In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2850

JOHN M. RICKHER,

Plaintiff-Appellant,

v.

HOME DEPOT, INC., a Delaware Corporation,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 2152—John F. Grady, Judge.

____________

ARGUED MARCH 31, 2008—DECIDED JULY 28, 2008

____________

Before KANNE, EVANS, and SYKES, Circuit Judges.

KANNE, Circuit Judge. John Rickher brought a classaction lawsuit against Home Depot, arguing that Home

Depot’s sale of a “Damage Waiver” in connection with

tool rentals violated the Illinois Consumer Fraud and

Deceptive Business Practices Act (“CFA”), see 815 Ill.

Comp. Stat. 505/2. Rickher claims that the waiver is a

worthless product because it does not provide any value

or protection to the customer beyond what is already

provided in the basic “Rental Agreement.” In Rickher’s

view, the sale of the worthless Damage Waiver is both
2 No. 07-2850

deceptive and unfair under the CFA. The district court

rejected Rickher’s argument and denied his motion for

class certification. Because we agree with the district

court that the Damage Waiver has value, we affirm the

judgment.

I. HISTORY

This appeal deals with a question that many consumers

face on a regular basis—should I buy the extra protection being offered with this purchase or rental? John

Rickher faced this question on over a dozen occasions

over the past few years when he rented tools and equipment from Chicago-area Home Depot stores. On each

occasion, Rickher entered into a three-page contract—the

Rental Agreement—with Home Depot. The first page is

Home Depot’s copy of the agreement. It outlines the

description and price of the rental, with itemized charges;

one line item is labeled “Damage Waiver.” The first page

also contains a “Special Terms and Conditions” section,

which includes the following statement: “I accept the

benefits of the damage waiver (if applicable) described

in paragraph 11 in the terms and conditions of this rental

agreement.” The customer signs the first page of the

agreement, underneath this statement of acceptance. The

second page is the customer’s copy of the agreement, and

it also describes the rented item and the itemized charges.

It looks very much like the first page (Home Depot’s

copy), but does not contain the Special Terms and Conditions that are identified on the front page.

The third page details the specific terms and conditions

of the agreement. Four provisions are relevant to Rickher’s

appeal. According to the “Risk of Loss” provision (¶ 3), a
No. 07-2850 3

rental customer is liable for all “damage or destruction,

partial or complete” to the equipment. A different provision (¶ 5) explains that the customer is not liable for

“reasonable wear and tear resulting from proper use.”

Then, according to the “Repair or Replacement” provision

(¶ 6), in the event a tool or piece of equipment becomes

unsafe or in a state of disrepair, Home Depot has the

“option” to fix the equipment, provide the customer with

a comparable item, or adjust the rental charge. The Repair

or Replacement provision goes on to explain that if the

equipment is damaged or in disrepair because of the

customer’s improper use or maintenance, the customer

will bear the cost of the replacement or repair. Finally,

there is the Damage Waiver provision (¶ 11), which

relieves the customer of liability for damage to the equipment that does not result from the customer’s improper

use of the equipment, provided the customer pays an

additional fee.

The precise language of the baseline Risk of Loss provision (¶ 3) states:

. . . I [the customer] assume all risks of loss, theft,

damage or destruction, partial or complete, of the

Equipment from any and every cause whatsoever.

The second relevant condition, which Rickher characterizes as the “Wear and Tear” provision (¶ 5), specifically

provides:

I acknowledge that I have examined the Equipment,

seen it in operation (if appropriate) and that its condition is acceptable. I agree to surrender the Equipment

to you upon termination hereof, in as good order and

condition as when received, except for reasonable

wear and tear resulting from proper use, and if re-
4 No. 07-2850

turned unclean, I may be charged a reasonable cleaning

fee. I agree to keep and maintain the Equipment in

good condition, use it in a careful and proper manner

(including without limitation maintenance of proper

fuel, oil and lubricant levels, if applicable) and

comply with all applicable laws and regulations.

In the Repair or Replacement provision (¶ 6), the customer agrees:

immediately to discontinue using Equipment that

becomes unsafe or in a state of disrepair, and immediately to notify [Home Depot] of such fact. You [Home

Depot] have the option to make such Equipment

operable within a reasonable time, provide me with

a similar piece of Equipment or adjust the rental

charge. However, if such Equipment is unsafe or in

disrepair because of my improper use or maintenance,

I will bear the expense of such replacement or repair

or, at your option, be declared in default.

