United States District Court,

M.D. Louisiana.

Alvin JOINER and Barbara Joiner

v.

Bryan Lee LOUTZENHISER, LL Trans, Inc., and United Casualty Company

CIVIL ACTION NO. 17-213-BAJ-EWD

|

Signed 08/11/2017

Attorneys and Law Firms

Randolph Alexander Piedrahita, Brandon Scott Andrews, Kirk Andrew Guidry, Due’ Guidry Piedrahita Andrews, LC, Baton Rouge, LA, Sherman Q. Mack, Albany, LA, for Alvin Joiner and Barbara Joiner.

Ignatz Gerard Kiefer, Jr., Megan Chauffe Kiefer, Kiefer & Kiefer, Metairie, LA, for Bryan Lee Loutzenhiser, LL Trans, Inc., and United Casualty Company.

 

 

RULING REGARDING UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT OF INTERVENTION AND MOTION TO SUBSTITUTE PLEADING

ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

*1 Before the court is: (1) an Unopposed Motion for Leave to File Amended Complaint of Intervention (the “Motion for Leave”);1 and (2) a Motion to Substitute Pleading (the “Motion to Substitute”)2 filed by BITCO General Insurance Company (“BITCO”). For the reasons set forth herein, the Motion to Substitute and the Motion for Leave are GRANTED.

 

 

1. Background

This is a civil action involving claims for damages as a result of injuries sustained by Plaintiffs, Alvin Joiner and Barbara Joiner (“Plaintiffs”), from an automobile accident on or about August 25, 2016. The matter was removed by United Financial Casualty Company (“United”) on April 4, 2017 pursuant to 28 U.S.C. § 1332.3

 

Prior to removal, BITCO filed a Petition of Intervention in the state court proceeding.4 Therein, BITCO alleged that at the time of Mr. Joiner’s injury, “he was allegedly in the course and scope of his employment with Robert W. Wall, Inc.” (“Wall”) and that Wall “was insured for worker’s compensation coverage” through BITCO.5 BITCO further alleged that it “was called upon to pay and did respond in payments of worker’s compensation benefits and medical expenses to plaintiff.”6 Accordingly, BITCO sought to intervene “to become a party to this litigation and join with plaintiff in asserting his claim against” defendants and prayed for a judgment in its favor “against plaintiff and defendants jointly and in solido, decreeing that intervenor be paid by preference and priority out of any judgment rendered herein in favor of plaintiff, all sums which intervenor may have paid under the Louisiana Worker’s Compensation Statute….”7

 

*2 On June 30, 2017, Plaintiffs filed an Unopposed Motion for Leave to File Amended Complaint for Damages.8 Therein, Plaintiffs asserted that “[it] is now believed that Bryan Lee Loutzenhiser was not employed by LL Trans, Inc., but may have been employed by Zane Huffman d/b/a Z2K Trucking.”9 On July 3, 2017, Plaintiffs’ Amended Complaint for Damages was filed, substituting Zane Huffman d/b/a Z2K Trucking in the place of LL Trans and alleging that Zane Huffman d/b/a Z2K Trucking is “a resident of the full age of majority and domiciled in Kiowa County, Kansas….”10 Like Plaintiffs’ Amended Complaint, BITCO seeks to file an Amended Complaint of Intervention specifying Zane Huffman d/b/a Z2K Trucking as a defendant.11 BITCO asserts that prior to filing its Motion for Leave, it “obtained consent for the filing and granting of the motion from all parties having an interest to oppose.”12

 

 

1. Law and Analysis

BITCO does not specify whether it seeks to intervene as of right under Fed. R. Civ. P. 24(a) or permissively under Fed. R. Civ. P. 24(b). As set forth herein, because BITCO is an intervenor of right, an analysis of permissive intervention pursuant to Fed. R. Civ. P. 24(b) is unnecessary.

