244 F.3d 16 (1st Cir. 2001), 00-1842, Cummings v. HPG International

Docket Nº:00-1842
Citation:244 F.3d 16
Case Date:March 22, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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244 F.3d 16 (1st Cir. 2001)




HPG INTERNATIONAL, INC. Defendant, Appellee.

No. 00-1842

United States Court of Appeals, First Circuit

March 22, 2001

Heard February 7, 2001


[Hon. Douglas P. Woodlock, U.S. District Judge]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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David R. Suny, with whom Susan F. Brand and Cummings Properties, LLC, were on brief, for appellants.

Jeffrey M. Graeber, with whom Graeber & Davis, P.C., Kenneth H. Zucker, Michael S. Hino, Stuart D. Lurie, and Pepper Hamilton LLP, were on brief, for appellee.

Before Selya, Lynch, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

In the early 1980s, Cummings Properties bought several roofs manufactured by HPG International. The roofs were installed on commercial buildings in Woburn and Burlington, Massachusetts. The roofs were composed of unreinforced polyvinyl chloride membranes and were sold with ten year warranties. After the warranty period, Cummings learned that such PVC roofs were subject to catastrophic failure and, in 1997, inquired of HPG. HPG recommended the immediate replacement of all of the roofs. Before Cummings did so, one of the roofs shattered and had to be replaced, mid-winter.

Although the roofs had outlasted the warranty periods, Cummings sued for deceit and negligent misrepresentation, based on oral statements HPG had made at the time of sale. Cummings also sued for violations of Mass. Gen. Laws ch. 93A, saying, inter alia, that HPG at least had a duty to warn, both before and after the end of the ten year warranty period.

The district court entered summary judgment for HPG on all claims. The case presents numerous issues under Massachusetts commercial law.


On appeal from entry of summary judgment, we summarize the facts in the light most favorable to plaintiffs.1

In 1980, Cummings sought to replace the roof on one of several commercial buildings in Massachusetts that it owns. Cummings considered a variety of roofing systems on the market, including unreinforced polyvinyl chloride (PVC) membrane roofs manufactured by HPG International. During several meetings between HPG and Cummings, HPG representatives told Cummings that their PVC roof: 1) would last 20 years; 2) would perform better and last the same or longer than other commercial roof systems on the market; and 3) was suitable for use in the variable climate of Massachusetts. In 1980, 1981, and 1983, Cummings purchased unreinforced PVC roofs from HPG for three of their buildings. In 1990, St. Thomas Realty Fund, Inc., a Cummings entity, purchased a building which had had such a HPG roof installed in 1986. Each roof carried with it a ten year warranty, which covered any condition caused by defective material supplied by HPG.

Unreinforced PVC membrane roofs proved to be prone to "shattering," or sudden fragmentation of the membrane. Unreinforced PVC roofs are most likely to shatter in cold weather. HPG learned of the problem as early as 1988, but it is not clear how well known the shattering phenomenon was before that time. By 1990, HPG maintained a log of "Shatter Occurrences" documenting 121 of its roofs that had shattered, at an average age of between eight to ten years.

In 1990, two roofing companies elsewhere that had installed HPG unreinforced PVC membrane roofs contacted HPG about the shattering problem. One asked HPG to join it in sending a notice to owners of those roofs to warn them of the defect and to recommend remedial action

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to prevent possible future shattering. The other, a warranty service contractor for HPG, expressed concern about the risk of shattering and urged HPG to issue a statement. It also suggested HPG offer reduced price upgrades on out-of-warranty roofs to prevent shattering. HPG apparently did not act on those suggestions, nor did it notify Cummings of the shattering phenomenon.

Also in 1990, two roofing industry trade groups issued a joint paper documenting the shattering phenomenon occurring in unreinforced PVC roofs and recommending safety and replacement procedures. Another paper, published sometime after 1992, documented problems between 1979 and 1984 with unreinforced PVC roofs such as embrittlement, shrinkage, and impact fractures, although it was unclear whether there were any incidents of shattering during that period.

