Gross v. Shep Brown's Boat Basin

2000 DNH 049

• Court: District Court, D. New Hampshire
• Decided: February 28, 2000
• Docket: CV-99-140-B
• Status: Published

Opinion

Gross v. Shep Brown's Boat Basin CV-99-140-B 02/28/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert and Sandra Gross

v. Civil No. 99-140-B Opinion No. 2000 DNH 049 Shep Brown's Boat Basin, et a l .

MEMORANDUM AND ORDER

Robert and Susan Gross purchased a boat manufactured by

Mariah Boats, Inc. from Shep Brown's Boat Basin. After

determining that the boat was defective, they attempted to revoke

acceptance of the boat and sued Mariah and Shep Brown's for

breach of contract, revocation of acceptance, breach of warranty

under New Hampshire law, and breach of warranty under the

Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2311 (1994). The

defendants have filed a motion for summary judgment. For the

reasons that follow, I grant the motion in part and deny it in

part.

I. Plaintiffs' Claims against Mariah A. Breach of Contract Claim

Mariah correctly argues that plaintiffs have failed to

produce any evidence in response to the motion for summary

judgment to support a finding that Mariah ever entered into a

contract with the plaintiffs. C f . Wellcraft Marine v. Zarzour,

577 So. 2d 414, 419 (Ala. 1990) (boat manufacturer's express

warranty does not create privity of contract between manufacturer

and buyer). Accordingly, Mariah is entitled to summary judgment

with respect to plaintiffs' breach of contract claim.

B. Revocation of Acceptance

Mariah argues that plaintiffs' revocation of acceptance

claim fails because it did not sell them the boat. The New

Hampshire Supreme Court has not determined whether a buyer may

assert a revocation of acceptance claim against a manufacturer.

The majority rule appears to be that such a claim ordinarily may

be asserted only against a seller. See James J. White and Robert

S. Summers, Uniform Commercial Code § 8-4 (4th ed. 1995). I

decline to resolve this question at the present time. I will

consider whether to certify the question to the New Hampshire

- 2 - Supreme Court, if necessary, after trial. Accordingly, I deny

Mariah's motion for summary judgment with respect to plaintiffs'

revocation of acceptance claim.

- 3 - C. Breach of Warranty Claims

Mariah asserts that plaintiffs' breach of warranty claims

are defective because the evidence will not support a finding

that Mariah breached the implied warranties of merchantability

and fitness that exist by operation of New Hampshire law.1 I

disagree. Because the plaintiffs are consumers and Mariah

supplied a written warranty, the Magnuson-Moss Warranty Act

prevents Mariah from disclaiming any implied warranty. See 15

U.S.C. § 2308(a) (1994) (supplier may not disclaim implied

warranty to consumer if it provides a written warranty).

Construing the evidence in the light most favorable to the

plaintiffs, they have produced sufficient evidence to support a

finding that Mariah breached these implied warranties.

Accordingly, I deny Mariah's motion for summary judgment with

respect to plaintiffs' state and federal breach of implied

1 Plaintiffs may maintain a breach of warranty claim against Mariah even though there is no privity of contract between them because lack of privity is not a defense to a breach of warranty claim under the circumstances presented in this case. See N.H. Rev. Stat. Ann. § 382-A:2-318 (1994).

- 4 - warranty claims.2

II. Claims Against Shep Brown's

Plaintiffs' claims against Shep Brown's are based upon its

alleged breaches of an express oral warranty and the implied

warranties of merchantability and fitness. Shep Brown's argues

that plaintiffs' claims are defective because it effectively

disclaimed all express or implied warranties when it sold them

the boat.

I agree that Shep Brown's disclaimed any express oral

warranties. N.H. Rev. Stat. Ann. § 382-A:2-202 (1994) provides

that when a writing is intended by the parties to be a final

expression of their agreement, the writing may not be

contradicted by evidence of inconsistent oral agreements. The

2 Mariah also suggests that it is entitled to prevail because it repaired the boat after it was notified of the alleged defects. Whether a manufacturer has a right to cure under the circumstances at issue here remains an open question that the parties have not adequately briefed. See Asciolla v. Manter Oldsmobile-Pontiac, Inc., 117 N.H. 85, 90-91, 370 A.2d 270, 274 (1977) (leaving question unresolved). Accordingly, I decline to consider Mariah's argument at the present time.

- 5 - sales contract at issue here plainly was intended by the parties

to be a complete and final expression of their agreement as it

provides that "[t]he terms and conditions of this contract

contains the entire understanding between you and me and that no

other representation on inducement, verbal or written, has been

made which is not included in this contract of sale." Further,

the sales contract states that

the implied warranties of merchantability and fitness for a particular purpose and all other warranties express or implied are excluded by you from this transaction and shall not apply to the goods sold.

The oral warranty that plaintiffs claim Shep Brown's made prior

to the sale is inconsistent with this portion of the sales

contract. Accordingly, plaintiffs cannot maintain a breach of

express warranty claim against Shep Brown's. See Ace Inc. v.

Maynard, 423 S.E.2d 504, 508 (NC Ap p . 1992).

I am unpersuaded that Shep Brown's effectively disclaimed

the implied warranties of merchantability and fitness. New

Hampshire law permits a seller of goods purchased primarily for

personal, family, or household use to disclaim the implied warranties of merchantability and fitness only by a conspicuous

writing signed by the buyer that informs the buyer in simple and

concise language that

(a) The goods are being sold on an "as is" or "with all faults" basis; (b) The entire risk as to quality and performance of the goods is with the buyer; and (c) If the goods prove defective after purchase, the buyer, not the manufacturer.

- 7 - distributor, or retailer, shall assume the entire cost of all necessary servicing or repair.

N.H. Rev. Stat. Ann. § 382-A:2-316(4) (1994). It is undisputed

here that the plaintiffs purchased the boat primarily for family

use. Although the sales contract conspicuously states that the

implied warranties of merchantability and fitness are disclaimed,

it does not explicitly inform the plaintiffs that they are

purchasing the boat on an "as is" or "with all faults" basis.

It also fails to inform the plaintiffs explicitly that they bear

the entire risk as to quality and performance of the boat.

Accordingly, Shep Brown's did not effectively disclaim the

implied warranties of merchantability and fitness.

Shep Brown's also argues that plaintiffs' claim based upon

the Magnuson-Moss Warranty Act is defective. I agree. The Act

applies only if a supplier has issued a written warranty. See

Robin Towing Corp. v. Honeywell, Inc., 859 F.2d 1218, 1223 (5th

Cir. 1988); McNamara v. Nomeco Building Specialties, Inc., 26 F.

Supp. 2d. 1168, 1171-75 (D. Minn. 1998). Shep Brown's issued no

such warranty in this case. Accordingly, plaintiffs cannot maintain a Magnuson-Moss Warranty Act claim against Shep Brown's.

Ill. Conclusion

I grant Mariah's motion for summary judgment insofar as it

applies to Count I (Breach of Contract) and Shep Brown's motion

for summary judgment insofar as it applies to Count IV (Magnuson-

Moss Warranty Act). Counts II, III and IV of the amended

complaint remain viable against Mariah. Counts I, II, and III

remain viable against Shep Brown's.

SO ORDERED.

Paul Barbadoro Chief Judge

February 28, 2000

cc: J. Mark Dickinson, Esq. Jeffrey Osborne, Esq.

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