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Pro-Spec Painting, Inc. v. The Sherwin-Williams Co.

United States District Court, D. New Jersey

May 12, 2017


          Paul A. Bucco, Esq., Davis Bucco, Attorney for Plaintiff

          Scott I. Unger, Esq. Bianca Alexis Roberto, Esq. Stark & Stark, Attorneys for Defendant


          HON. JEROME B. SIMANDLE, Chief U.S. District Judge


         This matter comes before the Court on a motion for judgment on the pleadings by Defendant the Sherwin-Williams Company. [Docket Item 19.] In this action, Plaintiff Pro-Spec Painting, Inc., asserts claims for breach of contract (Count I), negligence (Count II), and breach of express and implied warranty (Count III), arising from the sale of allegedly defective primer by Defendant to Plaintiff. [Amended Complaint, Docket Item 5.] Plaintiff is a painting company that contracted with the East Windsor Township Municipal Utilities Authority to paint a water tower. [Am. Compl. at ¶ 3.] Pursuant to Plaintiff's agreement with the Municipal Utilities Authority ("MUA"), Plaintiff used products manufactured and sold by Defendant to prepare the water tower for painting, including Macropoxy 920 Pre-Prime intermediate coating ("MP 920"). [Id. at ¶¶ 4-9.] It is this coating which Plaintiff alleges was defective. [Id. at ¶¶ 10-21.] Plaintiff alleges damages stemming from its need to remove the coating from the water tower and states that it incurred costs in the amount of $196, 050.91 "representing materials and labor expended" by Plaintiff to remove the coating, and it expects to incur additional costs to complete the removal and replacement of the coating. [Id. at ¶¶ 23, 26.]

         In the instant motion, Defendants assert that they are entitled to judgment on the pleadings as to Plaintiff's claims of breach of contract, negligence, and breach of express and implied warranties. Defendant states that, given the language of the controlling and valid express warranty, Count I is duplicative of Count III and should therefore be dismissed; that parts of Count III were validly disclaimed by the express warranty and should be dismissed for that reason; that Count II cannot be sustained under New Jersey law; and that the express warranty limits the damages in this case. Plaintiff argues that the express warranty is not controlling and should not mandate dismissal of Count I or parts of Count III.

         For the reasons discussed below, the Court will grant Defendant's motion for judgment on the pleadings.


         A. Facts

         The Court accepts as true the following facts from Plaintiff's Amended Complaint and the exhibits thereto for purposes of Defendant's motion for judgment on the pleadings.

         Plaintiff Pro-Spec Painting, Inc., is a business corporation located in New Jersey that in 2014 entered into a contract with the Municipal Utilities Authority of East Windsor Township to paint a large water tower. [Am. Compl. ¶¶1, 3.] Defendant Sherwin-Williams is a corporation located in Ohio that, primarily, manufactures paint and related products. [Id. at ¶ 2.] The contract Plaintiff signed with the MUA included Project Specifications for how Plaintiff was to go about painting the water tower; these specifications included, inter alia, that Plaintiff was to use Defendant's MP 920 Pre-Prime intermediate coating as a primer on the water tower. [Id. at ¶ 4.]

         Plaintiff bought MP 920 from Defendant on or around November 14, 2014. [Docket Item 5-3 at 6-7.] When Defendant delivered the product to Plaintiff, Plaintiff noticed that the stated shelf-life expiration date for the MP 920 was only a few days away. [Am. Compl. at ¶¶ 5, 6.] Plaintiff contacted Defendant to complain about the "out-of-date material"; in response, Defendant sent a letter on December 17, 2014 "to certify that Sherwin-Williams product(s) listed below is acceptable for use until March 10, 2015: Macropoxy 920 B58V10; Batch XM3443SL." [Docket Item 5-1 at 2.] This was the batch at issue, and Defendant's letter effectively extended the shelf-life expiration date until March of 2015.

         Plaintiff subsequently applied the MP 920 to the water tower in mid-December of 2014 and realized shortly thereafter that the coating "failed to harden sufficiently" to allow Plaintiff to apply the final coating as required in its contract with the MUA. [Am. Compl. ¶¶ 9, 10.]

         Plaintiff contacted Defendant about the coating's failure to harden adequately; Defendant came to the water tower, performed testing on the coating, and concluded that "the application was not defective" and that Plaintiff could continue the project and apply the final coating. [Id. at ¶¶ 11-13.] Plaintiff, apparently disagreeing with that conclusion, performed its own testing and concluded that the coating A) did not cure sufficiently and B) would not allow for the final coating to be applied atop it. [Id. at ¶¶ 14-15.] When Plaintiff informed Defendant of its results, Defendant provided advice to Plaintiff about "various procedures recommended by Sherwin-Williams to remove [an] oily film from the defective coatings after the 920 PrePrime was in place." [Id. at ¶¶ 16-17.] During this process, Plaintiff showed Defendant's representatives at the water tower that workers could scrape "the waxy film from the tank's surface with a mild pressure of workers' fingernails demonstrating the ease of removal of the 920 PrePrime from the tank substrate with either water or solvent." [Id. at ¶¶ 18-19.] Defendant then directed Plaintiff to remove the coating from the water tower. [Id. at ¶ 20.]

         Plaintiff then removed the coating from the water tower; it estimated the costs expended in the removal at $196, 050.91 "representing materials and labor" and expected to incur additional costs to complete the removal and replacement of the coating. [Id. at ¶¶ 22, 23, 26.]

         B. Claims and procedural history

         Plaintiff's Amended Complaint states three claims.[1] It states as Count I a claim for "breach of contract, " namely, that Plaintiff issued Defendant "written purchase orders" wherein Defendant agreed to provide MP 920 to Plaintiff for the water tower at a cost to Plaintiff of $18, 495.00. [Am. Compl. ¶ 30.] It continues: "Pursuant to the written Contract between Pro-Spec and Sherwin-Williams, Sherwin-Williams owed a duty to Pro-Spec to provide non-defective, suitable materials as the specified 920 PrePrime product to be applied by Pro-Spec to the Standpipe." [Id. at ¶ 31.] It alleges that Defendant's provision of allegedly defective MP 920 constitutes a material breach of the written contract. [Id. at ¶ 34.]

         In Count II, Plaintiff pleads a claim for negligence, stating that Defendant owed Plaintiff a duty "to provide suitable materials in a proper and non-negligent manner, and to provide Pro-Spec with correct advice regarding the standards for application of that product, " and that Defendant breached that duty by failing to provide Plaintiff with "properly manufactured 920 PrePrime" and by "direct[ing] Plaintiff to apply final coats of finish paint over the defective 920 PrePrime[.]" [Id. at ¶¶ 37-38.]

         In Count III, Plaintiff alleges "Breach of Warranty (Express and Implied)." (Id. at 7.) Plaintiff claims that Defendant "warranted the 920 PrePrime would be free of manufacturing defects in accord with applicable Sherwin-Williams quality control procedures[, ]" and attached a "true and correct copy of Sherwin-Williams warranty" to the Complaint as Exhibit D. [Id. at ¶ 42; Docket Item 5-4.] Plaintiff states that Defendant "expressly warranted the 920 PrePrime would be free of manufacturing defects" and "impliedly warranted the 920 PrePrime would be suitable for its intended purpose, to wit, application to the standpipe"; however, it was defective and caused the damages incurred by Plaintiff. [Am. Compl. ¶¶ 44-46.]

         The Sherwin-Williams warranty Plaintiff attached is a three-page document called "Application Bulletin and Product Information. [Docket Item 5-4 at 2-4.] At the bottom of the second and third pages are identical ...

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