United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Sea Ray Boats, Inc.,
a Division of Brunswick Corporation's (“Sea
Ray”) Motion for Summary Judgment , Defendant
MarineMax East, Inc.'s (“MarineMax”) Motion
for Summary Judgment , Defendants' Motion to Exclude
Opinion Testimony of Robert Newman , and Plaintiff
Michael Wilson's (“Plaintiff”) Motion to
Strike the Declaration of McLamb .
purchased a SeaRay 330 DA boat. That boat immediately had
Kohler generator issues and engine issues and eventually
caught fire on the dock. ( Wilson Dep. at 9:30,
11:12-23). Sea Ray offered Plaintiff a substitute Sea Ray 350
DA boat in exchange for the 330 DA-boat for boat. (
Wilson Dep. 14:15, 15:13).
Plaintiff's Purchase of a 2014 Sea Ray 350 DA
about February 19, 2014, Plaintiff entered into a Purchase
Agreement (the “Purchase Agreement”) with
Defendant MarineMax for the purchase of a 2014 Sea Ray 350 DA
boat (the “Boat”). ( Wilson Dep. at 22:14-23;
[46.6]). The Boat came with a Limited Warranty issued by Sea
Ray (the “Limited Warranty”). ( Wilson Dep.
at 28:20-25, 29:1-7; [47.3]). The Boat also came with
separate warranties for the Kohler generator and the
Mercruiser engines from their respective manufacturers. (
Wilson Dep. at 100:21-101:7;  Dinan Dep. at 46:10-13;
Purchase Agreement provides that warranties are generally
excluded by MarineMax “unless Seller enters
into a service contract in connection with this sale or
within 90 days of the sale. . . If seller . . . enters into a
service contract in connection with this sale or within 90
days of sale, then any implied warranties shall be limited to
the duration of Seller's written warranty or service
contract.” ( Wilson Dep. at 22:21-23:1; [46.6] at
2). At the time of Plaintiff's acquisition of the Boat,
he executed the “Passport Premiere Registration
Page” providing him with a six year extended warranty
from Brunswick Product Protection Corporation (the
“Extended Warranty”). ( Wilson Dep. at
23:20-24:6; [46.8]). The Passport Premier Registration Page
identifies MarineMax East, Inc., as the “Issuing
Dealer” and Mike Crisell, MarineMax's business
manager, as the “Selling Individual.” ([46.8]).
The parties dispute the nature of the Extended Warranty.
Plaintiff contends that he entered into a service contract
with Marine Max East, Inc. which provided an extended service
agreement on the Boat. ( Wilson Dep. at 24:3-6; [46.8]).
Defendants assert that Plaintiff separately executed the
Extended Warranty, that the Extended Warranty is distinct
from service contracts MarineMax offers to customers, and
that Plaintiff did not purchase or obtain any service
contracts from MarineMax for the Boat. ([64.2] McLamb Decl.
at ¶¶ 9-10).
Plaintiff's Use of the Boat
took delivery of the Boat in February 2014 and used the Boat
on a regular basis at least through August 2015. ( Wilson
Dep. at 49:24-50:4). Plaintiff admits to using the Boat year
round, at some points daily. ( Wilson Dep. at
49:24-50:4). He also acknowledged both of his sons were
permitted to use the Boat without him present. ( Wilson
Dep. at 47:25-48:7). Plaintiff testified normal use for him
was “out there several times a week, weather
permitting.” ( Wilson Dep. at 63:21-24).
Plaintiff's use included overnight trips on the Boat.
( Wilson Dep. at 64:10-15).
Electronic Control Module (“ECM”) for the Boat
records the number of hours of engine use. During the
manufacturing process, Sea Ray water tested the Boat and
placed 2 hours on the Boat's engines. ([64.1] Raustad
Decl. at ¶ 5). Defendants' expert, Michael Griffin,
inspected the Boat on May 22, 2016 and recorded 509.2 engine
hours on the Boat. ( Griffin Dep. at 6:7-13). Mr. Griffin
conducted a follow-up inspection on January 30, 2017, and
recorded that the Boat engines had 581.6 hours. ( Griffin
Dep. at 6:7-13).
disputes the accuracy of the engine hours reported by the
ECM. Plaintiff testified that the “hours meters do not
work correctly.” ( Wilson Dep. at 97:25, 98:4-19).
