                                                                                  FILED
                                                                           COURT QF. tPPEALS
                                                                                 IVISIO

                                                                          2015 FEB 24 AM 9: 24

                                                                          STATE OF WASHINGTON




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

CHUCK BABB, an individual,                                            No. 43934- 4- 11


                                      Appellant,


        v.



REGAL MARINE INDUSTRIES, INC., a                                 UNPUBLISHED OPINION
 foreign corporation,                                                  ON REMAND


                                      Respondent.


       JOHANSON, C. J. —            On remand, our Supreme Court asks us to determine whether Chuck


Babb' s claim for breach of implied warranty of merchantability against Regal Marine Industries,

Inc. (Regal) is precluded by the lack of contractual privity between Babb and Regal. We hold that

Babb' s implied warranty claim is precluded because Babb is a " vertical nonprivity plaintiff' and

he was not an intended third -party beneficiary of the contract between Regal and Powerboats NW

PBNW), the dealer from whom Babb purchased the boat. Accordingly, we affirm the summary

dismissal   of   Babb'   s   implied warranty   claim.
No. 43934 -4 -II



                                                          FACTS


         In 2007, Babb shopped for a new boat, researching the boat market and reading product

reviews which,       according to Babb,       rated   Regal positively.        Babb visited a local boat dealership,

PBNW,      where    he   purchased a    Regal.       By the terms of a contract between PBNW and Regal,

PBNW was an authorized Regal dealer.


         Regal provides a limited warranty for its boats. The warranty specifies that the dealer will

repair or replace any defective parts for one year from delivery. But the warranty lists exceptions

not    covered:      engines,     aftermarket       accessories,     gelcoat    surfaces,   damage caused by user

negligence, accident, or misuse, among others. The•boat' s Volvo engine had its own warranty.

         Babb received his new Regal boat in July 2007. According to Babb, when he first used it,

he   noticed   that it " ran   rough ".and   had   a " vibration."   Clerk' s Papers ( CP) at 120, 352. In October


2007, Babb first called Regal and spoke with customer service representative Chuck Rainey, who

provided information to Babb about how Babb could repair the boat himself. According to Babb,

Rainey also reassured him that Regal would correct any issues with the boat.

          Over the 2007 to 2008 winter, Babb stored his boat, and in spring 2008, his son -in -law,

Shane Hagen, used it. Hagen reported that the boat " repeatedly stalled and had to be towed back

into   shore."   CP at 120. Babb phoned Rainey again in July 2008, and Rainey told Babb to take the

boat to CSR Marine,        a repair   shop,   and   to tell them that   Rainey " ok' ed it." CP at 120. Rainey also

sent Babb a new wake board tower for his boat when Babb reported that the existing tower had

broken welds.


          CSR Marine inspected Babb' s boat and informed Babb that the boat' s engine had a small

engine    head    crack   caused    by freeze damage.          Babb phoned Regal again in December 2008,



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No. 43934 -4 -I1



indicating   that he needed to       repair   his boat   and   that his dealer, PBNW, had    gone   bankrupt. He


spoke with Regal Manager of Customer Service, Mark Skrzypek, and explained the cracked engine


head.   Skrzypek informed Babb that he believed that the cracked engine was caused by improper

winterization not a    manufacturing defect.          Skrzypek convinced CSR to reduce the storage fees it


had charged Babb, but told Babb that Regal' s warranty did not cover the Volvo engine.

         Dissatisfied when Skrzypek advised him that Regal would not cover the engine repairs,


Babb sued Regal on numerous grounds, including a Consumer Protection Act, ch. 19. 86 RCW

 CPA),   violation, and       breach   of express and     implied   warranties,   among   others.   And regarding

implied warranties, Babb claimed that he never waived any implied warranties and that Regal is

liable because he " never received a warranty packet that specifically identifies his boat and the

coverage he is     entitled   to."   CP at 115.


         The trial court granted summary judgment in favor of Regal on each of Babb' s claims.

Babb appealed, and we affirmed the summary dismissal of his claims for CPA violations and

breach   of express warranties.         Babb v. Regal Marine Indus., Inc., noted at 179 Wn. App. 1036,

remanded,     180 Wn.2d 1021 ( 2014).             But we reversed the trial court' s order dismissing Babb' s

claim that Regal breached implied warranties because there was no evidence in the record to

demonstrate that Babb had negotiated a waiver of those claims.


         On remand from our Supreme Court, we are asked to determine whether Babb' s claim that


Regal breached its implied warranty of merchantability is precluded by the lack of contractual

privity between Babb and Regal. Babb, noted at 180 Wn.2d 1021.