 

 

1. Timeliness of the Motion to Intervene

“Whether leave to intervene is sought under section (a) or (b) of Rule 24, the application must be timely.” Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977). The timeliness of a motion to intervene is a matter committed to the sound discretion of the trial court. McDonald v. E.J. Lavino, 430 F.2d 1065, 1071 (5th Cir. 1970). Timeliness “is not limited to chronological considerations but ‘is to be determined from all the circumstances.’ ” Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977). The Fifth Circuit has set forth four factors to consider when evaluating whether a motion to intervene is timely: (1) the length of time during which the proposed intervenor should have known of his interest in the case before he petitioned to intervene; (2) the extent of prejudice that those parties already in the litigation would suffer “as a result of the would-be intervenor’s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case;” (3) the extent of prejudice to the proposed intervenor if he is not allowed to intervene; and (4) the existence of “unusual circumstances militating either for or against a determination that the application is timely.” Ross v. Marshall, 426 F.3d 745, 754 (5th Cir. 2005) (citing Stallworth v. Monsanto Co., 558 F.2d 257, 264-266 (5th Cir. 1977)).

 

Here, Plaintiffs filed suit on February 21, 2017. BITCO filed a Petition of Intervention in the state court proceedings in March, 2017 and filed the instant Motion for Leave on July 20, 2017.13 No party has asserted BITCO’s intervention is untimely. A scheduling conference is currently set for August 24, 2017, and the parties’ Revised Status Report is due by August 10, 2017.14 Accordingly, there is no scheduling order currently in place and this litigation remains in its early stages. Considering the lack of opposition, the procedural posture of this suit, and the extent of prejudice to BITCO if it is not allowed to intervene (discussed below), BITCO’s intervention is timely.

 

 

1. Intervention of Right

*3 Pursuant to Fed. R. Civ. P. 24(a)(2), a party is entitled to intervene in a pending lawsuit when: (1) the motion to intervene is timely; (2) the potential intervenor asserts an interest that is related to the property or transaction that is the subject of the action in which he seeks to intervene; (3) the potential intervenor is so situated that disposition of the case may as a practical matter impair or impede his ability to protect his interest; and (4) the parties already in the action do not adequately protect the potential intervenor’s interest. Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001). As discussed above, BITCO’s intervention is timely.

 

Pursuant to the Louisiana Workers’ Compensation Act, “[i]f either the employee … or the employer or insurer brings suit against a third person … he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.” La. R.S. § 23:1102(A). “Although the statute provides that the other may intervene as a party plaintiff if either the employee or the employer brings suit against a third person (tortfeasor), the jurisprudence holds that an employer’s failure to intervene in a suit filed by the employee, after proper notice, bars the employer from bringing a separate suit against a third party tortfeasor.” Houston General Ins. Co. v. Commercial Union Ins. Co., 649 So. 2d 776, 782 (La. App. 1 Cir. 1994) (citing Roche v. Big Moose Oil Field Truck Service, 381 So. 2d 396, 401 (La. 1980) (“If an employee files suit for damages from a third party tortfeasor, an employer seeking reimbursement of compensation paid must intervene in the pending lawsuit….”)).

 

Likewise, a compensation insurer who fails to intervene will be barred from claiming reimbursement. See, Senac v. Sandefer, 418 So. 2d 543, 545 n. 1 (La. 1982) (“The employer’s compensation insurer failed to intervene in this action and is thus barred from claiming reimbursement of the benefits paid to the plaintiff.”); Chevalier v. Reliance Ins. Co. of Illinois, 953 F.2d 877, 884 (5th Cir. 1992) (“There is no doubt that, under Louisiana law, a compensation carrier or employer must generally be a party to the suit between a tortfeasor’s carrier and tort plaintiff in order to collect reimbursement for workers’ compensation from the successful tort plaintiff’s judgment.”); Allstate Indem. Co. v. Knighten, 705 So. 2d 240, 242 (La. App. 2. Cir. 1997) (“While the statutory language is permissive regarding intervention by the party who is not a party-plaintiff in the action against the third-party, the case law suggests that an employer or its insurer must intervene in a third-party suit filed by the employee in order to assert its rights against the third-party tortfeasor or otherwise be barred from instituting a separate action to assert those rights.”).

 

