Borgman v. Yamaha Motor Corp. U.S.

• Decision Date: 24 October 2022
• Docket Number: 3:19-cv-0285-HRH
• Parties: MATTHEW BORGMAN and NANCY BORGMAN, Plaintiffs, v. YAMAHA MOTOR CORPORATION, USA, Defendant.
• Court: U.S. District Court — District of Alaska

MATTHEW BORGMAN and NANCY BORGMAN, Plaintiffs, v. YAMAHA MOTOR CORPORATION, USA, Defendant.

No. 3:19-cv-0285-HRH

United States District Court, D. Alaska

October 24, 2022

ORDER CROSS-MOTIONS FOR SUMMARY JUDGMENT

H Russel Holland United States District Judge.

Defendant Yamaha Motor Corporation, U.S.A. moves for summary judgment.^[1] This motion is opposed by plaintiffs Matthew and Nancy Borgman,^[2] and plaintiffs cross-move for summary judgment.^[3] Plaintiffs' cross-motion is opposed.^[4] Oral argument was requested and has been heard.

Facts

Plaintiffs purchased a new 2018 Yamaha AR195 jet boat from Desert Valley Powersports, LLC in Prosser, Washington, on June 6 2018.^[5] Desert Valley is an authorized Yamaha Boat dealer. Plaintiffs trailered the boat back to Alaska, where they live.

The boat came with a limited warranty. Defendant “warrant[ed] that new Yamaha Boats will be free from defects in materials or workmanship for the time period stated herein, subject to certain stated limitations.”^[6] The limited warranty provided a five-year warranty for the “hull and deck” and a one-year warranty for “[a]ll other Yamaha Boat components....”^[7] The limited warranty also provided:

During the period of warranty, any authorized Yamaha Boat dealer, will, free of charge, repair or replace, at Yamaha's option, any parts adjudged defective by Yamaha due to faulty workmanship or material from the factory. All parts replaced under warranty will become the property of Yamaha Motor Corporation, U.S.A.^[8]

The limited warranty further provided that

[t]he owner of the boat shall give notice to an authorized Yamaha Boat dealer of any and all apparent defects within ten (10) days of discovery and make the boat available at that time for inspection and repairs at the dealer's place of business.^[9]

In addition to being a separate document, the limited warranty was also set out in the Owner's/Operator's Manual that Desert Valley provided to plaintiffs. The Manual also expressly provided that “[w]arranty repair ... must be performed at an authorized Yamaha Boat Dealer.”^[10]

Mr Borgman testified that Desert Valley explained the warranty to plaintiffs when they purchased the boat.^[11] He also testified that he read the owner's manual for the boat, which contained the warranty.^[12]

Mr. Borgman testified that he put the boat in the water two or three weeks after plaintiffs got back to Alaska.^[13] Mr. Borgman's stepson, Clayton Meehan, was with him.^[14]Upon this first use of the boat, plaintiffs discovered that “[w]ater leaks into the boat” and “[t]he [b]oat also cavitates, which may be caused by a leak. The [b]oat has difficulty in getting up on step, likely because the [b]oat is filled with water and the [b]oat is cavitating.”^[15]

Mr. Borgman avers that after discovering the problems with the boat, plaintiffs asked Meehan “to contact Anchorage Yamaha to obtain warranty repairs on the [b]oat” and that they “were given an appointment for mid-July 2018.”^[16] Meehan avers that he “called Anchorage Yamaha, Inc. and described the problem of the [b]oat taking on water. Anchorage Yamaha, Inc. said they could repair the [b]oat under Yamaha's warranty.”^[17] Mr. Borgman avers that he “delivered the [b]oat to Anchorage Yamaha for the appointment.”^[18]

On August 22, 2018, Anchorage Yamaha called defendant's Tech Line and advised the representative that the boat “cavitates” and that “the clean out plug is not sealing.”^[19]Anchorage Yamaha was told to change the clean out plug.^[20] Anchorage Yamaha replaced the clean out plug (also called the manhole cover assembly) and indicated on its service record that this was a “warrenty [sic] order[.]”^[21] Anchorage Yamaha also noted that if that did not fix the problem, then it should call defendant's Tech Line back.^[22]

After getting the boat back from Anchorage Yamaha, plaintiffs put the boat back in the water “in late August/early-September 2018[.]”^[23] Mr. Borgman avers that “[t]he boat had the same problem. The boat would not get on step/plane pulling a tube, even at full throttle. The back well was full of water, approximately 30-50 gallons.”^[24]

