Raymond v. Thor Motor Coach, Inc.

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CHARLES RAYMOND, Plaintiff, v. THOR MOTOR COACH INC, Defendant.

No. 3:21-CV-222 JD

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

August 2, 2023

OPINION AND ORDER

JON E DEGUILIO JUDGE, UNITED STATES DISTRICT COURT

Charles Raymond purchased an RV subject to a limited warranty issued by its manufacturer, Thor Motor Coach. Mr. Raymond discovered a number of defects, and he brought the RV to an authorized dealer for service under the limited warranty twice. Dissatisfied with the RV, Mr. Raymond brought this suit. The amended complaint lists five claims: one each for breach of express and implied warranties under California's Song-Beverly Act, the same with regard to the Federal Magnuson-Moss Act, and a claim for breach of express warranty for Thor's other representations outside the written warranty. The Court finds Mr. Raymond's Song-Beverly claims fail because the purchase did not take place in California for the purposes of the Act, his Magnuson-Moss claims fail because he did not give Thor a reasonable opportunity to cure or avail himself of the back-up remedy or in the alternative, because he was not in privity with Thor, and his separate breach of warranty claim fails because he has neither provided evidence of any relevant representation by Thor nor showed he received any such representation. Accordingly, the Court grants Thor's motion for summary judgment on all claims.

A. Facts

The following facts are presented in the light most favorable to the non-moving party. On January 25, 2020, plaintiff Charles Raymond purchased a new 2019 Thor Outlaw 37GP RV from Day Brothers Auto and RV Sales in London, Kentucky. At the time, Mr. Raymond lived in California. Prior to visiting Kentucky, he became interested in the RV and spoke with members of the Day Brothers staff on the phone, but he had not decided for certain that he would purchase an RV during his Kentucky trip. (DE 56-2 at 50; 54). Once in Kentucky, Mr. Raymond met with Day Brother's staff, examined the RV, made his down payment, and signed the relevant purchase agreement and several other agreements related to the RV. Mr. Raymond also received a copy of the limited warranty covering the RV, which was issued by Thor. Among the extraneous agreements, two describe the delivery date as January 25, 2020, and one describes the vehicle as delivered on that date despite acknowledging that the RV was physically located on the dealer's lot in Kentucky. The total cost with financing of the RV was $244,956.00.

Mr. Raymond decided he would like to have the RV shipped to his home in California. Two days after executing the purchase agreement with Mr. Raymond, Day Brothers engaged a third party, Horizon Transport, to transport the vehicle. Day Brothers did not charge extra for this service. The shipping cost, $3,601.40, was rolled into the financed cost of the RV at a cost of $3,500, and Day Brothers did not charge Mr. Raymond for the balance. The vehicle was transported to California and arrived on February 2, 2020.

Mr. Raymond experienced problems with the RV and sought repairs from two authorized dealers as prescribed in the limited warranty. The defects addressed in the first visit were minor: chipped paint, misaligned doors, and bowing shelves. The second dealer visit repaired several new scratches but did not indicate a second attempt to repair any of the previously repaired defects. Mr. Raymond has not sought any additional attempts to repair the problems with the RV. Prior to either of the dealer repair attempts, Mr. Raymond called a mobile mechanic to assist him in retracting the RV's slide. It is not clear whether Mr. Raymond was reimbursed by Thor for this expense. The slide issue was addressed in the first dealer visit and did not appear on the report of the second dealer visit. Prior to filing this suit, the parties engaged in mediation, but could not come to a resolution. Though Mr. Raymond claims his RV's defects remain unrepaired, his only evidence for this contention is the fact that he brought the instant lawsuit, and his submitted evidence indicates that all but two of the defects submitted for repair were repaired. (DE 59-2 at 17; DE 59-1 at 5-10.)

B. Legal Standard

Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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 nonmoving party. See id. at 255. Even if the facts are undisputed, summary judgment will not be entered unless the facts show the movant is entitled to judgment as a matter of law. See Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593, 602 (7th Cir. 2015).

