Beverly Zylstra v. DRV, LLC ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1949
BEVERLY ZYLSTRA and BERNARD ZYLSTRA,
Plaintiffs-Appellants,
v.
DRV, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:18-cv-00266-WCL-SLC — William C. Lee, Judge.
____________________
ARGUED DECEMBER 11, 2020 — DECIDED AUGUST 10, 2021
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. Bernard and Beverly Zylstra spent
close to $100,000 on a brand-new recreational vehicle in order
to enjoy travel and recreation during their retirement years.
One can imagine their disappointment when they began to
collect a long list of defects, large and small, as they began
their adventures. As the list grew, so did their frustration un-
til, on August 27, 2018, they filed suit against the manufac-
turer, DRV, LLC, for breach of express and implied
2 No. 20-1949
warranties under state law, violation of the federal Mag-
nuson-Moss Act (MMWA), and violation of state deceptive
practices acts. Although we sympathize with the frustrations
the Zylstra’s experienced trying to rectify the long list of prob-
lems, we uphold the district court’s grant of summary judg-
ment for DRV, as even in the light most favorable to the Zyl-
stras, DRV never had a reasonable opportunity to repair the
defects as required under the warranty and therefore the Zyl-
stras’ claims cannot survive.
I.
The Zylstras purchased their RV from non-party Bradley
Bourbonnais Chevy Hundai RV in Bourbonnais, Illinois for
$91,559.15. The RV came with a one-year warranty that war-
ranted 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.” R. 28-8. Under the terms of the warranty,
“[w]ritten notice of defects subject to warranty coverage must
be given to the selling dealer or DRV … within 30 days after
the defect is discovered … no later than 30 days after [the war-
ranty] expiration.” Id. In addition, “the owner shall contact
the selling dealer or the Factory if a problem occurs which
may be directly covered by this warranty with sufficient in-
formation to resolve the matter,” and the owner is required to
take the RV to the selling dealer or factory for repair. Id.
Unlike an automobile, each DRV vehicle is custom built
for the purchaser. Consequently, as with a custom-built
home, there are almost always adjustments and repairs to be
made after the sale. Thus, after the Zylstras purchased the RV,
but before delivery, the dealer performed some of these
tweaks while waiting for the Zylstras to pick up the vehicle.
No. 20-1949 3
The Zylstras neither requested nor knew about these pre-
pick-up repairs and adjustments. The Zylstras assert that a
Bradley salesman later informed them that the vehicle had
been “cannibalized” while on the Bradley lot, but they do not
assert any claims about specific items that were missing or re-
placed with inferior items. R. 28-3 at 13.
Once the Zylstras retrieved the RV, they went for a two-
day camping trip to put the vehicle to the test. During that
trip, they made a punch list of about seventeen items, most of
which were relatively minor, ranging from items like a miss-
ing screw in an overhead compartment to a leaky toilet valve.
Less than a week after dropping off the RV at the dealer for
those repairs, the Bradley service manager called the Zylstras
to inform them that the technicians had discovered damage
to the roof. A dispute ensued over who was responsible for
the roof damage, and ultimately the Zylstras decided to make
an insurance claim and have the roof repaired at the DRV fac-
tory, as it had quoted a price for the repair that was almost
half of the quote from Bradley. The dealer did not perform
any warranty repairs while awaiting the outcome of the roof
dispute.
When the Zylstras took the RV to the factory repair shop
in Indiana for the roof repair, they learned that they could
take the RV to any DRV authorized dealer for warranty re-
pairs. On June 27, 2017, they did just that—bringing the RV to
Plaza RV, another authorized dealer. This was the first time
after they picked up the vehicle that any technicians put their
hands on it to make warranty repairs, which by this point
numbered about eighteen. The Zylstras picked up the RV
fifty-one days later, on June 27, 2017, and took it on an eleven-
day camping trip to make sure all the repairs had been
4 No. 20-1949
successful. During that trip, the Zylstras made a new punch
list of fifteen items. Only two of the items on the new list also
had been on the previous list—a missing overhead cabinet
screw that may have been mis-identified the first time, and an
antenna, manufactured by a separate company, that was dis-
playing error codes. The remaining sixteen items included
two new items that will become important to this case. The
Zylstras identified them as “Black Holding Tank Leaks” and
“Black Holding Tank Hard to Close.” R. 28-3 at 9.
On September 11, 2017, the Zylstras dropped the RV off at
Plaza RV once again to repair the new punch list items, and
to add some after-market items that were outside of the war-
ranty claim and not directly relevant to the case. The Zylstras
informed Plaza RV that they would need the vehicle by Janu-
ary 1 for a long trip to Texas, and, in fact, they were able to
retrieve the vehicle on December 21, 2017. From there it went
into storage for a week until they left for their trip.
