Liz Anderson, individually and as Personal Representative of the Estate of Jeff Anderson v. Gulf Stream Coach, Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1064
LIZ ANDERSON, individually and as
Personal Representative of the Estate of
Jeff Anderson,
Plaintiffs-Appellants,
v.
GULF STREAM COACH, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-cv-00257-CAN–Christopher A. Nuechterlein, Magistrate Judge.
ARGUED JUNE 10, 2011—DECIDED NOVEMBER 3, 2011
Before BAUER, FLAUM and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Plaintiffs Jeff and Liz Ander-
son sued Gulf Stream, the manufacturer of their 2009
model year Tourmaster RV, claiming that the Tourmaster
had numerous defects and that Gulf Stream misrepre-
sented the size of the vehicle’s engine. The district court

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2 No. 11-1064
entered summary judgment in favor of Gulf Stream on
all of the Andersons’ claims.
We conclude that the district court erred in dismissing
the Andersons’ Indiana law claims for breach of express
warranty and breach of implied warranty, and their
federal claims under the Magnuson-Moss Act, on the
ground that the Andersons did not give Gulf Stream
a reasonable opportunity to cure. We find that the evi-
dence, when viewed in the light most favorable to the
Andersons, supports their contention that they gave
Gulf Stream a reasonable opportunity to cure.
We also find that there is enough evidence in the
record to support the Andersons’ claim that Gulf
Stream committed an “uncured” deceptive act under the
Indiana Deceptive Consumer Sales Act in representing
that the “2009” model Tourmaster featured a larger
engine than the one the Andersons’ “2009” Tourmaster
came with. Although the pertinent federal regulations
are not a model of clarity, we conclude that the regula-
tions did not permit Gulf Stream to designate the
Andersons’ Tourmaster, which was completed during
Gulf Stream’s 2008 production cycle and had the charac-
teristics of a 2008 model year Tourmaster, as a “2009”
Tourmaster. However, because there are disputed ques-
tions of fact surrounding what information Gulf Stream
disclosed to the Andersons, neither party is entitled to
summary judgment on this claim.
Finally, we conclude that it was proper for the district
court to enter summary judgment in favor of Gulf Stream
with respect to the Andersons’ claims for fraud and for

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No. 11-1064 3
Mr. Anderson, who had stage IV cancer at the time, passed 1
away shortly before we heard oral argument in this case.
We continue to refer to the plaintiffs as the “Andersons.”
the commission of an “incurable” deceptive act under
Indiana law because the evidence does not support
the inference that Gulf Stream acted with an intent to
deceive.
I. BACKGROUND
In 2008, Jeff Anderson and his wife Liz Anderson de-
cided to upgrade their 2008 Crescendo RV. The Andersons
wanted to tour the western United States while Mr. Ander-
son’s health still permitted it. Since their Crescendo1
struggled up mountain roads, the Andersons decided to
buy a more powerful vehicle. The Andersons were other-
wise happy with their Crescendo, which had been manu-
factured by Gulf Stream, and so decided to look into
Gulf Stream’s other recreational vehicle models.
In August 2008, the Andersons contacted Mike Apple,
the owner of Royal Gorge, an independent dealer of
Gulf Stream vehicles. Royal Gorge had been in the
business of selling recreational vehicles since 2006. On
July 31, 2008, Royal Gorge had ordered a 2009 model year
Tourmaster RV from Gulf Stream. Royal Gorge received
several discounts on the purchase, including one for
$12,500 because the vehicle had a 360 horsepower en-
gine. Although Gulf Stream’s invoice to Royal Gorge
included a notation for the discount, Apple claims that

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4 No. 11-1064
he had no prior experience with the Tourmaster line,
and that the Gulf Stream salesman he spoke to never
mentioned the 360 horsepower engine. Rather, when
Apple asked about the Tourmaster’s features, the
salesman referred him to Gulf Stream’s website, which
listed only one engine for the 2009 model: a 425 horse-
power Cummins diesel engine.
When the Andersons contacted Apple in August, he
suggested they consider the Tourmaster. The Andersons
first reviewed Gulf Stream’s website on their own, and
then looked at it together with Apple. The website “had
a list of options” for 2009 model year Tourmasters, but
“it had no list of options available for engines.” Gulf
Stream’s webpage stated that the 2009 model came
“standard” with a 425 horsepower Cummins diesel en-
gine. A disclaimer at the bottom of the page stated:
For further information and available floor plan
options, contact your local dealer or Gulf Stream
Coach, Inc. Gulf Stream Coach, Inc., reserves the
right to make changes in prices, colors, materials,
components and specifications and discontinue
models at any time without notice or obligation.
In late August 2008, the Andersons flew to Colorado
to inspect the Tourmaster at Royal Gorge. About a week
later, the Andersons purchased the Tourmaster “as is” and
“with all faults” for $223,000. They paid nearly $60,000
less than the manufacturer’s suggested retail price.
Royal Gorge kept the Tourmaster for about a month
before delivering it to the Andersons. During that time,
Apple inspected the Tourmaster and fixed several prob-

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No. 11-1064 5
lems with it. On September 5, 2008, Royal Gorge’s techni-
cian, Jeff Rogers, drove the Tourmaster 700 miles to the
Andersons in Texas. Rogers and the Andersons then
spent some time going over the unit “as far as what all
the buttons and bells and whistles do.” Rogers advised
the Andersons that “there [were] a bunch of rattles
and minor things that were irritating to him during the
drive.” Mr. Anderson replied, “That’s fine, we’ll take
care of it when we get back to Colorado.”
Mrs. Anderson then signed the rest of the paperwork.
She acknowledged in writing that she had “personally
inspected” the Tourmaster and found it “acceptable for
delivery.” According to the Andersons, they “may have
received” two Manufacturers’ Certificates of Origin
(“MCOs”). An MCO is required in Colorado for titling
purposes. MCOs contain invoice numbers, shipping
weight, and vehicle identification numbers (“VINs”),
among other specifications. The Andersons’ MCO
included the number “360” under the notation
“H.P.(S.A.E.),” indicating that the vehicle came with a
360 horsepower engine. The MCO also listed the
model year of the Tourmaster as “2009.”
In addition to the MCOs, the Andersons received a
Recreational Vehicle Registration Form, a Dealer’s Bill
of Sale, and a Pre-Delivery Inspection Checklist. None of
those documents stated that the Tourmaster came with
a 360 horsepower engine. The Andersons were not
given the manufacturer’s suggested retail price (“MSRP”)
sheet, which listed the 360 horsepower engine. They also
did not receive a copy of the invoice Gulf Stream gave

