Popham v. Keystone RV Company

Filing 41

OPINION AND ORDER DENYING 22 MOTION for Partial Summary Judgment by Plaintiff Peggy Popham; GRANTING IN PART and DENYING IN PART 14 MOTION for Summary Judgment by Defendant Keystone RV Company. Summary Judgment is GRANTED with respect to Counts I and II of the Amended Complaint and Summary Judgment is DENIED WITHOUT PREJUDICE with respect to Count III of the Amended Complaint. Signed by Judge Theresa L Springmann on 9/19/16. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PEGGY POPHAM,
Plaintiff,
v.
KEYSTONE RV COMPANY,
Defendant.

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CAUSE NO.: 3:15-CV-197-TLS

OPINION AND ORDER
The Plaintiff, Peggy Popham, filed an Amended Complaint [ECF No. 6] against the
Defendant, Keystone RV Company, alleging state law breach of warranty (Count I), a violation
of the Magnuson-Moss Warranty Act (Count II), and violations of Indiana and Texas consumer
protection laws (Count III). The Defendant filed a Motion for Summary Judgment [ECF No. 14]
and the Plaintiff filed a Motion for Partial Summary Judgment [ECF No. 22] as to Count I.

PROCEDURAL BACKGROUND
The Plaintiff filed her initial Complaint [ECF No. 1] on May 7, 2015 and filed her first
Amended Complaint [ECF No. 6] on June 29, 2015. The Defendant filed an Answer [ECF No. 7]
on July 15, 2015. On January 11, 2016, the Defendant filed a Motion for Summary Judgment.
[ECF No. 14]. On March 3, 2016, the Plaintiff filed her Response in Opposition to the
Defendant’s Motion for Summary Judgment [ECF No. 21] and also a Motion for Partial
Summary Judgment [ECF No. 22]. The Defendant’s Reply [ECF No. 24] was filed on March 17,
2016. The Court granted the Plaintiff leave to file her Statement of Material Facts Not in Dispute
[ECF No. 32] and her Statement of Genuine Issues of Fact [ECF No. 33], dated March 29, 2016.
On April 29, 2016, the Defendant filed its Response in Opposition to the Plaintiff’s Motion for

Partial Summary Judgment [ECF No. 37]. Finally, the Plaintiff’s Reply [ECF No. 39] was filed
on May 4, 2016.

UNDISPUTED FACTS
The following facts are undisputed. The Plaintiff is a resident of Texas. (Pl.’s Facts Not
in Dispute in Supp. Mot. Partial Summ. J. ¶ 1, ECF No. 32; Def.’s Br. in Supp. of Mot. Summ. J.
¶ 1, ECF No. 15.) The Plaintiff’s current mailing address is 170 Port Avenue, Rockport, Texas,
which is located within the Palm Harbor Recreational Vehicle (“RV”) Park (Pl.’s Facts ¶¶ 1–2;
Def.’s Br. ¶¶ 1–2.) On May 8, 2013, the Plaintiff purchased an RV that was manufactured by the
Defendant, an Indiana business entity. (Pl.’s Facts ¶¶ 1–2; Def.’s Br. ¶¶ 3–4.) As part of that
purchase, the Defendant offered and the Plaintiff received a one-year Limited Warranty for the
RV. (Pl.’s Facts ¶ 3; Def.’s Br. ¶ 5.) On March 31, 2015, the Plaintiff discovered that the RV’s
roof was “bulging” and walls were “delaminating,” and promptly notified the Defendant of those
issues. (Pl.’s Facts ¶ 5; Def.’s Br. ¶¶ 14, 16–17.)

THE TERMS OF THE LIMITED WARRANTY
On the first page of the Limited Warranty is the bolded heading “Limited One Year
Warranty,” centered and larger than the other text. (First Am. Compl. Ex. 3 at 23, ECF No. 6.)
In the paragraph immediately below this heading, the Defendant “WARRANTS for a period of
one (1) year from the date of purchase that the recreational vehicle manufactured and assembled
by [the Defendant] shall be free from defects in materials and workmanship supplied and
attributable to [the Defendant].” (Id.) Additionally, the Defendant “reserves the right to substitute
parts or components of substantially equal quality, repair cosmetic flaws, make design and/or

2

manufacturing improvements, or in the event the unit cannot be repaired, provide a replacement
unit as the exclusive remedy under this Limited Warranty.” (Id.)
The next bolded heading states “Warranty Disclaimers,” which is left aligned and of a
similar size as the paragraph that follows the heading. (Id.) The subsequent paragraph states that
“[t]his warranty is expressly in lieu of all other warranties, express or implied, including any
implied warranty of merchantability or fitness for any particular purpose, and in lieu of all other
obligations or liabilities on the part of [the Defendant].” (Id.) “Implied warranties, including
implied warranty of merchantability or fitness for a particular purpose, if any, given by law, shall
be limited to and not extend beyond the duration of the written limited warranty periods set forth
herein.” (Id.) In addition, the Limited Warranty includes a statute of limitations that “[a]ny action
to enforce this limited warranty or any implied warranty shall not be brought more than one (1)
year after expiration of the one (1) year term of this limited warranty.” (Id.)
Another bolded heading states “Warranty Exclusions – This Limited Warranty Shall
Not Apply To:” that is left aligned and of a similar size as the other text on the page. (Id.)
Relevant to this dispute, the warranty is excluded for “Trailers used for business, rental,
commercial, residential, or disaster relief purposes, or any purposes other than
recreational travel and family camping,” which is written in bolded text unlike the
surrounding bulleted list and also with an exclamation point in the margin. (Id.) Finally, on the
third page of the Limited Warranty is a heading halfway down the page which reads “How To
Obtain Warranty Service,” which is bolded and left aligned. (Id. at 25.) An RV owner can
obtain warranty service “within a reasonable time after discovery of the defect within the
warranty period.” (Id.)

