Sirlouis v. Four Winds International Corp.
Memorandum Opinion and Order granting Four Winds' Motion for summary judgment (Related Doc # 42 ). Judge Lesley Wells(C,KA)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
: CASE NO. 1:10-cv-00469
Plaintiff, : MEMORANDUM OF OPINION AND
FOUR WINDS INTERNATIONAL
CORPORATION, et al.,
-----------------------------------------------------UNITED STATES DISTRICT JUDGE LESLEY WELLS
Before the Court are motions for summary judgment filed by the plaintiff Lynda
Sirlouis and defendant Four Winds International Corporation (“Four Winds”),
respectively. For the reasons that follow, the Court will grant the defendant’s motion and
enter judgment in its favor.
On 12 July 2008, the plaintiff Lynda Sirlouis bought a motorhome, without test
driving it, from non-party General RV Center (“General RV”), located in Brownstone,
Michigan. General RV is an authorized dealer of defendant Four Winds, the
manufacturer of the vehicle. Soon after taking delivery of the motorhome, the plaintiff
observed that the motorhome suffered from a “terrible vibration” when driven at speeds
above 50 mph, and she complained to General RV. Over the months that followed, the
motorhome spent at least 35 days out of service and under repair, by her count, in
relation to the vibration complaint. (Doc. 45, p. 5). Specifically, the vehicle was admitted
to the repair facilities of Ganley Ford for 20 days; General RV for 7 Days; Mor-Ryde for
1 day; and defendant Four Winds for 7 days. Ms. Sirlouis says that despite these
efforts, the vibration persists.
The plaintiff also states that the vehicle was serviced for an additional 20 days
during the first few months of ownership for non-vibration related defects, such as a
faulty microwave, improperly installed sink drains, and a broken toilet seat, among
numerous others. It is undisputed that these non-vibration related defects were repaired
to Ms. Sirlouis’s satisfaction on the first try--many of them before she even took delivery
of the vehicle.
On 4 March 2010, the plaintiff brought the instant suit against Four Winds, the
motorhome’s final manufacturer, and the Ford Motor Company, the manufacturer of the
motorhome chassis, alleging that her motorhome is a “lemon” under Ohio law. She also
alleged breach of express and implied warranties and violations of the Ohio Consumer
Sales Practices Act.
Following discovery, all parties filed for summary judgment. Ms. Sirlouis’s motion
was denied. Ford’s motion was granted, and all claims againts it were dismissed. The
Court granted in part and denied in part Four Winds’ motion. Specifically, Four Winds’
motion was granted as to the plaintiff’s claim that Four Winds engaged in unfair,
deceptive, or unconscionable acts in violation of the OSCPA, but the motion was
otherwise denied, as Four Winds improperly argued the remaining claims under
Michigan law. The Court invited Four Winds to refile its motion and present arguments
under Ohio law. Ms. Sirlouis was also offered a second chance at summary judgment.
The parties’ refiled motions and responses are presently before the Court.
As explained more fully in the sections that follow, Ms. Sirlouis fails to direct the
Court’s attention to evidence that requires submission to the finder of fact, and Four
Winds is entitled to judgment as a matter of law. The discussion will, accordingly, begin
and end with the defendant’s motion.
To succeed under the Ohio Lemon Law, a plaintiff must demonstrate the
existence of a cognizable “nonconformity,” that is, a “defect or condition that
substantially impairs the use, value, or safety of a motor vehicle to the consumer.” Ohio
Rev. Code 1345.71(E). In this instance, while it is undisputed that the motorhome
produced a vibration when driven at certain speeds, the plaintiff fails to identify any
objective evidence that the vibration was so abnormal that the vehicle’s use, value, or
safety were substantially impaired. See LaBonte v. Ford Motor Co., No. 74855, 1999
WL 809808, at *5 (Ohio Ct. App. Oct. 7, 1999) (a defect that “pose[s] no threat to ... the
driveability” or “safety” of the vehicle [is] not a substantial impairment). Ms. Sirlouis’s
subjective assertion that the vehicle was so affected does not meet the standard. See
Iams v. DaimlerChrysler Corp., 2007-Ohio-6709, 174 Ohio App. 3d 537, 551, 883
N.E.2d 466, 477 (applying an objective standard). Further, the objective evidence that
the plaintiff does provide falls short of the standard.