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6 No. 11-1064
Apple, which also stated that the vehicle came with a
360 horsepower engine. Apple later testified in deposi-
tion that he did not look at the invoice until after he
sold the Tourmaster to the Andersons. The invoice was
labeled “STRICTLY CONFIDENTIAL,” and Gulf Stream
did not instruct Apple to share it with his customers.
The Andersons’ Tourmaster came with a “Limited
Warranty,” that extended: (1) a one-year warranty
under normal use against defects in Gulf Stream
materials and/or workmanship in the construction of the
recreational vehicle; and (2) a two-year warranty under
normal use against structural defects in Gulf Stream
materials and/or workmanship in the construction of
floors, walls, and roof. The warranty also stated in
relevant part that:
If an issue occurs which the Purchaser believes is
covered by this Limited Warranty, Purchaser is
responsible to promptly contact Gulf Stream . . . .
Gulf Stream reserves the right to cure all warranty
claims.
The Andersons only used the Tourmaster twice. Shortly
after purchasing it, they claim that they began to experi-
ence numerous problems with it, including: (1) water
leaking “like crazy” from the ceiling fans and windows;
(2) bowed flooring due to incorrectly installed floor
joists; (3) noisy air leaks; (4) pink water coming from
the kitchen tap; (5) missing slides, which allowed water
to leak into the bedroom and get the carpet “absolutely
soaking wet”; and (6) electrical problems with several
appliances, including the television.

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No. 11-1064 7
After discovering the problems, the Andersons took
the Tourmaster to Royal Gorge for repairs, free of charge.
Starting in September, Apple claims that he spent “hun-
dreds of hours” attempting to repair all of the problems
with the Tourmaster. Royal Gorge forwarded Gulf
Stream warranty claims for the repairs. The record
contains numerous pages of such claims dating from
September 2008 to January 2009.
While Apple was performing the repairs, he ex-
amined the Tourmaster’s engine in response to
complaints about a lack of engine power. He claims that
it was then that he “discovered” that the Tourmaster
had a 360 horsepower engine. Apple also maintains
that the “structural unsoundness and poor workmanship
[of the Tourmaster] . . . have made it impossible [to fix
to an acceptable level].”
On January 23, 2009, after an alleged “back and forth”
with Gulf Stream, the Andersons’ attorney wrote a letter
to Gulf Stream. In the letter, the Andersons listed the
problems they had experienced with the Tourmaster.
They also explained that they had ordered the
Tourmaster, “in large part because it was advertised on
Gulfstream’s website as having a 425HP Diesel Motor,
[but] after delivery the Andersons discovered that the
RV had only a 360HP Diesel Motor.” As a result, they
claimed that the Tourmaster was “underpowered.” The
Andersons advised Gulf Stream that “if this matter is not
resolved within . . . the next 60 days, suit will be filed
against Gulfstream.”
Several days later, Aaron Druesdow, a “fully authorized”
representative of Gulf Stream, met Mr. Anderson at

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8 No. 11-1064
Royal Gorge to inspect the Tourmaster. According to
Mr. Anderson, Druesdow acknowledged the problems
with the Tourmaster and offered to take it to Gulf
Stream’s plant in Indiana to be fixed. Mr. Anderson did
not want the Tourmaster to be taken to Indiana, but he
claims that although Druesdow at first thought that
the Tourmaster could not be fixed at Royal Gorge
because of all the work that would have to be done to
the floors, after two or three hours, Druesdow “agreed
that he would work with Mike Apple at Royal Gorge to
get the floor joists repaired.” Druesdow also allegedly
agreed “to ship new windows, a new motor, [and to] fix
up all the problems.” A few weeks later, “two or three
windows” arrived from Gulf Stream, but after “a couple
of other minor things . . . it all stopped.”
On March 27, 2009, more than 60 days after the
Andersons sent their January letter, Gulf Stream sent
a letter to the Andersons offering to extend its written
warranty six months and to take the Tourmaster back to
its factory in Indiana for repairs. On April 6, 2009, the
Andersons sent a response accepting Gulf Stream’s
offer. Ten days later, the Andersons sued.
During discovery in this case, the Andersons learned
that Gulf Stream had manufactured the Tourmaster in
response to an order for a 2008 model Tourmaster. That
order was cancelled, and Gulf Stream did not sell the
Tourmaster for several months until it was sold to
Apple. It was then that Gulf Stream assigned the
Tourmaster a “2009” model year.
Before the district court, both parties moved for sum-
mary judgment. The court entered summary judgment

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No. 11-1064 9
The Andersons also sued for breach of the implied warranty 2
of fitness for a particular purpose. They have since dropped
that claim.
against the Andersons on all of their claims. The
Andersons appeal, seeking a trial on all of their claims,
except their Indiana Deceptive Consumer Sales Act
claim, on which they seek summary judgment.
III. ANALYSIS
We review a district court’s decision to grant summary
judgment de novo, viewing all facts and reasonable in-
ferences in favor of the nonmoving party. Bivens v. Trent,
591 F.3d 555, 559 (7th Cir. 2010). The Andersons sued
Gulf Stream for breach of express warranty, breach of
the implied warranty of merchantability, violations of the
Magnuson-Moss Warranty Act (“MMWA”), violation of
the Indiana Deceptive Consumer Sales Act, and fraud.2
A. Warranty Claims Survive Summary Judgment
The Andersons’ state law claims for breach of express
and implied warranties are related to their claims under
the MMWA. The MMWA is a remedial statute designed
to protect consumers against deceptive warranty prac-
tices. Skelton v. Gen. Motors Corp., 660 F.2d 311, 313 (7th
Cir. 1981). It provides a federal private cause of action
for a warrantor’s failure to comply with the terms of a
“written warranty, implied warranty or service contract.”

