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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA retired couple who did not give the manufacturer of an issue-ridden recreational vehicle a sufficient opportunity to repair a leaking sewage tank cannot succeed in its case against the manufacturer, the 7th Circuit Court of Appeals has ruled.
Bernard and Beverly Zylstra spent nearly $100,000 on a new recreational vehicle so they could travel during their retirement. Their enjoyment was short-lived, however, when the RV began to collect a long list of defects, both large and small, that ended with them losing a lawsuit.
The Zylstras bought their custom-built RV at Bourbonnais Chevy Hundai RV in Bourbonnais, Illinois, manufactured by DRV, LLC. The RV came with a one-year warranty providing that the portions of the RV manufactured by DRV that were not otherwise excluded would be “free from defects in material and workmanship supplied and attributable to DRV during normal use.” If a defect was found, the owners needed to bring the RV to either the dealership or DRV within 30 days of discovery and no later than 30 days after the warranty expired.
On its first trip off the lot with the Zylstras, the RV accumulated 18 entries on the couple’s repairs list. Once the repairs were made at a DRV dealership, the Zylstras took out the RV again, this time running into 16 new issues.
A week into their third trip across country, the Zylstras discovered that the sewage tank valve was leaking and that sewage had been leaking from the tank into the insulation throughout the underbelly of the RV, causing a smell. They enlisted the help of an independent mobile technician to complete the repair.
When the Zylstras later asked DRV who would foot the bill — the Zylstras or DRV — they ended up suing the manufacturer, alleging breach of express and implied warranty, violation of the Magnuson-Moss Warranty Act and violation of state consumer protection laws.
The U.S. District Court for the Northern District of Indiana, Fort Wayne Division, entered summary judgment for DRV, and the 7th Circuit Court of Appeals affirmed.
The appellate court concluded that the Zylstras did not take the RV to the dealer or any authorized DRV repair shop to remedy the leaking tank or the damage it caused. Thus, even in the light most favorable to the Zylstras, DRV never had a reasonable opportunity to repair the defects as required under the warranty.
“To this day, the black tank and related issues have not been presented to DRV or the dealer to repair,” Judge Ilana Rovner wrote Tuesday, concluding the Zylstras’ claims could not survive.
On the breach of express warranty claim, the appellate panel found that none of the issues of which the Zylstras complained met the requirement under Indiana law that the purchaser must give the warrantor a reasonable opportunity to repair the defects. Instead, it found that “(e)ither the issue was never presented to DRV for repair, it was fixed under DRV’s warranty in three or fewer attempts, or it was presented less than three times and DRV did not have a sufficient opportunity to repair.”
The panel noted that the Zylstras’ list of 12 items that went undiscovered until after the date of the last repair was never reported. It also found that a list of 11 minor defects that were subject to repair twice and that were successfully fixed were repaired under warranty by DRV.
As to the sewage tank issue, the 7th Circuit concluded the Zylstras did not comply with the terms of the warranty and thus defeated its purpose because they never presented the RV to DRV for repair after the third trip.
The 7th Circuit also disagreed with the Zylstras’ claim that DRV did not repair the defects within a reasonable amount of time, leaving the RV out of service for 230 days. Instead, it found that the essential purpose of the warranty was not defeated by the amount of time out of service. A similar conclusion was made on their breach of implied warranty claims.
“The Zylstras do not make a substantive argument about the implied warranty claim in their opening brief and instead raise these issues only in the reply brief. As such, the substantive argument is waived,” Rovner wrote.
Finally, the court rejected the couple’s claims under the Indiana Deceptive Consumer Sales Act, finding that like a new home, “adjustments and changes are often required and the buyer has some time to note and ask for repair or replacement of defective parts.”
“As a result, a long list of postproduction repairs does not necessarily prove that the RV is of deficient quality,” the 7th Circuit concluded.
The case is Beverly Zylstra and Bernard Zylstra v. DRV, LLC, 20-1949.
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