Hoopes et al v. Gulf Stream Coach Inc et al
Filing
75
OPINION AND ORDER GRANTING IN PART and DENYING IN PART 64 MOTION for Partial Summary Judgment by Defendant Gulf Stream Coach Inc. The Motion is GRANTED as to Plaintiffs' Ohio Lemon Law Act, Ohio Consumer Sales Practices Act, Indiana Lemon Law Act, state law negligence claims, and Plaintiffs' alternative prayer for relief on the basis of revocation and/or rescission of the contract. The Motion is DENIED as to Plaintiffs' Indiana Deceptive Consumer Sales Act claim. Signed by Judge Rudy Lozano on 9/29/14. (cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
NATHAN HOOPES and
DEVON HOOPES,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
vs.
GULF STREAM COACH, INC.,
Defendant.
NO. 1:10-CV-365
OPINION AND ORDER
This matter is before the Court on the Motion for Partial
Summary Judgment, filed by Defendant Gulf Stream Coach, Inc. on
December 16, 2013.
(DE #64.)
For the reasons set forth below, the
motion is GRANTED IN PART AND DENIED IN PART.
The motion is
GRANTED as to Plaintiffs’ Ohio Lemon Law Act, Ohio Consumer Sales
Practices Act, Indiana Lemon Law Act, state law negligence claims,
and Plaintiffs’ alternative prayer for relief on the basis of
revocation and/or rescission of the contract.
However, the motion
is DENIED as to Plaintiffs’ Indiana Deceptive Consumer Sales Act
claim.
PROCEDURAL HISTORY
This case was originally brought by Plaintiffs, Nathan and
Devon Hoopes, (collectively “Plaintiffs”) against two Defendants,
1
Gulf Stream Coach, Inc. (“Gulf Stream”) and General RV Center, Inc.
(“GRV”).
GRV filed a Motion for Summary Judgment to Enforce
Arbitration Clause on May 16, 2011. This Court denied GRV’s motion
to compel arbitration but granted GRV’s motion seeking dismissal of
the
claims
against
it
as
set
forth
in
Plaintiffs’
amended
complaint.
Gulf Stream filed the instant Motion for Summary Judgment on
December 16, 2013.
Plaintiffs filed a response to Defendant’s
Motion for Partial Summary Judgment on January 13, 2014. Defendant
then filed a reply to Plaintiffs’ response on February 3, 2014.
Thus,
the
instant
motion
is
now
fully
briefed
and
ripe
for
adjudication.
FACTS
For purposes of this motion, the material facts are largely
undisputed.1
On January 23, 2010, Plaintiffs, who reside together
in Ohio, purchased a Gulf Stream Super Nova recreational vehicle
with a VIN of 1HTMPAFM29H542344 (the “RV”).
Nathan Hoopes, a high
school graduate, owns and operates an aluminum smelting company.
He attended a college of technology and took classes in electrical
and
mechanical
engineering.
Devon
Hoopes
administration for Mercy Medical Center.
1
is
a
manager
She graduated from
Because the facts in this case are largely undisputed, albeit not their
legal significance, the Court will provide citations only where directly
quoting the evidence or where the parties dispute the facts.
2
of
college with a bachelor’s degree in business. The RV at the center
of this dispute was manufactured by Gulf Stream, an Indiana
corporation,
in
Indiana
and
sold
to
Plaintiffs
by
GRV,
an
independent, authorized dealer of Gulf Stream vehicles, in Ohio for
a total taxable price of $132,004.33 and a total delivered price of
$139,645.11.2
GRV originally bought the RV from Gulf Stream for
$129,880.00.
At the time of purchase, Plaintiffs and GRV entered into a
Purchase
Agreement,
which
was
signed
by
Plaintiffs
representative of GRV (the “Purchase Agreement”).
and
a
The Purchase
Agreement contains a choice of law provision which states, in part:
THIS PURCHASE AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING BETWEEN [GRV] AND PURCHASER. NO
ONE HAS AUTHORITY TO MAKE ANY REPRESENTATION
BEYOND
THIS
AGREEMENT
AND
NO
OTHER
REPRESENTATIONS OR INDUCEMENTS, VERBAL OR
WRITTEN HAVE BEEN MADE, WHICH ARE NOT
CONTAINED ON THIS DOCUMENT. BY SIGNING BELOW
PURCHASER ACKNOWLEDGES THAT PURCHASER HAS
RECEIVED A COPY OF THIS AGREEMENT AND THAT
PURCHASER HAS READ AND UNDERSTANDS THE TERMS
OF THIS AGREEMENT, INCLUDING THOSE PRINTED ON
THE REVERSE SIDE, WHICH INCLUDE AN ARBITRATION
AGREEMENT, AN “AS IS” CLAUSE, AND A CHOICE OF
LAW PROVISION INDICATING THAT MICHIGAN LAW
WILL APPLY TO ANY POTENTIAL DISPUTES.
(Purchase Agreement, DE #67-9, p. 2.) (capitalization in original).
Plaintiffs’ signatures are recorded directly below this language.
The
Court
previously
determined
2
that
the
substantive
law
of
GRV is a Michigan corporation but is authorized to do business in Ohio and
maintains a retail facility there.
3
Michigan applied to the claims between Plaintiffs and GRV. (See DE
#35, pp. 9-11.)
According to Plaintiffs, at the time of purchase and “near the
end of the paperwork signing process,” the GRV representative
indicated a written Gulf Stream Motorized Limited Warranty (the
“Limited Warranty”) existed but would not be provided to Plaintiffs
until they returned to trade in their old vehicle. (Aff. of Nathan
Hoopes, ¶ 7, DE #70, p. 23.)
representative
discussed
some
Plaintiffs state that the GRV
details
and
explained
that
the
Limited Warranty did not cover the chassis or any inside appliances
and urged them to purchase an extended warranty to cover the entire
RV.
(Id.)
Plaintiffs agreed to do so.
(Id.)
Plaintiffs contend
that they did not see the actual Limited Warranty itself or any
information pertaining to it on the day they purchased the RV.
(Id. at ¶¶ 4-7, pp. 23.)
Despite this contention, however, the
signed Purchase Agreement contains the following language:
PURCHASER UNDERSTANDS THAT THERE MAY BE
WRITTEN WARRANTIES COVERING THIS RV, BUT THAT
THESE
WARRANTIES
ARE
OFFERED
BY
THE
MANUFACTURERS OF THE RV, IT’S (sic) COMPONENTS
AND/OR
IT’S
(sic)
APPLIANCES.
