United States District Court, D. New Jersey
ILENE STERN and MELISSA McCAFFREY, individually and on behalf of all similarly situated, Plaintiffs,
MAIBEC INCORPORATED, Defendant.
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
before the Court is Defendant Maibec Inc.'s Motion for
Summary Judgment of Plaintiff Ilene Stern and Melissa
McCaffrey's Third Amended Complaint. (ECF No. 257). This
matter arises from advertisements that Maibec purportedly
made on its website and in brochures, about the quality and
durability of its shingles. Plaintiffs allege that these
shingles did not perform as advertised and, as such, allege
claims of breach of contract, breach of express and implied
warranties, and deceptive practices under New York General
Business Law § 349. For the reasons discussed herein,
Defendant's motion is granted in part and denied in part.
is a leading manufacturer of eastern white cedar shingles in
North America and Canada's leading manufacturer of wood
siding. (Defendant's Statement of Material Facts [SOMF]
at ¶¶ 11-12). Maibec does not sell its shingles
directly to homeowners; instead, it sells shingles to
distributors, who then sell to Maibec dealers, who in turn
sell to lumber yards, contractors, or builders. (Id.
at ¶ 15). Maibec offers two separate warranties for its
eastern white shingles: (1) a 50-year warranty against wood
decay; and (2) a warranty against stain failure.
(Id. at ¶ 28). The 50-year limited warranty
Under the terms of this warranty, [M]aibec [I]nc. warrants
the product against decay for a period of fifty (50) years
from the date of purchase. This warranty is void should the
product be immersed in water or come into direct contact with
the ground or adjacent horizontal structures (ex.: decks).
This warranty does not cover any other damages, [M]aibec
[I]nc. reserves the right to void all warranties if the
installation requirements are not respected. The requirements
are found in the product box or on the [M]aibec® website.
The purchaser recognizes that the product is subject to
naturally occurring variations (contraction/expansion,
texture, minor dimensional differences). [M]aibec [I]nc.
reserves the right to inspect the product prior to any
repairs, and to conform that the product displays the defect
covered by this warranty."
(ECF. No. 257-16 "Exhibit M"). The Limited Warranty
also included a notice provision which states, "[a]ny
claim under this warranty by the purchaser or subsequent
owner, as the case may be, must be made in writing during the
period covered by the warranty and must include the original
invoice." (Defendant's SOMF at ¶ 29). According
to Maibec, the 50-year warranty covers rot, "which is
decomposition through the action of bacteria and fungi."
(Id. at ¶ 31). Nevertheless, if, within five
years of the wood decay warranty, the shingles begin to rot
or decompose, Maibec will cover the cost of the replacement
shingles and labor to install it. (Id. at ¶
29). After this period, Maibec will cover the cost of
replacement shingles that fall within the 50-year warranty.
website, Maibec advertised its eastern white cedar shingles,
claiming that it "is very durable and requires very
little maintenance." (Plaintiffs SOMF at ¶ 3). In
addition, Maibec offered brochures that made the following
representations: (1) "Timeless. Traditional. And tougher
than ever."; (2) "At [M]aibec, we have spent the
last four decades improving the way white cedar shingles are
made. Today, they are engineered to be so durable that you
just might consider them high tech."; (3) "Best of
all, [M]aibec shingles are guaranteed to last"; and (4)
"The fact that they are low maintenance and look even
better as they age is just an additional benefit."
(Id. at ¶4).
spring or summer of 2008, Stern installed Maibec shingles on
her home, as part of a home renovation project.
(Plaintiffs' SOMF at ¶ 2). Initially, Stern was
considering a competitor's shingles, since they were
maintenance free; however, her contractor preferred using
Maibec shingles and assured her that Maibec offered the same
warranties as the competitor and that Maibec shingles would
require no maintenance. (Defendant's SOMF at ¶¶
37-38). After speaking with her contractor, Stern went to
Maibec's website to understand the terms of its warranty
and the quality of the product. (Id. at ¶¶
40-42). At deposition, Stern claimed that she spent 5 to 10
hours on the Maibec website, in considering installation of
Maibec shingles. (ECF No. 257-13, "Stern
Deposition" at 337). When presented with the statements
made on Maibec's website, which were identified in the
Third Amended Complaint, Stern claimed she could not recall
reading any of the following statements:
Eastern white cedar is very durable and requires very little
maintenance. It contains natural preservatives which protect
it from rot and insects.
When it comes to siding a house, nothing compares to eastern
white cedar. It is warm, beautiful, and has proven reliable
for over a century. At Maibec, we have spent the last four
decades improving the way white cedar shingles are made.
