Summary
holding that notice on front in all capital letters and disclaimer on back in all capital letters was conspicuous
Summary of this case from Parsley v. Monaco Coach Corp.Opinion
Case No. 1:02-CV-584
December 17, 2002
Timothy B. Myers/Brian P. Parker, for Plaintiff(s)
Scott D. Broekstra/Michael D. Dolenga, for Defendant(s)
OPINION
Before the Court are two dispositive motions: (1) Defendants Damon Corp. ("Damon") and General R.V. Center, Inc.'s ("General") Motion for Summary Judgment on all claims against Damon except Plaintiffs Darrell Hobert Watson and Jane Louise Counselor's ("Plaintiffs") claim for breach of express warranty, and on all claims against General; and (2) Defendant Freightliner Custom Chassis Corp.'s ("FCCC") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) all claims against FCCC except Plaintiffs' claim for breach of express warranty, which will be treated as a motion for summary judgment. The Court will grant General's motion for summary judgment on all claims. The Court will also grant Damon and FCCC's motions for summary judgment on all claims, except those based upon Damon and FCCC's express limited warranties.
Facts
Plaintiffs signed a purchase agreement on June 18, 2001, with General to buy a 2002 model year Damon Escape motor home (the "motor home") for $138,800.00. (Def.'s Br. Supp. Mot. Summ. J. Ex. 3.) General then purchased the motor home from Damon, a manufacturer of recreational vehicles that sells motor homes to dealerships that sell them to the general public. Damon manufactured the motor home by assembling the coach portion on top of a chassis that Damon had purchased from FCCC. On October 25, 2001, Plaintiffs took delivery of the motor home from General.
General sold the motor home to Plaintiffs pursuant to a sales contract (the "Contract") that excluded all warranties. (Id.) The Contract is a two-sided document, signed by both Plaintiffs and by a General salesman. (Id.) On the front side of the Contract, above the customer signature lines, the Contract states:
I HAVE READ THE TERMS ON THE BACK AND HAVE RECEIVED A COMPLETED COPY OF THIS AGREEMENT (SEE REVERSE FOR ADDITIONAL TERMS AND CONDITIONS)
(Id. at 1 (capitalization in original).) On the back side of the Contract, Paragraph 1 defines "Dealer" and "Purchaser" and reads:
DEFINITIONS
. . . [I]t being understood, by the Purchaser and Dealer that the Dealer is in no respect the agent of the Manufacturer. That the Dealer and Purchaser are the sole parties to this agreement and that reference to the Manufacturer is for the purpose of explaining generally certain contractual relationships existing between the Dealer and Manufacturer.
(Id. at 2 (capitalization in original).) Paragraph 11 of the Contract states:
FACTORY WARRANTY
Unless a separate written document showing the terms of any dealer warranty or service contract is furnished by the Dealer to the Purchaser, any warranty on any new or used vehicle still subject to the Manufacturer's warranty is that made by the Manufacturer only. THE DEALER HEREBY DISCLAIMS, TO THE EXTENT PERMITTED UNDER APPLICABLE STATE LAW, ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(Id. (capitalization in original).) In addition to signing the sales contract, Plaintiffs also signed a Pre-Delivery Inspection Form (the "Inspection Form") prior to taking delivery of the motor home. The Inspection Form stated: "I accept this vehicle as satisfactory and in usable condition." (Defs.' Mot. for Summ. J. Ex. 2.)
Plaintiffs did, however, receive separate, express limited warranties from Damon and FCCC. The Damon warranty covered only the coach portion of the motor home, and it lasted for one year or 12,000 miles, whichever occurred first. (Id. Ex. 1.) The FCCC warranty covered only the chassis portion of the motor home and its component parts. (Def. FCCC's Br. Supp. Mot. Dismiss Certain Cls. Under Fed.R.Civ.P. 12(b)(6) Ex. A.)
Upon General's receipt of the motor home from Damon, and the day before General delivered the motor home to Plaintiffs, General made twelve repairs on the motor home. (Pls.' Mem. Supp. Resp. Defs. Mot. Summ. J. Ex. 2.) General states that these repairs were the result of normal wear-and-tear that occurs when a motor home is driven the long distance from its place of manufacture to the dealership. (Defs.' Reply Pls.' Resp. Defs.' Mot. Summ. J. at 5.)
