Laferrera et al v. Camping World RV Sales of Birmingham et al

Filing 91

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/21/2016. (PSM)

FILED
2016 Mar-21 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRETT and JESSICA
LAFERRERA,
Plaintiffs;
vs.
CAMPING WORLD RV SALES
OF BIRMINGHAM, THOR
MOTOR COACH, INC.
Defendants.

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7:15-cv-00473-LSC

MEMORANDUM OF OPINION
Plaintiffs Brett and Jessica LaFerrera (the “LaFerreras”) sued Defendants
Emerald Coast RV Center LLC d/b/a Camping World RV Sales (“Camping
World”) and Thor Motor Coach (“Thor”) because of alleged defects in a motor
home manufactured by Thor and sold by Camping World. The LaFerreras claim
revocation of acceptance, misrepresentation, concealment of defects, breach of
warranty, and violation of the Magnuson-Moss Warranty Act (“MMWA”). The
LaFerreras and Defendants each filed motions for summary judgment. For the
reasons stated below, Defendants’ motion is due to be GRANTED in part and
DENIED in part, and the LaFerreras’ motion is due to be DENIED. The
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LaFerreras additionally filed a Motion to Preclude Defendants’ Argument because
of spoliation, and Defendants filed a Motion to Strike the Motion to Preclude. The
LaFerreras’ Motion is due to be DENIED. Therefore, Defendants’ Motion is
MOOT.
I.

BACKGROUND
Brett and Jessica LaFerrera purchased a Palazzo motor home in October

2013 from Camping World. The Palazzo line of motor homes was manufactured by
Thor. While using the Palazzo, the LaFerreras experienced repeated problems with
it, and they discussed trading it in for a different model. They largely dealt with
Steve Schriver, who was the general manger of Camping World at the time, but
they also spoke with Phil Houser of Thor during the trade-in process. The parties
eventually agreed that the LaFerreras would trade the Palazzo for a Tuscany model
motor home, which was also manufactured by Thor. Thor gave Camping World
$5,000 to facilitate the trade-in and to obtain a release of liability for any claims
related to the Palazzo. 1 In exchange for facilitating the trade-in, the LaFerreras
signed a release of liability for any claims arising from the Palazzo. The LaFerreras
did not know at the time that Thor’s contribution was related to obtaining the
release.
1

The LaFerreras knew that Thor was providing assistance to Camping World, but they did not
know the specific amount.
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Thor provided a written one year limited warranty on the Tuscany beginning
on October 31, 2013. 2 The notice of the written warranty included a disclaimer,
displayed in all capital letters, of all implied and express warranties. It also
exclusively limited the LaFerreras’ remedies to the repair or replacement of any
defects at the expense of Thor, and if that remedy failed, then the LaFerreras
would be entitled to diminution in value damages. Further, the warranty required
that any action to enforce the warranty be brought within ninety days of the
expiration of the one year warranty period. At some point during the trade-in
process, a Camping World employee showed Brett LaFerrera a brochure that
contained a statement that the motor home passed Thor’s “Gold Star Inspection,”
which was described as an extensive inspection of its major components. The
LaFerreras claim that this Gold Star Inspection and Camping World’s explanation
of it warranted that the Tuscany would be defect free.
Camping World and the LaFerreras entered into a sales agreement that was
separate from the warranty provided by Thor. This agreement stated that Camping
World sold the Tuscany “‘AS IS’, WITH NO EXPRESS OR IMPLIED
WARRANTIES.” (Doc. 62-14 at 2). It also stated,
I UNDERSTAND THAT THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
2

Some components are covered by a two year warranty, but they are not at issue.
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PURPOSE AND ALL OTHER WARRANTIES EXPRESS OR
IMPLIED ARE EXCLUDED BY YOU FROM THIS
TRANSACTION AND SHALL NOT APPLY TO THE GOODS
SOLD.
(Doc. 62-14 at 3). Moreover, the agreement contained a merger clause that said the
written document contained the entire agreement between the parties. It—along
with an acknowledgement of receipt of warranty document provided by Thor—also
stated that the Tuscany had eight miles on its odometer. However, Defendants
have admitted that the mileage was actually closer to 800 miles because it was
driven from Indiana to Alabama after manufacturing. Regardless, they contend that
the odometer always showed the correct mileage. Brett LaFerrera insists he saw the
number eight on the odometer when he purchased the Tuscany and did not know
that it was driven from Indiana to Alabama.
Following the purchase, the LaFerreras experienced several problems with
the Tuscany. The motor home would lose electrical power sporadically, specifically
in the dash control panel. The washing machine and dishwasher did not drain. The
windshield was cracked and would leak, and the heat and air conditioning failed at
times. The motor home vibrated because of alignment issues, and one of its TVs
was scratched. 3 The Tuscany experienced some of these issues, particularly water
leaks and electrical problems, during Thor’s inspection of the unit during
3

