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Kelleher v. Lumber12/15/2005
Argued: September 14, 2005
In these consolidated appeals, the defendant, Marvin Lumber and Cedar Company (Marvin), appeals: (1) the partial jury verdict from the Superior Court (Brennan, J.) in the first trial that awarded the plaintiff, John J. Kelleher, Jr., $53,676.00 in damages on his strict liability claim; (2) the jury verdict in the retrial that awarded the plaintiff $57,247.04 on his breach of express warranty and breach of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Magnuson-Moss Act) claims; and (3) the award of attorney's fees, at the conclusion of the retrial, in the amount of $119,898.57. The plaintiff cross-appeals the trial court's dismissal of his breach of implied warranty claim under the Act. We affirm in part, vacate in part, and remand.
The record supports the following facts and procedural history. In 1986, the plaintiff purchased and installed windows manufactured by the defendant in his newly constructed residence in Ogunquit, Maine. The plaintiff purchased the windows from John Collins, a salesman employed by Steenbeke & Son, a New Hampshire retail building materials supplier. The windows were treated with a wood preservative (PILT), which was manufactured by PPG Industries and designed to inhibit "premature, moisture-induced wood rot." Before trial, the defendant conceded that PILT is an ineffective preservative.
In 1986, the plaintiff noticed a leak in one of his living room windows. As a result of that leak, and upon the recommendation of a Marvin windows distributor, all of the newly installed windows were re-caulked. In 1993 or 1994, the plaintiff noticed that a small piece of molding on the sash of a rear window contained rot, and he had it repaired. Sometime in 1997, the plaintiff noticed that the sash of the same rear window also contained rot and the sash was replaced. Then, in 1998, the plaintiff employed a painter who found significant amounts of rot in five Marvin windows. Shortly thereafter, in August 1998, the plaintiff filed a complaint form with the defendant, thereby formally notifying it of the rot damage in his windows. In response to a question on the complaint form, the plaintiff indicated that the rot problem began in "1993/'94?"
After receiving the plaintiff's complaint, a Marvin representative inspected all of the windows in the plaintiff's home and determined that seventeen windows contained rot damage. The inspector showed the plaintiff that a subtle dimpling of the surface coating of the windows was a sign that the underlying wood was rotten. On November 12, 1999, after negotiations to replace the damaged windows were unsuccessful, the plaintiff initiated the underlying lawsuit seeking damages for the replacement costs of the defective windows, loss of value of the house in which the windows were installed and costs related to repairing water damage allegedly caused by the defective windows.
During the course of this litigation, the defendant produced a one-year limited warranty (the one-year warranty), which was in effect in 1986 and allegedly accompanied the windows that were delivered to the plaintiff. This one-year warranty guaranteed the wood portion of the windows. The plaintiff alleged that an oral fifteen-year warranty was given by a Steenbeke salesman during a telephone conversation in 1998, in which the salesman represented that the windows were "guaranteed for a period of fifteen years" (the fifteen-year warranty). In addition, the defendant's catalog, which was generally available from Steenbeke when the plaintiff purchased the windows, stated that: (1) "all exterior wood is deep treated in a dry vac process with a pesticide and water repellant solution to perman
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