A week into the Texas trip the Zylstras started to smell a
strong odor after dumping the black sewage tank—the tank
on an RV that holds waste from the toilet. A few weeks later,
Mr. Zylstra discovered that the black tank valve was leaking
at the flange connections and that sewage had been leaking
from the tank into the insulation throughout the underbelly
of the RV. He could not find a DRV authorized dealer to re-
pair the leak, but an independent mobile technician came and
completed the repair. The technician removed the valve gas-
kets, cleaned the valve seals, cleaned the valve, and replaced
the valve gaskets between the two flanges.
Soon after that event, the Zylstras contacted Greg Weldon
from DRV to discuss the black tank repairs and who would
shoulder the bill. We describe this dispute further within, but
No. 20-1949 5
in the end, the Zylstras did not take the RV to the dealer or
any authorized DRV repair shop to remedy the leaking black
tank or the damage it caused. To this day, the black tank and
related issues have not been presented to DRV or the dealer
to repair.
After the leak, the Zylstras stopped using the RV out of
concern for their health. They contend that it is not, and never
has been, fit for its ordinary purpose of recreational use. Con-
sequently, on August 27, 2018, they filed a complaint alleging
breach of express and implied warranty, violation of the Mag-
nuson-Moss Warranty Act (MMWA), and violation of state
consumer protection laws. The district court granted DRV’s
motion for summary judgment on all claims on May 18, 2020.
On appeal the Zylstras allege that (1) the district court im-
properly made factual determinations as to disputed issues of
material fact when granting summary judgment to DRV;
(2) reasonable minds could conclude that DRV breached its
express warranty under state law and violated the MMWA;
(3) the district court committed reversible error when it failed
to conduct a choice of law analysis regarding the Zylstras’
breach of implied warranty claim under state law; and (4) rea-
sonable minds could conclude that DRV violated Indiana’s
Deceptive Consumer Sales Act.
II.
The parties presented dozens of pages of specific and de-
tailed facts. The presentation of so many seemingly disputed
facts generally prompts us to pause and ask whether such a
case is one to resolve on summary judgment. See Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003). In this case, however,
the disputed facts are not material to the outcome. We review
the district court’s grant of summary judgment de novo and
6 No. 20-1949
will affirm only if we find that there are no genuine issue of
material fact and DRV is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Although we take the facts in the light
most favorable to the plaintiff, those facts must be supported
by sufficient record evidence. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).
A. Breach of warranty.
1. Opportunity to remedy defects.
We begin with the Zylstras’ primary claim that DRV
breached the express warranty under state law. Both parties
contend that Indiana law governs this claim. Under Indiana
law, to prevail on a breach of warranty claim, the Zylstras
must prove “(1) the existence of a warranty, (2) a breach,
(3) causation, and (4) damages.” Mathews v. REV Recreation
Grp., Inc., 931 F.3d 619, 622 (7th Cir. 2019), citing Peltz Const.
Co. v. Dunham, 436 N.E.2d 892, 894 (Ind. Ct. App. 1982). A
warranty can be breached, under Indiana law, where “an ex-
clusive or limited remedy fail[s] of its essential purpose.” Ind.
Code § 26-1-2-719(2); Perry v. Gulf Stream Coach, Inc., 814
N.E.2d 634, 643 (Ind. Ct. App. 2004). “Timely notice of a
breach of warranty is a substantive condition precedent to re-
covery.” McClure Oil Corp. v. Murray Equip., Inc., 515 N.E.2d
546, 554 (Ind. Ct. App. 1987).
In order to make a claim of breach of warranty, the pur-
chaser must give the warrantor a reasonable opportunity to
repair the defects. Mathews, 931 F.3d at 622. The Zylstras con-
tend that this is only true if the warranty specifically imposes
that requirement. In this case, the warranty requires the pur-
chasers to notify DRV or a selling dealer of any warrantable
No. 20-1949 7
issue and to take the RV to DRV or an authorized dealer for
repairs. R. 28-8 at 2. It also requires an owner to notify DRV if
the selling dealer is unwilling to resolve a problem covered
by the warranty. Id. Those requirements are, in fact, require-
ments to allow a reasonable opportunity to repair. But even
were they not, this court has recently interpreted Indiana state
law to require that the purchaser give the warrantor the op-
portunity to repair, and to do so more than two times:
“[u]nder Indiana law, two chances is not a reasonable oppor-
tunity to cure the defects such that the warranty failed of its
essential purpose.” Mathews, 931 F.3d at 622, (citing General
Motors Corp. v. Sheets, 818 N.E.2d 49, 53 (Ind. Ct. App. 2004))
(explaining that under Indiana’s Lemon Law, “[a] reasonable
number of attempts is considered to have been undertaken if
the nonconformity has been subject to repair at least four
times but continues to exist, or if the vehicle has been out of
service for at least thirty business days and the nonconformity
continues to exist.”). The federal district courts in this circuit
have relied on this interpretation of Indiana law to hold that
a warranty does not fail of its essential purpose unless an RV
manufacturer has been given a reasonable number of at-
tempts to cure the defect, meaning at least more than two. See,
e.g., Smith v. Nexus RVs, LLC., 468 F. Supp. 3d 1012, 1024 (N.D.
