Breniser et al v. Western Recreational Vehicles, Inc., No. 3:2007cv01418 - Document 36 (D. Or. 2009)
Court Description: Opinion & Order. Plaintiff's Supplemental Motion for Summary Judgment 33 is Denied. Signed on January 14, 2009 by Magistrate Judge Dennis J. Hubel. (hubel2, )
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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 12 13 14 15 16 JERRY BRENISER and GALE THURBER, ) ) ) Plaintiffs, ) ) v. ) ) WESTERN RECREATIONAL VEHICLES,) INC., a foreign corporation, ) ) Defendant. ) ) No. CV-07-1418-HU OPINION & ORDER 17 19 Justin M. Baxter BAXTER & BAXTER LLP 8835 S.W. Canyon Lane, Suite 130 Portland, Oregon 97225 20 Attorney for Plaintiffs 18 21 HUBEL, Magistrate Judge: 22 Plaintiffs Jerry Breniser and Gale Thurber bring this action 23 against defendant Western Recreational Vehicles, Inc., regarding an 24 allegedly defective fifth-wheel trailer plaintiffs purchased in 25 August 2005. 26 under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 - 2312 27 (MMWA). 28 Plaintiffs bring a single breach of warranty claim Both parties have consented to entry of final judgment by a 1 - OPINION & ORDER 1 Magistrate Judge in accordance with Federal Rule of Civil Procedure 2 73 and 28 U.S.C. § 636(c). 3 I deny the motion. Plaintiffs move for summary judgment. 4 BACKGROUND 5 The background is fully set forth in my December 12, 2008 6 Opinion & Order. There, I denied plaintiffs' initial motion for 7 summary because, 8 plaintiffs had failed to establish that they were entitled to 9 judgment as a matter of law on the summary judgment record they had 10 judgment although the motion was unopposed, created. I allowed plaintiffs to file a supplemental motion1 addressing 11 12 three deficiencies: 13 Recreational Vehicle in Delaware ("WRV-Delaware") had assumed the 14 obligations 15 Vehicle in Washington ("WRV-Washington") in a December 2006 Asset 16 Purchase Agreement between WRV-Delaware and WRV-Washington; (2) 17 citation to appropriate state law establishing that plaintiffs are 18 entitled to the remedies they seek; and (3) documentation and more 19 detailed 20 plaintiffs. 21 22 of plaintiffs' explanation 25 of warranty the from amounts of Western damages Recreational claimed I rely on the summary judgment standards and law regarding the MMWA recited in the December 12, 2008 Opinion. DISCUSSION I. Asset Purchase Agreement As seen from reviewing the December 12, 2008 Opinion and 26 27 28 by I address these areas in turn. 23 24 (1) evidence showing that defendant Western 1 Although instructed to file a supplemental motion, plaintiffs filed a supplemental memorandum (dkt #33), which I construe as a motion. 2 - OPINION & ORDER 1 Order, under the Asset Purchase Agreement, WRV-Delaware assumed 2 liability for the warranty at issue in this case if the liability 3 arises from product defects to products sold on or prior to the 4 closing date of the Asset Purchase Agreement, unless the liability 5 was the subject of a "'claim, action, suit, charge, complaint, 6 material grievance, hearing, investigation or other proceeding 7 (including any arbitration proceedings) . . . and is threatened or 8 pending against the Shareholders or the Company as of the Closing 9 date[.]'" Dec. 12, 2008 Op. at p. 12 (quoting Exh. 1 to Baxter 10 Declr. at Art. VII). 11 such a claim, action, complaint, etc., the liability was still 12 assumed by WRV-Delaware if it was set forth on Schedule 4.10 of the 13 Asset Purchase Agreement. 14 As stated in Finally, even if the liability was subject to the Id. December 12, 2008 Opinion, the record 15 establishes that the fifth-wheel trailer was sold before the 16 closing date of the agreement. 17 that given the broad recitation in the agreement of words such as 18 "claim, action, suit, charge, complaint," and the like, plaintiffs' 19 repeated complaints, requests to obtain a refund, contact of the 20 Oregon Attorney General for assistance, and threats to "follow 21 other 22 qualifying under the agreement as being an excluded liability. 