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August 2, 2001


The opinion of the court was delivered by: Elaine E. Bucklo, U.S. District Judge.


Roadmaster Corp. ("Roadmaster") sued General Electric Co. ("GE") for breach of contract (Count I) and breach of express and implied warranties (Counts II, III, and IV) arising out of the failure of GE motors that Roadmaster used in its treadmills.*fn1 GE moves for summary judgment on all four counts. The motion is granted in part and denied in part.


In the 1990s, Roadmaster was one of the leading manufacturers of exercise treadmills. Beginning in 1993, it tested GE drive-systems for its treadmills, which consisted of a 2.0 horsepower electric motor ("motor"), an electric controller and a fan system. The motor passed Roadmaster's internal qualification testing in August 1993, and Roadmaster submitted its first purchase order for the motor to GE in October 1993. Roadmaster installed the motors in its treadmills, and in early 1994 it began to receive reports that some treadmills would "runaway" (the parties' term), or accelerate to top speed without warning. PX 61 (customer complaints from 1/20/1994 to 4/13/1994).*fn2 During March and April, Roadmaster also received customer reports of another problem with the GE motors: they were overheating, smoking, spitting out plastic chips, and emitting a burning odor; one customer said she was afraid it would catch fire. GE produces five customer complaints that were marked as an exhibit at the deposition of Robert Bennett, Roadmaster's customer service manager. Four of the five reports contain no mention of any "runaway" related problem; one mentions that the motor raced up before it smoked and shorted out. Mr. Bennett said that these five reports were "typical complaints" of those received in early 1994, and although he could give no total number of complaints, he thought there were more than these five. DX 9 at 169-70.*fn3 In May and August, Roadmaster received two reports of treadmill fires. DX 45, 46. Roadmaster continued to test the motor throughout 1994, and two tests in June and July show motor temperatures exceeding 160° Celsius when the motor was run between eight and 10.6 amps. DX 35A-B, 77.

GE redesigned the controller (increasing the amps from 10 to 16) in September 1994 to correct the "runaway" problem, but the motor design did not change. In late December 1994, Roadmaster received reports of "shorted armatures and melted brush holders's in treadmills with GE motors, and two damaged motors were sent to Brook Compton, the British manufacturer, by a GE temporary employee. PX 30. GE investigated, and on January 12, 1995, told Roadmaster that some of the motors had been manufactured by its vendor, Brook Compton, with brushes of an incorrect grade of resistance (European 220 volts instead of American 120 volts). Roadmaster recalled the treadmills with incorrect brushes. On February 13, 1995, Roadmaster told GE that there was a `non-brush related" problem with the motors overheating and failing at 4 miles per hour and 9 amps. A GE engineer said that "[t]he failed motors appear to be totally roasted with blackened windings." PX 69. Roadmaster says that the first reports of GE motor fires came to its attention in "early 1995" (12/14/2000 declaration of Bill Hebb) or "approximately January 1995" (12/13/2000 declaration of Charles Sanders); Roadmaster's earliest customer claim file in this case refers to a fire on January 6, 1995. Roadmaster claims that the motors were defective, unfit for use in treadmills, and non-merchantable.


Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). I must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In this diversity action, I apply Illinois substantive law. Lexington Ins. Co. v. Rugg & Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999)


"A plaintiff may not amend [its] complaint through arguments in [its) brief in opposition to a motion for summary judgment." Insolia v. Philip Morris, Inc., 216 F.3d 596, 606 (7th Cir. 2000). Although a complaint cannot be dismissed because the plaintiff has failed to identify a theory, or indeed, has identified the wrong theory, Daniels v. USS Agri-Chemicals, 965 F.2d 376, 381 (7th Cir. 1992), the plaintiff must commit to a theory of the case at some point, see Sanders v. Venture Stores, Inc., 56 F.3d 771, 774 (7th Cir. 1995). A change of theories at the summary judgment stage is not allowed because, ordinarily, discovery has been completed, and an eleventh hour change of theory would waste judicial resources and the resources of the parties.

Roadmaster's amended complaint alleges that GE sold "components for drive-systems" and that the "components consisted of controllers and 2.0 horsepower DC electric motors (the `GE Motors')." In the next sentence, the controller and "GE Motors" are referred to separately, and all other allegations refer only to the "GE Motor." From this it is unclear whether "GE Motors" refers only to the 2.0 horsepower motors or to both the motor and controller.*fn4 In response to GE's motion for summary judgment, Roadmaster argues that it is not just the motors, but the entire "modified drive system, delivered in September 1994, that Roadmaster contends was defective." It would be unfair to allow a defendant to define the plaintiff's theory of the case by seizing on an ambiguity in the complaint, and, after the plaintiff clarifies the ambiguity in response to summary judgment, claim that the plaintiff had "changed" its theory, but this is not such a case.

There is no dispute that GE sold the entire drive-system, including the motor and the controller, to Roadmaster. The question is whether the alleged defect or breach that is the subject of the complaint is in the entire drive-system, consisting of the motor and the controller, as modified in September 1994, or just the motor, without the controller. A "motor only" theory is supported by the reference to the controller and "GE Motor" in the sentence immediately following the definition of the "GE Motor"; if the term as defined included the controller, no separate reference would have been necessary. In addition, the complaint makes no reference to modifications to the controller or drive-system by GE in September 1994, so the complaint gives no notice of the actions that Roadmaster now alleges are the basis of its claims. Moreover, the "representative example of the purchase order issued" that Roadmaster attached to the amended complaint is dated January 1994 and lists only the motor, not the controller or any other part of the drive-system. A party is entitled to plead theories of liability in the alternative, but the alternative must at least be apparent from the complaint. On its face, Roadmaster's amended complaint does not support its new theory.

Moreover, the opinions of Roadmaster's experts do not support a controller theory. Roadmaster's experts refer to the motor and control separately: Mr. Schram and Mr. Kabler*fn5 identify the allegedly defective motor (not the entire drive-system) by part number (the motor and controller have discrete part numbers), and neither mentions the September 1994 changes to the controller. Mr. Schram never mentions the controller as the source of the problem, but instead opines that there were two problems with the motor: (1) several of the motors manufactured by Brooks Compton in the United Kingdom contained incorrect brushes that caused increased resistance and motor heat; and (2) the motor, even properly manufactured, could not perform to its specifications and was not suitable for use in Roadmaster's treadmills.

Mr. Potter's report is titled "Opinion and Report of Suitability of G.E. 2HP Motor and Control System for the Roadmaster 10MPH Treadmill," and in it he mentions the redesign of the controller, but says that the motor was defective because (1) some were fitted with incorrect brushes; (2) the motor had an "open design" that allowed flames to pass out of the motor and spread; and (3) even with the correct brushes, the motor ran too hot and burned out even at 7 amps (below GE's rating of 9 amps). He says that the "major cause of the fires and extensive damage" was the use of incorrect brushes. Mr. Potter says that the problem with the brushes would never have occurred if the original controller had not been designed with an insufficient triac (a part of the controller), but he does not explain how the brushes in the motor, which was not redesigned, have anything to do with the redesign of the controller to correct the "runaway" problem. He also says that the "runaways" that ...

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