Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—S.D. Ill.: Rooftop shingles consumers press forward with misrepresentation claims, (Aug 3, 2015)

By Greg Hammond, J.D.

Consumers could proceed with misrepresentation, strict liability, and negligence claims against manufacturers of fiberglass roofing shingles, arising from alleged false representations that the shingles would last for at least 30 years. The federal district court in Benton, Illinois, partially denied the manufacturers’ motion to dismiss, finding that the plaintiffs sufficiently alleged their deceptive business practices claims and that the economic loss doctrine did not bar the strict liability and negligence claims (Disher v. TAMKO Building Products, Inc., Yandle, S.).

TAMKO Building Products, Inc. and TAMKO Roofing Products, Inc. manufacture fiberglass roofing shingles. Consumers from Illinois, Kentucky, and Colorado filed suit against TAMKO, alleging that they purchased the shingles with the expectation that they would last for at least 30 years, but that the shingles failed long before 30 years due to certain design flaws. TAMKO had knowledge of the design flaws, according to the consumers, and made false representations and warranties with respect to the shingles. The consumers brought claims for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), the Kentucky Consumer Protection Act (KCPA), and the Colorado Products Liability Act (CPLA), along with claims for strict liability and negligence, breach of implied and express warranty, unjust enrichment, and declaratory and injunctive relief. TAMKO moved to dismiss.

Deceptive practices. Although the Illinois consumer failed to assert that he actually read or viewed TAMKO’s alleged misrepresentations, he did claim that, in deciding to install the shingles, he relied on TAMKO’s misrepresentation through its warranty that the shingles would last 30 years. The court consequently found that he sufficiently pleaded proximate causation under the ICFA with regard to the warranty representations.

Consumer protection. The KCPA claim, which was filed in 2014, was time-barred under the KCPA’s two-year statute of limitations. The Kentucky consumer claimed that TOMKA violated the KCPA by selling, marketing, and distributing defective shingles; concealing and/or failing to inform him that the shingles were defective; falsely representing that the shingles were reliable, durable, dependable, long lasting, and met or exceeded the highest standards in the industry; and making false representations regarding the quality of its warranties. Consequently, the consumer claimed that TOMKA violated the KCPA at the time he purchased the shingles in 2003, not when he received a letter denying his warranty claim in 2014.

Products liability. The Illinois strict liability and negligence claims were not barred by the economic loss doctrine—which precludes recovery for damages for inadequate value, costs of repair and replacement of defective products, or consequent loss of profits without any claim of personal injury or damage to other property. The court reasoned that in addition to “economic loss,” the plaintiffs alleged personal property damage—damage to the underlying elements of their structures.

The motion to dismiss the Kentucky strict liability and negligence claims also was denied. The court determined that it did not need to determine whether Kentucky would apply its economic loss doctrine to the consumers’ transactions, noting that the Kentucky consumer sufficiently alleged losses to “other property.”

Finally, the Colorado strict liability, negligence, fraudulent concealment, and CPLA claims were partially dismissed. The economic loss doctrine barred those claims to the extent they related to shingle damage. However, the doctrine did not bar the claims to the extent the Colorado consumer alleged damage to other property, including the “underlying structure.”

The case number is 14-cv-740-SMY-SCW.

Attorneys: John J. Driscoll (Driscoll Firm, PC) for Richard Disher. David H. Luce (Carmody MacDonald PC) and Jessica Miller (Skadden, Arps, Slate, Meagher & Flom) for TAMKO Building Products, Inc. and TAMKO Roofing Products, Inc.

Companies: TAMKO Building Products, Inc.; TAMKO Roofing Products, Inc.

Cases: Advertising StateUnfairTradePractices IllinoisNews