Risner v. Regal Marine Industries, Inc. (8 F. Supp. 3d 959, 2014)

ORDER

KAREN L. LITKOVITZ, United States Magistrate Judge.

A bench trial was held before the Court on May 13 through 17, 2013, in this diversity action to resolve plaintiff Steve Ris-ner’s statutory and common law claims against defendant Regal Marine Industries, Inc. The lawsuit arises out of the parties’ dispute over a pleasure boat manufactured by Regal and acquired by plaintiff. Plaintiff asserts causes of action under Ohio law for breach of express and implied warranties; violation of the Ohio Consumer Sales Practices Act (CSPA), Ohio Rev.Code §§ 1345.01 et seq.; and negligent misrepresentation and intentional misrepresentation. The Court hereby enters its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a)(1).

I.Findings of Fact

A. Background information

1. Plaintiff Steve Risner (“Risner”) is a citizen and resident of Ohio. He is a graduate of The Ohio State University and has been in the construction business for the last 42 years. For the past 20 years he has owned a general contracting company which builds commercial and industrial buildings, schools and hospitals, with projects ranging from $10,000.00 to $130,000,000.00. Plaintiff has experience formulating deals with subcontractors as well as experience with bid situations and complicated contracts.

2. Plaintiff also has experience operating construction equipment, including bulldozers, backhoes and cranes.

3. Plaintiff had boated with friends and operated friends’ boats on Lake Cumberland in Kentucky for ten years as of 2009. He planned to retire in 2010 and began shopping for boats in 2009.

4. Plaintiff planned to dock his boat at a resort called Conley Bottom at Lake Cumberland. The boating season in the Lake Cumberland area generally runs from mid-April until some point in October and there are three major boating holidays during the season: Memorial Day, Fourth of July, and Labor Day.

5. Defendant Regal Marine Industries, Inc. (“Regal”) is a corporation organized and existing under the laws of the state of Florida with its principal place of business in Florida.

6. Regal is in the business of manufacturing boats. Regal authorizes a dealer to market and sell its boats to the public pursuant to a sales and service agreement (“SSA”), which governs the relationship between Regal and the dealer. Regal sells boats directly to dealers, and dealers set the retail prices for the boats they sell to customers.

7. At all relevant times, Duane Kuck was the president and part-owner of Regal in charge of sales and marketing, product development, engineering and finance. All vice-presidents of the company reported directly to him.

8. At all relevant times, Marty Clement was Regal’s vice-president in charge of materials, customer support, and information technology (“IT”).

9. Duffy Stenger was, at all relevant times, Regal’s' vice-president of sales and marketing. All regional sales managers reported directly to him.

10. Sigurd Rudholm was Regal’s Midwest Regional Sales Manager from 2005 to March 2011.

B. Regal’s website

11. Regal’s mission statement is found at Regal’s website, www.regalboats. com. The website at all relevant times stated: “With God’s help and a Steadfast Commitment to Integrity, We will Develop a Team of Exceptional People and Relationships to Provide Exceptional Customer Satisfaction.” Exh. PX-1 at 9.

12. At all relevant times, the website listed certain Regal awards under a section captioned “JD Power Awards.” The middle paragraph of this section reads, in part: “Receiving these recognitions again ... demonstrates total dedication by Regal’s employees and dealer network to our highest priority: creating an exceptional boating experience for our customers.” Exh. PX-1 at 4. “Customers” as used in this section refers to Regal boat owners.

13. Another section of Regal’s website is captioned “REGAL ONE — THE PROMISE OF O.N.E.” This section of the website includes the following statements:

When your professional mission is to take care of people, you develop a philosophy designed to ensure that Regal owners experience an exceptionally high level of customer service and attention. Regal’s Owner Nexus Experience must be working considering this compelling body of evidence.

How do we keep such high standards and earn such lofty awards? One customer at a time. A call to a factory-trained Regal dealer is typically the only call our customers ever have to make. But when the need for factory assistance arises, we’re there, handling each opportunity with first-call resolution to get you back on the water as quickly as possible.... At Regal, customer satisfaction is more than a promise. It’s in our DNA.

Exh. PX-1 at 12-13.

C. Land N Sea

14. Land N Sea (“LNS”) was a boat dealership which Mark Williams opened in Cincinnati, Ohio in 2005. LNS was an authorized Regal boat dealer from June 2005 to July 2010. Regal had no involvement in LNS’s day-to-day operations.

15. On May 12, 2008, LNS and Regal entered into a new three-year SSA whereby LNS would continue as a Regal dealer. Exh. PX-76. Stenger of Regal signed the SSA on December 9,2008. Exh. PX-76 at 9.

16. A Regal dealer finances Regal boats through a third-party financing company with whom the dealer has a contractual inventory financing agreement called a floor plan agreement.

17. LNS had a floor plan agreement with GE Commercial Distribution Finance Corporation (“GE”), which was known as LNS’s floor plan lender. Exh. PX-76 at 3, ¶ 5.2.

18. Under LNS’s floor plan agreement, GE had a security interest in all boats that it financed for LNS, and LNS was required to pay GE upon the sale of any financed boat.

19. As part of the floor plan agreement, GE would periodically audit and monitor LNS’s financial stability.

20. On August 19, 2008, GE sued LNS in Hamilton County, Ohio, alleging that LNS had breached the floor plan agreement, including by selling boats out of trust (“SOT”).

21. SOT means the dealer has financed the manufacture of a boat through a floor planner; has delivered the boat to the customer who ordered the boat; has received payment for the boat from the customer; but has not paid the floor planner who financed the boat.

22. It is an indication of financial distress when a dealer is in an SOT situation and has exceeded its line of credit.

23. If the floor planner does not receive payment upon the sale of a boat it has financed, then the dealer is in breach of the floor plan agreement. In such instances, the floor plan lender has the right to terminate the dealer’s floor plan agreement or to negotiate a forbearance agreement with the dealer.

24. As a result of the Hamilton County court case, on December 18, 2008, LNS and GE entered into a Consent Arbitration Award in favor of GE and a forbearance agreement (“Forbearance Agreement”). Exhs. PX-77, PX-78.

25. The amount of LNS’s SOT balance as confirmed in the Forbearance Agreement was $842,182.90. Exh. PX-77 at ¶ 2.

26. GE had terminated LNS’s floor plan as a result of LNS’s default. GE agreed to reinstate the credit line as consideration for LNS’s adherence to the terms of the Forbearance Agreement. Exh. PX-77 at ¶ 6A.

27. The terms of the Forbearance Agreement included a Consent Judgment which GE could enforce against LNS in the event LNS breached the terms of the Forbearance Agreement. Exh. PX-77 at ¶ 5.

