[Cite as Powell v. Airstream, Inc., 2019-Ohio-3034.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




DAVID POWELL,
                                                           CASE NO. 17-18-17
       PLAINTIFF-APPELLANT,

       v.

AIRSTREAM, INC.,                                           OPINION

       DEFENDANT-APPELLEE.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 17CV000145

                                      Judgment Affirmed

                               Date of Decision: July 29, 2019



APPEARANCES:

        Elizabeth Ahern Wells for Appellant

        James L. Thieman and Cameron C. Downer for Appellee
Case No. 17-18-17


WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant David Powell (“Powell”) brings this appeal from the

judgment of the Court of Common Pleas of Shelby County granting summary

judgment to defendant-appellee Airstream, Inc. (“Airstream”). For the reasons set

forth below, the judgment is affirmed.

       {¶2} On June 12, 2016, Powell purchased a new 2016 Airstream Flying

Cloud RV (“the RV”) that was built and warranted by Airstream in Jackson Center,

Ohio. Doc. 1. Powell purchased the RV from Airstream Adventures (“AA”) in

Covington, Washington. Id. Soon after the purchase, the RV allegedly began to

have several issues and spent a significant amount of time being repaired. Id.

Powell lost confidence in the vehicle and filed a complaint with a jury demand in

Shelby County, Ohio on July 19, 2017. Id. In the complaint, Powell alleged that

Airstream had breached the express warranties, breached the contract, violated the

Magnuson-Moss Warranty Act, and violated the Washington Consumer Protection

Act (“WCPA”). Id. On August 24, 2017, Airstream filed its answer denying the

alleged violations and raising several defenses including lack of privity of contract,

limitation of damages, and failure of conditions precedent. Doc. 7.

       {¶3} On April 19, 2018, Airstream filed a motion for summary judgment.

Doc. 23. Airstream claimed that without privity of contract, the implied warranty

and breach of contract claims must fail. Id. Airstream further asserted that the

breach of the express warranties and violations of the Magnuson-Moss act must also

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Case No. 17-18-17


fail because Airstream complied with the warranties by complying with the Repair

Remedy. Id. Airstream also alleges that Powell failed to exhaust his remedies by

not complying with the “Back-Up Remedy”. Id. Finally, Airstream claimed that

the WCPA claim fails because there was no underlying statutory violation or a

public interest to support the claim. Id. Powell filed his memorandum in opposition

to the motion on May 23, 2018. Doc. 37. Airstream then filed its reply to the

memorandum on June 19, 2018. Doc. 45. On October 1, 2018, the trial court

granted Airstream’s motion for summary judgment. Doc. 95. Powell filed a timely

notice of appeal from this judgment. Doc. 101. On appeal, Powell raises one

assignment of error.

      The trial court erred when it granted Airstream’s motion for
      summary judgment on all claims.

      {¶4} The sole assignment of error in this case raises the question as to

whether the lower court erred in granting summary judgment.

      An appellate court reviews a trial court’s summary judgment
      decision de novo, independently and without deference to the trial
      court's decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio
      St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing Comer
      v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at
      ¶ 8. Summary judgment is appropriate only “when the
      requirements of Civ.R. 56(C) are met.” Adkins v. Chief
      Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The
      party moving for summary judgment must establish: (1) that
      there are no genuine issues of material fact; (2) that the moving
      party is entitled to judgment as a matter of law; and (3) that
      reasonable minds can come to but one conclusion and that
      conclusion is adverse to the nonmoving party, said party being
      entitled to have the evidence construed most strongly in his favor.

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Case No. 17-18-17


       Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73
       Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the
       syllabus. In ruling on a motion for summary judgment, a court
       may not “weigh evidence or choose among reasonable inferences
       * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis
       (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court
       must consider the above standard while construing all evidence in
       favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.

       The party moving for summary judgment must identify the basis
       of the motion to allow the non-movant a “meaningful opportunity
       to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116,
       526 N.E.2d 798. In its motion, the moving party “must state
       specifically which areas of the opponent’s claim raise no genuine
       issue of material fact and such assertion may be supported by
       affidavits or otherwise as allowed by Civ.R. 56(C).” Id. at 115,
       526 N.E.2d 798, citing Harless v. Willis Day Warehousing Co.
       (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, citing Hamlin v.
       McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 196 N.E.2d 781;
       Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If
       the moving party fails to meet its burden, summary judgment is
       inappropriate; however, if the moving party meets its initial
       burden, the non-moving party has a “reciprocal burden outlined
       in Civ.R. 56(E) to set forth specific facts showing that there is a
       genuine issue for trial * * *.” Dresher, at 294, 662 N.E.2d 264.

Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶21-22. This court

notes that the parties agree that Washington law applies to the substantive

arguments. As the standard of review is de novo, we will review whether reasonable

minds could reasonably reach a verdict in favor of Powell based upon the claims set

forth in the complaint.

       {¶5} A review of the repair records for this RV provided as exhibits for

Powell’s memorandum contra the motion for summary judgment show the

following history of repairs. See Doc. 27, Ex. 8, 10, and 11. Prior to the delivery

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of the vehicle, AA conducted a pre-delivery inspection report and repaired or noted

issues found.        See also Lamb Dep. at 32. The inspection noted eight issues: 1)

rock dings on the rock guard, 2) a rivet missing about the entry door, 3) chips in

bedroom closet door, 4) gaps in the sealant in various locations, 5) a scratch in the

wall by the bathroom door, 6) a scratch on the range cover, 7) a noisy bathroom fan,

and 8) a small divot in the linoleum at the entrance. The records produced by Powell

indicate that new rock guards were ordered, the missing rivet was replaced, the chips

in the bedroom door were repaired, the areas missing sealant were resealed, the

scratch on the range cover was removed and repolished, and the bathroom fan was

adjusted to run properly. The scratch on the wall and the divot in the linoleum had

no noted repairs.1 Powell was notified on June 20, 2016, that the vehicle was ready

for pickup.

