Tag Archives: Implied Warranty

No Halt to Hot Handle Class Action in New Jersey

The District Court for New Jersey has denied microwave distributor Electrolux Home Products, Inc.’s arguments that plaintiff’s breach of implied warranty and Magnuson-Moss Warranty Act claims are time barred.

In Gorczynski v. Electrolux Home Prods., the plaintiff brought claims stemming from an alleged defect in stainless steel microwave handles manufactured and distributed by the defendants, claiming these handles become excessively hot when a consumer cooks on an active stovetop below the over-the-range microwaves.

The defendants sought to dismiss these claims under a number of theories, but the court rejected all of them.

Most interesting is the court’s treatment of Defendant Electrolux’s argument that plaintiff’s breach of the implied warranty of merchantability and Magnuson-Moss Warranty Act claims were time barred.  Included in the last page of the subject microwaves’ user manuals, Electrolux included a statement that any claims based on the implied warranty of merchantability are limited to one year.  And as required by regulations promulgated under the Magnuson-Moss Act, the manual went on to state that some jurisdictions do not allow a limitation on the duration of implied warranties, so the limitation may not apply to a given consumer.  This additional language is crucial, but not in the way the court seems to believe. 

The Third Circuit has ruled that any reduction in the duration of the statute of limitations for breach of implied warranty must be conspicuous, defined as “so written that a reasonable person against whom it is to operate ought to have noticed it.” See Gladden v. Cadillac Motor Car Div., 83 N.J. 320, 331 (N.J. 1980).  However, where such limitation is not conveyed in “clear an understandable language[,]” they are “generally regarded as improper or invalid[.]” Id. at 335. Here, it is the federally mandated language that the court finds offensive and prevented the defendant from prevailing in its arguments.  Because the written warranty points out that a consumer may have other rights that vary from state to state, the court found an average consumer not fully versed in the specific limitations on a state-by-state basis is likely to be confused.  Accordingly, the court found it would not be clear and conspicuous to a consumer whether the limitation applied to him, and defendant’s motion to find plaintiff’s breach of warranty claim time barred was denied.  Because plaintiff’s Magnuson-Moss Warranty Act claims are coextensive with the underlying state warranty claim, the court likewise allowed these claims to proceed.

The court’s conclusion here runs contrary to 16 C.F.R. §701.3(a), the Federal Trade Commission regulation that requires consumer product warrantors to make detailed disclosures of information necessary to allow consumers to understand written warranties—specifically §701.3(a)(7), which requires any limitation on the duration of an implied warranty to include the language: “Some States do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.”

How can the same statement both be legally required as necessary for consumers to understand written warranties, and at the same time lead the court to find it likely to mislead or confuse customers?  The court may not have perceived this seeming disconnect, but if it did, it made no effort to make sense of it. One potential explanation is that the court took issue not with the language notifying consumers of varying state law, but with the year-long limitation itself, which was written with finality: “Claims…are limited to one year or the shortest period allowed by law.”  But the Uniform Commercial Code’s statute of limitations, which applies to Magnuson-Moss claims, permits a warrantor reducing the time for filing a breach of warranty claim from four years to “not less than one year.” The court also looked askance at the defendant’s statement that “[t]his written warranty gives you specific legal rights.  You may also have other rights that vary from state to state.”  This, too, is a federally mandated statement; it must appear in all consumer product warranties. The court’s lack of awareness of federal warranty requirements leaves manufacturers with uncertainty as to how to proceed in drafting future disclaimers, at least when their products are distributed in New Jersey.

The court also rejected defendant’s argument that plaintiff’s claims would be subsumed under the New Jersey Products Liability Act; the court set this argument aside by observing that the plain language of the Act limits its application to situations where a product causes damage or harm to something other than the product itself. N.J.S.A. 2A:58C1(b)(3). As the plaintiff only alleged the defect in the microwave handle damaged the usefulness and value of the microwave itself, the court found the Act explicitly excluded plaintiff’s claims from its coverage. 

The court likewise rejected defendant’s argument – that plaintiff failed to state a claim under the New Jersey Consumer Fraud Act – finding plaintiff adequately alleged (1) unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the conduct and that loss. See International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076 (N.J. 2007).  Though defendants argued plaintiff failed to meet the heightened specificity requirements of Federal Rule of Civil Procedure 9(b) in bringing a claim founded on fraud or misrepresentation, the court opined that because plaintiff premised at least part of defendants’ alleged consumer fraud violation on an affirmative misrepresentation that the microwaves were suitable for over-the-range use, plaintiff sufficiently alleged the falsity of this representation.