In addition, a plaintiff must demonstrate that the manufacturer, its agent, or its
authorized dealer was unable cure the nonconformity after a “reasonable number of
repair attempts.” Ohio Rev. Code 1345.72(B). It is presumed a reasonable number of
attempts were undertaken, if the vehicle was under repair for at least thirty days
cumulatively or if the same nonconformity was subject to repair at least three times.
Ohio Rev. Code 1345.73(A)-(B). In the present case, while it is undisputed that the
vehicle was subject to vibration-related repairs on numerous occasions for a cumulative
total of 35 days, Ms. Sirlouis fails to present facts demonstrating that these repair
attempts are attributable to Four Winds in sufficient number or duration. As explained
below, it is undisputed that the manufacturer Four Winds and its authorized dealer
General RV addressed the vibration problem on only two occasions for a total of 14
days, falling short of the threshold. The remainder of the repair attempts were
undertaken by Ganley Ford and Mor-Ryde. The plaintiff provides no factual or legal
basis for concluding that either Ganley Ford or Mor-Ryde is the agent or authorized
dealer of Four Winds, as required under the statute.
As for the plaintiff’s warranty claims, the defendant is also entitled to judgment as
a matter of law. Ms. Sirlouis does not present a viable implied warranty claim because
she and Four Winds are not in privity of contract. See Curl v. Volkswagen of Am., Inc.
871 N.E. 2d 1141, 1147 (Ohio 2007). The breach of express warranty claim also fails on
its face because Four Winds did not warrant the drive train or engine, which were the
undisputed source of the claimed vibration; Ford did.
As a general observation, the Court notes that while plaintiff’s counsel has
submitted numerous documents, including repair records, depositions, affidavits, and
other evidence, with the suggestion that a jury question is hiding somewhere within, a
district court “is not ... obligated to wade through and search the entire record for some
specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Rather, the Court relies on the
nonmoving party to identify, and, if necessary, interpret, the specific evidence that
supports her position. Because Ms. Sirlouis fails to identify such evidence by which the
fact finder could reasonably find in her favor, the Court is constrained to rule in favor of
II. Summary Judgment Standard
Summary judgment is proper if “there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“[S]ummary judgment will not lie if the ... evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). In considering a motion for summary judgment, the court must construe the
evidence in the light most favorable to the non-moving party. See Anderson, 477 U.S. at
248. Therefore, the movant has the burden of establishing that there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v.
Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). But the
non-moving party “may not rest upon its mere allegations.” Fed.R.Civ.P.56(c)(1); see
Celotex, 477 U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). The
non-moving party must present “significant probative evidence” to show that there is
more than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., 8 F.3d 335, 339-40 (6th Cir.1993).
III. Law and Argument
A. The Plaintiff’s Lemon Law Claim
Ohio’s Lemon Law provides:
If a new motor vehicle does not conform to any applicable express warranty and
the consumer reports the nonconformity to the manufacturer, its agent, or its
authorized dealer during the period of one year following the date of original
delivery or during the first eighteen thousand miles of operation, whichever is
earlier, the manufacturer, its agent, or its authorized dealer shall make any
repairs as are necessary to conform the vehicle to such express warranty,
notwithstanding the fact that the repairs are made after the expiration of the
appropriate time period.
Ohio Rev.Code Ann. § 1345.72(A).
