DEFICCIO et al v. WINNEBAGO INDUSTRIES
Filing
48
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 9/29/2015. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT DEFICCIO, et al.,
Plaintiffs,
v.
WINNEBAGO INDUSTRIES, INC.,
Defendant.
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CIVIL ACTION NO. 11-7406 (MLC)
MEMORANDUM OPINION
COOPER, District Judge
The plaintiffs, Robert DeFiccio and Mary Jo DeFiccio, commenced this action
against the defendant, Winnebago Industries, Inc. (“WII”), asserting claims for: breach of
a settlement agreement (“Settlement Agreement”); violations of the Magnuson-Moss
Warranty Improvement Act (“MMWIA”); breach of warranties; violations of the New
Jersey Consumer Fraud Act; negligence; and punitive damages. (See dkt. 7.) Only the
claim for breach of the Settlement Agreement remains viable, and WII now moves for
summary judgment on that claim. (See dkt. 15; dkt. 43.) The plaintiffs oppose the
motion, which the Court will decide on the papers. (See dkt. 45.) See L.Civ.R. 78.1(b).
The Court, for the reasons stated herein, will grant the motion.
I.
BACKGROUND
A.
Factual Allegations
The plaintiffs’ motor home (“Motor Home”), which was purchased from an
authorized sales and service dealership identified as Media Camping Center, allegedly
suffered many breakdowns and component failures since the time of purchase in
September 2007. (See dkt. 7 at 1–2.) In May 2010, the parties entered into the Settlement
Agreement, which provided that: (1) WII would (a) transport the Motor Home to and
from its Iowa facility for specified repairs to be “performed to commercially reasonable
standards and warranted by [WII] for six months from the return of the [Motor Home] to
[the plaintiffs]”, and (b) pay the plaintiffs $17,500; and (2) the plaintiffs would “release
and forever discharge [WII] . . . from any and all claims and causes of action . . . based on
any alleged defects or non-conformities which were asserted or could have been asserted
involving the [Motor Home] up to the date of this Settlement Agreement and Release.”
(See id. at 3; id., Ex. E at 77 (paras. 1–2).)
The plaintiffs allege that the Motor Home: (1) remained at the Iowa facility for
repairs for about seven weeks instead of the originally contemplated three to four weeks;
and (2) was returned to them with “numerous unrepaired defects and conditions that were
specifically identified to be repaired or replaced pursuant to” the Settlement Agreement,
and had sustained new damage while in WII’s custody. (See dkt. 7 at 4.) The plaintiffs
retained Charles Barone (“Barone”) as an expert witness to inspect the alleged
undisclosed damage and to opine on the Motor Home’s diminished value caused by the
damage and repair attempts. (See dkt. 39 at 2; dkt. 7, Ex. F at 105–111.)
B.
Previous Motion Practice
The Court denied WII’s previous motion for summary judgment as to the claim for
breach of the Settlement Agreement without prejudice, but in doing so directed WII to
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first resolve the issue of Barone’s reliability. (See dkt. 29; dkt. 35.) The Court thereafter:
(1) granted the part of WII’s subsequent motion seeking to strike the opinion evidence
provided by Barone for being unreliable; and (2) denied the part of the same motion
seeking to preclude the plaintiffs from offering any expert evidence or testimony. (See
dkt. 37; dkt. 39 – dkt. 42.)
The Court will now address the pending motion for summary judgment as to the
claim for breach of the Settlement Agreement.
II.
SUMMARY JUDGMENT STANDARD
The Court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). The movant has the initial burden of proving the absence of
a genuine issue of material fact relative to the claims in question. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In response, the nonmovant must “go beyond the
pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for
trial.’” Id. at 324.
Material facts are those “that could affect the outcome” of the proceeding, and “a
dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a
reasonable jury to return a verdict for the non-moving party.” Lamont v. New Jersey, 637
F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986), and Celotex Corp., 477 U.S. at 322–23). “[S]ummary judgment [is] proper if,
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viewing the record in the light most favorable to the non-moving party and drawing all
inferences in that party’s favor, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” United States ex rel. Kosenske v.
Carlisle HMA, 554 F.3d 88, 94 (3d Cir. 2009).
III.