28. The Forbearance Agreement also included an SOT balance repayment schedule covering the period November 2008 through October 15, 2009, whereby LNS would repay GE the amount LNS had realized for SOT. Exh. PX-77 at ¶ 3. Failure to adhere to the repayment schedule would constitute a default and result in termination of the Forbearance Agreement.

29. Rudholm of Regal knew about the existence of the Forbearance Agreement, but not the details of LNS’s financial situation which led to the Forbearance Agreement. Rudholm testified that the Forbearance Agreement did not mean to him that a dealer was necessarily in bad economic shape; rather, GE had “changed the rules” in the face of the global economic crisis and had begun enforcing rules it had not previously enforced.

30. Stenger of Regal would consider an SOT balance of $342,182.00 to be a serious matter and a financial red flag. However, he testified that Regal would continue a relationship with a dealer operating under a forbearance agreement with a lender and rely on the lender to monitor the situation.

31. There is no evidence that Regal knew at the time LNS entered into the Forbearance Agreement that LNS had sold boats out of trust. Williams testified that Regal knew of the “problem” he had with GE that led to the Forbearance Agreement and of the Forbearance Agreement itself, but he did not know if Regal was aware of the details of his financial situation and no individual from Regal testified that he knew the specifics of Williams’ financial circumstances.

32. Customers who purchased a Regal boat could be negatively impacted if a Regal dealer went out of business.

D. The aborted model year 2007 Regal boat deal with LNS

33. Plaintiff began shopping for boats in 2009 by attending boat shows in Cincinnati and Florida to research the quality of different manufacturers, dealerships and boats and to determine the type and size of boat he wanted as well as the equipment for the boat.

34. In the course of researching boats, plaintiff also visited dealerships and picked up their brochures and literature to read about available boats and options.

35. One of those dealerships was LNS, which plaintiff first visited in April of 2009. While there, Williams provided plaintiff with Regal brochures and literature.

36. Plaintiff had no direct contact with any Regal employee before April of 2009. He had only read Regal brochures, which asserted that customer satisfaction was Regal’s primary objective, and he liked Regal’s mission statement and the company’s boats.

37. Regal’s mission statement contained in the Regal brochures “seemed to be a little more sincere” to plaintiff. In particular, the following statement in Regal’s 2009 brochure gave plaintiff assurance that Regal was a reputable company with which to deal: ‘With God’s help and a steadfast commitment to integrity, we will develop a team of exceptional people and relationships to provide exceptional customer satisfaction.” Exh. PX-1A.

38. In the course of researching boats and reviewing the Regal brochures, plaintiff highlighted the following words in a brochure section entitled “Legacy of Commitment”: “As the current stewards of the Regal brand, we are fully committed to the legacy and founding principles of Regal, and understand that owners’ satisfaction is the single greatest charge we have. We are grateful for your business but even more appreciative of the opportunity to exceed your expectations during your ownership experience.” Exh. PX-1A.

39. Plaintiff visited LNS in mid-April 2009 and attempted to purchase from LNS a 2007 Regal 3350 boat in LNS’s inventory. According to plaintiff, he reached a deal with LNS and returned the following day with a check to purchase the 2007 boat at the agreed upon price. Williams was not present when plaintiff came to LNS but Williams’ son was there and gave plaintiff the paperwork for the deal, which inflated the agreed-upon price by $10,000.00. Plaintiff spoke with Williams on the phone about the price, which Williams would not change. Plaintiff refused to purchase the boat at the inflated price and left without closing the deal.

40. Williams testified that he did not recall plaintiff being upset when he came to purchase the boat. Rather, Williams testified that there was never an agreement on a 3350 boat because plaintiff kept changing his mind as to what he wanted. Williams’ testimony on this point is not credible. Williams’ testimony regarding the transaction was very vague, and although Williams purportedly recalled that plaintiff changed his mind regarding his choices for the boat, Williams provided no specifics regarding the parties’ negotiations.

41. The failed boat deal raised a red flag for plaintiff about LNS.

E. Plaintiffs April 2009 encounter with Regal

42. Following the failed deal, plaintiff continued to search for a boat and visited several dealers in the Lake Cumberland area. He did not return to LNS around that time.

43. After the deal for the model year 2007 Regal boat fell through, plaintiff had his first encounter with a Regal representative. Regal Regional Sales Manager Rudholm telephoned plaintiff in April 2009 and persuaded plaintiff to give LNS and Regal another chance to gain his business. Rudholm told plaintiff that Williams had asked Rudholm to call plaintiff on Williams’ behalf. Rudholm testified at trial that he first learned of plaintiffs interest in a Regal boat from an individual named David Hewlett at a dealership called Hilltop Marine.

44. Plaintiff told Rudholm that he was disappointed in Williams and did not want to return to LNS. Rudholm assured plaintiff that LNS had been a reputable Regal dealer for a number of years and that plaintiff would not regret buying a Regal boat through LNS. Rudholm assured plaintiff that LNS was capable of servicing plaintiff and putting a deal together.

45. To persuade plaintiff to keep his business with LNS, Rudholm told plaintiff about Regal’s mission statement and that customer satisfaction was Regal’s top priority. Rudholm spoke about Regal’s J.D. Power awards, and he told plaintiff that Regal boats were top quality and that a Regal boat would be a good fit for plaintiffs needs. Rudholm also told plaintiff that Regal could service his boat, plaintiff would receive a quality boat, and his experience would exceed his expectations.

46. Rudholm asked plaintiff if he would reconsider talking to Williams, and plaintiff responded that he would do so if the occasion arose and there was a boat that fit his needs.

47. Rudholm knew as of April 2009 that LNS had a forbearance agreement with floor plan lender GE, but he did not tell plaintiff about the agreement.

48. In the spring of 2009, LNS was in general compliance with the Forbearance Agreement. As of April 2009, Clement, Regal vice-president of material and customer support, had received no red flags from the service side of LNS for the 2008-09 time period.

49. During 2009, GE had sent a financial audit team to LNS every 90 days. Throughout this time period, Regal was building boats for LNS to sell. GE was approving LNS credit on Regal boats manufactured during this time period.

50. According to Stenger, if a dealer is in forbearance, Regal would continue its relationship with the dealer and expect the lender to monitor the situation; if the floor plan lender is continuing to extend credit, then Regal is obligated to continue to do business with the dealer.

