United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant Newmar's Motion for
Summary Final Judgment (Dkt. 36), Plaintiffs Response (Dkt.
48), and Defendant Newmar's Reply (Dkt. 57); and
Defendant Lee County RV Sales Company's Motion for Final
Summary [Judgment] (Dkt. 42), Plaintiffs Response (Dkt. 52),
and Defendant [Lee County R.V. Sales Company's] Reply
(Dkt. 58). Upon consideration, Defendants' motions (Dkts.
36, 42) are GRANTED.
BACKGROUND AND UNDISPUTED MATERIAL FACTS
Geraldine Kelly brought this action alleging a breach of
warranty claim against Defendants Lee County R.V. Sales
Company d/b/a North Trail RV Center ("North Trail")
and Newmar Corporation ("Newmar"). She alleges that
Defendants provided her with certain warranties when she
purchased a recreational vehicle, and that Defendants
breached these warranties by failing to repair defects in the
vehicle after receiving notice of them.
Third Amended Complaint alleges four counts: (1) "Breach
of Obligations Under the Magnuson-Moss Federal Warranty
Improvement Act Against Seller," (2) "Breach of
Obligations Under the Magnuson-Moss Federal Warranty
Improvement Act Against Manufacturer," (3)
"Violation of Statutory Warranty Under Sec. 320.835,
Fla. Stat, Against Seller," and (4) "Violation of
Statutory Warranty Under Sec. 320.835, Fla. Stat., Against
Manufacturer." (Dkt. 29, Third Am. Comp.).
following material facts are undisputed. On June 4, 2014,
Kelly went to North Trail, a dealership in Fort Myers, to
purchase a 2014 Newmar Canyon Star recreational vehicle (the
"RV") that she had ordered in February of that
year. (Dkt. 41-1, G. Kelly Dep. Part 1, at 35:25 - 36:1-3).
She noticed that it did not include a rear awning and
requested that North Trail have one installed. (Id.
at 39:10-11; 40:11-16).
and North Trail proceeded with the purchase that day. The
sale was made pursuant to a written purchase contract.
(Id. at 37:4-7, 38:17-19). When she signed the
contract, North Trail informed her that the RV came with
Newmar's twelve-month limited warranty, which would
expire on June 3, 2015. (Id. at 46:22-25; 47:1-5;
51:12-17; Dkt. 41-3, Exh. 4, p. 9). In addition to signing
the purchase contract, North Trail and Kelly signed a
pre-delivery and acceptance declaration form. (Dkt. 41-1 at
55:7-17; Dkt. 41-3, Exh. 5, p. 10). This form, also referred
to as the pre-delivery inspection form, reflects that North
Trail reviewed and explained to Kelly's satisfaction, the
various components, systems and features of the RV. (Dkt.
41-1 at 53:2-5; 54:8-10; 55:7-11). Kelly did not have any
questions about the RV. (Id. at 53:18-21; 60:1-4).
testified that prior to the sale of the RV she had never
spoken to anyone from Newmar. (Id. at 60:25 -
61:1-3). And at the time of the sale, no one from Newmar was
present. (Id. at 61:8-11; 62:5-9).
weeks after the purchase, after the rear awning was
installed, Kelly went back to North Trail and took possession
of the RV. (Dkt. 41-1 at 58:12-14; Dkt. 41-2 at 77:13-23). At
that time, it had 1, 314 miles on the odometer. (Dkt. 41-1 at
44:14-19). When she picked up the RV and drove it home, she
did not notice any problems. (Dkt. 41-2 at 77:24-25 -
the time she purchased the RV and the time she filed suit,
the RV underwent numerous repairs and was subject to several
manufacturer's recalls. (Dkt. 41-1 at 19:3; 41:14-18;
75:9; Dkt. 41-2 at 93:20-22; 109:7-8). Repairs were made
during her first year of warranty coverage. (Id.).
Some of these repairs were made to the RV's slide-out
rooms and windshield. (Dkt. 41-2 at 121:3-6). In October
2014, a repair was made to the driver's side slide at an
unauthorized repair facility. (Id. at 152:14-21).
And in November 2014, North Trail made a repair to the
bedroom side slide. (Id. at 120:13-17; 152:1-5). As
for the windshield, she testified that sometime during her
first year of ownership it "fell out" and that
North Trail came to her home and resecured the window and its
molding. (Id. at 140:19-24; 141:1-15). Approximately
two to three years later, the windshield's outside
molding started to come loose, and North Trail again made the
repair. (Id. at 142:8-19).
did not have to pay for any of the repairs made during her
first year of ownership because they fell under Newmar's
warranty's coverage. (Dkt. 41-1 at 49:14-18; 78:13-21;
79:6-14; Dkt. 41-2 at 130:13-19). And although the RV
continued to need repairs and routine maintenance after the
first year, some repairs were performed without charge. (Dkt.
