                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-2850
JOHN M. RICKHER,
                                                 Plaintiff-Appellant,
                                 v.

HOME DEPOT, INC., a Delaware Corporation,
                                                Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
               No. 05 C 2152—John F. Grady, Judge.
                         ____________
      ARGUED MARCH 31, 2008—DECIDED JULY 28, 2008
                         ____________


 Before KANNE, EVANS, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. John Rickher brought a class-
action lawsuit against Home Depot, arguing that Home
Depot’s sale of a “Damage Waiver” in connection with
tool rentals violated the Illinois Consumer Fraud and
Deceptive Business Practices Act (“CFA”), see 815 Ill.
Comp. Stat. 505/2. Rickher claims that the waiver is a
worthless product because it does not provide any value
or protection to the customer beyond what is already
provided in the basic “Rental Agreement.” In Rickher’s
view, the sale of the worthless Damage Waiver is both
2                                              No. 07-2850

deceptive and unfair under the CFA. The district court
rejected Rickher’s argument and denied his motion for
class certification. Because we agree with the district
court that the Damage Waiver has value, we affirm the
judgment.


                       I. HISTORY
   This appeal deals with a question that many consumers
face on a regular basis—should I buy the extra protec-
tion being offered with this purchase or rental? John
Rickher faced this question on over a dozen occasions
over the past few years when he rented tools and equip-
ment from Chicago-area Home Depot stores. On each
occasion, Rickher entered into a three-page contract—the
Rental Agreement—with Home Depot. The first page is
Home Depot’s copy of the agreement. It outlines the
description and price of the rental, with itemized charges;
one line item is labeled “Damage Waiver.” The first page
also contains a “Special Terms and Conditions” section,
which includes the following statement: “I accept the
benefits of the damage waiver (if applicable) described
in paragraph 11 in the terms and conditions of this rental
agreement.” The customer signs the first page of the
agreement, underneath this statement of acceptance. The
second page is the customer’s copy of the agreement, and
it also describes the rented item and the itemized charges.
It looks very much like the first page (Home Depot’s
copy), but does not contain the Special Terms and Condi-
tions that are identified on the front page.
  The third page details the specific terms and conditions
of the agreement. Four provisions are relevant to Rickher’s
appeal. According to the “Risk of Loss” provision (¶ 3), a
No. 07-2850                                               3

rental customer is liable for all “damage or destruction,
partial or complete” to the equipment. A different provi-
sion (¶ 5) explains that the customer is not liable for
“reasonable wear and tear resulting from proper use.”
Then, according to the “Repair or Replacement” provision
(¶ 6), in the event a tool or piece of equipment becomes
unsafe or in a state of disrepair, Home Depot has the
“option” to fix the equipment, provide the customer with
a comparable item, or adjust the rental charge. The Repair
or Replacement provision goes on to explain that if the
equipment is damaged or in disrepair because of the
customer’s improper use or maintenance, the customer
will bear the cost of the replacement or repair. Finally,
there is the Damage Waiver provision (¶ 11), which
relieves the customer of liability for damage to the equip-
ment that does not result from the customer’s improper
use of the equipment, provided the customer pays an
additional fee.
  The precise language of the baseline Risk of Loss provi-
sion (¶ 3) states:
   . . . I [the customer] assume all risks of loss, theft,
   damage or destruction, partial or complete, of the
   Equipment from any and every cause whatsoever.
  The second relevant condition, which Rickher character-
izes as the “Wear and Tear” provision (¶ 5), specifically
provides:
   I acknowledge that I have examined the Equipment,
   seen it in operation (if appropriate) and that its condi-
   tion is acceptable. I agree to surrender the Equipment
   to you upon termination hereof, in as good order and
   condition as when received, except for reasonable
   wear and tear resulting from proper use, and if re-
4                                              No. 07-2850

    turned unclean, I may be charged a reasonable cleaning
    fee. I agree to keep and maintain the Equipment in
    good condition, use it in a careful and proper manner
    (including without limitation maintenance of proper
    fuel, oil and lubricant levels, if applicable) and
    comply with all applicable laws and regulations.
  In the Repair or Replacement provision (¶ 6), the cus-
tomer agrees:
    immediately to discontinue using Equipment that
    becomes unsafe or in a state of disrepair, and immedi-
    ately to notify [Home Depot] of such fact. You [Home
    Depot] have the option to make such Equipment
    operable within a reasonable time, provide me with
    a similar piece of Equipment or adjust the rental
    charge. However, if such Equipment is unsafe or in
    disrepair because of my improper use or maintenance,
    I will bear the expense of such replacement or repair
    or, at your option, be declared in default.
  The Damage Waiver provision (¶ 11) explains that, if the
customer pays the Damage Waiver charge—a fee equal to
ten percent of the cost of the equipment’s regular rental
charge—Home Depot will “waive” its right to hold the
customer liable for damage caused to the product while
in the customer’s possession—except for damage caused
by the customer’s misuse or abuse of the equipment
(among other exceptions).
    If I pay the Damage Waiver charge for any Equipment,
    this agreement shall be modified to relieve me of
    liability for accidental damage to it, but not for any
    losses or damages due to theft, burglary, misuse or
    abuse, theft by conversion, intentional damage, disap-
    pearance or any loss due to my failure to care properly
No. 07-2850                                               5

    for such Equipment in a prudent manner (including
    without limitation by using proper fuel, oil and lubri-
    cants and not exceeding such Equipment’s rated
    capacity, if applicable).
  In the district court, Rickher claimed that Home Depot
had violated the CFA in two ways. First, he alleged that
Home Depot deceived him into believing the Damage
Waiver was a mandatory charge by failing to inform him
each time he rented tools that the waiver was optional,
and by including it, as a default condition, in each
Rental Agreement. Second, he argued that the Damage
Waiver is a “worthless” product because it does not
provide consumers with any protections above and be-
yond those already afforded by the regular Rental Agree-
ment. Rickher sought to certify a class consisting of
persons who paid the Damage Waiver charge when they
rented equipment from Home Depot stores in Illinois
during the three-year period before Rickher filed his
complaint.
  The district court determined that Rickher’s evidence
could not survive summary judgment on either of his
claims. When he rented the tools, Rickher failed to read the
Rental Agreement, which clearly described the non-
mandatory nature of the Damage Waiver. As for the
scope of the Damage Waiver, the district court decided
that the waiver had value, so there was nothing decep-
tive or unfair about Home Depot’s sale of the waiver to
customers. After granting summary judgment in Home
Depot’s favor, the district court denied Rickher’s motion
for class certification as moot.
6                                                  No. 07-2850

                        II. ANALYSIS
   Rickher’s only challenge on appeal is to the district
court’s disposition of the cross-motions for summary
judgment respecting Count II of his Second Amended
Complaint, which alleged that the Damage Waiver is a
worthless product. We review de novo the district court’s
disposition of cross-motions for summary judgment,
while construing the evidence and all reasonable inferences
in favor of the party against whom the motion under
consideration is made. BASF AG v. Great Am. Assurance Co.,
522 F.3d 813, 818 (7th Cir. 2008). Summary judgment is
proper “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). The resolution of the CFA claim in this case depends
entirely on the terms of the Rental Agreement contract,
and as such, summary judgment is appropriate only
if there are no genuine issues of material fact sur-
rounding the interpretation of that contract. See Cherry v.
Auburn Gear, Inc., 441 F.3d 476, 481 (7th Cir. 2006). Under
Illinois law, the interpretation of a contract presents a
question of law that is decided by the court.1 BASF, 522
F.3d at 818-19; Bowers Mfg. Co., Inc. v. Chi. Mach. Tool Co.,
453 N.E.2d 61, 66 (Ill. App. Ct. 1983). Neither side argues
that the contract is ambiguous, nor do we identify an
ambiguity that prevents our analysis. The contract is not


1
   The parties both properly assume that the substantive law of
Illinois governs this diversity action, which alleges violations
of Illinois’s Consumer Fraud and Deceptive Business Practices
Act.
No. 07-2850                                               7

“ ‘susceptible of different constructions when read in its
plain and ordinary meaning,’” see Cromeens, Holloman,
Sibert, Inc., v. AB Volvo, 349 F.3d 376, 394 (7th Cir. 2003)
(quoting Althoff Indus., Inc. v. Elgin Med. Ctr., Inc., 420
N.E.2d 800, 803 (Ill. 1981)), so we proceed to the merits
of the question raised on appeal: whether the Damage
Waiver is “worthless.”
  Rickher argues that the Damage Waiver is worthless
because even without it, the Rental Agreement relieves
renters of liability for all damage to a piece of equipment
that results from its proper use. In his view, the Damage
Waiver offers no additional protection because it excludes
from coverage damage resulting from improper use. Thus,
Rickher argues that the Damage Waiver is redundant
because damage from proper use is already excused by
the Rental Agreement, and the Damage Waiver does not
excuse the customer of anything other than damage from
proper use. In Rickher’s opinion, the Damage Waiver is a
worthless product, and charging customers a fee for a
worthless product is deceptive and unfair under the CFA.
  To demonstrate a deceptive practice under the CFA,
Rickher must show that he suffered actual damages and
he must present facts demonstrating: “(1) a deceptive act
or practice by the defendant; (2) the defendant’s intent
that the plaintiff rely on the deception; (3) the deception
occurred in the course of trade or commerce; and (4) the
consumer fraud proximately caused the plaintiff’s injury.”
White v. DaimlerChrysler Corp., 856 N.E.2d 542, 546 (Ill.
App. Ct. 2006); see also Connick v. Suzuki Motor Co., 675
N.E.2d 584, 593 (Ill. 1996). To show that something is an
“unfair practice” under the CFA, the practice must offend
public policy; be immoral, unethical, oppressive, or
unscrupulous; or cause substantial injury to consumers.
8                                                  No. 07-2850

Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961
(Ill. 2002). “ ‘All three criteria do not need to be satisfied
to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of the
criteria or because to a lesser extent it meets all three.’ ” Id.
(quoting Cheshire Mortgage Serv., Inc. v. Montes, 612 A.2d
1130, 1143 (Conn. 1992)).
  At first blush, the Rental Agreement clearly allocates
all risks to the customer—the Risk of Loss provision in
paragraph 3 states that the customer is responsible for
all damage and loss to the rented item. Thus, unless the
Risk of Loss provision is modified or nullified by other
provisions in the Rental Agreement, the Damage Waiver
effectively alleviates some of the customer’s liabilities.
Charging customers for the waiver and its corresponding
shifting of risks is an acceptable arrangement that ap-
pears neither deceptive, nor unfair. See Chabraja v. Avis
Rent A Car System, Inc., 549 N.E.2d 872, 875 (Ill. Ct. App.
1989) (explaining that bailee is generally liable for injury
to bailed property, but parties are free to alter tradi-
tional risk allocations by contract so long as resulting
agreement does not violate public policy).
  Rickher points to the Repair and Replacement provision,
as well as the Wear and Tear provision, to argue that
Home Depot shifts nearly all of the risk away from the
customer and onto Home Depot. Rickher’s argument can
be broken down as follows:
    1. The Risk of Loss provision (¶ 3) provides the
       baseline: the customer is responsible for all loss,
       theft, damage, or destruction, partial or complete,
       of the equipment, regardless of the cause.
    2. The Repair and Replacement and Wear and Tear
       provisions effectively nullify the Risk of Loss
No. 07-2850                                             9

       provision by shifting all of the risk onto Home
       Depot, except for the risk of damage resulting from
       improper use or maintenance, which remains
       with the customer.
       a. The Wear and Tear provision (¶ 5) provides
          that customers are not liable for reasonable
          wear and tear that results from proper use.
          Wear and tear encompasses all “damage”
          resulting from proper use, so customers need
          not worry about anything except for damage
          resulting from improper use or abuse.
       b. The Repair and Replacement provision (¶ 6)
          states that customers will have to pay for
          repairs or damage caused by improper use or
          maintenance; according to Rickher, this affir-
          mative statement, absent a comparable state-
          ment about the customer’s liabilities for dam-
          age resulting from proper use, establishes that
          customers will never be liable for damage to a
          piece of equipment unless that damage
          results from improper use, abuse, or improper
          maintenance.
   3. The Damage Waiver (¶ 11) excludes coverage for
      damages stemming from improper use, abuse, and
      improper maintenance. The Rental Agreement
      already protects customers from liability for dam-
      age resulting from proper use (via ¶¶ 5 & 6), so the
      Damage Waiver adds no additional coverage,
      even though customers pay a fee for the Damage
      Waiver.
  Rickher’s argument hinges on his interpretation of
paragraphs 5 and 6. But as the district court recognized,
10                                             No. 07-2850

Rickher’s reading of the Wear and Tear and Repair and
Replacement provisions suffers from major flaws.
  The first flaw is that Rickher broadly defines the concept
of “wear and tear” to encompass any and all damage
that might occur during a tool’s proper use. Rickher
reads paragraph 5—which explicitly allows for “reason-
able wear and tear” of the tool during the rental pe-
riod—to relieve the customer of liability for any and all
damage to the tool so long as that damage happens by
way of proper use of the tool. This leads Rickher to con-
clude that the Damage Waiver is effectively the inverse of
the Wear and Tear provision: the customer is already
relieved of responsibility for damages resulting from
proper use, but the Damage Waiver excludes from its
protections any damages stemming from improper
use—so, it provides no additional protection to the cus-
tomer. Home Depot, on the other hand, claims that the
Wear and Tear provision of paragraph 5 does not effect
a shifting of risks—it simply informs the customer that
Home Depot will not hold the customer liable for rea-
sonable wear and tear of the equipment. “The paragraph
does not mention loss, damage, or destruction of the tool,
nor does it mention who is required to pay for any such
loss, damage or destruction.”
  Rickher cites dictionary definitions of “wear and tear” to
support his contention that damage and wear and tear
are one and the same: “Depreciation, damage, or loss
resulting from ordinary use or exposure,” Webster’s II
New College Dictionary (1995); “Damage or deterioration
resulting from ordinary use; normal depreciation,” Ran-
dom House Webster’s College Dictionary (1992). Al-
though it is true that dictionary definitions of “wear and
tear” often employ the word “damage,” that does not mean
No. 07-2850                                               11

that damage and “wear and tear” are synonymous. Wear
and tear is a more specific phrase that connotes the ex-
pected, often gradual, depreciation of an item. See Wear
and Tear, http://en.wikipedia.org/wiki/Wear_and_tear,
last visited May 30, 2008.
   It is a form of depreciation which is assumed to
   occur even when an item is used competently and
   with care and proper maintenance. For example,
   friction may erode a hammer’s head. In the normal
   use of a hammer for its designed task erosion is
   impossible to prevent, and any attempt to eliminate
   this erosion would make the hammer useless. At
   the same time, it is expected that the normal use of
   a hammer will not break it beyond repair until it
   has gone through a certain amount of use.
Id. Most items, such as power tools, when used regularly,
suffer from ordinary wear and tear. Tools are not meant
to be maintained in pristine condition, and Home Depot
recognizes that motors will slow over time, blades will
dull, and casings will get scratched. True, these measures
of depreciation technically can be termed “damage”; but
while all wear and tear resulting from proper use might
fall under the broad category of “damage,” the
inverse—that all damages fall under the category of
wear and tear—is simply not true. See Kallman v. Radio-
shack Corp., 315 F.3d 731, 740 n.5 (7th Cir. 2002) (drawing
line between reasonable wear and tear, which was
allowed in the contract, and damage: “The district court
found that the extensive damage and poor condition of
the roof, parking lot, and HVAC units did not constitute
‘reasonable wear and tear,’ and we agree”); W. Assets Corp.
v. Goodyear Tire & Rubber Co., 759 F.2d 595, 603 (7th Cir.
1985) (delineating “ordinary wear and tear, such as ma-
12                                                No. 07-2850

sonry work” from “several items that may be described as
damage to the building, such as broken windows, doors,
floor tiles and ceiling tiles”).
  In a Southern District of Florida case dealing with the
same Home Depot Damage Waiver, the plaintiff also
“equate[d] damage to the phrase ‘normal wear and tear.’ ”
Jeff Enters., Inc. v. Home Depot U.S.A., Inc., 07-60302-CIV,
slip op. at 9 (S.D. Fla. July 27, 2007) (unpublished decision).
The Jeff Enterprises court pointed out that the Rental
Agreement uses the terms “wear and tear” and “damage”
separately, which supports reading the terms to have
different meanings. Additionally, if damage and wear
and tear are synonymous, then the Risk of Loss and
Damage Waiver provisions in the Rental Agreement are
meaningless. See id. (“Jeff Enterprises’ interpretation
renders both the [Risk of Loss] and Damage Waiver
provisions of the Rental Agreement meaningless, which
runs contrary to basic contract interpretation principles.”);
see also Elda Arnhold & Byzantio, L.L.C. v. Ocean Atl. Wood-
land Corp., 284 F.3d 693, 705 (7th Cir. 2002) (“Illinois
courts construe contract terms ‘so as to avoid rendering
other terms redundant or meaningless.’” (quoting Carroll
v. Acme-Cleveland Corp., 955 F.2d 1107, 1112 (7th Cir.
1992))). Rickher’s interpretation of the Wear and Tear
provision would render the Risk of Loss provision mean-
ingless. We see no reason for constructing a new defini-
tion of wear and tear (per Rickher’s suggestion) that
encompasses all damage resulting from proper use, where
the contract uses “damage” and “wear and tear” differ-
ently, and where such an interpretation would render
meaningless other provisions in the contract.
  Rickher further argues that even if we reject his inter-
pretation of the Wear and Tear provision, the Rental
No. 07-2850                                               13

Agreement still relieves the customer of liability for all
damage resulting from anything but improper use by
way of the Repair and Replacement provision. Rickher
claims that because Home Depot specified in paragraph 6
that renters must pay for repairs caused by improper use,
the store implicitly absolved renters of all liability for
damage caused by proper use. Rickher argues:
   It is completely implausible . . . to interpret a
   contract that affirmatively states that renters must
   pay for repairs caused by improper use to mean
   that renters must also pay for repairs caused by
   proper use. What would be the point of the state-
   ment that renters must pay for repairs caused by
   improper use? This is the contract’s only clause
   setting forth the parties’ respective obligations in
   the event a tool needs to be repaired, and the last
   sentence [stating that customer is responsible for
   repair stemming from improper use] is there-
   fore the definitive statement of when renters
   must pay for repairs.
  Rickher must have overlooked the Risk of Loss provi-
sion when he wrote that the Repair and Replacement
provision is the “only clause setting forth the parties’
respective obligations in the event a tool needs to be
repaired . . . .” By way of the Risk of Loss provision, the
customer assumes the risk of all loss, theft, damage or
destruction, partial or complete, from any and every
cause whatsoever.
  The Repair and Replacement provision, on the other
hand, merely outlines steps the renter agrees to take if a
tool becomes unsafe or unusable. It then explains that
Home Depot will either fix the tool, provide the renter
with a similar tool, or adjust the rental charge. The pro-
14                                                No. 07-2850

vision addresses a particular scenario: how Home Depot
will respond when a tool or piece of equipment becomes
unusable during a portion of the paid-for rental period. It
does not address the risk of loss for damaged or unusable
tools, nor does it discuss who will bear the expenses of
repairing or replacing the tool if the tool is damaged during
proper use, or if it is damaged by accident.
  Rickher argues that the final sentence of paragraph 6
modifies the Risk of Loss provision by negative implica-
tion. That sentence states: “However, if such Equipment is
unsafe or in disrepair because of my improper use or
maintenance, I will bear the expense of such replacement
or repair or, at your option, be declared in default.”
Rickher invokes the maxim of expressio unius est exclusio
alterius—the expression of one thing is the exclusion of
another—to argue that by expressing one scenario in
which customers are liable for repair or replacement
expenses, Home Depot means to exclude all other possible
scenarios.
  It has long been recognized in Illinois that the maxim of
expressio unius est exclusio alterius is “a rule of construc-
tion—not of substantive law.” Drexel State Bank of Chi. v.
O’Donnell, 176 N.E. 348, 352 (Ill. 1931). Importantly, the rule
“should never be followed to the extent of overriding a
different intent clearly expressed.” Id. (internal quota-
tion omitted). “[W]e see no occasion for bringing in and
endeavoring to apply a maxim which would detract
from the grant of a power so clearly expressed and so
unmistakably conferred.” Id. at 353. See also 17A C.J.S.
Contracts § 327 (explaining that the contract-interpretation
maxim “is applicable only where clearer indications of
the proper construction are lacking, and should not be
used to create an ambiguity, or to contradict a clear ex-
pression of intent”). The Risk of Loss provision in this
No. 07-2850                                               15

contract is clear—it makes no sense for us to impute
ambiguity into the contract simply because Home Depot
decided to remind customers that they are liable for
damage they cause to Home Depot’s property by way of
their improper use or abuse.
  Further, Home Depot has no need to address the conse-
quences or liabilities of damage resulting from either
proper use or accidents in paragraph 6, the Repair and
Replacement provision. The extent of liability will vary
depending on whether the Damage Waiver is purchased
by a particular customer. If a renter does not purchase the
Damage Waiver protection, but accidentally damages
the tool during proper use, or if the tool suffers damage
when not in use, then under the terms of the contract,
the renter will be liable for those damages (¶ 3). If a
renter purchases the Damage Waiver, then the renter
would not be liable for such damages. A third scenario is
that the tool becomes unusable or unsafe due to some
other cause: the motor of an old tool could die while the
tool is being rented; a fuse in a tool could short out. These
types of maladies are not caused by proper use, improper
use, or accidents. They just happen. Under any of the
above scenarios, if the tool is brought to Home Depot,
the contract explains that Home Depot will repair the
tool or provide the renter with another tool, within a
reasonable time. Or, Home Depot will adjust the rental
charge to reflect the situation. Notably, the Repair and
Replacement provision does not say that Home Depot
will adjust the charge downward. If a tool comes into
disrepair by way of a consumer’s proper use, Home Depot
could very well adjust the charge upward, unless the
customer purchased the Damage Waiver.
 With the Repair and Replacement provision, Home
Depot anticipates that tools may get damaged during
16                                             No. 07-2850

