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Andersen v. Thor Motor Coach, Inc.

United States District Court, N.D. Indiana, South Bend Division

July 11, 2019

RUTH ANDERSEN, MYRON ANDERSEN, and AF FUNDS MONTANA LLC, Plaintiffs,
v.
THOR MOTOR COACH, INC., Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON JUDGE

         AF Funds Montana LLC bought a new 2016 Tuscany 44MT recreational vehicle from Thor Motor Coach.[1] This lawsuit by the LLC, its member Myron Andersen, and his wife Ruth, brings a litany of alleged defects and failed repairs in support of claims for breach of warranty and breach of unfair and deceptive trade practices statutes. Thor now seeks summary judgment, and has also filed a separate motion to strike portions of Myron Andersen's affidavit.

         Undisputed Facts

          Myron Andersen founded a lumber and building material company called Builders Warehouse in 1977, and served as its president until his retirement in January 2016. [DE 25-3 at 9, 13.] By the time of Myron‘s retirement, Builders Warehouse had reached annual sales in the $65 million range. [Id. at 10.] The complaint identifies the corporate plaintiff as “AF Funds Montana LLC” but the Operating Agreement identifies the Montana Limited Liability Company as “AF Funds LLC” and the two member-owners as Myron Andersen and Stacy Bovina, who is Myron's daughter. [DE 25-4 at 1; 25-3 at 17.] Ruth Andersen is not a member of AF Funds. [DE 25-3 at 20.] Plaintiffs contend that Stacy is listed in the Operating Agreement only “as a contact, but she is not a member of the LLC, she does not hold any interest in the LLC, and she did not sign the Operating Agreement for the LLC.” [DE 34-1 at 3.] Besides the Tuscany RV that is the subject of this lawsuit, AF Funds also owns a Class C Coachmen motorhome, and has also owned a BMV vehicle. [DE 25-3 at 21.]

         The Tuscany RV was purchased for $289, 988 on January 22, 2016 from a dealership in New Braunfels, Texas called Camping World RV Supercenter, which is owned by Southwest RV Centers, LLC. [DE 25-5 at 1; DE 25-3 at 29.] The RV was titled in the name of AF Funds LLC and has only ever been registered in the name of AF Funds in the state of Montana. [DE 25-3 at 25.] Evidently, by putting the RV in a corporate name and registering it in Montana, Andersen avoided a hefty sales tax. [Id.] AF Funds took out a loan to buy the RV, and Myron Andersen personally guaranteed the loan. [DE 25-3 at 23.]

         At the time of the RV purchase, Myron Andersen signed a Thor Motor Coach form called “Registration and Acknowledgement of Receipt of Warranty and Product Information.” [DE 25-6.] That document contained this language: “You, the purchaser, should not submit this form until (1) you have received and reviewed the Limited Warranty and owner's manual….” [Id.] The form also contains the purchaser's acknowledgement that “I received and read the final stage manufacturer's 1 page Limited Warranty, published within the Owner's Manual, and the Chassis Limited Warranty, both of which were made available to me, before I purchased the vehicle and agreed to the terms and conditions therein.…” [Id.]

         As I noted above, Andersen chose to put the RV in a business name for tax purposes, but that decision had a substantial effect on the terms of the warranty that Thor provided. Here's what The Limited Warranty states:

If…you register your new motorhome in a business name or use your motorhome for any commercial or business purposes other than for rental purposes, the limited warranty ends 90 days after you first take delivery of your motorhome OR after the odometer reaches 5, 000 miles, whichever occurs first. If you register your new motorhome in a business name or use your motorhome for any commercial or business purpose, TMC disclaims any implied warranty of merchantability that may arise by operation of law.

[DE 25-7.] Because the Tuscany RV was taken from the dealer's lot on January 28, 2016, and was registered in the business name of AF Funds LLC, Thor's position is that the Limited Warranty ended on April 27, 2016. [DE 34-15 at 1; DE 25-3 at 44, 25; DE 25-1 at 8 .] Myron testified in his deposition that, at the time of the purchase, he was unaware that “some manufacturers excluded from coverage any RV owned in the name of a commercial or business enterprise.” [DE 25-3 at 37.] As for the manufacturer's warranty on the Tuscany RV, Myron testified that he and the sales personnel at Camping World “continued to talk about a one-year warranty with a five-year extended-warranty option.” [Id. at 37-38.]

         After taking possession of the Tuscany on January 28, 2016, Myron did not initially review the owner's manual that he was told could be found in a box in the vehicle, but testified that he discovered, the night before his deposition, that the pages of the manual that included the one-page warranty had been torn out. [Id. at 38-39.] Myron claims that he was not given a copy of the warranty prior to purchase. [Id. at 39.] There is no evidence that Myron was given or shown or offered a copy of the warranty prior to execution of the purchase documents including the Acknowledgement and Purchase Agreement on January 22. Instead, Myron testified that he relied upon the representations of the salesman that the RV came with bumper-to-bumper warranty coverage for the first year of ownership. [Id. at 40.]

         Thor's Limited Warranty expressly disclaims warranty coverage for a number of items, including “accessories and equipment added or changed after the motorhome leaves the factory” and “appliances and components covered by their own manufacturer's warranty.” [DE 25-7.] Items listed in this second category include the RV's stove, stereo and radio. [Id.] The warranty further provides that “[a]ny performance of repairs after the warranty coverage ends OR any performance of repairs to those portions of your motorhome excluded from coverage shall be considered ‘good will' repairs.” [Id.]

