[RPPTL-constructionlaw] FW: Pardon the interruption

[Arnold D. Tritt, Jr.]

Gang:  See below.  Being sent on behalf of Gary.  Arnie.

 

From: Gary L. Brown 
Sent: Wednesday, December 12, 2012 1:59 PM
To: RPPTL constructionlaw
Subject: Pardon the interruption

 

Has anyone successfully prosecuted a claim against a manufacturer on
behalf of a roofing company to recover consequential damages (costs of
removal and replacement of the roof) due to defective materials?  I'm
looking into potential theories of recovery (and anticipated defenses
including ELR) against the manufacturer (client doesn't necessarily want
to go after the supplier).

 

There is an applicator agreement between the roofing company and
manufacturer but the materials were purchased directly from a supplier.
I'm aware of the privity requirement for an implied warranty claim.  Has
anyone argued that the applicator agreement establishes the necessary
privity? The cases I've seen don't discuss the nuances, but simply say
that privity is required and go against a roofer that purchased directly
from a supplier (vertical non-privity).  There's no discussion in the
cases about applicator agreements, but my assumption is that every
roofer for a major manufacturer has one, yet the appellate decisions
hold against the roofer.  Either that's because no one has made the
argument in the trial court, or the appellate court just assumed no
privity in the traditional sense since the roofer didn't buy directly
from the manufacturer.

 

If the applicator agreement doesn't establish the necessary privity,
then would the ELR bar a negligence claim?  I've seen cases that hold
that in non-privity cases, the ELR still applies where there is no
damage to "other property".  And under Casa Clara, the damage to the
other roofing components would likely not fall into that category.  And
as noted in Indemnity (citing Casa Clara) costs of replacement would fit
squarely within purely economic losses barred the ELR.

 

Any suggestions/comments would be greatly appreciated.

 

Per the "what would Arnie do" rule, please email your comments to
gbrown at wsh-law.com

 

Gary

Gary L. Brown
Partner, Board Certified in Construction Law

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