[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
FEBRUARY 22, 2006
No. 04-16575
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 04-00040-CV-TWT-1
RICHARD BAILEY,
Plaintiff-Appellant,
versus
MONACO COACH CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 22, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Richard Bailey appeals the grant of summary judgment
in favor or Defendant-Appellee Monaco Coach Corporation (“Monaco”) in
Bailey’s suit for breach of warranty under the Magnuson-Moss Warranty Act
(“MMWA”), 15 U.S.C. § 230l, et seq. No reversible error has been shown; we
affirm.
Bailey purchased a motor home manufactured by Monaco which he claimed
was beset by many defects which remained unrepaired after Bailey afforded
Monaco sufficient opportunity to correct the defects. The district court
considered fully Bailey’s claims and concluded that Bailey -- who was represented
by trial counsel but proceeds pro se on appeal -- (i) presented no evidence that
Monaco failed to repair any defect that timely was brought to Monaco’s attention
and was within the terms of the express Limited Warranty; and (ii) because Bailey
was not in privity of contract with Monaco, a claim for breach of implied warranty
fails as a matter of Florida law.1
1
While the MMWA, (15 U.S.C. § 2301(7)), gives consumers a private right of action against
warrantors for breach of implied warranty, implied warranty claims under the MMWA arise out of
and are defined by state law. Id. Bailey purchased the motorhome from a dealer and not directly
from Monaco. No privity exists between Bailey and Monaco. Under Florida law, privity of contract
is an essential element of a claim for breach of implied warranty. See Mesa v. BMW of North
America, LLC, 904 So.2d 450, 458 (Fla.App. 2005) (“Under Florida law, a plaintiff cannot recover
economic losses for breach of implied warranty in the absence of privity;)” Baker v. Danek Medical,
35 F.Supp. 2d 875, 878 (N.D. Fla. 1998); Kramer v. Piper Aircraft Corp., 520 So.2d 37, 38 (Fla.
1988).
2
We see no error in the district court’s conclusions. About Bailey’s claims
that Monaco breached its limited written warranty, no genuine issue of material
fact exists because (i) a number of the alleged defects were excluded expressly by
the terms of Monaco’s limited warranty; (ii) Bailey admitted that certain claimed
defects were repaired; (iii) Monaco was not given reasonable notice of certain
defects; and (iv) Bailey failed to provide sufficient evidence to establish that
certain problems constituted defects. Absent sufficient evidence to raise a triable
issue that Monaco failed to repair a covered defect that was brought appropriately
to its attention, Bailey could show no breach of express warranty. About Bailey’s
claim that Monaco breached implied warranties, the absence of privity between
Bailey and Monaco is dispositive: Bailey’s claim of breach of implied warranty
fails as a matter of law.
AFFIRMED.
3