        {¶6} On July 21, 2016, Powell’s son Dan and sister-in-law Teresa

(collectively known as “the customers”), who were the ones using the RV, took the

vehicle to George Sutton RV (“Sutton”) claiming six alleged issues: 1) the Velcro

was pulling off the seat cushions, 2) the dinette table was not releasing from the

brackets, 3) the Sothco had pulled out of the cabinet door below the stove, 4) the

shower leaked at the bottom of the door when used, 5) the USB port was pushed in

at the bedroom cabinet, and 6) the rear awning arm was hard to retract. Sutton



1
  Although there was no noted repair to the linoleum, the warranty claim to Airstream showed that AA billed
them for labor in regard to the linoleum. Doc. 37, Ex. 11.

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Case No. 17-18-17


aligned the tabs on the dinette table so that it worked properly, replaced a stripped

screw on the cabinet door to resolve the second and third issue. The shower was

repaired by replacing the wipe seal. Upon testing, there was no more leak. Nothing

was done about the cushion, the USB ports, or the awning at that time and the RV

was returned to Dan and Teresa that same day. On July 27, 2016, the customers

returned to AA to have these issues resolved. AA replaced the USB port and

adjusted the awning arm to function smoothly. AA also requested approval from

Airstream to replace the cushions. The vehicle remained with AA for two days.

       {¶7} On August 29, 2016, the customers brought the RV back to AA with

three new complaints: 1) water was pooling in the corner of the shower cabinet

when attached to city water; 2) the shower door was leaking again, and 3) a drawer

in the bedroom opened in transit. The customers also requested that a multi-point

inspection (“MPI”) be completed and requested a status check on the replacement

of the cushions. The water in the shower cabinet was caused by a loose fitting at

the water pump, which went away when tightened. The shower door was leaking

because the frame and threshold were not square. AA sought to fix this issue by

ordering replacements. The drawer issue was resolved by replacing the 5 lb. latch

with a heavy duty 10 lb. latch. The status check on the cushions showed that

replacements had been approved and ordered. The MPI showed that 1) a 30 amp




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inlet LED light2 was not working, 2) the bathroom fan was rattling, 3) the shower

fan was hitting the housing, 4) the deadbolt was loose in the door, 5) the screen door

gasket was torn in the corner, 6) the screen door latch was hitting the frame, and 7)

a rivet head had popped off by the entry door during transit. AA resolved these

issues by replacing the bad outlet, moving wires to resolve the noisy bathroom fan,

replacing a missing screw in the shower fan allowing it to function as designed,

tightening the screws in the deadbolt to allow it function as designed, removing the

torn gasket on the screen door and replacing it with a new one, realigning the screen

door to allow it to function properly, and drilling out the old rivet to replace it with

a new one. The time out for these repairs is not clear from the record, but part of

the time also included the installation of a satellite dish per the request of the

customers.

        {¶8} On October 3, 2016, the customers returned the RV to AA to allow AA

to install the new shower assembly and to replace the covers on the cushions. An

MPI was completed at that time as well, which showed that the bolt nuts on the rock

guard were stripped. AA remedied this problem by replacing the bracket and

riveting it into place. The customers also complained that the bedroom drawer

would still open during transit and that the toilet was leaking at its base. AA’s

inspection showed that the drawer was functioning as designed. AA could not



2
  This is a small light on the outlet showing that it is receiving power. The light not working may indicate
the outlet was not working or that the light itself was bad.

                                                    -7-
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reproduce the leak at the base of the toilet and saw no issues, so no repair was

attempted at that time. The RV was undergoing repairs for seven days this time.

           {¶9} On November 18, 2016, a tree branch came down on the RV causing

damage to it. The customers took the RV to AA on December 3, 2016, to have an

estimate done for the cost of repairs and presented a lengthy list of issues with the

RV that they believed to be covered by the warranty. This list included the

following issues: 1) the deadbolt was loose, 2) USB port had no power, 3) ceiling

covers falling off, 4) hinge on wardrobe door pops off, 5) toilet won’t hold water,

6) no warm air in front vents, 7) beds not level, 8) 30 amp outlet LED lights not

working, 9) burners on stove will not light, 10) cabinet door by DVD player was

hard to open, 11) refrigerator seal falling off, 12) a rivet was pulled down in the

bathroom ceiling, 13) the entry door was leaking on the interior side of the door, 14)

the fantastic fan3 was not working, and 15) the entry door was hard to open and

close. Over six days, AA repaired the problems by 1) tightening the screws in the

deadbolt and verifying it was functioning; 2) replacing the bad USB port; 3)

replacing all the vent covers with new ones and verifying that they snapped into

place tightly; 4) resetting the hinges on the wardrobe door and screwing them into

place; 5) removing and replacing the bowl seal on the toilet; 6) installing additional

supports to the bed frame to level the mattresses; 7) replacing the 30 amp outlet




3
    The fantastic fan appears to be the vent fan over the stove.

                                                        -8-
Case No. 17-18-17


lights on both receptacles and testing to make sure they were functioning; 8)

replacing the left rear wire to the stove burners and testing to insure they were

functioning properly; 9) resetting the screws in the cabinet door to allow it to open

and close correctly; 10) realigning the refrigerator seal and refastening it into the

proper place; 11) drilling out the damaged rivet and installing a new one; 12)

cleaning and resealing around the entry handle where it was leaking; 13) securing

the ground switch to the fantastic fan to allow it to function properly; and 14)

shimming the door frame catch out with a washer to allow it to function correctly.

