good morning yours my name is dan darnell from michigan and i with me today is just a carrier co counsel in this case i represent a company it's a canadian company six seven nine six three seven ontario limited marabou at issue in this case is whether the plaintiff in ontario gave notice to the defendant within a reasonable time after discovering a defect in the mirror laminate as required by section two six zero seven  that's the date that the district nurse referred to and neither could it have been reasonably aware of the defect in two thousand and eleven given that there was a single isolated complaint in two thousand and eleven  which would have been a unique user and with unique user there would have been any number of extraneous influences on that tar which would have been responsible opinion about where we are in discovery took place i think that's our case a nutshell here are the defendant and the district court says that on terror either knew or should have known in two thousand and eleven that the laminate was defective we say we had one complaint that was unique user we had hundreds of complaints in two thousand and fourteen all of a sudden and they did  extensive investigation in two thousand and fourteen and then they discovered that it was the laminate that was making the truck terms dirty and they immediately gave notice to to who's to blame but how quick fix the problem it was a cleaning investigation they use all kinds of cleaning methods and they found that they could not clean the tarps because the dirt was literally embedded in the laminate as it under the from i can see from this opinion first we said in the complaint we said a complaint that my client knew as early as two thousand and eleven that there were very tough issues that's that's a fair statement but we just say our clients come are my clients customers complain as early as two thousand and eleven it's a present tense it's observation of historical fact that was the earliest you  didn't know why that that's right so when the complaint was filed you can look historically back and say oh now we know in two thousand and eleven that possibly that two thousand and eleven tarp was may have been affect we don't know for sure for all we know that customer was washing his truck with motor oil we just don't know but we do know in two thousand and fourteen when there are hundreds of complaints now we know what it is we say the complaint well is the argument that you ought to have known sometime between the first one how many did it take you if you i guess it's a good it's a good question are and it's it's one because you don't see from the record like two thousand and twelve complaints or two thousand and thirteen complaints what you see from the record is two thousand and fourteen complaints from mr martel ac one complaint from two thousand and eleven so it was their interim problems and now for the record we have a for the for whomever and make more money the the the bigger customers are either to get their own tarp with their own name ok do they usually i think older old l t l zx or something like that they have smaller loads they are they date and then a statement by mark tell hoose just asserted that he became aware of complaints by customers when he began working for you in tw mean that seems like kind of a scanty like askin to record of your complaint if your claim is we didn't know until two thousand and fourteen how is it that just one employee  seems critical of mr martell's testimony in that regard he says was just when he started but that's not really mr maher told says he says i started in may and then we had a lot of complaints and i investigated it so really into the two facts are very talked about there's the investigation itself which is part of the record which discusses what happened when it happened in early two thousand and fourteen and what measures they took to try to investigate or to investigate that because members argued obviously this this this notice issue in their summary judgment but they didn't argue where the judge decided they said in their brief that because had a one year warranty then they would extend that a month they they were looking for a thirteen month look back from the date of the notice in september fifth if you look at their motion they're just looking for partial summary judgment they're not looking for full summary judgment that's the relief they were looking at and the judge did ask me about this unique user in two thousand and eleven but that was the record we we were we were not aware that the judge was interested in using the two thousand and eleven complaint as a basis for dismissing the entire case you know it's come to be lucian that our client should have given notice in two thousand and eleven date so so so the court you know the court's obligation is to see the to see the facts in the best light to the to the nonmoving party in this case the three facts that we have  if you look at them in the best lead to the number of the party we are you they tend to just to demonstrate that that our client was reasonably prudent about trying to investigate you know the problem that  didn't really occur there's no there's no other facts aside occurred any earlier than two thousand and fourteen and that we just had this one isolated incident in two thousand and eleven so if you look at those sadly that's what went in your response here one that that's not surprising the court gone down to that right of yeah possibly yeah i'm not sure why it's a bad error that that's not considering things in your favor yes i did i think then i think the judge looked at it in the favor of of merab it took that one complain and said you should know that you should have known that when he didn't take in of a factor in the consideration and i argued i explained we had one unique user who had an oral argument we did and is it your contention that there are no complaints between twenty and eleven and september fifth twenty fourteen minutes complaints on does that mean well is the question is when should you have known some trucks would just get damaged  they they would they operate harsh environments they might they might be in a coal environment for example which is very acidic it might be they might be be exposed to abrasion that is trees might rub against them or other other vehicles or something like that that wears the lamb away some sharks are just going to come back damage that's going to happen and you expect that in this business but you don't expect is that all of the sharks come back damaged and that's what happened  two thousand and four you're paying your reimbursing though the other flaws that happened from coal or acid are better than you would know isn't it they wouldn't they would they would possibly make a warranty claim right if they had and it what's the answer to that i mean exam would be notified each time maybe not every time but each time a customer thought they were that you owed them money is that not in the a few arguments being made here one of their arguments is that they didn't know about this problem the court can set that argument aside because the question is when they should have known one of the issues that came up during counsel's argument was this question of what was going on between toothbrush it's not in this case because we have their complaint i think the plaintiff's argument isn't being very fair to judge lawson it's there is no factual issues here because of what was pleaded in their complaint paragraph seventeen of their complaint says they continued to receive complaints from customers in the plural beginning in two thousand and eleven and continuing through two thousand and fourteen and into two thousand and fifteen seventeen a paragraph thirteen of their complaint what's critical here are are that there is a four year statute of limitations which means before this period began they were receiving complaints from their customers what michigan law holds and this is the bev smith case is that if a plaintiff has the means to find out what the problem is they have a duty to find out what their problem is if they should have known if they had the if they knew there was a problem and they had the means to find out what that problem was then they should have known at that time because if you take what they've pleaded they had these complaints they had the means to find out what the problem was they don't