United States District Court, D. Massachusetts
ANTHONY PAGLIARONI, VICKI O'BRIEN, JOHN COSTELLO and CATHERINE LYNCH on behalf of themselves and others similarly situated, Plaintiffs,
MASTIC HOME EXTERIORS, INC. and DECEUNINCK NORTH AMERICA, LLC, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Pagliaroni (“Pagliaroni”), Vicki O'Brien
(“O'Brien”), Catherine Lynch
(“Lynch”) and John Costello
“Plaintiffs”) seek damages as well as declaratory
and injunctive relief from Defendants Mastic Home Exteriors
(“Mastic”) and Deceuninck North America
(“DNA”) arising from damage to their decks
allegedly caused by a design defect in the Oasis decking
formula. Plaintiffs assert claims for breach of warranty,
negligence, negligent misrepresentation and unjust enrichment
and violation of certain state consumer protection laws. D.
53. Mastic and DNA have both filed for summary judgment. D.
266 (Mastic), 270, 272, 274, 276 (DNA). For the reasons
stated below, the Court ALLOWS IN PART AND DENIES IN PART
Mastic's motion, D. 266, and ALLOWS DNA's motions for
summary judgment, D. 270, 272, 274, 276.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant
bears the burden of demonstrating the absence of a genuine
issue of material fact. Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a
general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
Mastic and DNA submitted statements of material fact.
See D. 269; D. 271 at 2-6; D. 273 at 2-4; D. 275 at
2-3; D. 277 at 2-3. Plaintiffs, however, did not respond to
Defendants' statements of material facts in a manner that
indicates what, if any, material facts they dispute. Where
there has been no such response to the material facts as
presented by movants, they may be deemed admitted.
Stonkus v. City of Brockton Sch. Dep't, 322 F.3d
97, 102 (1st Cir. 2003) (quoting D. Mass. L.R. 56.1));
see Kirtz v. Wells Fargo Bank N.A., No. CIV.A.
12-10690-DJC, 2014 WL 3869997, at *1, *1 n.1 (D. Mass. Aug.
5, 2014). Nearly two weeks after the Court heard the
parties' arguments on the motions for summary judgment
and over a month after Plaintiffs had filed their oppositions
to the motions for summary judgment, Plaintiffs moved for
leave to file an amended statement of material facts to cure
this deficiency, raised by defense counsel at the motion
hearing. D. 302. While deeming facts to which a nonmovant
does not respond admitted for purposes of a motion for
summary judgment is a matter of discretion, see Butters
v. Wells Fargo Advisors, LLC, No. 10-cv-10072-MLW, 2012
WL 5959986, at *2 (D. Mass. Nov. 27, 2012), it is the
nonmovant's responsibility “to focus the district
court's attention on what is, and what is not, genuinely
controverted, ” Mariani-Colon v. Dep't of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st
Cir. 2007) (citations omitted); see Zimmerman v.
Puccio, 613 F.3d 60, 62-63 (1st Cir. 2010), and to do so
in a timely fashion. Accordingly, Plaintiff's late filed
motion to amend their statement of facts, D. 302, is DENIED.
Plaintiffs' operative statement of material facts itself,
D. 284; D. 288, fails to dispute the material facts at issue
in this case. To the extent, however, Plaintiffs rely in
their opposition upon admissible evidence in the record to
dispute material facts in this case, the Court has considered
designed and manufactured Oasis decking
(“Oasis”), a deck product made of wood-polymer
composite. D. 269, ¶ 1; D. 271 at 2; D. 273 at 2; D. 275
at 2; D. 277 at 2. Mastic, formerly known as Alcoa Home
Exteriors, Inc., and owned by Ply Gem Industries, Inc.
(“Ply Gem”), marketed and distributed Oasis. D.
269, ¶ 2. Mastic sold Oasis to wholesalers and
distributors, who would in turn resell Oasis to other
distributors, contractors and retailers, who in turn would
sell Oasis to end-users or consumers. D. 271 at 2; D. 273 at
2; D. 275 at 2; D. 277 at 2. Mastic offered an express
warranty that Oasis “would be free from defects in
material and worksmanship for twenty-five years” (the
“Limited Warranty”). D. 269, ¶ 4. The
Limited Warranty included a disclaimer that limited the
remedies for a warranty claim to replacement of defective
Oasis decking or refund of the value of the defective
product. D. 269, ¶ 5. The Limited Warranty also provided
that Mastic was not responsible for consequential, special or
incidental damages arising out of the purchase of Oasis and
that it was the exclusive warranty for Oasis. D. 269,
lived in Swansea, Massachusetts. D. 269, ¶ 10; D. 271 at
2. Prior to purchasing Oasis, a contractor recommended it to
Pagliaroni and gave him a brochure and sample. D. 271 at 2-3.
The brochure referred to the Limited Warranty. D. 271 at 3.
Pagliaroni built his Oasis deck in the summer of 2006. D.