Plaintiffs returned the boat to Anchorage Yamaha for repairs. On September 20, 2018, Anchorage Yamaha called defendant's Tech Line and advised that the boat was cavitating when accelerating.^[25] The Tech Line “advised dealer to check for air leaks into the pump by adding water to hull and checking for leaks around the impeller shaft, seals, clean out plugs, or cracks in hull. If no leaks found, dealer will need to lake test to duplicate the issue.”^[26] On December 5, 2018, Anchorage Yamaha again called the Tech Line and reported that the “clean out plug is not sealing[.]”^[27] Anchorage Yamaha was advised “to grease the seal and to also check the manhole for being out of round. Dealer advised that the water has started freezing and it may be spring before they can get it worked on due to winter coming fast.”^[28] Anchorage Yamaha called plaintiffs to come pick up the boat since winter was coming, and Mr. Borgman avers that he picked the boat up on December 14, 2018.^[29] Plaintiffs stored the boat in a heated garage over the winter.^[30]

Plaintiffs returned the boat to Anchorage Yamaha in late April of 2019. Mr. Borgman avers that on June 21,2019, he “called Yamaha's customer assistance number because I was frustrated [that] Anchorage Yamaha had not repaired the [b]oat.”^[31] Mr. Borgman spoke with Andrew Thomas, who works for a temp agency, Coworks, answering customer service calls for defendant's Marine Division.^[32] Mr. Borgman avers that he told Thomas about the problems with the boat and “requested Yamaha buy the [b]oat back.”^[33] Thomas advised Mr. Borgman that he “would reach out to the [dealer] to get an understanding of what[']s going on. Adv[ised] that all buy backs start from the [dealer] level. Once I get in contact with the [dealer] I would reach back out to the cust[omer] and go from there.”^[34] Thomas spoke to Anchorage Yamaha and was told that it had “done a number of services but the unit is still cavitating, and the clean out ports were leaking.”^[35] Anchorage Yamaha advised Thomas that it would “be getting in contact with tech services today to help figure out what[']s wrong with the unit.”^[36]

On June 27, 2019, Anchorage Yamaha called the Tech Line to report that the boat “was tested on water, and water coming in near clean out ports. D[ealer] didn't check where it was coming from. Was tested with 4 people on the unit.”^[37] Anchorage Yamaha was advised “to leave unit on the trailer and check for pressurized leaks, in the jet drive/clean out areas.”^[38]

On June 28, 2019, Anchorage Yamaha sent a video to the Tech Line of the boat taking off and getting on step. Anchorage Yamaha advised that “it['s] hard to hear in a video but it cavitates heavily upon takeoff.”^[39]

On July 1, 2019, the Tech Line asked Anchorage Yamaha if it had

determined the causes of cavitation in relation to the clean out plug? Has a new one been installed to verify repair? The warranty on this unit ended on 6/6/2019. Was this issue present prior to this, and was the plug removed during winterization? These are very likely to warp if left over the winter - especially in Alaska.[^[40]]

Mr. Borgman avers that he spoke to Thomas again sometime between July 5 and July 8, 2019 and “told Thomas that Anchorage Yamaha told me Anchorage Y amaha has done all Yamaha repair recommendations, yet still cannot fix the [b]oat. Thomas was supposed to contact Anchorage Yamaha. I never hea[r]d back from Thomas.”^[41]

On July 12, 2019, Anchorage Yamaha advised the Tech Line that it had “tried all suggestions from Yamaha and unit still has issues. Dealer asking what to do. Not an authorized waverunner dealer. Asking what[']s next.”^[42] On July 15, 2019, Anchorage Yamaha was advised that “this may need to go to an authorized dealer for repairs.”^[43] On July 24, 2019, Anchorage Yamaha was advised

to order all parts needed and complete the repairs if they feel capable of completing the work correctly. [Andrew Smith of Anchorage Yamaha] is confident they can complete the repairs successfully and will lake test when completed. Dealer says they have [many] hours invested into this unit already and will have many more invested to complete the through hull fitting and lake test. Says lake is over 1hr away each direction plus time on the water. Has lake tested a hand full of times already. Advised let['s] get the issue repaired first and we can discuss reimbursement when the unit is done.^[44]

On August 2, 2019, plaintiffs made a formal demand that the boat be bought back and their money be refunded.^[45]

On August 21,2019, Chris Farrell contacted Smith at Anchorage Yamaha and asked for “any open and closed repair orders you have for” the boat.^[46] Farrell is a “watercraft district service manager” for defendant and his job is to “[s]upport our dealer network for their watercraft service needs.”^[47] Anchorage Yamaha sent Farrell two invoices.^[48] One was the service record set out above that indicated that the manhole cover assembly had been replaced under warranty.^[49] The other one was dated May 2, 2019, and indicated that Anchorage Yamaha worked on the boat until July 24, 2019, when it was advised by defendant “not to continue repairs[.]”^[50]

However, Mr. Borgman avers that he called Anchorage Yamaha on September 5, 2019, and was told that Anchorage Yamaha was still trying to fix the boat but was waiting on parts from defendant.^[51] And, on September 13, 2019, Anchorage Yamaha was advised that “if customer or legal party has not instructed to stop repairs, please continue with repairs to the through hull fitting and call back after confirming the repair is complete.”^[52]

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