with the sale of a
consumer product by a supplier to a buyer which
relates to the nature of the material or
workmanship and affirms or promises that such
material or workmanship is defect free or will meet
a specified level of performance over a specified
period of time, or
(B) any undertaking in writing in connection with
the sale by a supplier of a consumer product to
refund, repair, replace, or take other remedial
action with respect to such product in the event that
such product fails to meet the specifications set
forth in the undertaking,
which written affirmation, promise, or
undertaking becomes part of the basis of the
bargain between a supplier and a buyer for
purposes other than resale of such product.
(7) The term “implied warranty” means an implied
warranty arising under State law (as modified by
sections 108 and 104(a)) [15 USCS §§ 2308 and
2304(a)] in connection with the sale by a supplier of a
consumer product.
App. 63
(8) The term “service contract” means a contract in
writing to perform, over a fixed period of time or for a
specified duration, services relating to the maintenance
or repair (or both) of a consumer product.
(9) The term “reasonable and necessary maintenance”
consists of those operations (A) which the consumer
reasonably can be expected to perform or have
performed and (B) which are necessary to keep any
consumer product performing its intended function and
operating at a reasonable level of performance.
(10) The term “remedy” means whichever of the
following actions the warrantor elects:
(A) repair,
(B) replacement, or
(C) refund;
except that the warrantor may not elect refund
unless (i) the warrantor is unable to provide
replacement and repair is not commercially
practicable or cannot be timely made, or (ii) the
consumer is willing to accept such refund.
(11) The term “replacement” means furnishing a new
consumer product which is identical or reasonably
equivalent to the warranted consumer product.
(12) The term “refund” means refunding the actual
purchase price (less reasonable depreciation based on
actual use where permitted by rules of the
Commission).
App. 64
(13) The term “distributed in commerce” means sold in
commerce, introduced or delivered for introduction into
commerce, or held for sale or distribution after
introduction into commerce.
(14) The term “commerce” means trade, traffic,
commerce, or transportation—
(A) between a place in a State and any place
outside thereof, or
(B) which affects trade, traffic, commerce, or
transportation described in subparagraph (A).
(15) The term “State” means a State, the District of
Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, the Canal Zone, or American
Samoa. The term “State law” includes a law of the
United States applicable only to the District of
Columbia or only to a territory or possession of the
United States, and the term “Federal law” excludes any
State law.
15 USCS § 2302
Rules governing contents of warranties
(a) FULL AND CONSPICUOUS DISCLOSURE OF TERMS
AND CONDITIONS; ADDITIONAL REQUIREMENTS FOR
CONTENTS.
In order to improve the adequacy of information
available to consumers, prevent deception, and
improve competition in the marketing of consumer
products, any warrantor warranting a consumer
product to a consumer by means of a written
warranty shall, to the extent required by rules of
App. 65
the Commission, fully and conspicuously disclose in
simple and readily understood language the terms
and conditions of such warranty. Such rules may
require inclusion in the written warranty of any of
the following items among others:
(1) The clear identification of the names and
addresses of the warrantors.
(2) The identity of the party or parties to whom the
warranty is extended.
(3) The products or parts covered.
(4) A statement of what the warrantor will do in the
event of a defect, malfunction, or failure to conform
with such written warranty—at whose
expense—and for what period of time.
(5) A statement of what the consumer must do and
expenses he must bear.
(6) Exceptions and exclusions from the terms of the
warranty.
(7) The step-by-step procedure which the consumer
should take in order to obtain performance of any
obligation under the warranty, including the
identification of any person or class of persons
authorized to perform the obligations set forth in
the warranty.
(8) Information respecting the availability of any
informal dispute settlement procedure offered by
the warrantor and a recital, where the warranty so
provides, that the purchaser may be required to
App. 66
resort to such procedure before pursuing any legal
remedies in the courts.
(9) A brief, general description of the legal remedies
available to the consumer.
(10) The time at which the warrantor will perform
any obligations under the warranty.