51. Rudholm believed that when he talked to plaintiff about buying a boat in April 2009, there was nothing he needed to discuss with plaintiff about LNS’s financial position. Rudholm trusted GE’s lead in determining whether LNS was financially capable of staying in business, and GE was still financing boats for LNS at that point in time. Further, although LNS had a forbearance agreement with GE at the time Rudholm spoke with plaintiff, Rudholm testified that every other dealer in the boating industry likewise had a forbearance agreement during that time period given the economic conditions in the industry.

52. LNS had a fairly high “Customer Satisfaction Index” score as measured by an independent marine industry standard in April 2009 through August 2009.

53. As of April 2009, Rudholm believed it to be true that Regal built good boats and stood behind its boats.

54. Plaintiff was persuaded to continue talking with LNS again after the failed model year 2007 boat deal because plaintiff trusted Rudholm, plaintiff thought he was a nice individual, and plaintiff thought his comments were sincere.

55. Plaintiff had no conversations with anyone at Regal after the April 2009 conversation through August 11, 2009.

F. The 2008 boat purchase and dispute

56. Following his conversation with Rudholm in April 2009 until the end of August 2009, plaintiff explored buying a Regal and other manufacturers’ boats from other dealers. During this time frame, Williams at LNS communicated with plaintiff by email and phone about different types of boats and plaintiff discussed these boats with Williams.

57. Plaintiff told Williams that he had shopped at a number of dealers around the country and did not know exactly what he wanted in a boat. Plaintiff told Williams he was looking at manufacturers other than Regal and was researching various boats.

58. On July 31 and August 3, 2009, plaintiff and Williams discussed various Regal 3760 boats that plaintiff might be interested in purchasing. Exhs. PX-4, PX-5.

59. Williams and plaintiff then discussed a model year 2008 Regal 3760, a 38-foot boat with no hours on the engine.

60. Williams informed plaintiff that the Manufacturer’s Suggested Retail Price (“MSRP”) for the boat was $357,000.00 and the sale price was $219,000.00. Plaintiff does not know how Williams arrived at the MSRP.

61. On August 10, 2009, plaintiff agreed to a sales price of $215,000.00 plus tax and fees ($230,345.00) for the model year 2008 Regal 3760, a 38-foot boat, hull number RGMTA355H708, short hull number TA 355 (the “2008 boat”). See Exh. PX-8. Plaintiff gave LNS a $10,000.00 deposit on the boat after viewing pictures of it.

62. Williams formulated a sales agreement which included a breakdown of the equipment on the boat. Exh. PX-10.

63. Plaintiff delivered to Williams a check in the amount of $220,345.00 dated August 11, 2009, for final payment on the 2008 boat. Exh. PX-9.

64. Before writing the check and handing it to Williams, plaintiff took Williams at his word that the MSRP was $357,000.00. Plaintiff did not check the price on the internet. Plaintiff testified that he trusted Williams at this point.

65. When the 2008 boat arrived, plaintiff requested documentation from Williams regarding the MSRP.

66. Plaintiff claims that on multiple occasions prior to putting his deposit down and making final payment on the boat, he requested that Williams provide him with written verification of the quoted MSRP and a “build sheet,” which is a document that identifies the specifications, equipment, and other features of the boat and adds up to the MSRP total. Plaintiff testified that he did not have a problem with paying for the boat before he saw the build sheet but he wanted documentation of the deal, including a list of the cost of the equipment and the MSRP, before plaintiff cashed his check. Plaintiff did not obtain the build sheet and MSRP before Williams cashed the check.

67. Plaintiff testified that he paid Williams in full before obtaining the MSRP and build sheet because Williams told plaintiff if he did not pay him in full someone else was going to buy the boat.

68. Plaintiff first requested the factory build sheet in writing from Williams by email dated August 19, 2009, which read in full: “Factory build sheets? ?” Exh. PX-11. This was eight days after plaintiff had delivered final payment on the 2008 boat.

69. When Williams did not provide the information plaintiff requested, plaintiff called Rudholm, who provided information to plaintiff the next morning showing an MSRP of $316,00.00.

70. At this point, following the failed deal involving the model year 2007 Regal boat and after Rudholm had given plaintiff the correct MSRP showing that Williams had inflated the cost of the model year 2008 boat by $40,000.00, plaintiff believed that Williams was not reputable and plaintiff did not trust him.

71. Plaintiff contacted Williams and proposed that Williams sell the 2008 boat, take his commission, and give plaintiff the rest of his money back, which plaintiff expected would be approximately $210,000.00.

72. Williams sent an email to plaintiff on August 21, 2009, concerning their conversations regarding the proposed resale of the 2008 boat and asked plaintiff for his thoughts on the matter. Exh. PX-12.

73. On August 23, 2009, plaintiff told Williams in an email not to title the 2008 boat until he decided if he was going to accept it and said that Williams still had not provided him with the factory build sheet, which he asked Williams to forward to him. In response, Williams said Regal did not have the build sheet plaintiff was referring to and that Williams had listed the boat for $225,000.00 and called some prospective purchasers as plaintiff had suggested (apparently in an effort to sell the boat to a third party). Exh. PX-13.

74. Plaintiff emailed Williams on August 28, 2009, stating he had not received any documentation from Williams identifying the cost breakdown for the boat and questioning the MSRP Williams had provided based on information provided by other Regal dealers. Exh. PX-15.

75. Williams provided plaintiff with the sales invoice on the 2008 boat, which Williams had signed but plaintiff had not. Exh. PX-10.

76. Williams testified that when the boat arrived, plaintiff did not like the appearance of the boat and wanted a joystick control and a feature known as a through-hull exhaust.

77. Plaintiff testified that he was dissatisfied with his purchase of the 2008 boat because he believed Williams had quoted an MSRP for the boat that was inflated by $40,000.00 (see Exh. PX 88 at Regal 000032), and plaintiff received a smaller discount on the purchase price of the boat than he believed he would get ($80,000.00 versus $120,000.00).

78. Williams and plaintiff disputed who would take ownership of the 2008 boat, which had been shipped from Regal and was at LNS. No one from Regal was involved in the dispute initially.

79. Plaintiffs counsel wrote a letter to Williams on August 25, 2009, in which counsel stated that plaintiff was not pleased when he received pictures of the 2008 boat and that plaintiff confirmed his displeasure with the boat upon inspection after it was delivered to LNS’s warehouse because he suspected it was a repossessed boat. Exh. DX-8. The letter makes no mention of the MSRP or of plaintiffs concerns with the pricing of the boat. Counsel stated that plaintiff did not want to accept delivery of the boat because it appeared likely it was a repossession and not a delivery from a dealer. Id.

80. Plaintiff testified that other than the issue with the MSRP, there was no issue with the 2008 boat of which he was aware.