These are not all of the problems the LaFerreras had with the Tuscany.
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manufacturing. Thor claims to have repaired the problems before it delivered the
Tuscany to Camping World. However, because the LaFerreras experienced
problems with the Tuscany, they returned the motor home to Camping World on
November 9, 2013, December 5, 2013, March 12, 2014, and April 9, 2014 for
repairs. According to the LaFerreras, some of the problems were fixed, but others,
including the electrical problems, persisted, even though Camping World would
assure the LaFerreras that the problems were fixed. In May of 2014, employees
from Camping World and Thor emailed back and forth about who was handling
these problems with the LaFerreras’ Tuscany. The LaFerreras allege that
Defendants failed to produce parts of this email conversation. 4
On June 19, 2014, the LaFerreras agreed to release both Thor and Camping
World:
from any and all contract, warranty, equity and statutory claims,
demands, administrative proceedings and lawsuits of any kind arising
prior to the date this letter agreement is signed relating to your
purchase, ownership and use of the [Tuscany], including any claims
based upon prior warranty repairs and the time taken to complete the
same.
(Doc. 62-17 at 2) (release executed on June 19, 2014). In exchange for the release,
Thor provided the LaFerreras a one year warranty beginning November 1, 2014,
the day after the original warranty expired. The release does not address the
4

The contents of the emails and the LaFerreras’ allegations are detailed below.
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Tuscany, other than as stated above. It also does not mention what Thor or
Camping World knew about the Tuscany’s problems. Further, the LaFerreras have
not provided any parol evidence concerning any other relevant representations
made at or about the time of the release.
The LaFerreras continued to have problems with the Tuscany. On July 31,
2014, Brett LaFerrera sent an email to Phil Houser of Thor, Chris Wathey of
Camping World, and Steve Schriver of Camping World in which he listed eleven
specific complaints. 5 Thor transported the Tuscany to Indiana to perform the
repairs in September 2014. Thor claims to have repaired all of the problems. In
addition, Thor contracted a Freightliner Service Center to fix the electrical
problems with the dash control panel. Although it could not replicate the electrical
failure, the Freightliner Service Center replaced the dash control panel but did not
keep the removed dash panel. Thus, it could not be produced in discovery. During
the repairs, Thor employees made entries into a unit history file, as well as
maintaining a series of documents 6 pertaining to the repairs. Defendants produced
the unit file but not the other documents in discovery. Although they never moved

5

1. Washing machine would not drain; 2. Dishwasher would not drain; 3. Microwave needed
replacing because of recall; 4. Electrical power failure; 5. Pull out, drivers side would not open; 6.
Cracked windshield; 7. Pull out, passenger side hit wall; 8. Front drawer would not stay shut; 9.
Ceiling fan knob was broken; 10. Pull out, driver’s side damaged mirror and scraped wallpaper;
11. Back bathroom door stuck.
6
The LaFerreras refer to the documents as a “folder of information.”
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to compel Defendants to produce the documents, the LaFerreras claim that they
were spoliated in a motion filed with this Court. In response to this motion,
Defendants produced the documents, which largely consist of physical notes about
the repairs that were made.
Thor returned the Tuscany to the LaFerreras on October 6, 2014, and Brett
LaFerrera stated that someone from Thor or Camping World told him they could
not identify and fix the electrical failure with the dash control panel. Two days
later, on October 8, 2014, Brett LaFerrera drove the Tuscany from Alabama to
Dixie Motors in New Orleans, Louisiana and traded it for a different RV made by a
different manufacturer. Although Brett LaFerrera stated that some of the problems
were not fixed, he did not experience any problems while driving the Tuscany to
New Orleans. The LaFerreras filed this lawsuit on March 20, 2015.
II.

STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that 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 fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). There is a “genuine dispute” as to a material fact “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
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party.” Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence
but must simply determine where there are any genuine issues that should be
resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “considering all of the evidence and the
inferences it may yield in the light most favorable to the nonmoving party.” McGee
v. Sentinel Offender Services, LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis
v. England, 432 F.3d 1321, 1325 (11th Cir. 2005)). In making a motion for summary
judgment, “the moving party has the burden of either negating an essential element
of the nonmoving party’s case or showing that there is no evidence to prove a fact
necessary to the nonmoving party’s case.” Id. Although the trial courts must use
caution when granting motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather
as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
III.