23 Thus, to be an assumed liability, the liability under the warranty 24 at issue here must have been listed on Schedule 4.10. avenues," including My review of the record also shows contacting a lawyer, are actions 25 In the supplemental materials, plaintiffs state that defendant 26 failed to produce Schedule 4.10 in response to plaintiffs' request. 27 I addressed the issue of defendant's production of documents 28 regarding WRV-Washington's purchase by WRV-Delaware in a May 27, 3 - OPINION & ORDER 1 2008 hearing. At that time, I ordered defendant to produce to 2 plaintiff's counsel "a copy of the entire contract for the sale of 3 Western Recreational Vehicles to its current owners from its 4 predecessor," no later than June 3, 2008. Dkt #20. 5 Although plaintiffs had not, before the May 27, 2008 hearing, 6 filed a motion to compel production of the sale documents, I 7 construed their production request at the May 27, 2008 hearing as 8 a 9 37(a)(3)(B)(iv). motion to compel under Federal Rule of Civil Procedure Under Rule 37(b)(2)(A), defendant's failure to 10 obey my May 27, 2008 Order that "a copy of the entire contract for 11 the sale" be produced, allows the court to find as a sanction 12 either (1) that plaintiffs have established that the liability of 13 the warranty at issue was assumed by virtue of its presence on 14 Schedule 4.10, or (2) that defendant is prohibited from denying 15 that the warranty liability is not an assumed liability. 16 Civ. P. 37(b)(2)(A)(I), (ii). 17 Delaware assumed the liability of the warranty at issue under the 18 Asset Purchase Agreement with WRV-Washington. 19 II. 20 Fed. R. Accordingly, I conclude that WRV- State Law Remedies As explained in the December 12, 2008 Opinion, this was a 21 limited warranty, not a full warranty under the MMWA. 22 2008 Op. at pp. 9, 15. 23 under state law, not the MMWA. 24 DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (when no 25 allegation that manufacturer otherwise failed to comply with MMWA, 26 federal MMWA warranty claims hinged on state warranty law) (citing 27 Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004) 28 (MMWA allows consumers to enforce written warranties in federal 4 - OPINION & ORDER Dec. 12, As such, plaintiffs' remedies are provided Id. at p. 15; see also Clemens v. 1 court, borrowing state law causes of action)), DeShazer v. National 2 RV Holdings, Inc., 391 F. Supp. 2d 791, 794 (D. Ariz. 2005) ("while 3 MMWA 4 warranties and creates a private cause of action for breach of a 5 warranty, state warranty law lies at the bsae of all warranty 6 claims under [the MMWA]") (internal quotation omitted). 7 creates additional Plaintiffs, requirements however, in their for consumer original protection summary judgment 8 motion, failed to cite to or discuss any Oregon law regarding 9 remedies for breach of warranty. 10 Id. at pp. 15-16. I ordered plaintiffs to address the issue in the supplemental motion. 11 In the supplemental materials, plaintiffs cite to Oregon 12 Revised Statutes §§ (O.R.S.) 72.8010 - 72.8200, governing the sale 13 of consumer goods. 14 trailer is a consumer good. 15 79.0102). 16 Plaintiffs I agree with plaintiff that the fifth-wheel then cite O.R.S. 72.8010(1) (citing O.R.S. to O.R.S. 72.8130, which provides 17 remedies for a manufacturer's breach of express warranty when the 18 manufacturer does not provide a service or repair facility within 19 the state. 20 service and repair facility was in the State of Washington, not 21 Oregon. The record in the case demonstrates that defendant's Thus, plaintiffs correctly cite to O.R.S. 72.8130. 22 However, this statute does not provide a remedy to plaintiffs, 23 because it makes the manufacturer liable only to a retail seller 24 who has incurred obligations in giving effect to the express 25 warranty. 26 which gives the buyer of the consumer good a remedy directly as to 27 the manufacturer. 28 O.R.S. 72.8130. There is nothing in O.R.S. 72.8130 O.R.S. 72.8130 should be read in conjunction with O.R.S. 5 - OPINION & ORDER 1 72.8110, which states that if the manufacturer expressly warranting 2 a good does not provide service and repair facilities within the 3 state, the buyer may return the good to the retail seller for 4 replacement or for service and repair in conformance with the 5 express terms of the warranty. 