AA was not able to resolve the furnace problem because the same air flow was

coming out of the front and rear vents, so the problem could not be replicated.

Additionally, during the time the RV was there, AA performed an MPI, winterized

the vehicle and installed a customer supplied vent fan in the bathroom as well as

completing the insurance estimate.

       {¶10} On December 13, 2016, the customers returned the RV to AA due to

water pooling in the shower and a drawer opening in the bedroom during transit.

The water issue was found to be caused by a loose fitting behind the wall. The

fitting was tightened and no leaks were found when tested under pressure. The 5

lb. drawer catch was replaced with a 10 lb. drawer catch to remedy the problem. At

that same time, another MPI was conducted and revealed more issues: 1) a 30 amp

inlet light was not working; 2)the bathroom fan was rattling when it hit wires; 3) the

deadbolt needed tightened; 4) the screen door gasket was torn and the door was not

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Case No. 17-18-17


closing correctly; and 5) a rivet head had popped off in transit. The inlet light was

removed and replaced, the wires in the fan were moved out of the way and secured

to not interfere with the function of the fan, the deadbolt was tightened, the damaged

seal on the screen door was removed and a new one installed, the screen door was

realigned, and the old rivet was removed and a new one was installed. This was

completed on that same date.

       {¶11} On January 5, 2017, the customers brought in the RV for repairs due

to the damage from the tree branch. In addition to those repairs, the customers

informed AA that 1) water was coming in the dinette window, 2) air was coming in

the bedroom window and there was a water stain on the curtain, 3) the left rear

burner on the stove would not light, 4) the grey and black valves were sticking, 5) a

blind clip had cracked, and 6) weather stripping was coming off the entry door. The

first two issues were resolved by tightening the latch to provide a better seal and

checking the sealants. AA noted that there was a condensation issue in the trailer

due to improper venting. AA fixed the stove by tightening the burner springs for

better contact. Valve lube was added to the sticking valves. The damaged blind

was removed and replaced with a new one. The weather stripping coming off the

entry door was removed and replaced with new. Although the repair records do not

indicate how long these repairs, as well as the accident damage, took, Powell claims

that the RV was returned to them on January 12 for seven days.



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       {¶12} On January 19, 2017, a repair order was created indicating that the

shower fan and the fantastic fan were inoperable. AA replaced the motor in the

shower fan allowing it to work correctly. The fantastic fan was not inoperable, but

the issue was the result of user error, so proper use was explained to the customers.

This took one day.

       {¶13} On January 26, 2017, the RV was brought in to AA due to a claim that

the toilet was leaking at the base. AA replaced the valve and no leak was found at

that time. The RV was returned that same day. Later, AA received a call from the

customers indicating that it was leaking again.       AA sent a technician to the

customers’ location. The technician then replaced the toilet. On February 10, 2017,

AA was notified that the furnace was inoperable. When checked by AA, the furnace

seemed to be working properly. The outside temperature was 47, but the inside

temperature was 75. This also took one day.

       {¶14} On February 15, 2017, the customers brought in the RV and claimed

that 1) the furnace was not putting out hot air, 2) the toilet was not getting water,

and 3) the toilet was leaking. They also requested that an MPI be performed. The

MPI showed that the RV was in good working order. The furnace was fixed by the

installation of a new ignitor board and sail switch. The toilet began to receive water

once the valve was properly seated. The toilet was not the source of the water leak,

but AA found the leak was coming from a fitting on the inlet side of the water heater.



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AA fixed this problem by installing a new cone washer. All of this was done in one

day.

       {¶15} On April 28, 2017, the customers brought in the RV claiming that 1)

the 30 amp LED light was not working, 2) a light switch was pushed in, 3) the

bathroom fan was rubbing on the housing, 4) the refrigerator light was inoperable,

5) there was a squeak in the floor between the beds at the rear of the RV, 6) the

water heater was leaking again, and 7) the black tank would not zero out when

dumped. The plugs with the 30 amp LED lights were removed and replaced. The

light switch and the housing was removed and replaced. The bathroom fan was

removed and a new fan was installed with new set screws to allow it to function

properly.   The refrigerator light was working properly, the bulb just needed

replaced. The squeak in the floor was noted, but no issue was found. The leak at

the water heater was a drip at the city fill inlet, which was replaced. The sensor in

the black tank needed cleaning. This was all completed within a day or two.

       {¶16} On June 7, 2017, the customers brought in the RV and requested and

MPI be completed. The Customers alleged the following complaints: 1) the

mattress was moldy, 2) the floor squeaked, 3) the toilet was not getting or retaining

water, 4) the bedroom window was hard to open, 5) the window in the dining area

would not pull in all the way, 6) the air conditioning was not cold enough, 7) the

license plate light was loose, 8) the kitchen floor area was soft, 9) the latch cap had

come off the cabinet door under the bed, 10) the molding trim was loose in the

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Case No. 17-18-17


bedroom, 11) the entry door latch was hard to open, and 12) the furnace was

inoperable. The mattress was replaced by Airstream at no cost. The squeaky floor

and the alleged soft area in the floor of the kitchen were checked, but no problem

was found. The toilet was replaced and tested to insure the new one was working.