DISCUSSION
The LaFerreras allege eight counts in their Complaint regarding the

Tuscany: (1) Revocation of Acceptance and Nonconformity, (2) Misrepresentation
During

Sale,

(3)

Concealment

of

Nonconformities

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and

Defects,

(4)

Misrepresentation During Repair Attempts, (5) Breach of Express Warranties, (6)
Breach of Implied Warranty of Merchantability, (7) Breach of Implied Warranty of
Fitness for a Particular Purpose, and (8) MMWA. They further allege that
Defendants spoliated various pieces of evidence.
A. Revocation of Acceptance
Defendants argue that the LaFerreras’ revocation of acceptance claim fails
as a matter of law. The LaFerreras did not respond to this argument, and they did
not mention revocation of acceptance in their own motion for summary judgment.
Generally, “grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 599 (11th Cir. 1995); see also Road Sprinkler Fitters Local Union NO. 669 v.
Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (“[The court] could
properly treat as abandoned a claim alleged in the complaint but not even raised as
a ground for summary judgment.”). Because the LaFerreras did not pursue their
revocation of acceptance claim either in response to Defendants’ motion or in their
own motion for summary judgment, the Court will treat that claim as abandoned
and dismiss it.
Even if the LaFerreras did not abandon their revocation of acceptance claim,
it would otherwise fail. When buyers receive nonconforming goods, they may
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revoke their acceptance if the nonconformity substantially impairs the goods’ value
to the buyer and the nonconformity was difficult to discover before acceptance.
Ala. Code § 7-2-608. However, a buyer must provide the seller notice of revocation
before it is effective. See id. The LaFerreras have not presented any evidence that
they notified Defendants that they were revoking their acceptance prior to selling
the Tuscany to a dealership in New Orleans. Their Complaint states that they
notified Defendants of defects and nonconformities soon after delivery, but they
have not provided evidence that they notified Defendants that they intended to
revoke acceptance or otherwise return the Tuscany. In fact, the LaFerreras took
the Tuscany in for repairs multiple times after delivery and retrieved it after the
repairs were made, or at least attempted. These actions do not indicate that they
did not want the Tuscany or intended to revoke their acceptance. Accordingly,
even if the LaFerreras did not abandon their claim, they have not otherwise
presented evidence to create a genuine issue of material fact.
B. Spoliation
The LaFerreras argue that Defendants spoliated four items of evidence: (1)
an email, (2) an electric dash control panel removed from the Tuscany, (3) a
“folder of information” accompanying the unit history file for the Tuscany, and (4)
“sealed documents” relating to the Tuscany’s inspection process. Although
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Alabama recognizes independent actions for negligent spoliation, see Smith v.
Atkinson, 771 So. 2d 429, 432 (Ala. 2000), the LaFerreras are not making such a
claim. Instead, they are relying on the evidentiary doctrine of spoliation that allows
courts to impose sanctions on the spoliating party. See Flury v. Daimler Chrysler
Corp., 427 F.3d 939, 944–945 (11th Cir. 2005). Here, the LaFerreras are seeking
two remedies. First, they want to preclude Defendants from relying on the June 19,
2014 release because the allegedly spoliated evidence might prove Defendants
fraudulently induced them into signing the release. In the alternative, they ask for a
“negative inference to conclude that the information concealed was damaging to
Defendants’ position that the June 19, 2014 letter release was obtained in this case
due to fraud.” (Doc. 71 at 6). However, the Court must first decide if any sanction
is appropriate before deciding what sanction to impose. Second, they request a
negative inference that Thor knew of certain defects during the Tuscany’s
manufacturing, which would relate to their misrepresentation during sale and
concealment of nonconformities and defects claims.
In diversity cases, “federal law governs the imposition of spoliation
sanctions.” Flury, 427 F.3d at 944. Applying federal spoliation law is consistent
with the general applicability of the Federal Rules of Evidence in diversity cases.
See id. However, “[f]ederal law in this circuit does not set forth specific
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guidelines,” so courts have relied on state law for guidance insofar as they are
“consistent with federal spoliation principles.” Id. Alabama law defines spoliation
as “an attempt by a party to suppress or destroy material evidence favorable to the
party’s adversary.” Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 176 (Ala.
2000). Importantly, a court may only draw an adverse inference from spoliation
when the “absence of that evidence is predicated on bad faith.” Bashir v. Amtrak,
119 F.3d 929, 931 (11th Cir. 1997). Although bad faith does not require malice,
“mere negligence in losing or destroying records is not sufficient to draw an
adverse inference.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th Cir.
2009).
Notably, the LaFerreras did not file a motion to compel the production of the
allegedly spoliated evidence. Instead, they waited until summary judgment to bring
the Court’s attention to the non-production. A motion to compel would have been
more appropriate because it would have required the parties to confer in good faith
and attempt to resolve their issues before bringing them to the Court’s attention.
At least in the case of the folder of information, which was produced after the
LaFerreras moved for sanctions, a good faith attempt to resolve these problems
would have obviated court involvement. However, the Court will address the
merits of the spoliation claims.
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1. Emails
The LaFerreras claim that an email from a chain of forwarded messages was
not produced. They allege that these emails would be relevant to proving that they
were fraudulently induced into signing the June 19, 2014 release, but they do not
allege that the emails are related to their fraud claims concerning the purchase and
repair of the Tuscany. The allegedly missing email was an email David Jones of
Thor forwarded to other recipients. Jones’s message—“Fyi your eyes only”—is
produced, but underneath this message, the document only shows the sender,
recipients, date, and subject of the forwarded email. As an initial matter, the
Plaintiffs have not proven that the email was not produced. An email with the same
sender, recipients, date, and subject as the blank forwarded email was produced in
the same document. 7 The only difference between the two emails was the
timestamp, which could be attributable to a number of reasons other than bad faith.
For example, Phil Houser sent the allegedly missing email at 1:02 PM, but the
document shows that David Jones forwarded that email at 12:29 PM the same day,
which would be impossible. This discrepancy casts doubt into the accuracy of the
7

