Herriage v. Forest River IncHerriage v. Forest River Inc
This mаtter is before the Court on Forest River, Inc.s Motion for Summary Judgment1 [DE 34] filed on July 26, 2024. Plaintiffs Tierra Herriage and Jesse Jenkins,
PROCEDURAL BACKGROUND
Plaintiffs initiated this cause of action by filing a complaint in this Court on January 25, 2023. In that pleading, Plaintiffs allege that Forest River has obligations under a warranty for a defective 2021 Berkshire motorhome sold to them by Forest Rivers authorized representative dealership. The complaint enumerates claims against Forest River for breach of warranty (express or implied) or contract, violation of obligations imposed by the Magnusson-Moss Warranty Act, and a consumer protection claim for which Plaintiffs invoke the Texas Deceptive Trade Practices-Consumer Protection Act (the DTPA).
SUMMARY JUDGMENT STANDARD
A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying the evidеnce, if any, which it believes demonstrates the lack of a genuine issue of material fact. Id. at 323. If the moving party supports its motion for summary judgment with affidavits or other materials, the burden shifts to the non-moving party to showing that an issue of material fact exists. Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A cоurts role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).
MATERIAL FACTS
Plaintiffs purchased a 2021 Forest River Berkshire motorhome from Fun Town Enterprises in Texas for approximately $237,000. The motorhome came with a manufacturers limited warranty from Forest River. The warranty became effective on April 28, 2021, the date that Plaintiffs picked up the motorhome, and provides that Forest River “warrants . . . for a period of one (1) year or twelve thousand (12000) miles, whichever occurs first . . . that the body structure of this recreational vehicle shall be free of substantial defects in materials аnd workmanship attributable to Warrantor.” (Evans Aff. Ex. 1, ECF No. 37-1).
Within a couple weeks of purchase, Plaintiffs experienced water intrusion
In October 2021, Plaintiffs noted further leaking from the roof and took the motorhome to Fun Town for repair, where it remained from October 28, 2021, through November 20, 2021. Plaintiffs insist the roof leak was not fixed after this visit. Plaintiffs continued to notice roof leaks when it rained in July and August 2022.
From July 18, 2022, to August 11, 2022, the motorhome was at Absolute Mobile RV Repair in Canton, Texas, for roof repairs, but this visit was not submitted to Forest River for warranty payment. Absolute applied sealant to the roof. When the motorhome returned to Absolute on August 20, 2022 (for a disputed number of days), the ceiling was sagging, and Absolute prepared an estimate for replacing the roof and ordered ceiling panels from Forest River.
On September 6, 2022, Mitch Wirt at Forest River instructed Absolute to submit a warranty claim for the roof leak and damage, аnd specifically told Absolute to reference his name so the claim would not be rejected.
After September 29, 2022 (and perhaps as late as December 12, 2022), the motorhome was returned to Absolute, and when Absolute pulled down the ceiling panels, it discovered extensive water damage and indoor mold growth behind the panels. Based on this discovery, Forest River decided to replace the roof at its factory service center, where the motorhome was located from December 12, 2022, to mid-February 2023. During this time with Forest River, the roof leak and internal damage were confirmed, and the entire roof was replaced.
Beginning in June 2022, Jenkins would have coughing and trouble breathing when he stаyed in the motorhome for any amount of time. On December 16, 2023, an Indoor Environmental Quality Consultant retained by Plaintiffs detected a slight mold odor and confirmed the presence of Chaetominium globosum (a mold indicative of heavy water damage) and of 11 families of mold mycotoxins known to cause serious health concerns, including allergenic and toxigenic effects, carcinogenic changes, skin and nail infections, immunosuppressive effects, neurodevelopmental disorders, and liver and kidney damage.
Plaintiffs have borne the stress of cancelled and rescheduled vacation plans and loss of nonrefundable deposits. Herriage has an indoor and outdoor mold allergy, and when she is in the RV for any extended amount of time, she gets hives throughout her body and her eyes swell, so she is afraid to even get in the RV at all. Jenkins cannot enter the RV without coughing because of the mold. Finally, Plaintiffs have lost sleep and had constant stress from making monthly loan payments and insurance payments on a motorhome Plaintiffs feel is worthless because they cannot use it.
ANALYSIS
A. Breach of Express Warranty
The parties agree that Indiana substantive law controls the breach of warranty claim. Under Indiana law, there are four
1. Statute of Limitations
Regarding the statute of limitations, the general rule in Indiana2 is that a breach of warranty claim must be brought within four years from the time that the claim accrued.