Ind. 2020) (finding that the warranty did not fail at its essen-
tial purpose where the manufacturer corrected all of the de-
fects in the first attempt, except for one that required two at-
tempts to fix.); Castagna v. Newmar Corp., No. 3:15-CV-249 JD,
2020 WL 525936, at *5 (N.D. Ind. Feb. 3, 2020) (noting that the
Seventh Circuit’s opinion in Mathews has stated that two
chances is not a reasonable opportunity to cure defects.).
It is worth noting that in Mathews, the owners of the RV
encountered a long list of troubling defects. None of those
8 No. 20-1949
defects, however, interfered as fully and completely with the
use and enjoyment of the RV as the primary defect that the
Zylstras encountered—a sewage leak that permeated the in-
sulation of the underbelly of the RV and, according to the Zyl-
stras facts, made the RV completely unusable for its intended
purpose. Although in Mathews we stated that “two chances is
not a reasonable opportunity to cure the defects such that the
warranty failed of its essential purpose,” we reserve judg-
ment as to whether, in the case of a major defect that made the
RV unusable in any manner, we would require the purchaser
to present the vehicle three times. Mathews, 931 F.3d 619, 622.
We need not resolve this question here, as after the RV be-
came contaminated by the sewage leak, the Zylstras did not
present it to DRV even once.
The Zylstras complain that the Mathews decision is distin-
guishable, because (1) the warranty in that case contained ad-
ditional requirements; (2) the warranty contained a back-up
remedy containing additional repairs, and (3) there were mul-
tiple unauthorized repair attempts. We do not see why any of
these differences, if they are, in fact differences, alters the re-
quirement described in Mathews as applied to this case.
What the Zylstras seem to want, from their long list of
itemized problems with the RV, is a ruling that takes into ac-
count not just the number of attempts and the number of days
out of service, but instead also looks at the sheer quantity of
repair issues, even if they are timely repaired. It is an under-
standable position, but one without current legal support.
Moreover, Indiana law requires owners to give the manufac-
turer an opportunity to cure. The Zylstras undoubtedly
bought an RV beleaguered by problems. The Zylstras paid al-
most $100,000 for an RV that was the culmination of a dream
No. 20-1949 9
for how to spend their retirement. Once again, we can only
imagine their disappointment at having invested in a retire-
ment dream riddled with defects. Nevertheless, the law at-
tempts to strike a reasonable balance between providing relief
to purchasers and allowing manufacturers the opportunity to
fix remediable problems.
Consequently, we have interpreted Indiana law to require
a warranty holder to give a defendant a reasonable chance to
cure the defects. Mathews, 931 F.3d at 623. And under our in-
terpretation, a reasonable opportunity to cure, at least in cases
where the defects are somewhat minor, and not affecting full
use of the vehicle, means at least three chances. Id. at 622. We
can conclude, therefore, that in this case the problems must
remain unresolved after the third attempt before a purchaser
can support a claim for breach of warranty. It is true that the
Mathews court pointed to Indiana’s Lemon Law (which is not
directly applicable to RVs) as support for its interpretation,
but courts commonly analogize from and refer to related stat-
utes in statutory interpretation. (We note that under Indiana’s
Lemon Law, to which the Mathews court pointed for the
presentation requirement, the defect must be presented at
least four times). The problem for the Zylstras’ claim is that
none of the issues of which they complain meet these require-
ments. Either 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.
We begin with the easiest to address—the Zylstras’ list of
twelve items that they did not discover until after the date of
the last repair. See Zylstra brief at pp 33–34. Although we sym-
pathize with the Zylstras for what must seem like an ever-
10 No. 20-1949
increasing list of problems, issues that the Zylstras never pre-
sented to DRV or the dealer for repair cannot form the basis
of a breach of warranty claim. The limited warranty requires
the Zylstras to notify DRV or a selling dealer of any warrant-
able issue within the repair period. It is undebatable that none
of these late discovered twelve items was ever presented to
DRV.
