Chaudoin v. Thor Motor Coach, Inc. et al

Filing 36

OPINION AND ORDER granting in part and denying in part 25 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD CHAUDOIN,
Plaintiff,
Case No. 15-13871
v.
THOR MOTOR COACH, INC., and
GENERAL RV CENTER, INC.,

Paul D. Borman
United States District Judge

Defendants.
______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
This action centers around an allegedly defective recreational vehicle that
Plaintiff Edward Chaudoin purchased from Defendant General RV Center, Inc.
(“GRV”), and which had been manufactured in part and sold to GRV by
Defendant Thor Motor Coach, Inc. (“Thor”). Plaintiff has asserted ten separate
causes of action against both Defendants jointly, nine of which arise under
Michigan law, and the tenth of which was brought pursuant to the federal
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq.
Before the Court are two Motions for Summary Judgment filed separately by
the two Defendants. For the reasons stated below, the Court will grant Defendants’
Motions for Summary Judgment as to all of Plaintiff’s claims except for the
product liability claim asserted in Count VII of Plaintiff’s Amended Complaint.

BACKGROUND
Factual Background
1.

Plaintiff’s Purchase of the RV and Relevant Documents

On May 16, 2014, Plaintiff bought a recreational vehicle at a trade show
from GRV for $130,526.50. The transaction is reflected in the Purchase Agreement
between Plaintiff and GRV. (ECF No. 25, Defendant General RV Center, Inc.’s
Motion for Summary Judgment (“Def. GRV’s Mot.”) Ex. 2, Purchase Agreement;
Def. GRV's Mot., Ex. 1, Deposition of Edward Chaudoin 15:13-15.) The vehicle
(the “RV”), which Plaintiff bought new, was a 2015 model 37KT Challenger, and
as part of the transaction Plaintiff traded in a 2001 Coachmen Santara that he
owned. (Purchase Agreement at 2; Chaudoin Dep. 12:15-18.) The purchase price
included a service contract with non-party CornerStone RV (“CornerStone”)
which Plaintiff purchased through GRV for $4,505. (Purchase Agreement at 2.)
Plaintiff testified that he negotiated with GRV representatives over the price, but
not over any other terms of the purchase. (Chaudoin Dep. 160:9-14.)
Before buying the RV, Plaintiff spoke with a GRV salesman, who
represented that there was a factory warranty on the vehicle. (Chaudoin Dep.
23:15-17.) Plaintiff testified that his perception at the time was that Thor was
warranting the coach while Ford Motor Company was warranting the motor and
frame, but that his understanding in any case was that his warranty was "bumper to
2

bumper” and that Thor would have primary responsibility for repairs. (Chaudoin
Dep. 40:17-42:3.) Plaintiff did not perform any research into Thor products or
speak to any representatives from Thor prior to making the purchase. (Chaudoin
Dep. 21:5-13.)
Plaintiff was presented with, reviewed, and signed various documents at the
time of the purchase. These documents are significant in one way or another to
nearly all of the claims asserted in this action, and so their relevant provisions are
set forth below.
i.

Purchase Agreement (GRV)

On the Purchase Agreement, a block of text above Plaintiff’s signature
states:
THIS PURCHASE AGREEMENT CONTAINS THE ENTIRE
UNDERSTANDING
BETWEEN
GENERAL
RV
AND
PURCHASER NO ONE HAS AUTHORITY TO MAKE ANY
REPRESENTATION BEYOND THIS AGREEMENT NO OTHER
REPRESENTATIONS OR INDUCEMENTS, VERBAL OR
WRITTEN HAVE BEEN MADE WHICH ARE NOT CONTAINED
ON THIS DOCUMENT PURCHASER HAS NOT RELIED ON
ANYTHING WRITTEN INTO THIS PURCHASE AGREEMENT
SUCH THAT NOTHING ELSE IS THE BASIS OF THE BARGAIN
OR IS ENFORCEABLE AGAINST GENERAL RV, EVEN IF
ALLEGED TO BE A MISREPRESENTATION BY SIGNING
BELOW, PURCHASER ACKNOWLEDGES THAT PURCHASER
HAS RECEIVED A COPY OF THIS AGREEMENT AND THAT
PURCHASER HAS READ AND UNDERSTANDS THE TERMS

3

OF THIS AGREEMENT, INCLUDING THOSE PRINTED ON THE
REVERSE SIDE, WHICH INCLUDE . . . AN “AS IS” CLAUSE . . .
(Purchase Agreement at 2.)
The reverse side of the Purchase Agreement contains additional terms, two
of which are relevant here. Paragraph 12 on the reverse side states:
PURCHASER UNDERSTANDS THAT THERE MAY BE
WRITTEN WARRANTIES COVERING THIS RV, BUT THAT
THESE
WARRANTIES
ARE
OFFERED
BY
THE
MANUFACTURERS OF THE RV, ITS COMPONENTS AND/OR
ITS 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 THIS RV IS SOLD “AS
IS” BY DEALER, AND DEALER DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
(Id. at 3 (emphasis in original).)
Paragraph 13 on the reverse side states:
Except in states that do not allow limitation of damages, the following
limitation of damages shall apply DEALER DISCLAIMS ANY
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, SUCH
THAT PURCHASER SHALL NOT BE ENTITLED TO
INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM
DEALER Also, since this is an “AS IS” purchase as to Dealer,
Purchaser cannot rescind nor revoke acceptance of this contract, or the
vehicle, or return the vehicle to Dealer.
4

(Id. (emphasis in original).)
Plaintiff testified that he was handed the Purchase Agreement and it was
explained to him, whereupon he signed it. (Chaudoin Dep. 26:18-22.) Plaintiff
testified that he did not read the Purchase Agreement “word for word,” and while
he admitted that he could have requested the opportunity to do so, he also testified
that “[i]f I would have read all the paperwork that they gave me word for word, I'd
have been there for 16 hours.” (Chaudoin Dep. 27:12-14.)
ii.

Limited Warranty (Thor)

Most of the documents that accompanied the purchase of the RV are not in
dispute. There is a significant factual dispute regarding one of the purchase
documents, however, and it is over whether Plaintiff received Thor’s Limited
Warranty at the time of sale. (ECF No. 26, Defendant Thor Motor Coach Inc.’s
Motion for Summary Judgment (“Def. Thor’s Mot.”) Ex. 1, Limited Warranty.)
Plaintiff maintains that the owner’s manual he received from GRV listed the
Limited Warranty in its table of contents, but that the specific pages containing the
Limited Warranty had been removed from the manual itself. (ECF No. 29,
Plaintiff’s Response to Defendant Thor Motor Coach Inc.’s Motion for Summary
Judgment (“Pl.’s Thor Resp.”) at 4; Pl.'s Thor Resp., Ex. 1, RV Owner’s Manual
Warranty Section.) Thor admits that the pages had been removed, but claims that
this was because the Limited Warranty was changed after the owner’s manual was
5

printed. (ECF No. 31, Defendant Thor Motor Coach Inc.’s Reply Brief to
Plaintiff’s Response to Motion for Summary Judgment (“Def. Thor’s Repl.”) at 2;
Pl.'s Thor Resp., Ex. 2, Defendant Thor Motor Coach’s Answers to Plaintiff’s First
Set of Interrogatories.) The parties agree that Plaintiff obtained the Limited
Warranty separately from the owner’s manual at some point, but disagree on
precisely when. Thor claims that Plaintiff received it at the time of sale. (Def.
Thor's Repl. at 2.) Plaintiff claims that he demanded it from GRV after he began
having problems with the RV, and GRV gave him a copy only then. (Chaudoin
Dep. 39:14-40:12.)
While the time at which Plaintiff received the Limited Warranty is in
dispute, the contents of the Limited Warranty are not. (Def. Thor's Mot., Ex. 1,
Limited Warranty; Pl.'s Thor Resp., Ex. 11, Defendant Thor’s Alleged, Post-Sale
Limited Warranty.) By its terms, the Limited Warranty lasted until the earliest of
15,000 miles or 12 months after delivery of the RV by an authorized dealer, with a
longer period (24,000 miles or 24 months from the purchase date) for “the steel or
aluminum frame structure, only, of the sidewalls (excluding slide outs), roof, and
rear and front walls.” (Limited Warranty at 2.)
Under a section entitled “LIMITATION AND DISCLAIMER OF IMPLIED
WARRANTIES,” the Limited Warranty states:
IMPLIED WARRANTIES, IF ANY, ARISING BY WAY OF
STATE LAW, INCLUDING ANY IMPLIED WARRANTY OF
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MERCHANTABILITY AND ANY IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN
DURATION TO THE TERM OF THIS LIMITED WARRANTY
AND ARE LIMITED IN SCOPE OF COVERAGE TO THOSE
PORTIONS OF THE MOTORHOME COVERED BY THE
LIMITED WARRANTY. WARRANTOR DISCLAIMS ALL
IMPLIED AND EXPRESS WARRANTIES, INCLUDING THE
IMPLIED WARRANTY OF MERCHANTABILITY AND THE
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, ON COMPONENTS AND APPLIANCES EXCLUDED
FROM COVERAGE AS SET FORTH BELOW. There is no warranty
of any nature made by Warrantor beyond that contained in this
Limited Warranty. No person has authority to enlarge, amend or
modify this Limited Warranty. The dealer is not the Warrantor's agent
but is an independent entity. Warrantor is not responsible for any
undertaking, representation or warranty made by any dealer or other
person beyond those expressly set forth in this Limited Warranty.
Some states do not allow limitations on how long an implied warranty
lasts, so the above limitation may not apply to you.
(Limited Warranty at 2.)
Also of particular importance here is that under the section entitled “LEGAL
REMEDIES,” the Limited Warranty states:
THIS LIMITED WARRANTY DOES NOT EXTEND TO “FUTURE
PERFORMANCE”. ANY ACTION TO ENFORCE THIS LIMITED
WARRANTY OR ANY IMPLIED WARRANTIES SHALL NOT BE
COMMENCED MORE THAN 90 DAYS AFTER THE
EXPIRATION OF THE APPLICABLE WARRANTY COVERAGE
PERIOD DESIGNATED ABOVE. UNLESS PROHIBITED BY
STATE LAW, THE PERFORMANCE OF REPAIRS SHALL NOT
SUSPEND THIS LIMITATIONS PERIOD FROM EXPIRING AND
ANY LEGAL ACTION TO ENFORCE WARRANTY RIGHTS
7

AGAINST WARRANTOR MUST BE BROUGHT WITHIN THE
STATE OF INDIANA.
(Id.)
iii.