81. When plaintiff learned the true MSRP for the 2008 boat, he believed Williams was “not reputable” and he did not trust him.

82. Other than providing the MSRP, Regal was not involved in any of the discussions between plaintiff and Williams about the sale of the 2008 Regal boat or the MSRP.

88. As of September 8 and 9, 2009, it was Regal vice-president Stenger’s understanding that plaintiff was unhappy with the 2008 boat because of the MSRP issue, the color of the boat, and the absence of a joystick. Plaintiff testified that “[t]o [his] knowledge” he never talked about color combination and lack of power in the boat with Stenger.

84. Plaintiffs testimony regarding the reason for his dissatisfaction with the 2008 boat purchase is not fully credible. Plaintiff, an experienced and sophisticated businessman, testified that the MSRP is critical to a deal such as the boat purchase because an individual bases his deal on the MSRP and it is the benchmark for the purchase price. Thus, one would reasonably expect that plaintiff would obtain verification of the MSRP before making payment on the boat, particularly because plaintiff knew there was reason to be cautious when dealing with Williams in light of Williams’ attempt to inflate the purchase price of the 2007 boat. Plaintiff, however, testified that he took Williams at his word, made a deal with Williams, and paid the entire amount due on the boat before obtaining verification of the MSRP, the critical component of the deal. In view of these circumstances, and in light of the failure by plaintiffs counsel to document the MSRP issue in his August 25, 2009 letter to Williams outlining plaintiffs concerns with the 2008 boat deal and focusing on plaintiffs displeasure with the boat after he viewed it (Exh. DX-8), plaintiffs testimony that the only issue he had with the 2008 boat deal was the inflated MSRP is not credible.

G. The settlement negotiations

85. LNS entered into settlement negotiations with plaintiff to reach a resolution regarding the 2008 boat. In order to resolve the dispute over the boat, plaintiff suggested to Williams in August 2009 that Williams sell the 2008 boat, that Williams receive a sales commission, and that Williams refund to plaintiff $210,000.00 of the $230,000.00 purchase price for the boat.

86. By August 2009, plaintiff believed that LNS had received an “F” rating from the Better Business Bureau (“BBB”), and plaintiff had seen complaints about LNS’s deceptive practices related to warranty, sales and services on the internet. Many matters raised red flags for plaintiff about LNS, and as far as he could tell LNS was in a great deal of financial trouble. Plaintiff was suspicious of Williams.

87. The negotiations between plaintiff and Williams were ongoing as of late August 2009, at which time plaintiff called Rudholm at Regal and told him that he and Williams had reached an impasse over how to handle the 2008 boat. Plaintiff testified that when plaintiff explained the idea of Williams selling the boat and keeping a commission, Rudholm said that probably would not happen. Plaintiff contends that Rudholm explained that even if Williams sold the boat to a third party, plaintiff would not receive his money back on the boat. According to plaintiff, Rudholm explained that the only option plaintiff had to make himself whole was to let Williams sell the 2008 boat, keep the commission, and apply the proceeds from the sale toward a new boat for plaintiff. Plaintiff, however, continued to explore the option with Williams of selling the boat to a third party.

88. Plaintiff testified that in August 2009, Rudholm told him that LNS had no money. Rudholm testified that he believed LNS was in good financial standing at that time.

89. As of September 4, 2009, while the dispute over ownership of the 2008 boat was ongoing, plaintiff had conveyed to Regal his opinion that LNS was not going to survive and its building was for sale, and that LNS had received poor reviews on the BBB and Dunn and Bradstreet sites. Exh. PX-16. Plaintiff also believed that LNS was disreputable. According to plaintiff, Rudholm had indicated to him that LNS was having problems.

90. Plaintiff sent a number of emails to Rudholm and Stenger about the 2008 boat situation. Stenger responded to plaintiff on September 8, 2009, by email stating: “I have reviewed the emails you sent. I believe the best course of action would be to have Mark [Williams] sell the 3760 and put you into a new one just the way you want it. It appears that Mark [Williams] is willing to work with you to make this happen.” Exh. PX-17.

91. The following day, plaintiff and Williams exchanged emails regarding a settlement deal. Plaintiff told Williams that his previous offers to sell the boat on plaintiffs behalf were not acceptable because plaintiff did not own the boat. Plaintiff suggested to Williams that he either: (1) sell the boat, take his commission, and give plaintiff the balance, or (2) arrange a deal on a “properly equipped” 2010 boat that allowed plaintiff to pay a reasonable and fair difference. Exh. PX-18.

92. Rudholm did not get involved in the parties’ impasse until September 23, 2009, and when he did get involved it was at the request of plaintiff. Exh. PX-19 at PLF 99. In an email he sent to plaintiff and Williams on that date, Rudholm outlined the beginning of a framework for a settlement agreement on the 2008 boat. Id. Rudholm noted that plaintiffs objective was to sell the boat and he made no mention of exchanging the 2008 boat for a new boat. His only “strong recommendation” was that someone should obtain insurance on the boat.

93.Plaintiffs testimony that Rudholm told him he would not receive his money back if Williams sold the 2008 boat to a third party is not credible. Plaintiff offered no reasonable explanation as to why, even if Williams was experiencing financial problems and had no cash on hand, he would be unable to refund to plaintiff his money from any proceeds of the sale of the 2008 boat to a third party. Further, the evidence shows that plaintiff and Williams pursued this option throughout the negotiation process, even after plaintiff contacted Rudholm about the impasse he and Williams had reached in their negotiations. The August 21, 2009 email Williams sent to plaintiff discloses that Williams and plaintiff had been discussing resale of the 2008 boat, and Williams proposed refunding the price of the boat less a brokerage fee and certain other costs to plaintiff. Exh. PX-12. As late as October 13, 2009, plaintiff continued to pursue the option of Williams selling the 2008 boat and returning the money to him. Exh. PX-21 at PLF 171. Moreover, none of the numerous emails Williams and plaintiff exchanged on this matter indicated that a sale of the boat and a refund of plaintiffs money was not feasible. Finally, the proceeds of the sale of the 2008 boat were applied toward the 2010 boat, and plaintiff offered no reasonable explanation at trial for why payment of those proceeds directly to him was not an equally feasible option.

94. After Rudholm sent his initial September 23, 2009 email, he conducted many joint and individual phone conferences with the parties in an effort to get them on the same page regarding a settlement on the 2008 boat. Exh. PX-26. Both plaintiff and Williams considered Rudholm’s role in the settlement negotiations to be that of “mediator” between plaintiff and Williams, and Rudholm’s involvement was essential to plaintiff entering into a settlement deal with LNS. The actual deal that was ultimately reached was between LNS and plaintiff.

