All Star Trucking v. Ryder Vehicle Sales ( 2017 )

FILED
OF APPEALS DIV
STATE OF ‘7AS:Ir.GTC:!
2011 JUL 214 AN 8:149
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALL STAR TRUCKING LLC, ) No. 75352-5-1
)
Appellant, ) DIVISION ONE
)
V. )
)
RYDER VEHICLE SALES, LLC, A ) UNPUBLISHED OPINION
Washington Limited Liability Company, )
)
Respondent. ) FILED: July 24, 2017
)
LEACH, J. — All Star Trucking LLC appeals the summary judgment dismissal
of its lawsuit against Ryder Vehicle Sales LLC. Because All Star failed to establish
a genuine issue of material fact as to any of its claims, we affirm.
FACTS
Gurminder Singh moved to the United States from India in 2013. He formed
All Star, his own long-haul trucking business, the next year.
On June 25, 2014, Singh visited Ryder's truck dealership in Des Moines to
purchase a Freightliner Columbia tractor truck. Singh had driven this model before
and was confident he wanted to buy it. Though Singh spoke limited English, he
knew that Ryder's sales manager, Muddasir Mirza, spoke both Punjabi and Hindi.
Singh also brought an English-speaking friend to help him.
Mirza told Singh that Ryder had two Freightliner Columbia trucks for sale.
Singh sat in the driver's seat of one of them, which had 764,881 miles on it. He
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turned on the engine and examined the gauges. However, he did not drive the
truck because lilt's no use test-driving if there is no load in it." According to Singh,
Mirza told him that the truck had been "fully inspected and repaired by Ryder before
it reached the lot" and that it was "fine."
Satisfied, Singh returned to the Ryder dealership two days later, on June
27, 2014, and purchased the truck for $29,149. Singh admitted that he had not
looked at or considering buying any other trucks because "I had heard Ryder's a
good company, they take care of their trucks, and the company is good and their
trucks are good." Ryder provided Singh with a nine-page inspection report. It said
that the truck had been inspected two months earlier and that all components had
passed inspection. The report noted only that the tail lights, visor light, and license
plate lights were dim or burned out.
Ryder provided a limited express warranty for the truck. Singh signed and
initialed it. The warranty stated,
Ryder Truck Rental, Inc. ("Ryder") hereby warrants all covered
components of the Vehicle identified herein against defects in
material and workmanship for the first 30 days or 10,000
miles/16,000 kilometers from the Date of Sale, whichever comes
first.
The warranty identified the covered components as the engine, the transmission,
and the rear axle. The warranty specifically excluded carburetors, spark plugs,
water pumps, hoses, belts, thermostats, engine electronic systems, charge air
coolers,fuel pump seals and electronics, and external cylinder head gasket oil and
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water leaks. The warranty also excluded "ordinary wear and tear." Finally, the
warranty stated, in bold print and capital letters:
THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER
EXPRESS OR IMPLIED WARRANTIES,AND RYDER EXPRESSLY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES THAT THE VEHICLE HAS BEEN
PREVIOUSLY OWNED, IS USED AND NOT NEW AND, EXCEPT
FOR THE LIMITED WARRANTY IS PURCHASED "AS IS."
But Singh claims that Mirza told him, "Anything goes wrong, Ryder will fix it."
Mirza also offered to sell Singh an extended service warranty. It covered
repairs to the engine or transmission for up to a year and cost an additional $5,000.
Singh declined the extended warranty. He stated that he could not afford it. Singh
signed a form stating,
I hereby decline to purchase the Ryder Road Ready PLUS Service
Contract Agreement. I understand that I relinquish all right and
provisions including any future service repair reimbursement that
may occur outside the 30 day Ryder Used Vehicle Limited Warranty
certificate agreement.
Singh testified that he understood that he would be bound by the terms of
the documents he signed. However, he admitted that he did not read them or have
his friend translate them for him.
Singh drove the truck to his home the day he purchased it. There, he
noticed leakage from the front axle. Ryder instructed Singh to take it to a repair
shop and paid the cost of the repair. Ryder also gave Singh a postpurchase
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inspection form to identify any other problems with the truck. Singh did not identify
any other problems.
Singh testified that he made six or seven trips hauling cargo to California
and consistently had problems with the truck. The record contains references to
repairs performed by Sacramento Truck Center on July 28, 2014, by Valley
Freightliner on August 19, 2014, and by Pacific Power Products on September 8,
2014. Mirza stated that while the express warranty did not cover any of these
repairs, Ryder paid for the August and September repairs because Singh "his wife,
and others on his behalf called and emailed persistently to the point it was a
material distraction to running the dealership."