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10 No. 11-1064
For consumers bringing a claim under the MMWA for breach 3
of a full warranty, the Act provides that the warrantor must
permit the consumer to elect a refund or replacement after “a
reasonable number of [failed] attempts by the warrantor to
remedy defects.” § 2304(a). The district court relied on cases
citing to that provision in concluding that the Andersons had
to give Gulf Stream at least two opportunities to cure. But
that section of the statute concerns only claims for breach of
full warranties, whereas the Andersons sued Gulf Stream
for breach of its “Limited” Warranty.
Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 522
(7th Cir. 2003) (quoting 15 U.S.C. § 2310(d)(1)).
The MMWA distinguishes between two kinds of
written warranties: full warranties and limited warran-
ties. See 15 U.S.C. § 2303(a). Written warranties must be
“clearly and conspicuously” designated as one or the
other. Id. Sections 2303(a) and 2304(a) of the MMWA
impose minimum federal standards for “full” warranties
and provide remedies for their breach. The remedies
are either a full refund of the purchase price or
a replacement of the product if the warrantor cannot
remedy the defects or malfunctions after a reasonable
number of attempts to do so. See § 2304(a).3
“Limited” warranties and “implied” warranties are not
subject to the same standards as “full” warranties. See
Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1062 (5th
Cir. 1984); see also §§ 2303, 2304. But the MMWA “allows
consumers to enforce [limited] written and implied
warranties in federal court, [as provided in section

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No. 11-1064 11
To be clear, the Andersons’ complaint asserts two state law 4
breach of warranty claims. The complaint also asserts a viola-
tion of the MMWA, which is premised on the state law claims.
2310(d)(1),] borrowing state law causes of action.”
Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir.
2004); see also § 2310(d)(1). To bring an action under
section 2310(d)(1), the consumer must give the war-
rantor “a reasonable opportunity to cure” its failure to
comply with “an obligation under any written or
implied warranty.” § 2310(e) (“No action . . . may be
brought under subsection (d) . . . under any written or
implied warranty or service contract . . . unless the [war-
rantor] . . . is afforded a reasonable opportunity to cure
such failure to comply.”). Successful consumers may
also recover attorneys’ fees. See § 2310(d)(2).
As this discussion suggests, for all practical purposes,
the MMWA operates as a gloss on the Andersons’ state
law breach of warranty claims. The MMWA allows the4
Andersons to bring federal claims premised on state
law violations, but also requires them to give Gulf
Stream a reasonable opportunity to cure. The MMWA
does not, however, prevent the Andersons from bringing
their state law claims along with their federal claims.
The Andersons sued Gulf Stream under Indiana’s ver-
sion of the Uniform Commercial Code. See IC 26-1-2-101
(“IC 26-1-2 shall be known and may be cited as
Uniform Commercial Code–Sales.”). Their first claim,
for breach of Gulf Stream’s Limited Warranty, was
brought under section 26-1-2-714(1), which provides that

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12 No. 11-1064
when “the buyer has accepted goods and given notifica-
tion (IC 26-1-2-607(3)), he may recover . . . for any non-
conformity of tender.” The district court entered
summary judgment in favor of Gulf Stream on this
claim because, although the court concluded that the
Andersons gave Gulf Stream adequate notice, the court
found that the Andersons did not give Gulf Stream a
reasonable opportunity to cure. The Andersons contend
that the court erroneously conflated their MMWA and
Indiana law claims because Indiana law, unlike the
MMWA, does not require a buyer asserting a breach
of express warranty claim to give the seller a reasonable
opportunity to cure. They also contend that, in any
event, they did give Gulf Stream a reasonable
opportunity to cure. Gulf Stream disagrees with the
Andersons’ characterization of Indiana law, and further
contends that the Andersons’ notice was inadequate. See
United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1925)
(“[T]he appellee may, without taking a cross-appeal, urge
in support of a decree any matter appearing in the
record, although his argument may involve an attack
upon the reasoning of the lower court or an insistence
upon matter overlooked or ignored by it.”).
We address the question of notice first. Section
26-1-2-607(3) requires a buyer to give the seller notice
before bringing suit for breach of warranty. See IC 26-1-2-
607(3) (“Where a tender has been accepted: the buyer
must, within a reasonable time after he discovers or
should have discovered any breach, notify the seller of
breach or be barred from any remedy.”). In Indiana, unlike

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No. 11-1064 13
See, e.g., S. Ill. Stone Co. v. Universal Eng’g, 592 F.2d 446, 452 5
(8th Cir. 1979) (“It is not enough that the seller be given notice
of the mere facts constituting a nonconforming tender; he
must also be informed that the buyer considers him to be in
breach of the contract.”) (citing cases).
in some other jurisdictions with similar provisions,5
the requirement of notice under section 26-1-2-607(3)(a)
is satisfied if the seller has “actual knowledge” that the
goods are nonconforming. See Agrarian Grain Co., Inc. v.
Meeker, 526 N.E.2d 1189, 1193 (Ind. Ct. App. 1988) (“[T]he
notice required by IC 26-1-2-607(3)(a) is satisfied by the
[seller’s] actual knowledge there are some problems with
the goods.”) (citing McClure Oil Corp. v. Murray Equip., Inc.,
515 N.E.2d 546, 554 (Ind. Ct. App. 1987) (“Under IC
2-607(3)(a), the notice is sufficient if it simply informs
the seller that there are some problems with the goods.”));
see also B & B Paint Corp. v. Shrock Mfg., Inc., 568 N.E.2d
1017, 1019 (Ind. Ct. App. 1991) (notice requirement satis-
fied when buyer told seller that purchased paint had
caused fire).
There is ample evidence in the record to support the
district court’s conclusion that Gulf Stream had actual
notice of the Tourmaster’s alleged defects. Over a period
of five months from September 2008 to January 2009,
Apple forwarded over sixty pages of warranty claims to
Gulf Stream describing the Tourmaster’s problems. Gulf
Stream received those warranty claims and kept them in
its files. The Andersons also sent Gulf Stream a letter in
January advising Gulf Stream of the problems they were

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14 No. 11-1064
having with the Tourmaster. In response, Gulf Stream
sent a representative to Royal Gorge to inspect the
Tourmaster, and the representative and Mr. Anderson
discussed the Tourmaster’s problems. Gulf Stream there-
fore undoubtedly realized that the Tourmaster had multi-
ple defects—including the air and water leaks, malfunc-
tioning step cover, and bowed and noisy floors of
which the Andersons complain. See Agrarian, 526 N.E.2d
at 1193 (trial court’s finding that seller knew of goods’
defects and of buyer’s dissatisfaction with goods
was sufficient to fulfill the notice requirement of IC
26-1-2-607(3)(a)).
The district court nevertheless rejected the Andersons’
claim for breach of express warranty because it con-
cluded that the Andersons did not give Gulf Stream a
reasonable opportunity to cure. The parties dispute
whether Indiana law requires buyers to give sellers a
reasonable opportunity to cure before filing suit.
There is authority for the proposition that the purpose
of the notice requirement is, in significant part, to give
the seller an opportunity to cure. See Courtesy Enters., Inc.
v. Richards Labs., 457 N.E.2d 572, 577 (Ind. App. Ct. 1983)
(explaining that the most important policy considera-
tion underlying the notice requirement under IC
26-1-2-607(3)(a) is to “enable the seller to settle the issue
through negotiation or other non-litigious means”).
However, the only Indiana court to have squarely ad-
dressed this issue has concluded that the buyer only has
to give the seller a reasonable opportunity to cure if the
terms of the warranty impose that requirement. Aamco

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No. 11-1064 15
Transmission v. Air Sys., Inc., 459 N.E.2d 1215, 1217 (Ind. Ct.
App. 1984) (“Although our research reveals cases in
which the opportunity to remedy defects was a condi-
tion precedent to the [buyer’s right] . . . to declare a breach
of warranty, [in those cases] the opportunity to remedy
defects was [required by the terms of the warranty].
Here [there is no such term and therefore an oppor-
tunity to cure was not a condition precedent to the
buyer’s suit for breach of warranty].”). In deciding ques-
tions of state law, decisions of the state appellate courts
control, unless there are persuasive indications that the
state supreme court would decide the issue differently.
See Thomas v. H&R Block E. Enters., 630 F.3d 659, 663 (7th
Cir. 2011). Gulf Stream does not contend that Aamco is
not good law or that we should not follow it.
In the alternative, Gulf Stream locates the opportunity
to cure requirement in the warranty itself, which states:
“Gulf Stream reserves the right to cure all warranty
claims.” But Gulf Stream did not make this argument or
mention the provision of the Limited Warranty reserving
the right to cure in its motion for summary judgment
before the district court, and as a result has waived this
contention. See Kunz v. DeFelice, 538 F.3d 667, 681 (7th
Cir. 2008) (failure to adequately present an issue to the
district court waives the issue on appeal).
Regardless, viewed in the light most favorable to the
Andersons, the record supports their claim that Gulf
Stream was given a reasonable opportunity to cure. The
Andersons took the Tourmaster back to Royal Gorge
for repairs many times from September 2008 to Janu-

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16 No. 11-1064
ary 2009. Numerous warranty claims were sent to Gulf
Stream over that time period describing the problems
with the Tourmaster. Then, on January 23, 2009, the
Andersons’ attorney sent Gulf Stream a letter listing the
various problems (29 issues) with the Tourmaster and
complaining about the 360 horsepower engine. Five
days later, Gulf Stream sent its representative to Royal
Gorge to talk to Mr. Anderson and to offer to take the
Tourmaster to Gulf Stream’s plant in Indiana for re-
pairs. The district court construed Mr. Anderson’s
initial refusal to allow the Tourmaster to be taken to
Indiana as a complete rejection of Gulf Stream’s offer to
make repairs. That was error. The district court disre-
garded Mr. Anderson’s additional testimony that the
representative “agreed that he would work with Mike
Apple at Royal Gorge to get the floor joists repaired” at
Royal Gorge, and “agreed to ship new windows, a new
motor, [and to] fix up all the problems.” Mr. Anderson
also testified that a few weeks later several windows
arrived from Gulf Stream, but “then it all stopped.”
It was not until March 27, 2009, that Gulf Stream sent
a letter to the Andersons offering to extend its warranty
and to take the Tourmaster back to its factory in Indiana
for repairs. At that point, nearly two months had
passed since Gulf Stream had offered but failed to
send parts to Royal Gorge. Gulf Stream could have
cured by honoring its commitment to work with Apple
to repair the Tourmaster. It did not. Gulf Stream
now complains that the Andersons sued “only ten
days” after receiving Gulf Stream’s March 27 letter. But
a buyer does not have to wait indefinitely for the seller