The allegedly missing email reads, “From: Phil Houser / Date: 05/21/2014 1:02 PM (GMT 05:00) / To: Sales Support, David Jones / Cc: Adam Gudger, Andrew VanSchoick / Subject: RE:
LAFERRERA CONTACT.” (Doc. 72-2 at 3). However, it does not show the text of the email.
The same document shows an email that reads, “From: Phil Houser <[e-mail]> /
Sent: Wednesday, May 21, 2014 12:02 PM / To: Sales Support; David Jones / Cc: Adam
Gudger; Andrew VanSchoick / Subject: RE: LAFERRERA CONTACT. / It’s being handled. If
you have specific questions please feel free to contact me.” (Doc. 72-2 at 2).
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timestamps altogether and indicates that the supposedly blank email is not in fact
different from the email that was produced. Because these two emails are strikingly
similar and the timestamps do not appear to be accurate, the Court doubts that a
separate email existed.
However, even if an email existed and was not produced, the LaFerreras
have not provided any evidence of bad faith or intent to destroy the email.
Although the LaFerreras say that the emails were altered, they provide no proof
beyond that allegation. They have not shown a system-wide email deletion or
circumstantial proof of other clearly deleted emails, and they present no evidence
showing whether the alleged spoliation occurred after the duty to preserve the
emails arose. At most they argue that the alleged non-production occurred against
the backdrop of other failures to produce discovery. In the absence of bad faith, the
Court cannot grant an adverse inference based on the emails.
2. Dash Control Panel
The LaFerreras further argue that Thor did not preserve the dash control
panel replaced when the Tuscany was in Indiana being repaired. However, the
repair records (Doc. 80-4 at 15) show that the Freightliner Service Center replaced
the dash control panel. The LaFerreras have failed to show that Thor or Camping
World had custody or control of the panel after it was replaced or that they had a
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duty to preserve it. Thus, they failed to show how that evidence was spoliated. The
Court cannot grant the requested adverse inference. See Callahan v. Schultz, 783
F.2d 1543, 1545 (11th Cir.) (stating that an adverse inference is appropriate when a
party does not produce evidence “within his control”).
3. Folder of Information
The LaFerreras argue that a folder of information that accompanied the
Tuscany’s unit history file was also spoliated. However, Thor produced those
documents, (Doc. 80-4), and the Plaintiffs have not responded with any arguments
as to how those documents affect the grant or denial of summary judgment in this
case.
4. Sealed Documents
The LaFerreras argue that Thor did not produce certain “sealed
documents” that detail the Tuscany’s inspection process. Based on this nonproduction, they want an adverse inference on their implied misrepresentation
claims about defects that manifested during the manufacturing and inspection
process. However, those claims arose before the June 19, 2014 release. As
explained below, the release is valid, and any alleged spoliation of evidence relating
to the released claims is irrelevant.
C. June 19, 2014 Release
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“[I]n the absence of fraud, a release supported by a valuable consideration,
unambiguous in meaning, will be given effect according to the intention of the
parties from what appears within the four corners of the instrument itself . . . .”
Cleghorn v. Scribner, 597 So. 2d 693, 696 (Ala. 1992). Courts may not look at parol
evidence if the terms of the release are unambiguous, absent a clear showing of
fraud. See Jehle-Slauson Const. Co. v. Hood-Rich Architects and Consulting Eng’rs,
435 So. 2d 716, 720 (Ala. 1983). Additionally, if stated in the release, the parties can
release causes of action they did not know about at the time. See id.; Boles v.
Blackstock, 484 So. 2d 1077, 1082 (Ala. 1986).
However, a release will be invalid if a party was fraudulently induced into
executing it. See Cleghorn, 597 So. 2d at 695. “A party who has been the victim of a
misrepresentation of a material fact or the suppression of a material fact when there
is a duty to speak upon which it reasonably relied during negotiations can claim fraud
in the inducement.” Exxon Mobil Corp. v. Alabama Dept. of Conservation and
Natural Res., 986 So. 2d 1093, 1129 (2007) (emphasis in original). Specifically, the
fraud must “underlie the execution of the contract of release.” Jehle-Slauson
Constr. Co., 435 So. 2d at 719 (quoting Barbour v. Poncelor, 83 So. 130, 133 (Ala.
1919)).
In this case, the parties executed a release on June 19, 2014 in which the
Page 16 of 32

