Flowers-Carter v. Braun Corp.

530 F.Supp.3d 818

Latricia FLOWERS-CARTER, et al., Plaintiffs,

v.BRAUN CORPORATION, Defendant.

No. CV-18-03836-PHX-DWL

United States District Court, D. Arizona.

Signed March 31, 2021

Jose F. Gill, Russell Snow Thompson, IV, Thompson Consumer Law Group PLLC, Mesa, AZ, Marshall Scott Meyers, Weisberg & Meyers LLC, Phoenix, AZ, for Plaintiffs.

Curtis James Busby, Janell Marie Adams, William Francis Auther, David T. Lundmark, Bowman & Brooke LLP, Phoenix, AZ, for Defendant.

ORDER

Dominic W. Lanza, United States District Judge This case, which raises several issues of first impression concerning the Arizona Assistive Device Warranties Act ("AADWA"), arises from a failed attempt to install a wheelchair conversion kit in a minivan. Despite multiple repair attempts by Defendant Braun Corporation ("Braun") and an entity associated with Braun, the defects could never be cured. Afterward, Plaintiffs took certain steps to request a replacement or refund from Braun. Braun eventually provided a refund, but only after this action was filed. Plaintiffs accuse Braun of violating AADWA by not honoring their replacement/refund requests within 30 days of when each was made and seek an array of different categories of damages based on the alleged AADWA violations, including damages for emotional distress and treble attorneys’ fees.

Now pending before the Court are Plaintiffs’ and Braun's cross-motions for partial summary judgment (Docs. 178, 179) and Plaintiffs’ motion to file a surreply (Doc. 198). For the following reasons, both summary judgment motions are granted in part and denied in part and Plaintiffs’ motion to file a surreply is denied.

BACKGROUND

I. Background Law

In 1998, Arizona enacted AADWA, which is now codified at A.R.S. § 44-1351 et seq. It provides that a manufacturer that sells an "assistive device," such as a wheelchair conversion kit, must "give the consumer an express warranty against defects, malfunctions or conditions." Id. § 44-1352(A). This express warranty, which must remain in effect "for at least one year," obligates the manufacturer to repair any "nonconformity"—defined as a "defect, malfunction or condition that substantially impairs the use, safety or value" of the assistive device, id. § 44-1351(11) —"at no charge" if the consumer "reports the nonconformity" and "makes the assistive device available for repair." Id. § 44-1352(A), (C). See also id. § 44-1354 (text of notice that must be provided to consumer: "To ensure you receive the benefits of this warranty, ... you must report any problem with the assistive device to the manufacturer ... and make the assistive device available for repair.").

As discussed in more detail below, AADWA further provides that if a manufacturer cannot repair a nonconformity "after a reasonable attempt," the consumer has the right to "direct the manufacturer" to either (1) provide a replacement, while "refund[ing] any collateral cost to the consumer," or (2) provide a refund consisting of "the full purchase price plus any finance charge paid by the consumer at the point of sale and collateral costs minus a reasonable allowance for use." Id. § 44-1352(D)(1)-(2). The manufacturer must honor the consumer's preferred option. Id. § 44-1352(D) ("[T]he manufacturer shall comply with the option chosen by the consumer."). The replacement or refund must be provided "[w]ithin thirty days after receiving notification of a nonconformity." Id. § 44-1353(A). After receiving the replacement or refund, the customer is obligated to return the old device to the manufacturer. Id.

AADWA also creates an express cause of action for a violation of its requirements: "In addition to any other remedy, a consumer may bring an action in superior court to recover damages caused by a violation of this section. The court may award the prevailing consumer triple the amount of any pecuniary loss plus costs, disbursements and attorney fees. The court may also award any equitable relief deemed appropriate by the court." Id. § 44-1355(C). AADWA "does not limit any rights or remedies available to a consumer under any other law." Id. § 44-1355(B).

II. Factual and Procedural History

The facts below are taken from the parties’ partial summary judgment briefing and other documents in the record. The facts are uncontroverted unless otherwise noted.

A. Plaintiffs’ Purchase Of The Van And Wheelchair Conversion

Shanyce Flowers ("Flowers") is a quadriplegic who suffers from cerebral palsy and seizures. (Doc. 182-1 at 70.) Flowers's primary caregivers are Latricia Flowers-Carter ("Flowers-Carter"), who also serves as Flowers's legal guardian, and Douglas Carter ("Carter"). (Doc. 34 at 1-2; Doc. 178-1 at 45; Doc. 182-1 at 19 ¶ 4.) Flowers-Carter and Carter also suffer from serious physical ailments: Flowers-Carter has multiple sclerosis ("MS") while Carter has bone cancer and receives dialysis as treatment for a prior bout with kidney cancer. (Doc. 49-1 at 10-11; Doc. 182-1 at 23 ¶ 28.) Flowers, Flowers-Carter, and Carter will be referred to collectively as "Plaintiffs."