On November 19, 2001, twenty-six days after taking delivery of their motor home, Plaintiffs returned to General for service. (Pls.' Mem. Supp. Resp. Defs.' Mot. Summ. J. Ex. 3.) General made twenty repairs on Plaintiffs' motor home and returned it to Plaintiffs on November 24, 2001. (Id.) On December 4, 2001, Plaintiffs again returned to General for repairs on their motor home's microwave oven, which had previously malfunctioned. (Id. Ex. 4.) General discovered that Damon sent the wrong microwave panel to General for the prior repair. (Id.) General paid for Plaintiffs to stay in a hotel for the night of December 5, 2001, while General completed the repairs. (Id.) After General repaired the microwave, Plaintiffs embarked in their motor home on a trip westward on December 6, 2001.
During their trip, Plaintiffs stopped five times for repairs on their motor home in Louisiana and Texas. (Id. Exs. 5-9.) On December 11, 2001, Plaintiffs filed a Damon Warranty Claim for a leaking sink, cracked exterior lights, and a broken television antenna at a repair shop in Louisiana. (Id. Ex. 5.) Plaintiffs twice stopped for chassis repairs at Freightliner service centers in Texas, once on December 13, 2001, in Beaumont, Texas, (id. Ex. 6.), and again on December 13, 2001, in Pharr, Texas, (id. Ex. 7.) On December, 12, 2001, in Sinton, Texas, Plaintiffs had a lose wire repaired that had caused Plaintiffs to lose power to their motor home's appliances. (Id. Ex. 8.) Finally, on December 19, 2001, Plaintiffs stopped for repairs in Mission, Texas, on a leaking sink and a shelving unit that collapsed. (Id. Ex. 9.)
On February 11, 2002, Plaintiffs returned to General for thirty-one additional repairs on a wide array of parts. (Id. Ex. 10.) General completed the repairs and returned the motor home to Plaintiffs on March 16, 2002. (Id.) Plaintiffs were not charged for any of the repairs, since all of the services were covered under Damon's express limited warranty, billed as an internal charge to General, or covered under a component part manufacturer's warranty. Towards the end of May 2002, Plaintiffs decided to send their motor home to Damon's manufacturing facility for additional repairs. Since Plaintiffs also complained of defects in the motor home's chassis, Damon arranged to transport the motor home to FCCC upon completion of its portion of the repairs. On June 26, 2002, Plaintiff filed suit.
During the course of these final repairs, and after the commencement of this litigation, Plaintiffs began a series of written correspondences with Damon. On August 15, 2002, Plaintiffs sent a letter to Damon stating that they had traveled to Damon's facility on August 14, 2002, and found their motor home in a state of disrepair. (Letter from Pls. to Groom of Aug. 15, 2002, Defs.' Rely to Pls.' Resp. Defs.' Mot. Summ. J. Ex. 1.) Plaintiffs wrote that they were not "happy customers" and requested that Damon "reimburse [their] hard earned money." (Id. Ex. 1) On August 26, 2002, Plaintiffs sent a facsimile to Damon stating that they had picked up their motor home on August 22, 2002, but they "do not trust using it" due to continued problems. (Facsimile from Pls. to Slater and Bukowski of Aug. 26, 2002, id. Ex. 1) Damon's Legal Affairs Administrator responded to Plaintiffs' August 15, 2002, letter on August 26, 2002. (Letter from Tyler to Pls. of Aug. 26, 2002, id. Ex. 1) Damon's letter stated:
The last concerns that you discussed with Mike Bukowski have now been addressed, and it seems to us that all of your complaints have been attended to at this time. As a result of this, and your reluctance to speak with me because of the lawsuit, I am not sure what we are able to do for you at this point. If you would like to discuss resolution of this matter please have your attorneys contact our attorney, or, alternatively, have them set something up for you and I to discuss this further.
(Id.) Plaintiffs subsequently sent two more facsimiles listing various complaints to Damon on September 3, 2002, (Facsimile from Pls. to Slater and Bukowski of Sept. 3, 2002, id. at Ex. 1), and September 4, 2002, (Facsimile from Pls. to Slater and Bukowski of Sept. 4, 2002, id. at Ex. 1). On September 18, 2002, Damon's Legal Affairs Administrator responded that in addition to "trouble shooting" advice:
. . . I would be happy to speak with you regarding resolution of your concerns. I am not sure as to how you are proceeding with this matter since you did not want to speak with me when you were here because of the lawsuit, but then when you went home you sent a letter to Barbara Slater and Mike Bukowski. If you wish to speak with us about your coach, and a potential resolution of your lawsuit, I am available to talk with you.