There is no dispute that the motorhome came with a one-year, 12,000-mile manufacturer‘s limited warranty from Forest River and that the warranty became effective on April 28, 2021, and expired on April 28, 2022. Plaintiffs assert, however, that the clause shortening the period for bringing a claim to within 90 days of the warranty‘s expiration is unenforceable becаuse
Still, the paragraph immediately following the part of
Plaintiffs next argue that the warranty “explicitly extends to future performance” and the breach of warranty action therefore accrues when breach is or should have been discovered.
Here, the warranty states that Forest River “warrants . . . for a period of one (1) year or twelve thousand (12000) miles, whichever occurs first . . . that the body structure of this recreational vehicle shall be free of substantial defects in materials and workmanship attributable to Warrantor.” (Evans Aff. Ex. 1, ECF No. 37-1). The three requirements are met. The promise is explicit because Forest River “warrants” to Plaintiffs the specified terms. Id. Second, the matter warranted is that “the body structure of this recreational vehicle shall be free of substantial defects in materials and workmanship attributable to Warrantor.” Id. This concerns the characteristics of the motorhome itself. The one-year/12,000-mile time limitation meets the third requirement.3
Forest River counters that its only obligations are to remedy defects by repair or replacement. This accurately states obligations Forest River took on under the warranty but does not negate that Forest River аlso explicitly warranted the vehicle to be free of substantial defects for the one-year/12,000-mile term of the warranty. In Kenworth, Indiana‘s Supreme Court found that if the promise was “only to repair and replace defects rather than warrant against future defects,” then the warranty is not a future-performance warranty. 134 N.E.3d at 380. However, because Forest River warranted against future defects in addition to its promise to repair and replace defects, Kenworth directs that the warranty here is one for future performance.
For future performance warranties, “the cause of action accrues when the breach is or should have been discovered.”
The warranty purports to rеquire actions to enforce the warranty to be brought within ninety days of the expiration of the warranty period. Because this is a warranty for future performance and accrual occurs when breach is or should have been discovered, the warranty provision
A reasonable jury could find that to be essentially what happened here. An initial leak was discovered in April or May 2021 and addressed—seemingly repaired—within the month. A reasonable jury may find that this was insufficient to alert Plaintiffs to their claim. However, with the continued problem with water intrusion noted in October 2021 (approximately six months after the warranty began), perhaps a reasonable jury would find that Plaintiffs should have discovered the mold issue, with the claim accruing at that time. Accordingly, by statute, the parties could not agree to reduce the limitations period to less than one year from the date of accrual (meaning suit could be brought until October 2022), but the warranty provision has the period ending 90 days after the expiration of the warranty, which upon calculation is July 27, 2022.
“Generally, a contract made in violation of a statute is void.” Harbour v. Arelco, Inc., 678 N.E.2d 381, 385 (Ind. 1997) (citation omitted). “However, if a contract contains an illegal provision which can be eliminated without frustrating the basic purpose of the contract, the court will enforce the remainder of the contract.” Id. (citations omitted). Here, the basic purpose of the contract—warranting the motorhome to “be free of substantial defects in material and workmanship attributable to Warrantor” for one year—is not frustrated by removing the provision limiting the time to bring suit for breach of the express warranty. The limitations provision can be excised from the warranty, and the Court does so here. Summary judgment on this clаim is not appropriate on the argument that Plaintiffs’ suit was not brought before the time to do so expired.
2. Breach4
Indiana law requires a purchaser to give a warrantor a “reasonable opportunity” to repair defects before the purchaser may bring a breach of warranty claim. Zylstra v. DRV, LLC, 8 F.4th 597, 601 (7th Cir. 2021). “[A] reasonable opportunity to cure, at least in cases where the defects are somewhat minor, and not affecting full use of the vehicle, means at least three chances.” Id. at 603; accord Massey v. Nexus RVs, LLC, 680 F. Supp. 3d 1051, 1061 (N.D. Ind. 2023). With a major defect that renders the warranted item “completely unusable for its intended purpose,” fewer than three opportunities to cure may be reasonable. Zylstra, 8 F.4th at 602. In Doman v. Heartland Recreational Vehicles, LLC, No. 3:23-cv-218, 2023 WL 6637619, at *4 (N.D. Ind. Oct. 12, 2023), for example, Judge DеGuilio of this court found no obligation for the purchasers to present a recreational vehicle for repair three times when that vehicle had been totally consumed by fire.