Plaintiff explained that there are two keys you have to turn
on to operate the engine side of the boat and “[i]f you
leave those keys on and the boat is not running, your hours
meter continues to click.” ( Wilson Dep. at
98:1-6). Plaintiff also notes that the ECM does not tell you
if the boat is in gear. ( Griffin Dep. at 60:20-24).
Plaintiff estimates that the Boat was operated for
approximately 130 hours in 2014 and 130 hours in 2015. (
Wilson Dep. at 97:14-17).
Problems with the Boat
history of the Boat is well documented with work orders and
email correspondence between Plaintiff and MarineMax and
largely undisputed. Upon delivery, Plaintiff requested the
Boat stay near the MarineMax service facility at Lake Lanier,
where he could use it and ensure there were no
“bugs” for 30 days. ( Wilson Dep. at
20:11-18). Plaintiff used the Boat recreationally at Lake
Lanier for several weeks. ( Wilson Dep. at 33:21-25,
34:1-4). In March of 2014, MarineMax delivered the Boat to
Plaintiff at Lake Allatoona. ( Wilson Dep. at 29:16-24,
its use, Plaintiff experienced a number of issues with the
Boat, most notably with the engines and on-board generator.
Plaintiff maintains that generator issues hindered use of the
Boat. While the Boat can operate without the generator being
functional, electrical items such as air conditioning and
radio will not function. ( Wilson Dep. at 46:10-13);
[54.3] at ¶ 7; [55.1] at ¶ 7). Plaintiff also
experienced engine codes on numerous occasions. Plaintiff
maintains that the boat operates in reduced functionality
when the engine codes are being shown. ( Wilson Dep. at
42:25-43-2). Plaintiff also asserts that the engines were
“babied” as a result of frequent error codes and
performance issues and that engine RPM historical data
supports that assertion. ( Wilson Dep. at 35:25,
46:10-13;  P. Wilson Dep. at 21:20;  Griffin Dep. at
first experienced issues with the generator on March 2, 2014.
( Wilson Dep. at 34:5-25). That same date, MarineMax sent
two technicians to Plaintiff's Boat and repaired the
generator. ( Wilson Dep. at 35:10-16, 37:25, 38:1-3).
MarineMax's Service Team Leader, Bob Dinan, one of the
two technicians that fixed the generator stated the issue
arose from a failure to winterize thereby causing freeze
damage. ( Dinan Dep. at 30:1-12).
to anyone at the time, the Boat suffered from a design defect
affecting the generator. On November 17, 2015, more than 20
months after the initial repair of the generator, Sea Ray
issued a Service Bulletin for Sea Ray 350DA model boats with
regards to the Generator Water Pickup Update. ([64.1] Raustad
Decl. at ¶ 12). Sea Ray determined the Groco hi-speed
water pickup part had a v-notch that is too large and can
cause water to flood the engine cylinder area of the
generator at higher speeds if the seacock is open and the
generator is not running. ([64.1] Raustad Decl. at ¶ 9).
This results in hydrolock. An engine that is hydrolocked has
water in the combustion chambers and the water cannot
compress like air does, so it “would be almost
seized.” ( Dinan Dep. at 45:17-21).
March of 2014, Plaintiff reported the windlass anchor (the
“Windlass”) was inoperable. ([48.1]).
MarineMax's work order for this repair indicated the
Windlass's breaker had been tripped. ([48.1]). The work
order further stated the power breakers on the dock pedestal
were turned off and Plaintiff was advised that the Windlass
can pull a large amount of amperage and it is important to
keep batteries fully charged. ([48.1]).
20, 2014, work order (#79758) documents a number of problems
experienced by Plaintiff. Plaintiff reported that the
“Windlass motor has come loose off of it's [sic]
mounting bracket” and the technician stated that the
“windlass motor mounting bolts sheared off at the base
of the upper unit.” ([42.1] at 14). Plaintiff also
reported engine alarm codes on both starboard and port
engines being experienced. ([42.1] at 15-17). Defendants,
along with the engine manufacturer, worked to fix the engines
over the next few weeks.
4, 2014, Plaintiff sent an email to MarineMax and Sea Ray
employees expressing his dissatisfaction with the Boat. (
Wilson Dep. at 39:2-25, 39:32-40:25; [48.3]). The email
included the subject line “I am ready to return this
boat and be made while [sic]” and requested “an
address for legal service because this entire experience
sucks!!” ([48.3]). Plaintiff confirmed the engines
worked, but he was receiving error codes. ( Wilson Dep.
at 42:23-25, 43:1-2). Thereafter, Plaintiff met Jim Helmick
of Mercury regarding the engines. ( Wilson Dep. at
41:23-25, 42:1-2). The repair records reveal Mercury worked
directly with Plaintiff to complete the work and Mercury
approved the claim under its engine warranty. ( Wilson
Dep. at 41:23-25, 42:1-2;  Dinan Dep. 42:9-16).
