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Curl v. Volkswagen of America12/2/2005
press warranty limiting the manufacturer's remedy to repair and replacement of defective parts, court held that where warranty failed of its essential purpose, remedy may be provided under the general remedy provisions of R.C. 1302).
{ } Chemtrol Adhesives, Inc. v. Am. Manufacturers Mut. Ins. Co. (1989), 42 Ohio St.3d 40, lays a foundation for deciding cases where breach of warranty for economic damage is claimed, but privity is lacking. In Chemtrol, insurers of a commercial purchaser of a defective heat recovery system sought indemnification of economic damages against the seller, asserting several tort and contract claims. One issue the court addressed was whether the insurers, who succeeded to the rights and remedies of the purchaser, were limited to the breach of contract claim, where privity existed, or if they could go outside the contract and assert tort claims sounding in negligence, breach of express and implied warranties, and strict liability. In eventually holding that the insured could assert the warranty claims but not the negligence or strict liability claims, the court conducted a detailed analysis of the laws of both Ohio and other jurisdictions, and adopted language from several cases involving claims for breach of warranty where privity was absent. The court in Chemtrol quoted Santor v. A & M Karagheusian, Inc. (1965), 44 N.J. 52, in which a plaintiff who purchased carpeting from a retailer was allowed recovery against the manufacturer for economic loss for breach of implied warranty of merchantability, on the basis that the liability of the manufacturer should not rest "'upon the character of the product (i.e., whether * it is likely to cause personal injury ) but upon the representation[.]'" Chemtrol, supra, at 47, quoting Santor, supra, at 61. The court stated that it was persuaded by the holding in Spring Motors Distributors, Inc. v. Ford Motor Co. (1985), 98 N.J. 555, where the court held that "'a commercial buyer seeking damages for economic loss resulting from the purchase of defective goods may recover from an immediate seller and a remote supplier in a distributive chain for breach of warranty under the U.C.C. *.'" Chemtrol, supra, at 50, quoting Spring, supra, at 561.
{ } The lower courts have been inconsistent in determining if privity of contract is required to maintain a contract-based claim for breach of implied warranty. See, e.g., Norcold, Inc. v. Gateway Supply Co., 154 Ohio App.3d 594, 2003-Ohio-4252 (privity required); Haynes v. George Ballas Buick-GMC Truck (Dec. 21, 1990), 6th Dist. No. L-89-168, 1990 Ohio App. LEXIS 5661 (privity required); Funk v. Montgomery (1990), 66 Ohio App.3d 815 (privity not required); Ohio Dept. of Adm. Services v. Robert P. Madison Internatl. (2000), 138 Ohio App.3d 388 (privity not required).
{ } In the case sub judice, this court will follow its previous holding in Reichhold Chem. Inc. v. Haas (Nov. 3, 1989), 11th Dist. No. 1983, 1989 Ohio App. LEXIS 4129. In Reichhold, Richard Haas ("Haas") purchased from Reichhold Chemical, Inc. ("Reichhold") polyurethane components to make bowling balls. Haas also bought some of the components from two of Reichhold's distributors, upon Reichhold's recommendation. On appeal from a lawsuit for damages caused from the components causing a softness problem with the balls, this court rejected Reichhold's argument that Haas's claims for breach of express and implied warranties must fail for lack of privity. We noted first that at least part of the time, the parties were in direct privity. We then relied on Rogers, supra, in allowing damages for Haas's claim for breach of express warranty, holding that "where there is an expressed warranty, the ultimate consumer may recover even with
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