In December 2017, Plaintiffs purchased a 2017 Chrysler Pacifica minivan from a non-party auto dealer for either $47,979.71 or $57,782.80.¹ Plaintiffs then contracted with Braun, via an authorized Braun dealer known as United Access ("UA"), to equip the minivan with a Braun wheelchair conversion kit for either $23,412.75 or $34,409.31.² Braun installed the conversion on or around February 20, 2018. (Doc. 179-1 at 131, 133.) Plaintiffs had been prescribed the conversion van to "transport [Flowers] and her power wheelchair to get to and from school/work as well as community activities." (Doc. 182-1 at 70.)

Braun tendered a limited warranty alongside the conversion. (Doc. 178-1 at 38-39; Doc. 182-1 at 6-12.) The limited warranty covered "Braun's modifications and alterations for associated parts for three (3) years or the first thirty six thousand (36,000) miles, whichever occurs first." (Doc. 182-1 at 6.) The limited warranty protected against "substantial defects in materials and workmanship attributable to Braun" of relevant parts of the conversion and van. (Id. ) There was also a corrosion warranty covering defects caused by Braun in certain metal fabrication components of the vehicle and conversion. (Id. ) The limited warranty only obligated Braun "to repair or replace defective materials or workmanship." (Id. at 7.) This obligation would be triggered "[i]n the event that a substantial defect in material or workmanship, attributable to Braun, is found to exist during the warranty coverage periods." (Id. ) Braun made "no warranty as to the future performance." (Id. ) Additionally, "Braun shall not be liable for any incidental or consequential damages that may result from a breach of this limited warranty.... This warranty does not cover ... towing charges, travel, lodging, or any other expense incurred due to the loss of use of the product or other reason." (Id. at 8, capitalization omitted.)

B. Initial Problems And Repair Attempts

Soon after the conversion van passed into Plaintiffs’ possession, problems arose. For example, the van's sliding door did not open or close correctly. (Doc. 154-1 at 59; Doc. 157-11 at 5, lines 2-12, 6, lines 14-23; Doc. 157-20 at 267; Doc. 179-1 at 80, 83-84.) On one occasion, when Flowers-Carter and Flowers were driving in Las Vegas, the ramp malfunctioned. (Doc. 154-1 at 63; Doc. 178-1 at 46, 60; Doc. 179-1 at 82.) Flowers-Carter had to enlist the help of passersby to manually lift Flowers into the van. (Doc. 181-1 at 15, lines 1-3.) On the drive back to Arizona from Las Vegas, Flowers was forced to relieve herself in a bucket inside the van, because she was unable to exit the vehicle. (Doc. 182-1 at 22 ¶ 23; Doc. 182-1 at 105, lines 15-16, 106, lines 7-9.)

In March 2018, Flowers-Carter brought the van to UA for repairs for the first time. (Doc. 38 ¶ 50; Doc. 40 ¶ 18.) Flowers-Carter brought the van back to UA for more repairs very shortly thereafter. (Doc. 38 ¶¶ 54-55; Doc. 40 ¶ 21.) It appears that one more round of repairs occurred in late March 2018. (Doc. 38 ¶¶ 58-60; Doc. 40 ¶¶ 23-24; Doc. 191-1 at 60.)

UA's repair records from April and May 2018 show that the van needed at least three repairs. (Doc. 179-1 at 80-84.) For example, on April 2, 2018, Plaintiffs told UA that the side power door of the van "has opened by itself, and when driving" and that the door had other issues. (Doc 179-1 at 80.) UA couldn't determine whether the door was in fact opening randomly but noticed other issues with the door and also noticed that the van's rear seats weren't functioning properly. (Id. ) UA attempted to make repairs on the issues it could identify. (Id. )

On April 9, 2018, Plaintiffs were back at UA because the ramp was not working—UA found that the fuse had blown and made repairs. (Id. at 81-83.)

C. The May 1, 2018 Conversation Between Flowers-Carter And Haschel

The parties agree that Braun customer service manager Elaine Haschel ("Haschel") and Flowers-Carter first spoke over the phone on May 1, 2018. (Doc. 178 at 2; Doc. 179-1 at 28, lines 6-11; Doc. 182-1 at 23-24 ¶ 31; Doc. 191-1 at 3.) Flowers-Carter stated that she "wanted [the van] replaced" and Haschel replied that Braun "needed to be provided with one repair attempt." (Doc. 179-1 at 27, lines 19-24.)

The parties dispute whether, during the course of this conversation, Haschel also offered to replace the van in the event the repair attempt was unsuccessful. According to Haschel, she told Flowers-Carter that "if [the repair] didn't work, then at that point we would offer to replace it." (Id. at 27, lines 19-24.) Flowers-Carter says that Haschel never offered a replacement. (Doc. 182-1 at 23-24 ¶ 31.)

The parties also dispute whether Flowers-Carter agreed to Haschel's proposal that another repair attempt be made. Flowers-Carter testified that she made a replacement demand, Haschel "said no," and she acquiesced in the additional repair attempt because Haschel "didn't leave me an...