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November 2, 2000


The opinion of the court was delivered by: Hart, District Judge.


In this action, plaintiff Bobby Jones claimed that a 1995 Pace Arrow motor home (the "Arrow") that he purchased from defendant Crystal Valley RV, Inc. was defective and was not timely and adequately repaired. Also named as defendants were Ford Motor Company and Fleetwood Motor Homes, the manufacturers of, respectively, the Arrow's chassis and coach. Both Fleetwood and Ford provided written warranties for their respective components of the Arrow. Following a partial grant of summary judgment, see Jones v. Fleetwood Motor Homes, 1999 WL 999784 (N.D.Ill. Oct. 29, 1999) ("Fleetwood I"), the counts that remained were: (I) breach of written warranty claim against Fleetwood pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; (III) Magnuson-Moss revocation of acceptance claim against Fleetwood; (IV) Magnuson-Moss revocation of acceptance claim against Crystal; (V) Magnuson-Moss implied warranty of merchantability claim against Crystal; and (VI) Magnuson-Moss breach of written warranty claim against Ford. As was set forth in Fleetwood I, 1999 WL 999784 at *2, the Count III and IV revocation claims were not truly separate counts, but were possible equitable relief that could be granted if plaintiff was successful on, respectively, Count I and Count V. Because such relief was equitable, it would be an issue for the court, not a jury.

Counts I, V, and VI were tried to a jury, with the issue of revocation reserved for the court in the event that plaintiff was successful on his claim against Fleetwood or Ford. Following the trial, the jury returned verdicts in favor of Crystal Valley and Ford, but against Fleetwood. The jury awarded $1,250 in damages for loss of use of the coach*fn1 and $3,750 in damages for related aggravation. The jury awarded no damages for diminished value of the coach or for incidental damages related to the coach.*fn2 Judgment was entered on the jury's verdict. Thereafter, Fleetwood timely moved for judgment as a matter of law. Plaintiff timely moved to amend the judgment to instead award him refund and rescission as relief. Additionally, plaintiff has moved for statutory attorney fees and costs as against Fleetwood. See 15 U.S.C. § 2310(d)(2). Fleetwood, pursuant to Fed. R.Civ.P. 68, and Crystal Valley, pursuant to Fed.R.Civ.P. 54, have moved for attorney fees and costs.*fn3

Fleetwood's Motion for Judgment as a Matter of Law

In deciding a post trial motion for judgment as a matter of law, the standard is whether the evidence presented, combined with all reasonable inferences permissibly drawn, is legally sufficient to support the verdict when viewed in the light most favorable to the nonmovant. Fed.R.Civ.P. 50(b); Mathur v. Board of Trustees of Southern Illinois University, 207 F.3d 938, 941 (7th Cir. 2000); Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998); Gagan v. American Cablevision, Inc., 77 F.3d 951, 960 (7th Cir. 1996). In other words, the test is whether no rational jury could have returned a verdict for the plaintiff. Mathur, 207 F.3d at 941; Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 630 (7th Cir. 1996). The court may not reweigh the evidence, resolve conflicts in the testimony against plaintiff, or override the jury's determinations as to the credibility of witnesses. Grassi v. Information Resources, Inc., 63 F.3d 596, 599 (7th Cir. 1995); Soto v. Adams Elevator Equipment Co., 941 F.2d 543, 549 (7th Cir. 1991); Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir. 1988).

The full written warranty*fn4 of Fleetwood, which manufactured the coach of the Arrow, provides: "Your new motor home, including the structure, plumbing, heating and electrical systems, and all appliances and equipment installed by the manufacturer, is warranted under normal use to be free from manufacturing defects in material or workmanship." The warranty was for one year or 15,000 miles, whichever came first. In large print, the warranty also states that it does not cover "transportation to and from dealer or manufacturing plant location, loss of time, inconvenience, commercial loss, loss of use, towing charges, bus fares, vehicle rental, incidental charges such as telephone calls or hotel bills, or other incidental or consequential damages."