A check of the bedroom window showed the brackets were too low, so they were

moved up ¼ inch and then worked correctly. The window in the dining room had

a broken latch, so the latches on all the windows in the dining area were replaced so

they would match. The air conditioning system was checked and found to be

working as designed. The connections on the license plate light were tightened. A

new latch cap was installed on the cabinet door. The molding trim was glued to the

wall and new seam trim was installed. The door latch was corrected by lubing the

lock and latch assembly. The furnace could not be repaired at that time because the

issue was a bad board and a replacement had to be ordered. The repair records of

AA show that the repairs, except for the furnace, were completed in one day.

       {¶17} On August 2, 2017, the customers brought the RV back to AA to

complete the repair on the furnace and the toilet, which was not filling with water.

On that day, the bad board on the furnace was replaced and the air gap on the ignitor

was adjusted to allow the furnace to function correctly. The toilet was repaired.

AA’s records show that the customers were notified it was ready after one day,

however the customers did not pick up the RV until October.



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                                 Breach of Warranties

          {¶18} The first claim in the complaint alleges that Airstream breached the

manufacturer’s warranties. Powell claims that Airstream violated not only the

express warranties, but the implied warranties as well.

                                    Implied Warranties

          {¶19} Powell argues that the RV breached the implied warranties of

merchantability. Article 2 of the UCC, as adopted in Washington, provides an

implied warranty of merchantability that assures that goods sold are fit for the

ordinary purposes for which such goods are used as long as the seller is a merchant

of goods of that kind and the warranty is not specifically excluded by contract.

RCW 62A.2-314. However, a “lack of privity has historically been a defense to

claims of breach of warranty.” Tex Enterprises, Inc. v. Brockway Standard, Inc.

149 Wash.2d 204, 209, 66 P.3d 625 (2003).

          There are two types of plaintiffs for whom lack of privity has been
          a concern. A “ ‘horizontal’ non-privity plaintiff” is not a buyer
          of the product in question, but is one who consumes or is affected
          by the goods. * * * The “ ‘vertical’ non-privity plaintiff” is a
          buyer who is in the distributive chain, but who did not buy the
          product directly from the defendant.

Id. (citations omitted). Although the Washington Legislature chose to eliminate the

privity     requirement   for   horizontal   non-privity   plaintiffs   under   certain

circumstances, it was silent in regard to vertical privity. Id. The Supreme Court of

Washington held that absent privity or an underlying contract to which the remote


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purchaser is a third-party beneficiary, there can be no recovery for a vertical non-

privity plaintiff based upon breach of an implied warranty. Id. at 214.

       {¶20} In this case, Powell purchased the RV from AA. The Vehicle Purchase

Order identified the seller as AA. Doc. 37 at Ex. 3. Additionally, the Retail

Installment Sales Contract specifically identifies the seller as AA. Id. at Ex. 4.

Neither of the documents indicates that Airstream was the merchant selling the RV

to Powell.   The deposition testimony of Richard March (“March”), the General

Manager of the Customer Relations Group of Airstream, indicated that the RV was

sold by them to AA and paid for by AA before it was delivered. March Dep. 30-

31. Daniel Lamb (“Lamb”), the Parts and Service Manager for AA, testified in his

deposition that although AA is an authorized dealer of Airstream’s products, it is a

separate entity from Airstream and is neither owned nor controlled by Airsteam.

Lamb Dep. 95.       Given this evidence, there is no question that pursuant to

Washington law, Powell is a vertical non-privity plaintiff as he is in the distributive

chain, but did not buy the RV directly from Airstream.

       {¶21} Since Powell is a vertical non-privity plaintiff, the only way that an

implied warranty would apply would be if Powell was an intended third-party

beneficiary of the contract between Airstream and AA. Babb v. Regal Marine

Industries, Inc. 186 Wash.App. 1003 (2015). Washington courts “have allowed a

remote purchaser to pursue claims for breach of implied warranties of

merchantability notwithstanding lack of vertical privity when the remote purchaser

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can show that it was an intended third-party beneficiary of a contract involving the

manufacturer.” Id. (citing Touchet Valley Grain Growers, Inc. v. Opp & Seibold

Gen. Constr., Inc., 119 Wash.2d 334, 347, 831 P.2d 724 (1992)).

      Our Supreme Court first applied the test to a claim for a breach
      of an implied warranty of merchantability in Touchet Valley.
      There, the [Court] examined Kadiak Fisheries Co. v. Murphy
      Diesel Co., 70 Wn. 2d 153, 422 P.2d 496 (1967). In Kadiak, our
      Supreme Court held that a purchaser of a specially-built marine
      diesel motor could sue the manufacturer for breach of implied
      warranties even though the purchaser bought the diesel motor
      from a retail dealer. * * * The Kadiak court relied on the sum of
      the interaction and the expectations between the purchaser and
      the manufacturer: (1) the manufacturer knew the identity,
      purposes, and requirements of the purchasers’ specifications; (2)
      Kadiak had communicated its needs to the manufacturer, not
      only directly, but also through its agent, the supplier; (3) although
      the manufacturer invoiced the supplier, the manufacturer
      delivered the motor directly to Kadiak; (4) the manufacturer’s
      representatives attended installation of the motor; and (5) after
      difficulties developed, the manufacturer tried to fix the motor’s
      problem. * * *

      Applying Kadiak’s reasoning, the Touchet Valley court concluded
      that the owner of a collapsed grain-storage facility could maintain
      an implied warranty action against a subcontractor with whom
      there was no privity because the owner was the intended third-
      party beneficiary of the contract between the general contractor
      and the subcontractor. * * * In so holding, the [Court]
      determined that the subcontractor knew Touchet Valley’s
      identity, its purpose, and its requirements for the storage
      building. * * * The subcontractor had also designed the building
      to the purchaser’s specifications and delivered components to the
      construction side. * * * And when the building first began to
      collapse, the subcontractor helped to attempt repairs.

