K R Smith Trucking LLC v. PACCAR Inc. et al

Filing 108

MEMORANDUM AND ORDER granting 84 Motion for Summary Judgment; denying 88 Motion for Leave to Amend Complaint; granting 98 Motion for Summary Judgment; denying 88 Motion for Reconsideration; denying 88 Motion to Amend/Correct. Signed by District Judge Wesley E. Brown on 7/27/2011. (alm)

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF KANSAS

K.R. SMITH TRUCKING, LLC,,
Plaintiff,
v.
PACCAR, INC. and PETERBILT
MOTORS COMPANY, a division of
PACCAR, INC., and WESTERN
PETERBILT, INC.,
Defendant.

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Case No. 08-1351-WEB

MEMORANDUM AND ORDER
Defendant PACCAR, Inc. and Peterbilt Motors Company (Peterbilt) filed a Motion for
Summary Judgment. (Doc. 84). Plaintiff Smith filed a Motion for Leave to Amend Complaint
and for Reconsideration. (Doc. 88). Western Peterbilt, Inc. (Western) has also filed a Motion
for Summary Judgment. (Doc. 98).
I. Facts
1. The truck at issue is a 2006 Peterbilt Model 379, Serial Number
1XP5DB9X05D841477. (Pretrial Order, Stipulations, p. 2).
2. Peterbilt Motors Company designed and manufactured the truck. (Pretrial Order,
Stipulations, p. 2).
3. Smith was told that prior to his purchase, the truck was leased and operated by
Boeing. (Pl. Exh. D, Depo. Smith, p. 19).
4. The truck had approximately 42,000 miles on it. (Amended Complaint, Doc. 10).
5. Smith purchased the truck as a used truck. (Pretrial Order, Stipulations, p. 2).

6. Smith negotiated the sale of the truck with Ron Christenson, a salesman. Ron and his
manager established the amount Western Peterbilt would pay Smith for his trade-in. (Pl. Exh. D,
Depo. Smith, p. 21-23).
7. Smith agreed to purchase the truck on March 14, 2005. (Pl. Exh. A, Customer
Purchase Order).
8. Smith did not sign the Customer Purchase Order until March 21, 2005. (Pl. Exh. A,
Customer Purchase Order).
9. Smith completed the purchase of the truck on March 28, 2005, from Western Peterbilt,
Inc., in Spokane, Washington. (Pretrial Order, Stipulations, p. 2).
10. On March 28, 2005, the Long Term Lease Agreement and Sales Invoice was
prepared and signed by the parties. (Pl. Exh. B, Long Term Lease Agreement; Pl. Exh. C, Sales
Invoice).
11. Smith signed the documents, but did not read them. (Pl. Exh. D, Smith Depo., p. 33).
12. Smith later had some mechanical problems with the truck. He learned that there
were no warranties on the truck. (Pl. Exh. D, Smith Depo., p. 28).
13. Smith saw Peterbilt / PACCAR generic advertisements in The Official Publication of
the Owner-Operator Independent Drivers Association (“OOIDA”). (Pl. Exh. D, Smith Depo., p.
35-39).
14. The specific advertising on this truck did not induce Smith to buy the truck. (Pl.
Exh. D, Smith Depo., p. 37).
15. On September 28, 2007, Smith was operating the truck near Lebo, Kansas, when the
truck caught fire. (Pretrial Order, Stipulations, p. 2).

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16. The truck was a total loss. (Amended Complaint, Doc. 10).
17. The truck had at least 325, 900 miles on it at the time of the fire. (Western Exh. M,
Report of Ron Curbo).
18. Smith had added thousands of dollars in aftermarket parts to the truck. (Pl. Exh. D,
Smith Depo., p. 57-63).
19. Maintenance had been performed by a number of mechanics at various business. (Pl.
Exh. D, Smith Depo., p. 75-84).
II. Jurisdiction
Jurisdiction is not disputed. The court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332.
III. Standard of Review
Summary judgment is appropriate 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; Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011).
A fact is “material” if under the substantive law it is essential to the proper disposition of the
claim. Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 12311232 (10th Cir. 2001), quoting Adler v. Wal-Mart Stores, 144 F.3d 664, 670 (10th Cir. 1998).
“An issue is genuine if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.” Adler, 144 F.3d at 670. The court must “view the evidence
and draw all reasonable inferences therefrom in the light most favorable to the party opposing
summary judgement. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148
(10th Cir. 2000). The burden of showing that no genuine issue of material fact exists is borne by