In light of this jurisprudence, district courts in this circuit have found that employers and workers’ compensation insurers who have paid a plaintiff workers’ compensation benefits are intervenors of right in a plaintiff’s action against alleged tortfeasors. See, Fulford v. Climbtek, Inc., Civil Action No. 16-16, 2016 WL 7173780, at * 5 (M.D. La. Dec. 8, 2016) (“Here, ORM alleges that it has paid workers’ compensation medical benefits and workers’ compensation indemnity benefits under the Louisiana Workers’ Compensation Act to and on behalf of Marvin Fulford. Unless ORM is allowed to intervene, it will lose its right to reimbursement. Accordingly, the Court finds ORM to be an intervenor of right under Fed. R. Civ. P. 24(a)(2).”); Johnson v. Qualawash Holdings, LLC, Civil Action No. 12-885, 990 F.Supp.2d 629, 640 (W.D. La. Jan. 6, 2014) (dismissing action after finding workers’ compensation insurer to be an indispensable non-diverse party and explaining that insurer “has already made payments to the plaintiff in this matter pursuant to its policy of insurance…. Under Louisiana law, if [insurer] does not intervene in this suit, it loses its right to recover from any third party tortfeasors under Louisiana’s workers’ compensation scheme.”); Youngblood v. Rain CII Carbon, LLC, No. 12-cv-000287, 2014 WL 2547588, at *3 (W.D. La. June 4, 2014) (plaintiff’s statutory employer and workers’ compensation insurer were both intervenors of right because, unless they were allowed to intervene, they would lose their right to reimbursement.). Here, BITCO alleges that it has paid workers’ compensation benefits to Plaintiffs and seeks reimbursement for same. Unless BITCO is allowed to intervene, it will lose its right to reimbursement. Accordingly, BITCO is an intervenor of right under Fed. R. Civ. P. 24(a)(2).15

 

*4 Because BITCO should be permitted to intervene of right, it is not necessary to evaluate permissive intervention pursuant to Fed. R. Civ. P. 24(b).

 

 

III. Conclusion

The Motion to Substitute Pleading16 filed by BITCO General Insurance Company (“BITCO”) is GRANTED. The clerk is directed to SUBSTITUTE BITCO’s proposed Complaint of Intervention (R. Doc. 35, pp. 2-4) in the place of R. Doc. 26, pp. 4-6.

 

IT IS FURTHER ORDERED that upon said substitution, BITCO’s Unopposed Motion for Leave to File Amended Complaint of Intervention17 is GRANTED. The clerk is directed to file the as-substituted Complaint of Intervention into the record.

 

All Citations

Slip Copy, 2017 WL 3448846

 

 

Footnotes

1

26. Doc. 26. It is not clear from the state court record that leave to file the Petition of Intervention was granted by the state court prior to removal. Accordingly, the instant Motion for Leave is treated as BITCO’s initial request to intervene in these proceedings.

2

35. Doc. 35.

3

2. Doc. 2. Per the Notice of Removal, Plaintiffs are citizens of Mississippi.3 Defendant, Bryan Lee Loutzenhiser (“Loutzenhiser”), is alleged to be a citizen of Kansas3 and defendant United is alleged to be “incorporated in the State of Ohio with its principle [sic] place of business in Ohio.” R. Doc. 2, ¶ 7. Plaintiffs original Petition for Damages also named LL Trans, Inc. (“LL Trans”), alleged to be “incorporated in the State of Oklahoma with its principle [sic] place of business in the State of Oklahoma,” as a defendant based on its status as the alleged employer of Loutzenhiser. R. Doc. 2, ¶ 6. Per BITCO’s proposed substitute Complaint of Intervention, BITCO asserts that it is “a corporation of the State of Iowa, with its principal place of business/domicile in the State of Illinois.” R. Doc. 35, pp. 2-4. Accordingly, BITCO’s intervention would not destroy this court’s subject matter jurisdiction, which is based on complete diversity pursuant to 28 U.S.C. § 1332.

4

Petition of Intervention, R. Doc. 2-1.

5

Petition of Intervention, R. Doc. 2-1, ¶¶ 2 & 3.

6

Petition of Intervention, R. Doc. 2-1, ¶ 4.

7

Petition of Intervention, R. Doc. 2-1.

8

22. Doc. 22.

9

3. Doc. 22, ¶ 3.

10

2. Doc. 25, ¶ 2.

11

1. Doc. 26, ¶ 5 (“Intervenor also wishes to change the naming of LL Trans, Inc. as a party against whom the claim is asserted to Zane Huffman d/b/a Z2K Trucking.”).

12

8. Doc. 26, ¶ 8. Likewise, the state court record attached to the Notice of Removal includes a Statement of Consent of Opposing Counsel wherein BITCO asserts that “Intervenor … hereby advises the Court that all present counsel of record have been notified of its intention to file the attached Petition of Intervention…. and that all counsel of record have consented to its filing.” R. Doc. 2-1.