         The express warranty also contains another provision intended to limit implied warranties. This language is highlighted by its appearance in all capital letters and by the use of blue text:

LIMITATION AND DISCLAIMER OF IMPLIED WARRANTIES: THE DURATION OF THE IMPLIED WARRANTY OF MERCHANTABILITY, WHICH MAY ARISE BY OPERATION OF STATE LAW, IS LIMITED TO THE DURATION OF THE LIMITED WARRANTY AND IS LIMITED IN SCOPE OF COVERAGE TO THOSE PORTIONS OF YOUR MOTORHOME COVERED BY THIS LIMITED WARRANTY. THERE ARE NO EXPRESS WARRANTIES OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY ON THOSE PORTIONS OF THE MOTORHOME EXCLUDED FROM COVERAGE.

[DE 25-7.]

         The Purchase Agreement echoes these limitations. Paragraph 10 is captioned

“DISCLAIMER OF WARRANTIES AND LIMITATIONS/EXCLUSION OF REMEDIES.” That paragraph is highlighted by the use of a double-bordered box surrounding the text, and includes this language in all capital letters:
BUYER(S) UNDERSTAND AND AGREE THAT THE EXPRESS TERMS OF ANY MANUFACTURERS WRITTEN WARRANTY, TO THE EXTENT ANY EXIST AND APPLY TO THE UNIT, CONTAIN AND CONSTITUTE BUYER(S)' EXCLUSIVE AND SOLE REMEDY FOR ANY PROBLEMS OR DEFEECTS THE UNIT MIGHT CONTAIN.

[DE 25-5 at 2.]

         The Limited Warranty, the Acknowledgement, and the Purchase Agreement all make it abundantly clear that the dealer -- in this case, RV World -- does not speak for the manufacturer on the subject of warranty coverage for the RV. The Limited Warranty provides that:

There is no warranty of any nature made by [Thor] beyond that contained in this Limited Warranty. No. person has authority to enlarge, amend or modify this Limited Warranty. The dealer is NOT Thor Motor Coach's agent. TMC is not responsible for any undertaking, representation or warranty made by any dealer or others beyond those expressly set forth within this Limited Warranty.

[DE 25-7.] The Acknowledgment signed by Myron Andersen contains this language: “I also understand that the selling dealer is not an agent for the final stage manufacturer but is an independent company with no authority to make any representation or promise for the final stage manufacturer.” [DE 25-6.]

         The Purchase Agreement contains terms on this issue in several places, including: “Buyer(s) understand and acknowledge that Dealer is a separate and distinct entity from, and not the principal or agent or (sic) any manufacturer(s) of the Unit.” [DE 25-5 at 1.] Paragraph 7 of the Agreement is captioned “DEALER NOT AGENT OF MANUFACTURER” and begins with the sentence: “Dealer is in no respect the agent of the manufacturer.” [Id. at 2.] The text of paragraph 12, “Non-Dealer Warrant(s) (if applicable), ” includes:

Buyer(s) acknowledge that Dealer is not an agent of the manufacturer and that Dealer has not represented or misrepresented the terms of any applicable manufacturer(s) written warranty(s), because either Buyer(s) have read to his/their satisfaction the actual terms of any such written instruments, which expressly state the coverage, application period, conditions, and exclusions or Buyer(s) have voluntarily chosen not to read such warranty(s).

[DE 25-5 at 2.]

         Here's a chronology of the undisputed facts concerning the RV's history of service issues and attempts at repair. When Myron Andersen arrived to pick up the RV on January 28, 2016, he waited while Camping World finished installing some “add- ons” to the RV, including DirecTV receivers. [DE 25-3 at 46.] Myron was told that Sirius and DirecTV would have to be contacted to connect those services, and that although the RV's GPS was not yet working, it could be expected to “come on.” [Id. at 47.] Myron drove the RV from Camping World in New Braunfels, Texas to a location south of Austin and spent two days there. [Id. at 48.] Myron contacted either “Thor warranty people” or the Camping World dealership about the issues with the information center console, and was told that updated software was needed for the information center and GPS. [Id. at 48-49.]

         Work orders issued by dealer service departments indicate that during the 90-day period from January 28 to April 27, 2016, the RV was brought in for service twice. From Texas, Myron drove the RV to Destin, Florida to visit friends and stay in the RV for 30 days. [DE 25-3 at 51.] While there, Myron called a Florida Camping World dealership with a list of issues, some of which he was told could not be repaired during the Andersens' intended stay. [Id. at 52-53.] Leaks associated with the RV's slide-outs were among those problems that couldn't be quickly repaired, as was a problem with the cooktop's fit into the kitchen countertop. [Id. at 53-54, 55-56.] Items that were addressed at Camping World in Florida in early March included repairs to a broken shelf, the half-bath toilet, loose carpet trim, the shower doors, and the arm of the driver's seat. [Id. at 54.] The dealer could not fix the GPS, or assist with the RV's connection to DirecTV. [Id. at 54-55.] Those two issues, as well as the leaky slide-outs and countertop issue, remained unresolved by Camping World in Florida. [Id. at 56.]

         Later in March 2016, the Tuscany was taken to a Camping World in Council Bluffs, Iowa, the closest Thor dealer to the Andersens' home in Nebraska. [Id. at 58.] The associated work orders disclose ten issues itemized for repair: the slide-outs, GPS, rangetop, Sirius radio, ceiling fan blades, breaker panel cover, floor console compartment between driver and front passenger seats, weather stripping on main slide-out, kitchen faucet sprayer, and refrigerator. [DE 25-8 at 2-3.] The RV remained at the Council Bluffs Camping World until May 16, 2016. All ten issues were diagnosed and addressed but not all to completion. [DE 25-8 at 2-3.] A new radio console was ordered but not yet received at the time the RV was picked up. [DE 25-8 at 2-3; DE 25-3 at 111.] Installation of the new console was hoped to address the problems with the Sirius radio, GPS, and DirecTV. Otherwise, Myron testified that the dealers told them they would have to contact Sirius and DirecTV ...


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