LEGAL PRINCIPLES AND DISCUSSION
A claim for breach of contract requires a showing of: “(l) a contract between the
parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the
party stating the claim performed its own contractual obligations.” Frederico v. Home
Depot, 507 F.3d 188, 203 (3d Cir. 2007). The Settlement Agreement, which the parties
signed, requires WII to: (1) pay the plaintiffs $17,500; and (2) perform a set of specified
repairs, identified in the Settlement Agreement, “to commercially reasonable standards.”
(See dkt. 43-5 at 16–17.) “Plaintiffs do not dispute that [WII] paid the $17,500.00 in
settlement funds and that [WII] undertook repairs to the vehicle pursuant to the
Settlement Agreement”. (Dkt. 43-1 at 8; see dkt. 45 at 3.) Thus, the only issue is whether
WII “performed the repairs to the vehicle to ‘commercially reasonable standards’ as
contemplated by the Settlement Agreement”. (Dkt. 43-1 at 8.) The parties now debate
whether expert testimony is required to opine on “commercially reasonable standards”
and whether the repairs adhered to such standards.
A.
Necessity of Expert Proof
The parties rely on New Jersey law. (See, e.g., dkt. 43-1 at 7–9; dkt. 45 at 4–16;
dkt. 47 at 5–12.) See Metzler v. Am. Transp. Grp., No. 07-2066, 2008 WL 413311, at *1
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n.2 (D.N.J. Feb. 13, 2008); Doe v. Div. of Youth & Family Servs., 148 F.Supp.2d 462,
493 n.6 (D.N.J. 2001).
“The test for determining whether expert testimony is required is whether the
matter under consideration is so esoteric or specialized that jurors of common judgment
and experience cannot form a valid conclusion.” Giantonnio v. Taccard, 676 A.2d 1110,
1115 (N.J. App.Div. 1996). Expert testimony is generally required where the
establishment of a particular standard of care or an industry standard is an element of the
claim. (See dkt. 43-1 at 9.) See, e.g., Roberts v. Det, Diesel Corp., No. A-4691-05T2,
2007 WL 1038986, at *3–4 (N.J. App.Div. Apr. 9, 2007) (affirming order granting
summary judgment on breach of contract claim based on failure to repair engine because
plaintiff failed to provide expert testimony); Bonnieview Homeowners Ass’n v.
Woodmont Builders, No. 03-4317, 2005 WL 2469665, at *4–5 (D.N.J. Oct. 6, 2005)
(requiring expert testimony to show industry standard for environmental-consulting firm’s
property survey, because it is not within layperson’s common knowledge); Jiries v. BP
Oil, 682 A.2d 1241, 1243–44 (N.J. Super.Ct. 1996) (requiring expert testimony to prove
automobile-repair shop “either performed the repair work improperly . . . or did not
perform agreed work” where plaintiff alleges negligence); Giantonnio, 676 A.2d at
1115–16 (requiring expert testimony to show requisite standard of care for funeral
procession and funeral home’s deviation therefrom); Rosenberg by Rosenberg v. Cahill,
492 A.2d 371, 374–75 (N.J. 1985) (stating expert proof was required for negligence claim
to show standard of care against chiropractor, because jury generally lacks requisite
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special knowledge, technical training, and background to determine applicable standard
of care without assistance of expert).
WII argues — “with the inclusion of language in the Settlement Agreement that
the repairs would be performed to ‘commercially reasonable standards’” — the plaintiffs
must provide expert proof to show that it “failed to comply with its obligations” and, thus,
breached the Settlement Agreement. (Dkt. 43-1 at 9.) WII argues that the plaintiffs
“must establish, through an expert, both the ‘commercially reasonable standards’ for the
repairs under the Settlement Agreement and also, that the repairs performed under the
Settlement Agreement fell below these standards.” (Id. (emphasis added).) WII claims
that the plaintiffs have not offered any of the required expert testimony because: (1) the
Court struck Barone’s testimony; and (2) the plaintiffs disclosed no other experts. (See
dkt. 43-1 at 10.) As a result, the plaintiffs cannot show that WII failed to perform repairs
under the Settlement Agreement to “commercially reasonable standards” and thus, “there
is no genuine issue of material fact as to whether [WII] breached its obligation under the
Settlement [Agreement].” (Id.)
