Pack v. Damon Corp., 03-CV-73601.

Citation320 F.Supp.2d 545
Decision Date19 February 2004
Docket NumberNo. 03-CV-73601.,03-CV-73601.
PartiesAvery PACK, Plaintiff, v. DAMON CORPORATION, an Indiana corporation, and General RV Center, a Michigan corporation, Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

Karl P. Heil, Mark P. Romano, Steven S. Toth, Consumer Legal Services, Garden City, MI, for Plaintiff.

Jeffrey R. Jowicki, Michael D. Dolenga, Bingham Farms, MI, for Defendants.

ORDER GRANTING DEFENDANT GENERAL RV CENTER'S MOTION TO COMPEL ARBITRATION; DENYING DEFENDANT DAMON CORPORATION'S MOTION TO COMPEL ARBITRATION; DENYING DEFENDANT GENERAL RV CENTER'S MOTION FOR SUMMARY JUDGMENT AS MOOT, AND; GRANTING, IN PART, DEFENDANT DAMON CORPORATION'S MOTION FOR SUMMARY JUDGMENT

STEEH, District Judge.

Defendants Damon Corporation ("Damon") and General RV Center ("GRVC") move to compel arbitration of plaintiff Avery Pack's claims of breach of express and implied warranties, revocation of acceptance, breach of express and implied warranties as actionable under the federal Magnuson Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301 et seq., violations of Michigan's Consumer Protection Act ("MCPA"), M.C.L. §§ 445.901 et seq., breach of contract, and rescission. In the alternative, defendants also move for summary judgment of plaintiff's claims. A hearing on the motions was held on November 20, 2003. For the reasons set forth below, defendant GRVC's motion to compel arbitration will be GRANTED, defendant Damon's motion to compel arbitration will be DENIED, defendant GRVC's motion for summary judgment will be DENIED as MOOT, and defendant Damon's motion for summary judgment will be GRANTED, IN PART, as to plaintiff's state and MMWA claims of breach implied warranties, revocation of acceptance breach of contract, and rescission as alleged against Damon ONLY in Counts II, III, V, VII, and VIII. The remainder of Damon's motion for summary judgment will be DENIED as to plaintiff's state and MMWA claims of breach of an express warranty, and violations of the MCPA as alleged against Damon ONLY in Counts I, IV and VI.

I. Background

Plaintiff Avery Pack filed an eight count complaint in Michigan's Wayne County Circuit Court on August 19, 2003 alleging that he purchased a new 2002 motor home from defendant GRVC on September 13, 2002, and that defendant Damon manufactured the vehicle. Plaintiff alleges he received express and implied warranties from both GRVC and Damon as part of the sale. Plaintiff alleges that the motor home has since been out of service for 168 days for nine needed structural and suspension repairs1 performed by Damon's authorized service agents, including GRVC. Plaintiff alleges breach of express warranties arising under M.C.L. 440.2313 (Count I), breach of implied warranties of merchantability arising under M.C.L. § 440.2104 (Count II), revocation of acceptance pursuant to M.C.L. § 440.2608 (Count III); breach of express warranty actionable under 15 U.S.C. § 2310(d)(1) and (2) of the MMWA (Count IV); breach of implied warranty actionable under 15 U.S.C. §§ 2301(7), 2308, and 2310(d)(1) and (2) of the MMWA (Count V): violations of the MCPA (Count VI); breach of contract (Count VII); and rescission (Count VIII).

Defendants removed the action to federal court on September 19, 2003 based on federal question jurisdiction, 28 U.S.C. § 1331, arising from plaintiff's federal MMWA claims. On September 24, 2003, defendants filed a motion for summary judgment to enforce arbitration, and a separate motion for summary judgment going to the merits of plaintiff's claims. Plaintiff filed response briefs on October 14, 2003. Defendants filed subsequent reply briefs, and a hearing on the motions was held on November 20, 2003. On January 13, 2004, the court granted defendants' motion to file a supplemental brief. In turn, on January 21, 2004, the court granted plaintiff's motion to file a response to defendant's supplemental brief. The court denied defendants' motion to file a second supplemental brief on January 28, 2004.