The parties do not dispute that Plaintiffs presented the motorhome for warranty repairs for the roof leaking water on May 3, 2021, and October 28, 2021. Plaintiffs have submitted evidence that, due to mold growth resulting from the
Forest River argues that defects must be considered individually. To a point, Forest River is correct. Repairs to the leveling system or wiring are not repair attempts for the roof. However, the focus of Plaintiffs’ complaint is about the water intrusion from the defective roof that caused interior mold growth. The mold is not itself a separate defect—there is no argument that Forest River delivered the motorhome to Plaintiffs with mold contamination already present, for example—instead, the argument is that the mold is damage that resulted from the roof defect.
Forest River highlights Herriage‘s testimony at her deposition that everything was “satisfactorily repaired” at the May 2021 repair visit. (Herriage Dep. 47:15-18, ECF No. 37-1). Herriage clarified in the same deposition that she had a later problem with the leaking roof after this repair was complete. Id. 102:24-103:7. At Jenkins‘s later deposition, he did not recall anything from Herriage‘s deposition that he disagreed with or wanted to clarify. (Jenkins Dep. 4:23-5:6, ECF No. 40-30). Perhaps a jury would see the evidence in a way that favors Forest River‘s position, separating one roof leak from another, but at the summary judgment stage, the question is not whether Forest River (as the movant) could win at trial but, instead, whether Plaintiffs could.
Similarly, Forest River contends that Dennis Bailey, Plaintiffs’ expert, cannot contradict his prior testimony with a later-in-time affidavit. At his deposition, Bailey said that he did not see “water intrusion coming from the roof” though he did see “water intrusion on the slide outs.” (Bailey Dep. 104:6-12, ECF No. 37-3). At the very same deposition, though, Bailey said that the roof was not properly repaired and explained that the lack of visible water during his examination was due to the length of time of his testing of the vehicle and that “[i]t will take probably a period of time for the water to come inside there.” Id. 102:8-103:5. Thus, there is deposition testimony that supports Bailey‘s statement in his affidavit that the roof repair was not properly fixed, causing water intrusion. See (Bailey Aff. ¶ 7, ECF No. 40-27).
Though not as extreme as a loss to fire, the motorhome in this state—as seen when viewing the evidence in the light most favorable to Plaintiffs—is not usable by Plaintiffs and has a major defect.5 Whether Forest River was given a reasonable opportunity to cure the defect is a question for the jury to decide, and summary judgment is not appropriate on this basis. The Court denies the request for summary judgment on this claim.
B. Breach of Implied Warranty
Fоrest River argues for summary judgment on the implied warranty claim because it violates the statute of limitations and because Forest River was not given a reasonable opportunity to repair or replace the defects.
Regarding limitations periods for implied warranties,
(a) Restrictions on disclaimers or modifications
No supplier may disclaim or modify (except as provided in subsection (b)) any implied warranty to a consumer . . . .
(b) Limitation on duration
For purposes of this chapter (other than section 2304(a)(2) of this title), 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.(c) Effectiveness of disclaimers, modificatiоns, or limitations
A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.
Plaintiffs focus on subsection (a) to argue that Forest River cannot shorten the limitations period. However, as Forest River correctly identifies, subsection (b) controls as the applicable exception to subsection (a). As such, Forest River was permitted to shorten the duration of the implied warranty to the duration of the written warranty, provided that the limitation is of reasonable duration, conscionable, and set forth clearly and prominently on the written warranty. As discussed above, though, the limitation is not reasonable or consciоnable because it violates Indiana law by shortening the time to bring suit on some claims under the future performance warranty to less than one year after accrual. It is not enforceable under Indiana law as to the written warranty, and it is therefore not an acceptable limitation on the implied warranty‘s duration under
As with the express warranty claim, Forest River contends that it was not given a reasonable opportunity to repair the defect under Zylstra, but as also discussed above, the “at least three” repair attempt minimum is not necessarily required for a reasonable opportunity to repair major defects, and a reasonable jury could find that the motorhome has a major defect, which Forest River was given a reasonable opportunity to repair. The Court denies summary judgment on the implied warranty claim.
C. Breach of Contract
Plaintiffs present two theories for their breach of contract claim: (1) the warranty failed its essential purpose, and (2) there was a contract for Forest River to take care of any damage resulting from the roof leak.
1. Failure of Essential Purpose
“Indiana law recognizes a mechanism to redress the loss of all ‘bargained-for’ remedies not thereafter given as promised.” Martin v. Thor Motor Coach, Inc., 602 F. Supp. 3d 1087, 1096 (N.D. Ind. 2022). “Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [Indiana Code §] 26-1.”
Forest River‘s argument that the warranty did not fail its essential purpose is, once again, that Forest River was not afforded a reasonable opportunity to repair the defect. So, as before, the argument fails because a reasonable jury could disagree.
