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Romig v. Pella Corp.

United States District Court, D. South Carolina, Charleston Division

September 26, 2016

JOHN ROMIG, JR. on behalf of himself and on behalf of all others similarly situated, Plaintiff,



         This matter is before the court on defendant Pella Corporation's (“Pella”)[1] motion for partial summary judgment. For the reasons set forth below, the court grants Pella's partial motion for summary judgment and dismisses plaintiff John Romig, Jr.'s (“Romig”) breach of express warranty claim to the extent it relates to the windows installed in Romig's home in 1999.

         I. BACKGROUND

         Romig purchased Pella Architect and Designer Series windows during the construction of his home in Cazenovia, New York. Am. Compl. ¶ 15. Romig first purchased Pella windows, through his contractor Edward L. Chase (“Chase”), in conjunction with the construction of the “Dutch Barn” section of his home in 1998 and 1999. Def.'s Mot. Ex. 1, Romig Depo. 37:20-37:1, 42:24-43:25; Def.'s Mot. Ex. 2, 1/22/98 Order Form. Romig decided to purchase Pella windows because he and his wife “were very interested in a period look” and “the look of the window” was “very important.” Romig Depo. at 44:7-25. Romig visited a Pella showroom at Pella of Central New York and received all of the Pella materials, including the limited warranty at the center of this dispute. Id. at 48:20-25. Pursuant to the limited warranty, Pella agreed to repair or replace defective windows reported “during the first ten years from the date of sale.” Def.'s Mot. Ex. 4. Romig purchased a second set of Pella windows, which came with the same limited warranty, in conjunction with the construction of the “English Barn” section of his home in 2002. Id. at 14-25, 75:2-25; Def.'s Mot. Ex. 3, 5/29/02 Order Form.

         Romig noticed problems with the “Dutch Barn” windows shortly after their installation and with the “English Barn” windows in 2003. Romig Depo. 70:2-72:25, 78:15-25. After noticing leaks and rot being caused by the windows, Romig filed a warranty claim with Pella. Am. Compl. ¶ 15; see also Romig Depo. at 79:18-20, 82:7- 17. Pella inspected the home in 2003 and concluded that the problems were being caused by construction-related defects. Id. at 86: 2-87:3. Nevertheless, in 2004, Pella agreed to replace Romig's windows after he signed a Release and Waiver absolving Pella of all liability relating to the windows, except claims brought under the limited warranty. Id. at 89:18-21; Def.'s Mot. Ex. 4. Notably, however, the parties agreed that Romig would not receive a new limited warranty, but instead, the replacement windows would be covered “only by any remaining balance of” the limited warranty on the original windows. Def.'s Mot. Ex. 4.

         In 2006, Romig notified Pella that he continued to have problems with his windows. Def.'s Mot. Ex. 6. Greg Gerdes (“Gerdes”), Pella's representative, visited the home to inspect the windows. Id. Following Gerdes's inspection, Pella agreed to repair 36 windows by adding replacement aluminum clad sashes. Pl.'s Resp. 4. In 2011, Romig contacted his insurance company about continued problems with his windows. Romig Depo. 122:2-3, 137:22-25. Romig's insurance company retained Kealey Engineering LLC (“Kealey”) to inspect the windows. Id. at 121:1-25. After inspecting the windows in April 2011, Kealey concluded that the “windows in the Romig residence [had] deteriorated prematurely due to manufacturing defects.” Pl.'s Resp. Ex. 4, Kealey Site Inspection. Romig again contacted Pella to request warranty service. By letter dated October 25, 2011, Pella denied warranty service. Pl.'s Resp. Ex. 6, Warranty Claim Denial Letter (“The repeated water damage is not the result of incorrectly manufactured windows but rather the result of the drainage in the wall system or possibly other installation related issues.”). Romig filed a warranty claim with Pella and, on March 26, 2012, Pella responded that the deterioration was the “result of water management issues related to the installation and other construction design issues.” Pella's Mot. Ex. 7.

         Romig alleges that the windows suffer from a series of defects affecting their water management system, which allow water to leak through the windows and become trapped between the aluminum and the operable wood frame, causing damage to the windows and “other property within the home.” Am. Compl. ¶ 33 (alleging defect in the “design of the sill extrusion and sill nailing fin attachment as well as a defect in the design of allowing a gap between the jamb gasket and the sill gasket”); see also ECF No. 121, Class Cert. Order at 6 (outlining details of Romig's defect theory). Romig further alleges that Pella knew of these defects when it shipped the windows. Id. ¶ 10.