LaFerreras released Thor and Camping World
from any and all contract, warranty, equity and statutory claims,
demands, administrative proceedings and lawsuits of any kind arising
prior to the date this letter agreement is signed relating to your
purchase, ownership and use of the [Tuscany], including any claims
based upon prior warranty repairs and the time taken to complete the
same.
The parties agreed to release certain claims the LaFerreras might have had
against the Defendants. However, the release is ambiguous about which claims
were released. The parties appear to dispute the meaning of the phrase “arising
prior to the date of this letter agreement” in the release. The Defendants argue that
the release encompassed claims based on acts or omissions occurring before the
release, even those the LaFerreras did not know about at the time. The LaFerreras
assert that the release did not encompass claims they discovered the factual basis
for after signing the release. The plain text does not unambiguously indicate which
interpretation is correct. Alabama courts have addressed releases using similar
language. See Illinois Cent. R. Co. v. Johnston, 87 So. 866, 867 (Ala. 1920)
(addressing release saying, “arising in any manner . . . from or on account of
personal injuries sustained by me on or about November 18th, 1913); Jehle-Slauson,
435 So. 2d at 718 (addressing release saying “arising directly or indirectly out of or
in any manner related to work performed”); Hampton v. Liberty Nat. Life Ins. Co.,
706 So. 2d 1196, 1197 (Ala. Civ. App. 1996) (addressing release saying, “arising out
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of any incident which may have occurred or damages which may be alleged . . . as a
result of any act”). These cases demonstrate that many releases with similar
language address claims “arising” from a specific act or omission, rather than
claims arising before a certain date. Here, the parties’ release did not address
specific acts or omissions, with the exception of repair attempts. Thus, the parties’
intent is not clear as to whether they intended to release claims based on acts
occurring before June 19, 2014 or claims the LaFerreras knew about before June 19,
2014. Because the plain text of the release agreement does not provide any
clarification, the Court finds that the phrase “arising prior” is ambiguous. See
Nunnelley v. GE Capital Info. Tech. Solutions-North America, 730 So.2d 238, 241
(Ala. Civ. App. 1999) (“Whether a contract is ambiguous is a question of law for
the trial judge.”).
Despite this ambiguity, the release is effective for all claims the LaFerreras
had reason to know of before they signed the release—including all valid
misrepresentation claims, except for those dealing with the odometer discrepancy,
and all valid suppression claims. Therefore, to the extent that the ambiguity is
relevant, a question of material fact exists as to which claims were released.
Whitetail Dev. Corp. v. Nickelson, 689 So.2d 865, 867 (Ala. Civ. App. 1996) (“When
the terms of a contract are ambiguous in any way, however, the determination of
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the true meaning of that contract is a question of fact for the finder of fact.”).
Furthermore, the LaFerreras have not produced any evidence that they were
fraudulently induced into signing the release. They first claim that the allegedly
spoliated emails would have shown fraud, but the Court has rejected their
spoliation argument. Further, they have not otherwise pointed to a
misrepresentation regarding the release on which they relied to their detriment. At
most, the LaFerreras might argue that their misrepresentation claims as to the
purchase of the Tuscany might relate to the release. They claim that the
Defendants promised that the Tuscany was new and would be defect free.
However, the LaFerreras have not shown how they “reasonably relied during
negotiation[]” of the release on these initial promises made eight months earlier.
Exxon Mobil, 986 So. 2d at 1129. In fact, any potential reliance on a promise that the
Tuscany was defect free is belied by the numerous problems the LaFerreras
experienced. They took it in for repairs four times claiming several problems—
showing that they knew long before signing the release that the Tuscany was not
defect free. Therefore, the LaFerreras have failed to meet their burden to show
fraud in the inducement with regard to the release.
D. Misrepresentation and Suppression Claims
The LaFerreras make several interrelated misrepresentation and suppression
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claims about the Tuscany. First, they claim that numerous defects manifested with
the Tuscany during the manufacturing and inspection phase. They maintain that
Thor attempted to repair these defects but did not disclose them to the LaFerreras.
They claim that these repairs were so substantial that the Tuscany could not be
considered new as it was represented to be. Second, they claim that Defendants at
some point reset the Tuscany’s odometer to show substantially fewer miles than it
actually had. Third, they claim that Defendants represented to them that they
repaired all of the problems with the Tuscany after every repair attempt, when, in
actuality, the problems remained. Lastly, the LaFerreras’ claim that Defendants
failed to tell them that Thor’s $5,000 contribution to the trade-in was made to
obtain the release of liability for the Palazzo,8 rather than to incentivize the trade.
On the other hand, Defendants insist that the parties’ June 19, 2014 agreement
released all of these potential claims.
Misrepresentation requires a showing of “(1) a false representation (2)
concerning a material existing fact (3) relied upon by the plaintiff (4) who was
damaged as a proximate result.” Fisher v. Comer Plantation, Inc., 772 So. 2d 455,
465 (Ala. 2000) (quoting Baker v. Bennett, 603 So. 2d 928, 935 (Ala. 1992)); see Ala
Code § 6-5-101. Suppression requires a showing “(1) that [the defendant] had a
8