50-2, p. 18).
these post-warranty repairs, she testified that she received
the benefits of Newmar's limited warranty coverage for
the first twelve months of her ownership. (Dkt. 41-2 at
asked about the remaining defects in the RV, Kelly stated
that the two slide-out rooms and front windshield remain
defective. (Id. at 140:10-15;
154:24-25). And when asked during her deposition if
everything else with the RV was working properly, Kelly
answered, "Yes." (Id. at 155:4-8).
asked how the slides were defective, she testified,
"[o]nce you get them out, you can't get them in. And
the other one sounds like - when it starts to go out, it
makes so much noise you think it's going to break so you
don't put it out. It vibrates the whole motor home."
(Id. at 138:21-25; 139:1-2). As for the windshield,
Kelly testified that in July 2018, she noticed that it was
"coming out." (Id. at 139:20-24; 140:6).
Since then, the RV has remained parked at her house, with an
accrued mileage of approximately 37, 000. (Dkt. 41-1 at
73:7-21; Dkt. 41-2 at 115:1-3). She has not taken the RV to
any repair facility to have her concerns addressed,
corrected, serviced, or repaired. (Dkt. 41-2 at 138:18-20;
to Kelly, she did not retain an expert, nor does she consider
herself one. (Dkt. 41-1 at 18:15-17). Moreover, she testified
that she possesses no educational training or expertise in
the monetary appraisal of RVs, has never been trained on
valuing or appraising RVs, does not know how to appraise the
value of RVs, with or without defects, has no technical or
mechanical training on RVs, does not know how to diagnose or
repair RVs, does not know how to appraise or value the cost
of repairs to RVs, has never repaired RVs, has never done any
appraisal on the subject RV, and has never taken the subject
RV to anyone to have its monetary value appraised, or to have
it inspected. (Id. at 13:18-25 - 16:1-11).
on these facts, both Defendants move for summary judgment.
For the reasons set forth below, Defendants are entitled to
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"A genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a
verdict."' Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact
is material if it may affect the outcome of the suit under
governing law. Allen v. Tyson Foods, Inc., 121 F.3d
642, 646 (11th Cir. 1997). All facts are viewed and all
reasonable inferences are drawn in the light most favorable
to the non-moving party. See Scott v. Harris, 550
U.S. 372, 380(2007).
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. N. Crossarm Co., Inc., 351 F.3d 1256, 1260 (11th Cir.
2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Once the moving party demonstrates the
absence of a genuine issue of material fact, the non-moving
party must go beyond the pleadings through the use of
affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324. A
court will not weigh the evidence or make findings of fact.
Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, a court's role is limited to deciding
whether there is sufficient evidence upon which a reasonable
juror could find for the non-moving party. See id.
Counts I and II: Magnuson Moss Warranty Act
Magnuson Moss Warranty Act ("MMWA") is a federal
warranty enforcement statute. It does not create or require
any warranties from manufacturers or dealers. 15. U.S.C.
§ 2302(2)(b) ("[N]othing in this chapter . . .
shall be deemed . . . [to] require a consumer product or any
of its components to be warranted."). "[E]xcept in
the specific instances in which Magnuson-Moss expressly
prescribes a regulating rule, the Act calls for the
application of state written and implied warranty law, not
the creation of additional federal law." Walsh v.
Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1986). A
consumer may file a claim for a breach of warranty in
conjunction with the MMWA, if a product manufacturer or
dealer issues a warranty and fails to honor its terms.
Bailey v. Monaco Coach Corp., 350 F.Supp.2d 1036,
1043 (N.D.Ga. 2004), affd 168 Fed.Appx. 893 (11th
Cir. 2006) (finding that absent an actionable warranty claim,
there can be no violation of the MMWA). In sum, a breach of
warranty claim under the MMWA is dependent upon a viable
underlying state breach of warranty claim. Burns v.
Winnebago, No. 8:ll-CV-354-T-24, 2012 WL 171088, at *4
(M, D. Fla. Jan. 20, 2012), affd 492 Fed.Appx. 44,
49 (11th Cir. 2012) (affirming summary judgment on a
recreational vehicle MMWA claim because the underlying breach
of warranty claim failed).
brings claims under the MMWA against each Defendant for
alleged breaches of various express and implied warranties
made pursuant to her purchase of the RV. Because the purchase
occurred in Florida, Florida substantive law applies. See
Walsh, 807 F.2d at 1012.
MMWA Against North Trail (Count I)
Third Amended Complaint, Kelly alleges that North Trail made
express and implied warranties on the RV that it failed to
honor. Specifically, she alleges that North Trail
"completed a pre-delivery inspection form(s),"
which "constituted] a 'written warranty' under
the terms and definitions of [the MMWA]." (Dkt. 29
¶ 9(A)). Based on this form, she alleges North Trail
"impliedly warranted that said recreational vehicle was
of merchantable quality, which warranty it breached"
(Id. ¶ (B)). As a result of the breach, she
"demands judgment for damages and/or refund together
with incidental and consequential damages," as well as
attorney's fees. (Id. ¶ 12). From these
allegations, it appears that Kelly's MMWA claim is based
on the ...