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No. 11-1064 17
to cure. The Andersons gave Gulf Stream plenty of time
to fix the problems with the Tourmaster. The district court
erred in rejecting both the Andersons’ state law breach
of express warranty claim and the Andersons’ MMWA
claim for failure to give Gulf Stream a reasonable oppor-
tunity to cure.
We now turn to the Andersons’ breach of implied
warranty of merchantability claim. To resolve that
issue, we must first address a point about the MMWA
that it is relevant to the analysis. In addition to allowing
consumers to bring federal claims premised on written
warranties, the MMWA allows consumers to bring claims
for violations of implied warranties, which the MMWA
defines as a warranty under state law. See 15 U.S.C.
§§ 2310(d), 2301(7). The MMWA prohibits suppliers
from disclaiming or modifying any implied warranty to
a consumer, except that the duration of an implied war-
ranty may be limited for a reasonable period of time
and such limitation must be “conscionable” and “set
forth in clear and unmistakable language and prominently
displayed on the face of the warranty.” § 2308(a), (b);
see also Boelens, 748 F.2d at 1062.
Gulf Stream’s Limited Warranty purports to disclaim
state law implied warranties, but the district court con-
cluded that the disclaimer was ineffective because of the
proscription in the MMWA. Gulf Stream does not chal-
lenge that ruling and we do not disturb it.
Nevertheless, the district court entered summary judg-
ment in favor of Gulf Stream because it concluded
that the MMWA permitted Gulf Stream to limit the

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18 No. 11-1064
Andersons’ “remedies” for breach of implied warranty.
Without discussing any specific provision of the Limited
Warranty, the court stated that Gulf Stream had limited
the Andersons’ remedies in the express warranty to
require the Andersons to give Gulf Stream a reasonable
opportunity to cure, which the court concluded the
Andersons did not do.
In determining that Gulf Stream could limit the
remedies available for breach of implied warranty, the
court relied upon Hahn v. Ford Motor Co., Inc., 434 N.E.2d
943, 952-53 (Ind. Ct. App. 1982). In that case, the court
held that “disclaimers,” which are prohibited by the
MMWA, are different from “limitations of remedies,”
which are not. See id. We need not decide whether
Hahn correctly construed the MMWA to permit a seller
to limit remedies available to the buyer. In discussing
“remedies,” the court in Hahn was referring to the form
of relief available to the plaintiff (for example, consequen-
tial as opposed to incidental damages). See id. Requiring
the Andersons to give Gulf Stream an opportunity to
cure is not the kind of “limitation of remedies” contem-
plated by Hahn. And even if Gulf Stream could be said
to have limited the Andersons’ “remedies” to require
them to give Gulf Stream a reasonable opportunity to
cure, as explained earlier, there is enough evidence in
the record from which a reasonable jury could con-
clude that the Andersons satisfied that requirement.
Two other points with respect to the Andersons’ claim
for breach of the implied warranty of merchantability
must be addressed. First, the district court found that

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No. 11-1064 19
the Andersons inspected the Tourmaster before accepting
it. As a result, the court concluded that the Andersons
could maintain a claim only for latent (but not for patent)
defects. See Richards v. Goerg Boat & Motors, Inc., 384 N.E.2d
1084, 1093 (Ind. Ct. App. 1979) (abrogated in part on
different grounds) (“In so far as [the buyer] made an
examination which would have disclosed the defects he
later alleged . . . no implied warranty of merchantability
or fitness . . . would be sustainable as to those defects. . . .
However, . . . such a result would not pertain to
latent defects . . . .”). The Andersons have no quarrel with
the rule, but contest which defects were patent and
which were latent. This is a question of fact to be
decided by the jury on remand.
Second, Gulf Stream contends on appeal that the
Andersons’ claim for breach of the implied warranty of
merchantability fails with respect to the 360 horsepower
engine because the Andersons do not contend that the
engine is defective. Gulf Stream waived this argument by
not raising it with the district court. See Kunz, 538 F.3d
at 681. We note, however, that the implied warranty of
merchantability is a warranty that goods shall be “mer-
chantable.” IC § 26-1-2-314. This at least means that the
goods are fit for the ordinary purposes for which such
goods are used. Id.; Woodruff v. Clark Cnty. Farm Bureau
Coop. Ass’n, 286 N.E.2d 188, 194 (Ind. Ct. App. 1972). It
also means that the goods conform to promises or af-
firmations of fact made on the container or label, if any.
IC § 26-1-2-314. Since the district court did not decide
the question, we will not consider whether the smaller
engine can form the basis of a claim for breach of the

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20 No. 11-1064
implied warranty of merchantability either because it
rendered the Tourmaster unfit for its ordinary uses or
because the Tourmaster did not conform to any
promises made by Gulf Stream.
In sum, we conclude that the Andersons are entitled
to proceed on their claim for breach of the implied war-
ranty of merchantability. Cf. Jones v. Abriani, 350 N.E.2d
635, 645 (Ind. Ct. App. 1976) (concluding that seller of
mobile home breached the implied warranty of merchant-
ability because “the mobile home in question was
clearly below average, of poor quality, and was not fit
for its ordinary purpose, i.e., to serve as a modern, com-
fortable home where one can entertain guests without
being embarrassed about bald carpets, crooked doors,
and a leaky roof”). Since their state law implied warranty
claims survives, and Gulf Stream was given a reasonable
opportunity to cure, the Andersons are also entitled
to proceed on their MMWA claim.
B. Indiana Deceptive Consumer Sales Act Claim
Survives Summary Judgment
We now turn to the Andersons’ claim under the Indiana
Deceptive Consumer Sales Act (“IDCSA”), which is
premised on Gulf Stream’s alleged mislabeling of the
Tourmaster. The Andersons contend that it was
improper for Gulf Stream to have designated the
Tourmaster as a 2009 model because the Tourmaster was
manufactured to fulfill an order for a 2008 model year
Tourmaster and did not have the characteristics of a 2009
Tourmaster. The district court concluded that federal