THESE
WARRANTIES HAVE BEEN PROVIDED TO PURCHASER AND
PURCHASER HAS READ AND UNDERSTANDS THESE
WARRANTIES. PURCHASER UNDERSTANDS THAT DEALER
OFFERS NO WARRANTIES, EXPRESS OR IMPLIED, ON
THIS RV.
(Purchase Agreement, DE #67-9, p. 3.) (capitalization in original).
4
It is undisputed that the Limited Warranty was not actually
signed by Plaintiffs until January 30, 2010, when they returned to
GRV to drop off their old vehicle for trade-in.
According to
Plaintiffs, they were standing by GRV’s popcorn machine when the
same
GRV
representative
who
initiated
the
sales
paperwork
approached them, made some “general talk” about the RV being ready
for pick up in a few days, and asked them to sign the Limited
Warranty.
(Aff. of Nathan Hoopes, ¶ 11, DE #70, p. 24.)
“He put
the warranty paper down on the table next to the popcorn machine
stand and said to sign right here and pointed to where to sign, so
we did.”
(Id.)
Both Plaintiffs’ signatures are recorded on the
signature lines located directly below the choice of law provision
which states:
Exclusive jurisdiction for deciding any
claims, demands or causes of action for
defects or representations of any nature or
damages
due
from
such
defects
or
representations shall be in the courts in the
State of Manufacture. The laws applicable to
any
litigation,
dispute,
mediation,
arbitration or any claim whatsoever arising
from the sale, purchase, or use of the
recreational vehicle shall be those of the
State
of
Manufacture.
The
State
of
Manufacture of the recreational vehicle is
Indiana.
. . .
I/WE HEREBY ACKNOWLEDGE THAT I/WE HAVE READ
AND RECEIVED THIS LIMITED WARRANTY PRIOR TO
ENTERING INTO ANY CONTRACT TO PURCHASE MY/OUR
GULF STREAM RECREATIONAL VEHICLE AND AGREE TO
ABIDE BY ALL OF ITS TERMS AND PROVISIONS
5
INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER
OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING
ANY
IMPLIED
WARRANTY
OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, TO THE EXTENT APPLICABLE LAW ALLOWS,
AND THE PROVISIONS HEREOF PROVIDING THAT THE
EXCLUSIVE
JURISDICTION
FOR
ANY
CLAIMS
WHATSOEVER SHALL BE IN THE COURTS IN THE STATE
OF MANUFACTURE AND THAT THE APPLICABLE LAW
SHALL BE THE LAW OF THE STATE OF MANUFACTURE.
(Limited Warranty, DE #67-10, p. 4.) (capitalization and bold in
original).
In a section entitled “Important Facts,” the Limited
Warranty clarifies that the covered RV was sold to an “independent
dealer, and not an agent of Gulf Stream, for resale in the ordinary
course
of
the
dealer’s
business,”
that
the
initial
Purchase
Agreement is “solely with the dealer, not Gulf Stream,” that “Gulf
Stream does not participate in retail sales or retail contracts,”
and that “[a]uthorized dealers and service centers are independent
contractors and independently owned businesses.”
(Id. at p. 4.)
The Limited Warranty provides a one (1) year warranty “against
defects
in
Gulf
Stream
materials
and/or
workmanship
in
the
construction of the recreational vehicle” and a two (2) year
warranty “against structural defects in Gulf Stream materials
and/or workmanship in the construction of the floors, walls and
roof.”
(Id. at p. 3.)
Stream
will
arrange
The Limited Warranty indicates that Gulf
for
repair
or
replacement
of
defective
materials and that it is “ready, willing and able to make every
effort for a quick response.”
(Id.)
6
The RV’s slide-out room is a
component covered by the Limited Warranty.
After the Limited
Warranty was signed, the GRV representative took the paperwork with
him and Plaintiffs left.
Plaintiffs took possession of their new
RV a few days later, which was about ten days after initially
signing the Purchase Agreement.3
They then discovered the Limited
Warranty inside of the RV along with the Owner Manual and other
associated booklets.
Between the time Plaintiffs took possession of the RV in
February
of
2010
through
July
of
2010,
they
allege
to
have
experienced various issues with the RV including toilet and shower
leaks and problems with the beds, bunks, air conditioning units,
vents, television, power inverter, and slide-out room.
(Aff. of
Nathan Hoopes, ¶¶ 19, 29, DE #70, pp. 26-27; GRV Work Orders, DE
#70,
pp.
29-40;
Letter
of
Nathan
Hoopes,
DE
#70,
p.
45.)
Plaintiffs brought the RV to GRV several times to be repaired
pursuant
to
the
Limited
ultimately unsuccessful.
Warranty.
The
repairs
by
GRV
were
On June 15, 2010, Plaintiffs’ attorney
sent a letter to Tony Suddon, Gulf Stream’s director of consumer
affairs, which was received by Gulf Stream within a week of the
date of mailing.
The letter states, in part:
[Plaintiffs’]
vehicle
has
experienced
continuing defects with the full-wall slideout
on the vehicle, which [GRV] has been unable to
repair or correct after three repair attempts.
3
No particular date is provided by the parties, but ten days after January
23, 2010, was February 2, 2010.
7
I am enclosing copies of repair invoices
describing the defect and repair attempts.
The full-wall slideout is covered by your
written warranty. . . . [Plaintiffs’] elect to
return the vehicle [to GRV] and receive a
refund of the full purchase price, all
indidental damages, including but not limited
to, any fees charged by the lender for making
or
cancelling
the
loan,
interest,
and
equipment installation charges, and expenses
incurred through result of the nonconformity.
Please advise, whether Gulf Stream Coach
intends to refund the full purchase price and
pay related incidental and other expenses as
required by law. I will obtain and provide
documentation of the incidental and other
expenses.
Please feel free to call and
discuss this matter.
(June Attorney Letter, DE #70, p. 42.)
Copies of the GRV work
orders and the Purchase Agreement were included with the letter.
On August 13, 2010, Plaintiffs’ attorney sent another letter to
Suddon providing “additional notice of defects in the vehicle” that
included a comprehensive list of the alleged defects as authored by
Nathan Hoopes.