Again, if you would like to do this, please have your attorneys contact our attorney, Michael Dolenga, or, alternatively, have them set something up for you and I to speak about this situation. . . .
(Letter from Tyler to Pls. of Sept. 18, 2002, id. Ex. 1)
Procedural History
On June 26, 2002, Plaintiffs filed suit against General, Damon, and FCCC in Kent County Circuit Court. Plaintiffs alleged six causes of action: (1) breach of implied warranty of merchantability, M.C.L. § 440.2314; (2) breach of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301; (3) breach of implied warranty of fitness, M.C.L. § 440.2315; (4) revocation, M.C.L. § 440.2608; (5) breach of duty of good faith, M.C.L. § 440.1203; and (6) violation of the Michigan Consumer Protection Act, M.C.L. § 445.901, et. seq. FCCC filed a Notice of Removal to this Court on August 16, 2002.
Standard of Review
General and Damon have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all claims except Plaintiffs' express limited warranty claim against Damon. FCCC has moved to dismiss all claims except Plaintiffs' express limited warranty claim against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In support of its motion to dismiss, FCCC offered its express limited warranty. (Def. FCCC's Br. Supp. Mot. Dismiss Certain Cls. Under Fed.R.Civ.P. 12(b)(6) Ex. A.) Since FCCC has presented matters outside the pleadings in its motion to dismiss, and Plaintiffs have responded to FCCC's motion to dismiss as a motion for summary judgment, (Pls.' Resp. Def. FCCC's Mot. Summ. J.), the Court will treat FCCC's motion to dismiss as one for summary judgment pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(c). Accordingly, all of Defendants' motions will be evaluated under Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Discussion
I. Breach of Implied Warranties of Merchantability and Fitness
A. General
Plaintiffs assert that General breached its implied warranties of merchantability, M.C.L. § 440.2314, and fitness, M.C.L. § 440.2315, under Michigan law. M.C.L. § 440.2314(1) states: "Unless excluded or modified (section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." M.C.L. § 440.2315 states:
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section [M.C.L. § 440.2316] an implied warranty that the goods shall be fit for such purpose.
M.C.L. § 440.2316(2) states:
to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
The Contract for the purchase of the motor home that Plaintiffs signed states:
THE DEALER HEREBY DISCLAIMS, TO THE EXTENT PERMITTED UNDER APPLICABLE STATE LAW, ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(Defs.' Br. Supp. Mot. Summ. J. Ex. 3 (capitalization in original).) The Court thus finds that the written Contract contained the necessary language to exclude implied warranties by General of merchantability and fitness under Michigan law.
The Court must next determine the issue of conspicuousness. M.C.L. § 440.1201(10); see also Krupp PM Eng'g, Inc. v. Honeywell, Inc., 209 Mich. App., 104, 107, 530 N.W.2d 146, 148 (1995). Plaintiffs argue that the Court should follow the Michigan Court of Appeals' decision in Krupp to find that the Contract's exclusionary clause was not conspicuous. InKrupp, the court evaluated a two-sided contract similar to that at issue here. Id. The court found that the term was not conspicuous because the only statements drawing the purchaser's attention to the limitations were: (1) the phrase "The Standard Terms and Conditions on the reverse side are part hereof" written on the bottom of the front page in small italicized print; and (2) the lack of capitalization of the "pivotal statement of limitation" on the back-side of the contract. Id. at 108-09, 530 N.W.2d at 149. Here, however, the notice to Plaintiffs of limitations was written in all capital letters just above the signature block on the front of the document. On the back side of the contract, the entire "pivotal statement of limitation," namely that General disclaimed warranties of merchantability and fitness, was entirely capitalized. The Court thus finds that General's disclaimer was in writing and conspicuous. Since there is no genuine issue as to any material fact in dispute, the Court will grant General's Motion of Summary Judgment on Plaintiffs' claims for breach of implied warranties of merchantability and fitness.
B. Damon and FCCC
Plaintiffs claim that Damon and FCCC, manufacturers of component parts of their motor home, breached implied warranties of merchantability, M.C.L. § 440.2314, and fitness, M.C.L. § 440.2315, under Michigan law.
