Free Statement - District Court of Arizona - Arizona

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THE CAVANAGH LAW FIRM
A Professional Association 1850 NORTH CENTRAL AVENUE SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Kerry M. Griggs, SBN 016519 [email protected] Patrick G. Rowe, SBN 018591 [email protected] Attorneys for Defendant Fleetwood Motor Homes of California, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT, Plaintiff, NO. CIV 04-0161-PHX-ROS DEFENDANT FLEETWOOD'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC., and WORKHORSE CUSTOM CHASSIS, LLC, (Oral argument requested) Defendants. Defendant Fleetwood Motor Homes of California, Inc. ("Fleetwood"), by and through undersigned counsel and pursuant to Rule 56 of the Federal Rules of Civil Procedure, hereby files its Separate Statement of Facts in Support of its Motion for Summary Judgment. Incorporated herein by reference is Fleetwood's Motion for Summary Judgment, filed contemporaneously herewith. 1. On approximately March 27, 2003, Plaintiff purchased a 2003 Fleetwood

Pace Arrow 37A motor home (the "motor home") from Michael Hohl RV Center in Carson City, Nevada. See Purchase Contract, attached hereto as Exhibit 1. The total cash sales price of the vehicle was $115,243.75 ($110,263.75 without the third-party extended service contract). Plaintiff was given a credit of $13,617.00 for trading in a 2000 GMC Yukon,
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and making a $2,000 cash down payment. The amount financed was $101,626.75 at an annual percentage rate of 5.99%. Id. If Plaintiff were to make all of her payments under the sales contract, she would have paid $174,697.60. Id. Including financing charges and interest, the total price of the motor home was $188,214.60. Id. 2. In the Amended Complaint, Plaintiff alleges breach of express warranty,

breach of common law implied warranty of merchantability, breach of common law implied warranty of fitness for a particular purpose, breach of common law implied warranty of habitability and workmanship, violation of 16 C.F.R. §§ 700.5, 701.3, 700.4, 702.3, and violation of Title 15 U.S.C. § 2302 due to alleged defects in the motor home. Additionally, Plaintiff seeks punitive damages against Defendant Fleetwood. generally, Plaintiff's Amended Complaint. 3. Plaintiff alleges that she is entitled to bring suit for an award of diminution in See,

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value damages, any equitable relief to which he may be entitled, damages for aggravation and inconvenience and loss of use of the motor home, punitive damages for Fleetwood's "deceptive actions," that all of the disclaimers in Fleetwood's Limited Warranty be stricken, and all attorney's fees, expert fees, court costs, and any other relief deemed just and appropriate. Id. 4. In the Amended Complaint, Plaintiff alleges the following defects regarding · · · · · · · · · · · · ·
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the motor home: Defective interior trim Defective exterior trim Defective steering/suspension Defective electrical system Defective bathroom door Persistent water leak Defective cabinet door Persistent dying in flight condition Persistent stalling condition Defective shower stall Defective closet door Defective air conditioning compressor Defective fuel tank 2
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Defective fuel pump Defective generator hose Defective serpentine belt Defective belt tensioner

See Plaintiff's Amended Complaint, at ¶ 10. 5. At her deposition, the primary reasons Plaintiff gave for her decision to

purchase the Pace Arrow were that she loved to travel, was moving across the country, liked the layout of the interior, and liked the fact that it was within her budget price. See Deposition of Lane Sennett, dated September 14, 2004, at pp. 13:7­14:13. Relevant portions of L. Sennett's deposition transcript are collectively attached hereto as Exhibit 2. At no point did Ms. Sennett state that she purchased the motor home because of the warranty. In fact, it was the sales person at Michael Hohl RV Center, "either Don or Hank," who pointed out the warranty to Ms. Sennett. Ms. Sennett never asked to see the warranty. Id., at 22:24­23:17. 6 In terms of research conducted before the purchase of the motor home, Ms.