Registration and Acknowledgement (Thor)

Relevant to Plaintiff’s receipt (whenever it took place) of Thor’s Limited
Warranty is the fact that on the date that he purchased the RV, Plaintiff signed
Thor’s Registration and Acknowledgement of Receipt of Warranty and Product
Information. (Def. Thor's Mot., Ex. 2, Thor Registration and Acknowledgement.)
Under its header, the Thor Registration and Acknowledgement prominently
states “IMPORTANT THE CUSTOMER IS REQUIRED TO READ THIS
DOCUMENT BEFORE SIGNING IT.” (Thor Registration and Acknowledgement
at 2.) The next paragraph states as follows:
We have listed several items which will help acquaint you with your
new recreation vehicle. You the purchaser, should not submit this
form until (1) you have received and reviewed the Limited Warranty
and owner’s manual; (2) you have had the opportunity to inspect and
opertate [sic] the vehicle; (3) all items have been demonstrated and/or
explained to you; (4) the dealer has answered any questions you may
have, and; (5) you find the vehicle in good condition. The dealer is not
authorized to deliver this vehicle until this has been done and both you
and the dealer have signed this form.
(Id.)
Only Plaintiff’s signature appears on the Thor Registration and
Acknowledgement. Above the signature line (and Plaintiff’s signature on it), the
8

document states in relevant part:
Before I purchased this vehicle, I received, read and agreed to the
terms and conditions of Thor Motor Coach's 1 page Limited
Warranty, published within its Owner's Manual . . . I understand and
agree that any legal action for breach of express or for breach of
implied warranties that may arise by operation of law must be filed
within ninety (90) days of the expiration of the applicable warranty
coverage period as defined within the limited warranty . . . I also agree
that the selling dealer is not an agent for Thor Motor Coach but is an
independent company with no authority to make any representation or
promise for Thor Motor Coach[.]
(Id.)
As noted above, Plaintiff testified that he first saw the Limited Warranty
when he obtained a copy of it from GRV after noticing that the pages that
purportedly contained it were missing from the owner’s manual he had received.
(Chaudoin Dep. 39:14-40:12.) He did not ask to see the Limited Warranty any time
prior to that because he “thought there was no need” since “[i]t was a new
vehicle.” (Chaudoin Dep. 40:13-16.) And whether he received it at the time he
purchased the RV or at some point later, Plaintiff testified that he never read the
Limited Warranty. (Chaudoin Dep. 124:9-10.)
iv.

Warranty Disclaimer (GRV)

Also included among the documents reviewed and signed by Plaintiff at the
time of the purchase was a GRV document entitled “General RV Arbitration, ‘AS
IS’ and Warranty Disclaimer Form, and Acknowledgement of Michigan Law and
9

Michigan Forum Controlling.” (Def. GRV's Mot., Ex. 3, GRV Warranty
Disclaimer.)
The GRV Warranty Disclaimer is a one-page document reiterating several of
the key terms in the Purchase Agreement. Among other things, the GRV Warranty
Disclaimer states that the signer understands: (1) that the Purchase Agreement is
the only document that represents an agreement with GRV; (2) that the signer has
no right to revocation, rescission, or repurchase because the vehicle was purchased
“AS IS”; (3) that GRV offers no express or implied warranty and any warranties
on the vehicle are from manufacturers; (4) that any such manufacturer warranties
have been provided to the signer; and (5) that the signer is not entitled to any
incidental or consequential damages, provided that applicable state law allows
limitation of damages. (See id. at 2.)
Above Plaintiff’s signature, the GRV Warranty Disclaimer reads: “General
RV has answered all of my questions regarding my purchase to my satisfaction I
am satisfied with the RV' s current condition, and I have read and understand this
document.” (Id.) Plaintiff testified that he “skimmed through” this document
before signing it. (Chaudoin Dep. 30:4-8.)
v.

Confirmation of Understanding of Purchase Agreement
(GRV)

Another GRV form reviewed and signed by Plaintiff reiterated that he (as

10

the undersigned) had the opportunity to review the “fully completed contract” and
have any questions answered to his satisfaction, and that he fully understood the
“terms and conditions of the sales agreement presented to [him].” (Def. GRV's
Mot., Ex 4, Confirmation of Understanding of Purchase Agreement.)
Plaintiff testified that he “skimmed through” the paragraphs on this form as
well. (Chaudoin Dep. 36:14-23.) He further testified as follows:
Q These [paragraphs] talk about, in particular, for example, the
second one states, all my questions regarding the sales agreement was
answered to my satisfaction before I signed the agreement. Did you
agree with that statement?
A Well, I thought at the time that they were telling me everything I
needed to know.
Q Okay. I'm going to have you read each one of those statements, just
to yourself, and ask you if you agree that those were accurate?
A I would say, pretty much I understood everything.
Q Okay, and you agreed with those statements at the time you signed
this?
A At the time I signed it, yeah.
(Chaudoin Dep. 36:24-37:12.)
vi.

Service Call Agreement (GRV)

Plaintiff reviewed and signed a separate Service Call Agreement with GRV,
which stated that while the buyer was encouraged to obtain any warranty repairs
through local service providers, GRV would send repair staff to service the RV at
the buyer’s location if the buyer could not have the necessary repairs done locally.
(Def. GRV's Mot. Ex. 5, GRV Service Call Agreement.) The GRV Service Call
11

Agreement outlined the amounts that GRV would charge the buyer for servicing
the vehicle at the buyer’s location and for towing the vehicle to the “servicing
dealer” closest to the buyer’s location, as well as the circumstances under which
GRV would facilitate Plaintiff’s seeking reimbursement for repair costs from a
manufacturer. (Id.)
The GRV Service Call Agreement begins with the following language:
It is important for you to be aware of the Manufacturer's warranty
policy regarding your recreational vehicle/unit since General RV sold
it to you "AS IS," and since General RV does not issue any warranties
whatsoever, express or implied, and because all warranties received
by you are solely issued by the manufacturer of your recreational
vehicle/unit[.]
(GRV Service Call Agreement at 2.)
Plaintiff acknowledged in his deposition testimony that he signed the GRV
Service Call Agreement after he “skimmed through it.” (Chaudoin Dep. 38:3-7.)
vii.

Title Application

The Title Application signed by Plaintiff itself included language—close to
and above the signature field but nearly so small as to be illegible—representing
that the undersigned understood that any applicable warranties were offered by
manufacturers, that the RV was sold to him “AS IS,” and that GRV disclaimed all
express and implied warranties. (Def. GRV's Mot. Ex. 6, Title Application.)

12

viii.

Cornerstone Service Contract

In connection with his purchase of the RV, Plaintiff also bought from GRV
an extended service contract with non-party CornerStone for $4,505. (Purchase
Agreement at 2.) The service contract specifies that “[t]his Contract is between
You and the Obligor (hereinafter referred to as We, Us, or Our)[.]” (Def. GRV's
Mot., Ex. 8, Cornerstone RV Service Contract at 2.) The CornerStone Service
Contract contains various provisions, including a provision specifying that the
contract’s duration was 60 months or 75,000 miles from the date of purchase, and a
provision stating that this term of coverage included “all manufacturer, dealer,
and/o[r] other applicable warranties.” (Id.) The document was signed both by
Plaintiff and by a representative of GRV, which is referred to in the document as
the “SELLING DEALER.” (Id.)
Plaintiff testified that he “looked through [the CornerStone Service Contract]
like I looked through everything else” presented to him in the transaction, that at
the time of purchase he understood the CornerStone Service Contract took effect
“when the factory warranty ended,” and that he was not aware of GRV providing
him with any other warranties. (Chaudoin Dep. 34:6-36:8.)
2.

Plaintiff’s Problems with the RV

On or shortly after Plaintiff purchased the RV on May 16, 2014, he took the
vehicle home. (Chaudoin Dep. 45:23-46:4.) Shortly thereafter, Plaintiff testified,
13

he left on his first weekend trip in the RV, and noticed at the outset of the trip that
the water pump was broken. Plaintiff spent eight hours at GRV’s repair facility to
have the pump fixed and accordingly shortened the trip by a day. (Chaudoin Dep.
47:5-49:12.) On the trip, Plaintiff also noticed issues with the paint job, the
windshield wipers, the radio, and the television. (Chaudoin Dep. 50:19-52:12.)
Between that time and the end of May of 2015, when Thor took possession
of the RV, Plaintiff took the vehicle in to be serviced a number of times. Plaintiff
testified that the pattern that characterized that year or so was that he would
become aware of a malfunction or other problem with the RV, he would take the
vehicle to GRV to be repaired, he would inspect the repairs, after which he would
take the RV home and begin using it again, and soon after that he would notice
additional problems. (Chaudoin Dep. 62:1-7.) According to a summary of repairs
that Plaintiff’s counsel sent to both Defendants around the time that Plaintiff
purported to revoke his acceptance and arrange for the RV’s return to Thor,
Plaintiff took the vehicle in for repairs on 10 different occasions between May
2014 and March 2015, in which 54 separate components of the vehicle were
serviced. (See ECF No. 28, Plaintiff’s Response to Defendant General RV Center,
Inc.’s Motion for Summary Judgment (“Pl.’s GRV Resp.”) Ex. 4, GRV
Revocation Letter at 5-6.)
By the time Plaintiff took his first extended trip with the RV in January of
14

2015, the RV had been taken in for repairs five times. On or around January 20,
2015, Plaintiff was in Georgia with his fiancée during that trip, and as Plaintiff was
exiting the RV to refuel at a small-town gas station, one of the steps broke as he
stepped on it, causing Plaintiff to fall and injure his face. (Chaudoin Dep. 91:292:7.) Plaintiff testified that he bled from his nose for approximately two hours, but
chose not to seek medical treatment because of the remoteness of the area that he
was in. (92:9-16.) Plaintiff and his fiancée drove the RV to a Camping World retail
and repair facility in Lake Park, Georgia, and stayed at the nearby campgrounds for
several days while they waited for a replacement step to arrive and the steps to be
repaired. While they were waiting, the RV’s furnace broke down, and also had to
be repaired. (Chaudoin Dep. 102:22-106:4.)
3.

Plaintiff’s Return of the RV

After GRV had completed a set of repairs around the end of April of 2015,
and after Plaintiff noticed continuing issues with the RV after those repairs had
been done, he contacted Thor about picking up the RV, and provided Thor with a
list of needed repairs. (Chaudoin Dep. 126:19-128:1.) Plaintiff testified that his
intention was to permanently return the RV, but that he gave Thor a list of repairs
in the event that Thor did not take the vehicle back. (Chaudoin Dep. 131:20132:6.)

15

Around this time, on April 30, 2015, Plaintiff’s attorney sent letters to GRV,
Thor, and Thor’s registered agent, which outlined the maintenance issues that had
arisen over the past year and expressed Plaintiff’s intention to return the RV to
Thor in exchange for the down payment he had made. (GRV Revocation Letter;
Pl.'s Thor Resp., Ex. 8, Thor Revocation Letter.) The letter to GRV stated that
GRV was in breach of any and all express or implied warranties, demanded
rescission of the Purchase Agreement, and stated that the letter constituted notice
of Plaintiff’s revocation of acceptance under Mich. Comp. Laws § 440.2608.
(GRV Revocation Letter at 3-4.) The letter to Thor (and the identical copy sent to
Thor’s registered agent) requested the return of Plaintiff’s down payment and
repossession of the RV by Thor. (Thor Revocation Letter at 3, 7.) All three letters
were accompanied by an “Evidentiary Memo,” which listed the purchase date of
the RV and summarized repairs that Plaintiff had obtained (as well as their costs to
him, where applicable) on ten different occasions between May of 2014 and March
of 2015. (GRV Revocation Letter at 5-6; Thor Revocation Letter at 4-5, 8-9.)
Thor picked up the RV from Plaintiff on or around May 20, 2015. (Pl.'s Thor
Resp. at 15.) Thor remains in possession of the RV. (Def. Thor's Mot. at 15.)
Relevant Procedural History
Plaintiff filed suit against both Defendants in the Circuit Court of Livingston
County on October 2, 2015, and the action was removed to this Court on
16

November 3. (ECF No. 1, Notice of Removal to Federal Court.) Plaintiff filed an
Amended Complaint on November 30, 2015 (ECF No. 8, Am. Compl.), which
Defendants jointly answered on December 10. (ECF Nos. 12, 15.)
The Amended Complaint asserts ten claims against Defendants jointly:
breach of express and implied warranties (Count I); revocation of acceptance
(Count II); breach of contract (Count III); violation of the MMWA (Count IV);
unjust enrichment (Count V); violation of the Michigan Consumer Protection Act
(“MCPA”), Mich. Comp. Laws § 445.903 (Count VI); product liability (Count
VII); fraudulent misrepresentation (Count VIII); innocent misrepresentation (Count
IX); and silent fraud (Count X). (Am. Compl. at 5-22.)
The Scheduling Order entered by this Court on January 22, 2016 set the
close of discovery at October 26, 2016 and the cutoff date for dispositive motions
at January 24, 2017. (ECF No. 20.)
On February 5, 2016, Defendants filed a Notice of Non-Party Fault pursuant
to Michigan’s comparative negligence statute, Mich. Comp. Laws § 600.6304.1
(ECF No. 21, Notice of Non-Party Fault.) In it, Defendants asserted that the
allegedly defective step that Plaintiff claims caused him to fall and injure his face
was manufactured by non-party Lippert Components, Inc. (“Lippert”), and was in
1