This is the release related to the Palazzo and is different from the June 19, 2014 release that
related to the Tuscany.
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duty to disclose the existing material fact; (2) that [the defendant] suppressed this
material fact; (3) that [the defendant’s] suppression of this fact induced [the
plaintiff] to act or to refrain from acting; and (4) that [the plaintiff] suffered actual
damage as a proximate result.” State Farm Fire and Casualty Co. v. Owen, 729 So.
2d 834, 837 (Ala. 1998); see Ala Code. § 6-5-102. Suppression differs from
misrepresentation in that it is based on a party’s silence on or concealment of a
material fact, rather than a false statement about that material fact. See Marshall v.
Crocker, 387 So. 2d 176, 179 (1980).
i. Defects in Manufacturing and Inspection
The LaFerreras released their misrepresentation and suppression claims
about the defects that manifested during manufacturing and inspection because
they knew about those problems before they signed the release. These claims are
based on problems that manifested when Thor employees inspected the Tuscany
after manufacturing—including electrical issues, generator issues, water leakage,
dishwasher problems, washing machine problems, windshield wiper malfunctions,
and a scratched TV. Although Thor attempted to repair these issues before sending
the Tuscany to Camping World, the LaFerreras experienced problems with the
dash control panel, exposed wiring, the generator, the windshield leaking, and the
alignment in or before December 2013. (Doc. 58-8 at 4–5, Brett LaFerrera Dep.
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244:18–246:6). Further, in April 2014, the LaFerreras took the Tuscany to
Camping World to repair the windshield wipers, the washing machine, the
dishwasher, and electrical issues. (Doc. 58-8 at 9, Brett LaFerrera Dep. 264:7–18).
Thus, the LaFerreras knew of a substantial number of problems that put them on
notice that the Tuscany might not have been a “new” vehicle and that the
Defendants might have known of the defects. As such, the release encompassed
these claims.
ii. Odometer Discrepancy
However, a question of fact remains about whether the LaFerreras released
the claims about the alleged mileage discrepancy on the odometer. Brett LaFerrera
stated that he did not know that the Tuscany was driven from Indiana to Alabama,
that he read eight miles on the odometer when he bought it, and that he relied on
the mileage reading during the purchase. The Defendants state that the odometer
always reflected what they say is the correct mileage—despite the documents
listing the mileage as eight—and that Brett LaFerrera could not have seen eight
miles on the odometer. Additionally, Defendants say that Brett LaFerrera drove
the Tuscany more than eight miles on his test drives. Accordingly, a question of
fact exists as to whether the odometer reflected the actual mileage and whether
Brett LaFerrera knew that the Tuscany had more than eight miles.
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These

questions

of

fact

directly

relate

to

whether

Defendants

misrepresented the mileage by resetting the odometer and listing eight miles on
sales documents, which would support a claim of intentional misrepresentation.
However, these facts do not support a suppression claim, which would require the
Defendants’ silence on or concealment of material facts. Here, Defendants were
not silent about the mileage. They each listed eight miles on documents they gave
to the LaFerreras. Thus, if the LaFerreras have a claim, it is based on a false
statement of the mileage, not the failure to disclose the mileage.
iii. Representations About Repairs
The LaFerreras explicitly released “any claims based upon prior warranty
repairs and the time taken to complete the same.” This language demonstrates that
the parties contemplated releasing claims based on repair attempts made before
June 19, 2014. However, even if they had not released the claims, the LaFerreras
failed to make out a claim for misrepresentation as to the repairs made before the
release. They claim that the Defendants misrepresented to them that the Tuscany
was fixed after every repair attempt. Yet, they have not provided evidence of any
specific instances of problems, misrepresentations about repairs made, and the
recurrence of those same problems, beyond saying, “they represented that it was
fixed and that this was not true.” (Doc. 76 at 25). Moreover, the LaFerreras have
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not pointed to which Defendant allegedly made these assurances that the problems
were fixed.
After the release, Thor attempted repairs in September 2014, including an
attempt to repair the electrical issues. The LaFerreras say that the electrical
problems were not fixed after this repair attempt. However, they state that a Thor
or Camping World employee said that they could not guarantee that problem was
fixed. Because they did not point the Court to a representation by a specific person
claiming that the electrical problems were fixed, the LaFerreras misrepresentation
claim as to this repair fails.
iv. Palazzo Release
Lastly, the LaFerreras have not demonstrated that either Defendant was
under a duty to tell them that Thor’s contribution to the trade was in exchange, at
least in part, for the Palazzo release. They have not shown a confidential
relationship or other special circumstances giving rise to a duty. See State Farm, 729
So. 2d 834 (stating that a duty generally required a confidential relationship or
other special circumstances). Additionally, the LaFerreras have not shown how
they would have acted differently if they knew Thor’s intent in making the
contribution. They have not provided evidence showing they would not have
traded the Palazzo in if they knew the $5,000 was given to obtain the release. In
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fact, because they read and signed the release, they knew that Thor sought a release
of claims related to the Palazzo, yet they proceeded with the transaction.
Accordingly, they have failed to make out a claim of suppression based on these
facts.
E. Failure of Warranty
Generally, goods sold by merchants have an implied warranty of
merchantability and, on some occasions, an implied warranty of fitness for a
particular purpose. See Ala. Code §§ 7-2-314, 315. Sellers can disclaim these
implied warranties if they follow certain statutory requirements. Ala. Code § 7-2316. For the implied warranty of merchantability, if a disclaimer is in writing, it
must mention merchantability and be conspicuous. Id. For the implied warranty of
fitness for a particular purpose, the disclaimer must be in writing and conspicuous.
Id. Additionally, “[u]nless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like ‘as is.’” Id. However, a seller may not
necessarily disclaim an express warranty in the same manner. When words or
conduct tending to create an express warranty are negated by other words or
conduct limiting such express warranty, they shall be construed as consistent when
reasonable, but otherwise, the negation of the warranty shall be inoperative, subject
to the parol evidence rule. Id. The parol evidence rule provides that “[t]erms . . .
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set forth in a writing intended by the parties as a final expression of their agreement
with respect to such terms as are included therein may not be contradicted by
evidence of any prior agreement or of a contemporaneous oral agreement.” Ala.
Code § 7-2-202.
Further, sellers can limit the remedies available to a buyer for breach of
warranty. For instance, a seller may limit them to repairing or replacing
nonconforming goods or parts. See Ala. Code § 7-2-719. Alabama Courts have
typically characterized such repair or replace warranties as express warranties. 9 See
Ag-Chem Equip. Co. v. Limestone Farmers Co-op., Inc., 567 So. 2d 250, 252 (Ala.
1990); Lipham v. General Motors Corp., 665 So.2d 190, 192 (Ala. 1995);
DaimlerChrysler Corp. v. Morrow, 895 So.2d 861, 865 (2004). However, when a
warranty with an exclusive remedy fails its essential purpose, the buyer regains the
statutory remedies, including consequential and incidental damages. See Ala. Code
§ 7-2-719; Winchester v. McCulloch Bros. Garage, Inc., 388 So. 2d 927, 929 (Ala.
1980) (holding that Alabama does not uphold disclaimers of consequential and
incidental damages when an exclusive or limited remedy fails its essential purpose).
A repair or replace warranty fails its essential purpose if the warrantor refuses to
9

Repair warranties are not the type of express warranties created under Ala. Code § 7-2-313, as
they are not affirmations of fact relating to the goods. However, whether or not a repair warranty
is properly called an express warranty, the LaFerreras have sufficiently alleged and argued that
the warranty from Thor failed its essential purpose under Ala. Code § 7-2-719.
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repair or replace the defect or does not repair or replace it within a reasonable time.
See Ag-Chem Equip. Co., 567 So. 2d 250 at 252.
Camping World effectively disclaimed any warranties in its agreement with
the LaFerreras. 10 The agreement stated, “ALL VEHICLES ARE SOLD ‘AS IS’,
WITH NO EXPRESS OR IMPLIED WARRANTIES,” and additionally,
I UNDERSTAND THAT THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND ALL OTHER WARRANTIES EXPRESS OR
IMPLIED ARE EXCLUDED BY YOU FROM THIS
TRANSACTION AND SHALL NOT APPLY TO THE GOODS
SOLD.
Further, it says, “This agreement contains the entire understanding between you
and me and no other representation or inducement, verbal or written, has been
made which is not contained in this contract.” The LaFerreras did not respond to
Camping World’s argument that it did not adopt Thor’s warranty, and they have
not argued that the disclaimer of warranties does not meet the statutory
requirements. 11 At one point, they argued that Camping World’s disclaimer failed
its essential purpose, but the “essential purpose” standard only applies to
exclusive or limited warranties under Ala. Code § 7-2-719, not disclaimers made
10

The LaFerreras have not argued that the odometer representations constituted an express
warranty. Thus, the Court will not find a warranty claim that they have not argued.
11
The writing states the Tuscany is sold “as is,” and the additional disclaimers mention
merchantability and are in conspicuous capital letters. Thus, the disclaimers appear to meet the
statutory requirements. See Ala. Code § 7-2-316; Fleming Farms v. Dixie Ag. Supply, Inc., 631 So.
2d 922, 927 (Ala. 1994) (holding disclaimer in all capital letters was conspicuous).
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under Ala. Code § 7-2-316. Accordingly, because the parties intended the
document to be a final expression of their agreement, as evidenced by the merger
clause, 12 the Court cannot contradict the clear disclaimer of warranties with
evidence of other representations allegedly made by Camping World, including any
statements relating to the Gold Seal Inspection. Thus, any warranty claims against
Camping World are due to be dismissed.
Moreover, Thor disclaimed all implied warranties 13 and stated in the
warranty document that it was not making any express warranties about the quality
of the Tuscany. Instead, it provided the exclusive remedy of repairing or replacing
any defect in the workmanship or materials used, with a number of exceptions not
relevant here. The LaFerreras argue that the Gold Seal Inspection brochure and
assurances made by Camping World employees warranted that the Tuscany would
be defect free. However, even if Thor made such a warranty, it would not provide a
remedy additional to that provided in the limited warranty, which essentially
obligated Thor to repair or replace any defect. Thus, the Court need not decide
whether Thor warranted the Tuscany would be defect free.
Regardless, the LaFerreras argue that the electrical problems with the dash
control panel persisted because a Thor or Camping World employee told them that
12
13