95. By email dated October 13, 2009, Williams provided plaintiff with a price quote for a new model year 2010 Regal 3760. Exh. PX-20.

96. In an email dated October 22, 2009, Rudholm informed plaintiff and Williams that he had spent over three hours on the phone with the parties, and he set forth the proposed financial structure and terms of an agreement. Exh. PX-26. Rudholm copied Stenger on the email.

97. Later that same date, plaintiff sent an email to Williams clarifying some misunderstandings Rudholm had about the financial aspects of the deal. Exh. PX-27 at PLF 102-103. Plaintiff copied Rudholm on the email.

98. Rudholm, plaintiff and Williams had a conference call during the settlement process to resolve issues which included taxes and rebates.

99. On November 17 and 18, 2009, plaintiff and LNS executed a settlement agreement and release (“Settlement Agreement”), whereby LNS placed an order on behalf of plaintiff with Regal for a model year 2010 Regal 3760 boat (Hull Identification Number RGMTA426B010, short hull number TA 426) (the “2010 boat”). Exh. PX-32. Regal was not a party to the Settlement Agreement.

100. Plaintiff signed the Settlement Agreement on November 18, 2009, after reading it and reviewing it with his attorney, who was satisfied with the Settlement Agreement. Exh. PX-S2 at PLF 251.

101. Under the terms of the Settlement Agreement, Williams was to sell the 2008 boat for not less than $198,000.00, and that amount was to go to Regal towards payment for the 2010 boat. Proceeds in excess of $198,000.00 were to be divided between the parties pursuant to a brokerage agreement, with LNS receiving 66.67% and plaintiff receiving 33.33%. Exh. PX-32 at ¶¶ 5, 6.

102. The Settlement Agreement included the following release provisions at ¶¶ 13 and 14:

It is the intention of the Parties in executing this Agreement that this Agreement shall be effective as a full and final accord and satisfaction and general release from any and all matters arising from, based upon or related to the Purchase of the 2008 Regal 3760, its sale by Land N Sea and the subsequent purchase by Risner of the 2010 Regal 3760.

The Parties hereby fully release and forever discharge one another and their respective insurers, predecessors, successors, heirs, assigns, associates, affiliates, parent and subsidiary corporations, owners, stockholders, partners, attorneys, representatives, agents, officers, directors and employees, past, present and future, from and on account of any and all claims, demands, actions, causes of action or charges in favor of either party which in any way relates to or arises from or in connection with the subject Purchase of the 2008 Regal 3760, its sale by Land N Sea and subsequent purchase by Risner from Land N Sea of the 2010 Regal 3760.

Exh. PX-32.

103. The Settlement Agreement also includes an integration clause at ¶ 18 stating that the Settlement Agreement “contains the entire agreement and understanding between the Parties concerning the subject 2008 Regal 3760, its sale by Land N Sea and the subsequent purchase by Risner from Land N Sea of the 2010 Regal 3760.” Exh. PX-32.

104. By signing the Settlement Agreement, LNS intended to resolve all issues involving the 2008 boat and the 2010 boat.

105. Plaintiff had no communication with Regal after the parties reached the Settlement Agreement in November of 2009, during the manufacturing process, and prior to the delivery of the boat to LNS on May 20, 2010.

H. LNS’s financial difficulties

106. Williams had been in general compliance with the Forbearance Agreement from the time it was executed in December 2008 through the end of the 2009 boating season.

107. Around February 2010, LNS faced a financial crisis. In a letter dated February 25, 2010, Williams informed Regal of financial problems LNS was experiencing. Exh. PX-79. Williams informed Regal that the entire amount of the SOT balance LNS owed GE had been repaid and that its Forbearance Agreement with GE had been extended past March 1, 2010, but that GE had suspended LNS’s line of credit until the funds on the short sale of a boat were paid in full. Williams sought assistance from Regal including a loan/advance from Regal of $60,000.00, of which $15,000.00 would go toward making Williams current on his taxes.

108. A few days after the letter, Williams, Kuck and Stenger had a face-to-face meeting in Florida during which Williams requested assistance, including rebates from Regal. Williams sent a proposal for assistance to Stenger after the meeting. Exh. PX-80. Regal did not provide the requested financial assistance but did speed up its rebate program.

109. Despite the information provided by Williams, Rudholm testified that he believed LNS was in good financial standing until June 2010 because GE had audited LNS’s books 60 to 90 days prior to June 2010 and LNS passed the audit. Rudholm knew as of February 2010 that LNS was experiencing financial difficulties, but he testified that he relied on GE to monitor LNS’s finances.

110. LNS continued as a Regal dealer until July 14, 2010, when Regal’s counsel, Brooks Rathet, notified counsel for Williams that Regal was invoking the right to terminate the SSA because LNS had sold inventory out of trust. Exh. PX-85. According to Kuck, the primary reason Regal terminated LNS as a dealer as of that date was because GE had notified Regal it was terminating LNS’s floor plan, without which LNS had no way forward. LNS stayed in business for six months following the termination letter, finally ceasing operations in December 2010.

I. The manufacture of the 2010 boat

111. Regal accepted the sales order for the 2010 boat as an order to be financed through the floor plan lender, GE. Exh. PX-89. Regal subsequently received a credit approval number from GE. Exh. PX-89A at 7. According to Stenger, this meant that GE had agreed to fund plaintiffs boat in accordance with the terms stated on the shipper’s invoice and that plaintiff would receive the boat, which he in fact did.

112. Pursuant to the Settlement Agreement, delivery of the 2010 boat was anticipated on or before April 1, 2010, subject to availability from Regal and delays beyond the control of LNS. Exh. PX-32 at PLF 248.

113. In January 2010, plaintiff and Williams exchanged communications and finalized the features and interior colors of the 2010 Regal 3760 boat Regal would manufacture.

114. In late January, Regal pressed Williams for plaintiffs selections, stating it was ready to proceed with the scheduled manufacture of the boat. Exh. PX-90 at Regal 000078.

115. In response, Williams asked Regal if the delivery date could be moved back to middle or late April because that delivery time frame would work best for him. Exh. PX-90 at 000078. Regal stated that was a problem because the boat was scheduled for manufacture, the date had already been moved back once or twice, and Regal understood it would be able to build the boat as soon as possible under the deal that had been reached between Williams and plaintiff. Exh. PX-90 at Regal 000077. Williams then submitted plaintiffs color and option selections.

116. Plaintiff chose white vinyl and two-tone beige for the cockpit interior and lava rock for the kitchen galley. Exh. PX-33.