This provision requires that juries in personal injury actions under Michigan law
determine the comparative fault of all parties “that contributed to the death or
injury . . . regardless of whether the person was or could have been named as a
party to the action.” Mich. Comp. Laws 600.6304(1)(b).
17

fact the subject of a safety recall in late 2015. (See id. at 1-2.) Defendants also
attached three documents related to that recall as exhibits to the Notice. (See id.,
Exs. A-C.) Accordingly, Defendants argued, “Lippert may be a non-party that is
wholly or partially at fault for Plaintiff’s alleged injury.” (Id. at 2.)
Defendants filed the instant Motions for Summary Judgment on January 11,
2017. (ECF Nos. 25, 26.) Plaintiff filed Responses on February 1, 2017. (ECF Nos.
28, 29.) Each Defendant filed a Reply on February 15, 2017. (ECF Nos. 30, 31.)
The Court conducted a hearing on the instant Motions on April 6, 2017. At
the hearing, the Court observed that the “LEGAL REMEDIES” portion of Thor’s
Limited Warranty contains a clause stating that legal action to enforce rights under
the Limited Warranty must be brought in the state of Indiana. After the hearing, the
Court entered two orders: one directing the parties to file supplemental briefs as to
whether Indiana law should apply to Plaintiff’s claims against Thor, and one
ordering the parties to facilitative mediation pursuant to E.D. Mich. L.R. 16.4.
(ECF Nos. 32, 33.) The parties filed supplemental briefs on Indiana law on April
24, 2017 and May 8, 2017. (ECF Nos. 34, 35.) In June 2017, the parties notified
the Court that they had completed facilitation and were unable to settle the case.
LEGAL STANDARDS
Summary judgment is appropriate where the moving party demonstrates that
there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477
18

U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of a
motion for summary judgment where proof of that fact ‘would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or
defense asserted by the parties.’” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77
(E.D. Mich. 2013) (Borman, J.) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174
(6th Cir. 1984)). A dispute is genuine “if 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, 247-48 (1986).
“In deciding a motion for summary judgment, the court must draw all
reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy,
353 F.3d 510, 513 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must
produce enough evidence to allow a reasonable jury to find in his or her favor by a
preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere
possibility’ of a factual dispute does not suffice to create a triable case.” Combs v.
Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen–Bradley
Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be
able to show sufficient probative evidence [that] would permit a finding in [his]
favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of
Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc.,
19

355 F.3d 515, 533 (6th Cir. 2004)). That evidence must be capable of presentation
in a form that would be admissible at trial. See Alexander v. CareSource, 576 F.3d
551, 558–59 (6th Cir. 2009).
DISCUSSION
For the reasons detailed below, the Court will grant summary judgment to
both Defendants on the sole federal claim that Plaintiff has asserted against each
Defendant under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §
2301 et seq. Further, the Court will grant summary judgment as to all of Plaintiff’s
state-law claims with the sole exception of his product liability claim, regarding
which the Court has determined that Plaintiff has raised a genuine issue of material
fact sufficient for that claim to survive summary judgment.
Federal Claims
Plaintiff asserts his MMWA claim against each Defendant, but the basis for
each Defendant’s alleged violation of the MMWA differs. Plaintiff argues that
Thor violated the MMWA in various ways but predominantly by failing to abide
by the federal minimum standards set forth in the statute, and that GRV violated
the MMWA by impermissibly attempting to limit implied warranties that arise
under applicable state law, and that would otherwise be enforceable against GRV.
For the reasons articulated below, Plaintiff’s MMWA claims against both

20

Defendants fail as a matter of law, and so the Court will grant summary judgment
to Defendants on Count IV.
1.

Magnuson-Moss Warranty Act (Count IV)

The MMWA creates a private right of action by which consumers can
enforce warranties in certain circumstances. Specifically, any consumer “who is
damaged by the failure of a supplier, warrantor, or service contractor to comply
with any obligation under this chapter, or under a written warranty, implied
warranty, or service contract, may bring suit for damages and other legal and
equitable relief” in federal court. 15 U.S.C. § 2310(d).
The remedy available to plaintiffs in MMWA actions depends on the nature
of the warranty, and in this regard the statute distinguishes between express full
warranties, express limited warranties, and implied warranties.
Express full warranties must meet four conditions under the MMWA: (1) the
warrantor must “as a minimum remedy such consumer product within a reasonable
time and without charge, in the case of a defect, malfunction, or failure to conform
with such written warranty;” (2) the warrantor may not limit the duration of
implied warranties; (3) the warrantor may not “exclude or limit consequential
damages for breach of any written or implied warranty” on the product, unless the
text of the warranty conspicuously permits as much; and (4) the warrantor must
refund or replace a product that has a defect that has not been remedied after a
21

“reasonable number of attempts” by the warrantor. 15 U.S.C. § 2304(a).
Any written warranty that by its terms does not meet these standards is
considered an “express limited warranty.” And while the provision quoted in the
paragraph above creates a “refund or replace” consumer remedy for breaches of
express full warranties, the MMWA is “silent as to the types of remedies available
for breach of an express limited warranty. Thus, when a manufacturer only offers a
limited warranty, Courts look to state law to determine the plaintiff's rights to
damages or other legal and equitable relief.” Sautner v. Fleetwood Enterprises,
Inc., No. 05-73252, 2007 WL 1343806, at *9 (E.D. Mich. May 8, 2007).
Lastly, the MMWA provision governing implied warranties relevantly
provides that
[n]o supplier may disclaim or modify . . . any implied warranty to a
consumer with respect to such consumer product if (1) such supplier
makes any written warranty to the consumer with respect to such
consumer product, or (2) at the time of sale, or within 90 days
thereafter, such supplier enters into a service contract with the
consumer which applies to such consumer product.
15 U.S.C. § 2308(a). The exception to this rule is that an implied warranty “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.” Id. § 2308(b).

22

Here, Plaintiff claims that Thor violated the MMWA’s standards for written
warranties, and is therefore required to refund or replace the RV. Plaintiff also
argues that GRV violated the MMWA provision on implied warranties by
disclaiming all implied warranties while at the same time entering into a service
contract with Plaintiff. The Court rejects both of these contentions.
i.

Thor offered Plaintiff an express limited warranty only, and
so Plaintiff is not entitled to the MMWA’s “refund or
replace” remedy.

Thor argues that because its Limited Warranty clearly did not meet the
MMWA’s standards for an express full warranty, it is an express limited warranty
for MMWA purposes, and Plaintiff is not entitled to the “refund or replace”
remedy provided for in 15 U.S.C. § 2304(a)(4). Plaintiff maintains that not only is
that remedy appropriate in this case, but also that Thor violated the MMWA by
failing to comport with the statute’s rules governing the contents of the warranties
in 15 U.S.C. § 2302, failing to designate an express warranty as a “limited
warranty” under 15 U.S.C. § 2303, and illegally limiting implied warranties under
15 U.S.C. § 2308.
Thor’s answers to all of these contentions are grounded in Thor’s claim that
it gave Plaintiff a limited warranty only; meanwhile, as noted above, Plaintiff
claims that he did not receive the Limited Warranty at the time of purchase, and
that it is therefore invalid. The validity of Thor’s Limited Warranty is a critical
23

issue for several of the claims in this action, and so it merits close analysis here.
The parties do not differ over the contents of the Limited Warranty. They
also agree that the Limited Warranty had been removed from the owner’s manual
that was given to Plaintiff, and that Plaintiff received a copy of the Limited
Warranty separately from the manual. The crucial dispute is over when he received
it: Defendants argue that Plaintiff got it on the date of purchase (although
separately from the owner’s manual), while Plaintiff contends that he did not
receive it until later, when he demanded a copy from GRV after the RV began
malfunctioning.2 The issue of the Limited Warranty’s validity thus encompasses
two questions: (1) when did Plaintiff receive the document, and (2) what (if any)
effect does that fact have on its enforceability?
Plaintiff testified that he did not set eyes on the Limited Warranty until he
demanded it from GRV, and from this testimony he urges the Court to infer that he
was not provided with the document on the day he purchased the RV.
Acknowledging that the Limited Warranty had been removed from the owner’s
manual, Thor takes the position that it was given to Plaintiff separately at the time
of the purchase, but Thor has not put forward competent evidence—testimonial or
otherwise—that directly supports this assertion. Thor does highlight that Plaintiff
2

The precise date on which Plaintiff believes that he received the Limited
Warranty from GRV is not clear from the record, and Plaintiff testified only that he
obtained a copy of the Limited Warranty from GRV “[a]fter I started having all
these problems.” (Chaudoin Dep. 39:24-40:1.)
24

signed the Registration and Acknowledgement, and thereby represented that he
“received, read and agreed to the terms and conditions of Thor Motor Coach's 1
page Limited Warranty, published within its Owner's Manual.” (Thor Registration
and Acknowledgement at 2.) But purely for the purposes of determining when
Plaintiff received the Limited Warranty, the Court cannot take Plaintiff’s
representation on the Registration and Acknowledgement at face value, since
Plaintiff testified not only that he did not see the Limited Warranty until he
demanded it from GRV, but also that he did not fully read all of the documents that
he signed on the date of purchase. Resolving all factual ambiguities in Plaintiff’s
favor at this stage, the Court cannot find that Plaintiff received Thor’s Limited
Warranty on the date he purchased the RV.
The question then becomes whether the Limited Warranty was still valid
even if Plaintiff did not receive it until not long after he bought the RV, when he
obtained a copy from GRV. The Court finds that it was valid.
Particularly important to this conclusion is Plaintiff’s representation in the
Thor Registration and Acknowledgement that he “received, read and agreed to the
terms and conditions of Thor Motor Coach's 1 page Limited Warranty, published
within its Owner's Manual . . . .” (Thor Registration and Acknowledgement at 2)
That representation might not prove that he had actually received and read the
Limited Warranty, but it was enough to put him on notice that such a document
25

governed the terms of his purchase.
Michigan law permits a party to incorporate terms or documents from
other writings into their contracts. Where a contract references another
instrument for additional contract terms, it is as though the contents of
the referenced writing had been repeated in the contract. Neither
physical attachment nor specific language is necessary in order for a
document to be incorporated into a contract, but the incorporating
instrument must clearly evidence an intent that the writing be made a
part of the contract. A party cannot later plead ignorance as an excuse
if the contract is clear on its face that such terms were intended to be
incorporated and failure to obtain an explanation of a contract
demonstrates negligence.
Dow Corning Corp. v. Weather Shield Mfg., Inc., 790 F. Supp. 2d 604, 611 (E.D.
Mich. 2011) (internal citations omitted). Michigan law also provides that language
limiting or modifying express warranties must be consistent with language creating
such warranties and may not be “unreasonable,” and that language limiting or
modifying implied warranties must be “conspicuous.” Mich. Comp. Laws §
440.2316(1)-(2). The commentary to these statutory provisions explains that these
they are designed “to protect a buyer from unexpected and unbargained language
of disclaimer by denying effect to such language when inconsistent with language
of express warranty and permitting the exclusion of implied warranties only by
conspicuous language or other circumstances which protect the buyer from
surprise.” Mich. Comp. Laws § 440.2316 cmt. 1.

