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Kelleher v. Lumber12/15/2005
mination, and the trial court's denial of the defendant's motions for directed verdict and JNOV, and conclude that the plaintiff's strict liability claim was timely filed.
B. State Breach of Express Warranty Claim
Next, the defendant argues that, as a matter of law, the warranty in its sales catalog is not explicit enough to qualify under the future performance exception enumerated in RSA 382-A:2-725(2) and trigger the discovery rule provision contained therein. The defendant contends that the general statement that the windows are coated in preservative that "would protect 'permanently' against rot" fails to identify a specific date or period of time regarding the duration of the warranty and, therefore, fails to qualify as a promise of future performance for the purpose of invoking the discovery rule. Therefore, the defendant asserts, the four-year statute of limitations accrued in 1986 upon delivery of the windows and this claim should have been dismissed.
The plaintiff disagrees, arguing that the warranty language is sufficiently specific to qualify as a promise of future performance and trigger the discovery rule. Consequently, the plaintiff asserts this claim was timely because he initiated it within four years of 1998, when he first reasonably should have known of the pervasiveness of the rot damage and its causal connection to the "ineffective" preservative.
The scope of the future performance exception is an issue of first impression for this court. In New Hampshire, an express warranty cause of action is generally derived from applicable Uniform Commercial Code (UCC) provisions governing contracts of sale. Brescia v. Great Road Realty Trust, 117 N.H. 154, 157 (1977). Pursuant to the UCC, " state law breach of express warranty claim must be commenced within four years after the cause of action has accrued." RSA 382-A:2-725(1) (1994).
A breach of warranty claim occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
RSA 382-A:2-725(2) (1994). In other words, in a breach of express warranty claim, the four-year statute of limitations commences upon tender of delivery except when the warranty "explicitly extends to the future performance of the goods," which triggers the application of the discovery rule, thereby tolling the statute of limitations.
The defendant urges us to apply the majority rule, relying upon Selzer v. Brunsell Brothers, Ltd., 652 N.W. 2d 806 (WiS.Ct. App. 2002), to support its assertion that the catalog language is not an explicit warranty of future performance because it fails to specifically identify an unambiguous specific period of time during which the warranty applies. Under the majority rule, in order to be explicit, a warranty of future performance must: (1) specifically reference a future time in the warranty; and (2) be "unambiguous, clearly stated, or distinctly set forth." Western Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d 1547, 1550 (9th Cir. 1994); see 1 J. White & R. Summers, Uniform Commercial Code ยง 11-9 (3d ed. 1988) (noting that extension of the normal warranty period does not usually occur, even though all warranties "in a sense apply to future performance of goods").
However, a minority of jurisdictions has found that warranty language which fails to identify a specified period of time nevertheless constitutes an explicit warranty of future performance. For instance, in Rempe v. General Electric Co., 254 A.2d 577 (Conn. Super. Ct. 19
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