Eversole v. Ford Motor Co.
| Decision Date | 06 April 2012 |
| Docket Number | Case No. 3:11cv428-DJN |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | TERRY S. EVERSOLE, Plaintiff, v. FORD MOTOR CO., et al., Defendants. |
In 2009, Terry S. Eversole ("Eversole" or the "Plaintiff) purchased a Ford F650 Series truck which he then retrofitted as a flat-bed tow-truck — allegedly to provide a "smoother ride." (Dep. of Terry S. Eversole ("Eversole Dep.") at 41:22-25, ECF No. 24-1.) He immediately experienced a series of mechanical malfunctions with the truck and it has been repaired pursuant to its warranty several times. Because of the mechanical malfunctions, Eversole brought this action asserting two counts under state and federal consumer protection statutes. Count one alleges that Defendants Ford Motor Company ("Ford") and Caterpillar, Inc. ("Caterpillar" or collectively with Ford, the "Defendants") have violated the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. §§ 2301 through 2312. Count two asserts a claim against Ford alone for violation of Virginia's Motor Vehicle Warranty Enforcement Act ("Lemon Law"), Va. Code §§ 59.1 -207.9 through 59.1 -207.16:1. The parties have engaged in extensive discovery and the Defendants have moved for summary judgment on both counts.1
The dispositive issues in this case concern the character of the truck at issue. Regarding Count 1, the issue is whether the truck constitutes a "consumer product" within the scope of the MMWA. The issue with Count 2 is whether the truck is a "motor vehicle" covered by Virginia's Lemon Law. Although not identified as a separate count, Eversole also argues that his Complaint alleges a general breach of warranty claim pursuant to Virginia's Uniform Commercial Code ("UCC").
The Defendants' motions for summary judgment have been briefed by the parties2 and the Court has reviewed all of the relevant submissions. Because the issues raised by the two motions overlap considerably, the Court will address the motions together. The Court has dispensed with oral argument, finding that it will not materially aid in the decisional process. Eversole has not established that a genuine issue of material fact exists with regard to either of his consumer protection claims. And, other than a bald allegation, he has not offered any evidence in support of a breach of warranty claim. Accordingly, the Court concludes that summary judgment is appropriate and will GRANT the Defendants' motions.
When opposing a properly asserted motion for summary judgment, the non-moving party bears the burden of offering evidence to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In doing so, both the Federal Rules of Civil Procedure and this Court's Local Rules impose the added burden ofidentifying such evidence with particularity. Fed. R. Civ. P. 56(c)(1)(A); E.D. Va. Loc. R. 56(B); Campbell v. Verizon Virginia, Inc., 812 F. Supp. 2d 748, 759 n.5 (E.D. Va. 2011) (). In opposing Caterpillar's motion, Eversole did not separately identify the facts in dispute or cite with particularity to those portions of the record that would support the existence of a genuine dispute of material fact. And although his response to Ford's motion included a separately captioned section entitled "Statement of Genuine Issues/Disputed Material Facts," that section consists almost entirely of argument. Nevertheless, the Court endeavors to construe those facts in the light most favorable to Eversole as the non-moving party, including consideration of those facts that he appears to dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). Viewing the evidence through such a lens, the following narrative constitutes the facts for purposes of resolving the Defendants' motions for summary judgment.
On December 8,2009, Eversole purchased a new 2008 Ford F650 series diesel truck (the "Truck") with a registered gross vehicle weight of 25,999 pounds from a Ford dealership in Daytona, Florida. (Eversole Dep. at 36:1-15, 37:18-38:4; Def. Ford Motor Co.'s Mem. Sup. Mot. Sum. J. ("Ford Mem.") Ex. B, ECF No. 27-3.) The registered owner on the bill of sale is "Steve's Towing & Repair," one of several businesses that Eversole operates. Consistent with the bill of sale, the Truck is registered with the Virginia Department of Motor Vehicles in the name of "Terry Steven Eversole d/b/a Steve's Towing & Repair." (Eversole Dep. at 43:4-11.) Shortly after purchasing the Truck, Eversole installed a "roll-back wrecker bed" on it, thereby converting it into a flat-bed tow truck. (Id. at 38:17-39:21.) His statedintention was to use the Truck personally for two years and then to transition the Truck into the towing fleet of his business.3 (Id. at 97:18-21.)
