Chizniak V CertainTeed Corporation - Class Action

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 16 of 98WARRANTY DENIALS60.After some period of exposure to normal, expected environmental conditions andtypical weather patterns, the CertainTeed vinyl siding on each of plaintiffs’ homes has lost itsstructural integrity and degraded, warped, melted, blistered, and/or deformed.61.Plaintiffs’ vinyl siding is not beautifying, protective, durable, low maintenance, orcost effective.62.Plaintiffs each contacted CertainTeed to make a claim under their vinyl sidingwarranty.63.On October 26, 2016, CertainTeed sent plaintiff Barbara Chizniak a letter denyingher warranty claim on the grounds of “heat distortion” from glass reflection.64.A copy of CertainTeed’s warranty denial letter sent to plaintiff Barbara Chizniakis attached as “Exhibit H.”65.On October 28, 2016, CertainTeed sent plaintiff Wayne Bailey a letter denyinghis warranty claim on the grounds of “glass reflection/heat distortion (deformed siding).”66.A copy of CertainTeed’s warranty denial letter sent to plaintiff Wayne Bailey isattached as “Exhibit I.”67.On March 28, 2017, CertainTeed sent plaintiff Richard Willis a letter denying hiswarranty claim on the grounds of “heat distortion” from glass reflection.68.A copy of CertainTeed’s warranty denial letter sent to plaintiff Richard Willis isattached as “Exhibit J.”69.On November 10, 2016, CertainTeed sent plaintiff Larry Johnson a letter denyinghis warranty claim on the grounds of “glass reflection”.16

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 17 of 9870.A copy of CertainTeed’s warranty denial letter sent to plaintiff Larry Johnson isattached as “Exhibit K.”71.On May 19, 2015, CertainTeed sent plaintiff Jean Ducham a letter denying herwarranty claim on the grounds of “heat distortion.”72.A copy of CertainTeed’s warranty denial letter sent to plaintiff Jean Ducham isattached as “Exhibit L.”73.On June 16, 2017, CertainTeed sent plaintiff Jeffrey Broom a letter denying hiswarranty claim on the grounds of “glass reflection/wrinkled/melted siding.”74.A copy of CertainTeed’s warranty denial letter sent to plaintiff Jeffrey Broom isattached as “Exhibit M.”75.On July 25, 2017, CertainTeed sent plaintiff Robbie Sheets a letter denying hiswarranty claim on the grounds of “heat distortion.”76.A copy of CertainTeed’s warranty denial letter sent to plaintiff Robbie Sheets isattached as “Exhibit N.”77.The CertainTeed Limited Lifetime Warranty provides warranty coverage againstmanufacturing defects, including but not limited to “blistering.” The Warranty also coversdamage caused to the vinyl siding by “normal exposure conditions,” and in its Limitationssection, makes no mention of any warranty exclusion relating to non-flame heat from any source.The Warranty specifically contemplates that the vinyl siding will be subject to “exposure tosunlight and extremes of weather and atmosphere.” See generally Exhibits “A” – “G.”78.The internally-inconsistent CertainTeed Limited Lifetime Warranty also stateselsewhere that the warranty does not apply to “siding products which have been distorted or17

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 18 of 98melted due to an external heat source (including but not limited to a barbecue grill, fire,reflection from windows, doors, or other objects.” See Exhibits “A” – “G.”79.CertainTeed’s warranty denial is exemplified by CertainTeed’s letter to plaintiffBarbara Chizniak (Exhibit H) stating that:It appears the windows have caused the reflection of the sunlight to increase thetemperature to an extreme degree which has caused the melting of the siding.This increase has caused the siding to lose its memory (shape) by distorting/melting. In other words, the window has acted like a magnifying glass. It hasreflected the light, which concentrates it, resulting in an increase in heat.80.Upon information and belief, CertainTeed Saint-Gobain made no attempt todetermine with any certainty the actual source of any heat that defendants allege to have causedthe damage to plaintiffs’ vinyl siding.81.CertainTeed Saint-Gobain’s denial that its vinyl siding is defective as a result ofmelting or distortion from sunlight reflecting off windows or other building materials fails theessential purpose of the warranty, i.e., that the siding is free from defects under normal exposureconditions.82.As a result of defendants’ warranty denials, plaintiffs have suffered and willcontinue to suffer damages to repair, replace and remedy their defective CertainTeed vinylsiding.83.The construction of windows adjacent to siding, windows that reflect light ontosiding, and homes and other structures with windows adjacent to the building on which thesiding is installed is a reasonable expectation of property owners, including plaintiffs, and anormal condition in building design and construction.84.Sunlight exposure is a reasonable expectation of property owners, includingplaintiffs, and a normal environmental condition.18