269, ¶ 11. D. 271 at 3. Pagliaroni noticed cracks in his
Oasis deck for the first time in August 2007, approximately
one year after it had been constructed and installed. D. 269,
¶ 16; D. 271 at 3. In addition to cracking, Pagliaroni
also saw mold growth and swelling and warping of the Oasis
deck boards, which concerned him. D. 269, ¶¶ 17-18;
D. 271 at 3-4. As the cracking continued to worsen,
Pagliaroni's contractor inspected the deck in 2007 and
concluded that the problems related to the product rather
than the installation. D. 269, ¶¶ 19-20; D. 271 at
4. Pagliaroni then attempted to contact Mastic about the
issues with his Oasis deck later in 2007, but did not speak
to anyone. D. 269, ¶ 21; D. 271 at 4. In early 2010,
Pagliaroni or his wife contacted Mastic again, and in April
2010, Mastic sent Pagliaroni a letter informing him of the
warranty process and enclosing a warranty claim form. D. 269,
¶¶ 22-23; D. 271 at 4. Pagliaroni submitted a
warranty claim in April 2011. D. 269, ¶ 24; D. 271 at 4.
Mastic approved Pagliaroni's warranty claim and offered
reimbursement for the purchase price of his Oasis deck, but
Pagliaroni rejected the offer. D. 269, ¶¶ 25-26; D.
271 at 5.
lives in Harpersfield, New York. D. 269, ¶ 28; D. 275 at
2. Lynch constructed her Oasis deck in or about September
2007. D. 269, ¶ 29; D. 275 at 2. Lynch reviewed the
Limited Warranty prior to purchasing her Oasis deck and
understood that it excluded labor. D. 269, ¶¶
35-36. Lynch noticed cracking in her Oasis deck in April
2009, D. 275 at 3, and noticed cupping and warping in October
2011, D. 269, ¶ 39; D. 275 at 3, and submitted a
warranty claim to Mastic on March 6, 2012, D. 269,
¶¶ 38-42; D. 275 at 3. Mastic approved Lynch's
warranty claim and offered reimbursement for the purchase
price of her Oasis deck, but Lynch rejected the offer. D.
269, ¶¶ 43-44; D. 275 at 3.
lives in Portland, Oregon. D. 269, ¶ 46. In March 2008,
Costello engaged a builder to build a deck using Oasis. D.
269, ¶¶ 47-48; D. 273 at 2. The builder purchased
the Oasis for Costello's deck from ABC Suppliers. D. 269,
¶ 53. Costello knew of the Limited Warranty “that
had conditions regarding coverage.” D. 269, ¶ 52.
Costello noticed problems with his Oasis deck for the first
time between Spring 2009 and 2010, when he saw delamination
and warping of the deck boards. D. 269, ¶ 54; D. 273 at
3. Costello contacted Mastic, which approved his warranty
claim and offered reimbursement of the purchase price of his
Oasis deck, but Costello rejected the offer. D. 269,
¶¶ 59-61; D. 273 at 3-4.
lives in Buffalo, Minnesota. D. 269, ¶ 63. O'Brien
hired a builder to construct a deck for her in 2006. D. 269,
¶¶ 64-65. O'Brien reviewed two Oasis brochures
before she purchased Oasis decking. D. 269, ¶ 66. When
making this decision, O'Brien paid particular attention
to the Limited Warranty, which was described and referred to
in the brochures. D. 269, ¶¶ 67-68. O'Brien was
aware “that there might be exclusions from coverage
under the warranty because it was a limited warranty.”
D. 269, ¶ 69. O'Brien noticed problems for the first
time between late 2010 and spring 2011, when she noticed mold
on her Oasis deck. D. 269, ¶ 70; D. 277 at 3.
O'Brien submitted a warranty claim to Mastic on or about
June 12, 2012. D. 269, ¶ 73; D. 277 at 3. Mastic
inspected O'Brien's Oasis deck on August 28, 2012. D.
269, ¶ 74; D. 277 at 3. On September 4, 2012, Mastic
denied O'Brien's warranty claim because the cracking
in her Oasis deck was caused by the manner in which the deck
was screwed down during installation rather than a defect
covered by the Limited Warranty. D. 269, ¶¶ 75-76;
D. 277 at 3.
January 27, 2012, Pagliaroni filed this putative class
action. D. 1. In the second amended complaint, filed on May
29, 2013, Plaintiffs asserted claims against Mastic for breach
of express warranty, negligent misrepresentation and
violation of various consumer protection laws under
Massachusetts, Minnesota and New York law, and against both
Defendants for breach of implied warranty, unjust enrichment,
negligence, and declaratory and injunctive relief. D. 53
¶¶ 137-218. On September 22, 2015, the Court denied
Plaintiffs' motion for class certification, D. 231, so
only the individually named plaintiffs remain. The Court
heard the parties on the pending motions and took these
matters under advisement. D. 301.
