Mayernik v. CertainTeed LLC

• Decision Date: 05 August 2020
• Docket Number: Case No.: 1:20-cv-00132
• Citation: 476 F.Supp.3d 625
• Parties: Joseph MAYERNIK, Plaintiff, v. CERTAINTEED LLC, Defendant.
• Court: U.S. District Court — Southern District of Ohio

476 F.Supp.3d 625

Joseph MAYERNIK, Plaintiff,

v.CERTAINTEED LLC, Defendant.

Case No.: 1:20-cv-00132

United States District Court, S.D. Ohio, Western Division.

Filed August 5, 2020

Wilbert Benjamin Markovits, Terence Richard Coates, Markovits, Stock & DeMarco LLC, Cincinnati, OH, for Plaintiff.

Laura E. Salzman, Roetzel & Andress LPA, Cincinnati, OH, Thomas Louis Rosenberg, Roetzel & Andress, Columbus, OH, for Defendant.

OPINION AND ORDER

Michael R. Barrett, Judge This matter is before the Court on Defendant CertainTeed LLC's partial Motion to Dismiss. (Doc. 8). Plaintiff Joseph Mayernik filed a Response in Opposition (Doc. 12) and Defendant filed a Reply (Doc. 14).

I. BACKGROUND

Plaintiff is a homeowner who built his dream home in Cincinnati, Ohio in 2013. (Doc. 1 ¶ 9). Defendant is a manufacturer, supplier, and seller of roofing materials. (Id. ¶ 10). After research into various types of roof shingles and substantial due diligence, Plaintiff purchased roof shingles for his dream home from Defendant. (Id. ¶ 1). Specifically, on July 31, 2013, Plaintiff purchased Defendant's composite, lightweight Symphony Slate Shingles ("Shingles") that came with a 50-year warranty. (Id. ¶¶ 1, 14, 19). Notably, after Plaintiff selected Defendant's Shingles, he modified the architectural structure of his home's roof to hold less weight, as the Shingles were a composite material that weighed less than standard slate shingles. (Id. ¶ 18).

The Shingles’ warranty includes the following language:¹

What and Who is Covered and for How Long

CertainTeed warrants to the original owner/consumer that, when subject to normal and proper use, Symphony shingles will be free from manufacturing defects that cause leaks for fifty (50) years from the date of original installation and that CertainTeed will pay to repair or replace, at its option, any shingles CertainTeed determines to be defective under the terms of this Limited Warranty.

In the event of repair or replacement pursuant to the terms of this Limited Warranty, the original warranty applicable at the time of original installation shall apply to the replacement shingles or the repaired shingles.

...

SureStart™ Protection

All of CertainTeed's shingle products are covered by SureStart protection. Under this warranty feature, CertainTeed, at no charge, will pay to repair or replace, at its option, any shingles CertainTeed determines to be defective and that cause leaks during the applicable SureStart period. For Symphony shingles, the SureStart period begins when the original shingle installation has been completed and terminates at the competition of its seventh (7th) year of service following original installation. CertainTeed's maximum liability under SureStart is equal to the reasonable material and labor cost to replace or repair the defective shingles that cause leaks, as determined by CertainTeed. Roof tear-off, metal work, flashing and disposal expenses, and other costs or expenses incurred during such repair or replacement are not covered or reimbursed by this Limited Warranty.

...

LIMITED WARRANTY

AND LIMITATIONS OF REMEDIES

THE OBLIGATIONS CONTAINED IN THIS LIMITED WARRANTY CONSTITUTE THE EXCLUSIVE REMEDY AND ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER OBLIGATIONS, GUARANTEES AND

WARRANTIES. APPLICABLE STATE LAW WILL DETERMINE THE PERIOD OF TIME FOLLOWING THE SALE THAT A PROPERTY OWNER/CONSUMER MAY SEEK A REMEDY UNDER THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CERTAINTEED'S OBLIGATIONS, RESPONSIBILITIES, AND/OR LIABILITY SHALL BE LIMITED TO REPAIRING OR REPLACING THE DEFECTIVE PRODUCT OR PROVIDING A REFUND PER THE TERMS OF THIS LIMITED WARRANTY. IN NO EVENT SHALL CERTAINTEED BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGE TO THE BUILDING, ITS CONTENTS, OR ANY PERSONS OR PROPERTY, THAT OCCUR AS A RESULT OF A BREACH. IF YOUR STATE DOES NOT ALLOW EXCLUSIONS OR LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

THIS WARRANTY APPLIES TO SYMPHONY SHINGLES INSTALLED DURING THE CALENDAR YEAR OF 2013.

(Id. ¶¶ 17, 51-52).

In late 2018, approximately five years after Plaintiff purchased and Defendant installed the Shingles, some of the Shingles on the East-facing side of Plaintiff's home began discoloring and cracking down the middle, and water leaked into the home causing damage. (Id. ¶¶ 1, 20). Plaintiff contacted Defendant to request the immediate repair or replacement of those Shingles on the East-facing side of his home pursuant to the 50-year warranty. (Id. ¶ 20). At the end of 2018, Defendant's employee, David Hunt, visited Plaintiff's home. (Id. ¶ 21). Mr. Hunt used a drone to take video of the entire roof, and the video showed that many of the Shingles on the roof were cracking down the middle. (Id. ¶ 22). Mr. Hunt informed Plaintiff that the Shingles were defective, that he would issue a report back to Defendant, and that Defendant would begin replacing the defective Shingles soon. (Id. ¶ 23). Mr. Hunt assigned Claim Number CR0818420 to Plaintiff's warranty claim. Id.