26

Plaintiff cannot claim to have been surprised by the Limited Warranty. Even
on the assumption that he did not receive the Limited Warranty on the date of
purchase,

Plaintiff

did

sign

a

document

(the

Thor

Registration

and

Acknowledgement) that made references to the Limited Warranty in a manner
specific enough to put Plaintiff on notice that a document called “Limited
Warranty” and issued by Thor was part of the transaction he was entering into.
Those references were conspicuous because the one of the primary purposes of the
Registration and Acknowledgement was to ensure that Plaintiff recognized that the
purchase was subject to the Limited Warranty, and the Limited Warranty was
referenced at two separate points on the Thor Registration and Acknowledgement.
The references to the Limited Warranty in the Registration and Acknowledgement,
moreover, clearly imply the existence of a specific document: the fact that the
words “Limited Warranty” are capitalized do this to some degree, but the point is
driven home by the reference to the particular length (“1 page”) and location
(“published within [the] Owner’s Manual”) of the Limited Warranty. (Thor
Registration and Acknowledgement at 2.) Plaintiff did not sign a generic form
simply indicating that he had reviewed all documents that he had been handed, or
that he had had all of his questions answered; he signed a form representing that he
had received, read, and agreed to the terms in a document specifically identified by
name, length, and location. This was enough to put him on notice that a document
27

entitled “the Limited Warranty” governed his purchase of the RV, and it was then
his responsibility to inquire if he found it was missing from the owner’s manual—
all the more so given that it was (or should have been) apparent that several
sequentially numbered pages were missing from the section of the manual
identified in the manual’s table of contents as containing the Limited Warranty.
(Pl.'s Thor Resp., Ex. 1, RV Owner’s Manual Warranty Section at 5-8.) See HRL
Land or Sea Yachts v. Travel Supreme, Inc., No. 1:07-CV-945, 2009 WL 427375,
at *4 (W.D. Mich. Feb. 20, 2009) (“A contracting party has a duty to examine a
contract and know what the party has signed, and the other contracting party
cannot be made to suffer for neglect of that duty. A party who does not understand
the terms of a contract has a duty to inquire about its contents.”) (internal citations
and quotation marks omitted).
Plaintiff points to the “ENTIRE UNDERSTANDING” clause printed above
his signature on the Purchase Agreement, and argues that that clause should estop
Thor from invoking terms in any documents that were not exchanged on the
purchase date. This argument fails for two reasons. First, that clause is clear on its
face that it only applies against GRV: it provides that the Purchase Agreement
represents the “ENTIRE UNDERSTANDING BETWEEN GENERAL RV AND
PURCHASER,” and later that “NOTHING ELSE IS THE BASIS OF THE
BARGAIN OR IS ENFORCEABLE AGAINST GENERAL RV.” (Purchase
28

Agreement at 2.) Second, this argument assumes that Plaintiff relied on the
“ENTIRE UNDERSTANDING” clause to some degree, and that assumption is
undermined both by Plaintiff’s testimony that he did not read much of the
documentation he received on the date of purchase, and by the fact that Plaintiff
registered no apparent objection to the copy of the Limited Warranty he later
received from GRV—and indeed had repairs done pursuant to that warranty.
Accordingly, the Court finds that Thor’s Limited Warranty was valid. This,
in turn, entitles Thor to summary judgment on the claims that Plaintiff has asserted
against it under various provisions of the MMWA. First, Plaintiff argues that
nothing in the owner’s manual that he received on the day of the purchase
“satisfied the thirteen enumerated terms or items in 15 USC §2302” (Pl.'s Resp. at
17), but the Limited Warranty does comply with this MMWA provision, which
sets forth a list of content requirements for written warranties. The Limited
Warranty also complies with 15 U.S.C. § 2303, which requires that limited
warranties be clearly designated as such.
Nor has Plaintiff raised a genuine issue of material fact as to Thor’s having
violated 15 U.S.C. § 2308, which in certain circumstances prohibits a supplier
from disclaiming or modifying implied warranties as to a product when the
supplier has made a written warranty as to that same product. The Limited
Warranty was clearly a written warranty, but the only limitation it made on implied
29

warranties was to set their duration to be the same as that of the written warranty,
and this is expressly permitted by the statute.3 See 15 U.S.C. § 2308(b) (providing
that “implied 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”).
Most importantly, the Limited Warranty defeats Plaintiff’s claim that he is
entitled to relief under 15 U.S.C. § 2304(a)(4). This subprovision of the MMWA
provides that when a defective product or part is subject to an express full
warranty, the warrantor may be required to either refund the consumer’s money or
replace the product or part, if the warrantor is unable to cure the defect. See 15
U.S.C. § 2304(a)(4). But the “refund or replace” remedy is not available when the

3

The Limited Warranty also sets the scope of implied warranties to be the same as
that of the Limited Warranty itself, and therefore “disclaims” implied warranties as
to items already excluded from the Limited Warranty’s coverage. But a later
section (“WHAT THE WARRANTY DOES NOT COVER”) makes clear that
what the Limited Warranty excludes are things like components that are functional
but whose design the consumer dislikes, normal wear and tear, owner maintenance,
and parts that were not manufactured by Thor and/or are covered by their own
warranties. (See Limited Warranty at 2.) The text of the MMWA, in any case,
contemplates the limitation of implied warranties as to products or components that
the supplier has in fact covered under a written warranty. See 15 U.S.C. § 2308(a)
(“No supplier may disclaim or modify . . . 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 product . . . .”) (emphasis
added). Accordingly, any limitations in scope that Thor made to implied warranties
through the Limited Warranty do not violate 15 U.S.C. § 2308.
30

warranty at issue does not meet the MMWA’s enumerated standards for express
full warranties. As this Court has explained,
[t]he MMWA breaks down express warranties into two categories:
“full” and “limited.” To be classified as “full,” a warranty must meet
the minimum definition of “full warranty” under the Act. If the
warranty does not meet the definition of “full warranty,” then the
warranty, for purposes of the Act, is a “limited warranty.”
Zanger v. Gulf Stream Coach, Inc., No. 05-CV-72300-DT, 2005 WL 3163392, at
*8 (E.D. Mich. Nov. 28, 2005). 15 U.S.C. § 2304, which provides for the “refund
or replace” remedy, sets forth the standards for a “full warranty”:
In order for a warrantor warranting a consumer product by means of a
written warranty to meet the Federal minimum standards for
warranty-(1) such warrantor must as a minimum remedy such consumer
product within a reasonable time and without charge, in the case of
a defect, malfunction, or failure to conform with such written
warranty;
(2) notwithstanding section 2308(b) of this title, such warrantor
may not impose any limitation on the duration of any implied
warranty on the product;
(3) such warrantor may not exclude or limit consequential damages
for breach of any written or implied warranty on such product,
unless such exclusion or limitation conspicuously appears on the
face of the warranty; and
(4) if the product (or a component part thereof) contains a defect or
malfunction after a reasonable number of attempts by the
warrantor to remedy defects or malfunctions in such product, such
warrantor must permit the consumer to elect either a refund for, or
replacement without charge of, such product or part (as the case
may be). . . . If the warrantor replaces a component part of a
31

consumer product, such replacement shall include installing the
part in the product without charge.
15 U.S.C. § 2304(a).
Here, the durational limitations imposed in the Limited Warranty
disqualified Thor’s warranty from being a “full warranty” under the MMWA, since
15 U.S.C. § 2304(a)(2) provides that full warranties may not include “any
limitation on the duration of any implied warranty on the product.” Accordingly,
none of the “Federal minimum standards for warranty” set forth in § 2304(a)
applies to Thor’s warranty, and as Thor’s warranty is not an express full warranty,
Plaintiff is not entitled to § 2304(a)(4)’s “refund and replace” remedy. See
Miekstyn v. BMC Choppers, No. 266439, 2007 WL 1062198, at *3 (Mich. Ct. App.
Apr. 10, 2007) (“Limited warranties are not subject to the federal minimum
standards set forth in 15 USC 2304(a). Thus, plaintiffs could not predicate their
MMWA claim on defendants' alleged failure to conform with any requirements set
forth in 15 USC 2304(a).”) (internal citations omitted).
For these reasons, Thor is entitled to summary judgment on Plaintiff’s
MMWA claim.
ii.

GRV did not make a written warranty to or enter into a
service contract with Plaintiff, and so GRV is not liable to
Plaintiff under the MMWA.

32

GRV did not make an express warranty to Plaintiff at all, so the only
potential source of MMWA liability for GRV is 15 U.S.C. § 2308, which generally
prohibits a supplier from limiting implied warranties (as GRV did in the Purchase
Agreement and in the Warranty Disclaimer) when the supplier has made a written
warranty to or entered into a service contract with a consumer. See 15 U.S.C. §
2308(a). The MMWA defines “service contract” as “a contract in writing to
perform, over a fixed period of time or for a specified duration, services relating to
the maintenance or repair (or both) of a consumer product.” 15 U.S.C. § 2301(8).
GRV argues that since it did neither of these things, its disclaimer of implied
warranties did not run afoul of § 2308. GRV draws a distinction between a
supplier’s selling a third-party warranty or service contract (i.e., the CornerStone
Service Contract in this case) on the one hand, and actually entering into or
adopting a third party’s warranty or service contract on the other. GRV supports
this distinction by citing HRL Land or Sea Yachts v. Travel Supreme, Inc., No.
1:07-CV-945, 2009 WL 427375 (W.D. Mich. Feb. 20, 2009), in which the United
States District Court for the Western District of Michigan concluded that neither
the sale of a third-party warranty by a supplier to a consumer, nor even a supplier’s
purchasing a third-party warranty for a consumer, constitute “making a warranty”
on the supplier’s part under the MMWA. See id. at *6.

33

Plaintiff’s position is that two of the GRV purchase documents, taken
together, constitute a service contract under the MMWA: the CornerStone Service
Contract and the Service Call Agreement. The CornerStone Service Contract was a
third-party extended service contract that GRV (as the “selling dealer”) sold to
Plaintiff on behalf of non-party CornerStone. (CornerStone Service Contract at 2.)
The Service Call Agreement, signed by Plaintiff and a GRV sales agent on the date
Plaintiff purchased the RV, encourages the buyer to service the vehicle locally, but
states that “if local repairs are not available or beyond local firms[‘] capability,
General RV will service your recreational vehicle at your location,” and goes on to
specify fees that will be assessed for local service calls and for towing of the
vehicle to other servicers, depending on what the circumstances call for. (Service
Call Agreement at 2.)
The CornerStone Service Contract is clear on its face that it is a contract
between Plaintiff and third-party CornerStone, and so that document alone does
not constitute a warranty by or service contract with GRV. The Court finds the
analysis set forth in HRL to be persuasive in this regard. Central to that analysis
was the well-established proposition that “providing another [party's] warranty
without adopting that warranty . . . does not constitute the making of an express
warranty by the supplier.” HRL, 2009 WL 427375, at *6 (collecting cases). Under
that principle, the court in HRL held that the defendant supplier did not make a
34