      In contrast, in Urban Development, Inc. v. Evergreen Building
      Products, LLC, * * * Division One of this court declined to extend
      implied warranties of merchantability to a general contractor of

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       a leaking condominium complex when there was no privity of
       contract between the general contractor and the manufacturer of
       the building’s siding. The court there so held because the general
       contractor had no interaction with the siding manufacturer and
       because the manufacturer did not design the siding system
       specifically for the contractor’s requirements.

Babb, supra. The Babb court then went on to note that in the case before it, the

manufacturer did not know the purchaser’s identity or purpose and did not

specifically build the boat with the purchaser’s requirements in mind. Instead, the

boat was merely an ordinary model built at the manufacturer’s factory and then sold

and shipped to a dealer. The dealer then sold the boat to the purchaser. When the

dealer went bankrupt and the purchaser had issues with the boat, the manufacturer

attempted to assist after the sale. The court then went on to find that the only

interaction was a series of post-sale contacts “related to the repair of a boat that [the

manufacturer] did not build specifically for [the purchaser].” Id. Based upon the

facts of that case, the court found that the purchaser was not an intended third-party

beneficiary of the contract between the manufacturer and the dealer and that the

implied warranty of merchantability failed for lack of privity of contract. Id.

       {¶22} In short, to be a third-party beneficiary, the purchaser must show that

the manufacturer was involved in the transaction, knew the purchaser’s identity and

purpose, communicated with the purchaser regarding the purchase, or delivered the

goods to the purchaser. See Johnson v. Metro-Goldwyn-Mayer Studios Inc., W.D.

Washington No. C17-541 RSM, 2017 WL 3313963 (Aug. 3, 2017). A third-party


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Case No. 17-18-17


beneficiary is not entitled to coverage pursuant to an implied warranty when a

manufacturer is unaware of the party’s identity or did not intend to sell to that

specific party. Id. at *6. Here, the undisputed facts show that Airstream made a

standard model RV and sold it to AA. Prior to the manufacture or sale of the RV at

issue, there is no evidence presented of any contact between Airstream and Powell.

This was not a special order and there is no evidence that Airstream knew who

would purchase this RV. After the sale, most of the communication about the issues

with the RV were between AA and Powell. March testified that he knew of one

post-sale email and only a few phone calls. Most of the communication was

between AA and Powell and then between AA and Airstream. The record does not

support the conclusion that Powell was a third-party beneficiary of the sales contract

between AA and Airstream. Since Powell lacks privity of contract with Airstream

and is not a third-party beneficiary, he cannot avail himself of the implied warranty

of merchantability against Airstream.

                                {¶23} Express Warranties

       {¶24} Powell also argues that Airstream violated the express warranty.

Express warranties are any affirmation of fact or promise, any description, or any

sample or model by a seller relating to or describing the goods when such

representation forms the basis of the bargain. RCW 62A.2–313. At the time of

purchase, Powell was provided with a limited warranty on the travel trailer. This

warranty provided as follows in pertinent part.

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      THIS LIMITED WARRANTY COVERS: (i) ONLY the first
      retail owner and any second owner (ii) ONLY those portions of a
      NEW travel trailer not excluded under the section “What is Not
      covered”, when sold by an authorized dealership; and (iii) ONLY
      defects in workmanship performed and/or materials used to
      assemble those portions of your travel trailer not excluded under
      the section “What is Not Covered”. “Defect” means the failure of
      the workmanship performed and/or materials used to conform
      with the design and manufacturing specification and tolerances of
      Airstream. * * *

      ***

      LIMITATION OF IMPLIED WARRANTIES

      IMPLIED WARRANTIES ARISING UNDER APPLICABLE
      LAW, IF ANY INCLUDING BUT NOT LIMITED TO IMPLIED
      WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
      A PARTICULAR PURPOSE, ARE HEREBY LIMITED IN
      DURATION TO THE TERM OF THIS LIMITED WARRANTY
      AND ARE LIMITED IN SCOPE OF COVERAGE TO THOSE
      PORTIONS OF THE TRAVEL TRAILER COVERED BY THE
      LIMITED WARRANTY.             THERE ARE NO EXPRESS
      WARRANTIES OR ANY IMPLIED WARRANTIES OF
      MERCHANTABILITY ON THOSE PORTIONS OF THE
      TRAVEL TRAILER EXCLUDED FROM COVERAGE. There
      is no warranty of any nature made by Airstream beyond that
      contained in this Limited Warranty. * * *

      REPAIR REMEDY: Airstream’s sole and exclusive obligation is
      to repair any covered defects discovered within the warranty
      coverage period if: (1) within 10 days of your discovery of a defect
      you notify Airstream OR an authorized dealership of the defect;
      AND (2) you deliver your travel trailer to Airstream OR an
      authorized dealership at your cost and expense.

