Traxler v. PPG Indus., Inc.

• Decision Date: 27 January 2016
• Docket Number: CASE NO. 1:15 CV 912
• Citation: 158 F.Supp.3d 607
• Parties: Matthew W. Traxler, Angie Banyas, Alex KinsFather, Chris Morrison, Diana Judd, Nancy Kress, Richard Conway, David Kress, Richard Conway, David Naeger, Sandra Howard, individually and on behalf or all others similarly situated, Plaintiffs, v. PPG Industries, Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

158 F.Supp.3d 607

Matthew W. Traxler, Angie Banyas, Alex KinsFather, Chris Morrison, Diana Judd, Nancy Kress, Richard Conway, David Kress, Richard Conway, David Naeger, Sandra Howard, individually and on behalf or all others similarly situated, Plaintiffs,

v.PPG Industries, Inc., et al., Defendants.

CASE NO. 1:15 CV 912

United States District Court, N.D. Ohio, Eastern Division.

Signed January 27, 2016

Bryan L. Clobes, Cafferty Clobes Meriwether & Sprengel, Philadelphia, PA, Daniel O. Herrera, Cafferty Clobes Meriwether & Sprengel, Katrina Carroll, Kyle A. Shamberg, Lite Depalma Greenberg, Chicago, IL, Joseph B. Kenney, Andrew W. Ferich, Joseph G. Sauder, Matthew D. Schelkopf, Chimicles & Tikellis, Haverford, PA, Daniel R. Karon, Law Office of Daniel R. Karon, Thomas A. Muzilla, Cleveland, OH, Michele M. Vercoski, Richard D. McCune, Jr., McCune Wright, Redlands, CA, Thomas B. Malone, Philadelphia, PA, for Plaintiff.

Cari K. Dawson, Scott A. Elder, Alston & Bird, Atlanta, GA, Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, John W. Hofstetter, Chardon, OH, for Defendant.

OPINION AND ORDER

Dan Aaron Polster, United States District Judge

Presently before the Court is the Motion to Dismiss of Defendants PPG Industries, Inc., PPG Architectural Finishes, Inc., and PPG Architectural Coatings, LLC (collectively, “Defendants” or “PPG”). (Doc #: 26 (“Motion”)). The Court notes that the Motion does not seek dismissal of all claims. Specifically, Defendants do not seek dismissal of the claims for breach of the implied warranty of merchantability brought by Plaintiffs residing in the States of Massachusetts, Michigan and Missouri (Count IV). Nor do they seek dismissal of the Magnuson-Moss Warranty Act claims brought by the same Plaintiffs based on their merchantability claims (Count I). Having reviewed the Motion, Plaintiffs' opposition brief (Doc #: 30), and PPG's reply brief (Doc #: 32), and the record, the Court is prepared to issue its ruling.

I.

This putative class action arises from PPG's marketing and sale of Olympic®> Rescue It!® branded products for resurfacing worn or weathered wood and concrete (“Rescue It! Products” or “Products”) to consumers residing in nine states¹ who purchased the Products from Lowe's or another retailer.² Plaintiffs allege that PPG made a host of misrepresentations about the quality, durability and longevity of these Products so that Plaintiffs would rely upon them when deciding whether to purchase PPG's Products or those of its competitors. Furthermore, contrary to PPG's representations, the Products are plagued by latent defects that prevent the Products from properly adhering to the underlying decking or concrete, routinely causing the Products to bubble, crack and peel, damaging the decks to which they are applied and resulting in diminished property value. Plaintiffs allege that PPG had actual notice of these problems via publicly available customer complaints on PPG's website, Lowe's website, and direct interaction with customer service representatives, and sought to mask the deficiencies inherent in the Products by regularly redesigning their website, re-editing promotional videos, and altering product preparation and application instructions—all in an effort to shift the blame for the defects onto its customers. Finally, PPG continues to market and sell the Products to millions of unsuspecting consumers despite knowing they are not fit for their intended purpose and are destined to fail prematurely.