The statute defines a “nonconformity” as “any defect or condition that
substantially impairs the use, value, or safety of a motor vehicle to the consumer and
does not conform to the express warranty of the manufacturer or distributor.” §
1345.71(E). The Lemon Law sets forth the consequences for failing to comply with its
If the manufacturer, its agent, or its authorized dealer is unable to conform the
motor vehicle to any applicable express warranty by repairing or correcting any
nonconformity after a reasonable number of repair attempts, the manufacturer, at
the consumer’s option . . . either shall replace the motor vehicle with a new motor
vehicle acceptable to the consumer or shall accept return of the vehicle from the
consumer and refund ... [t]he full purchase price . . . [and] [a]ll incidental
damages. . . .
In explaining “reasonable number of repair attempts,” the statute provides, in
It shall be presumed that a reasonable number of attempts have been
undertaken by the manufacturer, its dealer, or its authorized agent to conform a
motor vehicle to any applicable express warranty if, during the period of one year
following the date of original delivery or during the first eighteen thousand miles
of operation, whichever is earlier, any of the following apply:
(A) Substantially the same nonconformity has been subject to repair three or
more times and either continues to exist or recurs;
(B) The vehicle is out of service by reason of repair for a cumulative total of thirty
or more calendar days;
Ohio Rev. Code § 1345.73.
In the present case, Four Winds maintains that Ms. Sirlouis has failed to supply
facts by which a reasonable fact finder could conclude that Four Winds is liable under
the Ohio Lemon Law. Four Winds attacks the plaintiff’s Lemon Law claim from
essentially two angles: (1) whether Ms. Sirlouis has presented sufficient evidence to
demonstrate that the alleged defects meet the definition of “nonconformity” pursuant to
Ohio Revised Code § 1345.71(E); and (2) whether Ms. Sirlouis has provided facts to
show that Four Winds was unable to cure the “nonconformity” after a “reasonable
number of repair attempts,” pursuant to Ohio Revised Code § 1345.73.
Whether the alleged defects meet the definition of “nonconformity”
Four Winds argues that Ms. Sirlouis has failed to put on sufficient evidence that
the vibration or any other alleged defect meets the definition of “nonconformity” under
the statute. A “nonconformity” is “defect or condition that substantially impairs the use,
value, or safety of the vehicle.” Ohio Rev. Code § 1345.71(E). In Four Winds’ view, Ms.
Sirlouis’s own subjective assertion that the use, value, or safety of the motor home was
substantially impaired by the alleged defects is irrelevant to whether the standard has
been met. Rather, Four Winds contends, Ms. Sirlouis must put on objective evidence
that the impairment rises above the “trivial” or “cosmetic” or “subjective dissatisfaction of
the consumer.” Because she has failed to cite any such evidence in the record, Four
Winds concludes, her Lemon Law claim fails as a matter of law. The defendant points
out that the Ohio Supreme Court has read the definition of the term “nonconformity” to
mean “major defect.” Royster v. Toyota Motor Sales, U.S.A., 750 N.E.2d 531, 533, 535
(Ohio 2001). The defendant argues that the plaintiff’s case should not be allowed to
proceed just because she has sworn that the alleged defect is, in her opinion, “major.”
Ms. Sirlouis, on the other hand, suggests that a successful Lemon Law claim
does not require objective evidence of a “substantial impairment.” She points out that
under the statute, the term “nonconformity” is, by definition, “a defect or condition that
substantially impairs the use, value, or safety of a motor vehicle to the consumer.” See
Ohio Rev. Code § 1345.71(E). Focusing on the words “to the consumer,” Ms. Sirlouis
argues that the consumer’s own subjective viewpoint is determinative of whether a
substantial impairment exists. The plaintiff therefore contends that her sworn statement
that the motorhome suffered from a substantial impairment as to her is precisely the sort
of evidence that the statute contemplates.
