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Powell v. Airstream, Inc.

Court of Appeals of Ohio, Third District, Shelby

July 29, 2019

DAVID POWELL, PLAINTIFF-APPELLANT,
v.
AIRSTREAM, INC., DEFENDANT-APPELLEE.

          Appeal from Shelby County Common Pleas Court Trial Court No. 17CV000145.

          Elizabeth Ahern Wells for Appellant.

          James L. Thieman and Cameron C. Downer for Appellee.

          OPINION

          WILLAMOWSKI, J.

         {¶1} Plaintiff-appellant David Powell ("Powell") brings this appeal from the judgment of the Court of Common Pleas of Shelby County granting summary judgment to defendant-appellee Airstream, Inc. ("Airstream"). For the reasons set forth below, the judgment is affirmed.

         {¶2} On June 12, 2016, Powell purchased a new 2016 Airstream Flying Cloud RV ("the RV") that was built and warranted by Airstream in Jackson Center, Ohio. Doc. 1. Powell purchased the RV from Airstream Adventures ("AA") in Covington, Washington. Id. Soon after the purchase, the RV allegedly began to have several issues and spent a significant amount of time being repaired. Id. Powell lost confidence in the vehicle and filed a complaint with a jury demand in Shelby County, Ohio on July 19, 2017. Id. In the complaint, Powell alleged that Airstream had breached the express warranties, breached the contract, violated the Magnuson-Moss Warranty Act, and violated the Washington Consumer Protection Act ("WCPA"). Id. On August 24, 2017, Airstream filed its answer denying the alleged violations and raising several defenses including lack of privity of contract, limitation of damages, and failure of conditions precedent. Doc. 7.

         {¶3} On April 19, 2018, Airstream filed a motion for summary judgment. Doc. 23. Airstream claimed that without privity of contract, the implied warranty and breach of contract claims must fail. Id. Airstream further asserted that the breach of the express warranties and violations of the Magnuson-Moss act must also fail because Airstream complied with the warranties by complying with the Repair Remedy. Id. Airstream also alleges that Powell failed to exhaust his remedies by not complying with the "Back-Up Remedy". Id. Finally, Airstream claimed that the WCPA claim fails because there was no underlying statutory violation or a public interest to support the claim. Id. Powell filed his memorandum in opposition to the motion on May 23, 2018. Doc. 37. Airstream then filed its reply to the memorandum on June 19, 2018. Doc. 45. On October 1, 2018, the trial court granted Airstream's motion for summary judgment. Doc. 95. Powell filed a timely notice of appeal from this judgment. Doc. 101. On appeal, Powell raises one assignment of error.

         The trial court erred when it granted Airstream's motion for summary judgment on all claims.

         {¶4} The sole assignment of error in this case raises the question as to whether the lower court erred in granting summary judgment.

An appellate court reviews a trial court's summary judgment decision de novo, independently and without deference to the trial court's decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 8. Summary judgment is appropriate only "when the requirements of Civ.R. 56(C) are met." Adkins v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The party moving for summary judgment must establish: (1) that there are no genuine issues of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. In ruling on a motion for summary judgment, a court may not "weigh evidence or choose among reasonable inferences * * *." Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court must consider the above standard while construing all evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.
The party moving for summary judgment must identify the basis of the motion to allow the non-movant a "meaningful opportunity to respond." Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d 798. In its motion, the moving party "must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C)." Id. at 115, 526 N.E.2d 798, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 196 N.E.2d 781; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a "reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *." Dresher, at 294, 662 N.E.2d 264.

Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶21-22. This court notes that the parties agree that Washington law applies to the substantive arguments. As the standard of review is de novo, we will review whether reasonable minds could reasonably reach a verdict in favor of Powell based upon the claims set forth in the complaint.