The Damage Waiver provision (¶ 11) explains that, if the

customer pays the Damage Waiver charge—a fee equal to

ten percent of the cost of the equipment’s regular rental

charge—Home Depot will “waive” its right to hold the

customer liable for damage caused to the product while

in the customer’s possession—except for damage caused

by the customer’s misuse or abuse of the equipment

(among other exceptions). 

If I pay the Damage Waiver charge for any Equipment,

this agreement shall be modified to relieve me of

liability for accidental damage to it, but not for any

losses or damages due to theft, burglary, misuse or

abuse, theft by conversion, intentional damage, disappearance or any loss due to my failure to care properly
No. 07-2850 5

for such Equipment in a prudent manner (including

without limitation by using proper fuel, oil and lubricants and not exceeding such Equipment’s rated

capacity, if applicable).

In the district court, Rickher claimed that Home Depot

had violated the CFA in two ways. First, he alleged that

Home Depot deceived him into believing the Damage

Waiver was a mandatory charge by failing to inform him

each time he rented tools that the waiver was optional,

and by including it, as a default condition, in each

Rental Agreement. Second, he argued that the Damage

Waiver is a “worthless” product because it does not

provide consumers with any protections above and beyond those already afforded by the regular Rental Agreement. Rickher sought to certify a class consisting of

persons who paid the Damage Waiver charge when they

rented equipment from Home Depot stores in Illinois

during the three-year period before Rickher filed his

complaint.

The district court determined that Rickher’s evidence

could not survive summary judgment on either of his

claims. When he rented the tools, Rickher failed to read the

Rental Agreement, which clearly described the nonmandatory nature of the Damage Waiver. As for the

scope of the Damage Waiver, the district court decided

that the waiver had value, so there was nothing deceptive or unfair about Home Depot’s sale of the waiver to

customers. After granting summary judgment in Home

Depot’s favor, the district court denied Rickher’s motion

for class certification as moot.
6 No. 07-2850

1 The parties both properly assume that the substantive law of

Illinois governs this diversity action, which alleges violations

of Illinois’s Consumer Fraud and Deceptive Business Practices

Act.

II. ANALYSIS

Rickher’s only challenge on appeal is to the district

court’s disposition of the cross-motions for summary

judgment respecting Count II of his Second Amended

Complaint, which alleged that the Damage Waiver is a

worthless product. We review de novo the district court’s

disposition of cross-motions for summary judgment,

while construing the evidence and all reasonable inferences

in favor of the party against whom the motion under

consideration is made. BASF AG v. Great Am. Assurance Co.,

522 F.3d 813, 818 (7th Cir. 2008). Summary judgment is

proper “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The resolution of the CFA claim in this case depends

entirely on the terms of the Rental Agreement contract,

and as such, summary judgment is appropriate only

if there are no genuine issues of material fact surrounding the interpretation of that contract. See Cherry v.

Auburn Gear, Inc., 441 F.3d 476, 481 (7th Cir. 2006). Under

Illinois law, the interpretation of a contract presents a

question of law that is decided by the court.1 BASF, 522

F.3d at 818-19; Bowers Mfg. Co., Inc. v. Chi. Mach. Tool Co.,

453 N.E.2d 61, 66 (Ill. App. Ct. 1983). Neither side argues

that the contract is ambiguous, nor do we identify an

ambiguity that prevents our analysis. The contract is not
No. 07-2850 7

“ ‘susceptible of different constructions when read in its

plain and ordinary meaning,’” see Cromeens, Holloman,

Sibert, Inc., v. AB Volvo, 349 F.3d 376, 394 (7th Cir. 2003)

(quoting Althoff Indus., Inc. v. Elgin Med. Ctr., Inc., 420

N.E.2d 800, 803 (Ill. 1981)), so we proceed to the merits

of the question raised on appeal: whether the Damage

Waiver is “worthless.”

Rickher argues that the Damage Waiver is worthless

because even without it, the Rental Agreement relieves

renters of liability for all damage to a piece of equipment

that results from its proper use. In his view, the Damage

Waiver offers no additional protection because it excludes

from coverage damage resulting from improper use. Thus,

Rickher argues that the Damage Waiver is redundant

because damage from proper use is already excused by

the Rental Agreement, and the Damage Waiver does not

excuse the customer of anything other than damage from

proper use. In Rickher’s opinion, the Damage Waiver is a

worthless product, and charging customers a fee for a

worthless product is deceptive and unfair under the CFA.