warranty on specific components of a recreational vehicle under the MMWA,
where the supplier had validly disclaimed all warranties on the vehicle, and where
the purchase documents at issue included three separate third-party warranties on
those specific components—two of which warranties were sold to the buyer by the
supplier on behalf of the third-party servicers, and one of which the supplier itself
purchased from a third-party servicer for the buyer. See id. The HRL court
concluded that holding “that [the supplier], who disclaimed any warranty covering
the [vehicle], is liable for repairs on the entire RV merely because it separately sold
a warranty for tires and paint or agreed to pay for a warranty on a battery would
not be consistent” with the underlying purposes of the MMWA. Id at *7.
Plaintiff argues that the Service Call Agreement between Plaintiff and GRV
makes HRL inapposite in two respects: first, because GRV agreed in the Service
Call Agreement to be the provider of repairs under the CornerStone Service
Contract; and second, because unlike the third-party warranties for component
parts in HRL, this case involves a supplier’s sale to a consumer of a third-party
contract for service of the entire vehicle. The Court rejects both of these
arguments.
First, the Service Call Agreement does not amount to an adoption by GRV
of any warranty or service contract reflected in the CornerStone Service Contract,
or any other document. This is clear as to warranties from the opening language of
35

the Service Call Agreement: it begins with reminders that GRV “sold [the RV] to
you ‘AS IS,’ . . . [GRV] does not issue any warranty whatsoever, express or
implied, and . . . all warranties received by you are solely issued by the
manufacturer of your recreational vehicle/unit.” (Service Call Agreement at 2.)
Nor does the Service Call Agreement constitute a “service contract” under the
MMWA, as it is not “a contract in writing to perform, over a fixed period of time
or for a specified duration, services relating to the maintenance or repair (or both)
of a consumer product.” 15 U.S.C. § 2301(8). Besides the fact that the Service Call
Agreement does not specify any “fixed period of time” or “specified duration,” it is
clear from the face of the document that the purpose of the Service Call Agreement
is to put the buyer on notice that if he or she enlists GRV to perform maintenance
on the vehicle for which GRV would then be reimbursed (e.g., by Thor under the
Limited Warranty, or by CornerStone under the CornerStone Service Contract), or
if the buyer enlists GRV to transport the vehicle to “the closest servicing dealer,”
the buyer would then be responsible for reimbursing GRV for the transportation
costs, since “no manufacturer will compensate our service department for the cost
of traveling to and from your recreational vehicle/unit for warranty repair.”
(Service Call Agreement at 2.) It is presumably for this reason that the Service Call
Agreement “urges [the buyer] to obtain any warranty repairs locally, if possible.”
(Id.) The RV was under warranty (as least as to many of its parts) by Thor, and was
36

subject to a separately negotiated and purchased service contract with
CornerStone; nothing in the Service Call Agreement demonstrates that GRV
adopted either of these obligations, and indeed the express language of that
document is to the contrary.
Second, Plaintiff’s attempt to distinguish HRL because what was argued to
be a service contract in that case was for component parts of the vehicle—unlike
the Service Call Agreement, which does not appear to be so limited—omits
important language from the HRL decision, and as a result, Plaintiff’s citation to
HRL is significantly divorced from its context. In HRL, the court first found in
circumstances very similar to those present in this case that the supplier had not
made a warranty to the consumer because it had merely provided (without
adopting) the warranties of third parties. See HRL, 2009 WL 427375, at *6. The
court went on to explain in the alternative that even if the supplier’s providing of
third-party warranties to the consumer somehow did create warranties of the
supplier’s own, this would not have violated 15 U.S.C. § 2308, since that provision
prohibits a supplier from disclaiming implied warranties as to the same product
that it has issued a written warranty for, and so this prohibition would not be
violated by a supplier who disclaims implied warranties for a product overall but
provides written warranties for individual components of that product. See id. at
*7. But crucially, before reaching that alternative holding, the HRL court plainly
37

held that the supplier had not made its own warranties by simply providing the
consumer with third-party warranties, and this Court sees no need to take the
analysis any further than that in the instant case.
In summary, GRV (1) sold Plaintiff a vehicle that was subject to a validly
limited manufacturer warranty (the Limited Warranty) and a third-party contract
for service coverage beyond what Plaintiff was entitled to under the manufacturer
warranty (the CornerStone Service Contract); and (2) at most, agreed to provide
maintenance that was covered by one of these two arrangements but required that
Plaintiff pay the expenses not reimbursable to GRV by the servicing companies.
Thor did not violate the MMWA because the Limited Warranty was valid; GRV
did not violate the MMWA because it offered neither a written warranty nor a
service contract to Plaintiff, rendering its limitation of implied warranties valid as
well. Accordingly, the Court will grant Defendants’ Motion for Summary
Judgment as to Plaintiff’s MMWA claim in Count IV of the Complaint.
State Claims
The bulk of Plaintiff’s claims are asserted under state law. These include
breach of express and implied warranties (Count I), revocation of acceptance
(Count II), breach of contract (Count III), violation of the MMWA (Count IV),
unjust enrichment (Count V), violation of the MCPA (Count VI), product liability
(Count VII), fraudulent misrepresentation (Count VIII), innocent misrepresentation
38

(Count IX), and silent fraud (Count X). (Am. Compl. at 5-22.)
Before analyzing these claims, the Court determines as a threshold matter
that notwithstanding the forum clause in the Limited Warranty (which required that
actions to enforce warranty rights against Thor be brought in the courts of Indiana),
Michigan law governs the non-federal claims asserted in this action. The forum
clause directs the parties to litigate in the courts of a particular jurisdiction, but it
does not on its face compel the application of any particular jurisdiction’s law.
Given that the formation of the contracts—and nearly all of the conduct—that gave
rise to this lawsuit occurred in Michigan, and given that Plaintiff expressly asserted
many of his non-federal claims under Michigan statutory law, it seems more than
reasonable to assume that even an Indiana court would apply Michigan law to
these claims. See Employers Ins. of Wausau v. Recticel Foam Corp., 716 N.E.2d
1015, 1024 (Ind. Ct. App. 1999) (“Indiana's choice of law rule for contract actions
calls for applying the law of the forum with the most intimate contacts to the
facts.”). More important here, though, is the principle that “[u]nlike jurisdictional
defects, venue objections can be waived.” Al-Muhaymin v. Jones, 895 F.2d 1147,
1149 (6th Cir. 1990). The parties have litigated this case under Michigan law since
Plaintiff first filed it in the Michigan courts, and so any objection that Thor may
have had to the application of Michigan law has been waived.

39

The Court’s analysis of Defendants’ arguments in favor of summary
judgment on Plaintiff’s state-law claims is contained in the following sections. In
the end, Defendants are entitled to summary judgment on all but one of them: the
product liability claim asserted in Count VII of the Amended Complaint.
1.

Breach of Express and Implied Warranty (Count I)

Michigan law provides for both express and implied warranties. Express
warranties are created in three ways:
(a) An 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.
(b) A description of the goods which is made part of the basis of the
bargain creates an express warranty that the goods shall conform to
the description.
(c) A sample or model which is made part of the basis of the bargain
creates an express warranty that the whole of the goods shall conform
to the sample or model.
Mich. Comp. Laws § 440.2313.
There are also three forms of implied warranty under Michigan law. First,
any contract for sale involving a seller that is a merchant with respect to the kind of
goods sold contains an implied warranty of merchantability, and that implied
warranty guarantees the quality of the goods sold in six enumerated respects.4

4

Specifically, to be “merchantable,” the goods must be at least such as:
(a) pass without objection in the trade under the contract description; and
40

Mich. Comp. Laws § 440.2314(1)-(2). Second, the implied warranty of fitness for
a particular purpose requires, where “the seller at the time of contracting has
reason to know any particular purpose for which the goods are required and that
the buyer is relying on the seller's skill or judgment to select or furnish suitable
goods, . . . that the goods shall be fit for such purpose.” Mich. Comp. Laws §
440.2315. Third, an implied warranty “may arise from course of dealing or usage
of trade.” Mich. Comp. Laws § 440.2314(3).
Warranties can be excluded in Michigan, though this is subject to a few
limitations. “Words or conduct relevant to the creation of an express warranty and
words or conduct tending to negate or limit warranty shall be construed wherever
reasonable as consistent with each other,” and “negation or limitation [of
warranties] is inoperative to the extent that such construction is unreasonable.”
Mich. Comp. Laws § 440.2316(1). Any contractual language that attempts to
exclude the implied warranty of merchantability “must mention merchantability
and in case of a writing must be conspicuous,” and an exclusion of the implied
(b) in the case of fungible goods, are of fair average quality within the
description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality
and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may
require; and
(f) conform to the promises or affirmations of fact made on the container or
label if any.
Mich. Comp. Laws § 440.2314(2).
41

warranty of fitness for a particular purpose “must be by a writing and
conspicuous.” Id. § 440.2316(2). Lastly, Michigan law specifically provides that
“unless the circumstances indicate otherwise, all implied warranties are excluded
by expressions like ‘as is’, ‘with all faults’ or other language which in common
understanding calls the buyer's attention to the exclusion of warranties and makes
plain that there is no implied warranty.” Id. § 440.2316(3)(a).
On the breach-of-warranty claims that Plaintiff asserts in Count I of the
Amended Complaint, the Court will grant summary judgment to both Defendants:
to GRV because it validly disclaimed all warranties and sold the RV to Plaintiff
“as is,” and to Thor because Plaintiff’s breach of warranty claim against it is timebarred pursuant to the terms of the Limited Warranty.
i.

Plaintiff has not raised a genuine issue of material fact as to
any breach of warranty by GRV.

Among the purchase documents that Plaintiff reviewed (or at least had the
opportunity to review) and signed, indications that the RV was being sold to him
“as is” appeared in at least eight separate paragraphs and five separate documents.
Several of those documents also conspicuously stated that GRV offered no express
or implied warranties. These representations, GRV argues, unambiguously
precluded the existence of any express or implied warranties under Michigan law.

42

Plaintiff makes two distinct arguments in response to this, and both focus on
GRV’s asserted disclaimer of one or more implied warranties. (There is not much
of a case to be made that any of GRV’s purchase documents constituted a written
warranty.) First, and most predominantly, Plaintiff argues that GRV’s implied
warranty disclaimers were invalid under 15 U.S.C. § 2308, a contention that is also
central to the MMWA claim against GRV that is analyzed above. Second, Plaintiff
highlights the language in the Michigan warranty statute stating that “as is” terms
in a sale contract can limit warranties “unless the circumstances indicate
otherwise,” Mich. Comp. Laws § 440.2316(3)(a), and argues that that exception is
met here. Both of these arguments lack merit.
Invalidating any warranty disclaimer by GRV under 15 U.S.C. § 2308 could
only be premised on a finding that GRV either made a written warranty or entered
into a service contract with Plaintiff. As discussed above, Plaintiff has not raised a
genuine issue of material fact regarding either of these possibilities. The Court
therefore rejects the suggestion that GRV’s disclaimer of warranties is affected in
any way by the MMWA.
Plaintiff also argues that GRV’s repeated use of the phrase “as is” and
similar language did not exclude implied warranties because “circumstances
indicat[ed] otherwise” pursuant to the exception in Mich. Comp. Laws §
440.2316(3)(a)—specifically, because Plaintiff reasonably understood the phrase
43

“as is” to refer to purchases of used goods rather than new.5 Plaintiff does not
provide any authority to support the proposition that “as is,” in the context of new
rather than used goods, should actually be understood to mean “devoid of any
defects.” In fact, there is ample precedent to the contrary. See, e.g., Harnden v.
Ford Motor Co., 408 F. Supp. 2d 309, 313 (E.D. Mich. 2005) (granting summary
judgment for a recreational vehicle dealer on warranty claims based on defects in
the vehicle because the purchase agreement contained an “as is” clause); see also
Lenawee Cty. Bd. of Health v. Messerly, 417 Mich. 17, 32 (1982) (holding that
where a contract for a new home contained an “as is” clause, the buyer assumed
the risk of unknown latent defects). Broadly speaking, adopting the interpretation
of § 440.2316(3)(a) that Plaintiff urges would render “as is” clauses meaningless in
a large number of conceivable situations.
A fraudulent representation by a seller can constitute the sort of
“circumstances” that invalidate the effect of an “as is” clause. See Lenawee Cty.
Bd. of Health, 417 Mich. at 32 n.16. But Plaintiff has not identified any specific
affirmative misrepresentation by GRV, and so this is also insufficient as a basis for
a conclusion that the circumstances surrounding Plaintiff’s purchase of the RV
indicated, contrary to the express and consistent language in the purchase
5

Asked during his deposition what he understood “as is” to mean when he bought
the RV, Plaintiff responded: “It means the condition that it's in. And being in brand
new condition, it should be in better condition than what it was.” (Chaudoin Dep.
29:14-24.)
44

documents, that GRV was not excluding implied warranties.
GRV’s warranty disclaimers were valid under Michigan law: they were
conspicuous, they were in writing, and they made specific reference to
merchantability. Plaintiff has not raised a jury question as to a breach of warranty
by GRV, and so the Court will grant summary judgment to GRV on Count I.
ii.

Plaintiff’s breach of warranty claims as to Thor are timebarred.

Unlike GRV, Thor did issue a warranty to Plaintiff. Thor argues, however,
that any claim for breach of warranty by Plaintiff is time-barred, since the Limited
Warranty provides that any action for breach of any express or implied warranty
must be filed within 90 days of the Limited Warranty’s expiration, and the Limited
Warranty expired at the earlier of one year or 15,000 miles. A cause of action for
breach of warranty accrues “when the breach occurs,” and “[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 have been discovered.” Mich. Comp. Laws § 440.2725(2). The Limited
Warranty issued to Plaintiff by Thor expressly does not extend to future
performance (see Limited Warranty at 2), and so the cause of action accrued on the
date of delivery: May 16, 2014. The latest date that the Limited Warranty could

45

have expired was therefore May 16, 2015, and so the latest date that Plaintiff could
have filed suit within the statute of limitations was August 17, 2015. Plaintiff filed
suit on October 2, 2015. (ECF No. 1, Notice of Removal to Federal Court Ex. A,
Summons and Complaint.)
Plaintiff argues that Thor’s attempt to reduce the limitations period to 15
months was invalid. He makes two distinct arguments to that effect, focusing first
on language in the Thor Registration and Acknowledgement that stated that
delivery by the dealer was not authorized until certain conditions were met, and
then on the fact that the Limited Warranty was not actually provided to him at the
time of purchase. He also argues that to whatever extent Thor’s modification of the
limitations period was valid, it was unconscionable.6

6

Independently from his arguments on the validity of Thor’s modified limitations
period, Plaintiff maintains that the Michigan Uniform Commercial Code (“UCC”)
provision at Mich. Comp. Laws § 440.2725—under which the limitations period
starts running at tender of delivery except where the warranty explicitly extends to
future performance—does not actually apply to his claims against Thor at all.
Instead, Plaintiff argues that the limitations period applicable in this case is that of
Michigan’s non-UCC limitations statute, which provides that “[i]n actions for
damages based on breach of a warranty of quality or fitness the claim accrues at
the time the breach of the warranty is discovered or reasonably should be
discovered.” Mich. Comp. Laws § 600.5833.
Although Plaintiff does not cite case law supporting this argument, the Michigan
Supreme Court has held that the UCC statute of limitations provision “was not
meant to apply to actions between consumers and manufacturers who were never
in any commercial relationship or setting.” Southgate Cmty. Sch. Dist. v. W. Side
Const. Co., 399 Mich. 72, 78 (1976). This does not affect the ultimate question of
whether Thor validly shortened the limitations period, however. See DeFrain v.
State Farm Mut. Auto. Ins. Co., 491 Mich. 359, 372 (2012) (“[A]n unambiguous
46

The Thor Registration and Acknowledgement reviewed and signed by
Plaintiff stated that “you should not submit this form until . . . you have received
and reviewed the Limited Warranty and owner’s manual” and until the
undersigned had the opportunity to inspect the vehicle, ask questions of the dealer,
and determine that the vehicle was in good condition. (Thor Registration and
Acknowledgement at 2.) The form also stated that “[t]he dealer is not authorized to
deliver this vehicle until this has been done and both you and the dealer have
signed this form.” (See id.) Plaintiff argues that since GRV did not comply with the
conditions or sign the form before delivering the RV to him, its subsequent
delivery was invalid and therefore grounds for rescission of the agreement, or at
least for a finding that the limitations period did not begin to run when the RV was
delivered. Plaintiff has not, however, provided any legal authority that would
support a conclusion that these facts are enough to invalidate the delivery for either
of these purposes, or indeed that would suggest that the terms cited by Plaintiff
were conditions precedent to the delivery of the vehicle. Accordingly, the Court
finds this argument to be unpersuasive.
Plaintiff also maintains that the absence of the Limited Warranty from the
owner’s manual he received on the date of purchase is enough to invalidate the

contractual provision providing for a shortened period of limitations is to be
enforced as written unless the provision would violate law or public policy.”)
(quoting Rory v. Continental Ins. Co., 473 Mich. 457, 470 (2005)).
47

Limited Warranty, given the “entire understanding” clause set forth elsewhere in
the purchase documents. The Court rejects this argument for the same reasons as it
rejected the argument in the context of Plaintiff’s MMWA claims, discussed
above.
Finally, Plaintiff argues that Thor’s attempt to reduce the limitations period
was unconscionable because the Limited Warranty was not presented until after the
purchase, the particular term could not be negotiated, the term was in miniscule
print, and the disparity in bargaining power between the parties was significant.
The Court rejects this argument as well.
The Michigan UCC does not expressly define unconscionability, though a
comment to the pertinent provision characterizes it a question of whether contract
terms are “one-sided.” Mich. Comp. Laws § 440.2302 cmt. 1. Michigan court
decisions on the concept more generally tend to frame it as a two-pronged test: “(1)
What is the relative bargaining power of the parties, their relative economic
strength, the alternative sources of supply, in a word, what are their options?; (2) Is
the challenged term substantively reasonable?” Hubscher & Son, Inc. v. Storey,
228 Mich. App. 478, 481 (1998); see also Liparoto Const., Inc. v. Gen. Shale
Brick, Inc., 284 Mich. App. 25, 30 (2009) (“For a contract or a contract provision
to

be

considered

unconscionable,

both

procedural

and

substantive

unconscionability must be present. ‘Procedural unconscionability exists where the
48

weaker party had no realistic alternative to acceptance of the term. . . . Substantive
unconscionability exists where the challenged term is not substantively
reasonable.’”) (internal citations omitted) (quoting Clark v. DaimlerChrysler
Corp., 268 Mich. App. 138, 143–44 (2005). The latter prong is a prerequisite to
any invalidation of a contract for unconscionability; even contracts that are
procedurally lopsided may be enforced if the challenged provision is not
substantively unreasonable. See Paulsen v. Bureau of State Lottery, 167 Mich.
App. 328, 335–36 (1988). And to be substantively unconscionable, a contractual
“term must be more than merely disadvantageous; rather, ‘the inequity of the term
[must be] so extreme as to shock the conscience.’” Vittiglio v. Vittiglio, 297 Mich.
App. 391, 404 (2012) (quoting Clark, 268 Mich. App. at 144).
In view of these authorities, Plaintiff’s unconscionability argument is
unpersuasive. Reduction of a four-year statutory limitations period to fifteen
months is a substantial change, to be sure, but the Court is not prepared to conclude
that it is so extreme as to shock the conscience. And while the contract between
Plaintiff and Defendants smacks somewhat of adhesion, it was not even necessarily
procedurally unconscionable. That the Limited Warranty was presented after the
purchase was ultimately harmless for the reasons discussed above. Plaintiff’s
contention that the print size was “microscopic” (Pl.'s Thor Resp. at 13) is not
entirely accurate, but the print size can hardly be said to matter at any rate given
49

Plaintiff’s testimony that he “skimmed” all of the documents and that he didn’t
read the Limited Warranty even after he did receive it. (Chaudoin Dep. 38:3-6,
124:9-10.) Plaintiff did not attempt to negotiate any terms with GRV besides the
purchase price, and felt “no need” to see the Limited Warranty before he began
having problems with the RV because “[i]t was a new vehicle.” (Chaudoin Dep.
40:13-16.)
This leaves only disparate bargaining power as a consideration, and while
that is at least arguably present in this case, Michigan law is clear that that alone
cannot be the basis for a finding of unconscionability, particularly if the contractual
term at issue is not oppressive or substantively unreasonable. See Paulsen, 167
Mich. App. at 336 (“Even if a contract is one of adhesion . . . , a challenged
provision remains enforceable if it is substantially reasonable and not oppressive or
unconscionable.”).
In the end, Plaintiff’s arguments that the Limited Warranty’s reduction of
the limitations period was ineffective are unavailing. Because Plaintiff filed this
action outside of the validly shortened limitations period, the Court will grant
summary judgment to Thor on Count I.
2.

Revocation of Acceptance (Count II)

Michigan law allows a buyer to revoke an acceptance of a lot or unit of
goods “whose nonconformity substantially impairs its value to him” if he accepted
50

the lot or unit “(a) on the reasonable assumption that its nonconformity would be
cured and it has not been seasonably cured; or (b) without discovery of such
nonconformity if his acceptance was reasonably induced either by the difficulty of
discovery before acceptance or by the seller's assurances.” Mich. Comp. Laws §
440.2608.
Both Defendants are entitled to summary judgment on this claim: GRV
because its valid disclaimer of warranties precludes a revocation claim, and Thor
because revocation claims cannot be maintained against remote manufacturers.
i.

Plaintiff’s revocation claim as to GRV is precluded by
GRV’s valid disclaimer of warranties.

A revocation claim requires that the item in question manifest some form of
“nonconformity [that] substantially impairs its value” to the buyer. Mich. Comp.
Laws § 440.2608(1). “Buyers may not revoke their acceptance for nonconformity
when the dealer has disclaimed all warranties.” HRL Land or Sea Yachts v. Travel
Supreme, Inc., No. 1:07-CV-945, 2009 WL 427375, at *7 (W.D. Mich. Feb. 20,
2009) (applying Michigan law); see also Davis v. LaFontaine Motors, Inc., 271
Mich. App. 68, 82 (2006) (“[F]or the purposes of revocation under MCL 440.2608,
nonconformity is a failure of the goods sold to conform to legitimate expectations
arising from the contract. . . . Because plaintiffs purchased the vehicle ‘as is,’ the
vehicle, even with the alleged defects, conforms to the contract and therefore

51

necessarily conforms to the parties' legitimate contractual expectations. Plaintiffs
got the vehicle for which they bargained; there was no nonconformity.”).
Plaintiff’s primary argument for revocation depends on the assumption that
the MMWA renders GRV’s warranty disclaimers invalid, which is incorrect for the
reasons set forth above. Plaintiff also reminds the Court that factual questions
should be viewed in the light most favorable to Plaintiff and “at the very least,
require discovery depositions.” (Pl.'s GRV Resp. at 14-15.) Discovery has closed,
and Plaintiff has not presented the Court with any evidence of a factual issue
regarding GRV’s warranty disclaimer. The Court will grant summary judgment to
GRV on Count II.
ii.

Plaintiff’s cannot maintain a revocation claim against Thor
as a remote manufacturer.