         {¶5} A review of the repair records for this RV provided as exhibits for Powell's memorandum contra the motion for summary judgment show the following history of repairs. See Doc. 27, Ex. 8, 10, and 11. Prior to the delivery of the vehicle, AA conducted a pre-delivery inspection report and repaired or noted issues found. See also Lamb Dep. at 32. The inspection noted eight issues: 1) rock dings on the rock guard, 2) a rivet missing about the entry door, 3) chips in bedroom closet door, 4) gaps in the sealant in various locations, 5) a scratch in the wall by the bathroom door, 6) a scratch on the range cover, 7) a noisy bathroom fan, and 8) a small divot in the linoleum at the entrance. The records produced by Powell indicate that new rock guards were ordered, the missing rivet was replaced, the chips in the bedroom door were repaired, the areas missing sealant were resealed, the scratch on the range cover was removed and repolished, and the bathroom fan was adjusted to run properly. The scratch on the wall and the divot in the linoleum had no noted repairs.[1] Powell was notified on June 20, 2016, that the vehicle was ready for pickup.

         {¶6} On July 21, 2016, Powell's son Dan and sister-in-law Teresa (collectively known as "the customers"), who were the ones using the RV, took the vehicle to George Sutton RV ("Sutton") claiming six alleged issues: 1) the Velcro was pulling off the seat cushions, 2) the dinette table was not releasing from the brackets, 3) the Sothco had pulled out of the cabinet door below the stove, 4) the shower leaked at the bottom of the door when used, 5) the USB port was pushed in at the bedroom cabinet, and 6) the rear awning arm was hard to retract. Sutton aligned the tabs on the dinette table so that it worked properly, replaced a stripped screw on the cabinet door to resolve the second and third issue. The shower was repaired by replacing the wipe seal. Upon testing, there was no more leak. Nothing was done about the cushion, the USB ports, or the awning at that time and the RV was returned to Dan and Teresa that same day. On July 27, 2016, the customers returned to AA to have these issues resolved. AA replaced the USB port and adjusted the awning arm to function smoothly. AA also requested approval from Airstream to replace the cushions. The vehicle remained with AA for two days.

         {¶7} On August 29, 2016, the customers brought the RV back to AA with three new complaints: 1) water was pooling in the corner of the shower cabinet when attached to city water; 2) the shower door was leaking again, and 3) a drawer in the bedroom opened in transit. The customers also requested that a multi-point inspection ("MPI") be completed and requested a status check on the replacement of the cushions. The water in the shower cabinet was caused by a loose fitting at the water pump, which went away when tightened. The shower door was leaking because the frame and threshold were not square. AA sought to fix this issue by ordering replacements. The drawer issue was resolved by replacing the 5 lb. latch with a heavy duty 10 lb. latch. The status check on the cushions showed that replacements had been approved and ordered. The MPI showed that 1) a 30 amp inlet LED light[2] was not working, 2) the bathroom fan was rattling, 3) the shower fan was hitting the housing, 4) the deadbolt was loose in the door, 5) the screen door gasket was torn in the corner, 6) the screen door latch was hitting the frame, and 7) a rivet head had popped off by the entry door during transit. AA resolved these issues by replacing the bad outlet, moving wires to resolve the noisy bathroom fan, replacing a missing screw in the shower fan allowing it to function as designed, tightening the screws in the deadbolt to allow it function as designed, removing the torn gasket on the screen door and replacing it with a new one, realigning the screen door to allow it to function properly, and drilling out the old rivet to replace it with a new one. The time out for these repairs is not clear from the record, but part of the time also included the installation of a satellite dish per the request of the customers.

         {¶8} On October 3, 2016, the customers returned the RV to AA to allow AA to install the new shower assembly and to replace the covers on the cushions. An MPI was completed at that time as well, which showed that the bolt nuts on the rock guard were stripped. AA remedied this problem by replacing the bracket and riveting it into place. The customers also complained that the bedroom drawer would still open during transit and that the toilet was leaking at its base. AA's inspection showed that the drawer was functioning as designed. AA could not reproduce the leak at the base of the toilet and saw no issues, so no repair was attempted at that time. The RV was undergoing repairs for seven days this time.