13

26. Doc. 26.

14

23. Doc. 23.

15

No party contends that BITCO’s interests are adequately represented by either Plaintiffs or Defendants in this suit. Like Plaintiffs, BITCO has an interest in maximizing recovery against Defendants. See, Dushane v. Gallagher Kaiser Corp., No. Civ. A 05-0171, 2005 WL 1959151, at *6 (W.D. La. Aug. 10, 2005) (“After careful consideration, the court finds GM is more properly considered an intervenor-plaintiff. If allowed to intervene, GM no doubt will align itself with Plaintiffs, as it is in GM’s interest for Plaintiffs to maximize their recovery against Defendants and thereby increase the potential for GM to recover all of the worker’s compensation benefits it already has paid Plaintiffs. The less Plaintiffs recover, the less reimbursement GM will receive. If Plaintiffs had not filed a suit at all, and GM filed its own suit against Defendants to seek reimbursement, GM would be considered a plaintiff in every sense of the word.”). However, the recovery sought by BITCO (reimbursement for past workers’ compensation payments) is separate from Plaintiffs’ damage claim.

16

35. Doc. 35.

17

26. Doc. 26.

Court of Appeals of Washington,

Division 1.

ALL STAR TRUCKING LLC, Appellant,

v.

RYDER VEHICLE SALES, LLC, a Washington Limited Liability Company, Respondent.

No. 75352–5–I

|

FILED: July 24, 2017

Appeal from King County Superior Court, 15–2–12083–2, Honorable Beth M. Andrus, Judge

Attorneys and Law Firms

Daniel Ross Fjelstad, Daniel R. Fjelstad, PLLC, Seattle, WA, for Appellant.

Dan’L Wayne Bridges, McGaughey Bridges Dunlap PLLC, Seattle, WA, for Respondent.

 

 

UNPUBLISHED OPINION

Leach, J.

*1 All Star Trucking LLC appeals the summary judgment dismissal of its lawsuit against Ryder Vehicle Sales LLC. Because All Star failed to establish a genuine issue of material fact as to any of its claims, we affirm.

 

 

FACTS

Gurminder Singh moved to the United States from India in 2013. He formed All Star, his own long-haul trucking business, the next year.

 

On June 25, 2014, Singh visited Ryder’s truck dealership in Des Moines to purchase a Freightliner Columbia tractor truck. Singh had driven this model before and was confident he wanted to buy it. Though Singh spoke limited English, he knew that Ryder’s sales manager, Muddasir Mirza, spoke both Punjabi and Hindi. Singh also brought an English-speaking friend to help him.

 

Mirza told Singh that Ryder had two Freightliner Columbia trucks for sale. Singh sat in the driver’s seat of one of them, which had 764,881 miles on it. He turned on the engine and examined the gauges. However, he did not drive the truck because “[i]t’s no use test-driving if there is no load in it.” According to Singh, Mirza told him that the truck had been “fully inspected and repaired by Ryder before it reached the lot” and that it was “fine.”

 

Satisfied, Singh returned to the Ryder dealership two days later, on June 27, 2014, and purchased the truck for $29,149. Singh admitted that he had not looked at or considering buying any other trucks because “I had heard Ryder’s a good company, they take care of their trucks, and the company is good and their trucks are good.” Ryder provided Singh with a nine-page inspection report. It said that the truck had been inspected two months earlier and that all components had passed inspection. The report noted only that the tail lights, visor light, and license plate lights were dim or burned out.

 

Ryder provided a limited express warranty for the truck. Singh signed and initialed it. The warranty stated,

Ryder Truck Rental, Inc. (“Ryder”) hereby warrants all covered components of the Vehicle identified herein against defects in material and workmanship for the first 30 days or 10,000 miles/16,000 kilometers from the Date of Sale, whichever comes first.

The warranty identified the covered components as the engine, the transmission, and the rear axle. The warranty specifically excluded carburetors, spark plugs, water pumps, hoses, belts, thermostats, engine electronic systems, charge air coolers, fuel pump seals and electronics, and external cylinder head gasket oil and water leaks. The warranty also excluded “ordinary wear and tear.” Finally, the warranty stated, in bold print and capital letters:

THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, AND RYDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

PURCHASER ACKNOWLEDGES THAT THE VEHICLE HAS BEEN PREVIOUSLY OWNED, IS USED AND NOT NEW AND, EXCEPT FOR THE LIMITED WARRANTY IS PURCHASED “AS IS.”