         On July 18, 2013, Romig filed a class action complaint against Pella and Pella Windows and Doors, Inc. in the United States District Court for the Northern District of New York, asserting jurisdiction based on diversity of citizenship and pursuant to the Class Action Fairness Act. He amended his complaint on September 30, 2013. The amended complaint brings the following ten claims against Pella and Pella of Central New York: (1) unfair and deceptive trade practices in violation of New York General Business Law § 349; (2) negligence; (3) breach of the implied warranty of merchantability; (4) breach of the implied warranty of fitness for a particular purpose; (5) breach of express warranty; (6) fraudulent misrepresentation; (7) fraudulent concealment; (8) unjust enrichment; (9) violation of the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301, et seq.; and (10) declaratory relief.

         Pella filed a motion to dismiss on October 21, 2013. Romig opposed the motion on December 23, 2013, and Pella replied on January 17, 2014. Pella of Central New York answered Romig's amended complaint and filed a cross claim against Pella on December 20, 2013. On February 9, 2014, the United States Judicial Panel on Multidistrict Litigation transferred Romig's case to this court as part of the consolidated multidistrict litigation. On December 18, 2014, the court granted in part and denied in part Pella's motion to dismiss without prejudice all of Romig's causes of action against Pella except for his breach of express warranty claim to the extent he relies on Pella's failure to repair or replace windows under the limited warranty. In doing so, the court stated the following.

Romig alleges that he made a warranty claim in March 2012 and Pella failed to repair or replace his windows. Am. Compl. ¶ 15. It is unclear when Romig bought the windows, and, therefore, when the ten-year limited warranty expired. However, since Pella's denial of Romig's 2012 warranty claim is potentially covered by the limited warranty, the court will not dismiss Romig's breach of express warranty claim to the extent it relies on Pella's failure to repair or replace pursuant to the terms of the limited warranty.

ECF No. 65, MTD Order 16. Therefore, Romig's only remaining claim is a breach of express warranty for Pella's failure to replace Romig's windows after he notified Pella of the defect in 2011.[2]

         In the order on the motion to dismiss, the court also addressed the “Release and Waiver” Romig signed in 2004 in exchange for Pella replacing his windows (the “Release”). In the motion to dismiss briefing, Romig argued that the Release was unenforceable because it was procured by fraud, Romig did not sign it knowingly and voluntarily, it is unconscionable, and it is ambiguous. The court held that it was impossible to determine whether or not the Release was unconscionable at the motion to dismiss stage. The court noted that there was no evidence on the record regarding the circumstances surrounding the signing of the Release, Romig's experience and education, or whether Romig lacked a meaningful choice. Therefore, because the court was unable to determine the validity of the Release, the court did not bar Romig's claims.

         Pella filed the present motion for partial summary judgment on October 27, 2015. Romig filed a response in opposition on November 20, 2015, and Pella replied on December 4, 2015. Pella contends that discovery has answered some of the questions lingering after the motion to dismiss, allowing the court to limit the scope of Romig's remaining claims. Specifically, Pella asserts that it is entitled to summary judgment regarding the windows Romig's contractor, Chase, purchased in 1998 and 1999, leaving only express warranty claims relating to the windows Chase purchased in 2002. The motion has been fully briefed and is now ripe for the court's review.

         II. STANDARDS

         Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

         This case is predicated on diversity jurisdiction and was filed in federal court, so it is governed by state substantive law and federal procedural law. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 416 (2010) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). “In multidistrict litigation, the law of the transferee circuit governs questions of federal law.” In re KBR, Inc., 736 F.Supp.2d 954, 957 (D. Md. 2010) modified on reh'g sub nom. In re KBR, Inc., Burn Pit Litig., 925 F.Supp.2d 752 (D. Md. 2013) vacated and remanded on other grounds, 744 F.3d 326 (4th Cir. 2014); see also In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987); cf. Bradley v. United States, 161 F.3d 777, 782 n.4 (4th Cir. 1998) (applying Fourth Circuit law to questions of federal law in a case transferred from the Fifth Circuit). Therefore, this court must apply New York substantive law and Fourth Circuit procedural law.

         III. ...

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