Melnick v. Tamko Bldg. Prods.

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MARTIN MELNICK, BETH MELNICK, LIA LOUTHAN, AND SUMMERFIELD GARDENS CONDOMINIUM, on behalf of themselves and all others similarly situated, Plaintiffs, v. TAMKO BUILDING PRODUCTS LLC,^[1] Defendant.

No. 19-CV-2630-JAR-BGS

United States District Court, D. Kansas

March 27, 2024

MEMORANDUM AND ORDER

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

Plaintiffs - a married couple, an individual, and a corporation - assert three sets of claims against Defendant TAMKO, arising out of alleged defects in Defendant's roofing shingles. Defendant seeks summary judgment on Plaintiffs' claims (Doc. 318). The motion is fully briefed.^[2] For the reasons stated in more detail below, the Court grants in part and denies in part Defendant's motion.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.^[3] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.^[4] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”^[5] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”^[6] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”^[7]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.^[8] Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”^[9] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.^[10] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”^[11]To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript[,] or a specific exhibit incorporated therein.”^[12] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.^[13]

Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.'”^[14] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”^[15]

II. Uncontroverted Facts^[16]

Defendant is a limited liability corporation with its principal place of business in Galena, Kansas. It manufactures roofing shingles, and its Heritage brand shingles are premium asphalt roofing shingles with a fiberglass mat. Two of its Heritage shingles are branded the Heritage 30 or Heritage 50. Heritage 30 shingles and Heritage 50 shingles came with a 30-year and 50-year limited warranty, respectively.

The Melnicks

Martin and Beth Melnick purchased TAMKO Heritage 50 AR shingles for their former house in West Hartford, Connecticut in September 2002.^[17] These shingles were manufactured at Defendant's Frederick, Maryland plant. The Melnicks, after consulting with a roofer, viewed Defendant's website. Due to the website's statements, Mr. Melnick believed that the shingles had a 50-year warranty. The shingles were installed in September 2002.

The Melnicks noticed several roof leaks beginning in 2013. The shingles have grown algae, cracked, and degranulated, and water leaked into the home. Various portions of the interior of the home, including the master bedroom, upstairs bathroom, adjacent bedroom, and hallway, were damaged and had mold. The Melnicks testified that they spent several thousand dollars to repair damage inside the house.

In late 2014, the Melnicks started a warranty claim with Defendant and followed the claim process instructions. The warranty claim was denied in March 2015. In the letter denying the claim, Defendant stated that the limited 120-month algae warranty had expired.

In December 2015, the Melnicks sued Defendant, alleging that the shingles on the home grew algae, cracked and degranulated, which resulted in water leaks. In addition, they claimed that Defendant misrepresented the algae-resistant quality of the shingles on its website and misrepresented that the shingles would last for the duration of the warranty that came with the product.

Ms. Melnick sold the house in February 2017, more than a year after initiating this lawsuit against Defendant. She did not disclose to the buyer the alleged issues with the shingles or the existence of the shingle-related lawsuit. The house sold for $315,000, which was the price suggested by the real estate broker. There is no evidence that the home sold for less money due to the allegedly defective shingles.^[18] The original shingles remain on the house and continue to shed water. The new owner continues to have problems with the shingles, including the shingles leaking and blowing off.

The Melnicks' claims include: (1) fraudulent concealment/nondisclosure, (2) violation of the Connecticut Product Liability Act (“CPLA”),^[19] and (3) unjust enrichment. They also seek declaratory and injunctive relief. In addition, they seek to certify a class on their claims.

Lia Louthan

Lia Louthan is the owner of a home in Walton Hills, Ohio. The home was purchased in her mother's name, and her mother did not transfer ownership of the home to Ms. Louthan until 2010. In 2004, Ms. Louthan sought to have the shingles replaced on the home and purchased Heritage 30 shingles. These shingles were manufactured at Defendant's Frederick, Maryland plant.

Ms. Louthan claims that she decided to purchase the shingles based on the recommendation of her roofer. Ms. Louthan testified that the roofer provided her with a Heritage Shingles brochure, sample board, and warranty. The roofer testified that he provided Ms. Louthan with a sample board but that he did not provide her with a brochure or warranty information. After reviewing the materials, Ms. Louthan purchased the shingles. The shingles were installed on the home in September 2004.

The Heritage 30 shingles came with a 30-year Limited Warranty, which could be transferred “one time during the first two years” of the warranty's term to a purchaser of the property the shingles were placed on.^[20] This Limited Warranty stated that it was applicable to the “‘owner' of the building at the time the [s]hingles are installed on that building.”^[21]

Ms. Louthan claims that the shingles led to a leak in 2009. As to this leak, it caused shifting and shrinking in the home's crown molding, cracked the drywall, and stained the ceiling. Water also reached the basement. Ms. Louthan submitted an insurance claim regarding this leak and received an insurance award. Ms. Louthan's husband, Jeffrey Louthan, repaired the damage by patching drywall, caulking crown molding, and repairing the hardwood floor. Nothing was done to the roof or the shingles following the 2009 leak.

In 2012, there was another leak causing water to come into the home and affect certain walls. Ms. Louthan's expert, Justin Kestner, attributed this event to a “valley leak,” which was the result of improper installation of the shingles. Following this leak, Mr. Louthan repaired the interior damage and applied flex seal, which fixed the issue.

Mr. Louthan contacted Defendant to file a warranty claim in November 2015. Defendant told him that he was not the homeowner and that the house had changed ownership since the shingles were placed on it. The shingles remain on the roof and continue to shed water.

Ms. Louthan's claims include: (1) breach of express warranty, (2) breach of implied warranty of merchantability, (3) strict liability (design defect, manufacturing defect, and failure to warn), (4) negligence, (5) negligent failure to warn, (6) fraudulent concealment, and (7) violation of the Ohio Consumer Sales Protection Act (“OCSPA”). She also seeks declaratory and injunctive relief. In addition, she seeks to certify a class on the following claims: breach of express warranty, strict liability, fraudulent concealment, and violation of the OCSPA.

Summerfield Gardens

Summerfield Gardens is a condominium development in Godfrey, Illinois consisting of 20 duplexes. Each duplex contains two units which share a roof. 19 of the 20 duplexes were constructed with Heritage 30 shingles, and construction took place between 2003 and 2007. The shingles were manufactured at Defendant's Dallas, Texas plant. Summerfield Gardens' developer, Emmons & Wickenhauser, purchased all the shingles on those buildings. The developer had already been using Heritage shingles in other projects before the construction of Summerfield Gardens.

In April 2014, Summerfield Gardens discovered a problem with the shingles on the front half of the roof covering one duplex.^[22] Summerfield Gardens' board president, James Herndon, made a warranty claim for these shingles and, as part of the claim, sent samples of the shingles to Defendant. Defendant approved the claim and provided a prorated number of shingles, consistent with the terms of the applicable limited warranty. A representative of Defendant told Herndon that the duplex received a “bad batch” of shingles. Defendant's “bad batch” statement led Summerfield Gardens to believe that...