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COMPLAINT ALLEGATIONS
The Plaintiff alleges three separate Counts in her Amended Complaint against the
Defendant. In Count I, the Plaintiff alleges that the Defendant breached its “express and/or
implied warranties” given that “[o]ne or more of the defects and malfunctions in the vehicle were
covered under the terms of the Defendant’s express and/or implied warranties” (First Am.
Compl. ¶ 51.) In Count II, the Plaintiff alleges a separate violation of the Magnuson-Moss
Warranty Act (MMWA) because the Defendant’s breach of warranty caused its “fail[ure] to
comply with its obligations under the Warranty Act.” (Id. ¶ 56.) In Count III, the Plaintiff alleges
violations of state consumer protection statutes based on the Defendant’s representations during
the transaction, the design of the vehicle, and the Defendant’s breach of warranty. (Id. ¶¶ 60–61.)
The Plaintiff seeks relief in the form of damages and statutory damages for the alleged violations
or, in the alternative, relief in the form of rescission of the contract.

DISPUTED FACTS
The parties dispute two main facts. First, whether the Plaintiff “resides” inside of the RV.
The Defendant offers an Affidavit from Ms. Baumgardner [ECF No. 16-6], the Defendant’s
Representative, to argue that the Plaintiff called the Defendant and stated that she resided in the
RV. Additionally, the Defendant points to the undisputed fact that the Plaintiff’s mailing address
is located within an RV Park. However, the Plaintiff offers her own Affidavit [ECF No. 21-1]
that she has “never used the RV for any other purpose besides recreational travel and family
camping” or that she told Baumgardner that she “was ‘living’ in the RV at that time or at any
time.” (Popham Aff. ¶¶ 3–4.)
The second dispute is whether the RV’s roof issues, which are the subject of this
litigation, were a “latent” defect that existed at the time the Plaintiff purchased the RV. The
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Plaintiff offers an Affidavit from Mr. Lewis [ECF No. 23-1], a mechanic, to assert that “the roof
defect is a structural defect that resulted from something being done wrong at the factory” and
that such defect “was not reasonably discoverable . . . within one year [of sale].” (Lewis Aff.
¶¶ 9–10.) In opposition, the Defendant offers an Affidavit from Mr. Gaines [ECF No. 37-1], the
Defendant’s Service Product Manager, to argue that the “existence of bubbling is not
representative of any kind of defect in the RV and that the RV is still “fit for the ordinary
purpose for which it was sold.” (Gaines Aff. ¶¶ 7–13.)

STANDARD OF REVIEW
Summary judgment is warranted when “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). Summary judgment is the moment in litigation where the nonmoving party is
required to marshal and present the court with evidence on which a reasonable jury could rely to
find in that party’s favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
A court should only deny a motion for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,
652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d
504, 510 (7th Cir. 2010); then citing Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010)). A court’s role in deciding a motion for summary judgment “is not to sift
through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.
[A] court has one task and one task only: to decide, based on the evidence of record, whether
there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24
F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention
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that an issue of material fact exists is insufficient to create a factual dispute, a court must
construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences
in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and
avoid “the temptation to decide which party’s version of the facts is more likely true,” Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
For a grant of summary judgment to be fair, each party must have an opportunity to
present its full argument on an issue. Edwards v. Honeywell, Inc., 960 F.2d 673, 674–75 (7th Cir.
1992). It is improper for a district court to grant summary judgment on grounds to which neither
party had an opportunity to respond. Id.; see also Costello v. Grundon, 651 F.3d 614, 635 (7th
Cir. 2011) (citing Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006) (“[I]f the
moving party does not raise an issue in support of its motion for summary judgment, the
nonmoving party is not required to present evidence on that point, and the district court should
not rely on that ground in its decision.”)).

DISCUSSION
This Court has jurisdiction over the Plaintiff’s MMWA claim, pursuant to 15 U.S.C. §
2310(d)(1)–(3), as the claim alleges an amount in controversy greater than $50,000.
Additionally, this Court has diversity jurisdiction, pursuant to 28 U.S.C. § 1332, over the
Plaintiff’s state law claims for breach of warranty and consumer protection violations because
the parties are citizens of different states and the aggregated amount in controversy exceeds
$75,000. A federal court exercising diversity jurisdiction must apply the substantive law of the
forum in which it sits, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), including that
pertaining to choice of law, Klaxon Co. v. Stentor Elec. Manuf. Co., 313 U.S. 487, 496 (1941).
However, “[i]f the difference between the state laws is illusory and no conflict exists,” the
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federal court merely applies the substantive law of the forum in which it sits. Nelson v. Sandoz
Pharm. Corp., 288 F.3d 954, 963 (7th Cir. 2002).

A.

Breach of Warranty Claim
In Count I, the Plaintiff has alleged a claim for breach of the implied warranty of

merchantability and the Defendant’s express warranty,1 each arising under the laws of Indiana
and Texas. However, neither of the parties have argued that one state’s law should govern the
dispute. Accordingly, the Court conducts a choice-of-law analysis: Indiana and Texas have
adopted the Uniform Commercial Code verbatim, and thus their laws governing breach of
warranty do not conflict.2 Accordingly, the Court will apply the substantive law of Indiana, the
forum in which this Court sits, to the breach of warranty claims.
Under Indiana law, “a warranty that the goods shall be merchantable3 is implied in a
contract for their sale if the seller is a merchant with respects to goods of that kind” unless
excluded or modified within the contract. Ind. Code § 26-1-2-314(1). Additionally, “any
affirmation of fact or promise made by the seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an express warranty that the goods shall conform
to the affirmation or promise.” Id. § 26–1–2–313. “An action for breach . . . must be commenced
within four (4) years after the cause of action has accrued. By the original agreement the parties
may reduce the period of limitation to not less than one (1) year, but may not extend it.” Id. § 26-

1

In her Amended Complaint, the Plaintiff asserts that “[o]ne or more of the defects and malfunctions in
the vehicle were covered under the terms of the Defendant’s express and/or implied warranties” (First
Am. Compl. ¶ 51), but the parties’ Cross-Motions for Summary Judgment largely ignore the Defendant’s
express warranty and focus primarily on any implied warranty.
2
Compare Ind. Code §§ 26-1-2-314, 26-1-2-725, with Tex. Bus. & Com. Code §§ 2.314, 2.725.
3
For goods to be “merchantable,” they “must at least be such as . . . are fit for the ordinary purposes for
which such goods are used.” Ind. Code § 26-1-2-314(2).

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1-2-725(1). As a preliminary matter, the Court must consider whether the Plaintiff’s claim
commenced within the applicable limitations period, which is four years unless modified. Id.
Here, the Plaintiff and Defendant validly reduced the limitations period to one year. Both
signed the sales agreement, which stipulated that “[a]ny action to enforce the warranty shall not
be brought more than one year after expiration of the one year term of this limited warranty”
(First Am. Compl. Ex. 3 at 23), as well as that “[i]mplied warranties . . . shall be limited to . . .
the duration of the written limited warranty periods set forth herein,” (id.) The Plaintiff
purchased her RV from the Defendant on May 8, 2013. The Defendant’s one-year warranty
ended on May 8, 2014, and the Plaintiff filed her initial Complaint on May 7, 2015. Thus, it
would appear that the Plaintiff satisfies the requirement that an action be brought within “one
year after the expiration of the one year term” under the Defendant’s Limited Warranty. (Id.)
However, the Defendant argues that to obtain repairs covered by the Warranty’s express
terms, an RV owner “must deliver the [RV] to an authorized Keystone dealer . . . within a
reasonable time after discovery of the defect within the warranty period.” (Def.’s Br. 9–10.) The
RV’s roof defect was discovered 10 months after the Limited Warranty ended. Thus, the
Defendant argues that it was no longer obligated to provide repair service under the terms of the
Limited Warranty, and accordingly cannot be in breach. In effect, allowing the Plaintiff’s claim
for breach of warranty to go forward would extend the Limited Warranty’s length beyond its
one-year term.
A breach of warranty “occurs when tender of delivery is made, except that where a
warranty explicitly extends to future performance of the goods and discovery of the breach must
await the time of such performance, the cause of action accrues when the breach is or should

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have been discovered.”4 Ind. Code § 26-1-2-725(2). A cause of action for breach of warranty
“accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the
breach.” Id.; Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., 56 N.E.3d
38, 44 (Ind. Ct. App. 2016). The Seventh Circuit instructs that “the point at which a cause of
action accrues may be determined as a matter of law if the relevant facts are undisputed and they
lead to but one conclusion.” Horn v. A.O. Smith Corp., 50 F.3d 1365, 1370 (7th Cir. 1995). “If
the accrual determination turns on the resolution of factual questions, however, summary
judgment is inappropriate, and the statute of limitations issue” is one for the factfinder to decide.
Id.

1.

Breach of the Express Warranty
When breach of an express warranty occurs is a straightforward analysis: it must occur, if

it is to occur at all, before the express warranty ends. Ind. Code § 26-1-2-725(2). Here, the
parties contracted for a Limited Warranty that was to last for one year from the time of purchase
(May 8, 2013, to May 8, 2014). During that effective period the Plaintiff encountered numerous
mechanical issues with the RV and raised them to the Defendant, which the Defendant promptly
remedied. The alleged breach of warranty involving the RV’s roof occurred on March 31, 2015,
which was ten months after the Limited Warranty ended. Accordingly, the Plaintiff does not
have a claim against the Defendant for breach of an express warranty and the Defendant is
entitled to judgment as a matter of law.

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The exception for future performance only applies to breach of an express warranty because “[a]n
implied warranty by its very nature cannot explicitly extend to future performance.” Stumler v. Ferry
Morse Seed Co., 644 F.2d 667, 671 (7th Cir. 1981). “The word ‘explicit’ means express, definite. Implied
warranties simply are not express or definite. Thus, . . . claims based on implied warranties accrue, if at
all, at the time of delivery.” Id.

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2.

Breach of the Implied Warranty of Merchantability
When a breach of the implied warranty of merchantability occurs is a similar analysis—

it must occur, if it is to occur at all, at the time the product is delivered. Id. § 26-1-2-725(2).5 The
Defendant allegedly breached the implied warranty of merchantability when the Plaintiff
purchased the RV on May 8, 2013.6 However, the RV’s roof issue arose, and the Plaintiff raised
her breach of warranty claim, ten months after the Limited Warranty expired. The issue becomes
whether a latent defect, such as the RV’s alleged roof bubbling and separation, enables the
Plaintiff to maintain her breach of implied warranty claim. The Court concludes it does not.
Indiana courts “have regularly held that unless a contractual provision contravenes a
statute or public policy, actions . . . that are brought after the expiration of the limitation period
provision will be barred.” E.g., New Welton Homes v. Eckman, 830 N.E.2d 32, 35–36 (Ind.
2005) (internal quotation marks omitted); Brunner v. Econ. Preferred Ins. Co., 597 N.E.2d 1317,
1318 (Ind. Ct. App. 1992). “Failure to discover a loss within the time provided under the contract
for bringing a claim is immaterial.” New Welton, 830 N.E.2d at 35 (citing Brunner, 597 N.E.2d
at 1318–19). Whereas a discovery rule for accrual is appropriate in tort actions, which is a form
of liability imposed by law, it is inappropriate in contract actions, as the assignment of
contractual liability is “the product of an agreement of the parties.” New Welton, 830 N.E.2d at
5

Finding that a breach of implied warranty occurs at the time delivery is tendered seems inequitable
because the purchaser may be unable to assess “conformity with a warranty at the time of delivery.” Dart
Indus., Inc. v. Adell Plastics, Inc., 517 F. Supp. 9, 11 (S.D. Ind. 1980). But the drafters of section 26-1-2725(2) believed that “[a] seller’s interest in having some clearly defined limit on the period of its potential
liability apparently outweighed a buyer’s interest in an extended warranty,” absent express bargaining by
the parties for a more extended warranty. See Allen v. Andersen Windows, Inc., 913 F. Supp. 2d 490, 500–
05 (S.D. Ohio 2012); Dart Indus., 517 F. Supp. at 11.
6
The Plaintiff presses no argument that the warranty “explicitly extends to future performance,” which
would toll the limitations period until the Plaintiff discovered the roof defect. See Ind. Code § 26-1-2725(2). Courts have not held that express warranties, like the Limited Warranty at issue in this case,
extend to future performance. See, e.g., Allen, 913 F. Supp. 2d at 500–05; Raymond-Dravo-Langenfelder
v. Microdot, Inc., 425 F. Supp. 614, 618–20 (D. Del. 1976); Binkley Co. v. Teledyne Mid-Am. Corp., 333
F. Supp. 1183, 1187–88 (E.D. Mo. 1971).

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35 (quoting Greg Allen Constr. Co. v. Estelle, 798 N.E.2d 171, 173 (Ind. 2003)); United Tech.
Auto. Sys., Inc. v. Affiliated FM Ins. Co., 725 N.E.2d 871, 875 (Ind. Ct. App. 2000). Here, the
implied warranty period is coextensive with the express warranty, and failure to discover a roof
defect during that time period does not toll the limitations provision.
The Plaintiff relies on Mexia v. Rinker Boat Co., 95 Cal. Rptr. 3d 285 (Ct. App. 2009), to
persuade otherwise. Mexia considered a claim for implied warranty brought after the durational
limit and under a California statute, the Song-Beverly Act. Id. at 287. The product purchased
was a boat, which had a latent defect causing its engine to corrode that required engine repairs
over the first two years of its lifespan. Id. at 288–89. Because the plaintiff alleged that the boat
“failed to work properly from the outset,” the plaintiff’s lawsuit was allowed to proceed despite
his bringing suit after the limitations period expired. Id. at 293–97. Mexia’s holding that a latent
defect can render a product unmerchantable even if discovered after the durational limit was
based on unique precedent7 and a specific California statute that provided rights different from
the implied warranty of merchantability, the combination of which multiple state and federal
courts have used to distinguish Mexia. E.g., Valencia v. Volkswagen Grp. of Am., Inc., 119 F.
Supp. 3d 1130, 1138–39 (N.D. Cal. 2015); Marchante v. Sony Corp. of Am., Inc., 801 F. Supp.
2d 1013, 1021–22 (S.D. Cal. 2011); Larsen v. Nissan N. Am., Inc., No. A121838, 2009 WL
1766797, at *5–6 (Cal. Ct. App. June 23, 2009).
The Court finds persuasive the decisions of these other courts holding Mexia
inapplicable. Here, the Plaintiff provides evidence only that the RV’s roof started having issues

7

Mexia relied upon Moore v. Hubbard & Johnson Lumber Co., 308 P.2d 794 (1957). “In Moore, a
defendant sold lumber to a contractor for construction purposes. The lumber was infested with beetles that
would eat their way out of the wood, leaving holes in the wood.” Marchante v. Sony Corp. of Am., Inc.,
801 F. Supp. 2d 1013, 1021 (S.D. Cal. 2011). That specific character of a “latent defect, whether or not it
was discovered, rendered the lumber unmerchantable from the outset.” Id.

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about 28 months after purchase, not that the RV “failed to work properly from the outset.”
Marchante, 801 F. Supp. 2d at 1021 (emphasis added). True, one of the Plaintiff’s Affidavits
states that “the roof defect is a structural defect that resulted from something being done wrong
at the factory.” (Lewis Aff. ¶¶ 9–10). But Lewis’s Affidavit is not evidence that the RV’s roof
defect made the RV “unmerchantable from the outset.” Marchante, 801 F. Supp. 2d at 1021. To
the contrary, the evidence shows that the Plaintiff used and enjoyed the RV for nearly two years,
with all maintenance issues consistently remedied throughout the Defendant’s warranty period
and before filing this lawsuit. Second, extending Mexia from its narrow application to
California’s Beverly-Song Act to all implied warranty actions “renders meaningless any
durational limits on implied warranties” because “[e]very defect that arises could conceivably be
tied to an imperfection existing during the implied warranty period.” Id. at 1022.

3.

Plaintiff’s Arguments That This Court Should Ignore the One Year Provision
Alternatively, the Plaintiff argues that this Court should disregard the one year limitation

because that provision is (1) unconscionable as a contract of adhesion and (2) fails the Limited
Warranty’s essential purpose. Under Indiana law, a court need not enforce a contract or any
clause of that contract if it would “have been unconscionable at the time it was made.”8 Ind.
Code § 26-1-2-302(1). Unconscionability is a principle “of the prevention of oppression and
unfair surprise . . . and not of disturbance of allocation of risks because of superior bargaining
power.” Id. cmt. 1. “Unconscionability is a question of law” for a court and “[t]he party raising
the issue bears the burden of proof.” Martin Rispens & Sons v. Hall Farms, 621 N.E.2d 1078,

8

The Court may consider the parties’ evidence in their motions when deciding the question of
unconscionability. See Ind. Code § 26-1-2-302(2) (permitting a court to consider “evidence as to [a
contract’s] commercial setting, purpose and effect to aid the court in making the determination” of
unconscionability).

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1086 (Ind. Ct. App. 1993), abrogated on other grounds by Hyundai Motor Am., Inc. v. Goodin,
822 N.E.2d 947 (Ind. 2005). Additionally, “[w]here circumstances cause an exclusive or limited
remedy to fail of its essential purpose,” a court may fashion other, appropriate remedies as
provided by statute. Ind. Code § 26-1-2-719(2).
First, the Court finds that the one-year Limited Warranty was not unconscionable. A oneyear durational warranty is not per se unconscionable. “The possibility that a latent defect may
exist is one of the risks present at the time the contract is formed,” Martin Rispens, 621 N.E.2d at
1086, and does not, in and of itself, render a contract unconscionable. In fact, most consumers
encounter time limitations in warranties for newly purchased products, oftentimes for one-year
or less, and still take such a risk by going through with the purchase. See, e.g., Nation Enter., Inc.
v. Enersyst, Inc., 749 F. Supp. 1506, 1508 (N.D. Ill. 1990) (pizza oven with one-year warranty);
Rutledge v. Hewlett-Packard Co., 190 Cal. Rptr. 3d 411, 418 (Ct. App. 2015) (laptop with oneyear warranty); Nulite Indus. Co. v. Horne, 556 S.E.2d 255, 256 (Ga. Ct. App. 2001) (vinyl
siding and windows with one-year warranty). The Plaintiff has put forward no evidence showing
that the Limited Warranty was oppressive as applied to the Plaintiff—all the evidence shows that
the Defendant timely remedied RV issues during the Limited Warranty period, which is by no
means unconscionable. See Jones v. Fleetwood Motor Homes, 127 F. Supp. 2d 958, 966 (N.D.
Ill. 2000) (reasoning similarly).
Nevertheless, the Plaintiff cites to Wilson Trading Corp. v. David Ferguson, Ltd., 244
N.E.2d 685 (N.Y. 1968), in support of her position that the Limited Warranty was
unconscionable. In Wilson Trading, the warranty provision at issue barred any warranty claim
made “more than 10 days after receipt of shipment.” Id. at 686. It was a question of fact as to
whether it was unreasonable to require a purchaser to detect a latent defect in such a short