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                                                            ANALYSIS


          Babb does not dispute that contractual privity is required to maintain a claim for breach of

an   implied warranty       of   merchantability.           Rather, Babb argues that ( 1) he has satisfied the privity

requirement by virtue of the sales invoice that identifies Regal as a party to the agreement, or (2)

because he is an independent third party beneficiary of the contract between Regal and PBNW, an

exception      to the privity    requirement applies.            We hold that Babb' s claim for breach of implied


warranty of merchantability is precluded by his lack of contractual privity with Regal.

          Article 2 of the UCC, as adopted in Washington, governs warranties arising from the sale

of goods.       RCW 62A. 2 -313, . 2 -318.             Unless excluded or modified, a warranty that goods are

merchantable "      is implied in        a contract     for their      sale"   so long as the seller is a " merchant with

respect   to   goods of    that kind."       RCW 62A. 2- 314( 1).              This implied warranty of merchantability

assures   that the goods " are          fit for the ordinary      purposes      for    which such goods are used."   RCW


62A.2- 314( 2)(    c);   Tex Enters., Inc.       v.   Brockway     Standard, Inc., 149 Wn.2d 204, 208, 66 P. 3d 625


 2003).


          Lack of contractual privity has historically been a defense to claims of breach of warranty.

Tex Enters., 149         Wn.2d     at    209.    The "      vertical"   nonprivity plaintiff is a buyer who is in the

distributive    chain,   but   who   did   not   buy the      product    directly   from the defendant. Tex Enters., 149


Wn.2d at 209. Our Supreme Court has upheld dismissals of remote purchasers' claims for breach


of implied warranties of merchantability where privity between purchaser and manufacturer was

absent.    Tex Enters., 149 Wn.2d               at   214;   see also    Baughn    v.   Honda Motor Co., 107 Wn.2d 127,


151, 727 P. 2d 655 ( 1986) (             disallowing claims for implied warranties under the UCC where

purchaser of motorcycle sued manufacturer rather than dealer).



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No. 43934 -4 -II



         Here, Babb contracted to purchase his boat from PBNW, not from Regal directly.

Accordingly, Babb is a vertical nonprivity plaintiff because he is a buyer in the distributive chain

but   who   did   not   buy   the   product   directly   from the defendant.. Tex Enters., 149 Wn.2d at 209.


                                                    A. DIRECT PRIVITY


         Nonetheless, Babb argues that privity between he and Regal exists because ( 1) the sales

invoice issued by PBNW identifies Regal as a party to the agreement, and ( 2) neither PBNW,

Babb,    nor   Regal     signed     the invoice'   s waiver of   implied   warranties.   Babb contends that had he


signed that waiver, Regal would have argued that Babb made a conscious waiver of the implied


warranties, and in doing so, Regal would implicitly recognize the existence of privity between the

two parties.


         First, Babb does not cite to the record to substantiate his claim that the sales invoice issued


by PBNW identifies Regal as a party to the agreement. Instead the record shows that the invoice

simply names Regal as the maker of the boat. Nothing in these documents establishes that Regal

was party to the contract between Babb and PBNW.

         Second, Babb' s argument about the waiver of the implied warranties rests on speculative

assertions     regarding      a   hypothetical   scenario.    We do not address hypothetical questions. Instead,


we conclude that Babb had no contractual relationship with Regal and, therefore, no privity with

Regal.      To allow implied warranties to arise without reliance on an underlying contract is

inconsistent with our court' s prior approach to implied warranties. Tex Enters., 149 Wn.2d at 211.


This is evident because " the plain language of both RCW 62A.2 -314 and - 315 requires that implied

warranties     only     arise out of contractual relationships."       Tex Enters., 149 Wn.2d     at   211. We reject


Babb' s attempt to establish direct privity for the forgoing reasons.


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No. 43934 -4 -II



                                          B. THIRD PARTY BENEFICIARY


        Babb next argues that Regal is responsible for breach of its implied warranty of

merchantability because Regal was obligated to process warranty claims brought by the

dealership' s   customers.    In Babb' s view, this fact entitles him to recovery as an intended third -

party beneficiary of the contract between Regal and PBNW. We disagree. Babb is not an intended

third -party beneficiary under the " sum of the interaction" test for purposes of his claim for breach

of the implied warranty of merchantability.

        Although lack of contractual privity is ordinarily a defense to a claim for breach of implied

warranty of merchantability, our Supreme Court has created an exception to the requirement. Tex

Enters., 149 Wn.2d      at   210.   Specifically, our 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 can show that it was an intended third -party beneficiary of a contract

involving   the   manufacturer.     Touchet      Valley Grain Growers,   Inc.   v.   Opp &   Seibold Gen. Constr.,


Inc., 119 Wn.2d 334, 347, 831 P. 2d 724 ( 1992).          Our courts apply the " sum of the interaction" test

essentially to determine whether the manufacturer was sufficiently involved in the transaction

 including post -sale) with the remote purchaser to warrant enforcement of an implied warranty.