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 19 of 9885.It is a reasonable expectation of property owners, including plaintiffs, thatCertainTeed vinyl siding is suitable for use on or near homes and other structures with windows.86.CertainTeed Saint-Gobain’s website (https://www.certainteed.com/siding/)advertises the use of its vinyl siding on homes with windows exposed to sunlight:Figure 1087.Defendants’ product installation instructions fail to warn that CertainTeed Saint-Gobain vinyl siding should not be installed where sunlight may reflect off windows.88.Plaintiffs were surprised when defendants disclaimed coverage under theirwarranties.89.Defendants’ denial of their duty of care and warranty responsibility for thedefective CertainTeed vinyl siding is analogous to a car manufacturer disclaiming its duty of carefor a vehicle’s paint finish that melts and distorts from sunlight reflecting off vehicle windows.19

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 20 of 98DEFENDANTS’ DECEPTIVE AND UNFAIR CONDUCTAND BREACH OF WARRANTIES90.Defendants advertised, warranted and sold CertainTeed vinyl siding products thatdefendants knew or reasonably should have known were inherently defective and failed toperform as represented and warranted by defendants.91.Upon information and belief, thousands of property owners, including plaintiffs,have experienced degradation of their CertainTeed vinyl siding under normal construction andenvironmental exposure conditions as described herein.92.Upon information and belief, CertainTeed Saint-Gobain has denied numerouswarranty claims alleging a manufacturing or design defect in the vinyl siding on the basis ofreflective sunlight from windows causing melting or distortion.93.Despite said claims and knowledge, defendants have failed to notify theircustomers about the defects; have refused to fully repair damage caused by said defects; haveconcealed the true nature of the defects inherent in the siding; and continue to marketCertainTeed vinyl siding without adequate warnings or disclosures.94.At all times relevant, defendants had a duty to disclose to Plaintiffs and the Classthat CertainTeed vinyl siding was inherently defective as designed and manufactured and wouldforeseeably blister and degrade under normal construction and environmental conditions asdetailed herein.95.Defendants’ marketing of CertainTeed vinyl siding as suitable for use in homeswith windows exposed to sunlight is deceptive.96.Defendants’ denial of plaintiffs’ warranty claims constitute breach of implied andexpress warranties.20

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 21 of 9897.Defendants’ denial of plaintiffs’ warranty claims on the basis of reflectivewindow sunlight distortion is unconscionable and causes the warranty to fail its essentialpurpose.98.Defendants’ denial of plaintiffs’ warranty claims has deprived plaintiffs of asubstantial bargained benefit and unjustly enriched defendants.CLASS ALLEGATIONS99.The Class claims derive from a single course of conduct by defendantsCertainTeed Saint-Gobain. Defendants’ design, manufacture, marketing and sale of CertainTeedvinyl siding products was pursuant to uniform practices directed at the Class. Defendants did notdiscriminate in the degree of care or candor, disclosure or omission, or other conduct among theindividual Class members. The object facts are that CertainTeed siding, as presently designedand manufactured, is not suitable for its foreseeable uses, i.e., when installed on homes withwindows, as advertised by defendants.100.Plaintiffs seek to bring this case as a nationwide class action on behalf ofthemselves and all others similarly situated pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3).The proposed Class is defined as follows:All persons and entities who own, or have owned, homes or otherstructures with CertainTeed vinyl siding products.101.Alternatively, or in addition to the nationwide Class claims, plaintiffs bring theseclaims under Fed. R. Civ. P. 23 on behalf of themselves and on behalf of Subclasses of personsand entities residing in each of the states in which plaintiffs reside and each of the states wherethe laws are similar to each of the states in which plaintiffs reside.102.Excluded from the Class are defendants, any entity in which defendants have acontrolling interest, and defendants’ legal representatives, assigns and successors.21