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the moving party. E.E.O.C. v. Horizon / MS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.
2000). Once the moving party meets the burden, the nonmoving party must demonstrate a
genuine issue for trial on a material matter. Concrete Works, Inc. v. City & County of Denver,
36 F.3d 1513, 1517 (10th Cir. 1994).
IV. Summary of the Case and Motions
Smith filed the present suit against Peterbilt, which included PACCAR, Peterbilt Motors
Company as a division of Paccar, and Western Peterbilt. Smith alleges violations of the
Washington Consumer Protection Act; Breach of Implied Warranties of Merchantability and of
Fitness for a Particular Purpose; Breach of Express Warranties by Affirmation, Promise,
Description or Sample; and Strict Liability. In the Memorandum and Order (Doc. 21) filed in
response to plaintiffs’ motion to dismiss, the court ruled that Washington law applied to contract
claims, and Kansas law applied to tort claims. The court dismissed Smith’s claim of breach of
implied warranties of merchantability and of fitness for a particular purpose and also dismissed
Smith’s strict liability claim.
a. Motion to Amend / Motion for Reconsideration
Smith has filed a motion to amend the complaint, and a motion for reconsideration of the
court’s order on the motion to dismiss. Smith argues that during discovery, documents became
available which show there was privity of contract, and therefore the claims for implied
warranties of fitness and merchantability are applicable to this case and should be reinstated.
Smith also argues that there was not specific negotiation between the parties related to the
waiver of the warranties as required by the Washington Consumer Protection Act.
Smith requests that the court allow him to amend the complaint, to include three

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additional claims: concealment of a known fire risk by the defendants; negligence for failure to
inspect, inform, recall or replace fuel lines; and a claim that the defendants ignored known
information that the material used in their fuel lines were at risk for fire. Defendants object to an
amendment of the complaint at this late stage of the case.
Western argues Smith’s motion for reconsideration should be denied as it procedurally
and substantively defective under Rule 59(e) and Rule 60. Western argues the motion to amend
should be denied, as Smith was not a third party beneficiary of any contract, and Smith was not
in privity with defendants.
b. Motion for Summary Judgment
Paccar and Peterbilt Motors Company request summary judgment on the two remaining
claims. Peterbilt argues that Smith’s Washington Consumer Protection Act claim should fail as
there is insufficient evidence to prove the claim. Peterbilt argues that there is insufficient
evidence to establish that Peterbilt engaged in unfair or deceptive acts or practices, or that the
actions affected the public interest. Peterbilt further argues that advertisements did not occur in
Peterbilt’s trade or commerce. Finally, Peterbilt argues that Smith’s express warranty claim is
not supported by material evidence as Smith did not rely on Peterbilt’s advertising.
Western also requests summary judgment on the WCPA claim, arguing that Smith has
not established the necessary facts for the court to find that the elements of the Act have been
met. Western argues that Smith cannot demonstrate an unfair or deceptive practice; cannot
establish a defect existed at the time of the sale, or that Western knew about a defect; and cannot
demonstrate any misrepresentation. Western also argues that Smith cannot show a deceptive
practice that affects the public interest, or a causal link between the alleged deceptive act and the