Although details are lacking from the record, Eversole experienced a series of malfunctions with the Truck since its purchase. First, on his return from purchasing the Truck in Florida, it broke down in Columbia, South Carolina. (Eversole Dep. at 47:8-16.) It was then towed to Charlotte, North Carolina, where it was repaired within a day. (Id. at 47:16-22.) Upon his return home, the Truck again broke down while Eversole drove it onto his driveway. (Id. at 47:22-23.) He has also experienced a series of transmission problems with the Truck since its purchase, though he has never attempted to have the transmission repaired. (Id. at 109:1-14.)
Eversole does not allege any damages to his business as a result of any defect in the Truck or its engine. (Id. at 131:10-20.) Instead, he claims that he has suffered damages due to the "delay and the expense of traveling to repair facilities." (Caterpillar Interrog. Nos. 7, 15.) Indeed, Eversole concedes that he has never been required to pay for any engine repairs, all of which have been fully covered by the warranty provided by the engine's manufacturer — Caterpillar. (Eversole Dep. at 144:7-17.)
Eversole agrees with Ford's affiant, Christopher Ready, that "a Ford 650 [is] a type of truck that's typically used for commercial use," and that it is "normally a type of truck that would be used in the tow[ing] business." (Compare Id. at 31:14-17, 38:2-4 with Aff. of Christopher M. Keady ("Keady Aff.") at ¶ 2, ECF No. 27-5.) Consistent with this fact, Eversolehas deducted the depreciated value of the Truck as a business expense on his 2009 and 2010 federal income tax returns. (Pl.'s Resp. Def. Caterpillar's Interrog. No. 14, ECF No. 24-2.)
Both Ford and Eversole have also submitted printed portions of several webpages advertising Ford's F650 line of trucks.4 According to Ford's own website, the F650 is part of its "commercial" line of trucks that "appeal[s] to businesses and municipalities." (Caterpillar's Mem. Ex. E, ECF. No. 24-5.) These trucks are specifically designed to be "upfitted" in a variety of ways, including the manner in which Eversole has converted his Truck into a flat-bed tow-truck. (Id.) Also apparently from Ford's website, Eversole has submitted an informational document from Ford regarding "Wheelbase Modifications - F650/750." This document appears to instruct "Recreational Vehicles and Bus Builders (and builders of similar duty cycle applications)" on engineering considerations when "upfitting" F650 trucks into buses or recreational vehicles. (Pl.'s Mem. Opp'n Ford's Mot. Sum. J. ("Pl.'s Ford Opp'n") Ex. 1, ECF No. 32-1.)
As an example of such consumer "upfitted" uses, Eversole submits what appears to be the printed website of a company known as "Supertruck." This document contains a series of photographs of F650 trucks that have been converted into limousines or sport utility vehicles. (Pl.'s Ford Opp'n Ex. 2, ECF No. 32-2.) This document contains no explanation of the trucks or Ford's intended market, instead directing customers to telephone the company and "ask forowners Chris or George" — apparently the owners of "Supertruck," who can "upfit" an F650 into the types of vehicles depicted on the webpage. (Id.)
Eversole brought this action in the Circuit Court for the County of Henrico, Virginia, alleging two counts. Count one asserts claims against both Defendants for breach of express and implied warranties under the MMWA, 15 U.S.C. §§ 2301 through 2312. Count two asserts a claim against Defendant Ford for violation of Virginia's Lemon Law, Va. Code §§ 59.1-207.9 through 59.1-207.16:1. The parties have completed discovery and both Defendants have separately moved for summary judgment, arguing that neither statutory claim is available due to the commercial character of the Truck. Eversole responds that the Truck is covered by both acts and, even if not, it should be permitted to pursue a general claim for breach of express and implied warranties.5
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The relevanl inquiry in a summary judgment analysis is "whether the evidence presents a sufficientdisagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. In reviewing a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party. Id. at 255.
Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushi...
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