Thomas v. Winnebago Industries, Inc. et al
Filing
59
ORDER granting 36 --motion for summary judgment; granting 22 --motion for summary judgment; directing the clerk to ENTER JUDGMENT for the defendants and against the plaintiff and to CLOSE the case. Signed by Judge Steven D. Merryday on 5/30/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEVEN THOMAS,
Plaintiff,
v.
CASE NO. 8:16-cv-177-T-23TGW
WINNEBAGO
INDUSTRIES, INC., et al.,
Defendants.
____________________________________/
ORDER
On December 29, 2014, Steven Thomas bought a Winnebago recreational
vehicle from Camping World in Dover, Florida, for $252,495, excluding the sales
tax, the finance charge, a trade-in allowance, and miscellaneous fees. Winnebago
warrantied the interior of the vehicle for twelve months, and Freightliner warrantied
the chassis for twelve months. Suing (Doc. 1) Winnebago and Freightliner under the
Magnuson-Moss Warranty Act for breach of express warranty, Thomas alleges that
eighteen “problems” plague the vehicle:
(A) A noise from the driver’s-side “slide-out room”;
(B) The passenger seat leans right;
(C) The air bed leaks air;
(D) The vehicle “pulls right” while driving at highway speeds;
(E) A “drive-line vibration” between 62 and 65 miles per hour;
(F) The “air ride is off in the rear”;
(G) The air suspension bleeds air overnight;
(H) A tire is “not centered” in the wheel well;
(I) A bathroom cabinet opens while driving;
(J) A broken rear mudflap;
(K) The driver’s window “leaks in heavy rain”;
(L) A broken plastic cover on the refrigerator;
(M) The front door of the coach sometimes fails to close;
(N) Four nails protrude from the bathroom wall;
(O) The washing machine vibrates while on;
(P) A panel in the bathroom “is separating from the wall”;
(Q) A missing wall panel behind the slide door in the bedroom; and
(R) An ineffective repair of the couch.
(Doc. 23-2 at 16, Thomas’s response to an interrogatory) Thomas alleges that the
defendants failed to repair the purported defects despite several opportunities. The
defendants move (Docs. 22, 36) for summary judgment.
DISCUSSION
Section 2310(d) of the Magnuson-Moss Warranty Act provides a federal venue
for a warranty claim if the amount in controversy from the claim exceeds $50,000,
but a state’s substantive law governs the claim.1 Bailey v. Monaco Coach Corp., 350
F.Supp.2d 1036, 1041 (N.D. Ga. 2004) (Thrash, J.), aff’d, 168 Fed. Appx. 893
(11th Cir. 2006). To prevail on a breach-of-warranty claim, Thomas must prove that
a defendant failed to repair a defect after Thomas both notified the defendant about
the defect and afforded the defendant a reasonable opportunity to repair.
§ 672.607(3)(a), Florida Statutes (notice); 15 U.S.C. § 2310(e) (opportunity to repair).
1
Although primarily a jurisdiction-conferring statute, the Magnuson-Moss Warranty Act
includes several substantive provisions. For example, the act requires that a customer provide a
warrantor a “reasonable opportunity to cure” a failure to comply with the warranty before the
customer sues. 15 U.S.C. § 2310(e).
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1. Thomas proffers no evidence of a defect in the Freightliner chassis.
Limited to the vehicle’s chassis, the Freightliner warranty conceivably might
cover five of the purported defects (D, E, F, G, and H). Unless an ordinary juror can
reasonably attribute a product’s failure to a defect rather than to another cause (for
example, ordinary wear and tear, abnormal usage, or improper maintenance), the
plaintiff must proffer competent and admissible opinion testimony that a
manufacturing defect more likely than not caused the failure. See Bailey,
350 F.Supp.2d at 1045. In Bailey, the plaintiff alleged that the “squeaking” of a
recreational vehicle’s brakes evidenced a defect, but the plaintiff’s expert “expressed
no opinion” whether the “noisy brake system constitue[d] a defect.” 350 F.Supp.2d
at 1045. Because the “proper functioning of a motorhome brake system is not within
the reasonable purview of an average layperson,” the plaintiff’s failure to proffer
expert testimony that a defect caused the “squeaking” resulted in summary judgment
for the defendant. Bailey, 350 F.Supp.2d at 1045. Because several other causes,
including abnormal use, a collision, misalignment of the tires, improper installation
of shock absorbers, or a defect in another component of the vehicle, might explain
the purported problems conceivably attributable to Freightliner, Thomas must proffer
expert testimony that a chassis defect likely caused the vehicle’s problems. Absent
competent testimony of causation, an ordinary juror cannot reasonably infer that an
unrepaired defect likely caused the problems.
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Freightliner’s expert, Dennis Rostenbach, examined the vehicle and found no
unrepaired defect. (Doc. 35) To refute Freightliner’s argument that the absence of
an unrepaired defect requires granting summary judgment for Freightliner, Thomas
proffers the testimony of George Agutter, a purported recreational-vehicle expert.
Agutter, who after several years in the boating and the home-inspection industries
founded an “RV pre-purchase inspection business” in 2011, “visually inspected”
Thomas’s vehicle.2 (Doc. 24-2) Agutter neither reviewed the vehicle’s service history
nor performed a diagnostic test. (Agutter Depo. at 73) Based on the visual
inspection, Agutter recommends “repair[ing]” or “replac[ing]” several items.
(Doc. 24-2) But Agutter, who admittedly proffers no opinion about the cause of a
problem in the vehicle (Agutter Depo. at 146–47), concedes that normal “wear and
tear” or “scheduled owner’s maintenance” might explain the need for service.
(Agutter Depo. at 73–74) Agutter’s testimony, which omits any opinion on
causation, cannot assist the finder of fact and, consequently, cannot evidence a
factual dispute that precludes granting summary judgment for Freightliner. See
Pearson v. Winnebago Indus., Inc., 2016 WL 6893937 at *8 (M.D. Fla. Nov. 23, 2016)
2
Also, Thomas proffers the affidavits of Timothy Crowder and Mark Hodge, who both
worked at Camping World. The defendants argue (Doc. 33 and Doc. 36 at 5) that the affidavits
cannot contribute to the resolution of the motions for summary judgment because Thomas failed to
disclose the witnesses. Thomas argues (Doc. 57) that the defendants suffered no harm from the
failure to disclose, but the failure deprived the defendants of the opportunity to depose the witnesses.
Because the failure to disclose was neither “substantially justified” nor “harmless,” under
Rule 37(c)(1) the affidavits cannot contribute to the resolution of the motions for summary
judgment. Even if admissible, the conclusory affidavits establish no material dispute of fact in light of
Agutter’s and Rostenbach’s testimony.
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(Lammens, Mag.) (holding that Agutter’s identification of a “potential problem” fails
to show a material dispute “regarding the existence of a manufacturer’s defect”).
Also, Agutter “defers” to Freightliner expert Rostenbach to determine whether
Thomas’s vehicle suffers from a chassis defect. (Agutter Depo. at 84–90 and 173) As
noted above, Rostenbach opines that the vehicle suffers from no defect covered by
Freightliner’s limited warranty. (Doc. 35-3) Rostenbach states that the tires require
alignment, but Freightliner’s limited warranty excludes alignment. (Doc. 35-2 at 23)
Also, Rostenbach states that the misaligned tires “can be easily corrected” for “less
than $2,000.” (Doc. 35-3 at 3) The opinion of Freightliner’s expert, to whom the
plaintiff’s purported expert defers, shows no unrepaired Freightliner defect.
As in Bailey, the plaintiff’s purported expert expresses no opinion that an
unrepaired defect caused the vehicle’s problems. Even if Agutter opines that an
unrepaired defect persists, Agutter’s “expert” opinion is inadmissible. Under
Rule 702, Federal Rules of Evidence, a witness qualified “by knowledge, skill,
experience, training, or education” may testify as an expert. Agutter, who lacks a
certification from the Recreational Vehicle Industry of America (Agutter Depo.
at 17), who lacks any “accolades, accreditations, [or] certifications that pertain to
recreational vehicles” (Agutter Depo. at 24), who until 2011 lacked any “recreational
vehicle experience whatsoever” (Agutter Depo. at 26), and who lacks training in the
repair of a recreational vehicle (Agutter Depo. at 26, 41), is unqualified to identify a
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defect in the vehicle. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
requires excluding Agutter’s testimony.
Admittedly not trained or experienced in the maintenance or repair of a
recreational vehicle (Thomas Depo. at 34, 42–44, 136), Thomas lacks the knowledge
necessary to isolate a defect as the cause of the vehicle’s purported problems.
Rostenbach’s unrebutted testimony shows the absence of an unrepaired defect, and
Thomas’s lay opinion cannot defeat summary judgment. See Pearson v. Winnebago
Indus., Inc., 2016 WL 6893937 at *6 (M.D. Fla. Nov. 23, 2016) (Lammens, J.)
(holding that the plaintiffs could not “overcome the [expert] evidence of no defect
simply by offering their own personal opinion that the RV . . . was not functioning
properly”); Davenport v. Thor Motor Coach, Inc., 2015 WL 13021664 at *5 (M.D. Fla.