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Sennett reviewed brochures for the 2003 Pace Arrow, but primarily researched the motor home on the Fleetwood web site. See Exhibit 2, at 20:22­23:10. 7. Plaintiff and her husband, Mr. Lonnie Sennett, took the motor home on a 30-

minute test drive prior to purchasing it. See Exhibit 2, at 19:15­20:3. 8. Mr. and Mrs. Sennett were informed of the Fleetwood warranty by salesmen

at the dealership. See Exhibit 2, at 22:24­26:21. Mrs. Sennett states that she was told by the salesmen that the motor home had a "bumper-to-bumper" warranty. Id. They did not ask to see the terms of the warranty. Id. They did not ask to have the benefits or limitations of the warranty explained to them. Id. Mrs. Sennett testified at her deposition that she did not look at the warranty for her motor home until after they began experiencing alleged performance problems with the motor home. Id.

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9.

At her deposition, Plaintiff acknowledged that she had not owned a

recreational vehicle (RV) or motor home prior to ownership of the subject motor home. See Exhibit 2, at p. 11:22-25. Additionally, Plaintiff acknowledged that she is not a mechanic, electrician, or an RV dealer and has no training in RV repair. Id. at p. 28:9-12; 47:14-16; 61:19-23. 10. Fleetwood manufactured the coach portion of the vehicle (essentially the

living quarters on top of the self-propelled chassis). Fleetwood provided a Limited OneYear/Three-Year Warranty for the coach. See Limited One-Year/Three Year Warranty, attached hereto as Exhibit 3. The Fleetwood limited warranty period for all defects (other than structural) is for one year "or until the unit has received 15,000 total miles of use as determined by the mileage shown on the odometer (whichever occurs first)." Id., section titled "COVERAGE PROVIDED." The warranty period for structural defects (limited to the roof structure, sub-floor structure, exterior walls, interior walls and ceilings) is three years. Id. 11. Under Fleetwood's Limited Warranty, Fleetwood states that it "will repair or

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replace any parts necessary to correct defects in material or workmanship or will take other appropriate action as may be required". See Exhibit 3, section titled

"MANUFACTURER'S OBLIGATIONS." It does not state that the dealer or Fleetwood will conduct repairs within a certain time period or number of opportunities. Id., at sections titled DEALER'S OBLIGATIONS and MANUFACTURER'S OBLIGATIONS. 12. Fleetwood's Limited Warranty expressly excludes from coverage "loss of

time, inconvenience, loss of use, vehicle rental, or other incidental or consequential damages." See Exhibit 3, at section titled "WHAT IS NOT COVERED BY THIS WARRANTY." 13. Fleetwood's Limited Warranty expressly excludes from coverage the

automotive chassis system (including the chassis and drive train), tires and batteries, which
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are covered by the separate warranties of the respective manufacturers of these components. See Exhibit 3, at section titled "WHAT IS NOT COVERED BY THIS WARRANTY." 14. Defendant Workhorse Custom Chassis ("Workhorse") manufactured the See

chassis of the motor home and provided a limited warranty for the chassis.

Workhorse's Limited Warranty, relevant portions of which are attached hereto as Exhibit 4.

15.

The chassis is essentially the frame, axle, engine, transmission, brakes,

steering, suspension, and certain electrical components. See Exhibit 4, at pp. 325, 327 (chassis diagram). 16. The Workhorse warranty "covers repairs to correct any chassis defect related

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to materials or workmanship occurring during the Warranty Period." Chassis coverage includes the chassis frame, axle, engine, transmission, brakes, steering, suspension, and certain electrical components for 3 years or 36,000 miles. See Exhibit 4, at p. 328. 17. A review of the Workhorse Sales Corp Warranty VIN Repair History

indicates that Workhorse has provided several repairs to the chassis of the vehicle including: fuel filter replacement, engine stalling issues, fuel pump replacement, generator hose issues caused by fuel tank issues, air conditioning compressors replacement, reinstallation of radiator wind shroud in spring clips, and replacing the belt tensioner and belt. See Workhorse Sale Corp Warranty VIN Repair History, at Bates Label Sennett 0071­0073, attached hereto as Exhibit 5. 18. None of the issues addressed by the Workhorse Sales Warranty Corp VIN