(August Attorney Letter, DE #70, p. 47; Letter of
Nathan Hoopes, DE #70, p. 45.)
After receipt of the letters, Gulf
Stream did not offer in writing to remedy or “adjust or modify” any
terms of the transaction.
(Aff. of Nathan Hoopes, ¶ 30, DE #70, p.
28.)
Plaintiffs filed a multi-count Complaint against both Gulf
Stream and GRV on October 19, 2010. GRV was subsequently dismissed
as a defendant in the case on March 26, 2012, because the Court
found that the claims against it were subject to arbitration. Only
8
the claims against Gulf Stream are currently pending before this
Court.
DISCUSSION
Summary judgment must be granted when “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
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
judgment
inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id.
In determining whether
summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the non-moving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
9
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
If the non-moving party fails
to establish the existence of an essential element on which he or
she bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Choice of Law
The parties’ initial disagreement centers around the choice of
law provision found within the Limited Warranty.
Gulf Stream
maintains that the contractual choice of law provision mandates the
application
of
Indiana
substantive
law
to
this
dispute.
Plaintiffs, on the other hand, maintain that the choice of law
provision
is
unconscionable,
unenforceable
and
should
be
disregarded in favor of Ohio law.
Indiana’s choice of law rules shall apply to determine this
preliminary issue. See In re Bridgestone/Firestone, Inc., 288 F.3d
1012, 1015 (7th Cir. 2002) (“Because plaintiffs' claims rest on
state law, the choice-of-law rules come from the state in which the
federal court sits.”); see also Kentucky Nat. Ins. Co. v. Empire
Fire and Marine Ins. Co., 919 N.E.2d 565, 575 (Ind. Ct. App. 2010)
(“Choosing the appropriate state substantive law is a decision to
be made by the court of the state in which the action is pending.”)
In Indiana, there is a presumption that parties are free to choose
10
the body of law that will be applicable to their agreements.
See
Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157, 1162 (Ind.
2002)
(“Indiana
choice
of
law
doctrine
favors
contractual
stipulations as to governing law.”); Hoehn v. Hoehn, 716 N.E.2d
479, 484 (Ind. Ct. App. 1999) (“Parties may generally choose the
law that will govern their agreements.”). In an effort to overcome
that presumption, Plaintiffs argue that the choice of law provision
within the Limited Warranty is “in the nature of” an unconscionable
adhesion contract.
An adhesion contract is “a standardized contract, which,
imposed and drafted by the party of superior bargaining strength,
relegates to the subscribing party only the opportunity to adhere
to the contract or reject it.”
Sanford v. Castleton Health Care
Ctr., LLC, 813 N.E.2d 411, 417 (Ind. Ct. App. 2004) (citations
omitted).
In Indiana, adhesion contracts are not automatically
deemed unconscionable.
Id.
“Rather, a contract is unconscionable
if a great disparity in bargaining power exists between the
parties, such that the weaker party is made to sign a contract
unwillingly or without being aware of its terms.”
omitted).
Id. (citations
Disparity in bargaining power alone is not enough make
an adhesion contract unconscionable; there needs to be a showing of
unwillingness or unawareness.
Weinreb v. Fannie Mae, 993 N.E.2d
223, 235 (Ind. Ct. App. 2013).
To determine whether the contract
was signed unwillingly or without knowledge, the court must look to
11
the circumstances at the time the contract was executed.
Dan
Purvis Drugs, Inc. v. Aetna Life Ins. Co., 412 N.E.2d 129, 131
(Ind. Ct. App. 1980).
Even when one party is later placed at a
distinct advantage, courts have been reluctant to find adhesion
contracts unenforceable.
Id.
Instead, an unconscionable adhesion
contract is one that “no sensible man not under delusion, duress or
in distress would make, and such as no honest and fair man would
accept.”
Sanford, 813 N.E.2d at 417.
Whether a contract is one of adhesion or not, Indiana law
requires that parties agree to all essential terms, and “a person
is presumed to understand and assent to the terms of the contracts
he signs.”
Buschman v. ADS Corp., 782 N.E.2d 423, 428 (Ind. Ct.
App. 2003) (citations omitted).
“Generally, parties are obligated
to know the terms of the agreement they are signing, and cannot
avoid their obligations under the agreement due to a failure to
read it.”
Inc.
v.
Weinreb, 993 N.E.2d at 232 (citing Park 100 Investors,
Kartes,
650
N.E.2d
347,
349
(Ind.
Ct.
App.
1995)).
However, if misrepresentation or fraud is employed, the signing
party need not be bound by the terms of the agreement.
Park 110
Investors, Inc., 650 N.E.2d at 349.
Here, Plaintiffs argue that the choice of law provision found
within the Limited Warranty was not seen, bargained for, or freely
negotiated prior to the signing of the Purchase Agreement so
imposing it would “work a fraud and overreaching” upon Plaintiffs
12
to deprive them of legal rights that existed “automatically” as of
the time of sale and would violate public policy.
They declare
that the choice of law provision is thus unconscionable and
unenforceable.
The Court disagrees.
On the date of purchase, Plaintiffs had notice that a Limited
Warranty existed to cover the RV. They were orally advised of some
of its terms and accepted an offer to purchase an additional
warranty to supplement the Limited Warranty. Plaintiffs signed the
Purchase Agreement that included a section in all capital letters
referencing the Limited Warranty and stating that “THESE WARRANTIES
HAVE
BEEN
PROVIDED
TO
PURCHASER
AND
PURCHASER
HAS
READ
AND
UNDERSTANDS THESE WARRANTIES, EXPRESS OR IMPLIED, ON THIS RV.”
There is no indication that they unwillingly signed the Purchase
Agreement, were unaware of its specific terms, or were under duress
at the time of signing.
More importantly, prior to accepting delivery of the RV,
Plaintiffs signed the Limited Warranty itself, stating in writing
that they “READ” and “AGREE[D] TO ABIDE BY ALL OF ITS TERMS AND
PROVISIONS
INCLUDING
[THE
INDIANA
CHOICE
OF
LAW
PROVISION].”
Nothing in the record indicates that, at the time the Limited
Warranty was signed, Plaintiffs, who are both educated business
professionals, did not have an ample opportunity to read and
understand those terms.
In fact, the record shows that Plaintiffs
were simply standing by a popcorn machine at GRV making small talk
13
with the sales representative when they were given the Limited
Warranty and asked to sign it.