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injury.
Smith argues that the WCPA applies, and defendants failed to disclose a material fact,
which qualifies as a deceptive act under the CPA. Specifically, Smith argues that defendants had
an obligation to disclose the lack of warranty on the vehicle, and the known defects. Smith
concedes that there is not a valid express warranty claim, and agrees the express warranty claim
should be dismissed.
V. Discussion
a. Motion for Reconsideration
The Federal Rules of Civil Procedure do not recognize a motion for reconsideration.
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir.
2002). The District of Kansas Rules contain a provision entitled “Motion to Reconsider,” which
provides:
A party may file a motion asking a judge or magistrate judge to reconsider
an order or decision made by that judge or magistrate judge.
(a) Dispositive Orders and Judgments. Motions seeking
reconsideration of dispositive orders or judgments must be filed pursuant
to Federal. R. Civ. P. 59(e) or 60. Reconsideration of such an order of
judgment will not be granted under this rule.
(b) Non-dispositive Orders. Motions seeking reconsideration of
non-dispositive orders shall be filed within ten days after the filing of the
order unless the time is extended by the court. A motion to reconsider
shall be based on (1) an intervening change in controlling law, (2) the
availability of new evidence, or (3) the need to correct clear error or
prevent manifest injustice. D. Kan. R. 7.3.
This court has previously held that an order that does not dispose of all the claims in the
case is considered non-dispositive. Fusco v. Insurance Planning Center, No. 05-1245 (D.Kan.)
(Doc. 140) (“dispositive order” in Rule 7.3 means a final judgment or order that disposes of all
remaining claims in the case). Cf. Fed.R.Civ.P. 54(b) (any order that adjudicates fewer than all
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the claims or rights of all the parties may be revised at any time before the entry of a final
judgment). Since the court’s order of October 23, 2009 did not dispose of all the claims, the
order is considered non-dispositive, and the motion to reconsider is reviewed under D.Kan.R.
7.3(b).
A motion to reconsider is not appropriate to revisit issues already addressed or to advance
arguments that could have been raised in prior briefing. See e.g., Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000) (addressing motion for reconsideration under Rule 59(b)).
The decision whether to grant a motion to reconsider is committed to the district court’s
discretion. In re Motor Fuel Temp. Sales Practices Litigation, 707 F.Supp.2d 1145, 1166
(D.Kan. 2010).
The language of Rule 7.3 requires that a motion to reconsider “shall be filed within ten
days after the filing of the order.” D.Kan.R. 7.3(b). The Memorandum and Order was filed on
October 23, 2009, and the Motion for Reconsideration was not filed until November 15, 2010.
The only exception is if additional time is given by the court. Smith did not file a motion
requesting additional time to file a Motion for Reconsideration. The motion was not filed within
the 10 day period and relief is not available to Smith.
The court notes that Smith’s motion to reconsider the court’s dismissal of the implied
warranty claim is immaterial, as the parties disclaimed all warranties in the sales agreement.
Warranty disclaimers are ineffectual unless the parties explicitly negotiate them. Berg v.
Stromme, 79 Wash.2d 184, 196, 484 P.2d 380 (1971). The seller’s disclaimer “must be (1)
conspicuous, (2) known to the buyer, and (3) specifically bargained for.” Burbo v. Harley C.
Douglass, Inc., 125 Wash.App. 684, 693, 106 P.3d 258 (2005). The third requirement prevents