6 seller does not effect sufficient service or repair, and does not 7 replace the defective good, the retail seller shall reimburse the 8 buyer in an amount equal to the purchase price paid, less a 9 reasonable charge for beneficial use by the buyer. the statutes breaches 12 manufacturer does not maintain an in-state service and repair 13 facility, the buyer's remedy is against the retailer under O.R.S. 14 72.8110, and the retailer may then pursue its remedies as to the 15 manufacturer under O.R.S. 72.8130. on a when consumer a Read 11 warranty that Id. together, express suggest If the retail 10 an two O.R.S. 72.8110(1). manufacturer good, and the 16 While O.R.S. 72.8190 makes clear that the remedies under the 17 statutes governing the sale of consumer goods are cumulative to any 18 other remedy provided by O.R.S. Chapter 72, plaintiffs fail to 19 identify any other statute under which they may obtain remedies for 20 the breach of an express warranty directly from the manufacturer as 21 opposed to the seller of the good. 22 (governing a buyer's remedies for seller's breach); O.R.S. 72.7150 23 (governing 24 seller's breach). buyer's incidental and See, e.g., O.R.S. 72.7140 consequential damages for 25 A seller is defined as a person who sells or contracts to sell 26 goods. O.R.S. 72.1030(1)(e). "A 'sale' consists in the passing of 27 title 28 72.1060(1). from the seller to the buyer for a price." O.R.S. Under these definitions, the retail seller of the 6 - OPINION & ORDER 1 fifth-wheel trailer, Highway Trailer Sales in Salem, is, on the 2 present record, the seller and thus, the Oregon commercial code 3 remedy for the buyer of nonconforming goods is unavailable to 4 plaintiffs in this case where they have sued only the manufacturer. 5 E.g., Clark v. Ford Motor Co., 46 Or. App. 521, 526-27, 612 P.2d 6 316, 7 governing revocation of acceptance by the buyer, because the 8 statute allows buyer to revoke acceptance only as to his seller and 9 under Oregon commercial code definition of seller as "a person who 10 sells or contracts to sell goods," manufacturer of car did not sell 11 or contract to sell to plaintiff). In sum, the remedies plaintiffs 12 identify as being against the manufacturer do not apply under the 13 specific wording of the Oregon statutes. Plaintiffs have failed to 14 explain what Oregon-based remedy they are entitled to for the MMWA 15 claim of the breach of the limited warranty. 16 III. 319 (1980) (plaintiff could not invoke O.R.S. 72.6080 Evidence of Damages 17 In 18 $88,623.68. 19 5. 20 Declaration. 21 information: 22 23 24 25 their original motion, plaintiffs sought damages of Pltfs' Mem. at p. 4; Pltfs' Concise Stmt of Fact at ¶ These damages were itemized in Breniser's September 23, 2008 There, he provided the following list, but no other $15,000 $1350 $1280.18 $69,976.82 $269.48 $618.20 $129 $88,623.68 -Trade -Down Payment -Monthly Payments -Payoff Balance -Tires -Storage -Dehumidifier -Total 26 Sept. 23, 2008 Breniser Declr. at ¶ 6. 27 In the December 12, 2008 Opinion, I noted that the record 28 7 - OPINION & ORDER 1 failed to explain exactly what these damages were and why or how 2 they were recoverable. Dec. 12, 2008 Op. at p. 16. 3 The supplemental materials filed by plaintiffs include a 4 Declaration of Gale Thurber which attaches documentation in the 5 form of letters, canceled checks, and receipts, to support the 6 actual damages claimed. 7 Retail Installment Contract showing plaintiffs as the buyer and 8 Highway Trailer Sales as the creditor/seller, in the purchase of 9 the fifth-wheel by plaintiffs. Exhibit 2 is a copy of part of the initial Exh. 2 to Thurber Declr. It is 10 dated August 26, 2005, and shows the original cash sale price of 11 $85,333.69. 12 and a credit of $15,000 for the trade-in of a 1996 camper. 13 Thus, the unpaid balance of the cash price at the time of sale was 14 $68,983.69. Id. It also reflects a cash down-payment of $1,350 Id. Id. 15 Exhibit 2 supports plaintiffs' assertion that they put $1,350 16 cash down at the time of sale, and were credited $15,000 for the 17 trade-in. 18 Breniser's stated $69,976.82 as the payoff balance. 