The Court has reviewed the relevant case law, and it appears that Ohio courts
are divided on whether the “substantial impairment” standard is objective, as argued by
Four Winds, or subjective, as argued by the plaintiff. In support of Ms. Sirlouis’s
position, the Ohio Court of Appeals for the Sixth District held that
the clear and unambiguous language of R.C. 1345.72(B) requires that the
determination as to whether the impairment in the vehicles use, safety, or value
is deemed substantial necessarily depends on an examination of the consumer’s
Brinkman v. Mazda Motor of Am., Inc., 6th Dist. No. L–93–142, 1994 WL 193762 (Ohio
Ct. App. May 13, 1994). The Court of Appeals for the Ninth District similarly decided that
“[a] nonconforming motor vehicle is one that, from the consumer’s perspective, suffers
from any defect or condition which substantially impairs its use, value, or safety and
does not conform to the express warranty of the manufacturer or distributor.” Gray v.
Chrysler Corp., 2001 WL 358389, at *2 (Ohio Ct. App. Apr. 11, 2001) (emphasis
added); accord Lesjak v. Forest River, 5th Dist. No. 2003AP050037, 2004-Ohio-245,
2003 WL 23192529. (“It is clear . . . whether the use, safety or value of the motor
vehicle is substantially impaired is to be determined according to a subjective
standard.”); see also Rothermel v. Safari Motor Coaches, Inc., Case No. 93 CV 7229,
1994 WL 1029332 (N.D. Ohio July 29, 1994) (“[W]hether the use, safety or value of the
motor vehicle is substantially impaired is to be determined according to a subjective
On the other hand, there is persuasive authority to support the defendant’s
position that the substantial impairment standard is an objective one. In Iams v.
DaimlerChrysler Corp., the Ohio Court of Appeals for the Third District decided that the
applicable standard was “whether a reasonable person would conclude that the alleged
defect or condition substantially impairs the vehicle’s use, value, or safety.” Iams v.
DaimlerChrysler Corp., 2007-Ohio-6709, 883 N.E.2d 466, 477 (emphasis added). In
reaching this conclusion, the Iams court determined, contrary to the above-noted cases,
that the phrase “to the consumer” is ambiguous. The court reasoned that the phrase
could either signify that “the motor vehicle’s diminished use, value, or safety is
measured from the affected consumer’s perspective,” or “simply identify that the
consumer is the affected object of the vehicle’s diminished use, safety, or value.” In
resolving the ambiguity, the Iams court decided that the latter interpretation was
preferrable because it is more consistent with legislative intent and the Ohio Supreme
Court’s previous statements on the issue.
Having considered the case law on this subject, it is this Court’s view that the
position of the Iams court is more persuasive than that of Brinkman, Gray, Lesjak, and
Rothermal. The latter four opinions are ultimately unconvincing, because they provide
little reasoning to support the conclusion that the statute unambiguously calls for
application of a subjective standard. The Iams court, by contrast, was careful to
demonstrate the statute’s language is ambiguous since it is susceptible to more than
one reasonable interpretation,1 a conclusion with which this Court agrees. Further, Iams
To demonstrate the ambiguity inherent in the phrase “to the consumer,” the Iams
court reasoned as follows:
When the word “to” precedes a personal object word, it can be translated
“in the opinion of” a particular person, as Iams argues. On the other hand,
used this same way, it can also mean that person is, as a matter of fact,
affected by the subject matter of the sentence.
For example, consider the sentence: “The lengthy drought season is
especially devastating to the local farmers.” Although local farmers may,
in fact, hold the opinion that the increased droughts are “especially
devastating” to them, the essence of this statement is that local farmers
are the “especially” affected objects of the drought season, the sentence’s
subject matter. The statement has nothing to do with the opinion of the
local farmer; rather, it is an independent evaluation of the drought-stricken
farmer’s plight. Furthermore, as in the phrase “to the consumer” in the
Lemon Law, nothing in the example statement prevents an objective
review. That is, one can review the facts of the situation and determine
whether the local farmer is, as a matter of fact, “especially” devastated, or
whether, perhaps, some other group or individual is even more
devastated than the local farmer. In the same way, the phrase “to the
consumer” could reasonably have nothing to do with the consumer’s
subjective opinion; but rather, simply identify that the consumer is the
affected object of the vehicle’s diminished use, safety, or value.