There is no indication that
Plaintiffs were under duress at that time or that they were forced
to sign the Limited Warranty unwillingly.
There is no evidence
that fraud or misrepresentation was employed when Plaintiffs were
presented with the written document itself.
In fact, there is no
evidence in the record to indicate that, at the time of signing,
Plaintiffs found any of the Limited Warranty’s terms unreasonable,
oppressive, or objectionable whatsoever. They were simply asked to
sign the Limited Warranty, and they did. Plaintiffs cannot declare
the choice of law provision unenforceable after-the-fact based on
“fraud
and
overreaching,”
an
unwillingness
to
sign,
or
an
unawareness of its essential terms when there is no evidence in the
record to show that those things existed at the time of its
execution.
Any alleged failure by Plaintiffs to read the terms of
the Limited Warranty closely is not the fault of Gulf Stream.
See
Weinreb, 993 N.E.2d at 232 (parties to a contract “cannot avoid
their obligations under the agreement due to a failure to read
it”); Castleton Health Care Ctr., LLC, 813 N.E.2d at 418 (finding
that plaintiff did not sign an arbitration clause unwillingly or
without legal knowledge even though plaintiff felt “rushed” by
chaotic events surrounding her mother’s admission into a care
facility because, while plaintiff admitted that she did not read
the entire contract, she was not precluded from doing so); see also
14
Dan Purvis Drugs, Inc., 412 N.E.2d at 131 (courts must look to the
circumstances at the time the contract was executed to determine
whether
it
was
signed
unwillingly
or
without
knowledge).
Therefore, the Limited Warranty is a standardized contract drafted
by Gulf Stream, but it is not unconscionable.
See Weinreb, 993
N.E.2d at 235 (disparity in bargaining power alone is not enough to
make an adhesion contract unconscionable; there needs to be a
showing of unwillingness or unawareness).
Plaintiffs also argue that the choice of law provision is
unconscionable and against public policy because it takes away
rights based on Ohio law that “existed at the date of sale.”
However, each agreement contains its own separate choice of law
provision, providing for Michigan and Indiana law respectively, and
the terms of both the Purchase Agreement4 and the Limited Warranty5
make it clear that Gulf Stream had no part in creating or executing
the Purchase Agreement. As noted in detail above, there is nothing
in the record to indicate that Plaintiffs signed the Limited
Warranty itself, which contains an Indiana choice of law provision,
without legal knowledge, unwillingly, or under duress.
The fact
4
For example, the Purchase Agreement notes that it “contains the entire
understanding between [GRV] and Purchaser” and that certain warranties may
exist but that they are “offered by the manufacturers” and are not offered by
GRV.
5
For example, the Limited Warranty explains that GRV is an “independent
dealer” and not an agent of Gulf Stream and that the Purchase Agreement is
“solely with the dealer, not Gulf Stream” because “Gulf Stream does not
participate in retail sales or retail contracts.”
15
that
Plaintiffs
later
discovered
that
Ohio
law
may
be
more
favorable to their position6 is of no consequence.
Finally, Plaintiffs argue that the choice of law provision is
unenforceable and against public policy because Gulf Stream failed
to comply with its duties as required by federal law under the
Magnuson-Moss Warranty Act (“MMWA”).
The MMWA is a “remedial
statute designed to protect consumers from deceptive warranty
practices.” Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 780
(7th Cir. 2011) (citing Skelton v. General Motors Corp., 660 F.2d
311, 313 (7th Cir. 1981)).
The MMWA does not mandate that sellers
and manufacturers offer warranties, but if they do chose to do so,
any “written warranty” must comply with the MMWA’s requirements.
Skelton, 660 F.2d at 314. For example, a warrantor must “fully and
conspicuously disclose in simple and readily understood language
the terms and conditions of such warranty.”
15 U.S.C. § 2302(a).
Additionally, one of the implementing regulations of the MMWA also
places
duties
upon
sellers
and
warrantors
availability of written warranty terms.
regarding
pre-sale
16 C.F.R. § 702.3.
A
seller, defined as “any person who sells or offers for sale for
purposes other than resale or use in the ordinary course of the
buyer’s business any consumer product,” is responsible for making
a written warranty available for a prospective buyer’s inspection
by:
6
The Ohio Lemon Law Act covers recreational vehicles, while the Indiana
Lemon Law Act does not. See O.R.C. § 1345.71; Ind. Code § 24-5-13-5.
16
(1) Displaying it in close proximity to the
warranted product, or
(2) Furnishing it upon request prior to sale
and placing signs reasonably calculated to
elicit the prospective buyer’s attention in
prominent locations in the store or department
advising such prospective buyers of the
availability of warranties upon request.
16 C.F.R. § 702.1(e); 16 C.F.R. § 702.3(a).
On the other hand, a
warrantor, defined as “any supplier or other person who gives or
offers to give a written warranty,” is tasked, in relevant part,
with:
(i)
Provid[ing]
sellers
with
warranty
materials necessary for such sellers to comply
with the requirements set forth in paragraph
(a) of this section, by the use of one or more
by the following means:
(A) Providing a copy of the written
warranty
with
every
warranted
consumer product; and/or
(B) Providing a tag, sign, sticker,
label, decal or other attachment to
the product, which contains the full
text of the written warranty; and/or
(C)
Printing
on
or
otherwise
attaching the text of the written
warranty to the package, carton, or
other container if that package,
carton
or
other
container
is
normally used for display purposes.
If the warrantor elects this option
a copy of the written warranty must
also
accompany
the
warranted
product; and/or
(D) Providing a notice, sign, or
poster disclosing the text of a
consumer product warranty. If the
17
warrantor elects this option, a copy
of the written warranty must also
accompany each warranted product.
16 C.F.R. § 702.1(d); 16 C.F.R. § 702.3(b).
In Kraft v. Staten Island Boat Sales, Inc., 715 F. Supp. 2d
464 (S.D.N.Y. 2010), a district court recognized the different
duties
placed
upon
sellers
and
warrantors
regarding
pre-sale
availability of written warranty terms pursuant to the MMWA.
The
buyer in Kraft purchased a boat manufactured by the defendant from
an authorized dealer/seller.
Id. at 468. At the time the purchase
agreement was signed, the dealer/seller failed to provide the buyer
with the written manufacturer’s warranty. Id. at 469-70. In fact,
the buyer did not receive and sign a copy of the manufacturer’s
warranty until the boat was delivered over seven months later. Id.
Upon discovery of the boat’s many problems, which developed almost
immediately upon delivery, the buyer brought an action in federal
court under theories of breach of warranty, violation of the MMWA,
and violation of New York’s General Business Law.
Id. at 468-69.
In part, the buyer argued that because the dealer/seller failed to
provide a copy of the manufacturer’s warranty prior to the signing
of the purchase agreement, it violated the MMWA and rendered the
limitations in the manufacturer’s warranty unconscionable and
unenforceable.
Id. at 477-78.
The court first found that the buyer’s allegations that she
did not receive a copy of the manufacturer’s warranty at the time
18
of sale were undercut by the fact that she later signed the
warranty itself acknowledging that she had read it, understood it,
and agreed to its terms.
Id. at 478.
The court further noted that
there was no evidence that the buyer objected to those terms upon
receipt. Id. Looking to the implementing regulations described in
16 C.F.R. § 702.3(a) & (b), the court then found there was no
evidence
that
the
manufacturer
neglected
to
live
up
to
its
obligations under the MMWA despite the dealer/seller’s failure to
provide the buyer with the warranty at the time of sale.
Id.
The
court concluded that the manufacturer’s warranty was not rendered
unconscionable by the dealer/seller’s alleged violations of the
MMWA.
Id.
The instant case is analogous to Kraft, and the Court finds
its reasoning persuasive.
Here, Gulf Stream (the “warrantor”) was
responsible for providing GRV (the “seller”) with pre-sale warranty
materials.
According to the implementing regulations of the MMWA,
this could have been accomplished in a number of ways, including
providing a copy of the Limited Warranty with the RV itself or
providing GRV with a tag, sign, sticker, sign, notice, poster, etc.
GRV, on the other hand, was responsible for making the Limited
Warranty available for Plaintiffs’ inspection by displaying it,
furnishing it upon request, or placing signs regarding the Limited
Warranty in prominent locations.
While Plaintiffs argue at length
that they did not receive or see any pre-sale warranty materials
19
publicly posted or on display anywhere at GRV prior to signing the
Purchase Agreement, there is no evidence in the record to suggest
that Gulf Stream failed in any of its pre-sale warranty duties.
The evidence in the record establishes that, on the date of
sale, the GRV sales representative advised Plaintiffs that the Gulf
Stream Limited Warranty existed, provided them with some specifics
of what the warranty covered, encouraged them to buy an extended
warranty for additional coverage, and told Plaintiffs that a copy
of the Limited Warranty would be available for signature when they
brought in their old vehicle for trade-in.
It is undisputed that
Plaintiffs did indeed see and sign a copy of the Limited Warranty
on January 30, 2010, the day they returned to GRV to drop off their
trade-in.
Plaintiffs stated in writing that they read the Limited
Warranty and agreed to its terms.
As explained in detail above,
there is no indication that Plaintiffs objected to any of the terms
contained within the Limited Warranty.
Finally, it is undisputed
that a copy of the Limited Warranty was located inside of the RV
when Plaintiffs took delivery of it.
Despite GRV’s actions and
alleged failures, there is no evidence in the record to suggest
that Gulf Stream violated the pre-sale warranty requirements of the
MMWA, and, therefore, the choice of law provision was not rendered
unconscionable.
See Kraft, 715 F.Supp.2d at 478 (“The Court is
also not persuaded that [the dealer/seller’s] failure to provide a
copy of [the manufacturer’s] limited warranty to Plaintiff at the
20
time of purchase, rather than at the time of delivery, renders the
limitations contained therein unconscionable.”)
Plaintiffs have not provided evidence sufficient to show that
the Indiana choice of law provision contained with the Limited
Warranty is unconscionable, unenforceable, or otherwise invalid;
thus, the Court concludes that Indiana substantive law governs.
Ohio Lemon Law Act & Ohio Consumer Sales Practices Act
Because the Court has determined that Indiana substantive law
applies to Plaintiffs’ state law claims brought against Gulf
Stream, the claims requesting relief pursuant to the Ohio Lemon Law
Act
(O.R.C.
§§
1345.71-1345.78)
and
the
Ohio
Consumer
Sales
Practices Act (O.R.C. §§ 1345.01-1345.09) are dismissed.
Gulf
Stream’s motion for summary judgment as to these claims is GRANTED.
Indiana Lemon Law Act
Plaintiffs have agreed to withdraw their Indiana Lemon Law Act
claim (see DE #68, p. 14).
Accordingly, Gulf Stream’s motion for
summary judgment as to Plaintiffs’ Indiana Lemon Law Act claim is
GRANTED.
Indiana Negligence and the Economic Loss Doctrine
Relying on the economic loss doctrine, Gulf Stream argues that
Plaintiffs’
claims
of
negligent
21
design,
testing,
inspection,
manufacture, and repair of the RV are not actionable under Indiana
law because it has not been alleged that the RV caused any personal
injury or damage to other property.
Plaintiffs disagree with Gulf
Stream’s analysis of the law.
In Indiana, “where a negligence claim is based upon the
failure of a product to perform as expected and the plaintiff
suffers
only
negligence;
economic
instead,
damages,
the
buyer’s
no
recovery
remedy
lies
may
in
be
had
in
contract.”
Indianapolis-Marion Cnty. Pub. Library v. Charlier Clark & Linard,
P.C., 929 N.E.2d 722, 728 (Ind. 2010) (citation omitted). In other
words:
Indiana law under the Products Liability Act
and under general negligence law is that
damage from a defective product or service may
be recoverable under a tort theory if the
defect causes personal injury or damage to
other property, but contract law governs
damage to the product or service itself and
purely economic loss arising from the failure
of the product or service to perform as
expected.
Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153-54 (Ind. 2005).
The economic loss doctrine only comes into play where a plaintiff
has suffered “pure economic loss” which has been defined as
“pecuniary harm not resulting from an injury to the plaintiff’s
person or property.”
N.E.2d 722 at 731.
Indianapolis-Marion Cnty. Pub. Library, 929
The Indiana Supreme Court has acknowledged the
applicability of the doctrine to suppliers, engineers, and design
22
professionals of defective products or services pursuant to a
contract.
Id. at 735.
The “default position in Indiana is that in
general, there is no liability in tort for pure economic loss
caused unintentionally.”
Plaintiffs
contend
Id. at 736.
that
the
economic
loss
doctrine
was
abrogated by Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947
(Ind. 2005).
In Plaintiffs’ view, the “ruling abrogating the
economic loss doctrine applies to negligence claims for damage to
the product, as well as to implied warranty of merchant liability
claims.”
Plaintiffs are mistaken.
The economic loss doctrine was
not abolished by Hyundai Motor. Rather, the issue in Hyundai Motor
revolved around whether privity between a buyer and a manufacturer
was required for a breach of implied warranty claim.
Motor, 822 N.E.2d at 951.
Hyundai
The Indiana Supreme Court held that
“Indiana law does not require vertical privity between a consumer
and a manufacturer as a condition to a claim by the consumer
against
the
manufacturer
merchantability.”
for
Id. at 959.7
breach
of
implied
warranty
of
The Hyundai Motor ruling in no way
invalidated the economic loss doctrine as it applies generally to
Indiana law; in fact, citing to the Martin Rispins case, the
Indiana Supreme Court noted that:
7
In so holding, the Indiana Supreme Court partially abrogated Martin Rispens
& Son v. Hall Farms, Inc., 621 N.E.2d 1078 (Ind. 1993), recognizing that the
often cited footnote number two in that case, which states that privity
between sellers and buyers is required in implied warranty of merchantability
claims, was dicta and deserved reconsideration. Hyundai Motor, 822 N.E.2d at
953-54.
23
[i]n Indiana, the economic loss rule applies
to bar recovery in tort ‘where a negligence
claim is based upon the failure of a product
to perform as expected and the plaintiff
suffers only economic damages.’
Possibly
because of the economic loss rule, [the
plaintiff] did not raise a negligence claim
here.
Id. at 958 (internal citation omitted).
Gulf Stream is correct that the economic loss doctrine is
applicable as a defense against Plaintiffs’ negligence claims.
To
trigger the doctrine, there must be purely economic loss claimed.
In this case there is nothing to indicate, nor do Plaintiffs
contend, that there was any injury done to their persons or any
other property. The only loss claimed is related to the RV itself,
so contract law, not tort law, applies.
Therefore, Gulf Stream’s
motion for summary judgment as to Plaintiffs’ negligence claims is
GRANTED.
Indiana Deceptive Consumer Sales Act
Gulf Stream argues that summary judgment should be granted on
Plaintiffs’ Indiana Deceptive Consumer Sales Act (“IDCSA”) claims
because Plaintiffs did not provide them with effective notice as
required by the IDCSA and because a specific violation the IDCSA
cannot be shown.
Plaintiffs, on the other hand, argue that the
notice provided to Gulf Stream was adequate and that Gulf Stream’s
various
actions
and
refusals
show
24
intentional
failures
which
violate the IDCSA.
The
IDCSA
is
a
remedial
statute
designed
to
“provide[]
remedies to consumers . . . for practices that the General Assembly
deemed deceptive in consumer transactions.”
Banks v. Jamison, 12
N.E.3d 968, 974, n. 6 (Ind. Ct. App. 2014) (citing McKinney v.
State, 693 N.E.2d 65, 67 (Ind. 1998)).
The IDCSA is to be
liberally construed to protect the consumer. See Kesling v. Hubler
Nissan, Inc., 997 N.E.2d 327, 332 (Ind. 2013).
If a supplier8
engages in “deceptive acts,” a consumer may file suit pursuant to
the IDCSA.
Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 646
(Ind. Ct. App. 2004).
A supplier’s deceptive acts, which can be
made orally, in writing, or by electronic communication, include,
but are not limited to, the following:
(1)
That
such
subject
of
a
consumer
transaction
has
sponsorship,
approval,
performance, characteristics, accessories,
uses, or benefits it does not have which the
supplier knows or should reasonably know it
does not have.
(2)
That
such
subject
of
a
consumer
transaction is of a particular standard,
quality, grade, style, or model, if it is not
and if the supplier knows or should reasonably
know that it is not.
. . .
(8) That such consumer transaction involves or
8
Supplier is defined as “[a] seller, lessor, assignor, or other person who
regularly engages in or solicits consumer transactions . . . . The term
includes a manufacturer, wholesaler, or retailer, whether or not the person
deals directly with the consumer.” Ind. Code § 24-5-0.5-2(a)(3)(A) (2007)
(emphasis added).
25
does not involve a warranty, a disclaimer of
warranties, or other rights, remedies, or
obligations, if the representation is false
and if the supplier knows or should reasonably
know that the representation is false.
Ind. Code § 24-5-0.5-3(a) (2009).9
A deceptive act is actionable
if it is either “uncured” or “incurable.”
647.
Perry, 814 N.E.2d at
An uncured deceptive act is one:
(A) with respect to which a consumer who has
been damaged by such act has given notice to
the supplier under section 5(a) of this
chapter; and
(B) either:
(i) no offer to cure has been made
to such consumer within thirty (30)
days after such notice; or
(ii) the act has not been cured as
to such consumer within a reasonable
time after the consumer’s acceptance
of the offer to cure.
Ind. Code § 24-5-0.5-2(a)(7) (2007).
An incurable deceptive act,
on the other hand, is one that is “done by a supplier as part of a
scheme, artifice, or device with intent to defraud or mislead.”
Ind. Code § 24-5-0.5-2(a)(8) (2007). “Intent to defraud or mislead
is thus clearly an element of an incurable deceptive act” but is
9
While neither party addresses the issue (nor even cites to which version of
the code they are relying on), the Court will analyze the claims under the
version of the IDCSA in effect at the time of the incidents giving rise to the
litigation and the time the suit was commenced. See Miller v. LaSalle Bank
Nat. Ass’n, 595 F.3d 782, 787 (7th Cir. 2010) (“In Indiana, absent ‘strong and
compelling’ reasons, statutes will not be interpreted to apply
retroactively.”)
26
not required to prove an uncured deceptive act.
Perry, 814 N.E.2d
at 647 (citing McKinney v. State, 693 N.E.2d 65, 68 (Ind. 1998)).
In general, an action may not be brought pursuant to the IDCSA
based on an uncured act unless:
the consumer bringing the action shall have
given notice in writing to the supplier within
the sooner of (i) six (6) months after the
initial discovery of the deceptive act, (ii)
one
(1)
year
following
such
consumer
transaction, or (iii) any time limitation, not
less than thirty (30) days, of any period of
warranty applicable to the transaction, which
notice shall state fully the nature of the
alleged deceptive act and the actual damage
suffered therefrom, and unless such deceptive
act shall have become an uncured deceptive
act.