The Zylstras also list eleven minor defects that were sub-
ject to repair twice. See items labeled “(2x)” in Zylstra brief at
32–33. It is unclear which of the alleged six “repair attempts”
enumerated in their brief the Zylstras count toward the two
repair attempts before technicians laid hands on these items
on June 27, 2017.1 But, in fact, each of these eleven items was
remedied the first time a DRV factory repair person at-
tempted repair—when the Zylstras took the RV to Plaza RV
on June 27, 2017. But even were we to give the Zylstras the
benefit of the doubt that DRV had the opportunity to repair
these eleven issues before June 27, 2017, the warranty cannot
have failed of its essential purpose when DRV paid for and
successfully repaired these eleven issues even in two tries, as
alleged. These successfully repaired issues, that DRV paid for
and repaired under warranty in less than three tries, cannot
form the basis of a breach of warranty claim. Nor, of course,
1
It is difficult to follow the Zylstras’ counts of repair attempts. If we
were to count their alleged second and third repair attempts (which they
describe on pages 20-24 of their brief), then all of these items would have
been subject to three repair attempts, and, according to their list, all re-
paired in three or fewer attempts. As we describe further below, however,
several of the events that the Zylstras describe cannot, as a matter of law,
be considered repair attempts. Moreover, any issue resolved in three at-
tempts would not constitute a breach of warranty.
No. 20-1949 11
can the many other items listed in their brief that were re-
paired on the first try. (By our count, those total nineteen.)
After eliminating all of these possible sources of a war-
ranty breach, we are left with six items that fall under the cat-
egory of items that the Zylstras claim were presented but are
still not repaired. Those are: the over-the-air antenna is
“showing codes;” crooked microwave; crooked television; the
door hold will not stay open; the gas switch on the stove is
hard to light; and “black tank leak into the underbelly.” See
Zylstra brief at 33. The over-the-air antenna can be eliminated,
as it was manufactured by a third party and subject to third
party warranties. DRV’s warranty specifically excludes,
“[e]quipment, products, components, appliances or accesso-
ries not originally manufactured by DRV.” R. 20 at 1. As the
warranty goes on to explain, “Some of these products may be
covered under a warranty by their manufacturers.” Id. The
antenna was not manufactured by DRV, was subject to a
third-party warranty, and thus cannot form the basis of a war-
ranty breach.
The Zylstras concede that they only presented the prob-
lem with the door hold and the gas switch to DRV on a single
occasion, and the crooked microwave and television twice.
See Zylstra brief at 33. For the reasons we have already artic-
ulated, these single and double presentations cannot form the
basis of a claim of breach of warranty.
We have now eliminated all but the most troubling defect
in this case—that involving the black tank leak. There is no
dispute that the leaking black tank and the resulting mold
have caused significant damage to the RV, but what we do
not know is whether the problems amounted to a breach of
warranty. Nor do we know whether the damage was caused
12 No. 20-1949
by a manufacturer or user error. (The process for emptying,
cleaning, and maintaining the black tank and its connections
is complicated and it must be done properly.) For purposes of
summary judgment, however, we will assume a manufac-
turer error.
The first time the Zylstras ever reported any issues with
the black tank was on September 11, 2017, when they took the
RV to Plaza RV to repair approximately sixteen items. These
were issues they identified after giving the RV a test run on
an eleven-day camping trip. The list of items included, among
many others: “Black Holding Tank Hard to Close; Black Hold-
ing Tank Leak.” R. 28-3 at 9. Plaza RV informed the Zylstras
that it had repaired all of the items and that the service (other
than a few non-warranty, after-market items) was covered by
the warranty.
After picking up the RV from that service appointment,
the Zylstras left for their first extended trip in the RV—a trip
to Texas—at the beginning of January 2018. It was on that trip
that they once again noticed the black tank leak and also a
subsequent odor. When the Zylstras could not find an author-
ized DRV repair person who could come to their location,
they eventually hired a mobile technician. Although the tech-
nician cleaned and replaced some valves and parts, the Zyl-
stras were still concerned about the residue from the leak.
According to Mr. Zylstra’s deposition testimony, shortly
after the repair, the Zylstras contacted someone from DRV
about the black tank leak. During that conversation, Mr. Zyl-
stra asked for a guarantee that it could be cleaned, but the rep-
resentative of DRV did not provide one. The deposition testi-
mony was as follows:
No. 20-1949 13
Q. At any point in time, did Greg indi-
cate·that DRV wasn’t willing to attempt to ad-
dress the·smell and the issues?
A. Not that I recall. Just that they couldn’t
guarantee anything that—as far as cleanup.
Couldn’t guarantee that, you know, the unit
wouldn’t be a biohazard problem.
Q. Did Greg use those words, that he
“couldn’t guarantee”—
A. Yes, those were his words, that “DRV
couldn’t guarantee.”
Q. That it wouldn’t be a biohazard prob-
lem?
A. Yeah, that wouldn’t—that they couldn’t
get it cleaned up.·He didn’t say biohazard, but
couldn’t get it cleaned up.
Q. And you took that as a cue and never—
or did you ever schedule any kind of repairs
with DRV or any dealer to try to address the
smell issue or the leak from the tank?