But Singh claims that Mirza told him, “Anything goes wrong, Ryder will fix it.”

 

Mirza also offered to sell Singh an extended service warranty. It covered repairs to the engine or transmission for up to a year and cost an additional $5,000. Singh declined the extended warranty. He stated that he could not afford it. Singh signed a form stating,

*2 I hereby decline to purchase the Ryder Road Ready PLUS Service Contract Agreement. I understand that I relinquish all right and provisions including any future service repair reimbursement that may occur outside the 30 day Ryder Used Vehicle Limited Warranty certificate agreement.

 

Singh testified that he understood that he would be bound by the terms of the documents he signed. However, he admitted that he did not read them or have his friend translate them for him.

 

Singh drove the truck to his home the day he purchased it. There, he noticed leakage from the front axle. Ryder instructed Singh to take it to a repair shop and paid the cost of the repair. Ryder also gave Singh a postpurchase inspection form to identify any other problems with the truck. Singh did not identify any other problems.

 

Singh testified that he made six or seven trips hauling cargo to California and consistently had problems with the truck. The record contains references to repairs performed by Sacramento Truck Center on July 28, 2014, by Valley Freightliner on August 19, 2014, and by Pacific Power Products on September 8, 2014. Mirza stated that while the express warranty did not cover any of these repairs, Ryder paid for the August and September repairs because Singh “his wife, and others on his behalf called and emailed persistently to the point it was a material distraction to running the dealership.”

 

In exchange for the August and September repairs, Singh signed releases waiving Ryder’s further responsibility for the truck. The releases said,

… You understand that Ryder is agreeing to make this payment as a one-time business accommodation for you and not because it is obligated to do so under the terms of the warranty or otherwise.

By accepting these terms from Ryder and signing below, you agree to waive and release Ryder (and all of its affiliated companies and persons) from all further responsibility of any kind with respect to the Vehicle and from and against any claims you may have with respect to it, whether those claims are now known by you or hereafter discovered. You further acknowledge that this waiver and release is unconditional, that Ryder has relied upon it in making this accommodation, and that your signature below acknowledges your agreement and authority to make this agreement.

 

On a trip home from California in late September or early October, the truck began vibrating. According to Singh, Pacific Power Products told him “that the engine needed to be rebuilt to finally solve all of the truck’s problems.” Pacific Power Products gave Singh an estimate of approximately $21,000 to rebuild the engine. Singh has not driven the truck since that time, believing it was not safe to drive.

 

On May 15, 2015, All Star sued Ryder, alleging breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, and violation of the Consumer Protection Act (CPA), chapter 19.86 RCW.1 Ryder moved for summary judgment. The trial court granted Ryder’s motion and dismissed All Star’s lawsuit. All Star appeals.

 

 

STANDARD OF REVIEW

We review an order granting summary judgment de novo.2 We will affirm summary judgment when the record shows no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.3 “A material fact is one upon which the outcome of the litigation depends.”4 When reviewing a summary judgment order, we engage in the same inquiry as the trial court, considering the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party.5 We may affirm a trial court’s grant of summary judgment on any basis supported by the record.6

 

 

ANALYSIS

*3 All Star contends that summary judgment was inappropriate because a reasonable trier of fact could have concluded that the limited express warranty’s disclaimer was unconscionable.

 

RCW 62A.2–316 allows a seller to limit or exclude warranties. “Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults,’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”7 And

[w]hen the buyer before entering into the contract has examined the goods or the sample or model as fully as he or she desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him or her.[8]

 

Washington courts have adopted a totality of the circumstances approach for deciding the enforceability of a warranty disclaimer in a commercial setting.9 The nonexclusive factors considered when making this decision include (1) the conspicuousness of the disclaimer in the agreement, (2) the presence or absence of negotiation about the disclaimer, (3) the custom and usage of the trade, and (4) any policy developed between the parties during the course of dealing.10 To specifically disclaim the implied warranty of merchantability or fitness, the Uniform Commercial Code also requires that the disclaimer be in writing and conspicuous.11 Under the totality of the circumstances approach, we presume the disclaimer is conscionable unless the party challenging it shows otherwise.12

 

Here, All Star fails to raise a genuine issue of material fact about the effectiveness of the limited warranty to disclaim Ryder’s liability. First, the disclaimer is in writing and conspicuous. The limited warranty was printed on a single page. The disclaimer is written in bold type and all capital letters at the very top of the page. And the disclaimer expressly mentions both the implied warranties of merchantability and fitness. Second, Singh had a reasonable opportunity to understand and discuss the terms of the disclaimer. Singh had bought trucks before and knew that documents he signed were binding on him. Though Singh read and spoke limited English, he brought an English-speaking friend to assist him. And Ryder’s sales manager spoke Singh’s native languages. Moreover, Singh had the option to purchase additional coverage, which he declined. The record contains no information about industry custom, and All Star had no prior course of dealing with Ryder. Thus, the totality of the circumstances supports the conscionability and enforceability of the warranty disclaimer.