117. The planned finish date for the 2010 boat was March 17, 2010. According to the Regal hull file, the 2010 boat was “yellow tagged” on March 17, 2010, meaning it was near the end of production but was not yet ready to be shipped due to a defect or back-ordered part. The boat was “white-tagged,” meaning that it was cleared to be shipped, on April 12, 2010, following a change order.

118. By email dated April 2, 2010, Williams advised plaintiff that he had scheduled the boat for pick-up by April 14 and that it would then be prepped and sent to Lake Cumberland by month’s end. Exh. PX-36.

119. Between April and May 2010, plaintiff continued to communicate only with Williams at LNS regarding the status of the boat.

120. On May 17, 2010, the boat left Orlando, Florida, and Regal transferred the 2010 boat to LNS as indicated by the Manufacturer’s Statement of Origin (“MSO”) (Exh. PX-69) and the boat arrived at LNS in Cincinnati, Ohio, on May 20, 2010. This was approximately one month after payment in full had been made by plaintiff and over one month after the boat was white-tagged for delivery. Plaintiff did not communicate with Regal about the delay, and the delay was not attributable to Regal.

121. As a general proposition, a boat does not leave Regal’s facility until it is paid in full.

122. Plaintiff paid no money directly to Regal for the 2010 boat. Pursuant to the Settlement Agreement, $198,000.00 of the proceeds of the sale of the 2008 boat went toward the purchase of the 2010 boat. Exh. PX-32. In April 2010, plaintiff made a final payment of $54,215.00 for the boat by check made payable to LNS. Exh. PX-39.

123. The 2010 boat was covered by Regal’s “Limited Warranty,” which includes a “Limited General Warranty” and several other types of limited warranties. Exh. DX-93.

124. The Limited General Warranty states:

In addition to above Hull warranties, Regal warrants to the original purchaser of this boat if purchased from an authorized Regal dealer, that the dealer or Regal will repair or replace any parts found to be defective in materials or workmanship for a period of one (1) year from the date of delivery, subject to all exceptions, limitations and conditions contained herein.

Exh. DX-93.

125. The Limited Warranty includes a number of exceptions, including “[a]c-cessories and items which were not part of the boat when shipped from the Regal factory,” “loss of time,” and “inconvenience.” Exh. DX-93.

126. The Limited Warranty also includes customer obligations that are conditions precedent to the availability of any benefits thereunder. Exh. DX-93.

127. Only the Customer Service Manager of Regal can waive the terms, conditions, limitations and disclaimers in the Limited Warranty, and any such waiver must be in writing. Exh. DX-93.

128. The Limited Warranty states in all capital letters:

General Provisions: All general, special, indirect, incidental and/or consequential damages are excluded from this warranty and are totally disclaimed by Regal. It is the interest of the parties that the owner’s sole and exclusive remedy is the repair or replacement of the vessel or its allegedly defective component parts and that no other legal or equitable remedies shall be available to said owner. Some states do not allow the exclusion of incidental or consequential damages so the exclusion of incidental or consequential damages may not apply to you. This is a limited warranty; Regal makes no warranty, other than contained herein; to the extent allowed by law any warranties of merchantability or fitness for a particular purpose arising in state law are expressly excluded to the extent allowed by law, any implied warranty of merchantability is limited to the duration of this Limited Warranty. All obligations of Regal are specifically set forth herein. Regal does not authorize any person or dealer to assume any liability in connection with Regal boats....

Exh. DX-93.

129. The Limited Warranty also states: “Regal’s obligation with respect to this warranty is limited to making repairs to or replacing the defective parts and no claim for breach of warranty shall be cause for cancellation or rescission of the contract or sale for any boat manufactured by [Regal].” Exh. DX-93.

130. By May 20, 2010, following delivery of the boat to LNS, Williams had informed plaintiff that there were two issues with the boat: (1) the EVC (electronic vessel torque control), which was a joystick-type option on the boat, did not work, and (2) the interior upholstery colors were not correct. The EVC is a second guiding system for the boat, without which the boat can be guided manually. Plaintiff is capable of guiding a boat manually and safely without the EVC system. The EVC system was meant more for plaintiffs wife.

131. As of May 2010, the EVC system and the cockpit colors were the only physical problems with the boat of which plaintiff was aware, although the boat had not yet been placed in the water. It was still at LNS, and plaintiff and LNS were “going back and forth” about repairs and who would assume responsibility for them.

132. By May 30, 2010, plaintiff had reported to Rudholm via emails to Williams that LNS had ordered the wrong upholstery color for the cockpit interior, which was not Regal’s fault and was not a warranty issue. Plaintiff had also spoken to Rudholm on the telephone about the issue. The seats were not covered by Regal’s warranty. Regal had also been advised in a June 2, 2010 email that Williams had agreed to make adjustments to the interior. Exh. PX-45 at PLF 55.

133. Plaintiff also spoke to Rudholm about the EVC system after the boat came in. Rudholm told plaintiff that a Volvo representative would have to address that issue.

134. Due to some delays with the boat, Williams told plaintiff that he would add trim tab indicator lights and gasoline for the boat at no additional cost to plaintiff.

135. Plaintiff initially informed Williams on June 2, 2010, that changing the seating in the cockpit area and on the Europad interior (the sun pad on the back of the boat which constitutes approximately one-quarter of the total interior) would be very expensive and time consuming; therefore, plaintiff did not consider that to be a viable option under the circumstances. Plaintiff informed Williams that he would assume responsibility for adding two-tone vinyl trim to the seats and Europad at a later time. Exh. PX-45 at PL 54.

136. In that same email, plaintiff stated that in exchange, he thought it would be reasonable for Williams to refund the cost of some extra items; include the extra handrails that had been ordered, with plaintiff to approve their location before they were installed; provide a full tank of gas for the boat; provide a knowledgeable Regal representative to meet with him at Conley Bottom to give him an orientation; change the Europad to white vinyl; install trim tab indicator lights; and reinstate the extended warranty program that was initially offered. Exh. PX-45 at PLF 54.

137. Plaintiff did not copy Regal on this email to Williams, and Regal was not involved in the negotiations between plaintiff and Williams at this point.

138. Tom Diekmeyer, LNS’s service manager, sent an email to plaintiff dated June 15, 2010, asking plaintiff if LNS was to deliver the 2010 boat to Conley Bottom at Lake Cumberland that week. Exh. PX-47 at PLF-201.

139. Plaintiff told Diekmeyer in response that he did not want to take possession of the boat until Williams had given him a clear summary of what was “going to be done to make it right.” Exh. PX-47 at PLF 201.