persuasively reasoned that a construction that would admit the use of an objective
standard is more consistent with the Ohio Supreme Court’s decision in Royster. In that
case, Ohio’s high court held that a valid Lemon law claim requires the existence of a
“major defect” and not merely a “cosmetic or trivial” complaint. Royster, 750 N.E.2d at
535. By limiting the scope of the Lemon Law in this way, Royster counsels against an
interpretation that would allow the existence of a substantial impairment to be
determined from the consumer’s perspective. And, as discussed in Iams, numerous
other Ohio decisions have embraced this interpretation, at least implicitly. See, e.g.,
Miller v. DaimlerChrysler Motors Corp., Case No. 78300, 2001 WL 587496, at *4 (Ohio
Ct. App. May 31, 2001) (intermittent groaning and grinding noises and steering column
vibrations did not substantially impair a vehicle’s use, value, or safety); LaBonte, 1999
WL 809808, at *5 (a “warning light problem” that “posed no threat to ... the driveability”
or “safety” of the vehicle was not a substantial impairment); Stepp v. Chrysler, Case No.
95CA000052, 1996 WL 752794, at *1–2 (Ohio Ct. App. Nov. 7, 1996) (a consumer’s
shaken faith in the vehicle did not establish a substantial impairment).
Further, the Iams court stated strong practical reasons for applying an objective
standard. As that court explained,
[i]f a subjective standard were applied . . . practically every vehicle with a defect
would be a “lemon,” and manufacturers would, as a practical matter, never
prevail once the consumer demonstrated that the vehicle was under warranty
Given that at least two reasonable interpretations of the phrase “to the
consumer” exist, we find that the statute’s language is ambiguous.
Iams v. DaimlerChrysler Corp., 883 N.E.2d at 472 (internal quotations and
and the defect was timely and properly reported for repairs the required number
of times. To prevail on summary judgment, the consumer would simply need to
show these two elements and submit an affidavit stating that the defect
substantially impaired the vehicle’s use, value, or safety to them. A subjective
standard exponentially expands the Lemon Law’s application beyond its intent.
Iams, 883 N.E.2d at 476 (emphasis in original).
This Court concludes, consistent with Iams, that whether the plaintiff’s vehicle
suffers from a substantial impairment is to be determined by an objective standard. As a
consequence, the plaintiff’s subjective assertion that the vibration and other defects
substantially impaired the use, value, and safety of the motorhome to her are insufficient
to defeat the defendant’s claim to summary judgment.
Whether the Plaintiff has provide sufficient objective evidence of a
The discussion now turns to the plaintiff’s objective evidence that her vehicle
suffered from a substantial impairment. The plaintiff cites the following record evidence:
(1) the plaintiff’s averment that the vehicle was in the shop for more than 55 days
between 15 July 2008 and 18 November 2009; (2) a copy of a Technical Service
Bulletin published by Ford Motor Co, which allegedly addresses vibration problems in
the type of chassis used on the plaintiff’s vehicle; and (3) the plaintiff’s expert’s
deposition testimony as to the existence and severity of the vibration.
In the Court’s view, the objective evidence cited by the plaintiff is insufficient to
demonstrate the existence of a substantial impairment. First, the claim that the motor
home spent at least fifty-five days in the shop says nothing about the severity of the
vibration from which the motorhome allegedly suffered. The plaintiff cites no authority
for the proposition that the number of days a vehicle is out of service is commensurate
to the severity of impairment. To the contrary, the number of days out of service and the
question of “substantial impairment” are separate considerations under the Ohio Lemon
Law. On the one hand, a plaintiff establishes that a “reasonable number of repair
attempts” have been undertaken by showing that the vehicle was out of service for at
least thirty days, and, on the other, she must show that the time out of service was due
to a defect or condition that substantially impaired the use or value of the vehicle. The
plaintiff provides no reasoned basis for conflating these two considerations.
