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Carlisle v. Deere & Co.

August 7, 2009

STEVE CARLISLE, JOHN BUSZKIEWICZ, AND TEAM EXCAVATING, INC., INDIVIDUALLY AND D/B/A KLEAR KUT EXCAVATING, AND D/B/A KLEAR KUT EXCAVATING, INC., PLAINTIFFS-APPELLANTS,
v.
DEERE & COMPANY, D/B/A DEERE POWER SYSTEMS GROUP, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 06 CV 00710-James T. Moody, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED MAY 4, 2009

Before KANNE and EVANS, Circuit Judges, and DOW, District Judge.*fn1

The Beast, manufactured by Bandit Industries, Inc., is a commercial-grade tree grinder that weighs approximately 60,000 pounds and is the size of a semi-trailer. The Beast feeds on logs up to thirty-six inches in diameter, reducing them to mulch at a rate of up to one acre's clearance per day. In 2002, the plaintiffs, Steve Carlisle and John Buszkiewicz, purchased a Beast, equipped with a 12.5-liter John Deere engine, for use in their landscaping and excavating business. Carlisle and Buszkiewicz soon discovered, however, that their Beast lacked the muscle befitting its name. The machine failed to perform as advertised, and the two men sued John Deere, seeking payment under the terms of an engine warranty. The district court granted summary judgment in Deere's favor, a decision that we now affirm.

I. BACKGROUND

The Beast in this case was manufactured in 1999 and purchased by a third party, Kramer Tree Specialists. At its birth, the Beast contained a different engine than the one in the present dispute. In May 2000, Kramer Tree replaced the Beast's original engine with an engine manufactured by Deere; sold to a distributor, Superior Diesel; and installed in the Beast by West Side Tractor. Kramer Tree felt that the Beast underperformed with the new engine and later traded it to Vermeer Midwest, an industrial equipment supplier.

Enter Carlisle and Buszkiewicz. Together, the two men operated an excavating business under a variety of titles and organizational structures, including Klear Kut Mills, Inc.; Klear Kut Excavating, Inc.; and Team Excavating, Inc.*fn2 In June 2002, they purchased the Beast from Vermeer for $125,000, intending to grind the trees and brush they cleared in their business operations and sell the resulting mulch for profit.

According to Carlisle and Buszkiewicz, the Beast underperformed from the outset. They complained that the engine lacked power, ran rough, overheated, and bogged down under a load. They were forced to operate the machine much slower than they expected, and jobs that the men thought would take weeks took months. As a result of the Beast's poor bite, the duo claims to have suffered significant financial loss.

In hopes of improving the Beast's performance, Carlisle and Buszkiewicz, acting over a period of years, sought technical support from several industrial equipment companies, including Bandit, Vermeer, and West Side Tractor. In late 2004 or early 2005, Buszkiewicz spoke on the telephone with an employee at Superior Diesel, the engine distributor that had sold the Beast's replacement engine in 2000. The Superior Diesel employee instructed Buszkiewicz to inspect the Performance Programming Connector, or PPC, located in the Beast's control panel.

The PPC, which Deere also manufactures but sells separately from its engines, is the Beast's brain. The way the PPC is wired dictates the engine's performance by regulating both the engine's horsepower and its rotations per minute. A PPC is configured by inserting or omitting wires, as appropriate, into a ten-pin connection board that features five adjacent terminal pairs, arranged roughly as follows:

A K

B J

C H

D ...


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