         {¶9} On November 18, 2016, a tree branch came down on the RV causing damage to it. The customers took the RV to AA on December 3, 2016, to have an estimate done for the cost of repairs and presented a lengthy list of issues with the RV that they believed to be covered by the warranty. This list included the following issues: 1) the deadbolt was loose, 2) USB port had no power, 3) ceiling covers falling off, 4) hinge on wardrobe door pops off, 5) toilet won't hold water, 6) no warm air in front vents, 7) beds not level, 8) 30 amp outlet LED lights not working, 9) burners on stove will not light, 10) cabinet door by DVD player was hard to open, 11) refrigerator seal falling off, 12) a rivet was pulled down in the bathroom ceiling, 13) the entry door was leaking on the interior side of the door, 14) the fantastic fan[3] was not working, and 15) the entry door was hard to open and close. Over six days, AA repaired the problems by 1) tightening the screws in the deadbolt and verifying it was functioning; 2) replacing the bad USB port; 3) replacing all the vent covers with new ones and verifying that they snapped into place tightly; 4) resetting the hinges on the wardrobe door and screwing them into place; 5) removing and replacing the bowl seal on the toilet; 6) installing additional supports to the bed frame to level the mattresses; 7) replacing the 30 amp outlet lights on both receptacles and testing to make sure they were functioning; 8) replacing the left rear wire to the stove burners and testing to insure they were functioning properly; 9) resetting the screws in the cabinet door to allow it to open and close correctly; 10) realigning the refrigerator seal and refastening it into the proper place; 11) drilling out the damaged rivet and installing a new one; 12) cleaning and resealing around the entry handle where it was leaking; 13) securing the ground switch to the fantastic fan to allow it to function properly; and 14) shimming the door frame catch out with a washer to allow it to function correctly. AA was not able to resolve the furnace problem because the same air flow was coming out of the front and rear vents, so the problem could not be replicated. Additionally, during the time the RV was there, AA performed an MPI, winterized the vehicle and installed a customer supplied vent fan in the bathroom as well as completing the insurance estimate.

         {¶10} On December 13, 2016, the customers returned the RV to AA due to water pooling in the shower and a drawer opening in the bedroom during transit. The water issue was found to be caused by a loose fitting behind the wall. The fitting was tightened and no leaks were found when tested under pressure. The 5 lb. drawer catch was replaced with a 10 lb. drawer catch to remedy the problem. At that same time, another MPI was conducted and revealed more issues: 1) a 30 amp inlet light was not working; 2)the bathroom fan was rattling when it hit wires; 3) the deadbolt needed tightened; 4) the screen door gasket was torn and the door was not closing correctly; and 5) a rivet head had popped off in transit. The inlet light was removed and replaced, the wires in the fan were moved out of the way and secured to not interfere with the function of the fan, the deadbolt was tightened, the damaged seal on the screen door was removed and a new one installed, the screen door was realigned, and the old rivet was removed and a new one was installed. This was completed on that same date.

         (¶11) On January 5, 2017, the customers brought in the RV for repairs due to the damage from the tree branch. In addition to those repairs, the customers informed AA that 1) water was coming in the dinette window, 2) air was coming in the bedroom window and there was a water stain on the curtain, 3) the left rear burner on the stove would not light, 4) the grey and black valves were sticking, 5) a blind clip had cracked, and 6) weather stripping was coming off the entry door. The first two issues were resolved by tightening the latch to provide a better seal and checking the sealants. AA noted that there was a condensation issue in the trailer due to improper venting. AA fixed the stove by tightening the burner springs for better contact. Valve lube was added to the sticking valves. The damaged blind was removed and replaced with a new one. The weather stripping coming off the entry door was removed and replaced with new. Although the repair records do not indicate how long these repairs, as well as the accident damage, took, Powell claims that the RV was returned to them on January 12 for seven days.