      BACK-UP REMEDY: If the primary repair remedy fails to
      successfully cure any defect after a reasonable number of repair
      attempts, your sole and exclusive remedy shall be to have
      Airstream pay an Independent service shop of your choice to
      perform repairs to the defect OR if the defect is incurable, have

                                     -19-
Case No. 17-18-17


      Airstream pay diminution in value damages. The repair remedy
      and the back-up remedy MUST both be exhausted AND those
      remedies must fail to fulfill their essential purpose before you can
      seek any legal or equitable relief.

      ***

      WHAT IS NOT COVERED

      1.     Tires, batteries, stereo, television, range/stove, furnace,
      refrigerator, air conditioner, toilet, water heater, microwave
      generator, glass breakage, and other materials, parts and
      component warranted by persons or entities other than
      Airstream. Please refer to the warranties of component
      manufacturers for terms and conditions of coverage;

      2.    Accessories and equipment that are working as designed,
      but which you are unhappy because of the design

      3.   Any part or component of the travel trailer that was not
      manufactured or installed by Airstream;

      4.     Normal deterioration due to wear or exposure, including
      but not limited to upholstery, flooring rust, corrosion, oxidation,
      and cosmetic blemishes.

      5.     Normal maintenance and service items, including but not
      limited to light bulbs, fuses, lubricants, sealants and seals, door
      adjustments, and awning tension;

      6.      After market equipment or accessories installed on the
      travel trailer after completion of manufacture by Airstream, or
      any defects or damage caused by such items;

         ***
      8.    Defects or damage caused by, in whole or in part, or in any
      way related to: Accidents, misuse (including off-road use), or
      negligence; Failure to comply with the instructions set forth in
      any owner’s manual provided with the travel trailer; Alteration
      or modification of the travel trailer except such alterations or
      modifications approved in writing by Airstream; Acts of God or

                                     -20-
Case No. 17-18-17


      other environmental conditions, such as lightning, hail, salt
      causing rust, or other chemicals in the atmosphere; De-icing
      agents or other chemicals applied to the travel trailer; Failure to
      properly maintain or service the travel trailer, including but not
      limited to the maintenance of lubricants, sealants, and seals;
      Condensation and the results of condensation including water
      damage and the growth of mold or mildew. Mold and mildew are
      natural growths given certain environmental conditions and are
      not covered by the terms of this Limited Warranty; The addition
      of weight to the travel trailer that causes the total weight to exceed
      applicable weight ratings, or additions of weight causing
      improper distribution of the weight of the travel trailer; Failure
      to seek and obtain repairs in a timely manner; Failure to use
      reasonable efforts to mitigate damage caused by defects; Failure
      to properly ventilate the travel trailer; Improper electric power
      supply or improper travel trailer hookup to other facilities; Acts
      or omissions of any person or entity other than Airstream.

      DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL
      DAMAGES

      Airstream disclaims any and all incidental and consequential
      damages, including but not limited to expenses such as
      transportation to and from dealerships and Airstream repair
      facilities, loss of time, loss of pay, loss of use, inconvenience,
      commercial loss (including but not limited to lost profits), towing
      charges, bus fares, vehicle rental, service call charges, gasoline
      expenses, incidental charges such as telephone calls and facsimile
      transmissions, and expenses for lodging and moisture damages
      such as mold and mildew as well as rust and corrosion. This
      disclaimer is independent of any failure of the essential purpose
      of any warranties provided with the travel trailer, and shall
      survive any determination that a warranty failed of its essential
      purpose. * * *

      ***

      If you believe a defect covered by this Limited Warranty still
      exists after an attempted repair by an authorized Airstream
      dealer, you must contact Airstream at the following address,
      specifying:

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Case No. 17-18-17



       1.   The complete serial number of the travel trailer;
       2.   The date of original purchase and the date of original delivery;
       3.   The name of the selling dealer; and
       4.   The nature of the problem and the steps or service which has
            been performed.

       ***

       Airstream may direct you to an authorized Airstream dealer, or
       may request that you bring your travel trailer to the Airstream
       factory in Jackson Center, Ohio for repairs.

       Airstream does not control the scheduling of repairs at its
       authorized Airstream dealers, and repairs at the Airstream
       factory may not be immediately available. Therefore, you may
       encounter delays in scheduling repairs and/or completion of
       repairs. All costs associated with transporting the travel trailer
       for any warranty service shall be the sole responsibility of the
       owner.

Doc. 7, Ex. A.

       {¶25} Powell claims that Airstream breached its express warranty by failing

to correct the issues with the RV within a reasonable time and with a reasonable

number of repair attempts. As noted by the trial court, there were many issues with

the RV. However, a review of the warranty shows that many of these issues were

not warranty issues. The warranty specifically excluded issues with the furnace,

toilet, stove, air conditioner, refrigerator, and doors, including the door adjustments.

Additionally, issues with the awning were excluded as it was a component covered

by a third party warranty and only installed by Airstream. March Dep. 27. Although

AA and Airstream addressed many of these issues for the benefit of the customers,


                                         -22-
Case No. 17-18-17


the warranty coverage was provided by third parties. Excluding the issues clearly

excluded under the warranty, a view of the evidence in a light most favorable to

Powell shows the following repeat problems: 1) bath fan rattling; 2) drawer in the

bedroom opening in transit; 3) 30 amp outlet lights going out on the receptacles; 4)

water pooling in the shower; 5) rivet head popping out in transit;4 and 6) a squeaky

floor.5 The record shows that most of these issues were corrected each time they

were brought in, however some of them came back. The bath fan rattling resulted

from wires coming loose or a screw coming loose allowing the fan to hit the housing.