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sellers from hiding disclaimers in the fine print or boiler plate language of a contract. Olmstead
v. Mulder, 72 Wash.App. 169, 176-78, 863 P.2d 1355 (1993). Implied warranties can be
disclaimed by expressions like “as is.” See RCWA 62A.2-316(3)(a).
On March 21, 2005, Smith signed the Customer Purchase Order. The order contained the
following language: “NOTE: USED VEHICLES ARE SOLD ‘AS IS’ WITH NO
WARRANTY, unless otherwise certified by Seller in Writing.” (Pl. Exh. A). The court in
Warner v. Design & Build Homes, Inc., 128 Wash.App. 34, 114 P.3d 664 (2005) stated that a
reasonable person will understand an “as is” clause to “waive all implied warranties.” Id. at 4041. In the case at hand, the equipment lease agreement contained the following language:
4) WARRANTY
LESSOR LEASES THE EQUIPMENT TO LESSEE “AS IS” AND MAKES NO
WARRANTIES REGARDING THE EQUIPMENT, INCLUDING, BUT NOT
LIMITED TO, THE BODY, ENGINE, TRANSMISSION, DRIVETRAIN, ANY
OTHER MECHANICAL PARTS, THE ELECTRICAL SYSTEM, ANY
ACCESSORIES AND ALL OPTIONS ON THE EQUIPMENT WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
PERFORMANCE GUARANTIES AND IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ALL
OF WHICH ARE EXPRESSLY EXCLUDED. Lessor shall not be liable for any
direct, indirect, incidental or consequential damage or losses resulting from the
operation or use of the Equipment. In addition, the Lessor shall not be
responsible for any loss, damage or claim caused by or attributable to any defect
or deficiency in any Equipment whether raising out of the Equipment’s
manufacture, design or otherwise.
(Lessee’s initials)______________
The Equipment lease agreement was attached to the Long Term Lease Purchase Option
Agreement, which was signed by the parties on March 28, 2005. The warranty disclaimer was
made known to Smith prior to the sale of the truck. The warranty disclaimer was in bold, capital
letters, and Smith had to initial under the warranty disclaimer, acknowledging that he negotiated
and agreed to the disclaimer. In Olmstead, the court ruled that discussing the provision was
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sufficient to show that the parties “bargained for” the disclaimer. 72 Wash.App. At 176-77. The
disclaimer of the implied warranties is effectual.
Smith argues that under Washington law, “a buyer does not waive any implied warranties
that normally attach to goods unless he has had an opportunity to thoroughly inspect the good
and the inspection would have revealed defects which might affect the implied warranties.”
Doc. 105, p. 27), citing to RCW 62A 2-316(3)(b); and Testo v. Russ Dunmire Oldsmobile, Inc.,
16 Wash.App. 39, 44-45, 554 P.2d 349. However, this was not the issue before the court at the
motion to dismiss. In their motions to dismiss, the defendants argued that there was no privity of
contract and the implied warranty claim therefore failed. Smith responded that there was privity
of contract. To the extent that Smith advances a new argument in his motion to reconsider, the
court will not allow him to litigate the new argument, as that is not the purpose of a motion to
reconsider. As discussed in further detail below, Smith has not shown the vehicle contained a
defect, therefore this argument fails. Smith’s motion to reconsider the implied warranty claim is
denied.
b. Motion to Amend
“A party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2). Smith attempted to include three new claims in the pretrial order, which should be
evaluated by the court under the standards set forth in Rule 15(a). Wilson v. Muckala, 303 F.3d
1207, 1215 (10th Cir. 2002). The court has discretion whether to allow amendment of the
pleadings. Zenith Radio Corp. V. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28
L.Ed.2d 77 (1971). The purpose of Rule 15 is to provide litigants “the maximum opportunity for

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each claim to be decided on its merits rather than on procedural niceties.” Hardin v. ManitowocForsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). The Supreme Court held that amendment of
the pleadings should be allowed in the absence of “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment...” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The
defendant experiences undue prejudice when the amendment unfairly affects the defendant’s
ability to prepare its defense. Minter v. Prime Equipment Co., 451 F.3d 1196, 1208 (10th Cir.
2006). “Most often, this occurs when the amended claims arise out of a subject matter different
from what was set forth in the complaint and raise significant new factual issues.” Id.
Denial of leave to amend is appropriate “when the party filing the motion has no
adequate explanation for the delay.” Frank v. U.S. West, 3 F.3d 1357, 1365-66 (10th Cir. 1993).
In the pretrial order, Smith attempted to amend the pleadings to include a claim for concealment
of known fire risk; negligence for failure to inspect, inform, recall, or replace fuel lines; and a
claim that defendants ignored reports that the material used in the fuel lines were at risk for fire
and defendants did not modify the fuel lines. The court denied Smith’s motion to amend without
prejudice, and directed Smith file a formal motion on or before November 24, 2010.
Smith’s motion was not timely. The first request to amend the complaint was at the
pretrial conference, after the completion of discovery. Smith attempts to argue that the facts that
form the basis for the proposed amendments were not known until the close of discovery.
However, a review of Smith’s response to the motion to dismiss (Doc. 16), filed January 9, 2009,
shows that Smith made the following argument:

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“there is a known history of similar events to the fire that consumed the tractor in
question. It is known that this event is not the first such event to have occurred to
a Peterbilt tractor under the same or similar circumstances, and it is known to
have occurred several times. Certainly, no efforts are known to this plaintiff that
defendants ever attempted to warn or advise the public, or this plaintiff of the
defective condition of the subject tractor, nor the defective condition of any
similar or same model tractors that have suffered the same or similar damage.”
(Doc. 16, p. 3).
Smith’s proposed amendments are centered around the fire, whether the defendants knew about
the risk of fire, and whether or not defendants ignored information regarding fires in Peterbilt
trucks. The proposed claims are based on the same arguments and facts known to Smith at the
motion to dismiss stage. The complaint could have been amended sometime in 2009 to add the
additional claims. Smith has not set forth a reasonable explanation for the delay in requesting a
modification of the complaint.
If the court were to allow Smith to amend his complaint at this time, it is very possible a
new round of discovery and the refiling of dispositive motions would be required. Obviously,
this would result in undue prejudice to the defendants. Smith’s motion to amend will be denied.
c. Summary Judgment
A violation of the Washington Consumer Protection Act has five elements: (1) unfair or
deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4)
injury to plaintiff in his or her business or property; and (5) causation. Hangman Ridge Training
Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 785-793, 719 P.2d 531 (Wash. 1986).
All five elements must be alleged to support a WCPA claim. Id. at 784. The parties do not
dispute that the Peterbilt tractor was sold in trade or commerce, nor do the parties dispute that
there was injury to the plaintiff.
To establish the first element, the plaintiff must demonstrate “either (1) the act had the
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capacity to deceive a substantial portion of the public or (2) that the practice constitutes a per se
unfair trade practice.” Minnick v. Clearwire US, LLC, 683 F.Supp.2d 1179, 1186 (W.D.Wash.
2010). The Washington Court has defined “deceptive” as a practice that “misleads or
misrepresents something of material importance.” Nhuyen v. Doak Homes, Inc., 140 Wash.App.
726, 734 (2007). Whether particular actions are deceptive are a question of law. Dombrosky v.
Farmers Ins. Co. Of Washington, 84 Wash.App. 245, 260, 928 P.2d 1127 (1996).

In Potter v.

Wilbur-Ellis Co., 62 Wash.App. 318, 814 P.2d 670 (1991), the court ruled that a material fact
known by the seller and not communicated to the buyer may be classified as an unfair or
deceptive act due to its inherent capacity to deceive. Id. at 327-28.
An unfair or deceptive act or practice regarding the sale of motor vehicles may occur in
connection with advertisements for the vehicle or representations made by the defendant
regarding the vehicle, in connection with the sales transaction, or following delivery of the
vehicle. Dempsey v. Joe Pignataro Chevrolet Inc., 22 Wash.App. 384, 391, 589 P.2d 1265
(1979).
Smith argues that defendants were deceptive in failing to disclose a known defect in a
product, and were deceptive in using boilerplate language to disclaim warranties. Smith alleges
the known defect was the design of the wires, use of cheap material, and the risk of fire.
Defendants argue there is insufficient evidence to establish that any defendant committed a
deceptive act or practice.
The court notes that Smith refers to a “known defect” throughout his briefings. When a
defect is known, the seller has a general duty to disclose the facts to the buyer. See Griffith v.
Centex Real Estate Corp., 93 Wash.App. 202, 214, 969 P.2d 486 (1998), citing Testo v. Russ