2. Contract for Leak Damage
Under Indiana law, “[t]he elements of a valid contract are offer, acceptance,
102. So, on October 25, 2022, Tierra and Jerry followed up with Forest River about the approval status of the warranty claim. In response, Mitch Wirt, on behalf of Forest River, represented to them that he had “gone in and taken care of the claim” submitted by Absolute and that “Absolute Mobile can move forward with the repair,” and “[a]ny damage resulting from the leak should be taken care of.”
. . .
107. As a result, Forest River decided it was going to come pick up the RV and perform the repairs at its factory.
108. On December 18, 2022, Forest River had the RV transported to its factory service center for a final repair opportunity for the roof leak and resulting water damage causing the ceiling fan and A/C to be inoperable as well as any mold damage.
(Pls.’ Statement Nos. 102, 107-108, ECF No. 40 (citations to evidence omitted)).
Assuming that the evidence supports Plaintiffs’ statements,6 there is insufficient material here from which to determine that a contract existed. There is no offer and acceptance. Plaintiffs only state that Forest River authorized a repair at Absolute and, later, at the Forest River factory. There is no dеscription of Plaintiffs’ “acceptance” of any offer that required them to provide consideration. Though Plaintiffs contend that they permitted Forest River to transport the motorhome to the factory, their stated facts (the only citation provided in support of there being consideration) do not show this to be consideration for the contract. See Bassett, 194 N.E.3d at 1192 (“To constitute sufficient consideration to create a contract, a benefit must accrue to the promisor, or a detriment must accrue to the promisee.“).
Plaintiffs have not met their burden to present evidence of a contract for the repair of the leaky roof, so the Court grants summary judgment as to this argument.
D. Magnusson-Moss Warranty Act
Thе parties agree that Indiana law controls the Magnusson-Moss Warranty Act claim and that this claim rises and falls with the Indiana state-law breach of warranty claim. Accordingly, since the Indiana state-law claim survives summary judgment, so too does this claim.
E. Consumer Protection
The final claim Plaintiffs bring, and which Forest River seeks summary judgment in its favor on, is a consumer protection claim, for which Plaintiffs cite Texas‘s DTPA.
1. Choice of Law
The parties disagree on which state‘s law—Indiana‘s or Texas‘s—should apply to the consumer protection claim. Plaintiffs invoked Texas law in bringing this claim in their complaint. Forest River contends
When the Court hears claims under diversity jurisdiction, which is the case here, it applies the choice of law principles of Indiana, since the Court is geographically located in the state of Indiana. See W. Bent Mut. Ins. v. Arbor Homes LLC, 703 F.3d 1092, 1095 (7th Cir. 2013). The Court need not resolve the question of which state‘s substantive law to apply to claims unless there is “a conflict between state laws important enough to affect the оutcome of the litigation.” Litsinger v. Forest River, Inc., 536 F. Supp. 3d 334, 357 (N.D. Ind. 2021) (quoting Simon v. United States, 805 N.E.2d 798, 805 (Ind. 2004) (internal quotation marks omitted)).
“Generally, Indiana courts will give effect to the parties’ agreement as to controlling law.” Brill v. Regent Commc‘ns, Inc., 12 N.E.3d 299, 306 (Ind. Ct. App. 2014) (citations omitted). Thus, the first step is to determine whether the parties agreed regarding the choice of law. When facing a conflict of laws, Indiana courts do not analyze different issues within the same claim separately to potentially apply different states’ laws to the various issues raised in a single claim. Simon v. United States, 805 N.E.2d 798, 801 (Ind. 2004). However, Indiana courts will analyze each claim brought in a lawsuit separately. Id. Therefore, the parties’ agreement that the other claims are governed by Indiana law has no bearing on the law to apply to the consumer protection claim.
There is no choice-of-law agreement applicable to the consumer protection claim. The warranty provides that “[t]he terms, conditions, rights and responsibilities of this warranty shall be governed by the laws of the State of Indiana notwithstanding any other state laws,” (Aff. Evans Ex. 1, ECF No. 37-7 (emphasis added)), but this is a consumer protection claim, not a warranty claim, even though, as the Court will discuss later, the consumer protection claim is closely connected to the warranty. Still, to read the choice-of-law provision in the warranty as governing consumer protection claims in addition to the interpretation of the warranty stretches the agreement beyond its boundaries.