To demonstrate a deceptive practice under the CFA,

Rickher must show that he suffered actual damages and

he must present facts demonstrating: “(1) a deceptive act

or practice by the defendant; (2) the defendant’s intent

that the plaintiff rely on the deception; (3) the deception

occurred in the course of trade or commerce; and (4) the

consumer fraud proximately caused the plaintiff’s injury.”

White v. DaimlerChrysler Corp., 856 N.E.2d 542, 546 (Ill.

App. Ct. 2006); see also Connick v. Suzuki Motor Co., 675

N.E.2d 584, 593 (Ill. 1996). To show that something is an

“unfair practice” under the CFA, the practice must offend

public policy; be immoral, unethical, oppressive, or

unscrupulous; or cause substantial injury to consumers.
8 No. 07-2850

Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961

(Ill. 2002). “ ‘All three criteria do not need to be satisfied

to support a finding of unfairness. A practice may be

unfair because of the degree to which it meets one of the

criteria or because to a lesser extent it meets all three.’ ” Id.

(quoting Cheshire Mortgage Serv., Inc. v. Montes, 612 A.2d

1130, 1143 (Conn. 1992)).

At first blush, the Rental Agreement clearly allocates

all risks to the customer—the Risk of Loss provision in

paragraph 3 states that the customer is responsible for

all damage and loss to the rented item. Thus, unless the

Risk of Loss provision is modified or nullified by other

provisions in the Rental Agreement, the Damage Waiver

effectively alleviates some of the customer’s liabilities.

Charging customers for the waiver and its corresponding

shifting of risks is an acceptable arrangement that appears neither deceptive, nor unfair. See Chabraja v. Avis

Rent A Car System, Inc., 549 N.E.2d 872, 875 (Ill. Ct. App.

1989) (explaining that bailee is generally liable for injury

to bailed property, but parties are free to alter traditional risk allocations by contract so long as resulting

agreement does not violate public policy).

Rickher points to the Repair and Replacement provision,

as well as the Wear and Tear provision, to argue that

Home Depot shifts nearly all of the risk away from the

customer and onto Home Depot. Rickher’s argument can

be broken down as follows: 

1. The Risk of Loss provision (¶ 3) provides the

baseline: the customer is responsible for all loss,

theft, damage, or destruction, partial or complete,

of the equipment, regardless of the cause.

2. The Repair and Replacement and Wear and Tear

provisions effectively nullify the Risk of Loss
No. 07-2850 9

provision by shifting all of the risk onto Home

Depot, except for the risk of damage resulting from

improper use or maintenance, which remains

with the customer.

a. The Wear and Tear provision (¶ 5) provides

that customers are not liable for reasonable

wear and tear that results from proper use.

Wear and tear encompasses all “damage”

resulting from proper use, so customers need

not worry about anything except for damage

resulting from improper use or abuse. 

b. The Repair and Replacement provision (¶ 6)

states that customers will have to pay for

repairs or damage caused by improper use or

maintenance; according to Rickher, this affirmative statement, absent a comparable statement about the customer’s liabilities for damage resulting from proper use, establishes that

customers will never be liable for damage to a

piece of equipment unless that damage

results from improper use, abuse, or improper

maintenance.

3. The Damage Waiver (¶ 11) excludes coverage for

damages stemming from improper use, abuse, and

improper maintenance. The Rental Agreement

already protects customers from liability for damage resulting from proper use (via ¶¶ 5 & 6), so the

Damage Waiver adds no additional coverage,

even though customers pay a fee for the Damage

Waiver.

Rickher’s argument hinges on his interpretation of

paragraphs 5 and 6. But as the district court recognized,
10 No. 07-2850

Rickher’s reading of the Wear and Tear and Repair and

Replacement provisions suffers from major flaws.