Repair History are subject to Fleetwood's Limited Warranty. Rather, all of these items are subject to coverage under the Workhorse Chassis Warranty. See Exhibits 4 and 5. 19. The Fleetwood limited written warranty applicable to the motor home is

contained in the Owner's Manual, which Ms. Sennett acknowledges she had possession of
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as a part of the ownership documentation that she was given. See Exhibit 2, at pp. 25:23­ 26:1. Fleetwood's Limited One-Year/Three-Year Warranty contains the following, among other things: COVERAGE PROVIDED Your new motor home, including the structure, plumbing, heating and electrical systems, all appliances and equipment installed by the manufacturer, is warranted under normal use to be free from manufacturing defects in material or workmanship. Appearance imperfections, or damage to paint, graphics, exterior materials, or upholstery that may have occurred prior to delivery are normally corrected during the inspection process at the manufacturing plant or at the dealership. The warranty extends to the first retail purchaser and his transferee(s) and begins on the date of original retail delivery or the date the motor home is first placed into service as a rental, commercial or demonstrator unit (whichever occurs first). The warranty extends for the following periods: 1. For all defects (other than structural) the warranty extends for a period of one year from such date or until the unit has received 15,000 total miles of use as determined by the mileage shown on the odometer (whichever occurs first). For structural defects, 3 years; structural defects are limited to the following: roof structure, sub-floor structure, exterior walls, interior walls and ceilings.

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2.

Written notice of defects must be given to the selling dealer or manufacturer not later than ten (10) days after the expiration of the warranty period. *** OWNER'S OBLIGATIONS *** If a problem occurs which the owner believes is covered by this warranty, the owner shall contact the selling dealer, or the Fleetwood Service Center, giving sufficient information to resolve the matter. The owner shall deliver the motor home to the dealer or the Fleetwood Service Center location for warranty service. 6
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*** MANUFACTURER'S OBLIGATIONS Upon receipt of notice of a claim, where the dealer was unable or unwilling to resolve the problem, the Fleetwood Service Center will repair or replace any parts necessary to correct defects in material or workmanship or will take other appropriate action as may be required. *** WHAT IS NOT COVERED BY THIS WARRANTY This warranty does not cover: 1. The automotive chassis system (including the chassis and drive train), tires and batteries, which are covered by the separate warranties of the respective manufacturers of these components. Defects caused by or related to: a. b. c. d. 3. 4. 5. 6. Abuse, misuse, negligence or accident; Failure to comply with instructions contained in the Owner's Information Package; Alteration or modification of the motor home; Environmental conditions (salt, hail, chemicals in the atmosphere, etc.)

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2.

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Normal deterioration due to wear or exposure, such as fading of fabrics or drapes, carpet wear, etc. Normal maintenance and service items, such as light bulbs, fuses, wiper blades, lubricants, etc. Motor homes on which the odometer reading has been altered. Transportation to and from dealer or Fleetwood Service Center 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.

See Exhibit 3.

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20.

Plaintiff alleges that on April 30, 2003, the Pace Arrow was brought to

Geweke RV Center in Lodi, California, for service on numerous problems and that she did not pick the vehicle up until May 15, 2003. See "Time Line of Events", prepared by Plaintiff, attached hereto as Exhibit 6 (which was Exhibit 10 to Plaintiff's Deposition); see also, Exhibit 2, at pp. 50:25­51:20 (wherein Plaintiff confirms that she prepared this document). 21. Fleetwood, or one of its dealers, has adequately repaired several of Plaintiff's

alleged defects. Fleetwood repaired the defective mud flap (exterior trim). Id. at pp. 57:18­59:1. 22. 23. The exterior light system has been adequately repaired. Id. at pp. 62:7-21. The windshield wipers, which Plaintiff alleges would not turn off, have been

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adequately repaired. Id. at pp. 67:20­68:19. 24. The shower stall has been adequately repaired, as the bubble that was on the

floor of the shower was replaced at Dick Gore's RV in Jacksonville, Florida, without any further difficulties. Id. at pp. 74:17­75:17. 25. Regarding the bedroom slide-out, Dick Gore's RV World in Jacksonville,