A. No.·Because I was—I was looking
around to try to find some information on—you
know, when·we—if you have a spill like that in
your RV, what can be done about it?·I don’t re-
member any subsequent conversations with
Greg.
R. 23-1 at 75–76. Thus, according to this testimony, the DRV
representative never stated that DRV was not willing to at-
tempt to address the clean up and odor. R. 23-1 at 75.
14 No. 20-1949
Nevertheless, the Zylstras did not schedule any kind of repair
with DRV or any dealer after that. R. 23-1 at 75–76. Mr. Zylstra
also testified that they did not request reimbursement for the
repairs and maintenance done by the mobile repair person.
R. 23-1 at 71.
In a later affidavit filed after the deposition, Mr. Zylstra
stated that the representative from DRV agreed to reimburse
the Zylstras under the warranty for the repair done by the
mobile repair person. R. 28-3 at 10. He also stated, contrary to
his deposition testimony, that the representative from DRV
“told me that any cleanup would not be covered under the
DRV warranty.” Id. The affidavit testimony was as follows:
Soon after, we contacted Greg Weldon from
DRV about the black tank leak and he agreed
that DRV would reimburse us under the war-
ranty for the repair of the leak that had been per-
formed by Gabriel’s Maintenance. We also dis-
cussed the possibility of the RV going back to
the DRV factory to clean up the sewage that had
leaked into the RV, but during our call with
Greg Weldon on February 5, 2018, he told us
that DRV would not guarantee that they would
be able to clean up the sewage or that the sew-
age smell would ever go away. He also told me
that any clean up would not be covered under
the DRV warranty. It was at this point that we
lost all faith in DRV and their ability or willing-
ness to stand behind their warranty and repair
our RV.
R. 28-3 at 10–11. This later affidavit claim that DRV refused to
cover the clean up under the warranty, which appears to
No. 20-1949 15
contradict the earlier deposition testimony, cannot be the ba-
sis for a factual dispute. Howell v. Smith, 853 F.3d 892, 900, n.18
(7th Cir. 2017) (noting that the court does not allow a party to
contradict deposition testimony with later-filed contradictory
affidavits in order to create “sham issues of fact with affida-
vits that contradict their prior depositions.”).
The Zylstras retort that the affidavit does not contradict
the deposition because in the deposition, Mr. Zylstra stated
that he did “not recall” whether Greg stated that DRV was not
willing to address the smell and the sewage issues. In the af-
fidavit, he seemed certain that the DRV representative “told
me that any clean up would not be covered under the DRV
warranty.” R. 28-3 at 10. It takes a rather thin knife to split
those hairs.
In any event this factual dispute, should we find one,
would not prevent summary judgment. It is undisputed that
the repair of the black tank valve was never presented to DRV
or the dealer after the Texas camping trip. Instead, because
they “lost all faith in DRV and their ability or willingness to
stand behind their warranty and repair [the] RV,” the Zylstras
did not schedule any repairs with DRV or any dealer to try to
address the issues from the leak. R. 28-3 at 10–11. Conse-
quently, because the Zylstras never presented the RV to DRV
for repair after the Texas trip and the sewage leak, they did
not comply with the terms of the warranty and thus defeated
the warranty’s purpose.2
2 On top of this failure-to-present-for-repair question, DRV argues
that the black tank leak in Texas was caused by the Zylatras’ misuse as
opposed to a defect attributable to DRV. (A black tank must be cleaned
and maintained properly.) But whether the leak could be attributable to a
16 No. 20-1949
The Zylstras assert that the district court made factual de-
terminations as to “which repairs to consider and which re-
pairs not.” Zylstra brief at 18. But as we noted, even when we
have taken each repair attempt in the light most favorable to
the Zylstras, they still have not provided DRV with a suffi-
cient opportunity to repair. In this way, this case mirrors that
of the recent decision in Kuberski v. Rev Recreation Grp., Inc.,
No. 20-3127, 2021 WL 3076749, at *4 (7th Cir. July 21, 2021). In
that case, we found that the warranty created bilateral obliga-
tions. “The dealer and manufacturer agreed to repair defects,
but the buyer was required to provide the dealer and manu-
facturer with notice and an opportunity to cure the defects.”
Id. at *2. We held that the plaintiff’s failure to give the RV
manufacturer an opportunity to cure the defects defeated the
warranty’s stated purpose. Although the case referenced
North Carolina law on substantial compliance with a contract,
the conclusion is the same here where the warranty creates
the same bilateral obligations on the parties. As the Kuberski
opinion explained:
In the present case, we can infer from the war-
ranty that in exchange for a promise to repair
any defects, REV expected that the buyer (Ku-
berski) would notify it of defects and give it an
opportunity to cure. Such a “notice-and-oppor-
tunity” regime gives the manufacturer a chance
to make amends with its customer, see what
went wrong with its product, learn from its
warrantable defect or was the result of user error, is a factual question that
we cannot address on summary judgment. For the sake of summary judg-
ment, we will assume that DRV was responsible for the defect. See Payne,
337 F.3d at 770.
No. 20-1949 17
errors, and evaluate how its authorized dealers
are performing repairs.
