Case Information
*1 Before H AMILTON B ARRETT S CUDDER , Circuit Judges . B ARRETT Circuit Judge . Vanessa Randy pur chased RV, came from manufacturer, Recreation Group, rid dled problems bought it, these ultimately led sue REV. sympathize plight; lemon. shown honor warranties or warranty provisions were unconscion ‐ able, must affirm court’s grant summary judgment REV.
I.
Vanessa Randy purchased a Holiday Ram ‐ bler Presidential RV on May from Mellott Brothers Trailer Sales, The RV came from man ‐ ufacturer, Recreation Group, Inc., which limited ex ‐ press warranties from purchase date. To take advantage warranty, notify an authorized within five days discov ‐ ering defect. Moreover, stated “[i]f re pair replacement remedy fails successfully cure defect after [REV] received de fect[], your sole exclusive remedy shall War rantor paying you costs an independent third party perform repair(s) defect(s).” The were told about when they RV, but they were initially hard copy.
The say they encountered problems almost soon as they drove off lot. They called dealership report there inte rior lights, refrigerator, leveling system. Mel lott Brothers service manager recommended they go auto parts store replace fuses order fix issues, did. say also no ticed this first trip: water leaked shower, TV player didn’t work. didn’t contact anyone about these issues.
A month later, the Mathews went on another trip claim to had even more difficulty: the converter blowing fuses, the leveling jacks worked only intermittently, the curbside slide cable broke, there were still problems the TV player. After calling the Mellott Broth ers again, the Mathews were the number for REV so could locate an authorized repair center. REV told them could go to local dealer near them, Johnson’s RV, but would need obtain approval from REV before the performed repairs would covered the warranty. Johnson’s RV completed repairs told Mathews repair work covered, but neither nor anyone Johnson’s RV ever contacted REV about this work (though notably, were never forced pay for repairs). This happened again few months later when Johnson’s RV fixed curbside slide ca ble—no notified REV repair work been done.
Around month later, contacted REV form them issues RV. ar ranged repair RV factory store. After completing repairs, issued an extended goodwill for “de fective workmanship materials manufacturing”—alt hough specifically excluded extension “or warranties.” March again contacted REV, this about cable air conditioning unit, main slide, sealing tape slides. asked buy back RV, but declined do so instead promised repair pursuant arranged pick up repair once again extended the goodwill warranty. In May 2015, REV also provided the copy the
REV returned RV in June the never again took RV REV or any other author ‐ ized independent for repair. Instead, their attorney sent letter REV July alleging had its warranties. Fed up, filed suit soon after. amended complaint, they alleged breaches express implied warranties, well as violations both Indi ‐ ana Deceptive Consumer Sales Act (IDCSA) Mag nuson–Moss Warranty Act. They claimed REV had failed fix TV, player, air conditioning/slide out seals. They also asserted after they had filed suit, noticed kitchen cabinets, latent issue water tank, rear coach falling out. conceded, however, did not raise this second group REV within period. moved for summary judgment all counts, court granted motion. It explained “while facts evidence support contention had numerous problems, do support allega tions honor warranties.” Because defects, said, breach ranties. It also concluded warranty’s limitations unconscionable. And alleged violat ins been basis Matthews’ claims 18 ‐ 1982 5 IDCSA Magnuson–Moss Warranty Act, court held that those claims failed too.
The Mathews appealed. Although, district court rightly noted, “[t]his case a cluttered mess immaterial factual disputes, unsupportable claims maze ‐ like presen tation arguments,” gather that Mathews raise same arguments before us below: REV breached express warranties REV vio lated IDCSA Magnuson–Moss Act.
