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Kelleher v. Lumber12/15/2005
ising under a federal statute.
The standard of review when considering a motion to dismiss is "whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery." Karch v. Baybank FSB, 147 N.H. 525, 529 (2002) (citation omitted). We "assume the plaintiff's pleadings to be true and construe all reasonable inferences drawn therefrom most favorably to ." Id.
In dismissing the plaintiff's breach of implied warranty claim under the Act, the trial court correctly determined that: (1) this claim is barred by RSA 382-A:2-725, the applicable statute of limitations; and (2) 15 U.S.C.A. §§ 2308(b) & 2310 do not extend or alter the limitations period. Under the Act, an implied warranty is defined as "an implied warranty arising under State law . . . in connection with the sale by a supplier of a consumer product." 15 U.S.C.A. § 2301(7)(1998) (emphasis added). State breach of implied warranty claims arise under the UCC. See 17 Am. Jur. 2d Consumer Product Warranty Acts § 12 (1990). Thus, the applicable statute of limitations is RSA 382-A:2-725 and not the limitations period under federal common law. See Lowe, 879 F. Supp. at 30 (applying the most analogous state statute of limitations).
Pursuant to RSA 382-A:2-725(1) & (2), the four-year limitations period for breach of an implied warranty accrues at tender of delivery unless it is a warranty of future performance, which then triggers the discovery rule. However, an implied warranty cannot "explicitly" extend to the future performance of goods by virtue of being "implied." See Tourist Village, 801 F. Supp. at 906; Nelligan v. Tom Chaney Motors, Inc., 479 N.E.2d 439, 443 (Ill. App. Ct. 1985) (recognizing discovery rule applicable to express warranties under section 2-725 of the UCC has been held inapplicable to breach of implied warranty claims).
Furthermore, as previously stated, section 2310 enumerates procedures that must be followed when filing a claim under the Act. As such, it neither addresses nor establishes a statute of limitations period and is, therefore, not applicable to this issue.
Accordingly, we conclude the trial court properly dismissed the plaintiff's claim alleging breach of implied warranty under the Act.
Affirmed in part; vacated in part; and remanded.
NADEAU, DALIANIS and DUGGAN, JJ., concurred.
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