"[I]n order for a plaintiff to recover economic losses on a breach of implied warranty theory under Michigan contract law, privity of contract must exist between the plaintiff and the defendant." Mt. Holly Ski Area v. U.S. Elec. Motors, 666 F. Supp. 115, 120 (E.D.Mich. 1987). The Mt. Holly court recognized that the Courts of Appeals of Michigan were split on whether privity is required to state a claim for breach of implied warranties where there is no allegation of personal injury. Id. at 118-20; compare Auto-Owners Ins. Co. v. Chrysler Corp., 129 Mich. App. 38, 341 N.W.2d 223 (1983) (finding privity required), and N. Feldman Sons Ltd. v. Checker Motors Corp., 572 F. Supp. 310, 315 (S.D.N.Y. 1983) (applying Michigan law and finding privity required), with Cova v. Harley Davidson Motor Co., 26 Mich. App. 602, 608-10, 182 N.W.2d 800, 804-05 (1970) (finding privity not required). However, following its extensive review of case law and scholarly commentary, the Mt. Holly court concluded that, under the modern trend, privity is required. Mt. Holly, 666 F. Supp. at 120 (citing 1 James J. White Robert S. Summers, Uniform Commercial Code § 11-5 (2d ed. 1980)). Plaintiffs have not brought to the Court's attention any Michigan case subsequent to Mt. Holly which challenges the holding in Mt. Holly. Mt. Holly appears to have the correct analysis in holding that in order for a plaintiff to recover economic losses on a breach of implied warranty theory under Michigan contract law, privity of contract must exist between the plaintiff and the defendant. Mt. Holly, 666 F. Supp. at 120. Thus, to avoid summary judgment, Plaintiffs must establish that they were in privity with Damon and FCCC.
While the privity requirement has yet to be addressed by the Michigan Supreme Court, Plaintiffs point to no case decided after eitherMt. Holly or Auto Owners that evidence that Michigan courts still followCova. The Court finds Plaintiffs' reliance on Leavitt v. Monaco Coach Corp., 241 Mich. App. 288, 616 N.W.2d 175 (2000), unavailing becauseLeavitt does not directly address the privity requirement.
It is uncontested that Plaintiffs were not in privity with Damon or FCCC. Plaintiffs have not shown that they ever discussed particular uses for their motor home with either Damon or FCCC, or that Damon or FCCC made any specific representations to Plaintiffs regarding performance or use of the motor home. Accordingly, as there is no genuine issue of material fact in dispute, summary judgment will be entered for Damon and FCCC on Plaintiffs' claims for breach of implied warranties of merchantability and fitness.
Breach of the Magnuson-Moss Warranty Act
Plaintiffs also allege that General, Damon, and FCCC have breached the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2308. The MMWA "serves to supplement state-law implied warranties only by prohibiting their disclaimer in certain circumstances," specifically when "the supplier disclaims an implied warranty while either making a written warranty or entering into a service contract." Rokicsak v. Colony Marine Sales Serv., Inc., 219 F. Supp.2d 810, 817-18 (E.D.Mich. 2002) (emphasis in original) (applying Michigan law). Here, General did not offer an express warranty, disclaimed all implied warranties, and specifically stated "any warranty on any new or used vehicle still subject to the Manufacturer's warranty is that made by the Manufacturer only." While General provided Plaintiffs with copies of Damon and FCCC's express limited warranties, it did not adopt them or enter into a service contract with Plaintiffs for repair of their motor home. See Id. at 818 ("The federal MMA does not revive plaintiff's state law breach of implied warranty claims, nor does it create law regarding the adoption of third-party warranties in Michigan."). Thus, since the MMWA is inapplicable to General, and there is no genuine issue of material fact in dispute, summary judgment will be entered for General.
"The [MMWA] is based upon the premise that suppliers of consumer goods vigorously use written express warranties as advertising and merchandising devices. If they are to be so used, they must meet federal standards in terms of disclosure and remedies provided to an aggrieved consumer. Under the [MMWA], no seller is forced to give an express written warranty, but if one is offered, it must comply with the standards set forth in the law." 59 A.L.R. Fed. 461 (1982).
The MMWA is also inapplicable to Damon and FCCC. As discussed above, Plaintiffs were not in privity with Damon and FCCC at the time of sale. Damon and FCCC are thus not liable to Plaintiffs for implied warranties of merchantability and fitness under Michigan law. Since the MMWA merely limits an express warranter or service contract provider from disclaiming certain implied warranties, Damon and FCCC cannot be prohibited from disclaiming warranty obligations that never existed. Accordingly, as there are no genuine issues of material fact in dispute, summary judgment will be entered for Damon and FCCC.