II. Standard of Review

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith 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." See FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir.1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir.1992).

The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir.1994) (citing Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989)). Proffered evidence and all reasonable inferences arising therefrom must be construed in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Enertech Elec., Inc. v. Mahoning County Comm'r, 85 F.3d 257, 259 (6th Cir.1996); Wilson v. Stroh Co., Inc., 952 F.2d 942, 945 (6th Cir.1992). If the movant establishes by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir.1995). The nonmoving party cannot rest on its pleadings to avoid summary judgment, but must support its claims with probative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir.1996); Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993).

III. Proffered Documents

Plaintiff and GRVC signed a written sales agreement on September 6, 2002 stating a list price of $103,228.32 for the subject 2002 motor home, and a sale price of $85,100.00. Defendants' September 24, 2003 SJ2 Exhibit 6; Arb Exhibit 1. Above plaintiff's signature, the agreement reads "I HAVE READ THE TERMS ON THE BACK AND HAVE RECEIVED A COMPLETED COPY OF THIS AGREEMENT (SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS)." Id. The back of the September 6, 2002 document states in part:

ADDITIONAL TERMS AND CONDITIONS

1. DEFINITIONS

As used in this agreement, the terms (A) "Dealer" shall mean the person or company to whom this agreement is addressed and who shall become a party to this agreement by its acceptance. (B) "Purchaser" shall mean the party initiating this agreement as stated on the face of the agreement. (C) "Manufacturer" shall mean the corporation that manufactured the vehicle or chassis, it being understood by the Purchaser and Dealer that the Dealer is in no respect the agent of the Manufacturer. That the Dealer and the Purchaser are the sole parties to this agreement and that reference to the Manufacturer is for the purpose of explaining generally certain contractual relationships existing between the Dealer and the Manufacturer.

2. ARBITRATION CLAUSE

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE BREACH OF THIS AGREEMENT, THE SUBJECT OF THIS AGREEMENT, AND/OR THE RECREATIONAL VEHICLE SOLD PURSUANT TO THIS AGREEMENT, SHALL BE RESOLVED BY ARBITRATION ADMINISTERED BY THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN OAKLAND COUNTY, MICHIGAN, IN ACCORDANCE WITH ITS THEN CURRENT ARBITRATION RULES.

ARBITRATION SHALL BE THE EXCLUSIVE REMEDY OF THE PARTIES. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATION MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.

* * * * * *

12. FACTORY WARRANTY

Unless a separate written document containing the terms of a Dealer warranty is furnished by the Dealer to the Purchaser, any warranty on any new vehicle, motor home or recreational vehicle is provided only by the Manufacturer thereof. THE DEALER HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13. USED VEHICLE — WHETHER OR NOT SUBJECT TO MANUFACTURER'S WARRANTY

Unless a separate written document containing the terms of a Dealer warranty is furnished by the Dealer to the Purchaser, any used vehicle, motor home or recreational vehicle is sold "AS IS" WITHOUT ANY WARRANTY. THE DEALER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Id.

On September 13, 2002, plaintiff, as "Buyer," and GRVC, as "Seller," signed a "RETAIL INSTALLMENT CONTRACT, SECURITY AGREEMENT, AND DISCLOSURE STATEMENT" evidencing a total sales price of $226,435.60, to be paid at a monthly rate of $892.44 over 240 months. Plaintiff's Arb Exhibit A; SJ Exhibit A.3 On January 10, 2003, plaintiff applied for a seven-year/75,000 mile service contract with "Interstate Star RV." Defendants' September 24, 2003 SJ Exhibit 5. The service contract was signed by a representative of defendant GRVC. Id.

Defendant Damon's written warranty reads in part:

LIMITED WARRANTY

Damon Corporation ("Damon") warrants that this recreational vehicle ("RV" or "Vehicle"), when used for its intended purpose of recreational travel and camping, will be free from defects in...

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