(11) The period of time within which, after notice of
a defect, malfunction, or failure to conform with the
warranty, the warrantor will perform any
obligations under the warranty.
(12) The characteristics or properties of the
products, or parts thereof, that are not covered by
the warranty.
(13) The elements of the warranty in words or
phrases which would not mislead a reasonable,
average consumer as to the nature or scope of the
warranty.
(b) AVAILABILITY OF TERMS TO CONSUMER; MANNER
AND FORM FOR PRESENTATION AND DISPLAY OF
INFORMATION; DURATION; EXTENSION OF PERIOD FOR
WRITTEN WARRANTY OR SERVICE CONTRACT.
(1)
(A) The Commission shall prescribe rules
requiring that the terms of any written
warranty on a consumer product be made
available to the consumer (or prospective
consumer) prior to the sale of the product to him.
App. 67
(B) The Commission may prescribe rules for
determining the manner and form in which
information with respect to any written
warranty of a consumer product shall be clearly
and conspicuously presented or displayed so as
not to mislead the reasonable, average
consumer, when such information is contained
in advertising, labeling, point-of-sale material,
or other representations in writing.
(2) Nothing in this title [15 USCS §§ 2301 et seq.]
(other than paragraph (3) of this subsection) shall
be deemed to authorize the Commission to prescribe
the duration of written warranties given or to
require that a consumer product or any of its
components be warranted.
(3) The Commission may prescribe rules for
extending the period of time a written warranty or
service contract is in effect to correspond with any
period of time in excess of a reasonable period (not
less than 10 days) during which the consumer is
deprived of the use of such consumer product by
reason of failure of the product to conform with the
written warranty or by reason of the failure of the
warrantor (or service contractor) to carry out such
warranty (or service contract) within the period
specified in the warranty (or service contract).
(4)
(A) Except as provided in subparagraph (B), the
rules prescribed under this subsection shall
allow for the satisfaction of all requirements
concerning the availability of terms of a written
App. 68
warranty on a consumer product under this
subsection by—
(i) making available such terms in an
accessible digital format on the Internet
website of the manufacturer of the consumer
product in a clear and conspicuous manner;
and
(ii) providing to the consumer (or prospective
consumer) information with respect to how to
obtain and review such terms by indicating
on the product or product packaging or in the
product manual—
(I) the Internet website of the
manufacturer where such terms can be
obtained and reviewed; and
(II) the phone number of the
manufacturer, the postal mailing address
of the manufacturer, or another
reasonable non-Internet based means of
contacting the manufacturer to obtain
and review such terms.
(B) With respect to any requirement that the
terms of any written warranty for a consumer
product be made available to the consumer (or
prospective consumer) prior to sale of the
product, in a case in which a consumer product
is offered for sale in a retail location, by catalog,
or through door-to-door sales, subparagraph (A)
shall only apply if the seller makes available,
through electronic or other means, at the
location of the sale to the consumer purchasing
App. 69
the consumer product the terms of the warranty
for the consumer product before the purchase.
(c) PROHIBITION ON CONDITIONS FOR WRITTEN OR
IMPLIED WARRANTY; WAIVER BY COMMISSION.
No warrantor of a consumer product may condition
his written or implied warranty of such product on
the consumer’s using, in connection with such
product, any article or service (other than article or
service provided without charge under the terms of
the warranty) which is identified by brand, trade, or
corporate name; except that the prohibition of this
subsection may be waived by the Commission if—
(1) the warrantor satisfies the Commission that the
warranted product will function properly only if the
article or service so identified is used in connection
with the warranted product, and
(2) the Commission finds that such a waiver is in
the public interest.
The Commission shall identify in the Federal
Register, and permit public comment on, all
applications for waiver of the prohibition of this
subsection, and shall publish in the Federal
Register its disposition of any such application,
including the reasons therefor.
(d) INCORPORATION BY REFERENCE OF DETAILED
SUBSTANTIVE WARRANTY PROVISIONS.