III. Revocation
Plaintiffs also assert a claim for revocation against General under M.C.L. § 440.2608. General contends that Plaintiffs waived their right to revocation when they waived all warranties against General in the contract and signed the Pre-Delivery Inspection Form. In essence, General argues that its disclaimer of all warranties prevents the court from finding a non-conformity in the contract, a finding that would be fatal to Plaintiffs' revocation claim. The Court agrees.
During the parties' settlement conference, Plaintiffs stated that this cause of action is not bought against Damon and FCCC, because revocation claims against manufacturers not in privity with sellers are barred under Michigan law. (Pls.' Resp. Def. FCCC's Mot. Summ. J. at 3 (citing Henderson v. Chrysler Corp., 191 Mich. App. 337, 341-43, 477 N.W.2d 505, 508 (1991)).)
There is no clear Michigan precedent on whether a seller's disclaimer of all warranties bars revocation by a buyer. However, this issue has been addressed by commentators and courts in other jurisdictions analyzing statutes like M.C.L. § 440.2608, which are based also on U.C.C. § 2-608:
A determination of the existence or non-existence of a nonconformity requires reference to the terms of the contract, including the law of warranty. . . . the courts do not look with favor on disclaimers that purport to disclaim responsibility for what the seller has in essence agreed to sell. But if the only relevant language in the agreement as to quality has been effectively declaimed, no nonconformity in the goods sufficient for revocation can exist. If the goods are sold "as is," comment 7 of 2-316 states the "buyer takes the entire risk as to the quality of the goods."
1 James J. White Robert S. Summers, Uniform Commercial Code § 8-4 (4th ed. 1995 Supp. 2002) (footnotes omitted); see also Barkley Clark Christopher Smith, The Law of Product Warranties ¶ 7.03[4] (1984) ("[R]evocation is a remedy for breach of warranty, and when the seller effectively disclaims warranty liability, there is no longer a right for which revocation can serve as a remedy."). This principle is also firmly established in the case law of jurisdictions with statutes similar to M.C.L. § 440.2608. See, e.g., Schneider v. Miller, 73 Ohio App.3d 335, 338-39, 597 N.E.2d 175, 177-78 (1991) (finding that "as is" clause bars recision since buyer "takes the entire risk of quality of the goods involved") (emphasis in original); Clark v. Ford Motor Co., 46 Or. App. 521, 527, 612 P.2d 316, 319 (1980) (holding that a buyer may not revoke acceptance as to the dealer where the dealer has disclaimed all warranties and the buyer in fact got the vehicle bargained for thus there was no nonconformity); accord Crume v. Ford Motor Co., 60 Or. App. 224, 227-28, 653 P.2d 564, 566-67 (1982) (rejecting a result oriented approach to uphold disclaimer of warranties and thus no revocation).
The Court notes that a few courts in other jurisdictions have taken a result oriented approach to statutes similar to U.C.C. § 2-608 and allowed revocation in spite of a seller's disclaimer of warranties.See, e.g., Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 529-30, 356 S.E.2d 250, 252-53 (1987); Fode v. Capital RV Ctr., Inc., 575 N.W.2d 682, 688 (N.D. 1998). The Court, however, finds these decisions to be anomalous, unpersuasive, and out of step with Michigan precedent on M.C.L. § 440.2608.
The Michigan Court of Appeals' decision in Henderson v. Chrysler Corp., 191 Mich. App. 337, 341-43, 477 N.W.2d 505, 508 (1991), implicitly supports this reading of M.C.L. § 440.2608. The Henderson court barred revocation claims against remote manufacturers who were not in privity with the seller, and left "plaintiff with his cause of action and remedies under the warranty." Id. at 341-43, 477 N.W.2d at 508; see also Snyder v. Boston Whaler, Inc., 892 F. Supp. 955, 959 (W.D.Mich. 1994) ("Plaintiff's revocation claim is barred as well, because plaintiff's right to revoke is based upon a finding that defendants breached a warranty.").
Since General effectively disclaimed all warranties in its Contract with Plaintiffs, the Court finds that Plaintiffs waived their right to revoke. Plaintiffs may still potentially pursue claims based on their express limited warranties with Damon and FCCC, but Plaintiffs bear the risk of the quality of their motor home with respect to General based on the Contract and the Pre-Delivery Inspection Form. Accordingly, as there is no genuine issue of material fact in dispute, summary judgment will be entered for General.