Id. at *3. The Zylstras’ failure to present the RV to DRV for
repair dooms the Zylstras’ claim, just as it did in Kuberski.
2. Time out of service.
The Zylstras also argue that DRV did not repair the defects
within a reasonable amount of time, leaving the RV out of ser-
vice for 230 days, thus defeating the essential purpose of the
warranty. This too requires a seemingly fact-intensive analy-
sis. Taking all of the facts in the light most favorable to the
Zylstras, however, we conclude, as a matter of law, that the
essential purpose of the warranty was not defeated by the
amount of time out of service.
Calculating the time out of service for an RV is compli-
cated. Unlike an automobile, many RVs spend the majority of
their time in storage. When a person takes a car to the repair
shop, she expects a quick turnaround as she likely relies on
that vehicle for employment and daily living. When owners
drop off an RV for repair, however, they may not need the
vehicle for many months, and, in some cases in fact, every day
that the RV sits in the repair shop, is one less day that the
owner must pay for storage. This makes calculating out-of-
service days less straight forward than it would for an ordi-
nary automobile. But even giving the Zylstras the benefit of
the doubt on all factual matters, we can determine as a matter
of law, that the time that the RV spent in repair was not so
excessive that the warranty failed of its essential purpose.
For example, included in the Zylstras’ calculation of 230
days out of service are the 52 days between the time they pur-
chased the RV and the time they were able to pick it up, after
18 No. 20-1949
purchasing a truck to tow it. During this time, DRV per-
formed normal adjustments and tweaks, but the Zylstras did
not request these repairs or even know about them. Therefore,
they did not notify the dealer as required by the warranty. As
a matter of law these were not warranty claims and the RV
was not out of service during the time they were addressed.
In addition, the time the RV spent at Bradley did not con-
stitute a reasonable opportunity to cure the defect as required
by the warranty. On April 29, 2017, the Zylstras brought the
RV to Bradley Chevrolet for punch list repairs. (The Zylstras
label this the “Second Post-Sale Repair Attempt.”) After the
RV had been there for about a week, the dispute about re-
sponsibility for the damaged roof ensued. According to Mr.
Zylstra, once the Zylstras informed Bradley that they would
take the RV to DRV’s factory service center in Indiana for the
roof repair, the service manager told them “they can just take
care of the rest of the problems” on the punch list. R. 23-1 at
48. The Zylstras picked up the RV from Bradley on May 20,
2017. According to the warranty, “If the selling dealer is un-
willing to resolve a problem which the owner is convinced is
covered by this warranty, the owner should write to DRV at
the address listed below with a description of the problem
and attempts made to resolve it.” The Zylstras did not inform
DRV that the dealer was unwilling to resolve the problems.3
3The Zylstras did eventually complain to DRV about the service it
received from Bradley—many months and repairs later—but that letter
merely stated, “When informed that the factory would be replacing the
roof the service manager, Donald Caine, said that the factory could just fix
the other items as well.” R. 28-17 at 2. Mr. Zylstra’s deposition testimony
was in accord: “I had informed [the service manager] that the factory
would be replacing the roof. He got a little annoyed and said, “Well, they
can just take care of the rest of the problems.” R. 23-1 at 47-48. The Zylstras
No. 20-1949 19
Instead, after the Zylstras were informed of the roof damage
and the cost to repair they “reached out to the factory to have
the repairs done at the factory.” R. 23-1 at 48. Thus, under the
facts as presented by the Zylstras, this was not an adequate
presentation of the issue to DRV.
The Zylstras dropped the RV off at the DRV service facility
in Indiana for the scheduled roof repair on June 21, 2017. (The
Zylstras label this the “Third Post-Sale Repair Attempt.”) The
Zylstras asked if the factory could address the warranty is-
sues as well, but the factory informed them that they had only
scheduled two days for the roof repair and did not have suf-
ficient labor available to address the other issues for some
time. R. 34-2. While there, the Zylstras learned that they could
have the warranty items addressed at any authorized dealer
and decided to take the RV to Plaza RV for repairs rather than
wait for the factory to have time available. These four days,
therefore, do not count toward warranty repairs, as the Zyl-
stras made an appointment for the non-warranty-related roof
repair only and did not follow up when told that the warranty
repairs, which were outside the scope of the roof-repair ap-
pointment, would take more time. As a legal matter, a pur-
chaser has not given a warrantor a reasonable opportunity to
repair if he appears at the doorstep of the manufacturer and
demands repair in a timeframe that is not possible for the war-
rantor. This is akin to a patient scheduling a dental cleaning
at the dentist and while there asking if the dentist can also
repair a crown, fill a cavity, and perform teeth whitening. The
dentist, who has only scheduled an hour with a hygienist for
never followed up with DRV as was the requirement of the warranty. In-
stead, they took the RV to another authorized service center where the
warranty items were repaired.