140. Diekmeyer cancelled the delivery that same date in response to plaintiffs directive that he did not want to take delivery of the boat. Diekmeyer asked plaintiff what LNS was supposed to be getting done and told plaintiff that the interior seating was in the hands of Regal. Exh. PX-47 at PLF 200.

141. Plaintiff responded by email later that same date. Plaintiff said that LNS had offered to install extra handrails he had requested; add trim tab indicator lights; include 100 gallons of fuel; and replace the Europad seating materials with the factory materials originally ordered. Plaintiff stressed that he had bought the boat from LNS, not Regal, and he expected to get a straight answer from LNS instead of being told that the matter was in Regal’s hands. Plaintiff wrote: “Please don’t tell me it is in Regal’s hands.... I DIDN’T BUY THE BOAT FROM REGAL.... I BOUGHT A REGAL BOAT FROM LANDNSEAÜ” Plaintiff copied Ru-dholm and Stenger on his response. Exh. PX-47 at PLF 199-200.

142. The next day, June 16, 2010, Diek-meyer responded by informing plaintiff that the trim tab indicator lights had been installed since June 14, 2010; he would install the handrails when plaintiff gave instructions on where to place them and Diekmeyer needed to know the length; there were 40 gallons of fuel in the boat and the boat would be fully fueled when the boat neared the boat slip area; and Diek-meyer had no control over the seating issue, which Regal and Williams would have to handle. Exh. PX-47 at PLF 199.

143. Plaintiff explained in his testimony at trial that there was a misstatement in his communications with Diekmeyer and his intent as of June 15, 2010, was that LNS would install the extra handrails, add the trim tab light indicators, and add one hundred gallons of fuel, in exchange for which plaintiff would replace the Europad and cockpit upholstery as he had indicated in his June 2, 2010 email to Williams. Exh. PX-45 at PLF 54.

144. Despite plaintiffs intention to resolve the interior upholstery issue himself, plaintiff sent an email to Diekmeyer on June 16 informing Diek-meyer that he expected LNS to take care of the upholstery issue in addition to these other matters. Plaintiff questioned why he was just now hearing about the trim tab indicators which had been installed two days earlier; he questioned why there was an issue as to the length of the handrails and instructed Diekmeyer to call him when the handrails were in his shop so that plaintiff could come and show him where to position them on the boat; and plaintiff told Diekmeyer that he wanted an answer the following day about when the cockpit and Europad upholstery would be corrected and the boat would be ready for delivery, stressing that he did not want Diekmeyer to tell him the interi- or problem was in Regal’s hands because plaintiff did not buy the boat from Regal. Exh. PX-47 at PLF 199.

145. Plaintiff sent an email to Williams on June 20, 2010, which he copied Diekmeyer on, asking Williams to summarize in writing what he had done or would be doing to make the boat “right” in accordance with the order specifications and concessions Williams had agreed to make to account for the delay caused by the upholstery issues in the cockpit and Europad areas. Plaintiff stated that assuming they were in agreement, he wanted the boat delivered to Conley Bottom on Friday, June 25, 2010. Exh. PX-48.

146. On June 21, 2010, Williams informed plaintiff that he would be responsible for swapping out the cockpit upholstery to tan and white and the Europad to white vinyl. Plaintiff gave his assent if Regal was willing to send the materials. Plaintiffs expectation was that Regal should manufacture new interior seats at its cost and ship them to Williams to replace the seats with the incorrect finishes in the 2010 boat. Exh. PX-49.

147. Plaintiff testified that he verbally discussed with Rudholm in June 2010 changing out the interior at Regal’s cost, but his testimony is not credible because all of his other communications were in writing and he specifically told LNS the interior was not Regal’s issue.

148. On June 22, 2010, GE sent a letter to Williams notifying him that it would conduct a records review to determine LNS’s financial position. Exh. PX-81.

149. On June 22, 2010, plaintiff sent an email to Williams demanding to know if he was going to deliver the boat by June 25, insisting that he deliver the boat, and informing Williams that plaintiff would have to trust him to change out the interior later. PX-50.

150. On June 24, 2010, Williams sent a letter to Kuck at Regal outlining LNS’s financial difficulties with GE, including GE’s cancellation of his line of credit. Williams informed Kuck that LNS had submitted to voluntary repossession of its inventory. Williams requested that Regal give him 90 days to acquire funding and a credit line to sustain operations, which meant that he was requesting “provisional dealer status” pursuant to which he would be permitted to maintain his dealership without a floor plan in place. Exh. PX-83.

151. Around June 23 or 24, 2010, the same date Kuck received the letter from Williams informing Regal that GE had terminated LNS’s floor plan, Rudholm telephoned plaintiff and warned him that he should remove the 2010 boat from LNS or risk losing it because LNS was having financial issues with GE and GE was repossessing inventory at LNS. Plaintiff testified that he thought Rudholm was “an honest man” who “was trying to do the right thing” and was the only person from whom plaintiff could get a straight answer. Plaintiff thought Rudholm’s intent was good and that if Rudholm had not looked out for plaintiffs interests his boat would have been repossessed by a bank.

152. In an undated email, Kuck responded to Williams’ June 24, 2010 letter and stated that Regal was not in a position to grant Williams’ request to hold the Cincinnati market open for a 90-day period and that Regal would be looking for another dealer in the Cincinnati market. Exh. PX-83 at PLF 333-334. Stenger also responded to Williams by an undated email on behalf of Kuck and advised him that although Regal had granted some dealers who were without a current floor plan the ability to continue on a “provisional” status, those dealers did not have an SOT situation that required Regal to repurchase the inventories and sell them at a loss. Id. at PLF 335. Stenger noted that under Regal’s SSA, no cure period “shall” be provided if a dealer is in default or SOT, so that LNS’s SSA was terminated. See EXH. PX-76 at ¶¶ 8.0, 8.1(e). However, Stenger stated that Regal would give Williams every consideration if he were able to return the dealership to solvency, secure an acceptable line of credit, and develop a capable service department before Regal selected another dealership.

153. The 2010 boat was delivered to Conley Bottom on June 28, 2010.

154. LNS employee Diekmeyer sent an email to plaintiff on June 30, 2010, advising plaintiff that the boat was ready except for the EVC system. PX-54. Diekmeyer told plaintiff that the Volvo representative would be at the lake some time the following week.