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No. 11-1064 21
regulations permit a second-stage manufacturer that
builds multi-stage vehicles, such as Gulf Stream, to
assign model years in this fashion. Gulf Stream con-
tends that, as a result, the Andersons’ claim under the
IDCSA fails because the IDCSA “does not apply to an act
or practice that is . . . expressly permitted by federal
law, rule, or regulation.” See IC § 24-5-0.5.6.
Multi-stage vehicles are motor vehicles that are produced
in two or more stages. See Federal Motor Vehicle Stan-
dards; Roof Crush Resistance, 76 Fed. Reg. 15903-01
(proposed Mar. 22, 2011) (to be codified at 49 C.F.R.
pt. 571). These vehicles are not produced by a single
manufacturer on an assembly line as is the typical passen-
ger car or sport utility vehicle. Id. Instead, one manufac-
turer produces an “incomplete vehicle,” which in turn
requires further manufacturing operations by a second
manufacturer to become a completed vehicle. Id. An
“incomplete vehicle” is an assemblage consisting, at a
minimum, of the chassis, power train (which includes
the engine), steering system, suspension system, and
braking system, in the state that those systems are to
be part of the completed vehicle, but that requires
further manufacturing operations to become a com-
pleted vehicle. 49 C.F.R. § 567.3 (1996).
In 1975, the Federal Trade Commission (“FTC”) pub-
lished a statement of its Enforcement Policy regarding
the designation of model years to motor vehicles to
guide manufacturers and distributors in assigning
model years to all vehicles, including incomplete
vehicles used in the construction of motor homes. En-
forcement Policy Regarding Designation of Model Year

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22 No. 11-1064
of Motor Vehicles, 40 Fed. Reg. 23845 (June 3, 1975),
codified at 16 C.F.R. § 14.11 (1975). The FTC was con-
cerned about the misleading standards used by some
manufacturers to designate model years. Id. In particular,
several manufacturers were changing the model years
displayed on the Certificates of Origin of vehicles that
remained unsold at the end of a model year to suggest
that the vehicles had been manufactured during the
upcoming model year. Id. Other manufacturers were
basing model year designations on the date of ultimate
sale to retail purchasers. Id. The FTC was concerned that
those practices “might mislead buyers as to the date of
manufacture” and “may . . . hinder market forces
that normally lead to price cuts at the end of model
years.” Id.
Four years later, in 1979, the FTC revised its Enforce-
ment Policy Statement to add an exception for chassis or
incomplete vehicles sold to motor home or recreational
vehicle manufacturers who issue separate Certificates of
Origin for completed vehicles. Enforcement Policy Re-
garding Designation of Model Year of Motor Vehicles,
44 Fed. Reg. 30322 (May 25, 1975), codified at 16 C.F.R.
§ 14.11 (1979). The 1979 Policy Statement exempted
chassis and incomplete vehicle manufacturers from
assigning a model year to their products as long as they
put the words “Model Year” or “Year” on the Certificate
of Origin, followed by “NA” or “Not Applicable” or
“None.” Id.
Shortly after it issued the 1979 Policy Statement, the
FTC entered into consent agreements with most manu-
facturers of heavy duty trucks and other vehicles. See, e.g.,

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No. 11-1064 23
The withdrawal of the policy statements may have led to 6
more, rather than less, confusion in the industry. The defen-
dants in this litigation, for example, have argued to us that the
consent agreements only apply to the specific vehicle manu-
facturers named in the agreements. This is clearly not what the
FTC intended in withdrawing the policy statements in favor
of the consent agreements. The FTC could have simplified
things by keeping the policy statements, which are published
in the code of federal regulations, rather than requiring manu-
facturers to track down the 1995 Federal Register in order
to discover that the former policy statements are now incorpo-
rated in the consent agreements.
Mack Trucks, Inc., 94 F.T.C. 236 (1979); Chrysler Motors
Corp., 94 F.T.C. 245 (1979). The consent agreements
settled allegations that vehicle manufacturers both di-
rectly and through their dealers had misrepresented the
model year of certain vehicles by “redesignating” Certifi-
cates of Origin and other documents to reflect the forth-
coming year, rather than the model year when the vehicles
had actually been manufactured. Id. The consent agree-
ments tracked the provisions set out in the Commission’s
1979 Policy Statement and expressly incorporated the
exemption for chassis and incomplete vehicles that are
not titled or registered and that have separate Certificates
of Origin prepared by the final vehicle manufacturer. Id.
In 1995, the FTC stopped publishing its Enforcement
Policy Statement in the Code of Federal Regulations
after determining that it was unnecessary and superfluous
in light of the guidance provided by the 1979 consent
agreements. See Administrative Interpretations, General6

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24 No. 11-1064
Although not relevant here, a manufacturer need not place a 7
numerical model year on a Certificate of Origin if a state
does not require it. See Mack Trucks, 94 F.T.C. 236.
Policy Statements, and Enforcement Policy Statements,
60 Fed. Reg. 42031-02 (Aug. 15, 1995) (no subsequent
codification).
Federal regulations define “model year” as the year
used to designate a “discrete vehicle model,” irrespective
of the calendar year in which the vehicle was actually
produced, provided that the production period does not
exceed 24 months. 49 C.F.R. § 565.12(m). Since manu-
facturing recreational vehicles is a two-stage process for
Gulf Stream, the chassis manufacturer (Freightliner in
this case) does not have to assign a model year to the
chassis in its Certificate of Origin. Gulf Stream may
then assign a model year to the completed recreational
vehicle that is within two years of the date in which
the chassis was manufactured. See id.
All of this just means that a final-stage manufacturer
such as Gulf Stream can use a chassis manufactured in
2007 in a 2008 or a 2009 model year recreational vehicle.
However, it does not mean that the rest of the principles
outlined in the consent agreements are inapplicable to a
final-stage manufacturer such as Gulf Stream. The con-
sent agreements except only manufacturers of incomplete
vehicles from having to designate a model year when
otherwise required by state law. Contrary to Gulf7
Stream’s suggestion that the consent agreements apply
only to single-stage manufacturers, there is nothing in
the consent agreements, or in the regulations the consent