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 22 of 98103.Although the exact number of class members is unknown at this time, themembers of the class are sufficiently numerous such that joinder of all members is impracticable.104.The members of the putative class are mutually and commonly aggrieved and therelief sought is common to the entire class and, if granted, would commonly benefit the entireclass.105.There are common questions of law and fact in the action that relate to and affectthe rights of each member of the class, namely, questions as to whether defendants breachedtheir duties of care and warranties to all of the members of the class.106.Common questions of fact and law predominate over any questions affecting onlyindividual members of the class, including but not limited to the following:a. Whether CertainTeed vinyl siding products (“Siding”) are defective;b. Whether the Siding blisters, degrades, and fails before the expiration of itsadvertised, marketed and warranted life;c. Whether defendants knew or should have known of the defective nature of theSiding;d. Whether defendants properly advised property owners about the likelihood of itsSiding’s premature failure;e. Whether defendants owed a duty to plaintiffs and the Class to exercise reasonableand ordinary care in the formulation, testing, design, manufacture, warranting andmarketing of the Siding;f. Whether defendants breached a duty to plaintiffs and the Class by designing,manufacturing, advertising and selling defective Siding and by failing promptly toremove the Siding from the marketplace or take other appropriate remedial action;22

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 23 of 98g. Whether the Siding will continue to blister and degrade in performance over time;h. Whether the Siding fails to perform in accordance with the reasonableexpectations of ordinary consumers;i. Whether the Siding fails to perform as advertised, marketed and warranted;j. Whether defendants breached express warranties to plaintiffs and the Class byadvertising, marketing and selling the defective Siding;k. Whether defendants breached implied warranties to plaintiffs and the Class byadvertising, marketing and selling Siding that was not of a merchantable quality,nor fit for the ordinary purpose for which it was sold;l. Whether defendants’ representations regarding the suitability and exemplarynature of its Siding, and its omissions and concealment of facts to the contraryregarding the Siding defects constitute violation(s) of deceptive and unfair tradepractices;m. Whether defendants have been unjustly enriched;n. Whether plaintiffs should be entitled to indemnity and restitution;o. Whether plaintiffs and the Class are entitled to compensatory damages to repair,replace and remedy the defective Siding; andp. Whether injunctive relief should be granted compelling defendants to notify allClass members about their defective Siding.107.Plaintiffs’ claims herein are typical of the claims of the Class, in that the claims ofall members of the Class, including plaintiffs, depend on a showing of the acts and omissions ofdefendants giving rise to the right of plaintiffs to the relief sought. Plaintiffs, like all Classmembers, owned homes or other structures on which the defective CertainTeed vinyl siding was23

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 24 of 98installed. As a result of the uniform defects inherent in the vinyl siding’s formulation, the sidingfailed and will continue to fail prematurely, causing plaintiffs and members of the Class to sufferdamages in the form of unreimbursed costs associated with repairing or replacing the defectivesiding.108.Plaintiffs will fairly and adequately protect the interests of the respective Classmembers in that plaintiffs have such a plain, direct, and adequate interest in the outcome of thecontroversy to assure the adequacy of the presentation of the issues involved herein. Plaintiffshave no interest which is adverse to any interest of the Class members.109.Plaintiffs have retained competent counsel with substantial experience litigatingcomplex building products defect cases and class claims in both state and federal court.110.Plaintiffs and their counsel are committed to vigorously prosecuting this action onbehalf of the Class, and have the financial resources to do so. Neither plaintiffs nor their counselhave interests adverse to the Class.111.Class action treatment is superior to other available methods for the fair andefficient adjudication of the controversy.112.Absent class certification, individual litigation of the claims would beunreasonably expensive in light of the probable recoverable damages, burdensome upon thecourt, and would waste resources otherwise available to compensate the class.TOLLING OF THE STATUTE OF LIMITATIONS113.Upon information and belief, defendants have known of the defects inCertainTeed vinyl siding since at least the early 2000s.114.Defendants concealed and/or failed to notify plaintiffs, the Class and the generalpublic of the full and complete nature of said defects.24