As to the claim against Fleetwood, the jury was instructed that it had to find all of the following by a preponderance of the evidence: "(1) The Arrow's coach malfunctioned; (2) The malfunction was caused by a defect in the parts or workmanship of the Arrow's coach; (3) Plaintiff timely presented the Arrow to an authorized repair service with a request that the malfunction be repaired; (4) Fleetwood failed to repair or replace the parts in accordance with the warranty after a reasonable number of attempts; and (5) As a proximate result, plaintiff suffered economic damages." Fleetwood contends the fourth element was not proven because it was not shown that the repairs were not completed within a reasonable number of attempts.

Fleetwood points to the expert testimony that was presented at trial. It characterizes the testimony of plaintiff's expert as offering "the general `opinion,' based on his review of an unidentified portion of the repair documents, that [the Arrow] had undergone an excessive amount of repairs, but did not explain the basis for that opinion. He did not specifically opine that the coach had undergone an excessive amount of repairs." Fleetwood Motion for Judgment as a Matter of Law at 2. Fleetwood characterizes its own expert's testimony as being a more thorough analysis of the repair history and as stating the conclusion that all repairs were completed within a reasonable number of attempts. Plaintiff does not expressly disagree with Fleetwood's description of the expert testimony. Instead, plaintiff points to the repair history itself.

Plaintiff is correct that expert testimony was not required to prove that the repairs were not completed within a reasonable period of time. See Burrus v. Itek Corp., 46 Ill. App.3d 350, 4 Ill.Dec. 793, 360 N.E.2d 1168, 1171 (1977); Blake v. Federal Way Cycle Center, 40 Wn. App. 302, 698 P.2d 578, 581, review denied, 104 Wn.2d 1005 (1985). Whether the number of attempts to complete a repair was unreasonable is not an issue that necessarily requires expert testimony. An expert's testimony may be helpful in explaining the difficulties of completing a particular repair, but a jury does not necessarily need expert assistance in determining whether the number of attempts is unreasonable.

Construing the evidence in plaintiff's favor, it showed the following. Plaintiff purchased the Arrow on April 26, 1995. Twelve days later, repairs were attempted on the kitchen cabinet, fog lights, leveling jacks, radio, reading lights, driver's side window shades, passenger side window shades, rear monitor, and suspension. The Arrow was returned on May 18, but five days later, it was in for repairs to the leveling jacks, kitchen cabinet, reading light, and radio. On May 26, plaintiff again had the Arrow. On June 9, the Arrow was in for repairs to the generator, governor control, transfer switch, and electrical circuits. The Arrow was out of service until June 9. On June 19, the Arrow was in for repairs to the roof, compartment door, window valence, couch, duct work, shower faucet, front bumpers, antenna, and kitchen sink. That work was conducted until June 28. On July 31, the Arrow was back in for repairs to the roof, suspension, compartment door, couch, fog lights, entry step, right front window, front bumper, gas compartment, driver's door, and kitchen sink. This time, the Arrow was kept for four weeks. On November 10, the Arrow was in for repairs to the hydraulic jacks, entry step, engine battery, and driver's door. It was not returned until November 29. On March 27, 1996, repair work was done to the furnace. Although beyond the one-year warranty period, the generator was again repaired on April 30, 1996. A reasonable jury could find that Fleetwood did not make the repairs within a reasonable number of attempts. Fleetwood is not entitled to judgment as a matter of law based on failure to adequately prove the fourth element.