The Commission may by rule devise detailed
substantive warranty provisions which warrantors may
incorporate by reference in their warranties.
App. 70
(e) APPLICABILITY TO CONSUMER PRODUCTS COSTING
MORE THAN $5.00.
The provisions of this section apply only to warranties
which pertain to consumer products actually costing
the consumer more than $5.
***
15 USCS § 2310
Remedies in consumer disputes
(a) INFORMAL DISPUTE SETTLEMENT PROCEDURES;
ESTABLISHMENT; RULES SETTING FORTH MINIMUM
REQUIREMENTS; EFFECT OF C OMPLIANCE BY
WARRANTOR; REVIEW OF INFORMAL PROCEDURES OR
IMPLEMENTATION BY COMMISSION; APPLICATION TO
EXISTING INFORMAL PROCEDURES.
(1) Congress hereby declares it to be its policy to
encourage warrantors to establish procedures
whereby consumer disputes are fairly and
expeditiously settled through informal dispute
settlement mechanisms.
(2) The Commission shall prescribe rules setting
forth minimum requirements for any informal
dispute settlement procedure which is incorporated
into the terms of a written warranty to which any
provision of this title [15 USCS §§ 2301 et seq.]
applies. Such rules shall provide for participation in
such procedure by independent or governmental
entities.
(3) One or more warrantors may establish an
informal dispute settlement procedure which meets
App. 71
the requirements of the Commission’s rules under
paragraph (2). If—
(A) a warrantor establishes such a procedure,
(B) such procedure, and its implementation,
meets the requirements of such rules, and
(C) he incorporates in a written warranty a
requirement that the consumer resort to such
procedure before pursuing any legal remedy
under this section respecting such warranty,
then (i) the consumer may not commence a
civil action (other than a class action) under
subsection (d) of this section unless he
initially resorts to such procedure; and (ii) a
class of consumers may not proceed in a class
action under subsection (d) except to the
extent the court determines necessary to
establish the representative capacity of the
named plaintiffs, unless the named plaintiffs
(upon notifying the defendant that they are
named plaintiffs in a class action with
respect to a warranty obligation) initially
resort to such procedure. In the case of such
a class action which is brought in a district
court of the United States, the representative
capacity of the named plaintiffs shall be
established in the application of rule 23 of
the Federal Rules of Civil Procedure [USCS
Federal Rules of Civil Procedure, Rule 23]. In
any civil action arising out of a warranty
obligation and relating to a matter
considered in such a procedure, any decision
App. 72
in such procedure shall be admissible in
evidence.
(4) The Commission on its own initiative may, or
upon written complaint filed by any interested
person shall, review the bona fide operation of any
dispute settlement procedure resort to which is
stated in a written warranty to be a prerequisite to
pursuing a legal remedy under this section. If the
Commission finds that such procedure or its
implementation fails to comply with the
requirements of the rules under paragraph (2), the
Commission may take appropriate remedial action
under any authority it may have under this title [15
USCS §§ 2301 et seq.] or any other provision of law.
(5) Until rules under paragraph (2) take effect, this
subsection shall not affect the validity of any
informal dispute settlement procedure respecting
consumer warranties, but in any action under
subsection (d), the court may invalidate any such
procedure if it finds that such procedure is unfair.
(b) PROHIBITED ACTS.
It shall be a violation of section 5(a)(1) of the Federal
Trade Commission Act (15 U.S.C. 45(a)(1)) for any
person to fail to comply with any requirement imposed
on such person by this title [15 USCS §§ 2301 et seq.]
(or a rule thereunder) or to violate any prohibition
contained in this title [15 USCS §§ 2301 et seq.] (or a
rule thereunder).
App. 73
(c) INJUNCTION PROCEEDINGS BY ATTORNEY
G ENERAL OR C OMMISSION FOR D ECEPTIVE
WARRANTY, NONCOMPLIANCE WITH REQUIREMENTS,
OR V IOLATING P ROHIBITIONS ; P ROCEDURES;
DEFINITIONS.