155. That same date, plaintiff sent an email to Rudholm and Kuck to which he attached an email he had sent to Williams the prior day. Exh. PX-55. Plaintiff explained to Regal the issue with the incorrect cockpit and Euro-pad upholstery colors and stated that he was asking for Regal’s help one more time. In the email to Williams, plaintiff recounted his frustration with Williams and with Regal and asked Williams where the title, MSO, documentation, paid-in-full receipt, and keys to the boat were. Plaintiff stated that the boat was in his slip but he did not have the paperwork he should have to title, insure, and operate it. Plaintiff also told Williams that he had paid the balance due of $54,000.00 on the boat before it was shipped to LNS in April reluctantly and against the advice of his attorney “who had already experienced your business ethics in our initial boat encounter.”

156. Rudholm responded by email that same day, informing plaintiff that he understood his frustration and heard him “loud and clear.” Exh. PX-55. Rudholm told plaintiff he was in Cincinnati and planned to meet with Williams that day, after which he would share what he had discovered with the Regal team and confer with them, and then contact plaintiff regarding their options. Rudholm called plaintiff that day or the next day for a conference call with Regal Customer Service Representative Tony Mayo, Clement and another individual from the Regal organization.

J. Post-delivery chronology of events

157. Mayo contacted plaintiff regarding his issues with the boat via email on July 2, 2010, prior to the Fourth of July weekend. Mayo advised plaintiff that a Volvo representative would be on the boat on Wednesday morning, July 7, 2010, to address the Volvo issues; a representative from LNS would be at the boat that same morning to assist the Volvo representative and go over the boat with plaintiff; and plaintiff should notify the marina office that these individuals would be on the boat and would need to access the boat keys. Mayo further informed plaintiff that he had shipped hand rails and boat numbers, and plaintiff should make arrangements for the trailer, which was at LNS and was to be delivered to Conley Bottom. Mayo asked for plaintiffs contact information and gave plaintiff his contact information. Exh. PX-57.

158. Plaintiff was delayed for the July 7, 2010 meeting with the Volvo and LNS representatives due to traffic and did not arrive for the appointment, which was scheduled for 2:00 p.m., until 2:15 p.m. Upon arriving, plaintiff was informed by the marina staff that the two individuals had been there but had left at 1:00 p.m.

159. According to Clement, documentation verified that Volvo reprogrammed the EVC software.

160. When plaintiff subsequently took the boat out on the water on July 10, 2010, the EVC system was working properly. Thus, within seven days after being informed of a problem with the EVC system, Regal had scheduled an appointment with a Volvo representative, a Volvo representative had gone to Conley Bottom to address the EVC issue, and the system worked properly after that date.

161. Around this same time, Mayo set up Hilltop Marine as an authorized Regal dealer at Lake Cumberland to service plaintiffs boat. The dealership was approximately 15 minutes from plaintiffs boat dock and was very convenient for him. It was not necessary for plaintiff to take the boat to the dealership for repairs; instead, Hilltop Marine would come to the boat dock to perform repairs if an appointment was scheduled over the telephone. Hilltop Marine at all times remained willing and able to make repairs to plaintiffs boat.

162. Plaintiff sent an email to Mayo, Rudholm and Kuck dated July 8, 2010, detailing what had transpired following delivery of the 2010 boat to LNS. Exh. PX-60. Plaintiff expressed dissatisfaction and frustration with the service and maintenance he had received to date and his frustration with having missed the Memorial Day and Fourth of July boating holidays “because of [LNS’s] inconsideration and Regal’s failure to do anything about it.”

163. Regal sent a representative, Dan Snyder, to perform an orientation with plaintiff at Conley Bottom on July 10, 2010. Plaintiff told Snyder the generator was not functioning and the air conditioning would not operate. Snyder created a vapor lock in the system while performing the orientation and was unable to resolve the problem. He gave plaintiff some pointers on how he could make the system operational.

164. Following-the orientation, plaintiff completed and signed a “New Boat Delivery Checklist,” which indicated only an air conditioning problem. By signing the form, plaintiff agreed: “We have completed a review and orientation of the boat and its systems. The boat is in order and functioning properly with the exception of any items specifically noted above.... ” Exh. PX-62.

165. Plaintiff also confirmed by signing the form that he had received a copy of Regal’s Limited Warranty and had agreed to its terms. Exh. PX-62.

166. On July 12, 2010, two days after the orientation, Mayo emailed plaintiff and stated that he understood plaintiff had a productive day on Saturday (the day of the orientation) and that Snyder had given Mayo some parts to ship to plaintiff. Exh. DX-94; Exh. PX-63. Mayo said it was his understanding that plaintiff was not going to be on the boat over the next few weeks and Mayo wanted to clarify where to send the parts so that plaintiff would receive them.

167. Plaintiff stated in response: “Yes, we had a good day. [Snyder] was very helpful and patient. We got everything done except getting the generator running. Dan gave me some pointers on how to get that done.” Exh. DX-94; Exh. PX-63. Plaintiff also stated if he could not get the generator to start, he would call Mayo back for service. He gave Mayo the address where he could send the parts referenced in Mayo’s email.

168. Plaintiff testified at trial that Snyder rushed through the new boat review and did not test all of the items on the check list. Plaintiffs testimony is not credible in view of the contemporaneous email plaintiff sent to Mayo at Regal on July 12, 2010, confirming that Snyder was “very helpful and patient,” reporting they had a “good day,” and omitting any criticisms or negative feedback. Exh. DX-94; Exh. PX-63.

169. In a July 16, 2010 email to Mayo, plaintiff asked if Regal would send someone to service the generator and asked Mayo about the status of the interior change out. Exh. PX-65.

170. The air conditioner/generator was covered by Regal’s Limited Warranty and plaintiff could have contacted Hilltop Marine, an authorized Regal dealer, to make any necessary repairs on these parts, but plaintiff expected Regal to take care of the problems because he thought being told to contact someone else about a problem with a brand new boat was not “a good warranty” and did not fulfill Regal’s promise of customer satisfaction. He considered being told to follow this procedure “passing the buck.” Plaintiff wanted Regal to take care of problems with the boat, including by scheduling service appointments for him, regardless of whether the problems were covered by the Limited Warranty.

171. Plaintiff could have fixed the air conditioning problem himself after Snyder performed the orientation with him, but plaintiff chose not to do so because he did not think it was his responsibility to take care of problems on a new boat which had only two hours’ use on it.

172. Hilltop Marine made repairs to the generator by July 20, 2010. Regal also contacted Hilltop Marine to fix the air conditioner, and those repairs were likewise completed as of July 20. Regal followed up with Hilltop Marine to make sure the repairs were completed.

173. The only reason plaintiff did not contact Hilltop Marine for any needed repairs was because he was frustrated and not because the boat could not be fixed, Hilltop Marine refused to do the repai