The first flaw is that Rickher broadly defines the concept

of “wear and tear” to encompass any and all damage

that might occur during a tool’s proper use. Rickher

reads paragraph 5—which explicitly allows for “reasonable wear and tear” of the tool during the rental period—to relieve the customer of liability for any and all

damage to the tool so long as that damage happens by

way of proper use of the tool. This leads Rickher to conclude that the Damage Waiver is effectively the inverse of

the Wear and Tear provision: the customer is already

relieved of responsibility for damages resulting from

proper use, but the Damage Waiver excludes from its

protections any damages stemming from improper

use—so, it provides no additional protection to the customer. Home Depot, on the other hand, claims that the

Wear and Tear provision of paragraph 5 does not effect

a shifting of risks—it simply informs the customer that

Home Depot will not hold the customer liable for reasonable wear and tear of the equipment. “The paragraph

does not mention loss, damage, or destruction of the tool,

nor does it mention who is required to pay for any such

loss, damage or destruction.”

Rickher cites dictionary definitions of “wear and tear” to

support his contention that damage and wear and tear

are one and the same: “Depreciation, damage, or loss

resulting from ordinary use or exposure,” Webster’s II

New College Dictionary (1995); “Damage or deterioration

resulting from ordinary use; normal depreciation,” Random House Webster’s College Dictionary (1992). Although it is true that dictionary definitions of “wear and

tear” often employ the word “damage,” that does not mean
No. 07-2850 11

that damage and “wear and tear” are synonymous. Wear

and tear is a more specific phrase that connotes the expected, often gradual, depreciation of an item. See Wear

and Tear, http://en.wikipedia.org/wiki/Wear_and_tear,

last visited May 30, 2008.

It is a form of depreciation which is assumed to

occur even when an item is used competently and

with care and proper maintenance. For example,

friction may erode a hammer’s head. In the normal

use of a hammer for its designed task erosion is

impossible to prevent, and any attempt to eliminate

this erosion would make the hammer useless. At

the same time, it is expected that the normal use of

a hammer will not break it beyond repair until it

has gone through a certain amount of use.

Id. Most items, such as power tools, when used regularly,

suffer from ordinary wear and tear. Tools are not meant

to be maintained in pristine condition, and Home Depot

recognizes that motors will slow over time, blades will

dull, and casings will get scratched. True, these measures

of depreciation technically can be termed “damage”; but

while all wear and tear resulting from proper use might

fall under the broad category of “damage,” the

inverse—that all damages fall under the category of

wear and tear—is simply not true. See Kallman v. Radioshack Corp., 315 F.3d 731, 740 n.5 (7th Cir. 2002) (drawing

line between reasonable wear and tear, which was

allowed in the contract, and damage: “The district court

found that the extensive damage and poor condition of

the roof, parking lot, and HVAC units did not constitute

‘reasonable wear and tear,’ and we agree”); W. Assets Corp.

v. Goodyear Tire & Rubber Co., 759 F.2d 595, 603 (7th Cir.

1985) (delineating “ordinary wear and tear, such as ma-
12 No. 07-2850

sonry work” from “several items that may be described as

damage to the building, such as broken windows, doors,

floor tiles and ceiling tiles”).

In a Southern District of Florida case dealing with the

same Home Depot Damage Waiver, the plaintiff also

“equate[d] damage to the phrase ‘normal wear and tear.’ ”

Jeff Enters., Inc. v. Home Depot U.S.A., Inc., 07-60302-CIV,

slip op. at 9 (S.D. Fla. July 27, 2007) (unpublished decision).

The Jeff Enterprises court pointed out that the Rental

Agreement uses the terms “wear and tear” and “damage”

separately, which supports reading the terms to have

different meanings. Additionally, if damage and wear

and tear are synonymous, then the Risk of Loss and

Damage Waiver provisions in the Rental Agreement are

meaningless. See id. (“Jeff Enterprises’ interpretation

renders both the [Risk of Loss] and Damage Waiver

provisions of the Rental Agreement meaningless, which

runs contrary to basic contract interpretation principles.”);

see also Elda Arnhold & Byzantio, L.L.C. v. Ocean Atl. Woodland Corp., 284 F.3d 693, 705 (7th Cir. 2002) (“Illinois

courts construe contract terms ‘so as to avoid rendering

other terms redundant or meaningless.’” (quoting Carroll

v. Acme-Cleveland Corp., 955 F.2d 1107, 1112 (7th Cir.