         {¶12} On January 19, 2017, a repair order was created indicating that the shower fan and the fantastic fan were inoperable. AA replaced the motor in the shower fan allowing it to work correctly. The fantastic fan was not inoperable, but the issue was the result of user error, so proper use was explained to the customers. This took one day.

         {¶13} On January 26, 2017, the RV was brought in to AA due to a claim that the toilet was leaking at the base. AA replaced the valve and no leak was found at that time. The RV was returned that same day. Later, AA received a call from the customers indicating that it was leaking again. AA sent a technician to the customers' location. The technician then replaced the toilet. On February 10, 2017, AA was notified that the furnace was inoperable. When checked by AA, the furnace seemed to be working properly. The outside temperature was 47, but the inside temperature was 75. This also took one day.

         {¶14} On February 15, 2017, the customers brought in the RV and claimed that 1) the furnace was not putting out hot air, 2) the toilet was not getting water, and 3) the toilet was leaking. They also requested that an MPI be performed. The MPI showed that the RV was in good working order. The furnace was fixed by the installation of a new ignitor board and sail switch. The toilet began to receive water once the valve was properly seated. The toilet was not the source of the water leak, but AA found the leak was coming from a fitting on the inlet side of the water heater. AA fixed this problem by installing a new cone washer. All of this was done in one day.

         {¶15} On April 28, 2017, the customers brought in the RV claiming that 1) the 30 amp LED light was not working, 2) a light switch was pushed in, 3) the bathroom fan was rubbing on the housing, 4) the refrigerator light was inoperable, 5) there was a squeak in the floor between the beds at the rear of the RV, 6) the water heater was leaking again, and 7) the black tank would not zero out when dumped. The plugs with the 30 amp LED lights were removed and replaced. The light switch and the housing was removed and replaced. The bathroom fan was removed and a new fan was installed with new set screws to allow it to function properly. The refrigerator light was working properly, the bulb just needed replaced. The squeak in the floor was noted, but no issue was found. The leak at the water heater was a drip at the city fill inlet, which was replaced. The sensor in the black tank needed cleaning. This was all completed within a day or two.

         {¶16} On June 7, 2017, the customers brought in the RV and requested and MPI be completed. The Customers alleged the following complaints: 1) the mattress was moldy, 2) the floor squeaked, 3) the toilet was not getting or retaining water, 4) the bedroom window was hard to open, 5) the window in the dining area would not pull in all the way, 6) the air conditioning was not cold enough, 7) the license plate light was loose, 8) the kitchen floor area was soft, 9) the latch cap had come off the cabinet door under the bed, 10) the molding trim was loose in the bedroom, 11) the entry door latch was hard to open, and 12) the furnace was inoperable. The mattress was replaced by Airstream at no cost. The squeaky floor and the alleged soft area in the floor of the kitchen were checked, but no problem was found. The toilet was replaced and tested to insure the new one was working. A check of the bedroom window showed the brackets were too low, so they were moved up ¼ inch and then worked correctly. The window in the dining room had a broken latch, so the latches on all the windows in the dining area were replaced so they would match. The air conditioning system was checked and found to be working as designed. The connections on the license plate light were tightened. A new latch cap was installed on the cabinet door. The molding trim was glued to the wall and new seam trim was installed. The door latch was corrected by lubing the lock and latch assembly. The furnace could not be repaired at that time because the issue was a bad board and a replacement had to be ordered. The repair records of AA show that the repairs, except for the furnace, were completed in one day.

         {¶17} On August 2, 2017, the customers brought the RV back to AA to complete the repair on the furnace and the toilet, which was not filling with water. On that day, the bad board on the furnace was replaced and the air gap on the ignitor was adjusted to allow the furnace to function correctly. The toilet was repaired. AA's records show that the customers were notified it was ready after one day, however the customers did not pick up the RV until October.

         Breach of Warranties

         {¶18} The first claim in the complaint alleges that Airstream breached the manufacturer's warranties. Powell claims that Airstream violated not only the ...


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