II. Mathews first argue REV breached its To prevail a breach warranty claim in Indiana, plaintiff must prove (1) existence a warranty, (2) a
breach, (3) causation, (4) damages. See Peltz Const. Co. v. Dunham N.E.2d (Ind. Ct. App. 1982). REV argues cannot establish breach because re paired all presented dur ing warranty period. Indeed, admit failed give chance complete new repairs after returned them June 2015. argue still breached ranty because, Indiana law, can “[w]here circumstances cause exclusive remedy fail essential purpose.” Ind. Code § ‐ 719(2); see also Perry Gulf Stream Coach, (Ind. Ct. App. 2004). concluded defects, required, could essential purpose. Anderson Gulf 18 1982 Stream Coach, F.3d 775, 783–84 (7th Cir. 2011) (ex ‐ plaining that, under Indiana law, buyer has to give seller reasonable opportunity to cure “if terms of impose requirement”); Aamco Transmissions v. Air Sys., Inc., N.E.2d 1215, (Ind. Ct. App. 1984). agree. rightly note fact
chance to fix at least some issues: TV, player, air conditioning/slide out seals. even ‐ suming we can count repair attempts at Johnson’s RV—and it’s doubtful should because notified about them—REV had only two chances fix each these problems. Under Indiana law, two chances is reasonable opportunity cure defects such ‐ ranty failed essential purpose. Cf. General Motors Corp. Sheets (Ind. Ct. App. 2004) (explaining under Indiana’s Lemon Law, “[a] number at tempts considered been undertaken if noncon formity has been subject repair at least four times but contin ues exist if vehicle has been out service at least thirty business days nonconformity continues ex ist” (emphasis added)); Mayew Chrysler, LLC WL at *4 (Del. Super. Ct. 2008) (explaining Delaware Act, “a plaintiff must permit least four opportunities attempt repair alleged de fect”).
And even if could show rea sonable repair RV’s defects, did fail essential purpose avail themselves contract’s back up remedy—which required if defect, 18 1982 7 Mathews’ “sole exclusive remedy shall limited to Warrantor paying you costs of an independent third party perform repair(s) defect(s).” next argue implied of merchantability by selling them an not in merchantable condition at time it. But here too Mathews’ failure give a opportunity cure alleged defects is fatal claim. [2] Recognizing this, instead contend ranty’s limitations—for implied warran ties—were unconscionable for two main reasons. First, didn’t receive a copy time purchase. Second, one period an insuffi cient amount for them recognize latent defect like water tank.
Indiana courts have held an unconscionable contract is one “no sensible man not delusion, duress or distress would make, … no honest fair man would accept.” Weaver v. Am. Oil Co. 144, (Ind. 1971) (citation omitted). correctly held arguments did satisfy standard. As their claim that warranty was unconscionable they didn’t receive hard copy, district court observed:
[T]he aware of Limited War ranty its terms, and even took advantage of it by repair work done at REV’s factory on two (and only two) occasions, so cannot claim now that of terms limitations are unconscionable based on fact receive [a] physical copy of it at time of sale. words, cannot it ways: rely
ing contract when it works their advantage get repairs done then alleging is unconscionable when doesn’t. See Dixon Monaco Coach Corp. WL at *3 (N.D. Ind. 2009) (“[T]he evidence is undisputed Dixons took advantage warranty prior filing of claim, requesting receiving numerous repairs Monaco during applicable warranty period. As such, Dixons can [sic] now argue are suddenly sur prised by application limited terms relating filing breach claims.”). And contention warranty’s one time limitation was unconscionable, district court rightly noted “[t]he possibility latent defect may exist is one risks present at contract formed, does not, itself, render contract unconscionable.” (quot ing Popham Keystone Co. WL at *6 (N.D. Ind. 2016)). thus agree con tract’s unconscionable—it “no honest fair man” would accept. Weaver 146.
Finally, have established breached limitations were unconscionable, their remaining claims IDCSA Magnuson–Moss Act, were based same arguments, fail well.
* * * are sympathetic Mathews; sold day it.
cause established warranties—or law—we agree claims fail.
AFFIRMED.
[1] Magnuson–Moss Act federal statute that, among things, permits consumers sue enforce state law obliga tions. U.S.C. § 2310(d)(1).
[2] conclusory sentence citation, suggest give an failure comply without anything more by way argument or citation Indiana case law, do consider argument. United States Dunkel F.2d (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than assertion, does preserve claim.”); United States Giovannetti F.2d (7th Cir. 1990) (“A litigant who fails press point by supporting pertinent authority, by show ing why good point despite lack supporting authority face contrary authority, forfeits point.” (emphasis omitted)).