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timeframe and, moreover, a party very well might have discovered a latent defect at a later, but
still reasonable, time. See id. at 688–89. The situation before the Court would be more like
Wilson Trading if the Defendant’s Limited Warranty on its RV was just 10 days. However, the
Limited Warranty was 355 days longer than in Wilson Trading, which is grounds for
distinguishing the case. Accordingly, the Court concludes that the Limited Warranty was not
unconscionable as a matter of law.
Second, the Plaintiff argues that enforcement of the Limited Warranty makes the sales
agreement fail of its essential purpose. In support of this point, the Plaintiff basically repackages
her unconscionability arguments, and for the reasons stated above, the Plaintiff’s argument
misses the mark. This is because it is incongruous to claim that modification of a warranty’s
timetable amounts to a remedy limitation. See Hahn v. Ford Motor Co. 434 N.E.2d 943, 952–53
(Ind. Ct. App. 1982) (noting that warranty modification “limits the circumstances in which the
seller or manufacturer may be deemed to be in breach of warranty” while a limitation of remedy
“acknowledges the quality commitment but restricts the remedy available once a breach has been
established”). Section 26-1-2-719 seeks to ensure “at least a fair quantum of remedy for breach
of the obligations” inherent in the contract. Ind. Code § 26-1-2-719 cmt. 1. Barring a party from
receiving consequential damages implicates this concern, whereas contracting for a specific time
period in which to seek a remedy does not. See Hahn, 434 N.E.2d at 952–53.
In sum, the Court finds that there is no genuine dispute as to material facts regarding the
breach of warranty claim. Although the parties dispute the root cause of the RV’s roof issues, the
root cause is immaterial because the defect was discovered and brought to the Defendant’s
attention after the one-year Limited Warranty expired. Without either an express or implied
warranty, the Defendant could not have breached the warranty and the Plaintiff cannot maintain

14

such a claim. Lastly, the one-year limitation was not unconscionable and did not fail of its
essential purpose. Accordingly, the Defendant is entitled to judgment as a matter of law on the
Plaintiff’s breach of warranty claim.9

B.

Magnuson-Moss Warranty Act
The MMWA “create[s] a federal private cause of action for consumers injured by the

violation of (1) any obligation under the Act, (2) any warranty subject to the extensive regulatory
requirements of the Act, or (3) any implied warranty the deceptive and unconscionable limitation
of which was a major focus of the Act’s regulatory provisions.” Skelton v. Gen. Motors Corp.,
660 F.2d 311, 320 (7th Cir. 1981); see also 15 U.S.C. § 2310(d) (providing that any “consumer”
may sue if “damaged by the failure of a supplier, warrantor, or service contractor to comply with
any obligation under [the MMWA] or under a written warranty, implied warranty, or service
contract”).
A gloss on a plaintiff’s state law claims, the MMWA prohibits the disclaimer or
modification of any implied warranty to a consumer, except where the duration of the implied
warranty is limited for a reasonable period of time and such limitation is “conscionable” and “set
forth in clear and unmistakable language and prominently displayed on the face of the warranty.”
15 U.S.C. § 2308(a) (“No supplier may disclaim or modify (except as provided in subsection (b)
of this section) any implied warranty to a consumer with respect to such consumer product if . . .
such supplier makes any written warranty to the consumer with respect to such consumer

9

Alternatively, the Defendant moves for summary judgment on the breach of warranty claim because the
Plaintiff allegedly utilizes the RV as her “residence.” (Baumgardner Aff. ¶ 7.) Such use is a breach of the
terms of the Limited Warranty that excuses the Defendant’s obligations under that Warranty. For her part,
the Plaintiff asserts that she has never used the RV as her “residence.” (Popham Aff. ¶¶ 3–4.) The
Affidavits on this matter present a genuine dispute of fact, but since the Plaintiff’s claim for breach of
warranty is barred for the aforementioned reasons regarding the one-year limitation, the issue of whether
the Plaintiff resided in the RV is not material to this claim.

15

product.”); id. § 2308(b) (“[I]mplied warranties may be limited in duration to the duration of a
written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear
and unmistakable language and prominently displayed on the face of the warranty.”). Text that is
bold, written in all capital letters, and otherwise set apart satisfies § 2308. See Rokicsak v. Colony
Marine Sales & Serv., Inc., 219 F. Supp. 2d 810, 816–18 (E.D. Mich. 2002); cf. Castagna v.
Newmar Corp., No. 3:15-CV-249-TLS, 2016 WL 3413770, at *6 (N.D. Ind. June 22, 2016)
(finding that the written warranty disclaimer did not satisfy § 2308 because its clarifying
language was not conspicuous).
Here, the Plaintiff asserts an MMWA claim involving the breach of an implied warranty.
The Defendant’s Limited Warranty modified any implied warranties under state law to be
coextensive in length of time with the express warranty. However, the Court has already found
that a one-year limiting provision was a reasonable period of time and not unconscionable as a
matter of law. Thus, for the Plaintiff’s MMWA claim to survive summary judgment, she must
show that this limitation is not “set forth in clear and unmistakable language and prominently
displayed on the face of the warranty.” Id.
The Court finds that the one-year limitation satisfies the requirements of § 2308(b). The
words “Limited One Year Warranty” are prominently displayed in centered, bolded text and
larger than other text on the page. (First Am. Compl. Ex. 3 at 23.) Interspersed five times
throughout the paragraphs directly below this bolded text is the phrase “one (1) year,” which
further highlights the limitation to the reader. (Id.) Admittedly, it is not altogether clear that the
limitation applies to implied warranties. Reading further down the page are words that are all
bolded beneath a similarly bolded headline “Warranty Disclaimers,” and the statement that
“[i]mplied warranties . . . shall be limited to and not extend beyond the duration of the written

16

limited warranty periods set forth herein.” (Id.) Although this is by no means an ideal drafting of
a disclaimer, the Court finds that the total composition of the page “set[s] forth in clear and
unmistakable language and prominently display[s]” the fact that any RV warranty lasts for one
year. 15 U.S.C. § 2308(b). Having found that the Defendant’s warranty disclaimer does not
violate the MMWA, the Defendant is entitled to judgment as a matter of law on this claim.