The plaintiffs argue in response that expert testimony is not needed because their
own testimony suffices to establish a material issue of fact on whether WII performed the
Settlement Agreement repairs to “commercially reasonable standards”. (See dkt. 45 at 9.)
Specifically, the plaintiffs argue that although they “may not have been able to articulate
the standards of commercially reasonable standards, they are competent to testify as to the
operation of the various components in their motor home.” (Id.) Thus, the plaintiffs
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argue that through their testimony, “an inference can be drawn that the complained of
items are not repaired to commercially reasonable standards” despite being unable to
“articulate the definition of commercially reasonable repairs.” (Id. at 9–10.)
The plaintiffs also argue that the testimony of Wayne Degen (“Degen”), although
he is not an expert, can be used to establish a material issue of fact regarding whether WII
performed the repairs to “commercially reasonable standards.” (See id.) Degen “is the
general manager of Media Camping Center, an authorized Winnebago sales and service
dealership during the time of the repairs at issue in this case.” (Id. at 10.) The plaintiffs
purchased the Motor Home, and had it serviced, at Media Camping Center. (See dkt.
45-6 at 5.) Degen spoke with the plaintiffs regarding the repairs involved under the
Settlement Agreement, even though those repairs were not conducted at Media Camping
Center, but instead at WII’s Iowa facility. (Id. at 5–6.) Thus, the plaintiffs argue that
Degen is competent to testify as to the success of any particular repair and whether such
item has been repaired to commercially reasonable standards.
WII refutes these arguments, claiming that the plaintiffs: (1) are not qualified to
opine on such a technical, specialized matter, and thus their testimony cannot demonstrate
a breach; and (2) did not timely disclose Degen, a nonparty to the action, as an expert and
thus his testimony is barred. (See dkt. 47 at 8–10.) WII points to Robert DeFiccio’s
deposition testimony, where he “didn’t merely testify that he couldn’t articulate the
applicable ‘commercially reasonable standards’ with precision, he admitted that he has no
idea what those standards would be”. (Id. at 8 (citing Robert DeFiccio’s deposition
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testimony).)1 WII thus argues that the plaintiffs are unqualified to offer their subjective
opinion on the sufficiency of the repairs according to “commercially reasonable
standards.” (Dkt. 47 at 8–10.)
WII also argues that based on the discovery schedule set herein, the plaintiffs were
to disclose all experts by January 21, 2013. (See id. at 9; dkt. 26.) Degen was not
deposed until March 15, 2013. (See dkt. 45-6 at 1.) “Plaintiffs failed to move to extend
the discovery deadlines or otherwise seek leave to provide the required disclosures under
[Federal Rule of Civil Procedure (“Rule”)] 26(a)(2) in the event they wished to use Mr.
Degen as an expert witness in this matter.” (Dkt. 47 at 9 n.4.) WII “preserved such
objections during Plaintiffs’ deposition of [Degen] and also, provided a statement at the
close of [Degen’s] testimony noting that Plaintiffs had failed to timely and properly
disclose [Degen] as an expert witness”. (Id.) WII argues that the plaintiffs should be
“precluded from relying upon Mr. Degen as an expert in any regard in this matter.” (Id.)
WII further argues that Degen’s testimony — even if the Court finds that he was
timely disclosed as an expert — cannot “be used to meet Plaintiffs’ burden . . . because
Plaintiffs failed to show any sufficient foundation for Mr. Degen’s opinions.” (Id. at 10.)
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Robert DeFiccio admitted that he did not know the commercially reasonable standards
for cabinetry, the main entry door, and the countertops. (See dkt. 45-14 at 4, 9–12; dkt. 47 at
8–9.) He further admitted that he had no experience or training in cabinet repair, countertop
repair, repair of water leaks in vehicles, or carpentry. (See dkt. 45-14 at 4, 10–12; dkt. 47 at
8–9.)
Mary Jo DeFiccio also admitted in her deposition testimony that she had no experience
repairing vehicles, no experience repairing the items at issue here, and did not know whether
WII’s repairs met “commercially reasonable standards”. (See dkt. 43-9 at 12–14; dkt. 47 at 9.)