20 No. 20-1949
cleaning, has not denied treatment when she requires the pa-
tient to schedule another time for the remaining treatments.
Instead of following up with the DRV service facility in
Indiana after the roof repair, the Zylstras decided to take the
RV to another authorized dealer, Plaza RV. (The Zylstras label
this the “Fourth Post-Sale Repair Attempt.”) Even with the
facts taken in the light most favorable to the Zylstras, the visit
to Plaza RV does not support a claim for breach of contract.
When the Zylstras dropped the RV off at Plaza RV on June 27,
2017, they were told that the repair shop was shorthanded
and that it would “be a little bit” before the RV would be fin-
ished. R. 23-1 at 53. The parties did not agree on a completion
date. Plaza RV held the Zylstra’s RV for fifty-one days, during
which time it attempted repairs of seventeen items that the
Zylstras had submitted. Plaza RV also performed one non-
warranty installation for the Zylstras. This was the first time
any dealer or factory attempted any warranty repairs of the
RV. By the Zylstras’ own account, they were informed that
Plaza RV was shorthanded, and that the repairs would be de-
layed. But also by their own account, they acquiesced to the
repair under these conditions, and they did not notify DRV
that the dealer was unwilling to repair any problems.
After the August 2017 pick-up, the Zylstras went camping
again to make certain everything was working before their
scheduled trip to Texas in January 2018. During that trip, they
compiled a second punch list of sixteen items, which they pre-
sented to Plaza RV when they dropped the RV off on Septem-
ber 11, 2017. (The Zylstras label this the “Fifth Post-Sale Re-
pair Attempt.”) Only one warranty item from the first list ap-
peared on the second list—some screws that were missing
from an overhead compartment. Not only was this a very
No. 20-1949 21
minor issue, but also, Mr. Zylstra was not certain whether
Plaza RV had understood which door was missing the screws
the first time. (The antenna repairs also appeared on both lists,
but we have already determined that the antenna was not
covered under the DRV warranty). This was also the first time
that the Zylstras mentioned any problems with the black
holding tank, which they stated “leaks” and was “hard to
close.” R. 28-3 at 9. During this time at Plaza RV, the Zylstras
also decided to add some after-market items (a fireplace and
some automatic stairs, for example) which were separate and
apart from any of the warranty repairs and added some repair
time to the clock.
When the Zylstras dropped off their RV at Plaza RV on
September 11, 2017, they told Plaza RV that they needed the
RV to be repaired before the start of 2018—in time for their
trip to Texas. Although 102 days is a long time for the RV to
be out of service, the Zylstras made clear that they did not
need the RV until the start of the new year. And, in fact, when
Plaza RV completed the repairs by December 21, 2017 (ten
days before the end of the year), the Zylstras put the vehicle
in storage until they were ready to use it. The Zylstras claim
that their letter to DRV during this repair time demonstrated
that they did not accede to this several month repair time.
This letter, however, only references having lost “a significant
amount of camping enjoyment by not having a usable coach
in our possession,” and does not specifically reference
whether this particular time in the shop at Plaza RV (Septem-
ber 11, 2017 to the date of the letter, October 16, 2017) had in-
terfered with their camping time or whether they had in-
tended to have the RV in storage in any event. R. 28-17 at 2. In
sum, the repairs were completed within the time frame set
forth by the Zylstras themselves and therefore could not have
22 No. 20-1949
been evidence of a breach or that the warranty failed of its
essential purpose.
In the end, the Zylstras’ stated breach of express warranty
claim fails because DRV did not have the required oppor-
tunity to repair the warranty items. We have also considered
the days out of service during the times in which DRV had
the opportunity to repair, and conclude that, as a matter of
law, the repair time could not have caused the warranty to fail
of its essential purpose. For this reason the claims under the
Magnuson Moss Warranty Act also fail. The Act creates a fed-
eral cause of action for any “consumer who is damaged by the
failure of a supplier, warrantor, or service contractor to com-
ply with any obligation under [the statute], or under a written
warranty, implied warranty, or service contract.” 15 U.S.C.
§ 2310(d)(1). The MMWA depends on the existence of an un-
derlying viable state-law warranty claim, and so the two
claims can be evaluated together and succeed or fail together.
B. Breach of implied warranty.
For these same reasons, the Zylstras’ implied warranty
claim must fail too. As we have interpreted Indiana law in the
past, just as with a claim for breach of an express warranty, a
buyer must give the warrantor a reasonable opportunity to
cure any alleged defect in order to make a claim of breach of
an implied warranty. Matthews, 931 F.3d at 623. Any other in-
terpretation would make a warrantor strictly liable for any
warrantable defects without being given any opportunity to
cure the defect.