On February 22, 2019, Defendant sent Plaintiff a letter stating that: "The Symphony warranty offers shingle replacement and a cost of labor. Unfortunately we do not manufacture the Symphony shingle any longer." (Id. ¶ 24).

Plaintiff subsequently notified Defendant, on multiple occasions, that any warranty repair or replacement work would need to be completed before October 2019, as Ohio weather generally does not permit for the opening of a roof during winter and to limit any additional water damage to his home. (Id. ¶ 30). Regarding repairing the Shingles, Defendant did not, and has not, offered to repair the Shingles. (Id. ¶ 26). With respect to replacing the Shingles, Defendant offered to replace the Shingles with asphalt shingles, as it no longer produces lightweight, synthetic slate shingles of any kind. (Id. ¶¶ 26-27). However, the structural integrity of Plaintiff's home cannot accommodate asphalt shingles due to the architectural modifications made to Plaintiff's roof based on the Shingles’ design. (Id. ¶¶ 28-29).

Plaintiff found a composite, lightweight slate shingle from another company, DaVinci Roofscape, ("DaVinci shingles") that Plaintiff believes is suitable replacement for the Shingles, and found an installation company qualified to install the DaVinci shingles. (Id. ¶¶ 29, 31). The DaVinci shingles’ material costs estimate is approximately $168,287.99, the installation bid is approximately $461,560.54, and the removal and replacement cost associated with any and all copper

flashing, edging, etc. is approximately $110,000.00. (Id. ¶¶ 32-34). Plaintiff submitted the above cost breakdown regarding the Shingles’ replacement to Defendant on multiple occasions, including September 6, 2019. (Id. ¶ 35).

Plaintiff's primarily contact with Defendant regarding his warranty claim has been with Defendant's representative, Bill Hammerstone. (Id. ¶ 38). In September 2019,² and after nearly eight months of receiving no meaningful responses from Mr. Hammerstone, Plaintiff again called Mr. Hammerstone to inquire about the status of the warranty claim. (Id. ¶ 39). Mr. Hammerstone's supervisor, "Mr. Bill"—a person who Plaintiff doubts really exists—answered the phone and informed Plaintiff that his claims file was empty. (Id. ¶ 39). Plaintiff then called Mr. Hunt, who indicated that he knew that Defendant's executive team knew of Plaintiff's warranty claim because Mr. Hunt saw a blow-up picture of Plaintiff's home at an executive team meeting earlier that year. (Id. ¶ 40).

On October 17, 2019, Defendant sent Plaintiff an email, from the email address titled noreply@salesforce.com, and included the warranty claim number that Mr. Hunt assigned, but did not include an individual point of contact. (Id. ¶ 41). The email contained a document titled "RELEASE – INDIVIDUAL" and offered to pay Plaintiff an unknown amount as complete satisfaction for the repair or replacement value under the warranty. (Id. ¶ 42). Neither Defendant's unsigned e-mail nor the attached document explain Defendant's reasoning behind the October 17, 2019 offer. (Id. ¶ 43).

On February 14, 2020—6 years, 6 months, and 2 weeks after Plaintiff purchased and Defendant installed the Shingles—Plaintiff filed the Complaint in this matter and brings four counts against Defendant: breach of the Ohio Consumer Sales Practices Act, breach of express warranty pursuant to the Magnuson Moss Warranty Act, breach of express warranty pursuant to Ohio law, and fraud pursuant to Ohio law. (Doc. 1).

On March 12, 2020, Defendant filed two documents with the Court. The first is a Notice of Offer to Cure Pursuant to Ohio Revised Code § 1345.092, part of the Ohio Consumer Sales Practice Act, in which CertainTeed Corporation, Defendant's successor, notified the Court that Defendant served an Offer to Cure upon Plaintiff's counsel in the total amount of $303,400.00 to satisfy Plaintiff's count under the Ohio Consumer Sales Practice Act. (Docs. 4, 4-1). The second is Defendant's Offer of Judgment under Federal Rule of Civil Procedure ("Rule") 68 in which Defendant offers to allow judgment to be entered against it, in the total amount of $390,400.00, contingent on Plaintiff's dismissal, with prejudice, of all counts against it. (Doc. 5). Plaintiff did not accept either offer.

Defendant now moves, pursuant to Rule 12(b)(6), to partially dismiss the Complaint. (Doc. 8). In particular, it moves for dismissal of Plaintiff's count one for breach of the Ohio Consumer Sales Practices Act and counts two and three for breaches of express warranty, as it argues that those counts are time-barred under the applicable statutes of limitations. Id.

II. ANALYSIS

In deciding a Rule 12(b)(6) motion to dismiss, this Court must "construe the complaint in the light most favorable to the plaintiff, accept [the plaintiff's] allegations as true, and draw all reasonable inferences in favor of the plaintiff." Bassett v....