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Additionally, Degen: (1) testified that he had not reviewed the Settlement Agreement; and
(2) never specifically testified that the repairs were not performed to “commercially
reasonable standards”. (Id.; dkt. 45-6 at 14.) Thus, WII claims that Degen’s testimony
does not create an issue of fact as to whether there has been a breach of the Settlement
Agreement and, as a result, the Plaintiffs cannot demonstrate, through their testimony or
Degen’s testimony, that the repairs performed by WII under the Settlement Agreement
fell below commercially reasonable standards.
The Court agrees with WII. In negotiating the Settlement Agreement, the parties
included language requiring WII to perform the listed repairs to “commercially
reasonable standards”. (See dkt. 43-5 at 16–23.) As a result, the plaintiffs had the burden
of demonstrating a breach of the Settlement Agreement, which necessarily required the
plaintiffs to establish that the repairs fell below “commercially reasonable standards”. By
the nature of this standard being an “esoteric or specialized” one of a particular industry
— and not within the “common judgment” of a layperson — expert testimony is required.
Giantonnio, 676 A.2d at 1115; see Bonnieview, 2005 WL 2469665, at *4–5.
The plaintiffs themselves admitted to not knowing what these standards would be
for vehicle repairs. (See generally dkt. 43-7; dkt. 43-9.) If the plaintiffs — particularly
Robert DeFiccio, who has some knowledge of motor homes — cannot state what such
“commercially reasonable standards” would be, it seems implausible that “jurors of
common judgment and experience” would be able to form a “valid conclusion” without
the assistance of expert testimony. Giantonnio, 676 A.2d at 1115–16. The plaintiffs
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attempted to provide expert proof, but they were left without an expert witness once the
Court struck Barone’s testimony. (See dkt. 42 at 1.)
The plaintiffs then attempted to use Degen’s testimony. (See generally dkt. 45-6.)
However, his testimony on the commercial reasonableness of the repairs cannot be
offered as fact-witness testimony because of his specialized knowledge as a general
manager of an authorized dealership. Furthermore, the plaintiffs did not disclose Degen
as an expert witness before January 21, 2013, and did not move to reopen discovery or
admit Degen as an expert witness after the deadline. (See dkt. 26.)
Degen testified about WII’s repairs, but neither saw nor reviewed the Settlement
Agreement. (See dkt. 45-6 at 14.) Instead, Degen examined the Motor Home and
testified as to his opinion on the sufficiency of those repairs. (Id. at 6–7.) As a fact
witness, Degen could testify about his interactions with the plaintiffs in the purchase of
the Motor Home, but his testimony regarding the sufficiency of the repairs ventured into
opinions on whether they were “commercially reasonable”. Such testimony, as the Court
addressed earlier, requires an expert witness. The plaintiffs, on seeking to elicit this
information from Degen, sought to use him as an expert. But the time to disclose experts
had expired when Degen was deposed, and the plaintiffs did not seek to reopen discovery
or admit Degen as an expert after the deadline. Thus, Degen’s testimony is barred, and
the plaintiffs may not use it to raise a material issue of fact regarding whether the repairs
met “commercially reasonable standards.” See Fed.R.Civ.P. 26(a)(2).
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The testimony of each plaintiff is equally unavailing because “lay opinion based on
scientific, technical, or other specialized information” is “expressly excluded”, and there
is “global preclusion of any kind of lay opinion on specialized or technical subjects”.
McCrary v. N.J. Transit Rail Operations, No. 05-88, 2008 WL 2885872, at *3, *6 (D.N.J.
July 23, 2008). Given the “commercially reasonable standards” applicable here, the
plaintiffs’ argument requires expert proof in the form of scientific, technical, or other
specialized information.
Robert DeFiccio and Mary Jo DeFiccio testified that they had no experience in the
applicable field of repairs to the Motor Home when asked about items to be repaired
under the Settlement Agreement, i.e., cabinetry, countertops, water leaks, or carpentry.
(See dkt. 43-7 at 4, 9–12; dkt. 43-9 at 12–14.) With that testimony adduced, there is no
way the plaintiffs could have known or testified about what “commercially reasonable
standards” would be, and whether the repairs met those standards. The Court holds that
no genuine issue of material fact exists regarding whether WII breached the Settlement
Agreement — the only remaining issue here. Thus, the Court will grant the motion for
summary judgment. Notwithstanding this holding, the Court will briefly address the
plaintiffs’ other arguments.