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
No. 20-1949 23
substantive argument is waived. Griffin v. Bell, 694 F.3d 817,
822 (7th Cir. 2012) (“[A]rguments raised for the first time in a
reply brief are deemed waived.”). In the opening brief, the
only issue the Zylstras raise related to the implied warranty
(issue three on pages 38–40 of their brief), is a claim that the
district court committed reversible error when it failed to con-
duct a choice of law analysis regarding the implied warranty
claim. The Zylstras requested that the district court apply In-
diana law, which, as we described in Mathews, requires a rea-
sonable opportunity to cure the defect. DRV, on the other
hand, asked the court to apply Illinois law, which requires
privity of contract to bring a claim of implied warranty of
merchantability. See Voelker v. Porsche Cars N. Am., Inc., 353
F.3d 516, 525 (7th Cir. 2003) (“Under the law of Illinois, privity
of contract is a prerequisite to recover economic damages for
breach of implied warranty.”). Under either state law, the Zyl-
stras’ implied breach of warranty claim fails. The Zylstras did
not give DRV an opportunity to cure. And under Illinois law,
the Zylstras’ claim would have been defeated right out of the
gate, as they lacked privity of contract with DRV, having
bought the RV from a dealer.
C. Indiana Deceptive Consumer Sales Act.
The Zylstras’ final claim is that DRV violated the Indiana
Deceptive Consumer Sales Act. Those claims can be catego-
rized as (1) uncured deceptive acts (which do not require a
showing of an intent to defraud or mislead); and (2) incurable
deceptive acts (which require such a showing). Ind. Code
§ 24-5-0.5-2(7) & (8). The Zylstras allege that the uncured de-
ceptive acts are (a) breaching an express warranty; (b) breach-
ing an implied warranty; and (c) violating the MMWA. Be-
cause we have concluded that none of these breaches or
24 No. 20-1949
violations occurred, these claims fail. And in any event, the
Indiana Supreme Court has stated that a breach of contract
does not suffice to support a claim of false representation un-
der the Act. McKinney v. State, 693 N.E.2d 65, 73 (Ind. 1998)
(“Although these allegations may support a breach of con-
tract claim, without more flesh these bare bones do not state
claims under the Act. A broken promise is not ipso facto a
false representation.”).
The Zylstras also allege that DRV committed incurable de-
ceptive acts by (a) representing that the RV had performance
characteristics, accessories, uses, or benefits which DRV rea-
sonably knew it did not; (b) misrepresenting that the RV was
of a particular standard or quality; (c) knowingly misrepre-
senting the Zylstras’ warranty rights; and (d) stalling and de-
laying a performance obligation under the warranty by refus-
ing to perform repairs.
As evidence that DRV misrepresented the performance
and quality of the RV, the Zylstras point to a brochure that
advertises that the RV “offers all the comforts of home, all the
conveniences of a residential kitchen and the peace of mind
knowing that you’ve chosen the best construction on the mar-
ket today.” R. 28-4 at 3 (emphasis in original). But such state-
ments of “unverifiable opinion,” are classic examples of puff-
ery and are not actionable under the IDCSA. Kesling v. Hubler
Nissan, Inc., 997 N.E.2d 327, 332–33 (Ind. 2013) (“statements of
the seller’s opinion, not made as a representation of fact—
such as claiming a product is “the best”—are simply puffing
which does not create an express warranty.”) (cleaned up);
All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868 (7th
Cir. 1999) (noting that empty superlatives and meaningless
sales patter are not misrepresentations.). As we noted, RVs
No. 20-1949 25
are more like new homes than automobiles in many ways. As
with a new home, adjustments and changes are often required
and the buyer has some time to note and ask for repair or re-
placement of defective parts. As a result, a long list of post-
production repairs does not necessarily prove that the RV is
of deficient quality. Consequently, we can conclude that DRV
did not commit a deceptive act under Ind. Code. 24-5-0.5-3(a)
through its advertisements or by representing that the RV was
of a standard or quality that it was not.
Taking the facts in the light most favorable to the Zylstras,
an employee at Bradley Chevrolet misrepresented to them
that they were required to take the RV to Bradley Chevrolet
for any and all warranty repairs. Incurable deceptive acts re-
quire a showing of intent, and the Zylstras did not offer any
evidence that the employee intended to mislead them as op-
posed to merely being confused or misinformed. Finally, as to
stalling and delaying warranty repairs, these claims were dis-
cussed and rejected in our discussion of the reasonableness of
the time for repair.
For the reasons stated above, the judgment of the district
court is AFFIRMED in all respects.