C.

State Consumer Protection Claims
To begin, the Court must examine the consumer protection laws of Indiana and Texas to

decide whether any differences between the states’ laws are “illusory” or significant. Nelson, 288
F.3d at 963. Indiana’s Deceptive Consumer Sales Act (IDCSA), Ind. Code § 24-5-0.5-1 et seq.,
is a remedial statute that must be “‘liberally construed and applied to promote its purposes and
policies’ of protecting consumers from deceptive or unconscionable sales practices.” Kesling v.
Hubler Nissan, 997 N.E.2d 327, 332 (Ind. 2013) (quoting § 24-5-0.5-1). Pursuant to the IDCSA,
a supplier10 commits a deceptive act when it makes certain representations “as to the subject
matter of a consumer transaction, which can be made orally, in writing, or by electronic
communication.” § 24-5-0.5-3(b).
Such representations include, in relevant part:
(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 does not involve a warranty, a
disclaimer of warranties, or other rights, remedies, or obligations, if the
10

A “supplier” is defined, in relevant part, 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).

17

representation is false and if the supplier knows or should reasonably know that
the representation is false.
Id. A deceptive act is only actionable if it is either “uncured” or “incurable.” Perry v. Gulf
Stream Coach, Inc., 814 N.E.2d 634, 647 (Ind. Ct. App. 2004). An “uncured deceptive act” is
defined as a deceptive act “with respect to which a consumer who has been damaged by such act
has given notice to the supplier . . . but the supplier either fails to offer to cure within thirty days
or does offer to cure but fails to cure within a reasonable time after the consumer accepts the
offer.” Id. (citing Ind. Code § 24-5-0.5-2) (internal quotation marks omitted); see also id. (noting
that an intent to defraud or mislead is not an element to an uncured deceptive act). An “incurable
defective act,” on the other hand, is defined as an act “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).
Additionally, an action based on an uncured deceptive act may not be brought unless
the consumer bringing the action:
give[s] 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,11 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.
Id. If a plaintiff “fails to comply with the notice procedures then his suit can only be for an
incurable deceptive act,” which requires a showing of intent to defraud. McCormick Piano &
Organ Co. v. Geiger, 412 N.E.2d 842, 849 (Ind. Ct. App. 1980) (internal quotation marks

11

A “consumer transaction” is defined, in relevant part, as “a sale . . . or other disposition of an item of
personal property . . . a service, or an intangible . . . to an individual for purposes that are primarily
personal, family, or household, or a solicitation to supply any of these things.” Ind. Code § 24-5-0.52(a)(1).

18

omitted) (further noting that “whenever a consumer neglects to avail himself of the notice
provisions or else improperly invokes them, an additional element of proof is imposed on him.”).
Texas has also adopted a consumer protection statute, entitled the Texas Deceptive Trade
Practices Act (TDTPA), Tex. Bus. & Com. Code § 17.41, et seq. To prevail under the TDTPA, a
plaintiff must establish that: (1) the plaintiff is a consumer;12 (2) the act complained of was a
producing cause of actual damages; and (3) the act was prohibited by sections 17.50(a)(1)–(4).
Lochabay v. Sw. Bell Media, Inc., 828 S.W.2d 167, 171 (Tex. Ct. App. 1992). Such prohibited
acts are those enumerated in section 17.46, which include, in relevant part:
(5) representing that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities which they do not have or that a person
has a sponsorship, approval, status, affiliation, or connection which the person
does not;
*
*
*
(7) representing that goods or services are of a particular standard, quality, or
grade, or that goods are of a particular style or model, if they are of another;
*
*
*
(20) representing that a guaranty or warranty confers or involves rights or
remedies which it does not have or involve.
Tex. Bus. & Com. Code § 17.46.13 “Intent to misrepresent, or knowledge that a representation is
untrue, has never been an element of a [TDTPA] ‘laundry list’ claim unless the specific
provision requires intent.” Smith v. Herco, Inc., 900 S.W.2d 852, 859 (Tex. Ct. App. 1995)
(quoting Pennington v. Singleton, 606 S.W.2d 682, 690 (Tex. 1980)). An action may not
commence unless a consumer “give[s] written notice to the person at least 60 days before filing
the suit.” Tex. Bus. & Com. Code § 17.505(a). However, 60-days written notice is not required if

12

A plaintiff must meet two tests to qualify as a consumer: (1) the person must have sought or acquired
goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the
basis of the complaint. Tex. Bus. & Com. Code § 17.45(4). In this case, the Plaintiff satisfies both
elements.
13
Section § 17.50(a) also lists as prohibited acts “breach of an express or implied warranty” and “any
unconscionable action or course of action by any person.” However, as the Court has already ruled, the
Plaintiff’s claims for breach of warranty and unconscionability fail as a matter of law.