Fleetwood next contends that the fifth element is not satisfied because plaintiff failed to prove loss of use damages. There is no dispute that the evidence showed that the Arrow was unavailable for approximately 75 days while in the shop being repaired.*fn5 Fleetwood contends this is not sufficient. It contends that it must also be shown that the Arrow would have been used had it been available on those days. Fleetwood contends that plaintiff was never forced to cancel any planned trips or vacations and that the repairs were performed when the Arrow would otherwise have been in storage. The evidence, however, shows that repairs were performed in the spring, summer, and late fall. This is not necessarily times when the Arrow would have been in storage. Fleetwood also refers to testimony of plaintiff that he did not request a loaner because he did not need one. That testimony, however, refers to a three-day period from July 10 to 13 when chassis repairs were being done, not necessarily all repair periods. See March 6, 2000 Transcript of Cross Examination by Ray at 20. Fleetwood also points to testimony of plaintiff's wife that they had not taken vacations in the Arrow during the prior two or three years because they had bought a house and did not have the money for a vacation. That, however, refers to a time period subsequent to the warranty period. In any event, the jury instructions as to loss of use only required a showing that the Arrow was unavailable, not a showing as to how the Arrow would have been used if available or a showing that cover was instead obtained. Case law is in accord with the instruction. See Azimi v. Ford Motor Co., 977 F. Supp. 847, 853 (N.D.Ill. 1996) (consumer fraud act); First Chicago Gary-Wheaton Bank v. Gaughan, 275 Ill. App.3d 53, 211 Ill.Dec. 553, 655 N.E.2d 936, 942 (1995), appeal denied, 165 Ill.2d 549, 214 Ill.Dec. 858, 662 N.E.2d 424 (1996) (wrongful replevin); Gent v. Collinsville Volkswagen, Inc., 116 Ill. App.3d 496, 72 Ill.Dec. 62, 451 N.E.2d 1385, 1390 (1983) (consumer fraud act); Fairchild v. Keene, 93 Ill. App.3d 23, 48 Ill.Dec. 475, 416 N.E.2d 748, 749-50 (1981) (automobile accident); McCabe v. Chicago & N.W. Ry. Co., 215 Ill. App.? 99 (1919) (common carrier's delay in delivery). Plaintiff presented adequate proof of the fifth element.*fn6

Last, Fleetwood argues that plaintiff is not entitled to loss of use damages because its warranty excludes consequential damages. The warranty specifically includes loss of use as a type of consequential damages that is excluded. Plaintiff does not disagree with Fleetwood's contention that the exclusion was adequately conspicuous. Plaintiff, however, contends that the exclusion is not enforceable when, as here, the warranty fails of its essential purpose because timely and adequate repair work was not performed. The parties agree that, on this issue, Magnuson-Moss incorporates Illinois law. The question of enforceability of the exclusion is for the court.

Here, the warranty obligated Fleetwood (either directly or through the dealer, Crystal Valley) "to repair or replace any parts necessary to correct defects in material or workmanship." The jury found that Fleetwood failed to repair or replace the parts within a reasonable number of attempts. Where a seller or manufacturer fails to perform adequate repairs within a reasonable period of time, the warranty fails of its essential purpose. Intrastate Piping & Controls, Inc. v. Robert-James Sales, Inc., 315 Ill. App.3d 248, 248 Ill.Dec. 43, 733 N.E.2d 718, 725 (2000); Global Link Communications, Inc. v. Homisco, Inc., 1998 WL 774981 *5 (N.D.Ill. Oct. 27, 1998); Lefebvre Intergraphics, Inc. v. Sanden Machine Ltd., 946 F. Supp. 1358, 1370 (N.D.Ill. 1996). The verdict of the jury estops the court from reaching any finding other than that the repairs were not performed in a timely and adequate manner. See Melendez v. Illinois Bell Telephone Co., 79 F.3d 661, 669 (7th Cir. 1996); McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992), cert. denied, 507 U.S. 915, 113 S.Ct. 1270, 122 L.Ed.2d 665 (1993); Snider v. Consolidation Coal Co., 973 F.2d 555, 559 (7th Cir. 1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 981, 122 L.Ed.2d 134 (1993). It must be found that the warranty failed of its essential purpose.

Absent subsequent Illinois case law to the contrary, this court is bound to follow the Seventh Circuit's construction of Illinois law. Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986); Brusilovsky v. Figgie International, 1995 WL 330809 *4 (N.D.Ill. May 30, 1995). Most recently, in Smith v. Navistar International Transportation Corp., 957 F.2d 1439, 1443-44 (7th Cir. 1992), the Seventh Circuit held that a warranty failing of its essential purpose does not automatically invalidate a damages limitation contained in the warranty. See also AES Technology Systems, Inc. v. Coherent Radiation, 583 F.2d 933, 941 (7th Cir. 1978); Global Link, 1998 WL 774981 at *5-6. The parties do not cite and this court has not found any subsequent Illinois case law to the contrary. Smith will be followed.

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