B.
Sufficiency of Damages
WII argues that the plaintiffs did not raise an issue of fact in response to the
motion by: (1) failing to allege their damages with the required specificity for a prima
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facie case of breach of contract; and (2) putting forth unsubstantiated “guesstimates” that
were insufficient to establish damages. (See dkt. 43-1 at 12–14.)
A plaintiff has the burden to prove damages in a breach of contract claim. See
Frederico, 507 F.3d at 203; Caro Assocs. II v. Best Buy Co., No. 09-907, 2012 WL
762304, at *4 (D.N.J. Mar. 6, 2012). The plaintiffs must allege more than just bare
assertions, conclusory allegations, or suspicions to meet this burden. See Kare Distrib. v.
Jam Labels & Cards, No. 09-969, 2012 WL 266386, at *3 (D.N.J. Jan. 30, 2012)
(granting summary judgment on breach of contract claim where plaintiff failed to offer
more than conclusory declaration as damages proof).
Plaintiffs, in response to discovery requests, stated as to damages:
$114,150 in total damages. $39,150 for diminution in value related to
undisclosed body damage as set forth in Charlie Barone report. $75,000 in
diminution in value and/or repair costs for balance of unrepaired items and
items not repaired within a reasonable period of time plus lost use of motor
home.
(Dkt. 43-5 at 6.) WII attacks these estimates.
WII first attacks the $39,150 in diminished-value damages, claiming that the
plaintiffs “rely solely upon the report and testimony of their purported expert, Charles
Barone”; however, “Barone’s opinions with respect to these ‘diminished value’ damages
have been stricken by this Court”, leaving the plaintiffs without proof of “diminished
value damages.” (Dkt. 47 at 13 (citing dkt. 41 and dkt. 42 for order striking Barone’s
testimony, and dkt. 43-5 at 6 as source of plaintiffs’ reliance on Barone).) The plaintiffs
do not address this argument. The Court agrees that the plaintiffs — because of their
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reliance on Barone’s stricken testimony — cannot establish their entitlement to this
amount of damages.
WII then argues that the remaining $75,000 in claimed damages are without any
“documentary evidence of the costs to repair any items [that the plaintiffs] contend were
not properly repaired under the Settlement Agreement.” (Dkt. 47 at 13.) WII points to
the plaintiffs’ reliance on their own testimony and Degen’s testimony in an attempt to
offer “nothing more than unsupported and speculative repair estimates.” (Id. at 13–14.)
Robert DeFiccio testified about how he calculated the $75,000 figure for
“diminution in value and/or repair cost for balance of unrepaired items and items not
repaired within a reasonable period of time, plus lost use of motor home.” (See dkt.
45-14 at 3 (citing dkt. 43-5 at 6).) He explained what the $75,000 consisted of: “We have
approximately $25,000.00 of repairs for cabinetry. Approximately $20,000.00 repair for I
would call miscellaneous items. Approximately twenty thousand for replacement of our
counter tops....And the other would be for ... the lost time.” (Dkt. 45-14 at 3.) Further, he
testified that his cost amounts for the cabinets and other miscellaneous items were
“guesstimates” and the cost estimate to fix the countertops was a “pure guess”. (Id. at
11–13.) When asked for documentary proof of the cost estimates for the aforementioned
repairs, the plaintiffs stated that they had “[n]one at this time.” (Dkt. 43-5 at 5.)
Robert DeFiccio, regarding the alleged $10,000 in lost time damages, testified that
he could not provide an itemized list of expenses incurred due to loss of the Motor Home
or other out-of-pocket expenses due to the repairs. (See dkt. 45-14 at 13–14.) Also,
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while the plaintiffs alleged that they could not go on planned trips because of the repairs,
Robert DeFiccio could not remember what trips were planned, nor could he provide any
records or documents supporting this allegation. (See id.) Thus, as WII argues, the
plaintiffs’ damages calculations amount to nothing more than “guesstimates” by Robert
DeFiccio, who is unqualified to provide such estimates based on his admitted lack of
experience in the field. (See dkt. 43-1 at 14.)