Michigan law is clear that “the remedy of revocation of acceptance is not
available against a manufacturer.” Henderson v. Chrysler Corp., 191 Mich. App.
337, 342 (1991). The revocation remedy provided for in Mich. Comp. Laws §
440.2608
is typically utilized against an immediate seller. This section allows a
buyer to revoke his acceptance of a lot or commercial unit whose
nonconformity substantially impairs its value to him. There is nothing
to indicate that the Legislature intended the revocation of acceptance
of a contract to apply to parties not in privity of contract. Acceptance
under the UCC concerns the relationship between a buyer and a
seller[.] Thus, revocation is inextricably connected to the contractual
52

relationship between a buyer and a seller. This rationale includes the
concept of contractual privity between the parties.
Id. at 341–42; see also Pidcock v. Ewing, 371 F. Supp. 2d 870, 877 (E.D. Mich.
2005) (plaintiffs had no revocation claim against “remote manufacturers not in
privity with them”); Rokicsak, 219 F. Supp. 2d at 818 (“In Michigan, the
availability of the UCC remedy of revocation of acceptance is controlled by
contractual privity.”).
Thor argues as much, and Plaintiff counters by grouping his revocation
claim in with his breach of implied warranty and MMWA claims, and citing
Michels v. Monaco Coach Corp., 298 F. Supp. 2d 642 (E.D. Mich. 2003), for the
proposition that “[contractual] privity had been abandoned long ago as a
requirement” for such claims. (Pl.'s Resp. at 14.) The court in Michels did hold that
lack of vertical privity did not justify dismissing a breach of implied warranty
claim and a derivative MMWA claim on summary judgment. See Michels, 298 F.
Supp. 2d at 650-51. But the Michels decision had nothing to do with revocation
claims under Mich. Comp. Laws § 440.2608, since the plaintiff in that case had
stipulated to the dismissal of his revocation claim prior to the court’s ruling on the
summary judgment motion before it. See Michels, 298 F. Supp. 2d at 644.
Plaintiff has provided no authority to counter the decisions quoted above,
which stand for the proposition that revocation claims under Mich. Comp. Laws §
440.2608 cannot be maintained against remote manufacturers. Accordingly, the
53

Court will grant summary judgment to Thor on Count II as well.
3.

Breach of Contract and Unjust Enrichment (Counts III and V)

Plaintiff’s breach of contract and unjust enrichment claims (Counts III and
V) do not actually implicate the Purchase Agreement or any of the documents
associated with it. Instead, Plaintiff argues that the letters sent by his attorney to
GRV and Thor, which purported to revoke acceptance under Mich. Comp. Laws §
440.2608, themselves created contracts which Defendants accepted through
performance: specifically, by taking possession of the vehicle. (Am. Compl. ¶¶ 3337; GRV Revocation Letter; Thor Revocation Letter.) Plaintiff’s unjust enrichment
claim is premised on the same allegations. (Am. Compl. ¶¶ 48-53.)
i.

Plaintiff cannot maintain breach of contract and unjust
enrichment claims against GRV because Thor took
possession of the RV, and Plaintiff has not demonstrated an
agency relationship between Thor and GRV.

It was Thor, and not GRV, that took possession of the RV at Plaintiff’s
request. As this act is a central allegation underlying the claims asserted in Counts
III and V—the “acceptance” for purposes of the breach of contract claim and the
“received benefit” for purposes of the unjust enrichment claim—these two claims
plainly lack merit as to GRV.
Possibly relevant here is Plaintiff’s argument in his Response to GRV’s
Motion that GRV entered into an agency relationship with Thor, but Plaintiff
54

provides no record support for this assertion, and in fact Thor’s Registration and
Acknowledgement of Receipt of Warranty and Product Information, which
Plaintiff signed, expressly states that the undersigned “agree[s] that the selling
dealer is not an agent for Thor Motor Coach but is an independent company with
no authority to make any representation or promise for Thor Motor Coach.” (Thor
Registration and Acknowledgement at 2.) The Limited Warranty similarly makes
clear that “[t]he dealer is not the Warrantor's agent but is an independent entity.”
(Limited Warranty at 2.) There is no evidence that tends to demonstrate an agency
relationship between the two Defendants, and ample evidence to the contrary.
For these reasons, the Court will grant summary judgment to GRV on
Counts III and V.
ii.

Plaintiff’s breach of contract and unjust enrichment claims
against Thor are insufficient as a matter of law.

To the extent that Plaintiff asserts a breach of contract claim against Thor,
Thor argues that Plaintiff has not demonstrated the elements of an enforceable
contract, and this argument is convincing.
“’A valid contract requires five elements: (1) parties competent to contract,
(2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and
(5) mutuality of obligation.’” Innovation Ventures v. Liquid Mfg., 499 Mich. 491,
508 (2016) (quoting AFT Mich. v. Michigan, 497 Mich. 197, 235 (2015)). “An

55

implied contract must also satisfy the elements of mutual assent and
consideration.” Mallory v. City of Detroit, 181 Mich. App. 121, 127 (1989).
Moreover, “[w]here mutual assent does not exist, a contract does not exist.”
Quality Prod. & Concepts Co. v. Nagel Precision, Inc., 469 Mich. 362, 372 (2003).
“Accordingly, where there is no mutual agreement to enter into a new contract
modifying a previous contract, there is no new contract and, thus, no modification.
Simply put, one cannot unilaterally modify a contract because by definition, a
unilateral modification lacks mutuality.” Id.
Thor argues that when it picked up the RV at Plaintiff’s request, which
Plaintiff characterizes as assent to a contract through performance, it was in fact
doing so with the intention of performing repairs pursuant to the Limited Warranty.
Thor maintains that Plaintiff has not shown that Thor assented to the contract that
Plaintiff now asserts, and Thor is correct on this point. Plaintiff testified that his
intention in returning the RV to Thor was to give the vehicle back permanently,
though he also acknowledged that he also provided Thor with a list of needed
repairs, on the reasoning that if “they didn't take it back and I had to take it back, at
least it would be fixed, maybe.” (Chaudoin Dep. at 22-24.) Plaintiff has also
demonstrated that Thor was aware to some degree that Plaintiff wanted to return
the RV for good: in an internal email to two other Thor employees, Thor warranty
and customer service manager John Vrydaghs summarized the issues that Plaintiff
56

was having with the RV after noting: “It's a tough sell at the moment- He wants to
be free of the coach.” (Pl.’s Thor Resp. Ex. 5, Thor and General RV Emails
Regarding Mr. Chaudoin at 5.) What Plaintiff has not demonstrated—in this email,
in the remainder of the same internal email chain, or anywhere else—is that Thor
assented to the permanent return of the RV. The record is plainly devoid of
evidence of this central element of Plaintiff’s contract claim against Thor, and so
that claim cannot survive summary judgment.
“The elements of a claim for unjust enrichment are (1) receipt of a benefit
by the defendant from the plaintiff, and (2) an inequity resulting to plaintiff from
defendant's retention of the benefit.” Bellevue Ventures, Inc. v. Morang-Kelly Inv.,
Inc., 302 Mich. App. 59, 64 (2013) (quoting Dumas v. Auto Club Ins. Ass'n, 437
Mich. 521, 546 (1991)). Thor asserts that it retains possession of the RV only
because Plaintiff refuses to pick it up or allow delivery, and Plaintiff does not seem
to dispute this. Any “retention of the benefit” on Thor’s part is involuntary, and
Plaintiff has provided this Court with no legal authority indicating that he can force
a buyback by causing Thor to take possession of the RV, refusing to take it back,
and then suing Thor for unjust enrichment. Plaintiff’s unjust enrichment claim fails
as a matter of law.
The Court will grant summary judgment to both Defendants as to Counts III
and V.
57

4.

Michigan Consumer Protection Act (“MCPA”) (Count VI)

The MCPA identifies 38 different types of conduct by sellers as prohibited
and legally actionable, see Mich. Comp. Laws § 445.903, and Plaintiff’s complaint
identifies nine of these as applicable in this case (Am. Comp. ¶¶ 54-57). But under
Michigan Supreme Court case law on the MCPA, claims arising from Plaintiff’s
purchase of the RV are exempt from the statute. On that basis, the Court will grant
summary judgment to both Defendants on Plaintiff’s MCPA claim.
“A federal court exercising supplemental jurisdiction over state law claims is
bound to apply the law of the forum state to the same extent as if it were exercising
its diversity jurisdiction.” Chandler v. Specialty Tires of Am. (Tennessee), Inc., 283
F.3d 818, 823–24 (6th Cir. 2002) (quotation marks omitted) (quoting Super Sulky,
Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 741 (6th Cir. 1999)). In adjudicating
state-law claims in such cases, the federal district court is “called upon to predict
how the state supreme court would decide a case based upon ‘all relevant data[.]’”
Id. (quoting Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130
(6th Cir. 1995)). Relevant data includes “the state's intermediate court decisions.
Intermediate appellate decisions ‘are accorded weight, although a federal court is
not bound by lower court determinations if convinced by other data that the state's
highest court would determine otherwise.’” Herrera v. Churchill McGee, LLC, 680
F.3d 539, 544 (6th Cir. 2012) (internal citations omitted) (quoting Bailey v. V. & O
58

Press Co., 770 F.2d 601, 604 (6th Cir. 1985)).
The MCPA broadly exempts from its own reach any “transaction or conduct
specifically authorized under laws administered by a regulatory board or officer
acting under statutory authority of this state or the United States.” Mich. Comp.
Laws § 445.904(a). The Supreme Court of Michigan has made clear that the
relevant inquiry in determining whether this exemption applies in a given case “’is
whether the general transaction is specifically authorized by law, regardless of
whether the specific misconduct alleged is prohibited.’” Liss v. Lewiston-Richards,
Inc., 478 Mich. 203, 210 (2007) (quoting Smith v. Globe Life Ins. Co., 460 Mich.
446, 465 (1999)).
Recently, in Jimenez v. Ford Motor Credit Co., No. 322909, 2015 WL
9318913 (Mich. Ct. App. Dec. 22, 2015), the Court of Appeals of Michigan held in
an unpublished decision that the sale of a new car was an exempt transaction under
Mich. Comp. Laws § 445.904(a), and on that basis upheld the dismissal of an
MCPA claim that arose from that sale. See id. at *5-*7. The court in Jimenez noted
that
the Michigan Vehicle Code specifically requires that a dealer of motor
vehicles obtain a dealer license and administration of the code is via
the Secretary of State. MCL 257.204. The Secretary of State has the
authority to examine the books and records of all persons licensed to
sell or buy vehicles that are required to be registered with the
Secretary of State. MCL 257.213. The Motor Vehicle Code sets forth
the requirements to obtain a dealer license (MCL 247.248), and
59

prohibits certain conduct by dealers (e.g., MCL 257.248a). Moreover,
the Michigan Vehicle Code provides for penalties for proscribed
conduct . . .
Jimenez, 2015 WL 9318913, at *6-*7 (citations omitted). Based on those
considerations, the Jimenez court concluded that the sale of a motor vehicle by a
licensed dealer was “specifically authorized under laws administered by a
regulatory board or officer acting under statutory authority of this state or the
United States” as contemplated by Mich. Comp. Laws § 445.904(a), and therefore
an exempt transaction.
The Jimenez court’s analysis of motor vehicles under the Michigan Vehicle
Code applies equally to recreational vehicles7 as it did to the Ford Focus at issue in
that case. See id. at *1. “Every motor vehicle, recreational vehicle, trailer,
semitrailer, and pole trailer, when driven or moved on a street or highway, is
subject to the registration and certificate of title provisions” of the Michigan
Vehicle Code, subject to a list of exceptions that do not apply here. Mich. Comp.
Laws § 257.216. Additionally, the Michigan Vehicle Code provisions regarding
7