MarineMax technicians failed to completely resolve the engine
issues after repair attempts and sea trials, a Mercury
technical representative examined the Boat and seatrialed it
again. ([42.1] at 16). The work order states “shift
handle adapt procedure was performed on boat to see if this
might resolve surging issue, but was ineffective. Sea trailed
[sic] boat with Jim from Mercury for approx 1 hour to ensure
that no faults were occurring and to examine surging issue.
Was informed Mercury engineering that this is a known issue
and that a programming solution is in the works, but does not
yet exist.” ([42.1] at 16).
11, 2014, Plaintiff emailed that the Boat had experienced
another port engine fault after driving the boat for
approximately 30 minutes. Plaintiff stated that
“[s]till have not had the chance to use my new [sic]
without having a problem since it was delivered to
Allatoona?!” ([48.3]). On June 11, 2014, Plaintiff
emailed stating “Enough is enough. I have been more
than patient. I have not been able to use the boat once
without a problem since it was delivered to Allatoona. Now I
have lost all confidence in Sea Ray. It is to the point where
I won't take anyone out with me because it is
embarrassing. Please call me ASAP to discuss options.”
( Wilson Dep. at 41:14-22). By July 8, 2014, the engine
problems appeared to be resolved as Plaintiff reported to
MarineMax that the “boat seems to finally be settling
in, we enjoyed it over the 4th with no issues.” ([48.6]
the June 2014 period in which the engine issues were being
addressed, Plaintiff experienced another generator shut down.
MarineMax found the impeller needed replacement. ( Wilson
Dep. at 45:10-18). Defendants contend the impeller is a
wearable part that only lasts for about a year. ( Dinan
Dep. at 31:12-25). The work order for the impeller
replacement noted that the generator had been used for 234.1
hours. ([48.5]). When replacing the impeller, MarineMax also
found that there were multiple coolant leaks and evidence of
an oil leak on the generator. ([48.5];  Wilson Dep. at
45:17, 51:10-14). On July 7, 2014, Dinan emailed Plaintiff to
advise the generator coolant leak was a warranty repair and
Kohler had been contacted. ([48.6]).
days after reporting use of the Boat “over the 4th with
no issues, ” Plaintiff again experienced engine and
generator trouble. A July 10, 2014, MarineMax Work Order
(#80101) states “there is a port engine alarm. Code
61” and the “generator is faulting and will not
start.” ([48.7] at 2). The technician determined that
the port engine needed a new DTS shift actuator and reported
that the generator engine was “hydro locked” as
evidenced by water running out of the forward cylinder when
the spark plugs were pulled. ([48.7] at 2;  Wilson Dep.
at 54:11-17). At this time, the generator showed 290 hours of
that same month, Plaintiff once again experienced engine and
generator issues. Plaintiff reported on July 27, 2014, that
the port engine was “giving [him] the code #61”
and the generator is faulting out and now will not
start.” ([48.9] at 2;  Wilson Dep. at 56:10). Dinan
reported back to Plaintiff on July 29, 2014, stating there is
“another actuator failure on the port engine” and
“regarding the generator, [l]ooks like it will need an
engine repair.” ([48.11] at 1;  Wilson Dep. at
58:23, 59:3-5). MarineMax replaced the generator under the
Kohler warranty. ( Dinan Dep. at 30:3-7). By July 31,
2014, the generator had been replaced at no cost to
Plaintiff. ( Wilson Dep. at 61:1-5, 11-14;  Dinan
Dep. at 30:5-7; [48.12]). Plaintiff testified that the
generator worked for “a short period of time”
after that. ( Wilson Dep. at 60:3).
August 2014 to March 2015, there are no work orders or
correspondence evidencing any issues with the Boat. (
Wilson Dep. at 62:11-20). During the 8-month time period
between August of 2014 through March of 2015, Plaintiff used
the boat several times per week, weather permitting. (
Wilson Dep. at 63:1-24). Plaintiff testified that he had
issues with the Boat during this time period but could not
recall the nature of those issues or whether MarineMax was
involved. ( Wilson Dep. at 62:11-20). Plaintiff, however,
sent MarineMax an email in March of 2015 indicating the boat
was running well. ( Wilson Dep. at 62:8-9; ).
