697 F.2d 818 (8th Cir. 1983), 82-1078, R.W. Murray Co. v. Shatterproof Glass Corp.

Docket Nº:82-1078.
Citation:697 F.2d 818
Party Name:R.W. MURRAY CO., a corporation, and The Citadel, Ltd., a limited partnership, by its general partners, Robert E. Kresko, Harlan R. Crow and George A. Shutt, Appellants, v. SHATTERPROOF GLASS CORPORATION, a corporation and Anaconda Aluminum Company, a corporation, Appellees.
Case Date:January 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 818

697 F.2d 818 (8th Cir. 1983)

R.W. MURRAY CO., a corporation, and The Citadel, Ltd., a

limited partnership, by its general partners,

Robert E. Kresko, Harlan R. Crow and

George A. Shutt, Appellants,


SHATTERPROOF GLASS CORPORATION, a corporation and Anaconda

Aluminum Company, a corporation, Appellees.

No. 82-1078.

United States Court of Appeals, Eighth Circuit

January 11, 1983

Submitted June 15, 1982.

Page 819

[Copyrighted Material Omitted]

Page 820

Popkin, Stern, Heifetz, Lurie, Sheehan, Reby & Chervitz, Ronald U. Lurie, Richard J. Sheehan, St. Louis, Mo., for The Citadel, Ltd.

Thompson & Mitchell, W. Stanley Walch, Michael D. O'Keefe, Dan H. Ball, St. Louis, Mo., for R.W. Murray Co.

Robert S. Allen, Steven A. Muchnick, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for Shatterproof Glass Corp.

Guilfoil Symington, Petzall & Shoemake, Jim J. Shoemake, Francis G. Slay, J. Bennett Clark, St. Louis, Mo., for co-appellee Anaconda Aluminum Co.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and STEVENS, [*] District Judge.

ROSS, Circuit Judge.

On July 15, 1981, appellants, R.W. Murray Co. and The Citadel, Ltd., filed suit against the appellees, Shatterproof Glass Corporation and Anaconda Aluminum Company alleging breaches of express and implied warranties, negligence, and misrepresentation in connection with a sale of goods by the appellees. Jurisdiction was based on 28 U.S.C. Sec. 1332 (1976) (diversity of citizenship). Based upon appellees' Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a cause of action, the district court, 1 529 F.Supp. 297, dismissed the instant action on December 21, 1981. After carefully considering the record and arguments on appeal, we reverse in part and remand to the district court for further proceedings consistent with this opinion.

I. Background

Appellant The Citadel owns an office building in St. Louis, Missouri, which was constructed between 1974 and 1976 pursuant to a contract with appellant R.W. Murray, the general contractor. In July 1974 Murray entered into a subcontract with Boain Glass Company under which Boain agreed to furnish all labor, materials and equipment required for the curtainwall, glass, and glazing to be used in the construction of the building. Subsequently, Boain, which is now an inactive Illinois corporation, contracted with appellees Shatterproof and Anaconda. Under these contracts Shatterproof agreed to supply the spandrel and vision panels for the building. Anaconda agreed to supply the aluminum framing to be used in the curtainwall system in the building. Materials supplied by appellees pursuant to these contracts were delivered to the construction site and installed between 1974 and 1976.

The Citadel and Murray complaint alleges that the Shatterproof vision and spandrel panels and the Anaconda Aluminum framing

Page 821

are defective in several respects, resulting in breakage and accumulation of dust and moisture obscuring vision. Furthermore, the complaint alleges that Shatterproof has discontinued the manufacture of the particular mirror color tint used in the glass curtainwall panels originally supplied, and that Shatterproof has refused Murray's demands to manufacture replacement panels of the same color tint, thereby making it impossible for Murray and The Citadel to replace the defective panels with matching panels. Although Murray and The Citadel were not direct parties to the Boain contracts with Shatterproof and Anaconda, they allege that they are third party beneficiaries to these contracts. In addition, Murray and The Citadel allege that Shatterproof expressly warranted to them, in its general literature distributed to the public, that the vision and spandrel panels it supplied would be free from certain defects for a period of twenty years. As a result of the alleged negligence, misrepresentations, and breaches of the contracts and warranties in question, appellants are seeking in excess of $3,000,000 in damages.