Ind. Code § 24-5-0.5-5(a).
The Indiana Court of Appeals has
stressed the importance of compliance with the IDCSA’s notice
requirements,
pointing
out
that
it
“gives
the
supplier
an
opportunity to review the facts and the law involved so that he can
determine if the requested relief should be granted or denied.”
McCormick Piano & Organ Co., Inc. v. Geiger, 412 N.E.2d 842, 849
(Ind. Ct. App. 1980).
However, the notice requirement does not
mandate that the deceptive acts be stated with “absolute precision”
and is sufficient as long as all of the pertinent information is
presented.
Captain & Co., Inc. v. Stenberg, 505 N.E.2d 88, 95-96
(Ind. Ct. App. 1987).
Here, Gulf Stream first argues that summary judgment should be
granted on the ground that the requisite notice was not provided to
27
them because Plaintiffs’ pre-suit correspondence did not fully
state the nature of the alleged deceptive act, did not provide an
opportunity to cure, and did not address actual damages. The Court
disagrees.
Plaintiffs have submitted evidence that their attorney
sent a letter to Gulf Stream’s director of consumer affairs on June
15, 2010, which was received by Gulf Stream within a week of that
date. The correspondence included a copy of the Purchase Agreement
as well as copies of GRV’s work orders describing the defects and
repeated repair attempts.
Although Gulf Stream argues that the
letter did not address the “litany of alleged defects” now claimed,
the GRV work orders show Plaintiffs’ numerous difficulties with the
RV (i.e. broken television brackets, leaks, broken latches, water
heater issues, toilet issues, and various problems with the slideout room) and the attempted corrections. The June 15, 2010, letter
specifically states that the RV “has experienced continuing defects
with the full-wall slideout . . . which [GRV] has been unable to
repair or correct after three repair attempts.
slideout is covered by your written warranty.”
The full-wall
The letter also
requests a complete refund of the purchase price, which was
detailed on the Purchase Agreement, plus incidental damages, and it
concludes by asking that Gulf Stream respond by indicating whether
it intends to pay the requested amount.
There is no evidence in
the record that Gulf Stream made any offer to cure within thirty
28
days of the receipt of the letter.10
Plaintiffs did not file suit
until roughly four months after the first letter was sent.
Viewed in the light most favorable to Plaintiffs, although the
June 15, 2010, letter and attachments may not state the deceptive
acts with exact precision, it was sufficient to put Gulf Stream on
notice as required by the IDCSA.
The correspondence references
specific defects and performance issues with the slide-out room
(among other allegedly defective characteristics and accessories of
the RV) coupled with an inability and/or unwillingness to remedy
the issues as promised by Gulf Stream pursuant to the Limited
Warranty. It refers to Plaintiffs’ position that they were damaged
by at least the purchase price of the RV, and it asks Gulf Stream
to respond.
The letter sufficiently apprised Gulf Stream that
Plaintiffs relied on and were damaged by certain representations
that were allegedly deceptive (i.e. Gulf Streams Limited Warranty
and the RV’s lack of
performance, characteristics, accessories,
uses, benefits, and/or quality).
See e.g. Perry, 814 N.E.2d at
646-47 (noting that “if a good or service, such as [an RV], turns
out to be other than as represented, the consumer may invoke the
[IDCSA] by giving notice of the problem to the supplier” and
analyzing the defendant’s deceptive act of representing that the RV
10
Plaintiffs’ attorney sent an additional letter to Gulf Stream on August
13, 2010, which provided “additional notice of defects in the vehicle” and
included a lengthy list of issues written by Plaintiff Nathan Hoopes. There
is no evidence in the record that Gulf Stream made any offer to cure following
receipt of the second letter.
29
in question had “performance, characteristics, accessories, uses,
or benefits it [did] not have which the supplier [knew] or should
reasonably [have] know[n] it does not have); see also Ind. Code §§
24-5-0.5-3(a)(1)-(2) & (8) (2009).
Because there is evidence in
the record to suggest that Plaintiffs adequately notified Gulf
Stream under the requirements of the IDCSA, summary judgment is
inappropriate based on the issue of lack of notice.
Gulf
Stream
next
argues
that
certain
subsections
of
Plaintiffs’ complaint (namely those dealing with the MMWA and Gulf
Stream’s refusal to accept return of or “buy back” the RV) cannot
constitute a violation of the IDCSA.
Plaintiffs point out that
their complaint merely lists several actions by Gulf Stream in
relation to the IDCSA, that there is evidence in the record to
suggest that Gulf Stream’s actions violated at least one provision
of the IDCSA, and that summary judgment on the IDCSA claim as a
whole is inappropriate.
Plaintiffs
relation
to
have
their
presented
IDCSA
evidence
claim:
(1)
of
that
the
the
following
brand
new
in
RV
manufactured by Gulf Stream was represented to have a functional
slide-out room and other components; (2) that Gulf Stream’s Limited
Warranty covered this slide-out room as well as other various
components of the RV; (3) that the performance, characteristics,
accessories, uses, benefits, and/or quality of the slide-out room
and other components of the RV were allegedly non-functional and/or
30
defective; (4) that Gulf Stream had actual knowledge or reasonably
should have known of those deficiencies; (5) that Gulf Stream
represented, through its Limited Warranty, that it would “arrange
for repair or replacement” of those components and was “ready,
willing and able to make every effort for a quick response;” and
(6) that Gulf Stream knowingly and intentionally failed to timely
respond and/or remedy any of the issues.
This evidence, if
believed by a trier of fact, is sufficient to sustain a claim under
the
IDCSA
because
by
misrepresenting
the
performance,
characteristics, uses, benefits or quality of the RV itself and/or
the Limited Warranty and failing to make an offer to cure, Gulf
Stream engaged in one or more uncured deceptive acts actionable
under the IDCSA.
See Ind. Code §§ 24-5-0.5-3(a)(1)-(2) & (8).
Therefore, as a genuine dispute remains as to at least one theory
of recovery under the IDCSA, the Court need not address Gulf
Stream’s remaining arguments.
The motion for summary judgment on
this ground is DENIED, and Plaintiffs’ IDCSA claim remains pending.