March and early April of 2015, Plaintiff coordinated with
MarineMax for annual maintenance and warranty repairs. (
Wilson Dep. at 64:23-25, 65:1-15, 66, 67:1-12; [49.2];
[49.3]; [49.4]). In April of 2015, MarineMax performed the
maintenance and warranty repairs. ( Wilson Dep. at
67:15-25, 68, 69:1-9; [49.4]).
April 21, 2015, Plaintiff reported the Windlass had again
failed and scheduled routine maintenance, including replacing
the generator impeller. ( Wilson Dep. at 67:1-6; [49.3]).
MarineMax suspected the issue with the Windlass was the
result of it being operated incorrectly, “[because] the
- two halves of the motor were just sheared and ripped right
out of the front of the boat almost.” ( Dinan Dep.
at 26:16-18). MarineMax informed Plaintiff, “[o]nce
[Sea Ray] receives the photos and inspect the [Windlass], if
they determine it was not a manufacturing fault, they will
deny the claim and charge the part and labor back to us. If
that happens, unfortunately you would be responsible for the
costs of the repair which looks to be right at $1750.
([49.7]). Plaintiff responded, “Let's move forward
with that plan. If Sea Ray denies the claim, I will
pay.” ([49.7]). It was subsequently determined the
issue with the Windlass was not covered by a warranty and
Plaintiff paid $1, 750 out-of-pocket for the repair. (
Wilson Dep. at 70:2-18; [49.7]).
April 2015, Plaintiff experienced another issue with the
generator. ([49.5]). That issue was resolved by May 19, 2015.
( Wilson Dep. at 71:12-14; [49.8]).
continued to experience issues with the engines and the
generator in the ensuing months. From May through July of
2015, Plaintiff and MarineMax communicated regarding
maintenance and repairs to the Boat. ([49.8]-[49.13];
[50.1]-[50.4]). On or about June 4, 2015, Plaintiff reported
“the drive not trimming at the same rate.” (
Wilson Dep. at 72:1; [49.9]). Plaintiff again reported an
engine misfire and that the port engine was indicating the
drive lube is low. This issue was never resolved, despite
MarineMax coordinating with Mercury and its dealer, Park
Marine, to address the issues. ( Wilson Dep. at 72:6-24;
[54.3] at ¶ 21; [55.1] at ¶ 21; [49.10]; [49.11]).
Around this same time, MarineMax coordinated to involve
Lakeland Power to review issues with the Kohler generator.
( Wilson Dep. at 72:10-13, 73:3-7; [49.11]). Plaintiff
continued to use the Boat during this time period. (
Wilson Dep. at 74:9-10).
25, 2015 and June 26, 2015, Dinan emailed Plaintiff regarding
Park Marine's inspection of the engine issues. ([49.12];
[49.13]). On July 2, 2015, Dinan emailed Plaintiff asking if
he scheduled an appointment with Park Marine and also
informed Plaintiff the parts for repairing a remote spotlight
would be in the following week. ([50.1]). On July 20, 2015,
Dinan emailed Plaintiff again, indicating he had been trying
to contact him to see if Park Marine was helping him with the
engine issues and confirmed he had the parts to repair the
spotlight. ([50.2]). On July 27, 2015, Tom Riemann of
MarineMax emailed Plaintiff indicating Dinan was having
trouble reaching him and asked Plaintiff to call him at his
earliest convenience. ([50.3]). Plaintiff testified that he
had “no clue” why he was not responding to
MarineMax or answering their calls at this time. ( Wilson
Dep. at 78:10-17).
generator remained unrepaired (Wilson Dep. 76:2) and
undiagnosed until on or about August 3, 2015, when Dan
Frazier from Lakeland Power evaluated it. ([54.3] at ¶
22; [55.1] at ¶ 22). Dan Frazier reported:
Unit is installed backwards. Performed service, oil filter,
impeller, missing all vanes, broken vanes.· Check
zinc, fuel filter, event history and parameters. R&R
spark plugs, clean flame arrestor belt tension pulleys
attempted to crank unit but would not crank. Starter hot,
could turn unit by hand, return to boat with new starter,
same result; engine hydrolocking through exhaust, removed
water from exhaust system and cylinders, changed oil 5X Comp
CYL, number 185 psi, CYL number 2, 155 psi, no good.·
Started and ran unit, changed oil 5 times. Comp in CYL number
2 up to 170 psi. Hot. Removed new impeller, insert vaneless
hub removed prior, removed exhaust hose from muffler inlet
and ran boat on plane. Video shows water flow through genset
and out exhaust.· Not Kohler problem, Sea Ray has the
([50.5] at 1;  Wilson Dep. at 81-82). The Kohler
generator had 541 hours registered at the time of Mr.