The Michigan Vehicle Code defines “recreational vehicles” as follows:
“Recreational vehicle” means a new or used vehicle that has its own motive
power or is towed by a motor vehicle; is primarily designed to provide
temporary living quarters for recreational, camping, travel, or seasonal use;
complies with all applicable federal vehicle regulations; and does not require a
special highway movement permit under section 719a to be operated or towed
on a street or highway. The term includes, but is not limited to, a motor home,
travel trailer, park model trailer that does not require a special highway
movement permit under section 719a, or pickup camper.
Mich. Comp. Laws Ann. § 257.49a (internal citations omitted).
60

dealer licensure apply identically to dealers of recreational vehicles as they do to
automobile dealers, see Mich. Comp. Laws § 257.248, except that recreational
vehicle dealers in certain circumstances are permitted to sidestep licensure
requirements that they would otherwise be subject to when they conduct business
at recreational vehicle shows fewer than 14 days long. See id. § 257.248(10). And
there is no indication that the Michigan Vehicle Code prohibitions and penalties
that the Jimenez court observed apply to new car dealers apply any less forcefully
to recreational vehicle dealers. See Mich. Comp. Laws 257.248h.
In short, the Court can see no basis for distinguishing the transaction at issue
in this case from the transaction at issue in Jimenez. The Court is mindful of the
fact that Jimenez is a recent and unpublished decision by Michigan’s intermediate
appellate court, and equally mindful of the principle that federal courts generally
“should be extremely cautious about adopting ‘substantive innovation’ in state
law” in the absence of “some authoritative signal from the state's legislature or
judiciary.” State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 195 (6th Cir.
2015) (quoting Combs v. Int'l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004)). But as
noted above, decisions from state intermediate appellate courts are nonetheless to
be “accorded weight, although a federal court is not bound by lower court
determinations if convinced by other data that the state's highest court would
determine otherwise.” Herrera, 680 F.3d at 544 (citations and quotation marks
61

omitted). As this Court cannot discern any grounds for concluding that the analysis
set forth in Jimenez does not apply point-for-point to this case, nor any reason to
believe that the Supreme Court of Michigan would determine otherwise, the Court
applies the Jimenez analysis to the recreational vehicle sale in this case, and holds
that the sale of the RV to Plaintiff was exempt from the MCPA under Mich. Comp.
Laws § 445.904(a).
Accordingly, the Court will grant summary judgment to both Defendants on
Count VI.
5.

Product Liability (Count VII)

Plaintiff’s product liability claim is premised on his allegation (and
supporting testimony) that he injured his face when he fell as a result of a defect in
the RV’s entry step. Defendants have not shown that no reasonable jury could hold
them liable to Plaintiff on his product liability claim, and so the Court will deny
their Motions as to this claim.
Both Defendants correctly point out that an essential element of a product
liability claim under Michigan law is that “the product was not reasonably safe at
the time the specific unit of the product left the control of the manufacturer or
seller.” Mich. Comp. Laws § 600.2946. And while Plaintiff did testify that he did
not believe the RV was reasonably safe when it left GRV’s control, Defendants
then argue, he stated that this belief had to do with the vehicle’s slide-out rather
62

than the allegedly defective step, which according to his Amended Complaint was
what caused the injury from which Plaintiff’s product liability claim arose. (Am.
Compl. ¶¶ 59-66.) Defendants conclude that given that fact, and given that Plaintiff
has retained no experts, he has not proffered evidence sufficient to support a
product liability claim. Defendants also point out that they filed a Notice of NonParty Fault including evidence that Lippert, who manufactured the step,
subsequently recalled items in that product line. (ECF No. 21.)
These considerations, while relevant, are not enough to justify summary
judgment for Defendants on Plaintiff’s product liability claim. First, it is true that
Plaintiff testified that he didn’t believe that the slide-out was reasonably safe at the
time he purchased it, and then testified as follows:
Q Other than the slide out coming out, anything – any other
characteristics of the motor home that you believe was unreasonably
safe at the time you purchased it?
A No.
(Chaudoin Dep. 150:8-23.) But this testimony regarding Plaintiff’s subjective
perception over two years after the date on which Plaintiff bought the vehicle does
not foreclose the possibility that the step he alleges caused his injury was not
reasonably safe when he received the RV. The fact remains that Plaintiff testified
that in January 2015 he “stepped on the step, it broke, [and] I fell flat on my
face[,]” (Chaudoin Dep. 91:5-11), and there is no evidence in the record that
establishes the reason that the step broke, or the point in time at which the step
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became defective. The Court is required at this stage to draw all reasonable factual
inferences in Plaintiff’s favor, and in the absence of any additional evidence, it
would be premature to hold that Plaintiff cannot raise a genuine issue of material
fact regarding the safety of that component of the RV at the time it left either
Thor’s or GRV’s control.
The Notice of Non-Party Fault does not compel a contrary outcome. If
anything, it makes it at least marginally more plausible that the step was defective
as of the time that it left the control of either or both of the Defendants. According
to a Safety Recall Report released by the National Highway Traffic Safety
Administration (and attached as an Exhibit to the Notice of Non-Party Fault), an
estimated three percent of the steps in Lippert’s relevant product line, which was
produced between May 2007 and December 2015, had a “structural fracture of the
center bolt of the fan gear assembly which may cause the fan gear assembly to
disengage from the steps[,]” and which could “mak[e] the steps unstable possibly
causing a person to fall and resulting in injury.” (ECF No. 21 Ex. A, Part 573
Safety Recall Report at 2.) Defendants filed the Notice of Non-Party Fault pursuant
to Mich. Comp. Laws § 600.6304, a procedural statute which provides for the
apportionment of fault among multiple tortfeasors by a trier of fact. As such, it
might well be relevant at the liability and damages stages of trial, but it does not
serve to exonerate either Defendant now, at the summary judgment phase.
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Finally, Thor argues that “Plaintiff has not retained an expert or any other
witness, who will testify that the motorhome was not reasonably safe at the time it
left Thor’s control.” (Def. Thor’s Mot. at 19.) But Thor has not provided the Court
with legal authority establishing that this is a valid reason to dismiss Plaintiff’s
product liability claim now as a matter of law. Here again, it would be premature to
hold, in view of the record and after drawing all reasonable inferences in Plaintiff’s
favor, that no reasonable jury could find that the step was not reasonably safe when
it left the control of either or both Defendants.
Accordingly, the Court will deny both Defendants’ Motions for Summary
Judgment as to Plaintiff’s product liability claim in Count VII.
6.

Fraudulent Misrepresentation, Innocent Misrepresentation, Silent
Fraud (Counts VIII, IX, and X)

Plaintiff’s asserted claims of fraudulent misrepresentation, innocent
misrepresentation, and silent fraud are deficient as a matter of law, since Plaintiff
has not adduced evidence that would allow a reasonable jury to find that either
Defendant made false statements (knowingly or otherwise) that Plaintiff
detrimentally relied upon. The Court will therefore grant Defendants’ Motions for
Summary Judgment as to those claims as well.
A key element in any fraud claim is knowing (or at least reckless) falsehood
on the part of the person alleged to have committed the fraud. See Titan Ins. Co. v.

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Hyten, 491 Mich. 547, 555, 567–68 (2012) (identifying the elements of actionable
fraud as: “(1) [t]hat defendant made a material representation; (2) that it was false;
(3) that when he made it he knew that it was false, or made it recklessly, without
any knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance
upon it; and (6) that he thereby suffered injury”). This is equally true of the
doctrine of fraudulent concealment (or “silent fraud”), which provides that when a
party has “a legal or equitable duty of disclosure, [a] fraud arising from the
suppression of the truth is as prejudicial as that which springs from the assertion of
a falsehood, and courts have not hesitated to sustain recoveries where the truth has
been suppressed with the intent to defraud.” Id.
Plaintiff admitted that he had no contact with any representative from Thor
prior to buying the RV. (Chaudoin Dep. 21:10-13.) Plaintiff identified only one
statement he believed was false on Thor’s part, and that statement was made after
the RV was purchased: Plaintiff testified that while Thor indicated that it repaired a
portion of the slide-out by replacing the fiberglass in it, he believes that Thor
simply refurbished it and repainted it. (Chaudoin Dep. 153:17-154:5.) But even
putting aside Plaintiff’s concession that he “[has not] been able to prove it as of
yet” (Chaudoin Dep. 153:21), there is no indication in Plaintiff’s deposition
testimony or anywhere else in the record that Plaintiff either relied on this
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purportedly fraudulent statement in any respect, or that he suffered injury in doing
so. For this reason, Thor is entitled to summary judgment on all fraud claims.
Moreover, Plaintiff has not identified, with any degree of specificity, any
knowingly (or recklessly) false statement on the part of GRV. In fact, he testified
that he was not aware of any:
Q . . . Was there anything that -- anyone from General RV told you
during the sales process that you later found out was a lie or not true?
...
[A] Not that I can recall.
(Chaudoin Dep. 59:4-8.)
Plaintiff’s claims of affirmative and silent fraud as to both Defendants are
also without merit. “A claim of innocent misrepresentation is shown if a party
detrimentally relies upon a false representation in such a manner that the injury
suffered by that party inures to the benefit of the party who made the
representation.” M&D, Inc. v. W.B. McConkey, 231 Mich. App. 22, 27–28 (1998)
(internal citations omitted). In McConkey, the Michigan Court of Appeals went on
to explain that
the innocent misrepresentation rule represents a species of fraudulent
misrepresentation but has, as its distinguished characteristics, the
elimination of the need to prove a fraudulent purpose or an intent on
the part of the defendant that the misrepresentation be acted upon by
the plaintiff, and has, as added elements, the necessity that it be shown
that an unintendedly false representation was made in connection with
the making of a contract and that the injury suffered as a consequence
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of the misrepresentation inure to the benefit of the party making the
misrepresentation.
Id.
Plaintiff’s innocent misrepresentation claim as pled against Thor fails for the
same reason as the fraud claims: Plaintiff has identified no pre-sale statements
made by Thor at all, let alone false statements, and the only false statement that
Plaintiff ascribes to Thor after the sale was not one on which Plaintiff relied to his
detriment.
As to GRV, Plaintiff asserts in his Response that GRV salesman Gary
Verhage
made several representations [regarding] what the ‘As Is’ condition of
the motor coach and conditions of its sale were: that the vehicle was a
new motor coach with features in proper working order, that the
vehicle could be operated on U.S. roads and highways, that it was
under warranty, which General RV would assume and service, etc.
(Pl.'s GRV Resp. at 11.) Plaintiff claims that “several of the representations made
by . . . Verhage were found later to be false and induced Plaintiff into the sale.”
(Id.) But this assertion is made without citation and lacks support in the record. In
his deposition, Plaintiff characterized his conversation with Verhage in this way:
Q . . . Prior to deciding to purchase the motor home, do you recall any
specifics that you spoke with Gary about?
A Just the normal stuff about a motor home. What size engine it had,
how long it was, what frame it was on, automatic load levelers, just
the specifics about that particular motor home.
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Q Okay. Did you later find out that any of the information that Gary
gave you at the show was inaccurate?
...
A I don't know.
(Chaudoin Dep. 23:2-13.) And as mentioned above, Plaintiff further testified that
he could not recall any statement made by GRV that he later determined to be
untrue. Without some evidence of a specific statement that was later shown to be
false, Plaintiff cannot raise a jury question on his innocent misrepresentation claim.
Accordingly, the Court will grant summary judgment to Defendants as to
Counts VIII, IX, and X in their entirety.
CONCLUSION
For all of the reasons stated above, the Court hereby DENIES Defendants’
Motions for Summary Judgment (ECF Nos. 25, 26) to the extent that they seek
summary judgment on Plaintiff’s product liability claims asserted in Count VII of
the Amended Complaint (ECF No. 8), and GRANTS Defendants’ Motions for
Summary Judgment to the extent that they seek summary judgment on all other
claims asserted in this action.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: August 15, 2017

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on August 15, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

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