Touchet Valley, 119 Wn.2d at 345 -47.

        In support of his position that he was an intended third -party beneficiary of the contract

between Regal and PBNW, Babb relies on Lidstrand v. Silvercrest Industries, 28 Wn. App. 359,

365, 623 P. 2d 710 ( 1981),     where Division One of this court held that warranties made by a mobile

home manufacturer extended to subsequent purchasers of the home as intended third party

beneficiaries notwithstanding         a   lack   of contractual   privity between the        parties.   Importantly,


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No. 43934 -4 -II



however, Lidstrand involved          express warranties.           28 Wn.   App   at   363.    And our courts have long

recognized that the privity requirement is relaxed when the claims involve a manufacturer' s

express representations rather than those implied warranties that arise automatically by operation

of a sale.   See Tex Enters.,     149 Wn.2d at 212 ( explaining that implied warranties are more " closely

guarded" because, unlike express warranties, they arise by operation of sale with no voluntary

action);    Baughn, 107 Wn.2d        at   151 -52.   Babb has cited no authority to support his claim against

Regal for breach of implied warranty.

           Babb does not argue that he is an intended third -party beneficiary under the " sum of the

interaction" between the parties, but even when we apply the test, Babb' s claim fails nonetheless.

           Our Supreme Court first applied the test to a claim for a breach of an implied warranty of

merchantability in Touchet          Valley. There, the Touchet Valley 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. 70

Wn.2d at 165. 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. 70 Wn.2d at 164 -65.




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No. 43934 -4 -II



         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. Touchet Valley, 119 Wn.2d at 337,

347.   In so holding, the Touchet Valley court determined that the subcontractor knew Touchet

Valley' s identity, its     purpose, and   its   requirements   for the   storage   building.   119 Wn.2d at 346.


The subcontractor had also designed the building to the purchaser' s specifications and delivered

components to the construction site. Touchet Valley, 119 Wn.2d at 346 -47. And when the building

first began to collapse, the subcontractor helped to attempt repairs. Touchet Valley, 119 Wn.2d at

347.


         In contrast, in Urban Development, Inc. v. Evergreen Building Products, LLC, 114 Wn.

App. 639, 648, 59 P.3d 112 ( 2002), aff'd sub nom. by Fortune View Condominium Ass 'n v. Fortune

Star Development Co., 151 Wn.2d 534, 90 P. 3d 1062 ( 2004), Division One of this court declined


to extend implied warranties of merchantability to a general contractor of 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.       Urban Dev.,      114 Wn. App. at 648.

         Here, Regal did not know Babb' s identity or his purpose nor did it build the boat

specifically   with   his   requirements    in   mind.   Rather, Regal merely built a version of one of its

ostensibly ordinary models at its headquarters in Florida, and then sold and shipped that boat to




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No. 43934 -4 -II



one of    its dealers in Arizona.       Ultimately, PBNW arranged delivery to its location, where Babb

made his purchase.


          After he began to experience trouble with his boat, and once he determined that PBNW

had    gone   bankrupt, Babb had          a    series   of contacts   with    Regal.      According to Babb, Regal

representatives assured       him that they       would    take   care of   his   problems.   Regal then sent Babb a


new wake board tower and instructed Babb to take his boat to a marine repair shop presumably to

conduct repairs with       Regal'   s permission.       But the record does not establish that the repair shop

ever   did any   work on   Babb'    s   boat   with or without    Regal'    s approval.    Instead, when the result of


the repair shop' s investigation revealed a broken engine, it appears from the record that although

Regal offered to assist in obtaining parts at wholesale cost, it otherwise refused to cover any repair

costs because the engine had a separate warranty through its own manufacturer.

          Accordingly, aside from the replacement of his wake board tower,1 the extent of the
interaction between Regal and Babb was a series of post -sale phone calls related to the repair of a


boat that Regal did not build specifically for Babb. The facts here are distinguishable from those

in Kadiak     and   Touchet   Valley. Consequently, we hold that Babb' s claim for breach of implied

warranty of merchantability fails as a matter of law because there is no privity between Babb and

Regal and because Babb was not an intended third -party beneficiary of the contract between Regal

and PBNW.




1 It does not appear as though the wake board tower was covered by Regal' s express warranty
either. Rather, it seems likely that replacement of that item was merely an act of good will on the
part of   Regal.
No. 43934 -4 -II



        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




 We concur:




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