The LaFerreras have not argued that the release was not a final expression of their agreement.
The LaFerreras have not argued that the disclaimer is ineffective as to the implied warranties.
Page 28 of 32

Thor could never isolate the problem. 14 Thor states that it repaired all defects with
the Tuscany. Because the parties dispute whether this problem persisted, a
question of fact exists as to whether the Tuscany had a defect. Furthermore, if it
was defective, then another question of fact exists as to whether Thor failed to
repair or replace the defect within a reasonable time and thus caused the warranty
to fail its essential purpose. Accordingly, Defendants’ Motion as to Thor’s liability
for a breach of the limited warranty is due to be denied.
F. Statute of Limitations
Thor argues that the LaFerreras’ claims under the first warranty are
untimely because they failed to bring them within ninety days of the end of the one
year warranty period, which would have been on January 29, 2014. The statute of
limitations for contracts of sale, including those with repair or replace warranties, is
four years. See Ala. Code § 7-2-725; Brown v. General Motors Corp., 14 So. 3d 104,
108 (2009). The parties may agree to reduce the limitations period, as long as it is
not less than one year. In a typical breach of warranty case relating to the quality of
the goods, the breach occurs, and thus the cause of action accrues, when tender of
delivery is made. See Ala. Code § 7-2-725. However, a cause of action for a breach
of a warranty obligating the warrantor to repair or replace defects accrues when the
14

Defendants argue that this statement in hearsay, but because it is an opposing party’s
statement, it is excluded from hearsay. Fed. R. Evid. 801.
Page 29 of 32

warrantor “breaches its contractual obligation to repair that good.” Brown, 14 So.
3d at 113. Thus, the limitations period, whether contractual or statutory, begins to
run when the warrantor fails to repair or replace a defect, rather than when tender
of delivery is made. See id.; American Suzuki Motor Corp. v. Burns, 81 So. 3d 320,
325 (Ala. 2011).
The LaFerreras and Thor agreed to a one year repair or replace warranty,
ending on October 31, 2014. The warranty agreement provided that any action
brought to enforce it had to be brought by January 29, 2014. Because a cause of
action accrues at the time a warrantor fails to repair or replace a defect, any breach
that occurred less than one year before January 29, 2014 would necessarily have a
limitations period of less than one year. Specifically, Thor returned the Tuscany to
the LaFerreras on October 6, 2014 after making repairs. If the defect persisted after
the repairs and caused the warranty to fail its essential purpose, then the
LaFerreras had less than four months from the time of breach to bring their claim,
making the limitations period less than one year. Thus, the parties’ agreement to
require actions for failure to repair be brought within ninety days of the end of the
warranty is invalid in light of Ala. Code § 7-2-725. As a result, the statutory period
of four years applies in this case, making the LaFerreras’ warranty claims timely.
G. Magnuson-Moss Warranty Act Claim
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The MMWA, 15 U.S.C. §§ 2301–2312, is largely a disclosure statute that
establishes certain requirements for written warranties. See 15 U.S.C. § 2302;
Cunningham v. Fleetwood Homes of Ga., Inc., 253 F.3d 611, 617 (11th Cir. 2001). In
addition to its disclosure requirements, the MMWA provides a federal cause of
action against a warrantor who fails to comply with an obligation under a written
warranty, including an obligation to repair or replace a defect. See 15 U.S.C. § 2310;
Cunningham, 253 F.3d at 617 n.5 (11th Cir. 2001). The parties do not dispute that
the limited warranty provided by Thor is governed by the MMWA. Accordingly,
because the LaFerreras have presented evidence that Thor failed to repair the
electrical problems, they have a claim under the MMWA against Thor, and
Defendants’ Motion for Summary Judgment is due to denied as to the MMWA
claim against Thor. However, Camping World did not provide a written warranty
and did not adopt Thor’s warranty. Thus, any MMWA claim against Camping
World is due to be dismissed.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is

due to be DENIED as to the misrepresentation claims regarding the odometer
against both Defendants and the breach of the limited warranty and MMWA claims
against Thor. The Defendants’ motion is due to be GRANTED as to all other
Page 31 of 32

claims. Additionally, the LaFerreras Motion for Summary Judgment and Motion to
Preclude Defendants’ Argument, are due to be DENIED. Further, Defendants’
Motion to Strike is MOOT. A separate order consistent with this opinion will be
entered.
Done and Ordered this 21st day of March 2016.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
182185

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