Today, they are engineered to be so durable, you just might
consider them high tech.
Best of all, Maibec shingles are guaranteed to last. Our
original 50-year warranty against wood decay, up to 30 years*
warranty on two coats of solid stain and 5-year warranty on
labour is one of the best warranties in the industry.
(Id. at 168-70; Third Amended Complaint at
¶¶ 15-17). She did, however, recall reading the
"very durable and requires very little maintenance"
language that was advertised on Maibec's website.
(Id. at 313-14).
years after installation of the shingles, mold began to
develop on her shingles; however, shortly thereafter, Maibec
provided a cleaning solution to remove it. (Defendant's
SOMF at ¶ 49). The following year, summer of 2011, Stern
began noticing that her shingles were warping, cupping, and
lifting. (Id. at ¶¶ 50-52). According to
Maibec, Stern never notified it of these issues and, instead,
joined in this lawsuit. (Id. at ¶¶ 53-54).
Stern, however, contends she complained to a Maibec employee,
Keith Ball, about the mold and warping. (Plaintiffs' SOMF
at ¶¶ 23-24). During Ball's inspection of
Stern's house, he concluded that the warping and other
issues were not due to improper installation. (Id.
at ¶ 25). Stern claims that the shingles have not
matched her expectations and due to "the deterioration
and deformation of [the] shingles, they need to be
replaced." (Id. at ¶¶ 20-21).
alleges similar issues. Between February and May 5, 2007,
McCaffrey had Maibec shingles installed on her home as part
of a home renovation project. (Id. at ¶ 26).
Before beginning renovations, she explained to her contractor
that she wanted a "natural look" to her house, to
which he recommended using Maibec shingles. (Defendant's
SOMF at ¶¶ 85-86). Her contractor explained to her
that Maibec has an "excellent warranty" and its
shingles are not supposed to peel. (Id. at ¶
88). Thereafter, she claimed to have searched Maibec's
website, before deciding to use its shingles. (Id.
at ¶ 89). According to McCaffrey, she spent twenty hours
researching the Maibec website and viewing properties where
Maibec shingles were installed. (ECF No. 257-14,
"McCaffrey Deposition" at 306). Although McCaffrey
claimed that she recalled reading on the website that the
shingles would be durable and maintenance free, when
presented with the quotes identified in the Third Amended
Complaint, she was unable to recall whether she considered
these statements when deciding to purchase Maibec shingles.
(Id. at 188-89).
Stern, McCaffrey experienced issues with her shingles shortly
after having them installed. In 2012 or 2013, roughly five
years after installation, McCaffrey claims to have noticed
that the shingles "were peeling, cracking, mold,
cupping, warping, buckling, and curling." (Plaintiffs
SOMF at ¶ 27). According to McCaffrey, these problems
have worsened and require replacement. (Id.).
McCaffrey also claims to have contacted Maibec on several
occasions regarding these issues. (Id. at ¶
28). Specifically, in July 2013, she claims to have emailed
Maibec about these issues and talked to a Maibec
representative. (Id.). She also claims that her
husband completed and mailed a Maibec complaint form on
September 16, 2013. (Id. at ¶ 28-29). Like
Stern, McCaffrey claims to have relied on representations
made on Maibec's website in deciding to use its shingles
and that she did not expect these shingles to have
"material imperfections." (Id. at
¶¶ at 31-34).
now seeks summary judgment dismissal of Plaintiffs'
remaining claims: breach of contract (Count I), breach of
express warranty (Count II), breach of implied warranty
(Count III), breach of warranty of merchantability (Count
IV), and violation of New York General Business Law §
349 (Count VIII).
judgment is appropriate under Federal Rule of Civil Procedure
56(c) when the moving party demonstrates that there is no
genuine issue of material fact and the evidence establishes
the moving party's entitlement to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury
could return a verdict for the non-movant, and it is material
if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence "is to be
believed and all justifiable inferences are to be drawn in
his favor." Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477
U.S. at 255).
the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to
a material fact exists. Jersey Cent. Power & Light
Co. v. Lacey Twp.,772 F.2d 1103, 1109 (3d Cir. 1985).
The party opposing the motion for summary judgment cannot
rest on mere allegations and instead must present actual
evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; Siegel
Transfer, Inc. v. Carrier Express, Inc.,54 F.3d 1125,
1130-31 (3d Cir. 1995). "[Unsupported allegations... and
pleadings are insufficient to repel summary judgment."
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