19 the approximate $993 discrepancy is unclear. 20 The unpaid balance of $68,983.69 differs somewhat from Exhibit 1 is from, a copy to an October Thurber, 11, 2005 Citizen's letter to 21 plaintiffs 22 Finance, Inc., informing them that they have paid off the loan for 23 the fifth-wheel trailer in full. 24 exhibit also includes a copy of the check signed by Thurber to 25 Citizen's Bank, dated September 30, 2005, for $71,135.35. 26 Thurber states that prior to paying off the loan, they made two 27 payments of $640.09, for a total of $1,280.18. 28 ¶ 2. 8 - OPINION & ORDER according of The basis of Automobile Exh. 1 to Thurber's Declr. The Id. Thurber Declr. at 1 Thurber's statement in her declaration supports the assertion 2 that plaintiffs paid $1,280.18 in monthly payments before paying 3 off the loan. 4 Exhibit 1 relate to an item of claimed damages. It is unclear how the payoff letter and check in 5 Exhibit 3 is a November 29, 2006 receipt from Lowe's for $129 6 for dehumidifier bags that plaintiffs contend they continually 7 needed to absorb moisture in the fifth-wheel. 8 to Thurber Declr. This supports the claim for $129 in dehumidifier 9 expenses. Id. at ¶ 3; Exh. 3 Exhibit 4 is an October 6, 2006 receipt for $269.48 from 10 Les Schwab for tires. 11 the claim for the amount spent on tires. 12 Thurber also Exh. 4 to Thurber Declr. states 13 storage costs. 14 that plaintiffs Thurber Declr. at ¶ 6. Exhibit 4 supports incurred $618.20 in This supports the amount claimed for storage. 15 At this point, although the amounts of these damages are, for 16 the most part, adequately supported by the record, plaintiffs are 17 not entitled to them for the reason explained above - 18 failed to cite to an Oregon remedy allowing them to recover from 19 the manufacturer under the facts of this case. 20 that 21 entitlement to a remedy under O.R.S. 72.8110 (as to the retailer 22 when the manufacturer does not maintain an in-state service and 23 repair facility), or O.R.S. 72.8100 (if the manufacturer maintains 24 a service and repair facility within the state), the remedy is the 25 service or repair of the good in compliance with the warranty, 26 replacement of the good, or the reimbursement to the buyer of the 27 purchase price less a reasonable charge for beneficial use by the 28 buyer. even if plaintiffs were successful they have I note, however, in showing their Additionally, in the event of the replacement of the good 9 - OPINION & ORDER 1 or refunding of the purchase price, the buyer must return the 2 defective good to the warrantor. 3 Notably, these statutes do not provide for consequential 4 damages such as storage fees and the dehumidifier. 5 as the manufacturer is not the seller as explained above, O.R.S. 6 72.7150 does not apply as to the manufacturer. Additionally, there 7 is no evidence in the record of the value of the beneficial use to 8 plaintiffs, 9 documentation of the monetary amounts claimed, they still fail to if any. Thus, while plaintiffs 10 IV. have submitted show that they are entitled to the damages sought. 11 And, inasmuch 12 Procedural Posture Currently, this case is set for a three-day jury trial 13 beginning on March 17, 2009. A pretrial conference is set for 14 March 9, 2009, with a pretrial order due on February 9, 2009. 15 Plaintiffs should proceed with the same exhibits they have 16 submitted at summary judgment, and with the supplemental materials 17 they 18 declarations they have already submitted. 19 conference, plaintiffs are unable to articulate a viable legal 20 theory entitling them to judgment as a matter of law on the facts 21 established, the Court will discuss with plaintiffs why a judgment 22 dismissing the case should not be entered. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / filed, and prepare 10 - OPINION & ORDER witness statements based on the If, at the pretrial 1 2 3 4 CONCLUSION Plaintiffs' supplemental motion for summary judgment (#33), is denied. IT IS SO ORDERED. 5 Dated this 14th day of January , 2009. 6 7 8 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 - OPINION & ORDER
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