rental periods and thus the store outlines how it plans to
respond when a tool is rendered unsafe or unusable. Home
Depot does not outline in this provision the liabilities
and responsibilities of the consumer or of Home Depot
for every possible scenario of tool damage. Therefore,
the fact that Home Depot emphasizes that customers
will be responsible for repairs resulting from improper
use does not render the baseline Risk of Loss provision in
the very same contract void by way of negative implication.
See Byson Enters., Ltd. v. Peter Carlton Enters., Ltd., 641
N.E.2d 838, 844 (Ill. App. Ct. 1994) (explaining that estab-
lished rules of contract construction do not allow one
provision of contract to take away, by negative infer-
ence, what another provision expressly grants).
   The genesis of Rickher’s problem—with his interpreta-
tions of both paragraphs 5 and 6—is that he divides the
world of tool usage into two and only two realms: proper
use and improper use. There is no other possible
scenario for Rickher. To him, the fact that Home Depot
emphasized a scenario involving improper use means
that Home Depot meant to exclude the same scenario
involving proper use of the tool. But as the district
court pointed out, Rickher fails to acknowledge a third
realm—the one in which accidents occur. We would all
like to use tools perfectly, but accidents happen and
sometimes tools get damaged as a result. While using a
circular saw to cut through a two-by-four, a carpenter
might hit a screw that is not visible because its head is
broken off in the wood. The saw blade is bent and rendered
useless. The carpenter is not using the tool “improperly,”
but still, the saw blade is damaged in an unanticipated
way—beyond the scope of normal “wear and tear.”
Accidents can happen when a tool is not even being used.
No. 07-2850                                                 17

Take the example provided by the district court: “the
customer stores a tool in his garage and something else in
the garage falls on the tool and damages it. This is also
accidental damage that does not occur during use.”
   The Damage Waiver, by its plain language, states that
it protects customers from liability for accidental damage
to the tool. As the district court decided, the Damage
Waiver has value because it modifies the broad allocation
of risk to the rental customer by “relieving the renter
from liability for accidental damage to the tool—both
when the tool is being used properly and when the tool
is not being used at all.”
   The possible scenarios in which a customer may suc-
cessfully invoke the benefits of the Damage Waiver may
not be great—i.e., when damage results from an accident
during proper use, when damage happens while the tool
is not being used, or when damage from proper use
exceeds wear and tear—but they exist. We agree with the
district court that “the plain language of the Rental Agree-
ment demonstrates that the Damage Waiver does have
value.” Home Depot is entitled to charge customers a
price in exchange for its waiver of some of the customer’s
baseline liability under the Rental Agreement. Thus,
Rickher has not established a genuine issue of material
fact as to either the Damage Waiver’s deceptiveness
under the CFA, or it unfairness. Our decision aligns with
those of other courts that have addressed this issue, see
Pacholec v. Home Depot U.S.A. Inc., No. 06-827, slip op. at 4
(D.N.J., July 31, 2007) (“[T]here was value to the Damage
Wavier. It does not constitute an unconscionable com-
mercial practice.”); Jeff Enters., 07-60302-CIV, slip op. at 10
(“[T]he Damage Waiver would shield a customer from
liability stemming from any damage sustained by the
18                                            No. 07-2850

equipment during normal use that is more extensive than
normal wear and tear, and as a result, the Damage Waiver
does have value.”) (unpublished decision); see also Cook v.
Home Depot U.S.A., Inc., No. 2:06-CV-00571, 2007 WL
710220, at 7 (S.D. Ohio, Mar. 6, 2007) (“the terms and
conditions of the Damage Waiver suggest Plaintiff re-
ceived reasonable insurance coverage”) (unpublished
decision).


                    III. CONCLUSION
 For the foregoing reasons, we AFFIRM summary judg-
ment in Home Depot’s favor.




                   USCA-02-C-0072—7-28-08