In exchange for the August and September repairs, Singh signed releases
waiving Ryder's further responsibility for the truck. The releases said,
. . . You understand that Ryder is agreeing to make this payment as
a one-time business accommodation for you and not because it is
obligated to do so under the terms of the warranty or otherwise.
By accepting these terms from Ryder and signing below, you agree
to waive and release Ryder (and all of its affiliated companies and
persons)from all further responsibility of any kind with respect to the
Vehicle and from and against any claims you may have with respect
to it, whether those claims are now known by you or hereafter
discovered. You further acknowledge that this waiver and release is
unconditional, that Ryder has relied upon it in making this
accommodation, and that your signature below acknowledges your
agreement and authority to make this agreement.
On a trip home from California in late September or early October, the truck
began vibrating. According to Singh, Pacific Power Products told him "that the
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engine needed to be rebuilt to finally solve all of the truck's problems." Pacific
Power Products gave Singh an estimate'of approximately $21,000 to rebuild the
engine. Singh has not driven the truck since that time, believing it was not safe to
drive.
On May 15, 2015, All Star sued Ryder, alleging breach of express warranty,
breach of the implied warranties of merchantability and fitness for a particular
purpose, and violation of the Consumer Protection Act (CPA), chapter 19.86
RCW.1 Ryder moved for summary judgment. The trial court granted Ryder's
motion and dismissed All Star's lawsuit. All Star appeals.
STANDARD OF REVIEW
We review an order granting summary judgment de novo.2 We will affirm
summary judgment when the record shows no genuine issue about any material
fact and the moving party is entitled to judgment as a matter of law.3 "A material
fact is one upon which the outcome of the litigation depends." When reviewing a
summary judgment order, we engage in the same inquiry as the trial court,
considering the facts and all reasonable inferences from the facts in the light most
All Star also alleged claims for revocation of acceptance and unjust
1
enrichment, which are not at issue in this appeal.
2 Owen v. Burlington N. Santa Fe R.R. Co., 153 Wash. 2d 780, 787, 108 P.3d
1220(2005).
3 Owen, 153 Wash. 2d at 787.
4 Balise v. Underwood, 62 Wash. 2d 195, 199, 381 P.2d 966 (1963).
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favorable to the nonmoving party.5 We may affirm a trial court's grant of summary
judgment on any basis supported by the record.6
ANALYSIS
All Star contends that summary judgment was inappropriate because a
reasonable trier of fact could have concluded that the limited express warranty's
disclaimer was unconscionable.
RCW 62A.2-316 allows a seller to limit or exclude warranties. "Unless the
circumstances indicate otherwise, all implied warranties are excluded by
expressions like 'as is,' with all faults,' or other language which in common
understanding calls the buyer's attention to the exclusion of warranties and makes
plain that there is no implied warranty."7 And
[w]hen the buyer before entering into the contract has
examined the goods or the sample or model as fully as he or
she desired or has refused to examine the goods there is no
implied warranty with regard to defects which an examination
ought in the circumstances to have revealed to him or her.[5]
Washington courts have adopted a totality of the circumstances approach
for deciding the enforceability of a warranty disclaimer in a commercial setting.9
5 Right-PriceRecreation, LLC v. GonneIls Prairie Cmty. Council, 146 Wash. 2d
370, 381, 46 P.3d 789 (2002).
6 Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wash. App. 479, 485,
269 P.3d 275(2011).
7 RCW 62A.2-316(3)(a).
8 RCW 62A.2-316(3)(b).
9 Puget Sound Fin., LLC v. Unisearch, Inc., 146 Wash. 2d 428, 439, 47 P.3d
940 (2002). This contrasts with the two-prong approach applied to warranty
disclaimers in a consumer transaction, which must be both (1)explicitly negotiated
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No. 75352-5-1/7
The nonexclusive factors considered when making this decision include (1) the
conspicuousness of the disclaimer in the agreement,(2)the presence or absence
of negotiation about the disclaimer,(3)the custom and usage of the trade, and (4)
any policy developed between the parties during the course of dealing.10 To
specifically disclaim the implied warranty of merchantability or fitness, the Uniform
Commercial Code also requires that the disclaimer be in writing and
conspicuous.11 Under the totality of the circumstances approach, we presume the
disclaimer is conscionable unless the party challenging it shows otherwise.12
Here, All Star fails to raise a genuine issue of material fact about the
effectiveness of the limited warranty to disclaim Ryder's liability. First, the
disclaimer is in writing and conspicuous. The limited warranty was printed on a
single page. The disclaimer is written in bold type and all capital letters at the very
top of the page. And the disclaimer expressly mentions both the implied warranties
of merchantability and fitness. Second, Singh had a reasonable opportunity to
understand and discuss the terms of the disclaimer. Singh had bought trucks
before and knew that documents he signed were binding on him. Though Singh
read and spoke limited English, he brought an English-speaking friend to assist
and (2)set forth with particularity. See, e.g., Berg v. Stromme,79 Wn.2d 184, 196,