19

such notice is “rendered impracticable by reason of the necessity of filing suit in order to prevent
the expiration of the statute of limitations.” Id. § 17.505(b). If no excuse exists for the written
notice, the “person against whom a suit is pending” may request the court abate the suit, which
the court must do if it “finds that the person is entitled to an abatement because notice was not
provided.” Id. § 17.505(c)–(d).
The Court finds that these differences between the IDCSA and the TDTPA are not
“illusory,” but potentially outcome determinative. Nelson, 288 F.3d at 963. First, the TDTPA
excuses a plaintiff from providing pre-suit notice when the statute of limitations is set to expire,
while no excuse is allowed under the IDCSA and failure to provide notice limits the claim to one
for an incurable deceptive act.14 Thus, a claim could survive under the TDTPA but fail under the
IDCSA depending upon whether notice was given and what evidence was offered. Second, the
IDCSA requires that a plaintiff prove “intent” or “knowledge” in showing a violation, while the
relevant provisions of the TDTPA do not.15 If evidence of a product’s defects was offered but
evidence of a defendant’s intent to defraud was not offered, a reasonable jury could find
violations of certain TDTPA provisions but not violations of analogous IDCSA provisions.
“Because there is a conflict between the laws of Indiana and [Texas] that is important
enough to affect the outcome of the litigation,” the Court must decide which law to apply. Simon
v. United States, 805 N.E.2d 798, 805 (Ind. 2004). The Court applies the choice-of-law rules of
the forum state in which it sits, Klaxon Co., 313 U.S. at 496, and Indiana treats a consumer

14

Compare Tex. Bus. & Com. Code § 17.505(b) (excusing 60 days’ notice when it is “rendered
impracticable by reason of the necessity of filing suit in order to prevent the expiration of the statute of
limitations”), with Ind. Code § 24-5-0.5-5(a)(8) (requiring the plaintiff to show “intent to defraud” if the
plaintiff fails to provide notice to the defendant).
15
Compare Ind. Code § 24-5-0.5-3(b) (prohibiting supplier sales when the “subject of [the] consumer
transaction is of a particular standard . . . if it is not and if the supplier knows or should reasonably know
that it is not”) (emphasis added), with Tex. Bus. & Com. Code § 17.46(b) (not requiring a showing of
“intent” or “knowledge” for similar violations).

20

protection claim as recovery in tort, see McKinney v. State, 693 N.E.2d 65, 72 (Ind. 1998)
(finding that, despite the fact that “fraud is not an element of” an IDCSA claim, “the action is
nonetheless based on fraud”). Under Indiana law, the choice-of-law rule governing tort actions is
lex loci delicti—“the law of the place where the tort was committed is the law of the resulting
litigation.” Eby v. York-Div., Borg-Warner, 455 N.E.2d 623, 626 (Ind. Ct. App. 1983). This rule
looks to “the state where the last event necessary to make an actor liable for the alleged wrong
takes place,” Simon, 805 N.E.2d at 805, but a court also considers if “the place of the tort bears
little connection to this legal action,” Id. If the court is persuaded that there is little connection
with where the alleged wrong occurred, it then considers “the place where the conduct causing
the injury occurred, the parties’ residences or places of business, and “the place where the
relationship is centered.” Id. at 805–06 (citing Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071,
1073 (Ind. 1987).
Neither party properly addressed the choice-of-law issue in this litigation. The Plaintiff’s
Amended Complaint asserts claims for the IDCSA “and/or” the TDTPA without choosing one
over the other.16 The Defendant cursorily states that “summary judgment is appropriate
irrespective of which state’s laws apply” (Def.’s Br. 12 n.4.), without providing any analysis as
to why. The Court finds that it would not be in the interest of justice to conduct its own choiceof-law analysis, and ultimately determine summary judgment on this claim, without first
allowing the parties opportunity to present their view on this issue.
Accordingly, the Court will deny the Defendant’s Motion for Summary Judgment as to
Count III. The Court denies the Defendant’s Motion without deciding whether Indiana or Texas

16

A party may plead “two or more statements of a claim or defense alternatively.” Fed. R. Civ. P. 8;
Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000). However, “[a] tort victim can obtain only one
recovery for [her] harm.” Reliance Nat’l Ins. Co. v. Great Lakes Aviation, Ltd., 430 F.3d 412, 416 (7th
Cir. 2005).

21

law governs or otherwise suggesting what this Court’s decision will be with respect to the
consumer protection claim. This denial is without prejudice. Within 30 days of the Order, the
Defendant is given leave to refile its Motion for Summary Judgment as to Count III in which it
applies the choice-of-law rules and fully addresses whether Indiana or Texas law should govern
the Plaintiff’s consumer protection claim. Should the Defendant do so, the parties should brief
the matter in accordance with Local Rule 56-1.

CONCLUSION
For the foregoing reasons, the Court DENIES the Plaintiff’s Motion for Partial Summary
Judgment and GRANTS IN PART and DENIES IN PART the Defendant’s Motion for Summary
Judgment. Summary Judgment is GRANTED with respect to Counts I and II, and Summary
Judgment is DENIED WITHOUT PREJUDICE with respect to Count III.

SO ORDERED on September 19, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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