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Legionnaires’ Disease Poses Liability Risk to Product Manufacturers


A recent outbreak in the South Bronx claimed 12 lives, left another 120 victims infected and put Legionnaires’ Disease back in the headlines. Besides being potentially fatal, LD poses a serious product liability and warranty liability risk to the manufacturer of any product that holds or stores water. This group includes manufactures of HVAC equipment, water heaters, water tanks, plumbing fixtures and supplies and companies that include these items in their products, such as mobile home, motorhome and travel trailer makers. But once appreciated the liability risk can be effectively managed. Here are a few things you should know about the disease and some suggestions for managing the liability risk it poses. Continue reading

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Whirlpool comes out smelling like a rose

whirlpool logo

Yesterday, a federal jury in Cleveland ruled for Whirlpool Corp. in a warranty-based class action involving allegedly defective front-loading washing machines. As discussed in an earlier post, the case had been up and down to the Supreme Court, and given the Court’s recent class action rulings, that was it was allowed to proceed to trial was rather unexpected. Continue reading

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Consumer Reports to consumers: Choose risk or over peace of mind

boxing clip artIn a September 6 piece, Why you should avoid home warranties, Consumer Reports again takes a shot at service contracts. Noting a recent complaint filed by New Jersey regulators against Choice Home Warranty for allegedly making it difficult to obtain benefits, CR “recommend[s] avoiding service contracts” because those “that cover homes and cars, for example, can cost hundreds of dollars.” But what if the car or home costs many thousands of dollars? Isn’t spending a few hundred bucks on a service contract worth it to minimize risk and secure peace of mind? “No,” says CR, “it makes much more sense to buy reliable products and maintain them as the manufacturer recommends.” Now it’s clear, just buy things that won’t malfunction or fail. Continue reading

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Case Note: Court puts the brakes on implied warranty claims

brake rotor

“Merchantability” is one of those legal terms-of-art that defies precise definition. Courts ruling on implied warranty of merchantability claims generally frame the question as whether the product was “reasonably fit for its intended purpose.” But what any given jury will find to be “reasonable” is anyone’s guess. So better for the defendant that the case never get to the jury. I think Chrysler might agree. Continue reading

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Are warranties withering? Will service contracts surge?

withered rose

Warranties are withering, claims an Arizona State marketing professor.  This, he says, bodes well for service contract industry profits, but not for consumers.

But in many product sectors warranty is expanding and recent studies show that consumers believe that service contracts deliver value. Continue reading


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Residential Purchasers Now Have A Remedy Against Developers: Your Home Is Covered

A 2012 expansion of Pennsylvania law seems likely to have a profound impact upon liability exposure that builders and their insurers may face if the Supreme Court of Pennsylvania affirms the 2012 decision of the Pennsylvania Superior Court in Conway v. The Cutler Group.  Conversely, this change may benefit real estate professionals and their clients as they now have a means to obtain redress for failures in workmanship.  Unfortunately, this change most likely will result in increased litigation and expense. 

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Federal Warranty Claim Involving a Commercial Truck Forced to Exit

A warranty plaintiff can’t make a commercial truck (or its auxiliary air conditioner) a “consumer product” simply by calling it one, but he can state an implied warranty claim by alleging that it didn’t work right. Continue reading

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Raising the bar in breach of implied warranty cases

A recent decision suggests that the bar for finding a product maker or seller liable for breach of the implied warranty or merchantability may be getting higher – or at least that its true height may be becoming more clear.

For product makers and sellers, breach of implied warranty claims can be particularly difficult to defend. The “not reasonably fit for intended use” liability standard normally applied to claims of this type is rather amorphous. It can be given widely varied interpretations depending on who is doing the interpreting and how sympathetically the person making the claim is viewed. As a result, even relatively minor product problems are too often found sufficient to support liability, particularly in cases involving cars, RVs, and other high-ticket consumer goods.

But a favorable trend may be developing. Continue reading

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Quick Guide on How to Defeat A Warranty Class Action

Don’t overlook fundamental legal principles when formulating your response in complex class action litigaiton. A federal judge in Minnesota recently applied three seemingly simple and straight forward legal principles – or perhaps better described as common sense propositions – to dismiss a class action brought against Ford Motor Co. In sending the claimants on their way, the judge found that an express warranty should be construed and applied as written; that a plaintiff must act within the time limits placed on, and satisfy the statutory requirements associated with implied warranty claims, and that where a defendant receives no benefit, there can be no unjust enrichment.  Continue reading

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