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Dunmire Oldsmobilt, Inc., 16 Wash.App. 39, 51, 554 P.2d 349 (1976). The duty to disclose
extends to material facts adversely affecting the property, not just concealed defects. Griffith, 93
Wash.App. at 216-217. However, Smith has not specifically identified the defect. A review of
the expert opinions submitted in the case at hand show that the experts do not conclude that there
was a defect in the trailer. Rodney Curbo, the Product Safety and Compliance Manager at
Peterbilt, opined that the engine harness at the time of the fire had been altered from the way it
was manufactured. (Def. Western Exh. M, Curbo Report). Charles Jacobs, a certified fire
investigator, opined that the fire occurred as a result of chafing of a fuel line and an active
electrical conductor. (Def. Western Exh. I, Jacobs Report). Jason Wollum opined that the fire
was accidental in nature. (Def. Western Exh. J, Wollum Report). Lawrence Berg, a certified fire
investigator, opined that the fire was accidental in nature. (Def. Western Exh. K, Berg Report).
Richard Dyer, a certified fire investigator, opined that the cause of the fire was undetermined.
(Western Exh. L, Dyer Report). All the experts agree that chafing of electrical wires, electrical
arcing, and the vapors of the diesel fuel contributed to the cause of the fire. None of the experts
testified that Peterbilt trucks or Caterpillar motors had a defect, known or otherwise, with the
wires.
Smith also submitted testimony of the tow truck driver, Robert Harsch. Harsch stated he
was a mechanic and an owner of a tow truck business. The tow truck driver is not a fire and
origin expert, and is not trained in fire and origin investigation. Smith admitted that Harsch’s
testimony was submitted as a fact witness, not as an expert. (Smith’s Statement of Facts 37,
Doc. 105). Smith attempts to admit as evidence the opinion of the he tow truck driver that the
fuel line rubs against a bracket, which causes a hole and allows fuel to leak.

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Lay opinion testimony is limited to “opinions or inferences which are (a) rationally based
on the perception of the witness, and (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Harsch’s
explanation of the fuel line rubbing against a bracket is not helpful in understanding the cause of
the fire, as Harsch only states that the rubbing creates a hole in the fuel line, but does not provide
an opinion on how the fuel starts on fire. Harsch also stated that fuel leaks are common with this
type of fuel line material. However, Harsch does not provide any documentation to support this
conclusion. Harsch’s statement that fuel was leaking from the truck when he arrived on scene to
tow the truck is properly admissible. However, Harsch’s opinion of the cause of the fire is not
admissible as it is not based on scientific or technical knowledge. Harsch’s opinion that the fuel
line is made of a poor material does not lend any support to Smith’s allegation that there is a
design defect, and is only Harsch’s opinion, not supported by any other facts in the record.
Opinions of the tow truck driver based on his perception or his observations are admissible, as
are Harsch’s opinions related to the mechanics of the engine in the truck. At the summary
judgment stage, the court may consider only admissible evidence, therefore Harsch’s opinion on
how the fire started is not relevant to the court’s analysis. See World of Sleep, Inc. v. La-Z-Boy
Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
A review of cases applying the Washington Consumer Protection Act shows that the
party claiming a defect typically identifies the specific defect as well as the party responsible for
the defect. See Townsend v. Quadrant Corp., 153 Wash.App. 870, 224 P.3d 818 (2009); Carlile
v. Harbour Homes, Inc., 147 Wash.App. 193, 194 P.3d 280 (2008) (claims of unfair and

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deceptive practices against the builder of houses where builder made affirmative representations
as to the quality of the home); Svendsen v. Stock, 143 Wash.2d 546, 23 P.3d 455 (2001) (CPA
violation when seller fraudulently conceals material fact, independent of the seller disclosure
statement).
In the case at hand, Smith has not presented cases, vehicle reports, accident reports,
national safety reports, service bulletins, manual revisions, website information, inter-company
memorandums, or any other documents to show that Paccar, Peterbilt or Western were aware of
a defect. In Griffith, the court ruled that a seller must disclose material facts to the purchaser
when they are known to the seller. Griffith v. Centex Real Estate Corp., 93 Wash.App. at 214.
Unlike the Griffith case, there is no evidence before the court that Peterbilt, Western, or Paccar
knew about an alleged problem with the fuel line. Smith has not set forth evidence upon which
a trier of fact could find that there was a known defect. Therefore, Smith cannot show
defendants were deceptive in failing to disclose a defect.
Smith also argues that the defendants were deceptive in using boilerplate language to
disclaim warranties. Smith does not provide any case law to support the legal conclusion that
the use of “boilerplate” language qualifies as a deceptive act under the CPA. A review of
Washington law shows that warranty disclaimers are reviewed under warranty claims and the
Uniform Commercial Code, not under the WCPA. The parties agreed that the express warranty
claim should be dismissed, and the court has ruled that Smith’s implied warranty claim was
correctly dismissed. Smith is attempting to argue a warranty claim although there are no
warranty claims pending before the court.
Even if Smith could show there was a known defect or that the defendants were deceptive