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No. 11-1064 25
agreements replaced, that suggests that multi-stage
manufacturers operate under different constraints when
it comes to assigning model years to a finished product
than single-stage manufacturers. Gulf Stream does not
argue, for example, that once it assigns a model year on a
Certificate of Origin to one of its finished recreational
vehicles, it may “reassign” or update the model year if
it fails to sell the unit. This practice is clearly barred by
the consent agreements for both single-stage and multi-
stage manufacturers. More generally, the concerns re-
flected in the consent agreements and the supplanted
regulations—that reassigning or assigning model years
upon sale can mislead buyers and hinder market forces
that lead to price cuts at the end of model years—are
the same whether the manufacturer is a single-stage
manufacturer or final-stage manufacturer selling a
finished product.
The Andersons claim (and Gulf Stream does not dis-
pute) that Gulf Stream manufactured the Tourmaster
at issue here in response to an order dated September 29,
2007 requesting a 2008 model Tourmaster with the then-
standard 360 horsepower engine. The chassis of the
Tourmaster at issue here was manufactured in 2007.
The Tourmaster was completed before Gulf Stream
switched to the production of 2009 model year vehicles
in February 2008. Because the order was cancelled, the
Andersons’ Tourmaster sat at Gulf Stream’s facility for
several months until it was sold to Apple. When Gulf
Stream sold the Tourmaster to Apple, it assigned the
Tourmaster a 2009 model year.

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26 No. 11-1064
Gulf Stream contends that it was permitted to assign
the Tourmaster a 2009 model year because, as a multi-
stage manufacturer, it was allowed to put an older
chassis—the 2007 chassis that came with a 360 horsepower
engine—in any finished recreational vehicle manu-
factured within two years (or up to 2009). See 49 C.F.R.
§ 565.12(m) (2008). But while manufacturing a “split
model year” vehicle with an older chassis is permitted,
Gulf Stream’s argument overlooks the fact that it
designed and completed the Tourmaster in its 2008 pro-
duction cycle. As explained above, there is no excep-
tion in the consent agreements with respect to model
year designations for the finished product of final-stage
manufacturers. The consent agreements provide that
a manufacturer cannot represent a vehicle “in any docu-
ment . . . or in any advertisement” as being a particular
model year unless “the designation standards are uni-
formly applied throughout a model year to all vehicles
of the same model assigned a model year designation.” See
Mack Trucks, 94 F.T.C. 236. Model year designations
must be made in “accordance with written designation
standards which clearly identify the vehicles to which
they apply and the starting dates when such standards take
effect.” Id. (emphasis added). The model year assigned
to a vehicle is to be determined by either the “charac-
teristics of the vehicle designated” or by the “date of
manufacture.” Id. Here, Gulf Stream did not follow either
protocol because the characteristics of the Andersons’
Tourmaster were not consistent with those of the 2009
model year Tourmaster, and the date of manufacture of the
final product preceded Gulf Stream’s 2009 model year
production.

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No. 11-1064 27
Gulf Stream suggests in its brief that it has a practice of only 8
designating model years on Certificates of Origin when it sells
a vehicle to one of its dealers. But Gulf Stream cannot argue
that this practice is permitted by the regulations under all
circumstances because Gulf Stream acknowledges that the
model year of the finished product must be within two years
of the year of the chassis. Thus, Gulf Stream would have to
agree that it could not have designated the model year of the
Tourmaster at issue here as 2010 if Gulf Stream had sold it in
2010 because the chassis was built in 2007 and there would be
a three-year difference between the finished product and
the chassis.
We emphasize that we do not read the FTC’s regula-
tions to necessarily preclude Gulf Stream from using an
older chassis in a newer vehicle or even the same chassis
in a 2008 model and a 2009 model. It is common in the
industry to manufacture “split model year” vehicles.
See, e.g., Policy Positions of the American Association
of Motor Vehicle Administrators, available at: http://www.
aamva.org/aamva/DocumentDisplay.aspx?id={3A9338F2-
024D-460A-AB2B-F405394B9075} (last visited October 24,
2011). This makes sense in light of the delay involved in
the multi-stage manufacturing process not present in the
single-stage manufacturing process. See Federal Motor
Vehicle Standards; Roof Crush Resistance, 76 Fed. Reg.
15903-01 (proposed Mar. 22, 2011) (to be codified at 49
C.F.R. pt. 571). What the regulations do not appear to
contemplate, however, is for a manufacturer such as
Gulf Stream to assign a 2009 model year to a vehicle
designed for, with the characteristics of, and completed
during, its 2008 model year production cycle. Permitting8

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28 No. 11-1064
such a practice could result in precisely the kinds of
consequences the FTC sought to avoid: misleading
buyers as to the date of manufacture and hindering
market forces that lead to price cuts at the end of model
years. We therefore conclude that the district court erred
in concluding that federal regulations permitted Gulf
Stream to designate the Andersons’ Tourmaster as a
“2009” model.
We must still decide, however, whether the Andersons
can proceed on their IDCSA claim. The IDCSA iden-
tifies nineteen deceptive acts that sellers may not
engage in. IC 24-5-0.5-3(a). The Andersons contend that
Gulf Stream violated the IDCSA’s provision prohibiting
oral or written representations to the effect that “such
subject of a consumer transaction is of a particular stan-
dard, quality, grade, style, or model, if it is not and
the supplier knows or should reasonably know that it
is not.” IC 24-5-0.5-3(a)(2).
The IDCSA classifies deceptive acts into “incurable”
and “uncured” deceptive acts. An act is “incurable” and
immediately actionable without notice to the seller if
the seller committed the act with intent to defraud or
mislead. Perry v. Gulf Stream Coach, Inc., 814 N.E.2d 634,
647 (Ind. Ct. App. 2004). Otherwise, a deceptive act is
actionable if it is “uncured,” that is, if the manufacturer
does not respond within 30 days of receiving notice of
the deceptive act, in writing, with an “offer to cure.”
The Andersons contend that Gulf Stream committed
an uncured deceptive act by stating on its website that
the 2009 model year Tourmaster came “standard” with a

