concurring specially.
I agree that the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301 to 2312, is not available as a basis for awarding attorney fees in this case. Under the federal statute, in this set of circumstances, the fact that there was no breach of the manufacturer’s warranty is not controlling. A “warrantor,” within the meaning of the Act, includes “any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty.” 15 U.S.C. § 2301(5). Smith furnished a written warranty. Further, “[t]he term ‘supplier’ means any person engaged in the business of making a consumer product directly or indirectly available to consumers.” 15 U.S.C. § 2301(4). Smith is a “supplier” in the sense of the act and, consequently, a breach of his written warranty conceptually fits under the Act.
In my perception, however, the Act cannot be invoked because, by definition, the pool liner that failed is not a “consumer product” within Title 15 U.S.C. § 2301(1). Cf. Balser v. Cessna Aircraft Company, 512 F.Supp. 1217 (N.D.Ga.1981) (defines consumer product). The definition of a “consumer product” is fleshed out in 16 C.F.R., Ch. I, Subch. G, § 700.1(f) (1990). The pool liner is an integral part of the pool, and the application of the pertinent rule from the Code of Federal Regulations results in a conclusion that it is not a “consumer product” within the meaning of the Act. The faet that the pool liner was not a “consumer product” is the circumstance that forecloses the application of the Act. Patron Aviation, Inc. v. Teledyne Industries, Inc., 154 Ga.App. 13, 267 S.E.2d 274 (1980).
Turning then to the instruction, I would conclude that the instruction is correct, not because it is appropriately premised upon the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, but because Smith waived the contractual requirement that he be paid in full before a warranty claim could be filed. He did that when he replaced the first pool liner after it had failed because of defects in workmanship.
I agree with the result found in the majority opinion, but I would reach that result for the reasons set forth above.