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 25 of 98115.Defendants were and are under a continuous duty to disclose to plaintiffs the truecharacter, quality, and nature of the CertainTeed vinyl siding.116.Defendants actively concealed the true character, quality and nature ofCertainTeed vinyl siding and knowingly made misrepresentations about the quality, reliability,characteristics and performance of said siding, which behavior is ongoing.117.Plaintiffs and the Class reasonably relied upon defendants’ knowing andaffirmative misrepresentations and/or active concealment of these facts.118.Plaintiffs, despite the exercise of due diligence, could not have reasonablydiscovered that CertainTeed vinyl siding was inherently defective because said defects are latentand not detectable until manifestation.119.Based on the foregoing, defendants are estopped from relying on any statutes oflimitation in defense of this action.FIRST CAUSE OF ACTION –BREACH OF EXPRESS WARRANTY120.Plaintiffs repeat and re-allege the paragraphs above as if fully set forth herein.121.At all times relevant, defendants owed a duty for express warranties pursuant toNew York Uniform Commercial Code § 2-313 and other similar state statutes including S.C.Code Ann. § 36-2-313; Tenn. Code Ann. § 47-2-313; Mich. Comp. Laws § 440.2313; N.H. Rev.Stat. § 382-A:2-313; 11 Maine Rev. Stat. § 2-313; and Minn. Stat. § 336.2-313.122.At all times relevant, defendants expressly represented to the public and plaintiffsthat “Satisfaction is Guaranteed” for CertainTeed vinyl siding products.123.At all times relevant, defendants expressly represented to the public and plaintiffsthat CertainTeed vinyl siding provides long-lasting beauty and protection for home of every size,style and age.25

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 26 of 98124.At all times relevant, defendants expressly represented to the public and plaintiffsthat CertainTeed vinyl siding is beautifying, protective, durable, low maintenance and costeffective.125.At all times relevant, defendants expressly represented that CertainTeed vinylsiding is free from manufacturing defects.126.At all times relevant, defendants expressly represented that CertainTeed vinylsiding will not result in failure, defect or damage under normal exposure conditions.127.At all times relevant, defendants expressly represented that CertainTeed vinylsiding will maintain its structural integrity, including protection from peeling, flaking, blistering,corroding and excessive fading under normal exposure and weathering conditions.128.At all times relevant, defendants expressly represented that CertainTeed vinylsiding provides a lifetime warranty to an original individual homeowner and a 50-year proratedwarranty to all other owners and/or subsequent owners.129.At all times relevant, defendants provided a written warranty for theirCertainTeed vinyl siding, including plaintiffs’ written warranties attached hereto, whichconstitute express warranties.130.Defendants’ representations and warranties were directed at plaintiffs and theClass, and expressly made and written for the benefit of plaintiffs and the Class.131.At all times relevant, the foregoing representations of defendants constituted thebasis of the bargain between CertainTeed Saint-Gobain and plaintiffs and/or their predecessorsin-interest who justifiably relied upon the same.26

Case 1:17-cv-01075-FJS-ATB Document 1 Filed 09/26/17 Page 27 of 98132.Certain aforementioned portions of the written warranties, including but notlimited to the “external heat source” exclusions were unconscionable at the time they wereentered into, and are void, voidable, or otherwise unenforceable.133.Contrary to said express representations and writt

The CertainTeed vinyl siding warranty provides property owners with a lifetime warranty that is transferable to subsequent owners. 50. CertainTeed Saint-Gobain provides subsequent owners with a prorated 50 year warranty measured from the date of first installation. 51. Defendants' vinyl siding warranty provides that if CertainTeed determines .