Pacholec v. Home Depot U.S.A. Inc., 093008 FED3, 07-3593

Docket Nº:07-3593
Party Name:MIECZYSLAW PACHOLEC, individually and on behalf of all other similarly situated individuals, Appellant v. HOME DEPOT U.S.A. INC., a Delaware corporation
Case Date:September 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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MIECZYSLAW PACHOLEC, individually and on behalf of all other similarly situated individuals, Appellant

v.

HOME DEPOT U.S.A. INC., a Delaware corporation

No. 07-3593

United States Court of Appeals, Third Circuit

September 30, 2008

NOT PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) September 25, 2008.

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 06-cv-00827) District Judge: Honorable Peter G. Sheridan.

Before: BARRY, AMBRO, and JORDAN, Circuit Judges.

OPINION

AMBRO, Circuit Judge.

Home Depot offers do-it-yourselfers who rent tools from it the option of purchasing a "Damage Waiver" for an additional fee. The plaintiffs, who represent a putative class of renters that opted for the waiver, seek damages under New Jersey's Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, because they allege that it was "worthless" because it "add[ed] no protection not already provided by Home Depot's standard rental agreement."1 Pl. Br. at 2. After considering the plaintiffs' arguments, the District Court granted summary judgment in Home Depot's favor. We affirm.

I.

On appeal, the plaintiffs argue that "[t]here is . . . no situation in which the Damage Waiver will ever apply; it excludes coverage for the only exposure the renter has under the contract, which is liability for damage caused by improper use," and therefore Home Depot was not entitled to summary judgment. Pl. Br. 4. To assess their claims, we must construe the Rental Agreement and Damage Waiver, read as a whole and informed by the ordinary meaning of the words they contain, to determine whether there is a question of fact as to the extent of the agreements' protections vis a vis each other, and thus whether the Damage Waiver provides any protection above and beyond that offered by the Rental Agreement. Vanguard Telecommc'ns, Inc. v. S. New England Tel. Co., 900 F.2d 645, 651 (3d Cir. 1990); F ED. R. C IV. P. 56.

II.

The Rental Agreement places the risk of loss on the renter in every instance, though it excuses that renter from paying for the "reasonable wear and tear resulting from proper use." By comparison, the Damage Waiver relieves the customer of "liability for accidental damage to [the tool], but not for any losses or damages due to theft, burglary, misuse or abuse, theft by conversion, intentional damage...

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