Furthermore, even if the severity of impairment could be judged by the number of
days out of service, it is undisputed that twenty of the total days out of service can be
attributed to defects that are, as a matter of law not substantial. These include the “fit
and finish” issues such as repair of a damaged wall border, a leaky toilet, and an
improperly installed bathroom fan, which were resolved before the plaintiff even took
delivery of the vehicle; and other cosmetic issues that included a missing border in the
bathroom, a knicked window frame, and issues with the window latches, molding, and
paint, among others. Therefore, the total number of days out of service is not evidence
that the vibration was a defect that substantially impaired the use or value or safety of
The plaintiff also refers to a Technical Service Bulletin (“TSB”) entitled “Vibration
- Driveline Drone or Vibration Felt at 80-96 km/h (50-60 mph) - Vehicles Equipped with
228 Inch Wheelbase and 6.8L Engine Only,” as being probative of the existence of a
substantial impairment as to her vehicle, but she fails to offer any explanation as to how
the TSB supports her case. Moreover, the document to which the plaintiff refers does
not seem to have even been submitted for the Court’s review.2 As a consequence, the
TSB cited by the plaintiff is insufficient to establish that her vehicle suffers from a
Finally, the plaintiff’s citation to the deposition of her expert Mark Sargent also
falls short of demonstrating the existence of a substantial impairment. Ms. Sirlouis
directs the Court’s attention to a portion of that deposition in which Mr. Sargent stated
that the degree of vibration in the vehicle was “certainly above the industry standard.”
Ms. Sirlouis suggests that based on this testimony a reasonable jury could conclude
that the use, value, or safety of the motorhome was substantially impaired. The
problem with this contention is that Ms. Sirlouis provides no basis for concluding that a
vibration that measures “above the industry standard” is by necessity a defect that
“substantially impairs” the use or value of the motorhome. Ohio case law establishes
that “substantial impairments” do not include “intermittent groaning,” “grinding noise[s],”
or “vibrations,” that do not affect the “use, value, or safety” of the automobile, Miller,
2001 WL 587496, at *4. As a consequence, because the cited deposition testimony
does not indicate whether the vibration affected the driveability or safety or value of the
vehicle, the Court cannot reasonably infer that the vibration amounted to a
“nonconformity” as that term is understood under Ohio law.
In plaintiff’s brief in opposition to Four Winds’ motion for summary judgment,
plaintiff’s counsel asserts that the TSB entitled “Vibration - Driveline Drone or
Vibration Felt at 80-96 KM/H (50-60 mph)” with the identifying number 01-17-3
has been docketed as Defendant’s Exhibit 2. The Court’s review of Defendant’s
Exhibit 2 (Doc. 25-1) reveals a TSB different from that cited by the plaintiff,
entitled “Vibration Diagnostics--Steering Wheel Nibble--Tire Wheel Runout And
Balance” with identifying number TSB 08-24-2. It is not apparent, and plaintiff
does not explain, how this TSB is relevant to whether the use, value, or safety of
Ms. Sirlouis’s vehicle was “substantially impaired.”
Whether a reasonable number of repair attempts were undertaken
Assuming the plaintiff had supplied facts from which a reasonable inference
could be drawn that the vibration substantially impaired the use, value, or safety of the
vehicle, she still fails to present a viable Lemon Law claim. Under Ohio’s Lemon Law,
liability is dependent on whether the “manufacturer, its agent, or its authorized dealer”
was able “to conform the motor vehicle to any applicable express warranty by repairing
or correcting any nonconformity after a reasonable number of repair attempts.” Ohio
Rev. Code § 1345.72(B).