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No. 11-1064 29
425 horsepower engine when their “2009” Tourmaster
came with a smaller engine. They further argue that
they sent a letter notifying Gulf Stream that this was a
deceptive act on January 23, and that Gulf Stream did not
respond until March 27, more than 30 days after the
period provided in the IDCSA for uncured acts. Gulf
Stream maintains that it did not engage in a deceptive
act because the statement on its website was true
when made, because it could lawfully designate the
Tourmaster as a 2009 model, because it reserved the
right in its website to make modifications, and be-
cause the Andersons received at least one document in-
dicating that the Tourmaster had a 360 horsepower engine.
As to Gulf Stream’s first contention, the statement on
the website that 2009 Tourmasters came with a 425 horse-
power engine, which, according to the Andersons,
induced them to purchase the Tourmaster, was inac-
curate, at least with respect to the Andersons’ 2009
Tourmaster. Nor, for the reasons explained above, are
we convinced that federal regulations permitted Gulf
Stream to designate the Tourmaster as a 2009 model. The
reservation of rights also does not help Gulf Stream. It
would not be reasonable to construe the statement that
Gulf Stream “reserves the right to make changes in
prices, colors, materials, components and specifications
and discontinue models” to mean that Gulf Stream
could, without apprising the consumer, change the
size of something so fundamental to the vehicle
as the engine, especially in light of the fact that a 425
horsepower engine was the only option listed for 2009
models.

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30 No. 11-1064
There are, however, disputed issues of fact surrounding
the Andersons’ receipt of the MCO that preclude
granting summary judgment to either party. The
Andersons allegedly received two MCOs indicating
that their Tourmaster had a 360 horsepower engine.
Apple also received several documents listing the 360
horsepower engine, but he did not give those to the
Andersons, and he claims not to have realized that the
Tourmaster came with a 360 horsepower engine. Gulf
Stream argues that the Andersons cannot prevail
because Gulf Stream disclosed the engine’s horsepower
in the MCO. But an MCO is not a document that is in-
tended for consumers; it is intended for the state and
includes the horsepower of the vehicle (listed as “H.P.
(S.A.E.)”) among a list of other numbers that a consumer
would not necessarily know how to decipher (such as
VIN number, “date,” etc).
The Andersons claim that even if they received the
MCOs, they either did not see or did not understand
the notation, and that the size of the engine was not
included in any of the documents that a consumer would
reasonably look to in order to learn about the features
of a vehicle. Drawing all inferences in the Andersons’
favor, their reliance on Gulf Stream’s statements on
Gulf Stream’s website in forming a belief or expectation
as to the size of the engine they were getting was rea-
sonable, especially in light of the lack of any other
consumer-oriented documentation stating otherwise.
However, the Andersons are not entitled to summary
judgment on this claim because whether the Andersons
saw the MCO or should have understood from that

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No. 11-1064 31
document that the Tourmaster came with a 360 horse-
power engine is a disputed question of fact for the jury.
Gulf Stream also contends that the Andersons’ IDCSA
claim fails because the Andersons did not give proper
notice under the IDCSA. But the cases Gulf Stream relies
on are distinguishable. In both cases, the consumers did
not apprise the seller of the alleged deceptive act. See
A.B.C. Home v. Plummer, 500 N.E.2d 1257, 1261-62 (Ind. Ct.
App. 1986) (failed to identify the advertisement con-
taining the allegedly deceptive statement); Lehman v.
Shroyer, 721 N.E.2d 365, 368 (Ind. Ct. App. 1999) (consumer
failed to identify that price advertised was deceptive).
Here, in contrast, the Andersons’ January 23 letter
stated that: “The Andersons ordered the RV, in large
part, because it was advertised on Gulfstream’s website
as having a 425 HP [engine]. After delivery, the
Andersons discovered that the RV had only a 360 HP
engine.” This was enough to put Gulf Stream on notice.
C. Summary Judgment on Fraud and “Incurable”
Deceptive Act was Proper
Gulf Stream is entitled to summary judgment on the
Andersons’ remaining state law claims for fraud and for
Gulf Stream’s commission of an “incurable” deceptive act
under the IDCSA. Both require plaintiffs to prove that
the defendant acted with intent to deceive. See Doe v. Howe
Military School, 227 F.3d 981, 990 (7th Cir. 2000) (dis-
cussing elements of fraud); Perry, 814 N.E.2d at 647 (dis-
cussing uncured deceptive act under the IDCSA). The

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32 No. 11-1064
Andersons have not produced evidence to enable a rea-
sonable jury to find that Gulf Stream acted with an intent
to deceive. Gulf Stream gave Apple several documents
disclosing the correct horsepower of the vehicle. At
least one of those documents (the MCO) was expected to
make its way into the Andersons’ hands because it is
required by the state for titling purposes. Under these
facts, these disclosures are inconsistent with an intent
to deceive. While the record would enable a reasonable
jury to find that Gulf Stream was negligent, the
Andersons have not come forth with evidence that Gulf
Stream intended to deceive them. See Diersen v. Chi. Car
Exch., 110 F.3d 481, 488 (7th Cir. 1997) (“ ‘mere negligence’
is by no means the same as ‘intent to defraud’ ”).
III. CONCLUSION
The judgment of the district court is REVERSED IN
PART and AFFIRMED IN PART. Circuit Rule 36 shall apply
on remand.
11-3-11

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