claim that they needed anything from my client they had the means to figure out what the problem was and instead of trying to figure out what was going on they continued to order the same product again and again and again for a period of four years don't  push the problem they do say that why is that a fact because of the best smith case which holds that if they have the means to find out what the problem is and they knew there was a problem they just didn't they're saying what we know we know there was a problem we know our customers aren't happy but we're just going to keep buying the same product and not in first the gate to find out what's going on we waited to find out they waited to find case is helpful here that's a case where you have this plaintiff who bought this race car and he was told that it belonged to this famous race car driver and it turned out after three years he found out that they had replaced the body and replaced the tires so there wasn't much there that actually belonged to this party and so three years after the fact this plaintiff said well this isn't the car that i thought i was buying and the court said but you had the means the whole time to find out what the problem was and you didn't use it and that's exactly what we have here fourteen and if a court looks at the report that they produced of their right they say they didn't bother to look into anymore until a bigger part and i didn't hear the whole question where is it in the record morning we want to do places or usually there's mr darnell told the court this morning that they didn't investigate until two thousand and fourteen i don't think there's a question about that that's when they started to look into this problem and the fact there's a direct to the court to it there's a report the only thing court that they've produced of the investigation is the panel cleaning report it's document sixty dash one beginning on page id nine thirty eight that's according to them is the only time they looked this problem and interestingly that report doesn't actually look into the cause of the problem it only looks into how to clean the tarps they didn't actually look into what the root problem was so they sat on their rights the whole time ordering the same product and allowing damages to go up and up and up and they are not allowed to do that under michigan la another reason we're not being quite fair to judge lawson is that at the oral argument on our summary judgment motion when judge lawson was asking the plaintiff about the the root cause of their problem when they found out the plaintiffs were explaining well we didn't know until these trucks went out and they use these tarps in the road and we saw how the dirt stuck to these tarps judge lawson said so what you're saying is that you couldn't figure out whether it was dirt or whether it was the laminate and they said yes and they said we thought there might be some sort of super dirt i think was the phrase that they used that they couldn't clean and what happened then is critical judge lawson said so you're saying you couldn't tell then whether it wasn't fit for it particular purpose or whether it just wasn't merchantable and the plaintiffs council said exactly at that point there's no questions of fact here no reasonable fact finder could conclude under these facts that they gave notice within a reasonable time after they should have known about this  then the argument was made this morning that lawson construed the record in the light most favorable to my client that's not accurate here because what judge lawson did is he took all the allegations in the plaintiff's complaint and s assuming those are true do they have a valid claim here you don't get more favorable to the plaintiff than taking everything in their complaint as accurate so for those reasons there are no questions of fact i do think our brief address this question of assuming that they didn't provide notice within a reasonable time what's the right outcome and we talked about the johnson trolls case that case concluded that a party in the plaintiff position could get damages incurred after they provided notice i think it's critical to know what was different in that case in that case you had a different state law that said each installment of this installment contract has to be treated separately we don't have that state law here so that's why the court in that case said we can't have one tender that applies for the whole claim we have to have each separate tender because of this other state law in here when you look at the plain text of section two six zero seven it says where there is a tender a party has to provide notice within a reasonable time there was a tender of this product in two thousand and eleven they continued to get complaints and they didn't raise it until two thousand well so is it your argument that if we saw these a separate contracts they would women you would lose no no i just want to be no i was i thought that should have known and you keep ordering the defective product over and over and over that's that's not ok either right and johnson controls i thought was distinguishable because of products it's a case about a product it's a case about pricing charges right right so yes it is are you in this case that there are at least that was your argument i just i make sure i'm stating your argument correctly right our view is that because two six zero seven says failure to provide notice with that if you have the tools to figure out then it's on you so it's like when i don't know if i had some sort of i don't know symptom with my body and i fail to go to the doctor and figure out what was going on that i can't complain when you know it turns out like things up go well for me well if you are if you are a manufacturer of several hundred thousand devices let's say an automobile and you had a complaint from one customer maybe ten customers for general motors that brake failed right and you don't automatically you know you take those warranty claims automatically assume that it's defective product you're probably first going to assume that it's a misuse serves an environmental problem something of that nature and you just going to pay for it is there a duty that case which is very analogous to my client for general motors to investigate ten brake failures five years ago this is its exact same thing we got one failure is is it incumbent upon my client the complaint didn't say cingular did it we're told it didn't it it you know it's unfortunate that when i wrote it i was using my present sense knowledge of we've got a lot of complaints now and we know of complaints that are similar all the way back to two thousand a is really just a range it is a range but what it is is kind of distinct from a one up and that is what we kind of been arguing here that there was a one off and the idea is how many does it take you know the argument is that we thought that you must hold judge lawson we thought it was super dirt or but that's the beginning of an investigation isn't it and that happened in and so that's where i think judge lawson is doing his job to look at that complaint and say my goodness you know i didn't i don't see anything else here i take you at your word multiple eleven here we are so yes it got acute very acute later but the but the law says that shout investigate and that's wh faced with that's what it says most of the bev smith cases but bev smith case is one race car it's one old race car it's easy to investigate if that car is what it's supposed to be this is one truck in the in the other the other evidence the other evidence that was presented to the motion in support of the motion and right right and so what is that other evidence it's anybody put in an affidavit for example saying we got no complaints between we get this one  you just heard the weakness that the judge is right to take that is weak in light of the for all those years and we got jim who said you know importing when i started working here in fourteen we got we started getting problem by bit shouldn't you establish that there wasn't a problem but somebody who worked there should put in some evidence that it wasn't a problem we could have you know i guess you could have said it in the negative but we said it in the positive the properly they found that the the laminate expanded and trapped the dirt under it's self and you found that out by going to an expert  what yes