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Pagliaroni v. Mastic Home Exteriors, Inc.

United States District Court, D. Massachusetts

February 15, 2018

ANTHONY PAGLIARONI, VICKI O'BRIEN, JOHN COSTELLO and CATHERINE LYNCH on behalf of themselves and others similarly situated, Plaintiffs,


          Denise J. Casper United States District Judge.

         I. Introduction

         Anthony Pagliaroni (“Pagliaroni”), Vicki O'Brien (“O'Brien”), Catherine Lynch (“Lynch”) and John Costello (“Costello”) (collectively, “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.

         II. Standard of Review

         The 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).

         III. Factual Background

         Both 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 such evidence.

         DNA 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, ¶¶ 6-7.

         Pagliaroni 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.

         Lynch 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.

         Costello 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.

         O'Brien 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.

         IV. Procedural History

         On January 27, 2012, Pagliaroni filed this putative class action. D. 1. In the second amended complaint, filed on May 29, 2013, Plaintiffs[1] 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.

         V. Discussion

         A. Statute of Limitations


         a) Pagliaroni's Implied Warranty Claim Is Time-Barred

         Mastic 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 at 5.

         Claims 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, ¶ 11.

         A 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.

         b) Pagliaroni's Breach of Express Warranty Claim Is Time-Barred

         As to 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.” Id.

         Similarly, 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”).

         Accordingly, Pagliaroni's claim is time barred. The Court ALLOWS Mastic's motion as to Pagliaroni's breach of express warranty claim (Count I).

         c) Pagliaroni's Other Claims ...

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