 

*4 All Star contends that a court can never grant summary judgment when a party has raised a claim of unconscionability. He cites RCW 62A.2–302(2), which provides, “When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.” But a summary judgment hearing gives a party the reasonable opportunity to present evidence contemplated by this statute.13 And “unconscionability may be determined on summary judgment if there is no possibility, or no threshold showing, of unconscionability.”14

 

Quoting Cox v. Lewiston Grain Growers, Inc.,15 All Star contends that even if the warranty disclaimer is conscionable, it is unenforceable if it “ ‘fails its essential purpose.’ ” “A limitation of remedies fails its essential purpose when the defect is latent and non-discoverable upon reasonable inspection.”16 But Cox involved wheat seed that failed to germinate adequately because it had been treated with pesticides. The court found that the warranty disclaimer was not enforceable because the buyer could not have discovered the defect until he planted the seed.17 Here, however, All Star fails to establish that any alleged problems in the truck could not have been discovered with reasonable inspection.18

 

Finally, All Star asserts the trial court erred in dismissing its CPA claim. To prevail on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) a public interest impact, (4) injury to the plaintiff in his or her business or property, and (5) a causal link between the unfair or deceptive act and the injury.19 “[W]hether a particular action gives rise to a Consumer Protection Act violation is reviewable as a question of law.”20

 

All Star asserts only that “[a] reasonable jury could find that Ryder’s course of dealing with All Star from the time of the truck’s sale through the parties’ last interaction in October, 2014 was oppressive and heavy-handed, and amounted to unfair or deceptive acts or practices in trade or commerce.” But this general statement does not prove, nor does the record support, any claim for unfair or deceptive practices here. “Absent adequate, cogent argument and briefing, we decline to wander through the complexities of the Consumer Protection Act.”21

 

We affirm the summary judgment dismissal of All Star’s lawsuit.

 

WE CONCUR:

Schindler J.

Becker J.

All Citations

Not Reported in P.3d, 2017 WL 3142421

 

 

Footnotes

1

All Star also alleged claims for revocation of acceptance and unjust enrichment, which are not at issue in this appeal.

2

Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).

3

Owen, 153 Wn.2d at 787.

4

Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963).

5

Right–Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002).

6

Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479, 485, 269 P.3d 275 (2011).

7

RCW 62A.2–316(3)(a).

8

RCW 62A.2–316(3)(b).

9

Puget Sound Fin., LLC v. Unisearch, Inc., 146 Wn.2d 428, 439, 47 P.3d 940 (2002). This contrasts with the two-prong approach applied to warranty disclaimers in a consumer transaction, which must be both (1) explicitly negotiated and (2) set forth with particularity. See, e.g., Berg v. Stromme, 79 Wn.2d 184, 196, 484 P.2d 380 (1971).

10

Puget Sound, 146 Wn.2d at 439 (citing Schroeder v. Fageol Motors, Inc., 86 Wn.2d 256, 259–61, 544 P.2d 20 (1975)).

11

RCW 62A.2–316(2).

12

Puget Sound, 146 Wn.2d at 439 (citing Schroeder, 86 Wn.2d at 262).

13

RCW 62A.2–302(1); M.A. Mortenson Co. v. Timberline Software Corp., 93 Wn. App. 819, 835, 970 P.2d 803 (1999).

14

M.A. Mortenson Co., 93 Wn. App. at 835.

15

86 Wn. App. 357, 370, 936 P.2d 1191 (1997).

16

Cox, 86 Wn. App. at 370.

17

Cox, 86 Wn. App. at 370.

18

Because All Star fails to establish that Ryder was obligated pursuant to express or implied warranties to pay for the repairs, we need not address his claim that the releases were unenforceable for lack of consideration.

19

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986).

20

Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997).

21

Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989); see also Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”).