Statute of Limitations
Pagliaroni's Implied Warranty Claim Is
argues that Pagliaroni's claims for breach of implied and
express warranties are time-barred. DNA makes the same
argument for Pagliaroni's breach of implied warranty
claim against it. Plaintiffs counter that Pagliaroni's
claims are not time-barred because the limitations period was
tolled by Mastic and DNA's fraudulent concealment of its
knowledge relating to Oasis's susceptibility to premature
cracking, pointing to Mastic testing in December 2006 which
revealed “catastrophic failures” in Oasis. D. 291
for breach of warranty under Massachusetts law are subject to
a four-year statute of limitations under contract-based
theories, or three years for tort-based theories. Mass. Gen.
L. c. 106, § 2-725(1); see Bay State-Spray &
Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404
Mass. 103, 110 (1989). Here, the Court applies a
contract-based theory because the claims allegedly arise from
an alleged breach of a warranty agreement. The original
complaint in this case, including Pagliaroni's claim, was
not filed until January 27, 2012. D. 1. Defendants argue that
the statute of limitations on Pagliaroni's claims began
to run in summer 2006 when his deck was installed. D. 269,
contract-based breach of warranty claim “accrues when
the breach occurs, regardless of the aggrieved party's
lack of knowledge of the breach. A breach of warranty occurs
when tender of delivery is made, except that where a warranty
explicitly extends to future performance of the goods and
discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or
should have been discovered.” Mass. Gen. L. c. 106,
§ 2-725(2). First, “an implied warranty, by its
nature, does not extend to future performance.”
Howard v. IKO Mfg., Inc., 2011 Mass.App. Div. 191,
2011 WL 2975813, at *3 (2011) (citing New England Power
Co. v. Riley Stoker Corp., 20 Mass.App.Ct. 25, 27 n.4
(1985)). Therefore, Pagliaroni's breach of implied
warranty claims accrued from the date of delivery in 2006 and
expired prior to the filing of the complaint in 2012.
Accordingly, the Court allows Defendant's motions as to
Pagliaroni's implied warranty claims against Mastic
(Count II) and DNA (Count III) as time-barred.
Pagliaroni's Breach of Express Warranty Claim Is
the breach of express warranty claim, Mastic argues this
warranty also does not extend to future performance, although
on its face the warranty's promise that Oasis decking
would be free “from defects in material and
worksmanship in the course of manufacture” over a
period of twenty five years suggests otherwise. D. 267-2 at
4. The Court, therefore, looks to the date when breach was or
should have been discovered. In Coady v. Marvin Lumber
& Cedar Co., 167 F.Supp.2d 166, 168 (D. Mass. 2001),
a homeowner brought an action against the manufacturer of
windows and doors that were installed in his house in 1985.
Id. The plaintiff began experiencing problems with
the windows in 1987. Id. The court held that his
claims for breaches of implied and express warranty were
time-barred because they began to accrue either at the time
of purchase in 1985 or in 1987 when he first discovered the
damage that “was immediately indicative of a breach of
warranty.” Id. at 170-71. The court noted that
this discovery was reinforced by “Coady's repeated
conversations with Marvin representatives.”
in this case, Pagliaroni first noticed damages to the deck
including cracking, mold and expanding boards, D. 269, ¶
17, had a contractor identify that the issue was not
installation-related, id., ¶ 20, and began
attempting to contact Mastic about these issues in 2007,
id., ¶ 21. Accordingly, as in the
Coady case, even if Pagliaroni's express
warranty with Mastic was contingent on future performance,
Plaintiffs have not raised any genuine issue of material fact
that his awareness of the defects was later than 2007. While
Plaintiffs rely upon Pagliaroni's description in his
deposition of the damage to the deck in 2007 as “minor
changes, ” D. 284, ¶ 17; D. 268-1 at 9, Pagliaroni
was responding to a question confirming that he was
dissatisfied with the deck beginning in the summer of 2007,
and that such dissatisfaction included “minor
changes” including reduced gaps and “a little bit
of splitting by screws.” D. 268-1 at 8-9. This
distinction does not affect the undisputed fact that this
defect, whatever its extent as initially observed, was in
2007, which means the claims began to accrue then. See
Coady, 167 F.Supp.2d at 172 (noting “[k]nowledge
of the extent of the injury does not determine the triggering
date” (citation omitted)); Minasidis v. BMW of N.
Am., LLC, 83 Mass.App.Ct. 1123, 2013 WL 1403302, at *2
(2013) (applying earlier date when plaintiff first expressed
concern “about electrical issues” at his
“service date put[ting] him on notice that there were
issues with the car he had purchased and that he might have a
viable claim against the defendants”).
Pagliaroni's claim is time barred. The Court ALLOWS
Mastic's motion as to Pagliaroni's breach of express
warranty claim (Count I).
Pagliaroni's Other Claims ...