Aug. 6, 2015) (Adams, J.) (granting summary judgment where the defendant’s expert
found no defect and where the plaintiffs “have no testifying expert and have admitted
that they possess no technical knowledge” about a recreational vehicle’s operation);
McLaughlin v. Monaco RV LLC, 2015 WL 5355465 (M.D .Fla. Sept. 14, 2005)
(Honeywell, J.) (same).
Thomas argues that Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981)
(Ervin, J.), permits an inference that Thomas’s vehicle suffers from a defect and
requires denying summary judgment. In Cassisi, the plaintiff’s dryer caught fire, and
the fire consumed the house. Although the plaintiff’s expert opined that the fire
began inside the dryer, the expert could not “pinpoint a specific defect within the
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dryer,” which was severely damaged. Explaining that a non-defective dryer will not
combust spontaneously, Cassisi holds that proof of a “malfunction” during normal
use permits an inference of a defect, which inference requires denying summary
judgment.3 396 So. 2d at 1151–52. Even if a plaintiff shows proof of a
“malfunction,” a defendant can avoid trial by “showing [that] there are no genuine
issues of material fact to be resolved by a jury rather than suggest[ing] possible
reasons for the product’s malfunction.” Cassisi, 396 So. 2d at 1151. Rostenbach’s
expert testimony excludes the possibility that an unrepaired defect caused the
vehicle’s problems. Even if admissible, Agutter’s opinion — which omits a
conclusion about the cause of the vehicle’s problems — establishes no material
dispute about whether a defect caused the vehicle’s problems. Because Thomas lacks
the requisite qualifications to identify a defect, Thomas’s lay opinion cannot defeat
summary judgment. See Pearson, 2016 WL 6893937 at *6–*7 and n.12 (granting
summary judgment for the defendant where defendant’s expert identified no defect
3
To invoke the Cassisi inference, a plaintiff must proffer sufficient proof of a malfunction.
Ainsworth v. KLI, Inc., 967 So. 2d 296, 302–03 (Fla. 4th DCA 2007) (per curiam) (explaining that a
plaintiff cannot invoke the Cassisi inference if the plaintiff fails to identify “any tangible evidence
demonstrating that there was a malfunction caused by a defect”); Beauregard v. Continental Tire N.A.,
Inc., 435 Fed.Appx. 877, 880–81 (11th Cir. 2011). If several causes might explain a product’s failure
and if the plaintiff fails to proffer evidence permitting a fact-finder to reasonably attribute a failure to
a defect, the Cassisi inference is inapposite. See Beauregard, 435 Fed.Appx. at 880–81. The plaintiff’s
expert, Agutter, admits that several causes (for example, normal “wear and tear” or the need for
regular maintenance) might explain the vehicle’s problems. (Agutter Depo. at 73–74) Because
Thomas proffers insufficient proof of a malfunction, the Cassisi inference is unavailable. See Pearson,
2016 WL 6893937 at *6 n.12 (rejecting the plaintiff’s request for a Cassisi inference where the
defendant’s expert identified no defect and where the plaintiff rebutted the expert’s opinion by
proffering only the plaintiff’s own lay opinion).
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and where the plaintiffs proffered only “their own personal opinions that the RV . . .
was not functioning properly”).
2. Thomas need not proffer expert testimony about several purported defects in
Winnebago’s craftsmanship or materials.
Winnebago’s expert, Enoch Hutchcraft, identifies no unrepaired defect
covered by Winnebago’s warranty. (Doc. 23-1) Winnebago argues (Doc. 22
at 14–15) that Hutchcraft’s opinion excludes the possibility of an unrepaired defect
caused by Winnebago’s materials or craftsmanship. According to Winnebago,
Thomas’s failure to rebut Hutchcraft’s opinion with reliable expert testimony requires
granting summary judgment for Winnebago. Thomas correctly responds that he
need not proffer expert testimony of a simple problem (as opposed to a “technically
complex” problem) and that Thomas’s opinion suffices to show a factual dispute.
(Doc. 30 at 7 (“Winnebago does not address whether, and if so how, the complaints
of Mr. Thomas are so technically complex that the jury would not be able to
understand them, thus necessitating expert testimony.”)) Of the eighteen purported
defects identified in Thomas’s interrogatory, nine appear not to require expert
testimony:4
(B) The passenger seat leans right;
(I) A bathroom cabinet opens while driving;
(J) A broken rear mudflap;
(K) The driver’s window “leaks in heavy rain”;
(M) The front door of the coach sometimes fails to close;
4
According to Hutchcraft, Winnebago’s warranty excludes a third-party vendor’s item, for
example, the air bed (C), the refrigerator (L), and the washing machine (O). Thomas fails to rebut
Hutchcraft’s assertion about the third-party items.
