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Midland Builders7/14/2005
7 Wis. 2d 809, . We gleaned the following rules:
"The courts have applied a stringent standard in determining whether a warranty explicitly extends to future performance." Specifically, for such a warranty to exist, "'there must be specific reference to a future time in the warranty.'" The requirement of a "specific reference to a future time" is satisfied when a warranty guarantees a product for a particular number of years, or for a less precise, but still determinable period of time.
The use of a "stringent standard" in applying U.C.C. § 2-725(2) comports with the subsection's plain language. While all warranties in a general sense apply to the future performance of goods, the future performance exception applies only where the warranty "explicitly extends to future performance." "Explicitly" is synonymous with clearly, definitely, precisely, and unmistakably, and has been defined as "fully and clearly expressed or demonstrated; leaving nothing merely implied; unequivocal." Thus, any ambiguity in warranty language should be interpreted against the existence of a future performance warranty.
Id., -20 (citations omitted). We then cited to cases from other jurisdictions concluding that warranty words such as "many years" and "permanent" were too vague to comply with the requirement that the time period be determinable. Id., . In light of these rules and cases, we concluded that the window manufacturer's statement in its catalogue--that the windows were "deep-treated to permanently protect against rot and decay"--did not "explicitly" extend to future performance and, therefore, the plaintiff's express warranty claim was time-barred. Id., .
We then turned to the Selzer plaintiff's implied warranty claim, and explained:
Similarly, the "future performance" exception is not available [with respect to the plaintiff's] implied warranty claim. "Implied warranties cannot, by their very nature, explicitly extend to future performance." "Stated differently, the statute of limitations will always start to run against claims based on implied warranty from the time when delivery of the goods is tendered."
Id., (citations omitted; emphasis added).
Midland has pled a breach of implied warranty, not express warranty, against Semco. Selzer would seem to put this claim to rest by saying, in plain language, that "' mplied warranties cannot, by their very nature, explicitly extend to future performance'" and that "'the statute of limitations will always start to run against claims based on implied warranty from the time when delivery of the goods is tendered.'" Id. (citations omitted; emphasis added). Thus, we could stop here, but Midland makes an argument that we did not expressly consider in Selzer.
Midland argues that Semco provided an express future performance warranty for a specified period of time because (1) Semco's written warranties stated that any "implied warranty of merchantability" was limited to the duration of the express warranties, and (2) the express warranties were for one and ten years. In Midland's view, this amounts to a statement by Semco that it is expressly providing an implied warranty of merchantability for one to ten years. Moreover, Midland asserts, the time period for this express "implied" warranty is ten years because of ambiguity as to whether the one-year or ten-year express warranty applies to extend the duration of the implied warranty.
The significance of Midland's argument, if valid, is that the six-year limitations period in WIS. STAT.§ 402.725 did not begin to run until the breach was or should have been discovered during the ten-year express warranty period. See
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