484 P.2d 380(1971).
10 Puget Sound, 146 Wash. 2d at 439 (citing Schroeder v. Fageol Motors, Inc.,
86 Wash. 2d 256, 259-61, 544 P.2d 20 (1975)).
11 RCW 62A.2-316(2).
12 Puget Sound, 146 Wash. 2d at 439 (citing Schroeder, 86 Wash. 2d at 262).
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No. 75352-5-1/8
him. And Ryder's sales manager spoke Singh's native languages. Moreover,
Singh had the option to purchase additional coverage, which he declined. The
record contains no information about industry custom, and All Star had no prior
course of dealing with Ryder. Thus, the totality of the circumstances supports the
conscionability and enforceability of the warranty disclaimer.
All Star contends that a court can never grant summary judgment when a
party has raised a claim of unconscionability. He cites RCW 62A.2-302(2), which
provides,"When it is claimed or appears to the court that the contract or any clause
thereof may be unconscionable the parties shall be afforded a reasonable
opportunity to present evidence as to its commercial setting, purpose and effect to
aid the court in making the determination." But a summary judgment hearing gives
a party the reasonable opportunity to present evidence contemplated by this
statute.13 And "unconscionability may be determined on summary judgment if
there is no possibility, or no threshold showing, of unconscionability."14
Quoting Cox v. Lewiston Grain Growers, Inc.,16 All Star contends that even
if the warranty disclaimer is conscionable, it is unenforceable if it "fails its essential
purpose." "A limitation of remedies fails its essential purpose when the defect is
latent and non-discoverable upon reasonable inspection."16 But Cox involved
RCW 62A.2-302(1); M.A. Mortenson Co. v. Timberline Software Corp.,
13
93 Wash. App. 819, 835, 970 P.2d 803(1999).
14 M.A. Mortenson Co., 93 Wash. App. at 835.
15 86 Wash. App. 357, 370, 936 P.2d 1191 (1997).
16 Cox, 86 Wash. App. at 370.
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wheat seed that failed to germinate adequately because it had been treated with
pesticides. The court found that the warranty disclaimer was not enforceable
because the buyer could not have discovered the defect until he planted the
seed.17 Here, however, All Star fails to establish that any alleged problems in the
truck could not have been discovered with reasonable inspection.18
Finally, All Star asserts the trial court erred in dismissing its CPA claim. To
prevail on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or
practice,(2) occurring in trade or commerce,(3) a public interest impact,(4) injury
to the plaintiff in his or her business or property, and (5) a causal link between the
unfair or deceptive act and the injury.19 "[W]hether a particular action gives rise to
a Consumer Protection Act violation is reviewable as a question of law."29
All Star asserts only that "[a] reasonable jury could find that Ryder's course
of dealing with All Star from the time of the truck's sale through the parties' last
interaction in October, 2014 was oppressive and heavy-handed, and amounted to
unfair or deceptive acts or practices in trade or commerce." But this general
statement does not prove, nor does the record support, any claim for unfair or
17 Cox, 86 Wash. App. at 370.
18 Because All Star fails to establish that Ryder was obligated pursuant to
express or implied warranties to pay for the repairs, we need not address his claim
that the releases were unenforceable for lack of consideration.
19 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d
778, 780, 719 P.2d 531 (1986).
20 Leingang v. Pierce County Med. Bureau, Inc., 131 Wash. 2d 133, 150, 930
P.2d 288(1997).
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No. 75352-5-1/10
deceptive practices here. "Absent adequate, cogent argument and briefing, we
decline to wander through the complexities of the Consumer Protection Act."21
We affirm the summary judgment dismissal of All Star's lawsuit.
WE CONCUR:
jtQv•d_Cle-1, 13e,keK,
• 21Saunders v. Lloyd's of London, 113 Wash. 2d 330, 345, 779 P.2d 249
(1989); see also Palmer v. Jensen, 81 Wash. App. 148, 153, 913 P.2d 413 (1996)
("Passing treatment of an issue or lack of reasoned argument is insufficient to merit
judicial consideration.").
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