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(N) Four nails protrude from the bathroom wall;
(P) A panel in the bathroom “is separating from the wall”;
(Q) A missing wall panel behind the slide door in the bedroom; and
(R) An ineffective repair of the couch.
Unlike in Bailey and unlike the problems purportedly attributable to the Freightliner
chassis, an ordinary juror likely can infer a defect in these items without expert
testimony, and Thomas’s testimony suffices to establish a factual dispute about the
problems above.
3. Thomas fails to proffer evidence of damages.
Even though Thomas’s testimony evidences an unrepaired defect from
Winnebago’s craftsmanship or materials, Thomas fails to proffer evidence about the
diminution in value from the purported defects. Under Section 672.714,
Florida Statutes, which mirrors the Uniform Commercial Code, the measure of
damages is the difference in value at the time of acceptance between a defective and a
non-defective product. Although a plaintiff need not establish damages with
scientific precision, a finder of fact cannot calculate damages based on “speculation
or guesswork.” Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989)
(Schoonover, J.).
Not knowledgeable about recreational vehicles (Thomas Depo. at 142),
Thomas admittedly cannot estimate the damages from the purported defects.5
5
Although Thomas admits in the deposition not knowing the diminution in value from the
purported defects, in a post-deposition affidavit Thomas opines that the purported defects reduced
the vehicle’s value on December 29, 2014, by approximately $110,000. (Doc. 26-1 at 4, explaining
that the vehicle [which cost $252,495] “was not worth more than $140,000 on the date that I
purchased it”) Because Thomas’s affidavit conflicts directly with his deposition testimony, the
(continued...)
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(Thomas Depo. at 228, stating that “I don’t know” the value of the vehicle “given . . .
all of these complaints”) Based on “Internet research” and a National Automobile
Dealers Association guidebook, Thomas estimates the vehicle’s value at $150,000 to
$160,000 as of August 2016 “if [the vehicle] was all working.” (Thomas Depo.
at 227–28) For two reasons, Thomas’s approximation cannot guide a fact-finder’s
damages determination. First, Thomas’s qualifier (“if [the vehicle] was all working”)
circumvents the disputed issue, the decline in value attributable to the purported
defects. Second, Thomas’s August 2016 estimate includes the depreciation from
ten-thousand miles and twenty months of use, but to assess damages a finder of fact
must determine the vehicle’s value on December 29, 2014, the day of acceptance.
Thomas proffers no appraisal, and the absence of competent evidence about damages
requires a finder of fact to speculate impermissibly about the diminution in value on
December 29, 2014. See Johnson v. Thor Motor Coach, Inc., 5:15-cv-85
(M.D. Fla. Aug. 1, 2016) (Lammens, Mag.) (granting summary judgment for the
defendant because the plaintiff offered no evidence of the diminution in value
attributable to a purported defect as of the date of acceptance); Davenport,
2015 WL 13021664 at *6 (same).
5
(...continued)
affidavit cannot establish a genuine dispute of fact. Van T. Junkins and Assocs., Inc. v. U.S. Indus., Inc.,
736 F.2d 656, 658–59 (11th Cir. 1984) (affirming summary judgment because the plaintiff’s affidavit,
which conflicted with the plaintiff’s deposition, created no genuine dispute of fact).
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CONCLUSION
Thomas complains of several defects in a recreational vehicle. But Thomas’s
purported expert, George Agutter, expresses no opinion whether the vehicle’s
problems resulted from a defect or from another cause, for example, ordinary wear
and tear or inadequate maintenance. Agutter defers to a Freightliner-certified
technician to determine whether the vehicle suffers from an unrepaired defect, and
Freightliner-certified technician Dennis Rostenbach identifies no unrepaired defect in
Freightliner’s craftsmanship or materials. Also, Thomas — who “do[es] not know”
the diminution in value attributable to the purported defects — fails to proffer an
appraisal or other evidence of damages. Viewing the record favorably to Thomas, no
reasonable finder of fact could conclude that Freightliner failed to repair a defect.
Even if Thomas shows evidence of an unrepaired defect, no competent evidence
shows the diminution in value attributable on December 29, 2014, to the purported
defects. Freightliner’s motion (Doc. 36) for summary judgment is GRANTED.
In contrast to the purported defects in the Freightliner chassis, nine purported
defects in Winnebago’s craftsmanship or materials appear not to require expert
testimony. However, Thomas proffers no appraisal or other competent evidence of
damages, which failure precludes determining the diminution in value on
December 29, 2014. Because Thomas fails to proffer evidence of damages,
Winnebago’s motion (Doc. 22) for summary judgment is GRANTED. The clerk is
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directed to enter judgment for the defendants and against the plaintiff and to close the
case.
ORDERED in Tampa, Florida, on May 30, 2017.
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