As noted above, one way to meet the presumption is to show that the vehicle
was out of service for a cumulative total of thirty or more calendar days. Ohio Rev. Code
§ 1345(B). In the present case, the plaintiff asserts that the vehicle was out of service
for thirty-five days for repairs related to the vibration. However, of those thirty-five days,
only fourteen days can reasonably be attributed to the manufacturer, Four Winds, or its
authorized dealer, General RV. It is undisputed that the remaining days out of service
occurred while the motorhome was in the custody of Ganley Ford or Mor-Ryde neither
of which are the “manufacturer, its agent, or its authorized dealer.” While the plaintiff
gestures at the possibility that Ganley Ford or Mor-Ryde were acting as the agents of
Four Winds under a theory of actual or apparent agency, she offers no meaningful
argument on this point.3 Therefore, because the plaintiff has failed to allege, argue, or
Under Ohio law, actual agency occurs where there is a consensual relationship
between the agent and principal. Flick v. Westfield Nat’l Ins. Co., No. 91–CO–45,
2002 WL 31168883, at *6, 2002 Ohio App. LEXIS 5250, at *27 (Ohio Ct.App.
Sept. 26, 2002).
In the context of apparent agency, an agent binds the principal when the
present any pertinent facts in relation to whether Ganley Ford or Mor-Ryde were the
agents of Four Winds, the days that the motorhome was in the custody of Ganley Ford
and Mor-Ryde will not be counted against Four Winds. Because only fourteen days can
be attributed to Four Winds, Ms. Sirlouis does not meet the thirty day threshold
contained in Ohio Rev. Code § 1345.73(B).
Alternatively, a Lemon Law plaintiff may establish “a reasonable number of repair
attempts” were undertaken by providing evidence that “[s]ubstantially the same
nonconformity [was] subject to repair three or more times and either continue[ed] to
exist or recur[red].” Ohio Rev. Code § 1345.73(A). According to the plaintiff’s affidavit,
there were numerous attempts to repair the vibration. Among these, there are several
attempts at repair by Ganley Ford and Mor-Ryde. For reasons already noted supra,
these repair attempts do not count against Four Winds, because the plaintiff has failed
to establish that either Ganley Ford or Mor-Ryde is a manufacturer or the authorized
dealer or agent of Four Winds.
The plaintiff also claims that General RV, Four Winds’ authorized dealer, made
four attempts at repairing the vibration, and she cites four work orders issued by
evidence shows “(1) that the principal held the agent out to the public as
possessing sufficient authority to embrace the particular act in question, or
knowingly permitted him to act as having such authority, and (2) that the person
dealing with the agent knew of the facts and acting in good faith had reason to
believe and did believe that the agent possessed the necessary authority.”
Master Consol. Corp. v. BancOhio Nat’l Bank, 61 Ohio St.3d 570, 575 N.E.2d
817, 822 (1991).
The plaintiff’s unsubstantiated assertion that both Ganley Ford and Mor-Ryde
“were authorized by Four Winds to perform repairs on the RV that [Four Winds]
supposedly could not” fails to establish the existence of either an actual or an
apparent agency relationship.
General RV as proof. However, upon review of these documents, the Court concludes
that the plaintiff’s contention does not stand up to scrutiny, as she supplies no
meaningful basis for equating the number of work orders with the number of repair
attempts. With all reasonable inferences drawn in favor of Ms. Sirlouis, the only rational
conclusion is that the four separate work orders, issued between the 5th and 15th of
September 2008, represent a single attempt to address the vibration complaint.
According to the evidence provided by the plaintiff, the repair began on 5
September 2008, when it was ordered that technicians “remove the drive shaft so it can
be repaired.” (Work Order #901184, Doc. 43-3 at 46). On 10 September 2008, General
RV technicians duly “remove[d] the rear drive shaft . . . and pack[ed] it up for [MorRyde].” (Work Order #901237, Doc. 43-3 at 47). Two days later, a General RV
technician “reinstall[ed] customer front and rear drive shaft” and took the motorhome on
a test drive. (Work Order #901271, Doc. 43-3 at 49). Finally, on 15 September 2008, the
motorhome was filled with fuel and the customer was taken on a test drive. (Work Order
#901282, Doc. 43-3 at 51). In the Court’s view, the work orders relate to a single repair - removal and replacement of the drive shaft. The presumption of liability under R.C.