The Court rejects Plaintiffs' contention that General's undertaking of minor repairs following transportation of the motor home from its place of manufacture to General's dealership rendered the motor home anything other than the "new" motor home for which Plaintiffs contracted. Plaintiffs conducted an inspection of the motor home prior to purchase and signed a Pre-Delivery Inspection form attesting that "I accept this vehicle as satisfactory and in usable condition." (Defs.' Br. Supp. Mot. Summ. J. Ex. 2.) Thus, Plaintiffs acknowledged that they knew what they were purchasing before they accepted and before they agreed to waive their warranty rights.
IV. Breach of Duty of Good Faith
Plaintiffs also assert that General, Damon, and FCCC breached the duty of good faith under M.C.L. § 440.1203 by: "(a) breaching the express and limited warranties described herein; (b) selling the Plaintiffs a vehicle with mechanical defects of which they knew or should have known; (c) failing to repair the above enumerated defects the first time during both warranty periods." (Cl. ¶ 55.)
M.C.L. § 440.1203 states that "[e]very contract or duty within this act imposes an obligation of good faith in its performance or enforcement." As the official comments to M.C.L. § 440.1203 make clear
This section does not support an independent cause of action for failure to perform or enforce in good faith. Rather, this section means that a failure to perform or enforce, in good faith, a specific duty or obligation under the contract, constitutes a breach of that contract or makes unavailable, under the particular circumstances, a remedial right or power. This distinction makes it clear that the doctrine of good faith merely directs a court towards interpreting contracts within the commercial context in which they are created, performed, and enforced, and does not create a separate duty of fairness and reasonableness which can be independently breached.
M.C.L. § 440.1203 cmt. (emphasis added). Thus, Plaintiffs' assertions under M.C.L. § 440.1203 are only applicable to cognizable claims Plaintiffs assert against Defendants for breach of implied or express warranties. Since there is no genuine issue of material fact in dispute, summary judgment will be granted on all of Plaintiffs' M.C.L. § 440.1203 claims not directly relating to General, Damon, or FCCC's express or implied warranties. Summary judgment will also be granted on Plaintiffs claims pursuant to M.C.L. § 440.1203 against General, because Plaintiffs' claims for breach of express and implied warranties against General will be dismissed. Additionally, since Plaintiffs' implied warranty claims against Damon and FCCC will be dismissed, summary judgment will be granted on Plaintiffs' M.C.L. § 440.1203 claims relating to those implied warranty claims. Summary judgment will not, however, be granted on Plaintiffs' M.C.L. § 440.1203 claims as they relate to Damon and FCCC's express limited warranties.
V. Breach of Michigan Consumer Protection Act
Plaintiffs also assert that General, Damon, and FCCC violated the Michigan Consumer Protection Act ("MCPA"), M.C.L. § 445.901 et. seq. Since the Court will grant summary judgment in favor of General on Plaintiffs' claims for breach of implied and express warranties, as well as revocation, the Court finds that Plaintiffs' MCPA claim against General also fails. Marshall v. Meade Group, Inc., No. 224815, 2002 WL 44232, at *1 (Mich.Ct.App. Jan. 11, 2002) (per curiam) ("In light of our determination that the trial court correctly concluded that [seller] made neither an implied nor an express warranty upon which [buyer] can state any valid claim . . . we further conclude [buyer's Michigan Consumer Protection Act] claims are without merit."). Plaintiffs' MCPA claims against Damon and FCCC, as they relate to implied warranties or revocation, also fail.
The Court will not, however, grant summary judgment on Plaintiffs' MCPA claims against Damon and FCCC as they relate to Damon and FCCC's express limited warranties. Damon and FCCC assert that M.C.L. § 445.904(a) exempts their express limited warranties from suits under the Michigan Consumer Protection Act because such express warranties are simultaneously regulated by the MMWA and Michigan's UCC. The M.C.L. § 445.904(a) exception has only been applied by the Michigan courts to areas of heavy regulation, such as insurance and mortgages. See, e.g., Smith v. Globe Life Ins., 460 Mich. 446, 597 N.W.2d 28 (1999);Attorney Gen. v. Diamond Mortgage Co., 414 Mich. 603, 327 N.W.2d 28 (1999). Damon and FCCC have not cited, and the Court has not found, any case that would exempt express limited warranties like as those at issue here. The Court, therefore, will not expand M.C.L. § 445.904(a) to grant summary judgment on Plaintiffs' MCPA claims regarding Damon and FCCC's express limited warranties.
Conclusion
For the foregoing reasons, General's motion for summary judgment will be granted on all claims. Damon and FCCC's motions for summary judgment will be granted on all claims, except those based upon Damon and FCCC's express limited warranties.
An Order consistent with this Opinion will be entered.