1992))). Rickher’s interpretation of the Wear and Tear

provision would render the Risk of Loss provision meaningless. We see no reason for constructing a new definition of wear and tear (per Rickher’s suggestion) that

encompasses all damage resulting from proper use, where

the contract uses “damage” and “wear and tear” differently, and where such an interpretation would render

meaningless other provisions in the contract.

Rickher further argues that even if we reject his interpretation of the Wear and Tear provision, the Rental
No. 07-2850 13

Agreement still relieves the customer of liability for all

damage resulting from anything but improper use by

way of the Repair and Replacement provision. Rickher

claims that because Home Depot specified in paragraph 6

that renters must pay for repairs caused by improper use,

the store implicitly absolved renters of all liability for

damage caused by proper use. Rickher argues:

It is completely implausible . . . to interpret a

contract that affirmatively states that renters must

pay for repairs caused by improper use to mean

that renters must also pay for repairs caused by

proper use. What would be the point of the statement that renters must pay for repairs caused by

improper use? This is the contract’s only clause

setting forth the parties’ respective obligations in

the event a tool needs to be repaired, and the last

sentence [stating that customer is responsible for

repair stemming from improper use] is therefore the definitive statement of when renters

must pay for repairs.

Rickher must have overlooked the Risk of Loss provision when he wrote that the Repair and Replacement

provision is the “only clause setting forth the parties’

respective obligations in the event a tool needs to be

repaired . . . .” By way of the Risk of Loss provision, the

customer assumes the risk of all loss, theft, damage or

destruction, partial or complete, from any and every

cause whatsoever.

The Repair and Replacement provision, on the other

hand, merely outlines steps the renter agrees to take if a

tool becomes unsafe or unusable. It then explains that

Home Depot will either fix the tool, provide the renter

with a similar tool, or adjust the rental charge. The pro-
14 No. 07-2850

vision addresses a particular scenario: how Home Depot

will respond when a tool or piece of equipment becomes

unusable during a portion of the paid-for rental period. It

does not address the risk of loss for damaged or unusable

tools, nor does it discuss who will bear the expenses of

repairing or replacing the tool if the tool is damaged during

proper use, or if it is damaged by accident.

Rickher argues that the final sentence of paragraph 6

modifies the Risk of Loss provision by negative implication. That sentence states: “However, if such Equipment is

unsafe or in disrepair because of my improper use or

maintenance, I will bear the expense of such replacement

or repair or, at your option, be declared in default.”

Rickher invokes the maxim of expressio unius est exclusio

alterius—the expression of one thing is the exclusion of

another—to argue that by expressing one scenario in

which customers are liable for repair or replacement

expenses, Home Depot means to exclude all other possible

scenarios.

It has long been recognized in Illinois that the maxim of

expressio unius est exclusio alterius is “a rule of construction—not of substantive law.” Drexel State Bank of Chi. v.

O’Donnell, 176 N.E. 348, 352 (Ill. 1931). Importantly, the rule

“should never be followed to the extent of overriding a

different intent clearly expressed.” Id. (internal quotation omitted). “[W]e see no occasion for bringing in and

endeavoring to apply a maxim which would detract

from the grant of a power so clearly expressed and so

unmistakably conferred.” Id. at 353. See also 17A C.J.S.

Contracts § 327 (explaining that the contract-interpretation

maxim “is applicable only where clearer indications of

the proper construction are lacking, and should not be

used to create an ambiguity, or to contradict a clear expression of intent”). The Risk of Loss provision in this
No. 07-2850 15

contract is clear—it makes no sense for us to impute

ambiguity into the contract simply because Home Depot

decided to remind customers that they are liable for

damage they cause to Home Depot’s property by way of

their improper use or abuse.

Further, Home Depot has no need to address the consequences or liabilities of damage resulting from either

proper use or accidents in paragraph 6, the Repair and

Replacement provision. The extent of liability will vary

depending on whether the Damage Waiver is purchased

by a particular customer. If a renter does not purchase the

Damage Waiver protection, but accidentally damages

the tool during proper use, or if the tool suffers damage

when not in use, then under the terms of the contract,

the renter will be liable for those damages (¶ 3). If a

renter purchases the Damage Waiver, then the renter

would not be liable for such damages. A third scenario is

that the tool becomes unusable or unsafe due to some

other cause: the motor of an old tool could die while the

tool is being rented; a fuse in a tool could short out. These

types of maladies are not caused by proper use, improper

use, or accidents. They just happen. Under any of the

above scenarios, if the tool is brought to Home Depot,

the contract explains that Home Depot will repair the

tool or provide the renter with another tool, within a

reasonable time. Or, Home Depot will adjust the rental

charge to reflect the situation. Notably, the Repair and

Replacement provision does not say that Home Depot

will adjust the charge downward. If a tool comes into

disrepair by way of a consumer’s proper use, Home Depot

could very well adjust the charge upward, unless the

customer purchased the Damage Waiver.