The problem with the bedroom drawer was resolved by changing the 5 lb. catches

to 10 lb. catches, which allowed for more pressure during transit. AA noted during

one repair that the catches were working as designed, but were not strong enough

for the customers’ purposes. The 30 amp outlet lights did keep going out and were

repeatedly replaced. The new one would work for a while, but the light in the new

ones would eventually fail as well. The issue with the shower was completely

resolved when the shower was replaced and all the fittings were tightened. The rivet


4
  Without knowing exactly which rivets were coming loose, it is difficult for this court to know if it is a repeat
issue as in the same rivet, or is in a different location. However the undisputed testimony is that frequently
rivets do come loose during transit and have to be replaced. As we are viewing the evidence in a light most
favorable to Powell, we will treat this as a repeat issue.
5
  This Court notes that there were other issues that repeated according to the customers, but some of these,
such as the fantastic fan becoming inoperable or issues with the air conditioning fan and furnace running at
the same time were due to user error. Some other issues listed showed that the component was functioning
as designed. The customer just did not like that aspect. However, this type of issue is specifically excluded
by the warranty. The remaining issues were either repaired the first time or were for a component excluded
by the terms of the warranty. Additionally, in its motion opposing summary judgment, Powell listed
additional complaints such as “excessive mold growth on the exterior of the RV.” However, these alleged
additional issues were not brought to the attention of Airstream and thus cannot be considered when
determining whether Airstream breached the terms of its express warranty.

                                                      -23-
Case No. 17-18-17


heads were resolved by drilling out the old rivets and replacing them with new ones.

Although the squeaky floor was noted, it was checked and no issues were found.

        {¶26} Even if Airstream failed to repair everything according to the

warranty, Powell failed to follow the terms of the warranty. The Back Up Remedy

of the warranty provides that if Airstream has not successfully repaired the issue

after a reasonable attempt, the purchaser has the right to take the RV to an

independent repair facility to get the issue resolved and that Airstream will pay for

the repairs. If the issue cannot be remedied, Airstream will then pay diminution in

value. This is the sole and exclusive remedy permitted under the terms of the

warranty. Instead of trying to get a third party to repair the RV and have Airstream

pay for those repairs, Powell instead chose to request to rescind the sales contract

and have Airstream give him his money back.6 This is not a remedy offered under

the warranty. The warranty specifically provides that “the repair remedy and the

back-up remedy MUST both be exhausted AND those remedies must fail to fulfill

their essential purpose before you can seek any legal or equitable relief.” This

portion of the warranty was listed in bold print and was not hidden. Powell has not

exhausted his remedies under the warranty. Thus, pursuant to the terms of the

warranty, he is not entitled to seek legal or equitable relief at this time.




6
  This court notes again that Powell did not purchase the RV from Airstream, but from AA. AA purchased
the RV from Airstream.

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Case No. 17-18-17


       {¶27} Powell also argues that the terms of the limited warranty should not be

applied because it failed of its essential purpose.

       Under the Uniform Commercial Code, a limitation of remedy
       clause is ineffectual when it deprives a party of the substantive
       value of its bargain. Wash.Rev.Code § 62A.2–719. Limited
       remedies clauses fail of their essential purpose in two situations,
       one of which is “when the seller or other party required to provide
       the remedy, by its action or inaction, causes the remedy to fail.”
       Marr Enterprises, Inc. v. Lewis Refrigeration Co., 556 F.2d 951,
       955 (9th Cir.1977). Typically, cases in this category are those in
       which the plaintiff's remedy was limited solely to repair or
       replacement of defective parts and the seller failed to replace or
       repair in a reasonably prompt and non-negligent manner.

Polygon Northwest Co. LLC v. Louisiana-Pacific Corp., W.D. Wash No. C11-620

MJP, 2012 WL 2504873 (June 28, 2012). “When there are alternate exclusive

limited remedies, such as repair or refund, the exclusive remedies have been held

not to fail of their essential purposes, although there was a failure to repair or replace

the defective parts.” American Nursery Products, Inc. v. Indian Wells Orchards,

115 Wash.2d 217, 229, 797 P.2d 477 (1990).

       {¶28} Pursuant to the language of the warranty, the purpose in this case was

to 1) allow an Airstream dealer to repair any alleged covered defects, 2) if the dealer

could not successfully repair the alleged covered defect, permit the owner to take it

to a third party for repair at Airstream’s cost, and 3) if the alleged defect was not

curable, allow the owner to receive the diminution in value. As discussed above,

the repairs were all successfully completed within one to three attempts excluding

those for which the problem could either not be duplicated or no issue could be

                                          -25-
Case No. 17-18-17


found. Although Powell and the customers did take the RV to AA, an authorized

dealer for repairs, when those repairs did not meet their expectations, they did not

attempt to arrange for a third party to repair the RV at Airstream’s expense.

Airstream gave Powell an alternative to continuing to allow Airstream’s dealers to

attempt to repair the issues, but Powell did not avail himself of this option. As there

were alternatives, the warranty did not fail of its essential purpose.

         {¶29} Powell also argues that the back up remedy should fail because he

would not have purchased the RV if he had known about the “secret” back up

remedy provision prior to the purchase. This court notes that even assuming that

Powell did not receive a copy of the warranty until he picked up the RV, he did

receive a copy of it.7 The customers then proceeded to use the RV for more than a

year after receiving the warranty. The customers even took advantage of the

warranty by having items repaired at no charge. Even assuming that the purchase

contract was voidable because Powell did not know all of the terms, i.e. the back up

remedy in the limited warranty, a party ratifies those terms if he or she remains silent

or continues to accept the benefits of the contract after discovering the unknown

provisions. Ward v. Richards & Rossano, Inc., P.S., 51 Wash.App. 423, 433, 754

P.2d 120 (1988). By using the RV and the warranty, Powell ratified the provisions

in the limited warranty, including the back up remedy.