(1) The district courts of the United States shall
have jurisdiction of any action brought by the
Attorney General (in his capacity as such), or by the
Commission by any of its attorneys designated by it
for such purpose, to restrain (A) any warrantor from
making a deceptive warranty with respect to a
consumer product, or (B) any person from failing to
comply with any requirement imposed on such
person by or pursuant to this title [15 USCS §§ 2301
et seq.] or from violating any prohibition contained
in this title [15 USCS USCS §§ 2301 et seq.]. Upon
proper showing that, weighing the equities and
considering the Commission’s or Attorney General’s
likelihood of ultimate success, such action would be
in the public interest and after notice to the
defendant, a temporary restraining order or
preliminary injunction may be granted without
bond. In the case of an action brought by the
Commission, if a complaint under section 5 of the
Federal Trade Commission Act [15 USCS § 45] is
not filed within such period (not exceeding 10 days)
as may be specified by the court after the issuance
of the temporary restraining order or preliminary
injunction, the order or injunction shall be dissolved
by the court and be of no further force and effect.
Any suit shall be brought in the district in which
such person resides or transacts business.
Whenever it appears to the court that the ends of
App. 74
justice require that other persons should be parties
in the action, the court may cause them to be
summoned whether or not they reside in the district
in which the court is held, and to that end process
may be served in any district.
(2) For the purposes of this subsection, the term
“deceptive warranty” means (A) a written warranty
which (i) contains an affirmation, promise,
description, or representation which is either false
or fraudulent, or which, in light of all of the
circumstances, would mislead a reasonable
individual exercising due care; or (ii) fails to contain
information which is necessary in light of all of the
circumstances, to make the warranty not
misleading to a reasonable individual exercising
due care; or (B) a written warranty created by the
use of such terms as “guaranty” or “warranty”, if the
terms and conditions of such warranty so limit its
scope and application as to deceive a reasonable
individual.
(d) CIVIL ACTION BY CONSUMER FOR DAMAGES, ETC.;
JURISDICTION; RECOVERY OF COSTS AND EXPENSES;
COGNIZABLE CLAIMS.
(1) Subject to subsections (a)(3) and (e), a consumer
who is damaged by the failure of a supplier,
warrantor, or service contractor to comply with any
obligation under this title [15 USCS §§ 2301 et
seq.], or under a written warranty, implied
warranty, or service contract, may bring suit for
damages and other legal and equitable relief—
App. 75
(A) in any court of competent jurisdiction in any
State or the District of Columbia; or
(B) in an appropriate district court of the United
States, subject to paragraph (3) of this
subsection.
(2) If a consumer finally prevails in any action
brought under paragraph (1) of this subsection, he
may be allowed by the court to recover as part of the
judgment a sum equal to the aggregate amount of
cost and expenses (including attorneys’ fees based
on actual time expended) determined by the court to
have been reasonably incurred by the plaintiff for or
in connection with the commencement and
prosecution of such action, unless the court in its
discretion shall determine that such an award of
attorneys’ fees would be inappropriate.
(3) No claim shall be cognizable in a suit brought
under paragraph (1)(B) of this subsection—
(A) if the amount in controversy of any
individual claim is less than the sum or value of
$25;
(B) if the amount in controversy is less than the
sum or value of $50,000 (exclusive of interests
and costs) computed on the basis of all claims to
be determined in this suit; or
(C) if the action is brought as a class action, and
the number of named plaintiffs is less than one
hundred.
App. 76
(e) CLASS ACTIONS; CONDITIONS; PROCEDURES
APPLICABLE.
