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Wilson v. Marinemax East, Inc.

United States District Court, N.D. Georgia, Atlanta Division

March 26, 2018

MICHAEL WILSON, Plaintiff,
v.
MARINEMAX EAST, INC., and SEA RAY BOATS, INC., A DIVISION OF BRUNSWICK CORPORATION, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Sea Ray Boats, Inc., a Division of Brunswick Corporation's (“Sea Ray”) Motion for Summary Judgment [38], Defendant MarineMax East, Inc.'s (“MarineMax”) Motion for Summary Judgment [40], Defendants' Motion to Exclude Opinion Testimony of Robert Newman [39], and Plaintiff Michael Wilson's (“Plaintiff”) Motion to Strike the Declaration of McLamb [53].

         I. BACKGROUND

         A. Facts

         Plaintiff purchased a SeaRay 330 DA boat. That boat immediately had Kohler generator issues and engine issues and eventually caught fire on the dock. ([46] 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. ([46] Wilson Dep. 14:15, 15:13).

         1. Plaintiff's Purchase of a 2014 Sea Ray 350 DA Boat

         On or 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”). ([46] Wilson Dep. at 22:14-23; [46.6]). The Boat came with a Limited Warranty issued by Sea Ray (the “Limited Warranty”). ([46] 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. ([46] Wilson Dep. at 100:21-101:7; [42] Dinan Dep. at 46:10-13; [49.10]).

         The 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.” ([46] 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”). ([46] 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. ([46] 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).

         2. Plaintiff's Use of the Boat

         Plaintiff took delivery of the Boat in February 2014 and used the Boat on a regular basis at least through August 2015. ([46] Wilson Dep. at 49:24-50:4). Plaintiff admits to using the Boat year round, at some points daily. ([46] Wilson Dep. at 49:24-50:4). He also acknowledged both of his sons were permitted to use the Boat without him present. ([46] Wilson Dep. at 47:25-48:7). Plaintiff testified normal use for him was “out there several times a week, weather permitting.” ([46] Wilson Dep. at 63:21-24). Plaintiff's use included overnight trips on the Boat. ([46] Wilson Dep. at 64:10-15).

         The 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. ([45] 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. ([45] Griffin Dep. at 6:7-13).

         Plaintiff disputes the accuracy of the engine hours reported by the ECM. Plaintiff testified that the “hours meters do not work correctly.” ([46] 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.” ([46] Wilson Dep. at 98:1-6). Plaintiff also notes that the ECM does not tell you if the boat is in gear. ([45] Griffin Dep. at 60:20-24). Plaintiff estimates that the Boat was operated for approximately 130 hours in 2014 and 130 hours in 2015. ([46] Wilson Dep. at 97:14-17).

         3. Problems with the Boat

         The 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. ([46] Wilson Dep. at 20:11-18). Plaintiff used the Boat recreationally at Lake Lanier for several weeks. ([46] Wilson Dep. at 33:21-25, 34:1-4). In March of 2014, MarineMax delivered the Boat to Plaintiff at Lake Allatoona. ([46] Wilson Dep. at 29:16-24, [47.4]).

         Throughout 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. ([46] 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. ([46] 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. ([46] Wilson Dep. at 35:25, 46:10-13; [43] P. Wilson Dep. at 21:20; [45] Griffin Dep. at 13:14-15, 53-54).

         Plaintiff first experienced issues with the generator on March 2, 2014. ([46] Wilson Dep. at 34:5-25). That same date, MarineMax sent two technicians to Plaintiff's Boat and repaired the generator. ([46] 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. ([42] Dinan Dep. at 30:1-12).

         Unbeknownst 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.” ([42] Dinan Dep. at 45:17-21).

         Also in 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]).

         A May 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.