Florida cleaned and resealed this entire area, removed and resealed awning bracket holes, reinstalled the awning and removed and replaced the slideout seal. See Dick Gore's RV World Repair Order WAR 17532, attached hereto as Exhibit 7. 26. Plaintiff alleges that a number of issues still exist regarding her motor home,

including the cabinet doors do not stay closed (see Exhibit 2, at 56:10­57:4); the electrical system is not working well (Id. at 61:17­64:9); generator problems preventing the air conditioning from functioning properly (Id.); a screw is missing from a door (Id.); and persistent water leaks in the bedroom slide-out and light fixture over the driver's seat (Id. at 69:4­70:21).
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27.

Plaintiff alleges that she and her husband stopped using the vehicle in

February of 2004 because they do not trust the vehicle and do not want to get stranded in the vehicle. See Exhibit 2, at 45:25­46:9. Due to the lack of use, there are also some items that Plaintiff does not know whether or not they have been repaired, including the front slide rubbing on an overhead light fixture (Id. at 54:12­55:20); bathroom door locks would not stay closed (Id. at 57:5­17); the kitchen sink fixtures leaked (Id. at 70:22­ 71:22); and a leak at the seal of the toilet fixture (Id. at 71:22­72:14). 28. Plaintiff's motor home was driven 21,000 miles in its first six months of

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ownership. See Deposition of Bryan Gaughan, dated January 12, 2005, at pp. 58:20­ 59:19. Relevant portions of B. Gaughan's deposition transcript are collectively attached hereto as Exhibit 8. Although Plaintiff had exceeded the one year/15,000 mile warranty, Fleetwood offered to make repairs to Plaintiff's home as a customer accommodation. Id.; see also, September 29, 2003 correspondence from Bryan Gaughan, to Lane and Lonnie Sennett, a copy of which is attached hereto as Exhibit 9. 29. Plaintiff alleges that her motor home has been out of service for 273 days.

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See Plaintiff's Responses to Defendant Fleetwood's Interrogatories, a copy of which is attached hereto as Exhibit 10, at Response No. 6, at p. 9. Plaintiff affirmed this figure at her deposition. See Exhibit 2, at pp. 84:23-85:4. 30. At her deposition, Plaintiff agreed that the motor home had been at a repair

service station for 94 days as of the date of Plaintiff's Responses to Defendant Fleetwood's Interrogatories, April 23, 2004. See Exhibit 2, at p. 85:5-9. 31. Plaintiff testified at her deposition that she does not know how her attorneys

elected to claim $26,100 for aggravation and inconvenience, or $5,400 for loss of use to Plaintiff. See Exhibit 2, at pp. 108:5­109:22. Plaintiff also did not know or understand that she was claiming $300 a day for aggravation and inconvenience of allegedly 87 days
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(totaling $26,100) and $600 for every repair visit (totaling $5,400). Id.; see also, Plaintiff's Initial Disclosure Statement, a copy of which is attached hereto as Exhibit 11, at p. 4. 32. Ms. Sennett believes that she has paid for all of the repairs to her motor home

because she paid for a new motor home and the warranty was included as a part of the purchase price. See Exhibit 2, at p. 80:4­12. Additionally, Mrs. Sennett alleges that she incurred out-of-pocket expenses of $742 for fuel filters, hoses and other items that she could not recall at her deposition; Id. at pp. 80:14­81:3; 109:24­111:14; see also Exhibit 10, at p. 10. 33. At her deposition, Plaintiff acknowledged that she did not compute the

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damages calculations claimed in Plaintiff's Initial Disclosure Statement, nor did she provide testimony stating what she felt she was entitled to regarding damages in this action. See Exhibit 2, at pp. 105:22­108:4. 34. Fleetwood Dispute Resolution Administrator Bryan Gaughan personally