C. Discussion

Each of Mr. Raymond's five claims fail as a matter of law. Summary judgment is appropriate on his Song-Beverly Act claims because the purchase did not take place “in California” for the purpose of that statue. Summary judgment is also appropriate on his Magnuson-Moss claims because he did not give Thor a reasonable opportunity to cure or avail himself of the back-up remedy as required under Indiana law. Even if the limited warranty's choice of law provision did not control the implied warranty claim, that claim would still fail because a proper choice of law analysis results in the application of Kentucky law, which requires privity. Finally, Mr. Raymond's breach of express warranty alone claim fails because he has not provided the Court with any representations capable of constituting an express warranty as he alleged. Therefore, the Court will enter summary judgment on all counts.

(1) Song-Beverly

Mr. Raymond brings two claims under the Song-Beverly Act, a California consumer protection statute. See Cal. Civ. Code §§ 1792 et seq. In order for the protections of the Song-Beverly Act to apply, the RV must have been purchased in California. See Cummins, Inc. v. Superior Ct., 115 P.3d 98, 106 (Cal. 2005) (“[T]he structure and language of the existing statutory provisions indicate that the Legislature intended the Act to apply only to vehicles sold in California.”)^[1]A good is sold in California where title to the goods passes in California. California State Elecs. Assn. v. Zeos Internat. Ltd., 41 Cal.App.4th 1270, 1276-77 (1996). For this particular case, where title passed depends on whether the parties had a shipment contract or a delivery contract. In a shipment contract, title to the goods passes to the buyer at the time and place of the shipment; in contrast, in a delivery contract, title passes to the buyer upon tender of the goods at the destination. It is not relevant to the inquiry that the vehicle was ultimately transported to California; either kind of contract could produce this result. Frengel v. McLaren Auto., Inc., No. 3:22-CV-0664 W (RBB), 2022 WL 17491176, at *3, --- F.Supp.3d --- (S.D. Cal. Dec. 7, 2022). If the parties had a delivery contract, the purchase may be said to have taken place in California and the Song-Beverly Act would apply, but if it was a shipment contract, the purchase would not have taken place in California. Id.

To determine if the sales contract was a shipping or delivery contract, the Court begins by reviewing the contract's terms; if they are not ambiguous, no extrinsic evidence is needed. Gusse v. Damon Corp., 470 F.Supp.2d 1110, 1114 (C.D. Cal. 2007). California law presumes a shipment contract unless the parties contract otherwise. Gaynor v. W. Rec. Vehicles, Inc., 473 F.Supp.2d 1060, 1064 (C.D. Cal. 2007). The parties agree the sales contract alone is the relevant contract, and other agreements executed at the same time constitute extrinsic evidence. The Court has reviewed the terms of the contract of sale and finds they are not ambiguous, and they do not explicitly assert a delivery contract. The body of the main contract of sale is silent as to the time of transfer of title. It is also entirely silent on terms or conditions of delivery. Silence on both of these issues implies that the contract is a shipment contract under California's rebuttable presumption, and title passed at the dealership. See id. at 1062. As a result, Mr. Raymond's purchase would not be eligible for the protection of the Song-Beverly Act.

In response, Mr. Raymond argues that because the sales contract included the total purchase price (and delivery must have necessarily been included in that price because the seller paid for delivery), then the sale was conditional upon delivery, and the contract must have been a delivery contract. This argument is convoluted and without support in the precedent. First, it is not dispositive that the shipping price was rolled into the total purchase price because a shipping contract may require the seller to ship the product without becoming a delivery contract. Carlson v. Monaco Coach Corp., 486 F.Supp.2d 1127, 1131 (E.D. Cal. 2007). The analysis is about who is the owner of the product while it is in transit, not whether the product was moved. And second, when considering whether a contract was conditional upon delivery, a court looks at the terms of the agreement: do they specifically require the seller to make delivery at the destination? See Zeos, 41 Cal.App.4th at 1277. If they do not, the Court does not hunt about for other terms that could possibly imply a delivery contract if one squints.

Mr....