                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0013n.06
                               Filed: January 5, 2006

                                            No. 04-2163

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


ALVERY PACK,                           )
                                       )
      Plaintiff-Appellant,             )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF MICHIGAN
DAMON CORPORATION,                     )
                                       )                         OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: DAUGHTREY and MOORE, Circuit Judges, ALDRICH,* District Judge.

           KAREN NELSON MOORE, Circuit Judge. This case involves state and federal claims

for breach of express and implied warranties on a 2002 Damon Intruder Motor Home (“the motor

home” or “the RV”) manufactured by Defendant-Appellee Damon Corporation (“Damon”) and

purchased by Plaintiff-Appellant Alvery Pack. Primarily the parties dispute whether defects in the

motor home continued to exist during the period under warranty, whether the claimed defects were

covered under Damon’s warranty, and the length of time the motor home was out of service for

repairs.

           Pack appeals the district court’s order granting Damon’s motion for summary judgment on

his express- and implied-warranty claims under both state law and the Magnuson Moss Warranty



           *
         The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
Act (“MMWA”), as well as his claims under the Michigan Consumer Protection Act (“MCPA”).

On appeal, Pack argues that the district court erred in granting summary judgment in favor of

Damon (1) as to his state-law express-warranty claim because the evidence he has put forth creates

a question of fact as to Damon’s failure to cure defects under warranty and as to the failure of the

essential purpose of the warranty because Damon failed to make repairs within a reasonable time;

and (2) as to his state-law implied-warranty claim because Michigan law does not require privity

to maintain an implied-warranty claim against a remote manufacturer. Pack further asserts that if

this court reverses on either of these claims, it will be necessary to reverse the dismissal of his

MMWA and MCPA claims.

       For the reasons set forth below, we REVERSE IN PART the district court’s judgment with

regard to the express-warranty claim and REVERSE the district court’s judgment with regard to

the implied-warranty claim. We REMAND to the district court for further proceedings consistent

with this opinion.

                                       I. BACKGROUND

       On September 13, 2002, Plaintiff Alvery Pack purchased the subject motor home from

General RV Center (“GRVC”) in Brownstown, Michigan. The cost of the RV, including financing,

totaled $226,435.60.

       The RV was accompanied by a limited warranty from Damon, under which Damon

       warrants that this recreational vehicle . . . will be free from defects in material and
       workmanship attributable to Damon for a period of one (1) year or 12,000 miles.
       . . . This Limited Warranty covers only materials, components or parts of the RV
       manufactured and finally assembled by Damon. . . . In the event that a defect in
       materials or workmanship is found to exist, Damon will provide for the repair or
       replacement of such defective material(s) or workmanship at no charge. . . . Damon’s
       obligation to repair or replace defective materials is the sole obligation of Damon
       under this Limited Warranty.

                                                 2
J.A. at 53 (Damon Warranty). The RV was under warranty from September 13, 2002 until

September 12, 2003.

          Pack began experiencing problems with the motor home immediately after the purchase date.

He alleges that a variety of defects put the RV out of service for a total of 168 days in the first year

and that it required nine separate service dates for repairs.

          On September 19, 2003, Pack instituted this lawsuit against Damon and GRVC in Wayne

County Circuit Court in Michigan, alleging breach of express and implied warranties under state law

and the MMWA, violations of the MCPA, revocation of acceptance, breach of contract, and

rescission. Defendants removed the case to the Eastern District of Michigan on the basis of the

federal claim. The district court dismissed the claims against GRVC because Pack had a valid

arbitration agreement with that defendant and granted both of Damon’s motions for summary

judgment, dismissing the claims against Damon as well. Plaintiff then timely commenced this

appeal.

                                           II. ANALYSIS

          Plaintiff appeals the grant of summary judgment to Damon on his express- and implied-

warranty claims under state law and the MMWA and his claims for violations of the MCPA.

A. Standard of Review

          We review a grant of summary judgment de novo. DiCarlo v. Potter, 358 F.3d 408, 414 (6th

Cir. 2004).     Summary judgment is appropriate “[i]f the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c). The movant has the burden of establishing that there are no genuine issues of


                                                   3
material fact, which may be accomplished by demonstrating that the nonmoving party lacks

evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). “In

response, the non-moving party must present ‘significant probative evidence’ to show that ‘there is

[more than] some metaphysical doubt as to the material facts.’” Hopson v. DaimlerChrysler Corp.,

306 F.3d 427, 432 (6th Cir. 2002) (quoting Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th

Cir. 1993)). Summary judgment is inappropriate where “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

          In evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The

nonmoving party, however, “may not rest upon [its] mere allegations . . . but . . . must set forth

specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Celotex, 477

U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). “[T]he mere existence of

a scintilla of evidence” that supports the nonmoving party’s claims is insufficient to defeat summary

judgment. Hopson, 306 F.3d at 432.

B. Express Warranty

          1. A Repair-or-Replace Warranty Is an Express Warranty under the Michigan
             Uniform Commercial Code

          As the Michigan Supreme Court has not ruled on whether a repair-or-replace warranty

constitutes an express warranty under the Michigan Uniform Commercial Code (“MUCC”), we look

to decisions of the Michigan Court of Appeals, “which are binding authority in federal courts in the

absence of any Michigan Supreme Court precedent.” Hampton v. United States, 191 F.3d 695, 702

                                                   4
(6th Cir. 1999). In several cases, the Michigan Court of Appeals has assumed without discussion

that a repair-or-replace warranty constitutes an express warranty under the MUCC. See, e.g., Krupp

PM Eng’g, Inc. v. Honeywell, Inc., 530 N.W.2d 146, 148-49 (Mich. Ct. App. 1995); Severn v. Sperry

Corp., 538 N.W.2d 50, 53-55 (Mich. Ct. App. 1995); Kelynack v. Yamaha Motor Corp., 394 N.W.2d

17, 19-20 (Mich. Ct. App. 1986).

        The Michigan Supreme Court would likely also interpret a repair-or-replace warranty

extended by a remote manufacturer to be an express warranty under the MUCC. Under the MUCC,

an express warranty is created by “[a]n affirmation of fact or promise made by the seller to the buyer

which relates to the goods and becomes part of the basis of the bargain.” MCL § 440.2313(1)(a).

This does not limit the extension of express warranties to direct sellers, and the MUCC definition

of a seller — one “who sells or contracts to sell goods” — does not indicate that a seller is restricted

to one who directly sells goods to the consumer. Id. § 440.2103(1)(d). Moreover, Damon refers to

its warranty as an “EXPRESS WRITTEN LIMITED WARRANTY.” J.A. at 54 (Damon Warranty).

Given this, the warranty likely formed part of the basis of the bargain, and thus it qualifies as an

express warranty.

        2. Breach of the Express Warranty

        Pack alleges several continuing defects for which Damon is responsible and which Damon

failed to repair or replace, as well as one defect, the leaning of the motor home, that was not repaired

within a reasonable time, thus causing the warranty to fail of its essential purpose.




                                                   5
               a. A question of material fact exists as to Damon’s failure to cure several
                  defects.

       Damon’s limited warranty on the RV ran for one year from the date of purchase, September

13, 2002. Pack claims that there were eight defects that arose during this period that remained

uncorrected: rust; loose slide-out gasket; rear monitor malfunctions; dashboard clock and cigarette

lighter malfunction; outside shower does not work properly; fog light fills with water and is

corroded; bedroom slide-out does not close completely; and abnormal popping noise from front end

while driving.1 At his deposition, Pack testified that both the clock and the fog light had been

corrected.2 As to the other problems, namely the rust, loose slide-out gasket, rear monitor, outside

shower, bedroom slide-out, and the popping noise, Pack’s deposition testimony and affidavit

indicate that these defects persisted despite Damon’s repairs.

       To rebut these contentions, Damon puts forth an affidavit from Jason Quillen, GRVC Service

Manager, and an expert report from Michael Bukowski, GRVC Service Shop Foreman. Although

the district court relied on both the Bukowski Report and the Quillen Affidavit, the Bukowski Report

is unsworn and thus is hearsay, which may not be considered on a motion for summary judgment.

See Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 619-20 (6th Cir. 2003). Moreover,

Quillen’s credentials as an expert as to either RV mechanics or the Damon limited warranty are not

clear from the record. In any event, Quillen’s affidavit does not defeat Pack’s contentions. First,

Quillen does not deny the existence of the popping noise, the rust, or the shower problem. Second,


       1
       Although Mr Pack’s counsel conceded that Damon has not refused to repair any defect, a
mere good faith effort to correct defects fails to satisfy a repair-or-replace warranty. See Kelynack,
394 N.W.2d at 20.
       2
        Neither Plaintiff’s deposition nor the work-order forms mention the cigarette lighter, and
thus we must conclude that this problem did not exist or had ceased.

                                                  6
as to the two slide-outs, Quillen affirms that the problems did not exist at the time of the inspection,

May 19, 2004; however, the condition of the motor home on that date is not dispositive as to

whether the slide-outs were repaired within the period under warranty.

       Given that circumstantial evidence suffices to prove a defect, see Caldwell v. Fox, 231

N.W.2d 46, 51 (Mich. 1975), and that the facts should be viewed in the light most favorable to the

nonmoving party, Pack has come forward with sufficient evidence to raise a question of material fact

regarding failure to cure the following defects: the slide-out gasket, the bedroom slide-out, the rear

monitor, the popping noise, the rust, and the shower.

               b. Questions of material fact exist as to whether some of the continuing defects
                  are covered under the Damon warranty.

       Damon’s repair-or-replace warranty covers “materials, components or parts of the RV

manufactured and finally assembled by Damon.” J.A. at 53 (Damon Warranty). The warranty

specifically excludes from coverage “[i]tems added or changed after the RV leaves . . . Damon”;

damage resulting from “[n]ormal wear and usage”; damage to otherwise warranted components or

parts caused by environmental corrosion; and “[a]ny material, component, or part of the RV that is

warranted separately by its manufacturer, including . . . the chassis. . . .” Id. at 53-54.

       Of the defects for which a question of material fact exists regarding Damon’s failure to cure

— the two slide-outs, the rear monitor, the popping noise, the rust, and the shower — a question of

material fact regarding coverage under the warranty has been raised as to the slide-outs and the rust.

The shower problem is caused by a restricter that Pack added to the RV from a prior motor home,

and thus it is excluded from coverage. As for the monitor, the warranty exempts from coverage

component parts that are separately warranted and includes a nonexhaustive list of such parts.

Although the monitor is not named on the list, it is of the same kind as the excluded items listed, and

                                                   7
Quillen affirmed that it was excluded as a component part covered under separate warranty. Pack

has not provided evidence to rebut this contention. Pack admitted that he did not know the cause

of the popping noise and has no evidence suggesting coverage by the warranty. This, combined with

a lack of evidence concerning the persistence of this defect,3 suffices for Damon to have met its

burden on this defect.

        Damon has failed to meet its burden to show that the slide-outs are not under Damon’s

warranty.4 Neither slide-out appears to fall under any exception to Damon’s warranty. The Damon

warranty claim form noting that Damon fixed the loose slide-out gasket on the RV in March 2002

before Pack bought the unit also tends to show that the slide-outs are covered under warranty.

Finally, although the warranty excludes coverage of damage resulting from “[n]ormal wear and

usage” and environmental corrosion, which typically might exclude rust, the rust problem existed

prior to Pack’s purchasing the RV. This indicates that there might be a defect beyond corrosion or

normal usage, and thus Pack has raised a genuine issue of fact as to the warranty’s coverage of the

rust.

        Therefore, there are issues of material fact regarding defects related to the slide-out gasket,

the bedroom slide-out, and the rust, and thus the grant of summary judgment on the breach of

express warranty as to those claims was inappropriate.


        3
         Pack’s deposition does not fully support his claim that the popping noise persisted.
        4
         Pack argues that a “W” under the “type” column on the GRVC work-order form, which can
be found next to the repairs for the two slide-outs, the rear monitor, the popping noise, and the rust,
indicates that the defect is covered under Damon’s limited warranty. Damon disputes this, claiming
that GRVC bills all repairs to Damon, who serves as an intermediary, paying for the work but then
billing the respective component manufacturers for the charges for which they are responsible. The
record lacks support for either conclusion, and thus this presents a disputed issue of fact regarding
the scope of the warranty.

                                                  8
       3. Failure of Essential Purpose

       Further, Pack argues that he is not required to prove continuing defects because Damon’s

limited warranty failed of its essential purpose, which would allow him relief beyond the limited

warranty. Although the MUCC allows a warranty agreement to “limit or alter the measure of

damages recoverable,” MCL § 440.2719(a), where “an exclusive or limited remedy . . . . fail[s] of

its essential purpose,” the buyer is entitled to other remedies. Id. § 440.2719(b)(2).

               a. Repairs or replacements must be completed within a reasonable time.

       Pack is entitled to relief on his claim of failure of essential purpose if he can show that

Damon failed to repair or replace defects in the RV for which it was responsible within a reasonable

time. See Kelynack, 394 N.W.2d at 20 (holding that where a manufacturer extends a repair-or-

replace warranty, it “does not have an unlimited time to make the repairs, but rather must repair or

replace the parts within a reasonable time”). In Kelynack, the Michigan Court of Appeals found that

the repair-or-replace warranty on a motorcycle had failed of its essential purpose due to

unreasonable delay where the motorcycle became completely inoperable after ten weeks in the

plaintiff’s possession, then remained at the dealer for over three months, and was finally returned

to the plaintiff when the weather precluded its use. Id.; see also Krupp, 530 N.W.2d at 149 (holding

that a repair-or-replace warranty failed of its essential purpose because the item was out of service

for eighteen months and was not entirely repaired for three years).

               b. Time out of service raises a disputed issue of material fact.

       Although the record is not clear on the number of days the motor home was out of service,

a view of the record in the light most favorable to the nonmoving party reveals that the motor home




                                                 9
was out of service for 162 days in the first year of ownership.5 On its face, this appears to be an

unreasonable time, and thus if these facts were proven at trial, Damon’s warranty would likely be

found to fail of its essential purpose.

        Damon attempts to rebut Pack’s claims by arguing that the repairs that took the most

substantial amount of time were not covered under Damon’s warranty. Damon alleges that the

leaning problem that led Pack to have his truck serviced at least twice and led to the longest

servicing, from April 28, 2003 until August 6, 2003, was caused by the chassis, and thus was not

covered by the warranty. However, Pack has raised a question of material fact as to the cause of this

defect by producing evidence that the defect was a coach problem, and thus under warranty. A Ford

work order states: “right side sitting about 3 [inches] lower th[a]n left” and “conversion package

is all on [right] side bathroom, tanks etc. No suspension problem.” J.A. at 112 (Gorno Ford

invoice). This indicates that the problem is with the coach, which is covered by the warranty, and

not the suspension, which is part of the chassis. A GRVC work order indicates that this was a




        5
         Principally, the completion date of the repair that put the RV out of service for the longest
period is unclear. One form indicates that the repair was completed on June 3, 2003, J.A. at 96, and
the other indicates that Pack signed for the unit on August 6, 2003, J.A. at 114. Damon alleges that
the date that Pack signed the work order was not the date that service was completed, but has
presented no evidence to support this contention. Moreover, GRVC’s work order form states: “All
service units must be picked up within 48 hours after notification of completion by our service
department. Due to limited space there is a $10.00 per day storage charge after the 48 hour period.”
J.A. at 98 (GRVC Work Order Form). None of the forms indicate that Pack was charged this
storage fee. This presents a genuine issue of material fact that cannot be resolved by the record.
Because we must construe all facts in the light most favorable to the nonmoving party, we will
presume that the repairs were not completed until August 6, 2003. However, even assuming that
repairs were completed on June 3, 2003, the motor home was out of service for ninety-seven days
during the first year.

                                                 10
“coach problem,”6 and that Damon authorized the coach to be shimmed to correct the problem.

Although Quillen affirmed that he found no leaning when he inspected the RV, Pack’s complaint

regarding the leaning problem goes to the delay in its repair, not its continuing defectiveness, and

thus the RV’s condition on the date of its inspection is immaterial.7

C. Implied-Warranty Claims Do Not Require Privity Under Michigan Law

        The Michigan Supreme Court has not yet ruled on whether privity is required to bring an

implied-warranty claim under the MUCC. Where a federal court is deciding an issue of state law

that has not been decided by the state’s highest court, the federal court should determine how the

state’s highest court would decide the issue were it faced with it. See Meridian Mut. Ins. Co., 197

F.3d at 1181. The federal court should heed the decisions of the intermediate appellate state courts

except where the federal court is persuaded that the highest court of the state would not so decide,

id. (citing Comm’r v. Estate of Bosch, 387 U.S. 456, 465 (1967)), and the federal court may consider

applicable dicta of the state’s highest court, Angelotta v. Am. Broad. Corp., 820 F.2d 806, 807 (6th

Cir. 1987).




        6
        Damon argues that the notation on the work order form indicating that this defect was a
coach problem is not GRVC’s or Damon’s conclusion, but rather what Pack told GRVC. There is
support for this contention in the record as the work-order form notes that “customer statres [sic] the
following problems” above the description of the leaning problem. See J.A. at 113 (GRVC Work
Order).
        7
         Damon tries to rely on Quillen’s statement that “all of the Plaintiff’s . . . complaints . . . have
either been properly repaired or are specifically excluded from Damon’s limited warranty” to show
that the leaning problem was not covered under the warranty. J.A. at 93 (Quillen Aff. at 2)
(emphasis added). However, as the statement is in the disjunctive, Damon cannot use it to prove that
the leaning problem was not covered by the warranty where the statement could just as easily be
read to mean that the motor home no longer leaned, as the affidavit earlier stated.

                                                    11
       The MUCC provides that “(1) [u]nless excluded or modified . . ., a warranty that the goods

shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect

to goods of that kind,” and that “(2) [g]oods to be merchantable must be at least such as . . . are fit

for the ordinary purposes for which such goods are used.” MCL § 440.2314. The MUCC does not

mention any privity requirement to bring a claim under this provision. Id. § 440.2103(1)(d).

       Michigan law has not settled whether privity is required to bring an implied-warranty claim

under the MUCC. In 1958, prior to the adoption of the MUCC,8 the Michigan Supreme Court

reversed its traditional privity requirement for implied-warranty claims in an opinion that criticized

the privity requirement at length. Spence v. Three Rivers Builders & Masonry Supply, Inc., 90

N.W.2d 873 (Mich. 1958). The Michigan Supreme Court followed Spence’s repudiation of privity

in several subsequent decisions. See Hill v. Harbor Steel & Supply Co., 132 N.W.2d 54, 56 (Mich.

1965); Piercefield v. Remington Arms Co., 133 N.W.2d 129, 136 (Mich. 1965); Manzoni v. Detroit

Coca-Cola Bottling Co., 109 N.W.2d 918, 922 (Mich. 1961).

       Spence and its progeny have been cited with approval after the adoption of the MUCC to

hold that privity is not required to sustain an implied-warranty claim for economic losses. See, e.g.,

Southgate Cmty. Sch. Dist. v. W. Side Constr. Co., 247 N.W.2d 884, 886 n.1 (Mich. 1976); Williams

v. Polgar, 215 N.W.2d 149, 153-55 (Mich. 1974); Cova v. Harley Davidson Motor Co., 182 N.W.2d

800, 802 (Mich. Ct. App. 1970); Gauthier v. Mayo, 258 N.W.2d 748, 749 (Mich. Ct. App. 1977);

Reid v. Volkswagen of Am., Inc., 512 F.2d 1294, 1298 (6th Cir. 1975); Michels v. Monaco Coach

Corp, 298 F. Supp. 2d 642, 646-50 (E.D. Mich. 2003). Michigan courts have continued to apply the



       8
       Michigan adopted the UCC in 1964. Karl Wendt Farm Equip. Co. v. Int’l Harvester Co.,
931 F.2d 1112, 1116 (6th Cir. 1991).

                                                  12
Spence rule after the adoption of the MUCC, stating that the MUCC is “neutral as to its effect on

consumer remedies and . . . neither enlarges nor restricts ‘the developing case law on whether the

seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.’”

Cova, 182 N.W.2d at 805 nn.13, 14 (quoting Official UCC Comment to § 2-318); see also Reid, 512

F.2d at 1298 (stating that the UCC “was drafted so as to leave the question of privity to state law in

recognition of the exact situation already existing in Michigan which was one of the leading states

in rejecting the privity defense”).

        In Cova, the Michigan Court of Appeals held that although the Michigan Supreme Court had

not expressly declared that a consumer may recover from a manufacturer on implied-warranty

claims for economic losses without privity of contract, “we are persuaded from our review of the

foregoing decisions of our Supreme Court and from the trend of authorities in other jurisdictions that

a consumer can sue a manufacturer directly for economic loss resulting from a defect in a product

attributable to the manufacturer. . . .” 182 N.W.2d at 804. In our opinion in Reid, we similarly

concluded that “Michigan’s rejection of the privity requirement in products liability cases is, as we

see it, both sweeping and complete,” and “is not limited to tort actions as opposed to actions based

on warranty whether express or implied.” 512 F.2d at 1298.

        Despite these numerous authorities abandoning the privity requirement, in Auto Owners

Insurance Co. v. Chrysler Corp., 341 N.W.2d 223 (Mich. Ct. App. 1983), the Michigan Court of

Appeals departed from these cases without explanation and held that privity was required to bring

a claim for breach of an implied warranty for economic loss. However, in Great American

Insurance Co. v. Paty’s, Inc., decided just a few years later, the Michigan Court of Appeals shed




                                                   13
serious doubt on Auto Owners, noting that the Auto Owners dissent, which argued that privity is not

required for implied-warranty claims, had a “strong argument,”and finding that:

       under Michigan law, vertical privity is not required even where the damages at issue
       consist solely of economic losses. . . . While the UCC takes no official position on
       the issue of vertical privity, the practice commentary . . . notes that the Michigan
       decisions on the question of privity are not affected by the Code. The Michigan
       cases which have considered the question have held that it is unnecessary to establish
       vertical privity, even where the loss is solely economic.

397 N.W.2d 853, 856-57 (Mich. Ct. App. 1986) (citing Cova and Piercefield). The Great American

court, however, allowed the implied-warranty claim to proceed on alternate grounds, and thus

despite its criticism of Auto Owners, it avoided overturning Auto Owners’s approach to the privity

requirement.9 A subsequent case by the Michigan Court of Appeals then formally adopted the

reasoning of the Auto Owners’s dissent. Sullivan Indus. v. Double Seal Glass Co., 480 N.W.2d 623,

629 (Mich. Ct. App. 1991).10

       Although Damon cites several district courts that require privity to sue for breach of an

implied warranty, see, e.g., Parsley v. Monaco Coach Corp., 327 F. Supp. 2d 797 (W.D. Mich.



       9
         The court noted, however, that Judge Gillis, who was in the majority in Auto Owners, would
have been willing to reconsider his position on the implied-warranty privity requirement were the
court to decide this issue. Great Am. Ins. Co., 397 N.W.2d at 857 n.1.
       10
         In Sullivan, the court decided the issue in conjunction with the application of the economic
loss doctrine, which bars tort recovery for product defects where the losses sustained are purely
economic. 480 N.W.2d at 627. The court reasoned that whether a products liability claim should
sound in contract or tort should be based on the type of injury suffered by plaintiff — economic or
personal — rather than on any notions of privity. Id. at 629. With this understanding of claims of
economic loss, the privity requirement for implied-warranty claims must be abandoned because
otherwise a plaintiff would be without remedy for economic losses she has sustained at the hands
of a remote manufacturer. In the case at bar, were Pack denied the opportunity to bring breach of
warranty claims under the MUCC due to lack of privity, he would be without an opportunity to be
made whole because the economic loss doctrine would bar his claims under any tort theory. This
problem is rectified by abandoning the privity requirement in such cases.

                                                 14
2004); Pitts v. Monaco Coach Corp., 330 F. Supp. 2d 918 (W.D. Mich. 2004); Ducharme v. A & S

RV Ctr., Inc., 321 F. Supp. 2d 843 (E.D. Mich. 2004)11, these cases are not binding on this court and

do not have the substantial weight of the decisions of the Michigan Supreme Court and the Michigan

Court of Appeals on an issue of Michigan law. Cf. Salve Regina Coll. v. Russell, 499 U.S. 225, 231-

39 (1991) (holding that district courts’ interpretation of state law is owed no deference on review).

The district court decisions cited above are also flawed in that they base their analysis primarily on

a decision by a fellow district court, Mt. Holly Ski Area v. U.S. Electrical Motors, 666 F. Supp. 115

(E.D. Mich. 1987), and decisions by other districts, rather than on how the Supreme Court of

Michigan would decide this question, which requires considerably more attention to Michigan

Supreme Court and Michigan Court of Appeals decisions.

       Based on the foregoing, we conclude that Michigan has abandoned the privity requirement

for implied-warranty claims and thus that the district court erred in dismissing Pack’s implied-

warranty claims for lack of privity.12

                                         III. CONCLUSION

       For the foregoing reasons, we REVERSE IN PART the district court’s dismissal of

plaintiff’s state-law express-warranty claims, REVERSE the district court’s dismissal of plaintiff’s

state-law implied-warranty claim, and REVERSE the district court’s dismissal of plaintiff’s claims



       11
         The Sixth Circuit has recently affirmed this decision in an unpublished summary
affirmation. Ducharme v. A & S RV Ctr., Inc., 127 F. App’x 204 (6th Cir. 2005) (per curiam).
       12
         Alternatively, the express warranty extended from Damon to Pack could suffice to support
the requisite contractual relationship to bring an implied-warranty claim, as the court found in Great
American. 397 N.W.2d at 857. The facts of the instant case are even stronger than the facts of
Great American because here Damon made an express warranty directly to Pack, the original retail
buyer.

                                                 15
under the MMWA and the MCPA. We REMAND to the district court for further proceedings

consistent with this opinion.




                                        16