Rescission, Revocation of Acceptance and Restitution
Finally, Gulf Stream maintains that neither revocation of
acceptance nor rescission of the contract are available as remedies
to Plaintiffs in this case under the Indiana Uniform Commercial
Code or Indiana common law.
Plaintiffs do not dispute this
assertion; instead, they argue that rescission is available under
31
the MMWA and the IDCSA.11 Because Plaintiffs have failed to address
or dispute Gulf Stream’s contention that revocation of acceptance
and an order of restitution is not an available remedy in this case
under the Indiana Uniform Commercial Code or Indiana common law,
the Court deems any suggestion to the contrary waived and will
proceed to address the issue only as to the MMWA and the IDCSA.12
In general, “[r]escission involves a judicial termination of
a
party’s
contractual
obligations;
it
is
a
court-ordered
‘unwinding’ of a contract, with the goal of returning the parties
to their positions prior to contracting.
This remedy is possible
only if such a status quo ante can be re-established.”
InfoCure Corp., 310 F.3d 529, 535 (7th Cir. 2002).
Jones v.
See also Pizel
v. Monaco Coach Corp., 364 F.Supp.2d 790, 794 (N.D. Ind. 2005)
(citing A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955,
967-68 (Ind. Ct. App. 2000)).
A party bringing an action for rescission has
made his election between: 1) affirming the
contract, retaining the benefits, and seeking
his damages, or 2) rescinding the contract,
returning any benefits received, and being
returned to the status quo.
The party
rescinding a contract must repudiate the part
11
Plaintiffs also argue that a “buy back” remedy is available under the Ohio
Lemon Law Act, but because the Court has determined that Indiana substantive
law applies to this dispute, this argument need not be addressed.
12
The Court notes that Gulf Stream is correct that these remedies will not
lie against a remote manufacturer of a consumer good. See Pizel v. Monaco
Coach Corp., 364 F.Supp.2d 790, 794-95 (N.D. Ind. 2005). Plaintiffs do not
dispute that Gulf Stream is such a remote manufacturer.
32
of the contract which is beneficial to him as
well as that part of the contract which is
not. He must affirm or avoid the contract in
whole and cannot treat it as good in part and
void in part. He may not affirm that part of
the contract which pleases him and rescind
that part which he considers disadvantageous.
Barrington Management Co., Inc. v. Paul E. Draper Family Ltd.
Partnership, 695 N.E.2d 135, 142 (Ind. Ct. App. 1998) (internal
citations omitted).
“A plaintiff seeking to rescind a contract
bears the burden of proving his right to rescission, and that he is
able to return in specie any property received under the contract,
or its reasonable value if a return in specie is impossible.”
Hart
v. Steel Products, Inc., 666 N.E.2d 1270, 1275 (Ind. Ct. App. 1996)
(emphasis added).
The damages provision of the MMWA provides that consumers may
bring suit for “damages and other legal and equitable relief.” See
15 U.S.C. § 2310(d)(1). However, the MMWA does not provide for any
specific relief but rather simply provides a federal cause of
action for state law breach of warranty claims.
See Anderson v.
Gulf Stream Coach, Inc., 662 F.3d 775, 781 (7th Cir. 2011) (“the
MMWA operates as a gloss on the [plaintiffs’] state law breach of
warranty claims”); Smith v. Monaco Coach Corp., 334 F.Supp.2d 1065,
1070 (N.D. Ill. 2004) (“While revocation of acceptance is one of
the remedies contemplated by [the MMWA], section 2310(d) does not
actually authorize specific types of relief, but instead only
creates a jurisdictional basis for traditional state law claims.
33
[T]o determine whether a specific remedy is available, we must
again consult state law.”) (citations omitted).
As noted above, Plaintiffs do not dispute that revocation of
acceptance and rescission are not available remedies in this case
under the Indiana Uniform Commercial Code or Indiana common law;
thus, the Court must determine whether the IDCSA provides the
authority to “void the sale and order restitution sufficient to
equate to a rescission or revocation of acceptance” as Plaintiffs
maintain.13
The language of the IDCSA provides that “the court may
void or limit the application of contracts or clauses resulting
from deceptive acts and order restitution to be paid to aggrieved
consumers.”
Ind. Code § 24-5-0.5-4(d) (2007).
Nonetheless, as Gulf Stream points out, allowing “revocation
and/or rescission of the contract” as requested in Plaintiffs’
alternative prayer for relief would not serve to return the parties
to the status quo ante.
Plaintiffs bought the RV from GRV and paid
GRV the full retail purchase price.
However, GRV only paid Gulf
Steam the lesser amount of the wholesale price of the RV.
There is
no way to “unwind” the Limited Warranty so that both Gulf Stream
and Plaintiffs would be returned to their pre-contract position.
13
In reply, Gulf Stream argues only that Plaintiffs have not brought
themselves within the scope of the IDCSA and its remedies because the RV is
not subject to Indiana’s Lemon Law Act. While it is true that a recreational
vehicle is not subject to Indiana’s Lemon Law Act, as discussed in the
previous section, a genuine dispute remains as to at least one theory of
recovery under the IDCSA that is not related to Indiana’s Lemon Law Act. See
Ind. Code §§ 24-5-0.5-3(a)(1)-(2) & (8). Thus, Gulf Stream’s reply misses the
mark.
34
See Jones, 310 F.3d at 535 (“[Rescission] is possible only if such
a status quo ante can be re-established.” ).
Plaintiffs have not
met their burden of showing that revocation and/or rescission of
the contract is an available remedy to them in this case.
Hart, 666 N.E.2d at 1275.
See
Therefore, Gulf Stream’s motion for
summary judgment as to Plaintiffs’ request for revocation and/or
rescission of the contract is GRANTED.
CONCLUSION
For the reasons set forth above, the Motion for Partial
Summary Judgment, filed by Gulf Stream on December 16, 2013 (DE
#64), is GRANTED IN PART AND DENIED IN PART.
The motion is GRANTED
as to Plaintiffs’ Ohio Lemon Law Act, Ohio Consumer Sales Practices
Act, Indiana Lemon Law Act, state law negligence claims, and
Plaintiffs’
alternative
prayer
for
relief
revocation and/or rescission of the contract.
on
the
basis
of
However, the motion
is DENIED as to Plaintiffs’ Indiana Deceptive Consumer Sales Act
claim.
DATED: September 29, 2014
/s/RUDY LOZANO, Judge
United States District Court
35
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