Frazier's inspection. ([50.5]).
August 20, 2015, Plaintiff exchanged emails with MarineMax
regarding LakeLand Power's discovery of a design problem
and Plaintiff requested a new generator. ( Wilson Dep. at
83:1-6; [50.6]). On August 24, 2015, MarineMax acknowledged:
“As I suspected, they have run into this issue at some
point. I'm looking for clarification and more input from
Sea Ray on this, but the information I received Friday was
that Kohler actually required Sea Ray to change the veined
scoop pickup on the 350 DA.” ( Wilson Dep. at 84;
[50.6] at 2)
September 3, 2015 Wilson alerted MarineMax of issues that
remained even after the service team had made repairs:
• Warning from the Port engine for low lube level.
• Warning from the Starboard engine of a Misfire.
• Still have a milky like substance in the trim lube
reservoir on the Starboard engine.
• Spot light that still doesn't work.
• Generator - your service team could never get this
correct?? They were convinced that something was sucked up
into the water line and that was the problem even thought
water was flowing through. I had to hire an independent /
third party vendor to come fix that. You have the videos, I
do not think there is much more to say.
• Sadly I could go on and on.
([50.7] at 4;  Wilson Dep. at 85:13-22). Plaintiff
expressed his frustration, stating “I am absolutely
over all this!! Although Sea Ray and MarineMax used the 350
to try to resolve the nightmare that was the 330, my
experience with Sea Ray and MarineMax over the last two years
has been over the top and not in a good way at all!! I WANT
THIS FIXED NOW!!! IN ALL OF THIS ALL I EVER WANTED WAS THE
BOAT THAT I BOUGHT TO WORK!!” ([50.7] at 4-5).
September 4, 2015 Larry Raustad, Sea Ray Customer Service
Manager wrote to Bob Upchurch, Customer Service Manager for
Brunswick Boat Group, outlining Plaintiff's issues with
his boat. Raustad stated, “[The] biggest issue on this
vessel is the generator has ingested water AGAIN.”
([42.2] at 14). Raustad described the water ingestion problem
and stated he would “follow up with our engineering
group on this matter as well. We had the same issue on the
420 DA a few years back, and had to do a bulleting to install
a check valve into the generator muffler by pass exhaust
hose.” (Id.) Raustad further stated that
“[i]n the end, I can see why this customer is not happy
right now.” (Id.)
and MarineMax continued to exchange correspondence about the
outstanding issues through September 9, 2015. ( Wilson
Dep. at 87:10-14, [50.7]). MarineMax scheduled a service
appointment for the following week. ( Wilson Dep. at
85:23-25, 86:1-10, [50.7]). Plaintiff subsequently canceled
the appointment. ( Wilson Dep. at 78:22-25, 79:1-12;
Plaintiff Seeks to Return Boat and Obtain Refund
September 16, 2015, an attorney representing Plaintiff sent a
letter to MarineMax and Sea Ray that Plaintiff characterizes
as “his initial letter of revocation.” (
Wilson Dep. at 87:15-19; [54.3] at ¶ 27). The letter
As you are aware, the boat has exhibited numerous issues and
has failed to perform as advertised and to the satisfaction
of Mr. Wilson. Those failures have continued to raise safety
concerns with Mr. Wilson and it appears Sea Ray knew prior to
the purchase of a design flaw in the boat that has caused
some of the failures. Please be aware the boat now sits
devoid of all personal property of Mr. Wilson or his family
and and [sic] ready for your pickup.
([50.8]). MarineMax's General Counsel responded on
September 21, 2015, hoping for “an amicable resolution,
” and stating that MarineMax would be “in a
position to respond shortly.” ( Wilson Dep. at
88:22-25, 89:1-2; [50.9]).
November 2, 2015, a second attorney representing Plaintiff
sent a letter to MarineMax and Sea Ray, seeking “the
refund of his purchase price plus attorney's fees”
and representing that Plaintiff would “return the 2015
Sea Ray 350 to the dealer.” ([50.10] at 1-2). The
letter summarized issues with the ...