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Westfield Ins. Co. v. Huls Am.6/9/1998
he roosremained watertight for a total period of thirteen years from installation, or approximately two and one-half years after the expected service life of the roof had expired. The record indicates that the roof satisfied the requirements of a mall roof for its service life and that it did resist temperature fluctuations up to and beyond the expiration of the warranty period.
This court finds that appellee's warranty was not unreasonable in its limitations and that appellants were given the remedy of repair or replacement of any defect in the roof during the ten-year warranty period. Such limitations are permitted by law and were voluntarily agreed to by business entities. Therefore, the warranty is not unconscionable in this regard. Irving, 16 Ohio App.3d at 194, 16 OBR 205, 475 N.E.2d at 131. See, also, Barksdale v. Van's Auto Sales, Inc. (1989), 62 Ohio App.3d 724, 577 N.E.2d 426; Ohio Sav. Bank v. H.L. Vokes Co. (1989), 54 Ohio App.3d 68, 560 N.E.2d 1328; Eckstein v. Cummins (1974), 41 Ohio App.2d 1, 70 O.O.2d 10, 321 N.E.2d 897. Further, this court finds that the agreement excluded liability for consequential or incidental damages that may have resulted from a defective TROCAL roof. The record reflects that the roof resisted thermal shock due to temperature fluctuations and was maintained in a watertight condition for the ten-year warranty period, and remained leak-free for a total of thirteen years. This court finds that the warranty did not, therefore, fail of its essential purpose, namely of keeping the roof watertight and leak-free for a period of ten years.
Further, by the language of N.Y. U.C.C. Section 2318, while it is reasonable to include the tenant merchants of Lane Avenue mall as "such person may use, consume or be affected by the goods," the statute encompasses only that person "who is injured in person by breach of warranty." The tenants were not injured in their person by HULS's alleged breach of warranty and therefore are not considered beneficiaries of the warranty under New York law. By extension, the insurance companies who insured the tenants are not in privity with appellee in this respect and cannot bring action under the warranty. Chemtrol, 42 Ohio St.3d at 40, 537 N.E.2d at 626-627. See, also, Floor Craft Floor Covering, Inc. v. Parma Community Gen. Hosp. Assn. (1990), 54 Ohio St.3d 1, 8, 560 N.E.2d 206, 212.
Therefore, this court finds that the trial court did not err in determining that the statute of limitations had expired on appellants' warranty claims or finding that appellants had failed to prove that they had an action under the warranty, and in granting summary judgment to appellee in this regard.
V. Finally, appellants allege that appellee misrepresented the roof as a high quality roof that would remain leak-free and resist temperature shock. Appellants' misrepresentation claims fail whether grounded in products liabilitsor presented as fraudulent or negligent misrepresentation. The United States Court of Appeals for the Sixth Circuit has held that advertisement of a fiberglass roof as "strong, light, leak-proof was commercial puffery not subject to liability under R.C. 2307.77. Jordan v. Paccar, Inc. (C.A.6 1994), 37 F.3d 1181, 1183-1185. But even if appellants' misrepresentation claim were applicable to a products liability action, a plaintiff "seeking to recover for injuries incurred through the use of a product that does not conform to a manufacturer's representation [pursuant to R.C. 2307.77] must prove:
"(1) that the manufacturer made a representation as to a material fact concerning the character or quality of the manufacturer's product;
"(2) that the product did not conform to that represe
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