1345.73(A) depends on whether following the repair, the nonconformity “either
continue[ed] to exist or recur[red].” In this case, whether the vibration “continued to exist
or recurred” would not be evident until the drive train was reinstalled and the vehicle
was test driven. Therefore, the four work orders represent a single repair attempt.
In sum, the plaintiff has failed to establish that the vibration amounted to a
nonconformity that substantially impaired the use, value, or safety of the motorhome.
Even if the plaintiff had provided such evidence, she has not established that Four
Winds made a “reasonable number of repair attempts” and thus triggered the
presumption of Lemon Law liability. Summary judgment as to the Lemon Law claim will
accordingly be granted in favor of the defendant.
B. The Plaintiff’s Breach of Warranty Claims
The plaintiff brings breach of implied and express warranty claims pursuant to the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. The Magnuson–Moss Act is
the federal statute that sets forth guidelines, procedures and requirements for
warranties, written or implied, on consumer products. See 15 U.S.C. §§ 2301–2312.
The applicability of the Magnuson–Moss Act is dependant upon a state law claims for
breach of warranty. Labonte, 1999 WL 809808, at *7. “[E]xcept in the specific instances
in which Magnuson-Moss expressly prescribes a regulating rule, the Act calls for the
application of state written and implied warranty law, not the creation of additional
federal law. Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1986). Therefore,
the Court’s consideration of Ms. Sirlouis’s Magnuson-Moss claims is coterminous with
her breach of warranty claims under Ohio law.
Four Winds argues that it is entitled to judgment as a matter of law on Ms.
Sirlouis’s implied warranty claims because she is not in privity with Four Winds. In
support, Four Winds asserts that Under Ohio law, “purchasers of automobiles may
assert a contract claim for breach of implied warranty of merchantability, only against
parties with whom they are in privity of contract.” Curl, 871 N.E. 2d at 1147. Ms. Sirlouis
offers no argument in opposition, and it is undisputed that Ms. Sirlouis entered into a
sales contract with General RV, not Four Winds. Summary judgment will be granted as
to the plaintiff’s implied warranty claims.
Breach of Express Warranty
Four Winds moves for summary judgment with respect to Ms. Sirlouis’s claim
that the defendant’s failure to repair the vibration amounts to a breach of its express
warranty. Four Winds acknowledges that its limited express warranty “obligates [it] to
repair or replace defective materials or workmanship,” but the defendant asserts that
the warranty is limited by language contained in a section entitled “What is Not
Covered.” The relevant language is as follows:
[t]his Limited Warranty does not cover any material, component or part of the RV
that is warranted by another entity, including, by way of example, but not limited
to, the automotive chassis and power train, including the engine, drive train,
steering and alignment, braking, wheel balance . . . .
(Doc. 22-1, p. 31)
According to Four Winds, it is undisputed that the drive train, chassis, and engine
were warranted by Ford; Therefore, because the plaintiff maintains that the source of
the vibration was the drive train and engine, the defect was covered by Ford’s warranty,
not Four Winds’. Ms. Sirlouis provides no argument in opposition. Based on the
evidence before it, the Court agrees with Four Winds that its warranty does not provide
coverage of the defect of which Ms. Sirlouis complains. Therefore, summary judgment
will be granted in favor of Four Winds with respect to Ms. Sirlouis’s breach of express
For the reasons stated above, Four Winds’ motion for summary judgment is
IT IS SO ORDERED.
/s/ Lesley Wells
UNITED STATES DISTRICT JUDGE
Date: 15 July 2014
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