Before addressing the issues presented on appeal it is appropriate to reiterate the well established general legal standards governing motions to dismiss under Fed.R.Civ.P. 12(b)(6). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). In appraising the sufficiency of the complaint, the court must view the complaint in the light most favorable to the plaintiff, and should not dismiss the complaint "merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations." Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). "Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir.1978) (citations omitted), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979). One such "insuperable bar to relief" justifying dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), occurs in cases in which it "appears from the face of the complaint itself that the limitation period has run." Guy v. Swift & Co., 612 F.2d 383, 385 (8th Cir.1980).

Finally, it should be noted that in diversity cases such as the instant case in which state law governs the issues the district court's interpretation of that local law is entitled to great weight. Hunter v. United States, 624 F.2d 833, 837 (8th Cir.1980); Bazzano v. Rockwell International Corp., 579 F.2d 465, 469 (8th Cir.1978). "Nevertheless, we are not bound by a district court's interpretation of state law and must reverse if we find that the district court has not correctly applied local law," id. (citations omitted), or if such interpretation of state law "is fundamentally deficient in analysis or otherwise lacking in reasoned authority." Ancom, Inc. v. E.R. Squibb & Sons, Inc., 658 F.2d 650, 654 (8th Cir.1981).

II. Express Warranty Claims

a. Shatterproof

Appellants brought two counts premised upon express warranties against appellee Shatterproof. In count I appellants alleged that they were the third party beneficiaries of an express warranty made by Shatterproof to Boain to the effect that the spandrel and vision panels would be free for a period of ten years from defects in material or workmanship and that Shatterproof would replace all defective panels. 2 In

Page 822

count III appellants alleged that, through its general product literature distributed to the public, Shatterproof expressly warranted to appellants that for a period of twenty years vision and spandrel panels supplied by Shatterproof would be free from defects in material or workmanship which result in moisture accumulation, film formation or dust collection between the interior surfaces. Shatterproof limited its liability under this warranty to replacement of defective panels. 3

Under Missouri law an action for breach of contract for the sale of goods "must be commenced within four years after the cause of action has accrued." Mo.Ann.Stat. Sec. 400.2-725(1) (Vernon 1965).

A cause of action 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.

Id. at 400.2-725(2) (emphasis added).

The district court concluded that the alleged Shatterproof express warranties in the instant case did not constitute warranties extending to "future performance of the goods," but were only replacement commitments by Shatterproof. Therefore, because it determined that the cause of action on these express warranty claims accrued at the time the goods were delivered by Shatterproof between 1974 and 1976, and the appellants' complaint was not filed until 1981, the court held that any express warranty causes of action against Shatterproof were barred by the four year statute of limitations. R.W. Murray Co. v. Shatterproof Glass Corp., 529 F.Supp. 297, 299 (E.D.Mo.1981). We do not agree.

No Missouri state court cases have been found which delineate the standards to be applied in determining whether a warranty explicitly extends to future performance. 4 However, in Binkley Co. v. Teledyne Mid-American Corp., 333 F.Supp. 1183 (E.D.Mo.1971), aff'd, 460 F.2d 276 (8th Cir.1972) (applying Missouri law), the federal district court addressed the question of whether a warranty providing that a welder would "be capable of welding at 1000' per fifty minute hour, or a gross rate of 1200' per hour" was a warranty which explicitly extends to future performance under Mo.Ann.Stat. Sec. 400.2-725(2). 333 F.Supp. at 1186. The court noted the general "judicial reluctance to infer from the language of express warranties terms of prospective operation that are not clearly stated," and indicated that the term "explicit" meant that the warranty of future performance must be unambiguous, clearly stated, or distinctly set forth. Because the warranty language in Binkley did not make reference to future time, the court concluded that the warranty did not "constitute an 'explicit' warranty of future performance." Id. at 1186-87.

Page 823

The basic principle underlying Binkley is that in order to constitute a warranty of future...

To continue reading