         On June 4, 2014, Plaintiff sent an email to MarineMax and Sea Ray employees expressing his dissatisfaction with the Boat. ([46] 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. ([46] Wilson Dep. at 42:23-25, 43:1-2). Thereafter, Plaintiff met Jim Helmick of Mercury regarding the engines. ([46] 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. ([46] Wilson Dep. at 41:23-25, 42:1-2; [42] Dinan Dep. 42:9-16).

         After 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).

         On June 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.” ([46] 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] at 2).

         During the June 2014 period in which the engine issues were being addressed, Plaintiff experienced another generator shut down. MarineMax found the impeller needed replacement. ([46] Wilson Dep. at 45:10-18). Defendants contend the impeller is a wearable part that only lasts for about a year. ([42] 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]; [46] 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]).

         Just 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; [46] Wilson Dep. at 54:11-17). At this time, the generator showed 290 hours of use. (Id.).

         Later 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; [46] 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; [46] Wilson Dep. at 58:23, 59:3-5). MarineMax replaced the generator under the Kohler warranty. ([42] Dinan Dep. at 30:3-7). By July 31, 2014, the generator had been replaced at no cost to Plaintiff. ([46] Wilson Dep. at 61:1-5, 11-14; [42] Dinan Dep. at 30:5-7; [48.12]). Plaintiff testified that the generator worked for “a short period of time” after that. ([46] Wilson Dep. at 60:3).

         From August 2014 to March 2015, there are no work orders or correspondence evidencing any issues with the Boat. ([46] 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. ([46] 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. ([46] Wilson Dep. at 62:11-20). Plaintiff, however, sent MarineMax an email in March of 2015 indicating the boat was running well. ([46] Wilson Dep. at 62:8-9; [49]).

         In late March and early April of 2015, Plaintiff coordinated with MarineMax for annual maintenance and warranty repairs. ([46] 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. ([46] Wilson Dep. at 67:15-25, 68, 69:1-9; [49.4]).

         On, April 21, 2015, Plaintiff reported the Windlass had again failed and scheduled routine maintenance, including replacing the generator impeller. ([46] 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.” ([42] 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. ([46] Wilson Dep. at 70:2-18; [49.7]).

         Also in April 2015, Plaintiff experienced another issue with the generator. ([49.5]). That issue was resolved by May 19, 2015. ([46] Wilson Dep. at 71:12-14; [49.8]).

         Plaintiff 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.” ([46] 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. ([46] 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. ([46] Wilson Dep. at 72:10-13, 73:3-7; [49.11]). Plaintiff continued to use the Boat during this time period. ([46] Wilson Dep. at 74:9-10).

         On June 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. ([46] Wilson Dep. at 78:10-17).

         The 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 problem.

([50.5] at 1; [46] Wilson Dep. at 81-82). The Kohler generator had 541 hours registered at the time of Mr. Frazier's inspection. ([50.5]).

         On August 20, 2015, Plaintiff exchanged emails with MarineMax regarding LakeLand Power's discovery of a design problem and Plaintiff requested a new generator. ([46] 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.” ([46] Wilson Dep. at 84; [50.6] at 2)

         On 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; [46] 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).

         On 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.)

         Plaintiff and MarineMax continued to exchange correspondence about the outstanding issues through September 9, 2015. ([46] Wilson Dep. at 87:10-14, [50.7]). MarineMax scheduled a service appointment for the following week. ([46] Wilson Dep. at 85:23-25, 86:1-10, [50.7]). Plaintiff subsequently canceled the appointment. ([46] Wilson Dep. at 78:22-25, 79:1-12; [50.4]).

         4. Plaintiff Seeks to Return Boat and Obtain Refund

         On September 16, 2015, an attorney representing Plaintiff sent a letter to MarineMax and Sea Ray that Plaintiff characterizes as “his initial letter of revocation.” ([46] Wilson Dep. at 87:15-19; [54.3] at ¶ 27). The letter states:

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.” ([46] Wilson Dep. at 88:22-25, 89:1-2; [50.9]).

         On 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 ...


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