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inspected Plaintiff's motor home at Dick Gore's RV World in Jacksonville, Florida on November 2, 2004. See November 4, 2004 Expert Report of B. Gaughan, attached hereto as Exhibit 12. 35. The purpose of Mr. Gaughan's inspection was to inspect the alleged defects

asserted by the Plaintiff. See Exhibit 8, at pp. 44:16­45:2; see also Exhibit 12. 36. at p. 43:9-11. 37. Mr. Gaughan concluded that the motor home was in good condition, and There were no relevant recalls for the Plaintiff's motor home. See Exhibit 8,

noted only the following problems with the motor home: drawers and one door popped open during travel; a rusted screw in the entry door needed to be replaced, a screw needed to be added to the rear monitor; a leak around the light fixture in the roof over the driver's seat that needed sealant maintenance; and the generator would not turn off approximately five seconds after he turned the switch to the off position. See Exhibit 12, at p. 3.
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/// 38. None of the other alleged defects of Plaintiff were present when Mr.

Gaughan inspected the motor home. See Exhibit 12, at p.3. Therefore, either these defects never existed or they had been adequately repaired. 39. Mr. Gaughan estimates the repair costs for the problems he noted at his

inspection to total $750. See Exhibit 12, at p. 3. 40. Mr. Gaughan determined that the N.A.D.A. wholesale value of the motor

home was $72,740. See Exhibit 12, at p. 3. The used retail value of the motor home was $96,010, only $14,245.50 less than the taxable purchase price of the motor home when it was bought by Plaintiff on March 27, 2003. Id.; see also, Exhibit 1. 41. The Fleetwood warranty does not cover sealant maintenance; it is the

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responsibility of the vehicle owner. See Exhibit 8, at p. 106:5-20; see also, relevant excerpts of the Fleetwood 2003 Pace Arrow Owner's Manual, attached hereto as Exhibit 13, specifically at FW00190-00191. 42. Also, the Fleetwood Limited One-Year/Three Year Warranty notes that the

customer is responsible for normal maintenance, including cabinet latches and minor adjustments to interior or exterior doors. See Exhibit 3, specifically at FW00122. While a Fleetwood dealer will perform this normal maintenance during the first ninety days, thereafter these adjustments are the responsibility of the owner as normal maintenance. Id. 43. Plaintiff's disclosed expert witness, William Trimmell, never inspected the

motor home. See deposition of William Trimmell, dated May 26, 2005, at pp. 39:3-40:6. Relevant portions of W. Trimmell's deposition transcript are collectively attached hereto as Exhibit 14. Mr. Trimmell also did not review any photographs of the Plaintiff's motor home. Id. 44. Mr. Trimmell acknowledged at deposition that he could not offer any opinion

as to whether the alleged leaking bedroom slide-out continued to allow water intrusion
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after Fleetwood rebuilt this bedroom slide-out because the Plaintiff ceased using the motor home. See Exhibit 14, at pp. 56:14­64:24; see also, Exhibit 7. 45. Mr. Trimmell acknowledged at his deposition that he did not know what

defects were currently present in the motor home. See Exhibit 14, at p. 75:13-20. 46. Mr. Trimmell has no opinions regarding whether any manufacturer

improperly denied a warranty claim; whether the coach was out of service for an unreasonable amount of time; or the amount of economic loss, if any, suffered by Plaintiff. See Exhibit 14, at pp. 86:15­87:25. 47. Mr. Trimmell, without physically inspecting the motor home or seeing any

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photographs, opines that the motor home had an actual value of $56,475. See September 4, 2004 Report of William Trimmell, attached hereto as Exhibit 15, at Activity Sheet 1. RESPECTFULLY SUBMITTED this 15th day of September, 2005. THE CAVANAGH LAW FIRM, P.A.

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By: s/Patrick G. Rowe Kerry M. Griggs Patrick G. Rowe Attorneys for Defendant Fleetwood

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CERTIFICATE OF SERVICE I hereby certify that on September 15, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Marshall Meyers, Esq. Krohn & Moss, Ltd. 111 West Monroe, Suite 711 Phoenix, AZ 85003 Attorneys for Plaintiff Negatu Molla David Williams BOWMAN AND BROOKE, LLP 2901 N. Central Avenue, Suite 1600 Phoenix, AZ 85012-2761 Attorneys for Defendant Workhorse Custom Chassis s/Jacque Andersen

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