7
 The back up remedy was not hidden amongst the fine print of the limited warranty. The copy of the warranty
provided by Powell shows that the back up remedy was labeled in bold print and all capital letters on the first
page right under the repair remedy. It was clearly placed for anyone to view.

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Case No. 17-18-17


      {¶30} Powell also argues three other issues: 1) Airstream waived the back

up remedy, 2) the back up remedy left him with no remedy, and 3) the back up

remedy was against public policy. A review of the record shows that these issues

were neither raised in the initial complaint nor in the response to the motion for

summary judgment. This Court has long held that issues that were not, but could

have been, raised in the trial court may not be raised for the first time on appeal.

Cortez v. Smith, 3d Dist. Defiance No. 4-95-5, 1995 WL 505928 (Aug. 10, 1995).

Powell could have argued these claims in the trial court, but did not. Thus, we will

not address them on appeal.

                              Magnuson-Moss Warranty Act

      {¶31} The third claim raised in the complaint was that Airstream violated the

Magnuson-Moss Warranty Act. The “Act limits the ability of manufacturers to

disclaim or modify implied warranties in cases where they have offered express

warranty protection.” Curl v. Volkswagon of Am. Inc., 114 Ohio St.3d 266, 2007-

Ohio-3609, ¶ 10, 871 N.E.2d 1141. It does not create new implied warranties or

otherwise modify the implied warranties existing according to state law. Id. Rather,

the Act adopts the implied warranty protections previously established under the

governing state law. Id. “Claims under the Magnuson–Moss Act stand or fall with

[the] express and implied warranty claims under state law.”            Clemens v.

DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008). The outcome of the

state law warranty claims determines the disposition of the Magnuson-Moss Act

                                       -27-
Case No. 17-18-17


claims. Id. If the underlying state warranty claims are dismissed, the Magnuson-

Moss Act claims must also be dismissed. Id.

       {¶32} Here, Powell brought the Magnuson-Moss Act claims based on

violation of the limited and express warranties pursuant to the law in the state of

Washington. This Court addressed the alleged breaches of the express and limited

warranties above. The conclusion reached was that Airstream did not breach the

express warranty and that Powell lacked privity to contract to recover on the theory

of implied warranties. Since the underlying state warranty claims fail, as a matter

of law the federal claims under the Magnuson-Moss Act must also fail.

                           Washington Consumer Protection Act

       {¶33} Powell also claims that Airstream violated the Washington Consumer

Protection Act (“CPA”) by violating the warranties and the Moss-Magnuson Act

and by deceiving the general public. “To prevail on a CPA action, the plaintiff must

prove an ‘(1) unfair or deceptive act or practice; (2) occurring in trade or commerce;

(3) public interest impact; (4) injury to plaintiff in his or her business or property;

(5) causation.’ ” Klem v. Washington Mut. Bank, 176 Wash. 2d. 771, 782, 295 P.3d

1179, (2013) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins.

Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986)). If a plaintiff does not satisfy

each of these elements, the CPA claim must fail. Rush v. Blackburn, 190 Wash.

App. 945, 961, 361 P.3d 217 (2015). The determination of whether an act is unfair

or deceptive is a question of law, not fact. Id.

                                         -28-
Case No. 17-18-17


       {¶34} The purpose of the CPA is to address acts injurious to the public.

RCW 19.86.920. Thus, a plaintiff bringing a cause of action pursuant to the CPA

must show that there was a public interest impact resulting from the alleged

deceptive act. Id. To determine if the act affects the public, courts should look to

see if the acts form a pattern, whether they have been repeated, or if the alleged

deceptive acts affected many consumers. McLaughlin v. Watercraft International,

Inc., 87 Wash.App.1051 (1997).

       {¶35} Here, Powell claims that there was deceptive acts by Airstream when

it breached its warranty. This court has already determined that there was no breach

of warranty, so it cannot be a deceptive act. Powell also claims that by advertising

that the RV was well made and would last a long time, Airstream was deceptive.

However, the only evidence of this was that this specific RV had many issues and

was not up to the quality expected by Powell. Powell presented no evidence that

there was a pattern of behavior or that it affected many consumers. An isolated

incident, i.e. putting a subpar RV into the commerce stream, while it may affect a

few consumers catastrophically, does not necessarily affect a large number of

consumers as is necessary to establish a claim under the CPA. McLaughlin, supra.

Without any evidence that an allegedly deceptive or unfair act is likely to be

repeated or has affected a large number of consumers, there is no public impact as

is required for a claim under the CPA. Id. Since the undisputed evidence does not

show that there was a public impact in this case, the CPA claim must fail.

                                       -29-
Case No. 17-18-17


       {¶36} Having reviewed all of the claims raised in the complaint and the

arguments raised in the memorandum contra to the motion for summary judgment,

the undisputed evidence shows that there are no material issues of fact. Viewing

the evidence in a light most favorable to the nonmoving party, reasonable minds can

only reach one conclusion and that conclusion is adverse to the nonmoving party.

The motion for summary judgment was properly granted and the assignment of error

is overruled.

       {¶37} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Shelby County is affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




                                       -30-