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in using boilerplate language to disclaim the warranties, Smith must prove that the act had the
capacity to deceive a substantial portion of the public. See Hangman Ridge, 105 Wash.2d at
785. Defendants argue that there is no evidence that a substantial portion of the public was
deceived.
The Washington Courts have reviewed a number of cases addressing whether a
substantial portion of the public was deceived. In Travis v. Wash. Horse Breeders Ass’n, 111
Wash.2d 396, 759 P.2d 418 (1988), the court found that misrepresentations in seller’s
advertisements have the capacity to deceive a substantial portion of the public when the seller
uses the media to make misrepresentations known to be inaccurate. Id. at 406. In Micro
Enhance v. Coopers & Lybrand, 110 Wash.App. 412, 40 P.3d 1206 (2002), the Court found
standard form language that is used to “sell” a company’s services or their image does not have
the capacity to deceive a substantial portion of the public. Id. at 438. In Segal Co. v. Amazon,
280 F.Supp.2d 1229 (W.D.Wash. 2003), the court found the fact that a defendant engages in
additional commercial dealings does not always indicate that it’s activities have the potential to
deceive a substantial portion of the public. Id. at 1233. In Burns v. McClinton, 135 Wash.App.
285, 143 P.3d 630 (2006), the court considered whether there was a pattern of nondisclosure,
finding none, determined a substantial portion of the public was not deceived. Id. at 305-06.
In the case at hand, there was no concealment of any warranty disclaimers. As discussed
previously, the Customer Purchase Order and the equipment lease agreement contained language
that the vehicle was sold “as is.” Smith was required to initial in a space immediately following
the warranty disclaimer. The disclaimer of the warranties was disclosed. The seller did not call
it something that it was not, and did not hide it. In fact, the language required the buyer to initial

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under the disclaimer of warranty, ensuring that the buyer was aware of the provision. Smith
cannot show the disclaimer of warranties would deceive a substantial portion of the public when
the information was not concealed. Smith also cannot proceed on the theory that the language
could deceive a substantial portion of the public. In Westview Invs., Ltd. v. U.S. Bank Nat’l
Ass’n, 133 Wash.App. 835, 854 n. 27, 138 P.32 638 (2006), the Court found that “mere
speculation that an alleged unfair or deceptive act had the capacity to deceive a substantial
portion of the public is insufficient to survive summary judgment.” Id. at 854 n. 27. The record
lacks evidence that any other buyers of a Peterbilt truck were deceived. Smith has not provided
sufficient evidence for a jury to find that a substantial portion of the public was deceived.
Smith has not set forth evidence upon which a trier of fact could find any defendant
participated in an unfair or deceptive act or practice, the first element of the WCPA. There is not
a genuine issue of material fact on the question whether the defendants participated in an unfair
or deceptive act, or that the alleged act affects a substantial portion of the public. To set forth a
prima facie case under the WCPA, Smith must show all five elements. Smith failed to show the
first element, therefore, defendants’ motions for summary judgment are granted.
VI. Conclusion
IT IS THEREFORE ORDERED for the reasons set forth above, Smith’s Motion for leave
to Amend and Motion for Reconsideration (Doc. 88) is denied.
IT IS FURTHER ORDERED Paacar, Inc. and Peterbilt Motors Company’s Motion for
Summary Judgment (Doc. 84) is granted.
IT IS FURTHER ORDERED Western Peterbilt, Inc. Motion for Summary Judgment
(Doc. 98) is granted.

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IT IS SO ORDERED this 27th day of July, 2011.

s/ Wesley E. Brown
Wesley E. Brown
Senior United States District Court Judge

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