No action (other than a class action or an action
respecting a warranty to which subsection (a)(3)
applies) may be brought under subsection (d) for failure
to comply with any obligation under any written or
implied warranty or service contract, and a class of
consumers may not proceed in a class action under
such subsection with respect to such a failure except to
the extent the court determines necessary to establish
the representative capacity of the named plaintiffs,
unless the person obligated under the warranty or
service contract is afforded a reasonable opportunity to
cure such failure to comply. In the case of such a class
action (other than a class action respecting a warranty
to which subsection (a)(3) applies) brought under
subsection (d) for breach of any written or implied
warranty or service contract, such reasonable
opportunity will be afforded by the named plaintiffs
and they shall at that time notify the defendant that
they are acting on behalf of the class. In the case of
such a class action which is brought in a district court
of the United States, the representative capacity of the
named plaintiffs shall be established in the application
of rule 23 of the Federal Rules of Civil Procedure
[USCS Court Rules, Federal Rules of Civil Procedure,
Rule 23].
(f) WARRANTORS SUBJECT TO ENFORCEMENT OF
REMEDIES.
For purposes of this section, only the warrantor
actually making a written affirmation of fact, promise,
or undertaking shall be deemed to have created a
written warranty, and any rights arising thereunder
App. 77
may be enforced under this section only against such
warrantor and no other person.
15 USCS § 2311
Applicability to other laws
(a) FEDERAL TRADE COMMISSION ACT AND FEDERAL
SEED ACT.
(1) Nothing contained in this title [15 USCS
§§ 2301 et seq.] shall be construed to repeal,
invalidate, or supersede the Federal Trade
Commission Act (15 U.S.C. §§ 41 et seq.) or any
statute defined therein as an Antitrust Act.
(2) Nothing in this title [15 USCS §§ 2301 et seq.]
shall be construed to repeal, invalidate, or
supersede the Federal Seed Act (7 U.S.C.
1551–1611) and nothing in this title [15 USCS
§§ 2301 et seq.] shall apply to seed for planting.
(b) RIGHTS, REMEDIES, AND LIABILITIES.
(1) Nothing in this title [15 USCS §§ 2301 et seq.]
shall invalidate or restrict any right or remedy of
any consumer under State law or any other Federal
law.
(2) Nothing in this title [15 USCS §§ 2301 et seq.]
(other than sections 108 and 104(a)(2) and (4) [15
USCS §§ 2308 and 2304(a)(2) and (4)]) shall (A)
affect the liability of, or impose liability on, any
person for personal injury, or (B) supersede any
provision of State law regarding consequential
damages for injury to the person or other injury.
App. 78
(c) STATE WARRANTY LAWS.
(1) Except as provided in subsection (b) and in
paragraph (2) of this subsection, a State
requirement—
(A) which relates to labeling or disclosure with
respect to written warranties or performance
thereunder;
(B) which is within the scope of an applicable
requirement of sections 102, 103, and 104 [15
USCS §§ 2302, 2303, and 2304] (and rules
implementing such sections), and
(C) which is not identical to a requirement of
section 102, 103, or 104 [15 USCS § 2302, 2303, or
2304] (or a rule thereunder),
shall not be applicable to written warranties
complying with such sections (or rules
thereunder).
(2) If, upon application of an appropriate State
agency, the Commission determines (pursuant to
rules issued in accordance with section 109 [15
USCS § 2309]) that any requirement of such State
covering any transaction to which this title [15
USCS §§ 2301 et seq.] applies (A) affords protection
to consumers greater than the requirements of this
title [15 USCS §§ 2301 et seq.] and (B) does not
unduly burden interstate commerce, then such
State requirement shall be applicable
(notwithstanding the provisions of paragraph (1) of
this subsection) to the extent specified in such
determination for so long as the State administers
App. 79
and enforces
requirement.
effectively
any
such
greater
(d) OTHER FEDERAL WARRANTY LAWS.
This title [15 USCS §§ 2301 et seq.] (other than section
102(c)) [15 USCS § 2302(c)] shall be inapplicable to any
written warranty the making or content of which is
otherwise governed by Federal law. If only a portion of
a written warranty is so governed by Federal law, the
remaining portion shall be subject to this title [15
USCS §§ 2301 et seq.].
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.