Cummings learned of the shattering phenomenon around 1997 and contacted HPG, which recommended the immediate replacement of Cummings' unreinforced roofs. Before Cummings had taken any action, however, on December 15, 1997, the roof installed in 1980 shattered, forcing Cummings to replace it on an emergency basis. Cummings has since replaced two of the remaining three roofs as a precaution, and plans to replace the fourth roof soon. HPG has refused to assume financial responsibility for those replacements.

Cummings instituted this action seeking compensation for the costs associated with replacing the four roofs, claiming that HPG made representations about the useful life and quality of the roofs which, in light of the shattering defect, were false and misleading. Cummings says it relied on HPG's false representations and, since the roofs did not last 20 years or perform better than other roofs, the fact that the warranties have expired should not bar its claims. Cummings also alleges that HPG committed unfair practices in violation of Massachusetts' consumer protection law, Mass. Gen. Laws ch. 93A, § 11, because HPG failed to warn it of the shattering defect, which HPG allegedly knew about by 1988, while Cummings' warranties were still in effect.

The district court granted summary judgment in favor of HPG, concluding that HPG's representations were non-actionable statements of opinion, and also finding that there was no evidence HPG knew the statements were false at the time they were made. The court held that HPG had not violated Chapter 93A by failing to warn Cummings about the risk of shattering, if a duty to warn existed at all. HPG was also granted summary judgment on Cummings' claim based on the roof owned by plaintiff St. Thomas Realty, as the court found no evidence that St. Thomas Realty's predecessor was the recipient of any false representations.


We review de novo the district court's grant of summary judgment. Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(c)). Massachusetts law governs.

A. The Misrepresentation Claims

At first blush, it seems odd to permit an action for either deceit or negligent misrepresentation where the supposed misrepresentation is the subject of an express warranty (which disclaims all other warranties by its terms) and it is clear there was no breach of that warranty. In general, under Massachusetts law, if "the contract was fully negotiated and voluntarily signed, [then] plaintiffs may not raise as fraudulent any prior oral assertion

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inconsistent with a contract provision that specifically addresses the particular point at issue." Starr v. Fordham, 648 N.E.2d 1261, 1268 (Mass. 1995) (quoting Turner v. Johnson & Johnson, 809 F.2d 90, 97 (1st Cir. 1986)).

But as to deceit actions, Massachusetts courts, for public policy reasons, have long held that a party cannot induce a contract by fraudulent misrepresentations and then use contractual devices to escape liability. See Bates v. Southgate, 31 N.E.2d 551, 558 (Mass. 1941) ("[C]ontracts or clauses attempting to protect a party against the consequences of his own fraud are against public policy and void where fraud inducing the contract is shown . . .."). Here, Cummings claims that it would not have bought the roofs but for HPG's misrepresentations, and so its deceit claim, based on HPG's allegedly fraudulent misrepresentations, is not barred by the existence of an express warranty.

As for Cummings' negligent misrepresentation claim, in some circumstances an express warranty will operate as a bar to recovery. Where the legality of the bargaining process is not at issue, a party cannot avoid its contractual obligations by seeking recovery for negligent misrepresentation. See Sound Techniques, Inc. v. Hoffman, 737 N.E.2d 920, 927 (Mass. App. Ct. 2000) (declining to "ignore our general policy of upholding freedom to contract by allowing [plaintiff] to avoid a contractual disclaimer that it agreed to, uninfluenced by any fraud or other egregious or intentional misbehavior on [defendant's] part"). The express warranty in this case does not contain an integration clause like the one in Sound Techniques, which stated that the party "has not been influenced to enter into this transaction nor has [it] relied upon any warranties or representations not set forth in this instrument." Id. at 922.2 We do not, however, explore whether this difference in warranty language matters under state law, as HPG has not argued this point.

1. Opinion v. Fact

There is an important threshold determination for any misrepresentation claim, be it for deceit or for negligent misrepresentation: only statements of fact are actionable; statements of opinion cannot give rise to a deceit action, McEneaney v....

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