Citing Popham v. Keystone RV Co., No. 3:15-CV-197, 2016 WL 4993393 (N.D. Ind. Sept. 19, 2016), Forest River argues that the relevant state consumer protection laws—the Indiana Deceptive Consumer Sales Act and the Texas Deceptive Trade Practices Act—are in conflict. Plaintiffs do not dispute the existence of a conflict, though they argue that the question of which law to apply is moot because they did not bring an “alternative” claim under the Indiana statute. With no argument against Popham, the Court adopts the reasoning in that decision to reach the conclusion that there is an important conflict of laws between the Texas and Indiana consumer protection statutes. See Id. at *9-10.
With no choice-of-law agreement and facing of a conflict of laws, Indiana courts aрply the appropriate choice-of-law rule to the claim. The parties agree that Indiana courts would use the choice-of-law rules for tort claims to determine what law to apply to a consumer protection claim. See (Def.‘s Br. at 10, ECF No. 25); (Pls.’ Resp. at 2, ECF No.
The actions that allegedly violated consumer protection laws are (1) promises to repair water leaks and associated damage, thereby misrepresenting the benefits and quality of the factory repair services and lulling Plaintiffs into reliance on those promises to Plaintiffs’ detriment, (2) representing to Plaintiffs that they had warranty rights after Forest River believed the warranty period ended as well as stalling and delaying repairs, thereby misrepresenting Plaintiffs’ warranty rights, (3) misrepresenting the motorhome‘s use, benefits, standard, and quality by holding it out as a luxury motorhome that was safe and capable of use for recreational travel and camping when it in reality had many defеcts that rendered it unusable to Plaintiffs, and (4) breach of warranty.
Like Judge Simon noted in Andersen v. Thor Motor Coach, Inc., 402 F. Supp. 3d 467, 482 (N.D. Ind. 2019), the “laundry list approach to pleading” used by Plaintiffs for the DTPA claim does little to clarify the issues for choice-of-law analysis. Still, it appears that the main allegations of wrongful actions are misrepresentations made in enticing Plaintiffs to purchase the motorhome, in authorizing warranty repairs, and in promising to repair defects. The sale of the motorhome occurred in Texas (so this would be where the warranty was agreed to as part of the sale contract), as did multiple repair attempts for water intrusion issues. The indoor mold growth was discovered at Absolute in Canton, Texas. It is true that Forest River‘s acceptance of the motorhome for repairs (regardless of whether it was for “warranty” repair or as a “good will” measure) came from Indiana and that one repair attempt occurred in Indiana, but on the whole, the Court finds that, when forced to choose a single location where the purported deceptive trade practices occurred, Texas wins out over Indiana. Cf. id. at 483 (finding “Texas, rather than Indiana, is better characterized as the place where deceptive trade practices and the resulting loss occurred” in that case). Texas bears more than a little connection to this lawsuit. Accordingly, the Court concludes that Indiana courts would apply Texаs law, so this Court follows suit.
2. Statute of Limitations
Though Texas substantive law applies, Indiana‘s procedural law—including Indiana‘s statute of limitations—applies. See supra note 2. Under Indiana law, the general rule is that tort claims must be brought within two years of the action accruing.
3. Merits
To prevail on a DTPA claim, a plaintiff must establish (1) the рlaintiff is a
Forest River‘s argument is largely based on the false premise that breach of contract and breach оf warranty are treated equally under the DTPA. Texas‘s Supreme Court holds that nonperformance on a contract is not actionable under the DTPA. Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 12 (1996). Texas‘s economic loss doctrine “generally precludes recovery in tort for economic losses resulting from the failure of a party to perform under a contract.” Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 2007) (emphasis added). On the other hand, however, a breach of warranty is specifically allowed to underpin a DTPA claim. Godfrey, 356 S.W.3d at 725; see also
Plaintiffs assert that Forest River failed to deliver on its promise to repair the damage to the motorhome, which Plaintiffs also characterize as a misrepresentation of the benefit, standard, and quality of the factory repair services. Plaintiffs continue, arguing that Forest River stalled and delayed in performing repairs to the motorhome. In other words, Plaintiffs allege that Forest River breached the express warranty. Forest River‘s argument that a breach of contract cannot support a DTPA claim for economic loss only does not apply to this argument that there was a breach of warranty. Forest River is not entitled to summary judgment on the DTPA claim.
CONCLUSION
Based on the above, the Court hereby GRANTS in part and DENIES in part Forest River, Inc.‘s Motion for Summary Judgment [DE 34]. The motion is granted as to the argument of breach of contract regarding Forest River‘s December 2022 repair attempt and denied as to the other breach of contract argument and as to all other claims.
SO ORDERED on February 12, 2025.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT