See Detroit Edison Co. v. Nabco, Inc., 35 F.3d 236, 239 (6th Cir. 1994) ("The essence of contract law is the bargain: parties of equivalent bargaining power negotiate the terms of the transaction and each is then entitled to the benefit of the bargain."). The Grynbergs also rely on our decision in Cooley v. Big Horn Harvestore Systems, Inc., 813 P.2d 736 (Colo. 1991). In Cooley, the plaintiffs were dairy farmers who contracted with Big Horn Harvestore Systems ("Big Horn") to purchase a Harvestore automated grain storage and distribution system for use in their dairy operation.
Where "the remedy is expressly agreed to . . . it is the sole remedy," § 4-2-719(1)(b), unless "circumstances cause an exclusive or limited remedy to fail of its essential purpose." § 4-2-719(2); Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 743 (Colo. 1991) ("[§ 4-2-719(1)] allow[s] great flexibility in negotiations for the provision of goods. Section 4-2-719(2), however, reflects a legislative determination that in limited circumstances enforcement of an agreement to restrict a buyer's potential remedies would produce unconscionable results.").
The Court is persuaded, however, by the authority Plaintiff cites which demonstrates that forfeiture clauses "are not favored in Colorado" and that "contractual provisions seeking to effect a waiver or forfeiture of a party's rights must be couched in clear, unambiguous language." Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 749 (Colo. 1991) (citing Grooms v. Rice, 429 P.2d 298 (Colo. 1967); Montgomery Ward & Co. v. Reich, 282 P.2d 1091 (Colo. 1955)). In Cooley, the Colorado Supreme Court examined the following sentence in a purchase agreement which purported to bar the plaintiff-buyer from asserting a negligence claim against the defendant-seller:
The parties have not cited to any Florida case extending section 672.607(3)(a)'s notice requirements to a manufacturer. Federal relies on Cooley v. Big Horn Harvestore Systems, Inc., 813 P.2d 736 (Colo. 1991). In Cooley, the Colorado Supreme Court held that an identical provision of Colorado's Uniform Commercial Code did not require the buyer to provide a "remote manufacturer" with notice of a product defect.
Next, I turn to the terms of the CLA. "In construing the terms of a contract, courts must give full effect to the intent of the parties as expressed by the language of the agreement." Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 748 (Colo. 1991). Plaintiff concedes that the CLA provides that certain conditions should be met prior to disbursement, but contends that the Bank was not obligated to ensure that any or all of these conditions were met. (Pl.'s Br. at 10-11.)
"[T]he applicability of the failure of essential purpose doctrine requires a two-tiered evaluation: first, identification of the essential purpose of the limited remedy, and second, whether the remedy in fact failed to accomplish such purpose." Cooley v. Big Horn Harvestore Sys., Inc. , 813 P.2d 736, 744 (Colo. 1991). Because the parties agreed that the essential purpose of the New Vehicle Limited Warranty was to repair and replace defects in the RV, only the second question is at issue here.
Whether the limited warranty fails of its essential purpose, requires a two-tiered evaluation: (1) identification of the essential purpose of the limited remedy and (2) whether it failed to accomplish that purpose. Cooley v. Big Horn Harvestore Systems, Inc. , 813 P.2d 736, 744 (Colo. 1991). The stated purpose of the warranty is: "only to remedy manufacturing defects that result in vehicle part malfunction or failure during the warranty period."
However, the non-controlling cases Plaintiff cites are distinguishable from the present case. Unlike in Greenman v. Yuba Power Products Inc. and Cooley v. Big Horn Harvestore Systems, Inc., Plaintiff does not bring his warranty claims against the direct retailer, Bodybuilding.com. 59 Cal. 2d 57 (1963); 813 P.2d 736 (Colo. 1991).
Plaintiffs rely on Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736 (Colo. 1991) to support their position that the damages are consequential. (ECF No. 45 at 14.)
For example, in Asp, a district court held that, “before the exclusive repair and replace remedy is considered to have failed of its essential purpose, ‘the seller must be given an opportunity to repair or replace the product.’ ” Asp, 616 F.Supp.2d at 729 (emphasis added); see alsoIn re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prods. Liab. Litig., No. 8:10ML 02151 JVS (FMOx), 754 F.Supp.2d 1145, 1179 (C.D.Cal.2010) (stating that “Plaintiffs who neither sought repairs pursuant to the recalls nor sought repairs for SUA-related issues may not pursue a claim for breach of express warranty based on the written warranty”); Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 744 n.7 (Colo.1991) (stating that, “[t]o establish their claim of failure of essential purpose ..., the plaintiffs were required to establish [ inter alia ] that the defendants had an opportunity to repair or replace the defects [but] were unable to do so”); cf.Taliaferro v. Samsung Telecomms. Am., LLC, No. 3:11–CV–1119–D, 2012 WL 169704, at *2 (N.D.Tex. Jan. 19, 2012) (stating that “a plaintiff cannot state a claim for breach of express warranty unless he meets the conditions precedent prescribed by the express warranty”).