Based on these factual allegations, Plaintiffs from nine states bring the following claims against PPG.³ Count I alleges express and implied warranty claims under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1). Count II seeks declaratory, injunctive, or equitable relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Count III alleges breach of express warranty. Count IV alleges breach of the implied warranty of merchantability under the laws of Ohio, Pennsylvania, Washington, California, Michigan, Massachusetts, and Missouri. Count V alleges breach of the implied warranty of merchantability under the laws of New York and North Carolina. Count VI alleges breach of the implied warranty of fitness for a particular purpose under the laws of Ohio, Pennsylvania, Washington, California, Michigan, Massachusetts, and Missouri. Count VII allege breach of the implied warranty of fitness for a particular purpose under the laws of New York and North Carolina. Count VIII alleges a claim for unjust enrichment. Counts IX through XIX allege claims under the consumer protection and false advertising statutes of Plaintiffs' home states (Counts IX to XIX).

II.

When determining whether Plaintiff has stated a claim upon which relief can be granted, the Court must construe the complaint in the light most favorable to the Plaintiff, accepting all factual allegations as true, and determine whether the Complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiff's obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id . Although a Complaint need not contain detailed factual allegations, its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the Complaint are true.” Id . The Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

The Court in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), further explains the “plausibility” requirement, stating, “a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 566, 127 S.Ct. 1955 ). Furthermore, “the plausibility standard is not akin to a 'probability requirement', but it asks for more than a sheer possibility that a defendant acted unlawfully.” Id . This determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Importantly, while courts must construe pro se complaints liberally in favor of the plaintiff, they too must satisfy the “facial plausibility” standard articulated in Twombly.

III.

A. Express Warranty (Count III)

The following express limited warranty at issue in Count III is written on the label appended to all cans of Rescue It! Products purchased by Plaintiffs, and provides:

Since 1938 more people have protected the natural beauty of their homes with OLYMPIC than any other stain. Olympic guarantees your satisfaction with the application and performance properties of this product when applied to a properly prepared surface in accordance with label directions. OLYMPIC MAKES NO OTHER EXPRESS WARRANTIES. IF THE PRODUCT FAILS TO CONFORM TO THIS LIMITED WARRANTY, OLYMPIC WILL, AT YOUR OPTION, FURNISH REPLACEMENT PRODUCT OR REFUND THE PURCHASE PRICE. LABOR, COSTS OF LABOR FOR THE APPLICATION OR REMOVAL OF ANY PRODUCT, AND ALL OTHER DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED. To make a claim under this Limited Warranty, supply dated proof of purchase to the store where you purchased the product or to OLYMPIC, One PPG Place, Pittsburgh, PA 15272. This Limited Warranty gives you specific legal rights, and you may also have other rights that vary from state to state. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above exclusion or limitation may not apply to you.

(Doc #: 26-2, at 2 of 15.) The express limited warranty on PPG's website currently provides:

Warranty: Olympic guarantees satisfaction with the application and performance properties of this product when applied to a properly prepared surface in accordance with label directions. This guarantee is limited to your choice of product replacement or refund of the purchase price.

See http://www.olympic.com/products/olympic-rescue-it-wood-and-concrete-resurfacer.

PPG's limited warranty on the labels has three essential features: (1) it guarantees satisfaction with the product when applied to a properly prepared surface in accordance with the label's directions, (2) it provides that PPG will refund the purchase price or provide replacement product to a dissatisfied customer upon request, and (3) it prohibits the buyer from recovering consequential (and other) damages. The limited warranty on PPG's website has two essential features: (1) it guarantees satisfaction with the product when applied to a properly prepared surface in accordance with the label's directions, and (2) it provides that PPG will refund the purchase price or provide replacement product. Notably missing from the website-warranty is a provision excluding consequential damages.

Assuming for purposes of argument that the label-warranty subsumes the website-warranty, PPG contends that its limitation of remedies and exclusion of consequential damages complies with the Uniform Commercial Code (“UCC” or “Code”) of Plaintiffs' home states. Because Plaintiffs do not allege that they were unsatisfied with the Product and PPG failed to honor their request for refund or replacement product, they fail to state a claim for breach of express warranty. In support of this contention, PPG cites cases from each home state wherein courts have rejected claims for damages beyond repair or replacement where the seller's warranty contains an exclusive remedy clause similar to the one at issue, or excludes consequential damages, or does both. (See cases listed at Doc #: 26-1, at 20 nn.7, 8.)

Plaintiffs argue that PPG's express limitation...