The plaintiffs respond that Degen’s testimony and Robert DeFiccio’s testimony
sufficiently establish damages as an element of a breach of contract claim. (See dkt. 45 at
14–15.) Degen provided estimates during his deposition, based on personal expertise and
examination of the Motor Home, regarding repair costs for the pocket door, the cracked
roof, and the replacement entry door. (See dkt. 45-6 at 15, 25.) Further, Degen obtained
a $10,000 estimate for the cost of replacing the countertops. (Id. at 18–19.)
Robert DeFiccio “testified he is capable of ascertaining the repair costs for
Settlement Agreement repairs by referencing the . . . Settlement Agreement repair
documentation provided by [WII].” (Dkt. 45 at 14.) Further, the plaintiffs argue that “the
owner of property is deemed competent to give an estimate of the value of his own
personal property”, and that the extent of the probative value of such an estimate is left to
the consideration of the fact-finder. (Id. at 15 (citing Penbara v. Straczynski, 789 A.2d
134 (N.J. App.Div. 2002)).) The plaintiffs also rely on case law stating that “[p]roof of
damages need not be done with exactitude”, and that it may be sufficient for a plaintiff
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— without expert knowledge — to “prove damages with such certainty as the nature of
the case may permit”. Lane v. Oil Delivery, 524 A.2d 405, 409 (N.J. App.Div. 1987).
But Lane goes on to explain that “[p]roof of damages need not be done with
exactitude, particularly when dealing with household furnishings and wearing apparel.”
Id. (emphasis added). Further, “[t]he basis for arriving at the opinion must, however, not
be a matter of speculation and the witness must be required to establish the grounds for
any opinion given.” Id. The Court will not deliver a detailed critique of the plaintiffs’
“guesstimates”, but holds that the damages calculations are speculative and insufficiently
supported. Notwithstanding the issues with the timeliness of the disclosure of Degen,
Degen failed to provide documentation for his estimates or a foundation for his opinions.
Instead, he obtained an estimate from a third party for one specific repair, which appears
to be inadmissible hearsay. The testimony provided by each plaintiff fails to add the
requisite support for the damage figures. Thus, the motion for summary judgment could
also be granted because the plaintiffs failed to come forward with evidence to sufficiently
demonstrate the necessary element of damages under a breach of contract claim.
C.
Timeliness of Repairs
The plaintiffs also allege that the repairs were not completed within a reasonable
period of time or reasonable number of repair attempts, and thus there is a genuine issue
of material fact as to whether WII breached the Settlement Agreement. (See dkt. 45 at
11–13.) The Settlement Agreement contained a warranty clause, whereby WII warranted
the repairs for a period of six months “from the return of the vehicle to [plaintiffs].”
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(Dkt. 43-5 at 16.) The plaintiffs — although not alleging that WII failed to make good on
the warranty clause — claim that the “post Settlement Agreement repairs took an
unreasonable period of time to be performed”, thereby constituting a breach of contract.
(Dkt. 45 at 11.)
This argument is without merit. The plaintiffs — putting aside their misplaced
reliance on case law concerning breach of warranty under the Uniform Commercial Code
(“UCC”) and the MMWIA, which are inapplicable here — cannot establish a breach of
the Settlement Agreement through a showing of repeated or extended repair visits. (See
dkt. 14 at 15–16 (this Court stating that UCC and MMWIA do not apply to plaintiffs’
claims because Settlement Agreement did not involve sale of goods).) To succeed on the
claim for breach of contract, the plaintiffs must show that WII failed to comply with its
obligations under the Settlement Agreement. See Yapak, LLC v. Mass. Bay Ins. Co., No.
09-3370, 2009 WL 3366464, at *1 (D.N.J. Oct. 16, 2009) (citing elements for prima facie
case of breach of contract). The plaintiffs fail to address WII’s contractual obligations by
merely alleging that there were repeated repair visits and that the repairs took longer than
anticipated. Further, without proof that the repeated repairs were included in the scope of
the Settlement Agreement, that the repairs fell below “commercially reasonable
standards”, or that WII did not honor its six-month repair warranty, the allegations
concerning repeated visits and timeliness fail to raise a genuine issue of material fact to
defeat the motion for summary judgment.
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IV.
CONCLUSION
The Court will grant WII’s motion for summary judgment. The Court will issue an
appropriate Order and Judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: September 29, 2015
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