With the Repair and Replacement provision, Home

Depot anticipates that tools may get damaged during
16 No. 07-2850

rental periods and thus the store outlines how it plans to

respond when a tool is rendered unsafe or unusable. Home

Depot does not outline in this provision the liabilities

and responsibilities of the consumer or of Home Depot

for every possible scenario of tool damage. Therefore,

the fact that Home Depot emphasizes that customers

will be responsible for repairs resulting from improper

use does not render the baseline Risk of Loss provision in

the very same contract void by way of negative implication.

See Byson Enters., Ltd. v. Peter Carlton Enters., Ltd., 641

N.E.2d 838, 844 (Ill. App. Ct. 1994) (explaining that established rules of contract construction do not allow one

provision of contract to take away, by negative inference, what another provision expressly grants).

The genesis of Rickher’s problem—with his interpretations of both paragraphs 5 and 6—is that he divides the

world of tool usage into two and only two realms: proper

use and improper use. There is no other possible

scenario for Rickher. To him, the fact that Home Depot

emphasized a scenario involving improper use means

that Home Depot meant to exclude the same scenario

involving proper use of the tool. But as the district

court pointed out, Rickher fails to acknowledge a third

realm—the one in which accidents occur. We would all

like to use tools perfectly, but accidents happen and

sometimes tools get damaged as a result. While using a

circular saw to cut through a two-by-four, a carpenter

might hit a screw that is not visible because its head is

broken off in the wood. The saw blade is bent and rendered

useless. The carpenter is not using the tool “improperly,”

but still, the saw blade is damaged in an unanticipated

way—beyond the scope of normal “wear and tear.”

Accidents can happen when a tool is not even being used.
No. 07-2850 17

Take the example provided by the district court: “the

customer stores a tool in his garage and something else in

the garage falls on the tool and damages it. This is also

accidental damage that does not occur during use.”

The Damage Waiver, by its plain language, states that

it protects customers from liability for accidental damage

to the tool. As the district court decided, the Damage

Waiver has value because it modifies the broad allocation

of risk to the rental customer by “relieving the renter

from liability for accidental damage to the tool—both

when the tool is being used properly and when the tool

is not being used at all.”

The possible scenarios in which a customer may successfully invoke the benefits of the Damage Waiver may

not be great—i.e., when damage results from an accident

during proper use, when damage happens while the tool

is not being used, or when damage from proper use

exceeds wear and tear—but they exist. We agree with the

district court that “the plain language of the Rental Agreement demonstrates that the Damage Waiver does have

value.” Home Depot is entitled to charge customers a

price in exchange for its waiver of some of the customer’s

baseline liability under the Rental Agreement. Thus,

Rickher has not established a genuine issue of material

fact as to either the Damage Waiver’s deceptiveness

under the CFA, or it unfairness. Our decision aligns with

those of other courts that have addressed this issue, see

Pacholec v. Home Depot U.S.A. Inc., No. 06-827, slip op. at 4

(D.N.J., July 31, 2007) (“[T]here was value to the Damage

Wavier. It does not constitute an unconscionable commercial practice.”); Jeff Enters., 07-60302-CIV, slip op. at 10

(“[T]he Damage Waiver would shield a customer from

liability stemming from any damage sustained by the
18 No. 07-2850

equipment during normal use that is more extensive than

normal wear and tear, and as a result, the Damage Waiver

does have value.”) (unpublished decision); see also Cook v.

Home Depot U.S.A., Inc., No. 2:06-CV-00571, 2007 WL

710220, at 7 (S.D. Ohio, Mar. 6, 2007) (“the terms and

conditions of the Damage Waiver suggest Plaintiff received reasonable insurance coverage”) (unpublished

decision).

III. CONCLUSION

For the foregoing reasons, we AFFIRM summary judgment in Home Depot’s favor.

USCA-02-C-0072—7-28-08